[Federal Register Volume 68, Number 175 (Wednesday, September 10, 2003)]
[Notices]
[Pages 53413-53415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23051]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-48435; File No. SR-NYSE-2003-23]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change by the New York Stock Exchange, Inc. Repealing Exchange Rule 500 
and Amending Section 806 of the Listed Company Manual

September 3, 2003.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on August 20, 2003, the New York Stock Exchange, Inc. (``NYSE'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I, II, and III below, which Items have been prepared by the NYSE. 
The Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The NYSE proposes to delete Exchange Rule 500 in its entirety and 
amend Section 806 of the Exchange's Listed Company Manual regarding the 
application by an issuer to delist its securities from the Exchange. 
Below is the text of the proposed rule change. Proposed new language is 
in italics; proposed deletions are in [brackets].
    Rules of Board of Directors
    General Rules
* * * * *
    [Removal from the List Upon Request of the Issuer
    Rule 500. An issuer may apply to delist a security after complying 
with the following procedures:
    (a) Stock of a domestic issuer:
    (1) The issuer's audit committee and board of directors must 
approve the application;
    (2) The issuer must publish a press release announcing its proposed 
delisting; and
    (3) The issuer must send to at least each of its 35 record 
shareholders with the largest positions in the security written notice 
alerting them to the proposed delisting; such notice must specify the 
earliest possible date of such delisting (which date shall be not less 
than 20 business days nor more than 60 business days (or, subject to 
Exchange approval, such longer period as the issuer may request) after 
the later of the date the notice is sent or the press release is 
issued) and must include a statement that the issuer complied with 
paragraphs (a)(1) and (a)(2) above. The issuer must contemporaneously 
send to the Exchange a copy of such notice.
    (b) Stock of non-U.S. issuer:
    (1) The issuer's board of directors must approve the application;
    (2) The issuer must publish a press release announcing its proposed 
delisting; and
    (3) The issuer must send to at least each of its 35 U.S. record 
shareholders with the largest positions in the security written notice 
alerting them to the proposed delisting. The issuer must 
contemporaneously send to the Exchange a copy of such notice.
    (c) All listed bonds: The issuer's board of directors must approve 
the application.
    * * * Supplementary Material:
    .10 Definition of ``stock'' and ``bond.''--Exchange Rule 4 defines 
the term ``stock,'' and Exchange Rule 5 defines the term ``bond.''
    .20 Requirement to issue a press release.--Pursuant to paragraphs 
(a)(2) and (b)(2) of this Rule, the issuer must publish the press 
release in compliance with the Procedures of Public Release of 
Information in Para.202.06 of the Exchange's Listed Company Manual.
    .30 Application to the Securities and Exchange Commission to 
withdraw a security from listing.--After an issuer complies with the 
procedures of this Rule, the issuer may file an application with the 
Securities and Exchange Commission to withdraw the security from 
listing on the Exchange and from registration under the Securities 
Exchange Act of 1934. With respect to an issuer required to provide 
security holders with notice of the proposed delisting pursuant to 
paragraph (a) (3) of this Rule, the proposed date for such withdrawal 
from listing and registration must be the same date specified in its 
notice to security holders. The issuer must contemporaneously send to 
the Exchange a copy of the application.
    .40 Delisting of multiple classes of securities.--If an issuer 
delists a class of stock from the Exchange pursuant to this Rule, but 
does not delist other classes of listed securities, the Exchange will 
give consideration to delisting one or more of such other classes.]
* * * * *

Listed Company Manual

* * * * *
    806.00 Rule of the Exchange in respect of Removal From List upon 
Request of Company.
    [Rule 500 in effect as of July 21, 1999 is as follows:

[[Page 53414]]

