[Federal Register Volume 71, Number 125 (Thursday, June 29, 2006)]
[Notices]
[Pages 37147-37154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10243]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54029; File No. SR-NYSE-2005-68]


Self-Regulatory Organizations; New York Stock Exchange, Inc. (a/
k/a New York Stock Exchange LLC); Notice of Filing of Proposed Rule 
Change Relating to Annual Financial Statement Distribution Requirements 
and Listed Company Manual Sections 103.00, 203.00, 203.01, 203.02, 
203.03, 204.00 Through .33, 303A.14, 313.00, 401.04, and 703.09

June 21, 2006.
    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 30, 2005, the New York Stock Exchange, Inc. (``NYSE'' 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 NYSE. On June 9, 
2006, the Exchange 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)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ In Amendment No. 1, the NYSE eliminated from the present 
filing other proposed rule changes to Sections 103 and 302 of the 
Listed Company Manual, and clarified certain details of its 
proposal. Amendment No. 1 replaced and superseded NYSE's original 
filing in its entirety.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange's proposed rule change reflects amendments that 
eliminate the current NYSE Listed Company Manual requirement that 
listed companies distribute an annual report to shareholders, specify 
more precisely certain requirements applicable to listed foreign 
private issuers, amend the Exchange's requirements for notices to and 
filings with the Exchange, add a new section to the Listed Company 
Manual that specifically requires listed companies to have and maintain 
a Web site, and reorganize and eliminate certain sections of the Listed 
Company Manual.\4\
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    \4\ See Telephone Conversation between Annemarie Tierney, 
Assistant General Counsel, NYSE, and Raymond Lombardo, Special 
Counsel, Division of Market Regulation, Commission and Rahman 
Harrison, Special Counsel, Division of Market Regulation, 
Commission, on June 20, 2006.
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    The text of the proposed rule change, as amended, is available 
below. Proposed new language is italicized; proposed deletions are in 
[brackets].
* * * * *

Listed Company Manual

* * * * *
103.00 [Non-U.S. Companies] Foreign Private Issuers

    The Exchange welcomes listing inquiries from [non-U.S. companies] 
foreign private issuers. [It continues to broaden its scope of trading 
in shares of internationally respected companies based in other 
countries. With the rapid growth and need for capital of multinational 
companies and the interdependence of the world's economies, the 
Exchange is prepared to be the global marketplace.]
    Foreign private issuers [Non-U.S. companies] may elect to qualify 
for listing either under the Alternate Listing Standards for foreign 
private issuers [non-U.S. companies] or the Exchange's domestic listing 
criteria. [An applicant company] The foreign private issuer must meet 
all of the criteria within the standards under which it seeks to 
qualify for listing. For purposes of this Listed Company Manual, the 
terms ``foreign private issuer'' and ``non-U.S. company'' have the same 
meaning and are defined in accordance with the SEC's definition of 
foreign private issuer set out in Rule 3b-4(c) of the Securities 
Exchange Act of 1934.
    The Alternate Listing Standards are designed to encourage major 
non-U.S. companies to list their shares on the Exchange. Domestic 
listing requirements call for minimum distribution of a company's 
shares within the United States, or in the case of North American 
companies, within North America. This is a major obstacle for many 
large non-U.S. companies which otherwise fulfill many times over the 
normal size and earnings requirements for listing on the Exchange. The 
principal Alternate Listing Standards focus on worldwide rather than 
U.S. or North American distribution of a non-U.S. company's shares.
    In addition to the minimum numerical standards for listing, the 
Exchange has established policies and requirements concerning certain 
corporate governance practices and the reporting of interim earnings. 
For example, in many foreign countries, controlling law or common 
practice compel or permit the non-U.S. company to issue interim 
earnings reports on a semi-annual, as opposed to quarterly, basis or to 
have a class or classes of

[[Page 37148]]

