[Federal Register Volume 69, Number 10 (Thursday, January 15, 2004)]
[Notices]
[Pages 2372-2373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-880]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-49042; File No. SR-Amex-2003-84]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change and Amendment No. 1 Thereto by the American Stock Exchange LLC 
To Amend Sections 132(c), 623, and 624 of the Amex Company Guide To 
Update the Requirements for Dissemination of Interim Reports by Listed 
Companies

January 8, 2004.
    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 September 25, 2003, the American Stock Exchange LLC (``Amex'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the Exchange. On 
December 29, 2003, the Amex filed Amendment No. 1 to the proposed rule 
change.\3\ The Commission is publishing this notice to solicit comments 
on the proposed rule change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(l).
    \2\ 17 CFR 240.19b-4.
    \3\ See letter from Claudia Crowley, Vice President, Listing 
Qualifications, Amex, to Nancy Sanow, Assistant Director, Division 
of Market Regulation (``Division''), Commission, dated December 22, 
2003 (``Amendment No. 1''). Amendment No. 1 makes a technical 
clarification to the proposed rule language of Section 623 of the 
Amex Company Guide.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Sections 132(c), 623, and 624 of the 
Amex Company Guide to update the requirements for dissemination of 
interim reports by listed companies.
    Below is the text of the proposed rule change, as amended.\4\ 
Proposed new language is italicized; proposed deleted language is 
[bracketed].
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    \4\ The Commission has made minor formatting corrections to the 
proposal that are technical in nature at the Amex's request. 
Telephone conversation between Claudia Crowley, Vice President, 
Listing Qualifications, Amex, and Sapna C. Patel, Special Counsel, 
Division, Commission, on January 7, 2004.
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* * * * *

American Stock Exchange LLC Company Guide

* * * * *

Section 132. Listing Agreements

* * * * *
    (a) and (b)--No change.
    (c) Accounting, Annual and [Quarterly] Interim Reports-- Furnish 
shareholders with annual reports and release [quarterly sales] interim 
[and] earnings and operating results (Sections 603-624). [(Companies 
not having common stock listed on the Amex or NYSE are required to send 
annual and quarterly reports to security holders)];
    (d) and (e)--No change.
* * * * *

Sec. 623. Dissemination

    [Interim statements (unaudited) are not required to be sent to 
security holders by any company whose common stock is listed on a 
national securities exchange. (Any company may, and many companies, in 
response to requests by their shareholders and the recommendation of 
the Exchange, now do send such statements.)]
    [Companies whose common stock is not listed on a national 
securities exchange must send interim statements (unaudited) to holders 
of its securities which are listed on the Exchange.]
    (a) Each issuer whose securities are listed pursuant to Section 
101(a)--(e) must disseminate (in the form of a press release or other 
public announcement in accordance with the requirements and procedures 
set forth in Sections 401-403) statements of earnings and operating 
results prior to or as soon as practicable following the date the 
company files its interim reports on an annual, quarterly or other 
basis with the Commission or other applicable regulatory agency. The 
[Interim] statement[s] of [sales and] earnings and operating results 
must be on the same basis of [the same degree of] consolidation as the 
annual report and[. Such statements should] disclose, at a minimum, any 
substantial items of unusual or nonrecurrent nature and [will show] net 
income before and after federal income taxes or net income and the 
amount of federal income taxes. Three copies must be sent to the 
Exchange.
    (b) Interim statements are not required to be sent to security 
holders. As a matter of fairness, corporations [which] that choose to 
distribute interim reports to shareholders [should distribute] must 
send such reports to both registered and beneficial shareholders.
    [In all cases, such information (whether or not furnished to 
security holders) must be disseminated in the form of a press release 
to one or more newspapers of general circulation in New York regularly 
publishing financial news and to one or more of the national news-wire 
services. Three copies must be sent to the Exchange.]
    [Further information on the handling of press releases is set forth 
in Sec. Sec.  401-405.]
* * * * *