    Rule 500. An issuer may apply to delist a security after complying 
with the following procedures:
    (a) Stock of a domestic issuer:
    (1) The issuer's audit committee and board of directors must 
approve the application;
    (2) The issuer must publish a press release announcing its proposed 
delisting; and
    (3) The issuer must send to at least each of its 35 record 
shareholders with the largest positions in the security written notice 
alerting them to the proposed delisting; such notice must specify the 
earliest possible date of such delisting (which date shall be not less 
than 20 business days nor more than 60 business days (or subject to 
Exchange approval, such longer period as the issuer may request) after 
the later of the date the notice is sent or the press release is 
issued) and must include a statement that the issuer complied with 
paragraphs (a) (1) and (a) (2) above. The issuer must contemporaneously 
send to the Exchange a copy of such notice.
    (b) Stock of non-U.S. issuer:
    (1) The issuer's board of directors must approve the application;
    (2) The issuer must publish a press release announcing its proposed 
delisting; and
    (3) The issuer must send to at least each of its 35 U.S. record 
shareholders with the largest positions in the security written notice 
alerting them to the proposed delisting. The issuer must 
contemporaneously send to the Exchange a copy of such notice.
    (c) All listed bonds: The issuer's board of directors must approve 
the application.
    * * * Supplementary Material:
    .10 Definition of ``stock'' and ``bond.''--Exchange Rule 4 defines 
the term ``stock,'' and Exchange Rule 5 defines the term ``bond.''
    .20 Requirement to issue a press release.--Pursuant to paragraphs 
(a)(2) and (b)(2) of this Rule, the issuer must publish the press 
release in compliance with the Procedures of Public Release of 
Information in Para.202.06 of the Exchange's Listed Company Manual.
    .30 Application to the Securities and Exchange Commission to 
withdraw a security from listing.--After an issuer complies with the 
procedures of this Rule, the issuer may file an application with the 
Securities and Exchange Commission to withdraw the security from 
listing on the Exchange and from registration under the Securities 
Exchange Act of 1934. With respect to an issuer required to provide 
security holders with notice of the proposed delisting pursuant to 
paragraph (a) (3) of this Rule, the proposed date for such withdrawal 
from listing and registration must be the same date specified in its 
notice to security holders. The issuer must contemporaneously send to 
the Exchange a copy of the application.
    .40 Delisting of multiple classes of securities.--If an issuer 
delists a class of stock from the Exchange pursuant to this Rule, but 
does not delist other classes of listed securities, the Exchange will 
give consideration to delisting one or more of such other classes.]
    An issuer may apply to delist a security after its board approves 
the action and the issuer furnishes the Exchange with a copy of the 
board resolution certified by the secretary of the issuer. The issuer 
may thereafter file an application with the Securities and Exchange 
Commission to withdraw the security from listing on the Exchange and 
from registration under the Securities Exchange Act of 1934. If an 
issuer delists a class of stock from the Exchange pursuant to this 
Rule, but does not delist other classes of listed securities, the 
Exchange will give consideration to delisting one or more of such other 
classes.
* * * * *

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the NYSE included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The NYSE has prepared summaries, set forth in Sections 
A, B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange is proposing to delete Exchange Rule 500 in its 
entirety and to amend Section 806 of the Exchange's Listed Company 
Manual regarding the application by an issuer to delist its securities 
from the Exchange. Amended Section 806 would require simply that a 
company furnish the Exchange with a certified board resolution 
evidencing board approval of the voluntary delisting.
    Exchange Rule 500 describes the procedures a listed company must 
follow to voluntarily delist its securities from the Exchange. The 
original rule, adopted in 1939, required two-thirds of a company's 
outstanding shares to vote in favor of a delisting, with no more than 
ten percent of the shares opposing. In 1999, the requirement of a 
shareholder vote was eliminated, and since then the rule has required 
only board and audit committee approval, prior written notice to the 
company's 35 largest record holders, and a press release informing 
shareholders generally of the proposed delisting. \3\
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    \3\ See Securities Exchange Act Release No. 41634 (July 21, 
1999), 64 FR 40633 (July 27, 1999) (SR-NYSE 97-31) (hereinafter 
referred to as the ``1999 SEC Approval Order''). Since the 1999 
amendment, only one company has voluntarily delisted its common 
stock to move to Nasdaq. Several companies have used the rule to 
voluntarily delist bonds from the Exchange, which the NYSE 
represents that it understood to be motivated by a desire to reduce 
reporting burdens attendant to listing the bonds (the shareholder 
notification requirement does not apply to a voluntarily delisting 
of bonds). A similar motivation prompted a Swedish company with very 
few U.S. shareholders to delist its ADRs earlier this year so that 
it could avoid having to comply with U.S. reporting obligations. 
Finally, three small closed end funds moved to the American Stock 
Exchange because their declining net asset value placed them in 
danger of falling below NYSE continued listing requirements.
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    In approving the 1999 amendment, the Commission requested that the 
Exchange review periodically the shareholder notification requirement 
of Rule 500 to determine whether it remained warranted and consistent 
with the protection of investors. In fulfillment of the Commission's 
request and in the context of the work the Exchange has done in re-
examining its corporate governance standards for listed companies, the 
Exchange determined to reassess Rule 500. The Exchange has concluded 
that it is now appropriate to require only that a company voluntarily 
delisting its securities from the Exchange obtain the approval of its 
board and furnish the Exchange with a copy of the board resolution. The 
company would, of course, then be required under Commission rules to 
file an application with the Commission to withdraw the security from 
listing on the Exchange.\4\
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    \4\ See Rule 12d2-2(d) under the Act.
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    The rationale for the requirement in the current rule that a 
company obtain a separate audit committee approval of a delisting was 
to insure that independent directors approved the decision.\5\ In the 
work the Exchange has done during the last two years on corporate 
governance listing standards, the Exchange has learned that a majority 
independent board has already become prevalent among Exchange listed