common stock having more or less than one vote per share.
    Other Exchange policies concerning the corporate governance 
practices required of domestic companies which may not be consistent 
with the home country laws or practices of non-U.S. companies include 
those which address the structure and composition of the Board of 
Directors, shareholder approval, quorum requirements for shareholders' 
meetings and related continued listing criteria.
    [Where it appears to the Exchange that a non-U.S. company's interim 
earnings reporting or corporate governance practices are not prohibited 
by the law in the country in which it is domiciled, such practices need 
not necessarily be barriers to listing or continued listing. In 
addition, the Exchange will permit non-U.S. issuers to follow home-
country practices regarding the distribution of annual reports to 
shareholders, if, at a minimum, (a) shareholders are provided at least 
summary annual reports, including summary financial information, (b) 
shareholders have the ability, upon request, to receive an annual 
report that complies with the requirements of Para. 203.01 (a ``full 
annual report''), and (c) the financial information contained in the 
summary annual report is reconciled to U.S. generally-accepted 
accounting principles to the extent that such reconciliation would be 
required in the full annual report.
    A non-U.S. issuer that seeks to use a summary annual report in lieu 
of a full annual report should contact its Exchange representative to 
determine whether the proposed use of the summary annual report would 
meet these requirements.]
    To assist the Exchange in considering the question of the listing 
or continued listing of the securities of a non-U.S. company whose 
interim earnings reporting or corporate governance practices are not in 
compliance with Exchange requirements for domestic companies, the non-
U.S. company should furnish the Exchange with a written certification 
from independent counsel in the country of the non-U.S. company's 
domicile as to whether or not the non-complying practices are 
prohibited by home country law.
    The Alternate Listing Standards for non-U.S. companies apply only 
where there is a broad, liquid market for the company's shares in its 
country of origin.
* * * * *

202.00 Material Information
* * * * *

202.05 Timely Disclosure of Material News Developments

    A listed company is expected to release quickly to the public any 
news or information which might reasonably be expected to materially 
affect the market for its securities. This is one of the most important 
and fundamental purposes of the listing agreement which the company 
enters into with the Exchange.
    A listed company should also act promptly to dispel unfounded 
rumors which result in unusual market activity or price variations.
    The issuer of income deposit securities traded as a unit shall 
publicize any change in the terms of the unit, such as changes to the 
terms and conditions of any of the components (including changes with 
respect to any original issue discount or other significant tax 
attributes of any component), or to the ratio of the components within 
the unit. Such publication shall be made as soon as practicable in 
relation to the effective date of the change, and should otherwise be 
made in accordance with the procedures specified in [Para.] Section 
202.06 below. In addition, the issuer must provide information 
regarding the terms and conditions of the components of the unit 
(including information with respect to any original issue discount or 
other significant tax attributes of any component), and the ratio of 
the components comprising the unit[,] on its website [or, if it does 
not maintain a website, in its annual report to unit holders].
* * * * *

203.00 Reporting Financial Information to Shareholders [Annual and 
Interim Reporting Requirements]

203.01 Annual Financial Statement [Report] Requirement

    Any company with voting or non-voting common securities listed on 
the Exchange that is required to file with the SEC an annual report 
that includes audited financial statements (including on Forms 10-K, 
20-F, 40-F or N-CSR) is required to simultaneously make such annual 
report available to shareholders of such securities on or through the 
company's website.
    Companies must also post to their website a prominent undertaking 
in the English language to provide all holders (including preferred 
stockholders and bondholders) the ability, upon request, to receive a 
hard copy of the company's complete audited financial statements free 
of charge. In addition, simultaneously with this posting, the company 
must issue a press release stating that its annual report has been 
filed with the SEC. This press release must also indicate that 
shareholders have the ability to receive a hard copy of the company's 
complete audited financial statements free of charge upon request. 
Companies must provide such hard copies within a reasonable period of 
time following the request. Moreover, the press release must be 
published pursuant to the Exchange's press release policy (see Section 
202.06 above).
    A company that fails to file its annual report on Forms 10-K, 20-F, 
40-F or N-CSR with the SEC in a timely manner is subject to the 
procedures in Section 802.01E.
    [The Exchange requires that companies publish at least once a year 
and distribute to shareholders an annual report containing financial 
statements of the company and its consolidated subsidiaries prepared in 
conformity with generally accepted accounting principles. The company 
must distribute its annual report to its shareholders not later than 
120 days (225 days for Non-U.S. issuers) after the close of each fiscal 
year. Notwithstanding the foregoing, domestic issuers must make this 
distribution at least fifteen days in advance of the annual meeting. 
(Non-U.S. issuers are encouraged to do so when possible.) When the 
annual report is distributed to shareholders, two copies should be sent 
to the Exchange together with advice as to the date of distribution to 
shareholders.
    The company must distribute its annual report to its shareholders 
not later than 120 days (225 days for Non-U.S. issuers) after the close 
of each fiscal year. Notwithstanding the foregoing, domestic issuers 
must make this distribution at least fifteen days in advance of the 
annual meeting. (Non-U.S. issuers are encouraged to do so when 
possible.) When the annual report is distributed to shareholders, two 
copies should be sent to the Exchange together with advice as to the 
date of delivery to shareholders.
    Companies may satisfy the annual distribution requirement either by 
distributing an annual report to shareholders, or by distributing to 
shareholders the Form 10-K (or Form 20-F for Non-U.S. issuers) filed 
with the SEC, with an indication that it is distributed in lieu of a 
separate annual report. When the annual report (or Form 10-K or Form 
20-F) is distributed to shareholders, two copies should be sent to the 
Exchange, together with advice as to the date of delivery to 
shareholders. Distribution shall be in such format and by such means as 
permitted or required by applicable law and regulation (including any 
interpretations thereof by