Sec. 624. Exceptions

    Exceptions to the [Exchange's] requirements set forth in Section 
623 will be made [that quarterly results be distributed in the form of 
a press release is made] only in cases where conditions peculiar to the 
type of company, or to the particular company itself, would make such 
[a release] dissemination impracticable or misleading, as in the case 
of companies dependent upon long-term contracts, [or companies] 
dependent upon the growth and sale of a crop in an annual cycle, or 
[companies] operating under conditions which make such releases 
virtually impossible or misleading.
    When the Exchange is convinced that the release of quarterly (or 
other applicable interim) results is impracticable, or could be 
misleading, it may require an agreement to release a semi-annual 
statement of sales and earnings, or an interim statement of certain 
operating statistics which will serve to indicate the trend of the 
company's business during the period between annual reports. Only when 
the Exchange is convinced that any type of interim release is either 
impracticable, or misleading, will an agreement calling merely for 
publication of annual statements be accepted.
    A request for an exception should be in the form of a letter 
directed to the Exchange.
* * * * *

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 Amex 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 III below. The Amex has prepared summaries, set forth in sections 
A, B, and C below, of the most significant aspects of such statements.

[[Page 2373]]

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

1. Purpose
    Section 623 of the Amex Company Guide requires listed companies to 
disseminate statements of earnings and operating results in the form of 
a press release.\5\ Under Section 623, listed companies whose common 
stock is listed on the Amex or another national securities exchange are 
not required to send these reports to shareholders. However, a company 
which lists a non-equity security on the Amex (e.g., bonds or preferred 
stock) and does not have common stock listed on a national securities 
exchange is required to send interim reports to holders of its Amex 
listed securities.
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    \5\ The Amex represents that Section 624 of the Company Guide 
sets forth certain limited exceptions to this requirement, primarily 
for companies that are dependent upon long-term contracts that make 
release of quarterly results impracticable or misleading. The Amex 
further represents that exceptions are virtually never requested.
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    The requirement to send interim reports to security holders has 
been in existence for many years, and, according to the Amex, appears 
to have been intended to address concerns that companies that did not 
have listed common stock received little or no media attention. 
However, with the advent of the Internet and EDGAR, investors have 
ready access to all issuer press releases and SEC filings. The Amex 
represents that neither the New York Stock Exchange, Inc. nor The 
Nasdaq Stock Market, Inc. require that interim reports be sent to 
security holders, whether or not the issuer has listed common stock. 
Additionally, the Amex represents that some issuers impacted by this 
requirement have complained that it is unnecessarily costly to send 
interim reports to security holders.
    Accordingly, the Exchange is proposing that the requirement to send 
interim reports to security holders be eliminated.\6\ Other non-
substantive and stylistic revisions have also been made to Sections 
132, 623, and 624 of the Amex Company Guide to make these sections less 
confusing.
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    \6\ The Commission notes, however, that if companies choose to 
mail interim reports to shareholders, they should be sent to both 
registered and beneficial shareholders. Nothing in this proposal 
will change this requirement. See Amex Section 623; see also 
Securities Exchange Act Release No. 36541 (November 20, 1995), 60 FR 
62921 (December 7, 1995).
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2. Statutory Basis
    The Amex believes that the proposed rule change, as amended, is 
consistent with Section 6(b) \7\ of the Act in general and furthers the 
objectives of Section 6(b)(5) \8\ of the Act in particular in that it 
is designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in facilitating 
transactions in securities, to remove impediments to and perfect the 
mechanism of a free and open market and a national market system, to 
protect investors and the public interest and is not designed to permit 
unfair discrimination between customers, issuers, brokers, or dealers.
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    \7\ 15 U.S.C. 78f(b).
    \8\ 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.

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

    No written comments were solicited or received with respect to the 
proposed rule change.

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 Exchange consents, the Commission will:
    A. By order approve such 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, as amended, 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. 20549-0609. Comments may also be submitted electronically at the 
following e-mail address: [email protected]. All comment letters 
should refer to File No. SR-Amex-2003-84. This file number should be 
included on the subject line if e-mail is used. To help the Commission 
process and review your comments more efficiently, comments should be 
sent in hardcopy or by e-mail but not by both methods. 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 at the Commission's 
Public Reference Room. Copies of such filing will also be available for 
inspection and copying at the principal office of the Exchange. All 
submissions should refer to the File No. SR-Amex-2003-84 and should be 
submitted by February 5, 2004.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(12).
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J. Lynn Taylor,
Assistant Secretary.
[FR Doc. 04-880 Filed 1-14-04; 8:45 am]
BILLING CODE 8010-01-P