[[Page 53415]]

companies.\6\ After the Exchange's currently pending corporate 
governance proposals become final, a majority independent board will 
become an Exchange listing standard.\7\ As a result, the Exchange 
believes that board approval of a voluntary delisting is all that must 
be required by the Exchange.
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    \5\ See 1999 SEC Approval Order, footnote 16, and text 
accompanying footnotes 44 and 45.
    \6\ See Press Release from Investor Responsibility Research 
Center, March 7, 2002, available at www.irrc.com/company/06062002_NYSE.html.
    \7\ See Securities Exchange Act Release No. 47672 (April 11, 
2003), 68 FR 19051 (April 17, 2003) (SR-NYSE 2002-33). Under the 
Exchange's proposed standards, a controlled company will not be 
required to have a majority independent board. Here too, however, a 
board that is acceptable under the new Exchange standards should be 
appropriate to make a delisting decision.
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    The Exchange further believes that neither advance notification to 
shareholders nor a company press release need be mandated under 
Exchange rules. In the case of a transfer of a listing from one market 
to another, both the company transferring and the market to which it is 
transferring are typically eager to publicize the event.\8\ Practical 
considerations such as the need to make brokers and investors aware of 
a change in ticker symbol also serve to insure that a planned move is 
visible. In any event, companies are obligated to publicly disclose 
material events,\9\ and the Exchange expects that a company that has 
made a final determination to voluntarily delist its securities from 
the Exchange would promptly disclose that determination to the 
public.\10\
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    \8\ The company referred to in footnote 3 above that transferred 
to Nasdaq issued a press release announcing that fact approximately 
one month prior to the actual transfer.
    \9\ See Sections 202.05 and .06 of the Exchange's Listed Company 
Manual. The Exchange also notes that pending proposed amendments by 
the SEC to Form 8-K will require a Form 8-K filing when a company 
has taken definitive action to terminate a listing, including by 
reason of a transfer to another market. See Securities Exchange Act 
Release No. 46084 (June 17, 2002), 67 FR 42914 (June 25, 2002) (File 
No. S7-22-02).
    \10\ When reviewing this proposed rule change, members of the 
Exchange's Pension Managers Advisory Committee as well as members of 
the Exchange's Board of Directors observed that companies should not 
voluntarily delist from the Exchange without investors in their 
stock having advance notice of the event. For the reasons stated 
above, the Exchange believes that there will be adequate public 
notice. If, however, for some reason disclosure is not made by the 
company or a third party when such disclosure is warranted, then the 
Exchange itself will publicly announce the planned delisting.
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    The Exchange has for many years replicated Rule 500 in Section 806 
of its Listed Company Manual, which is a separate compendium of rules 
applicable to listed companies. In making this change, the Exchange 
will delete Rule 500 in its entirety. The remaining requirement of 
board approval and notice thereof to the Exchange will be codified in 
section 806 of the Listed Company Manual.
2. Statutory Basis
    The NYSE represents that the basis under the Act for this proposed 
rule change is the requirement under section 6(b)(5)\11\ that an 
exchange have rules that are designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, to remove impediments to, and perfect the 
mechanism of a free and open market and, in general, to protect 
investors and the public interest.
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    \11\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received from Members, Participants or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    A. By order approve the proposed rule change, or
    B. Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Persons making written submissions 
should file six copies thereof with the Secretary, Securities and 
Exchange Commission, 450 Fifth Street NW., Washington, DC 20549. Copies 
of the submission, all subsequent amendments, all written statements 
with respect to the proposed rule change that are filed with the 
Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for inspection and copying in the 
Commission's Public Reference Room. Copies of such filing will also be 
available for inspection and copying at the principal office of the 
NYSE. All submissions should refer to file number SR-NYSE-2003-23 and 
should be submitted by October 1, 2003.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).

Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 03-23051 Filed 9-9-03; 8:45 am]
BILLING CODE 8010-01-P