[[Page 37149]]

the SEC). (See, for example, the following interpretations by the SEC: 
Release No. 34-36345; File No. S7-31-95; Release No. 34-37182, File No. 
S7-13-96; and Release No. 34-42728, File No. S7-11-00.)
    A company that is unable to timely file its Form 10-K or Form 20-F 
with the SEC must notify the Exchange prior to the SEC filing deadline, 
explaining the reason for the delay and the anticipated filing date. 
The Exchange will evaluate the circumstances and the continued listing 
status of the company, and at a minimum will require the company to 
issue a press release indicating the delay, the reason for the delay 
and the anticipated filing date. In making its evaluation, the Exchange 
will consider whether the company has released or plans to release to 
the press information regarding its financial results for the fiscal 
year. Once the company does file its Form 10-K (Form 20-F) with the 
SEC, it must then distribute to the shareholders an annual report or a 
Form 10-K (Form 20-F) in lieu thereof no later than 15 days (30 days 
for a non-U.S. issuer) after the filing.

(A) Method of Publication

    The Exchange requires publication of the annual financial 
statements, as well as their submission to shareholders.
    While distribution of the statements to shareholders usually 
results in their receiving some publicity, to be sure of news coverage, 
companies should submit the statements, or a news release based 
thereon, to newspapers of general circulation in large cities and to 
the national news wire services as described in the ``Immediate Release 
Policy.'' (See Para. 202.06(A).) In addition, the statements, in the 
form in which sent to shareholders, should also be sent to the 
securities statistical services, in whose publications they will remain 
available for ready public reference.
    In the case of a company having only bonds listed on the Exchange, 
the Exchange expects that the required statements or news releases 
based thereon be sent to the securities statistical services and 
requires that copies of the statements be sent to bondholders who 
request them. It also urges that the statements, or news releases based 
thereon, be sent to newspapers of general circulation in large cities 
and to the national news wire services.

(B) Annual Statement to be Independently Audited

    The Exchange requires that all financial statements contained in 
annual reports of the company to its shareholders be audited by 
independent public accountants who are qualified under the laws of some 
state or country and are subject to a code of professional ethics of 
the professional accountancy body in that state or country. The 
financial statements will be accompanied by a copy of the report issued 
by the independent public accountants with respect to their examination 
of such statements.

(C) Form of Financial Statements

    The Exchange requires that all financial statements contained in 
annual reports to shareholders be in the same form as the corresponding 
statements contained in the company's original listing application or 
as modified to include the additional disclosure agreed upon by the 
company and the Exchange. The statements are to be prepared in 
conformity with generally accepted accounting principles.

(D) General Information in Annual Report

    The Exchange recommends that the following information be included 
in all annual reports:
     Address of principal office.
     Names of directors and officers.
     Identification of directors comprising the Audit Committee 
and other major committees of the Board of Directors.
     Names and addresses of trustees, transfer agents and 
registrars.
     Number of employees.
     Number of shareholders.

(E) Occasional Delay in Issuance of Statements

    The probability of a delay in the issuance of annual financial 
statements can ordinarily be foreseen. As soon as it becomes apparent 
that there may be a delay, the company should advise its Exchange 
representative of the circumstances and the probable extent of the 
delay.
    If the statements cannot be sent to shareholders at least fifteen 
days in advance of the annual meeting, it may be necessary for the 
company to postpone the meeting or to adjourn it without transaction of 
business to a date which shall be fifteen days after the statements are 
issued. Whether or not such postponement or adjournment will be 
necessary can be determined only in the light of the particular 
circumstances. The matter should be discussed with the Exchange 
representative as soon as the possibility of the delay becomes 
apparent.
    So far as the 120 day (225 day) time limit stated in the first 
paragraph of this section Section 203.01 is concerned, the Exchange, 
while ready to extend such time limit on the basis of necessity, does 
not feel free to do so on the basis of convenience. For example it 
cannot consent to a delay in the issuance of the statements just to 
make possible their simultaneous distribution with the proxy material.
    In the event of a delay in issuance of the audited financial 
statements, unaudited earnings information, if expected to be 
substantially in agreement with the final audited figures, should be 
released to the financial press. (See Para. 202.06(C) for details.) If 
that procedure is not feasible, general newspaper publicity should be 
given to the audited figures as soon as they become available without 
awaiting completion of the full, formal annual report.]
* * * * *

203.02 Interim Earnings [Reporting] Release Requirement

    Any company with voting or non-voting common securities listed on 
the Exchange that is required to file interim financial statements with 
the SEC is required to release to the press an interim earnings release 
as soon as its interim financial statements are available. See Section 
202.06 above for the Exchange's press release policy. 
    While the Exchange does not require that the interim reports be 
sent to shareholders, as a matter of fairness, listed companies that 
distribute interim reports to shareholders should distribute such 
reports to both registered and beneficial shareholders.

[(A) Time of Publication

    No specific time limit for publication of interim earnings 
statements has been set, but it is assumed that such statements will be 
published as soon as available.
    It is expected that, in this respect, each company will conform at 
least to the pattern established by the majority of companies in its 
industry and, where the company has a previous record of publication of 
interim statements, to the pattern established by that previous record.

(B) Method of Publication

    The Exchange requires publication of interim statements as news 
items in the public press. It is not required that the statements be 
sent to shareholders. As a matter of fairness, corporations which 
distribute interim reports to shareholders should distribute such 
reports to both registered and beneficial shareholders.
    Whether or not the statements are sent to shareholders, to be sure 
of adequate coverage the statements should be released to newspapers 
and to the

[[Page 37150]]

national news wire services, as described in the ``Immediate Release 
Policy.'' (See Para. 202.06(A).) In addition, they should be sent to 
the securities statistical services.
    Two copies of each interim earnings statement, in the form released 
for publication, should be filed with the Exchange. If the company 
sends interim statements to its shareholders, two copies should be 
filed with the Exchange.

(C) Form of Interim Financials

    The listing agreement merely requires publication (quarterly or 
semi-annually, as the case may be), of a statement of earnings; it does 
not require that such statement be sent to shareholders. Interim 
earnings statements shall be on the same basis of consolidation as the 
company's annual financial statements and shall disclose, at a minimum, 
any substantial items of unusual or non-recurrent nature and either net 
income before and after federal income taxes or net income and the 
amount of federal taxes. Additional information, and particularly sales 
data, will, of course, be useful to shareholders.
    Such statements may cover each quarter individually or may cover, 
cumulatively, the elapsed quarters of the current fiscal year; i.e., 
the statement for the first quarter covering three months, that for the 
second quarter covering six months and that for the third quarter 
covering nine months. Publication, each quarter, of a statement 
covering the preceding twelve months is not generally acceptable, 
although such moving-year statement may be included as a supplement to 
the individual or cumulative quarterly statement.
    It is recommended that each interim statement include like figures 
of the same period of the previous year, to afford a basis for 
comparison. This device may be particularly useful in a case where 
there is a seasonal cycle in the business.

(D) Exceptions to Policy

    Exceptions have been made to this requirement only in cases where 
conditions peculiar to the type of company, or to the particular 
company itself, would make quarterly statements 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 
publication of quarterly statements virtually impossible.
    In a case where the Exchange is convinced that quarterly statements 
are impracticable, or misleading, it may require an agreement to 
publish semi-annual statements of earnings, or interim statements 
reporting certain operating statistics which will strive to indicate 
the trend of the company's business during the period between annual 
reports.
    While no fourth quarter statement is required, items of unusual or 
non-recurrent nature occurring in the fourth quarter should be 
reflected separately in the full year earnings release.]
* * * * *

[203.03 Distributing Annual and Interim Reports to Beneficial Owners of 
Stock]

    In order to assure that annual and interim reports are distributed 
to beneficial owners of stock held in street name by Exchange member 
organizations, Exchange Rules provide that a member organization, when 
requested by a company and given assurance that it will be reimbursed 
for all reasonable out-of-pocket and clerical expenses, is required to 
transmit copies of annual and interim reports to each U.S. resident 
beneficial owner. This requirement applies to both listed and unlisted 
companies. The Exchange has approved, as fair and reasonable, certain 
rates of reimbursement of member organizations for all out-of-pocket 
and clerical expenses incurred in connection with mailing annual and 
interim reports. See Para. 402.10 for full details and current rates of 
reimbursement.]
* * * * *

204.00 Notice[s] to and Filings with [by the Company to] the Exchange

204.00 Notice[s] to and Filings with [by the Company to] the Exchange

(A) Prompt Written Notice to the Exchange

    Prompt written notice from the listed company to the Exchange is 
required in connection with certain actions or events as specified in 
Sections 204.01 through 204.25, [These notices are essential for the 
Exchange to exercise its self-regulatory responsibilities under the 
Securities Exchange Act of 1934, including its function of providing a 
fair and orderly market for a company's securities. Filings required of 
the company under the 1934 Act do not satisfy the company's obligation 
to give prompt written notice to the Exchange.
    Prompt written notice is required and is] in addition to notice 
required to be given through the Exchange's telephone alert procedures. 
(See [Para.] Section 202.06(B).)
    [While the Exchange does take note of advertisements, circulars, 
SEC filings and news items appearing in the public press, such material 
is not acceptable as authoritative advice from the company. As to many 
matters concerning which notice is required, some action on the part of 
the Exchange may be necessary and such action can only be taken on the 
basis of direct, authoritative advice from the company.]

(B) Filings with the Exchange

    The Exchange[, as well as the SEC,] requires that listed companies 
file hard copies of certain SEC reports and other materials (such as 
proxies [and prospectuses]) with the Exchange. Since all [domestic and 
non-U.S.] listed companies are required to file their periodic and 
current reports, as well as other materials, through the SEC's 
Electronic Data Gathering Analysis and Retrieval (EDGAR) system, the 
Exchange [will access certain SEC documents through that system and, 
except as provided below,] will not also require a listed company to 
file hard copies of most SEC filings with the Exchange. Specifically, 
the Exchange only requires companies to file:
     one hard copy[ies] of materials necessary to support a 
listing application [(see Paras. 703.00 & 903.00)] as required by 
Sections 702.04, 703.00 and 903.00,
     six hard copies of proxy materials not later than the date 
on which the material is physically or electronically delivered to 
shareholders (see Section 402.00),
     one hard copy of any filing[s] made on Form 6-K that is 
[are] not required to be filed through EDGAR not later than the date on 
which the Form 6-K is filed with the SEC, and
     one hard copy of notice to shareholders with respect to 
any proposed amendments to the company's charter, as well as a 
certified copy of the amended charter along with a letter of 
transmittal indicating the sections amended since the previous filing 
of amendments or amended documents, promptly following the date that 
the notice is given or the charter is amended. Similar procedure shall 
be followed with respect to resolutions of the Board of Directors, or 
any certificate or other document, having the effect of an amendment to 
the charter or by-laws.
* * * * *

[204.03 Amendment of Charter or By-Laws

    Four copies of any notice to shareholders with respect to proposed 
amendments to the company's charter are required to be sent promptly to 
the Exchange.
    When such amendments have become effective, a certified copy is 
required to be sent promptly to the Exchange.
    Similar procedure shall be followed with respect to resolutions of 
the Board

[[Page 37151]]

of Directors, or any certificate or other document, having the effect 
of an amendment to the charter or by-laws.
    If the company so desires, it may file copies of the charter or by-
laws as amended. If this is done, it will be helpful if the amended 
documents are accompanied by a letter of transmittal indicating the 
sections amended since the previous filing of amendments or amended 
documents.

204.04 Annual Report

    The Exchange requires that two copies of the company's annual 
report be provided to the Exchange when it is distributed to 
shareholders. These reports should be accompanied by notice to the 
Exchange as to the date distributed to shareholders.]
* * * * *

204.[05]03 Auditors Changed
* * * * *

204.[06]04 Business Purpose Changed
* * * * *

204.[07]05 Capital Surplus Charges
* * * * *

204.[08]06 Closing of Transfer Books
* * * * *

204.[09]07 Collateral Removed or Changed
* * * * *

[204.10 Communications to Shareholders
    The company is required to send two copies to the Exchange of every 
communication directed to shareholders.

204.11 Control, Change of

    The Exchange does not require notice from the company in the event 
of a change in control but relies instead upon filings made with it 
pursuant to the Securities Exchange Act of 1934.]
* * * * *

204.[12]08 Conversion Rate, Changes
* * * * *

204.[13]09 Decrease in Floating Supply of Stock
* * * * *

204.[14]10 Directors or Executive Officers Changed
    Prompt notice is required to be given to the Exchange of any 
changes in directors or executive officers of the company. (Please also 
see Section 303A.12(c) which requires that listed companies file an 
interim written affirmation relating to changes to the board of 
directors.)
* * * * *

204.[15]11 Disposition in Assets
* * * * *

204.[16]12 Dividends and Stock Distributions
* * * * *

204.[17]13 Form or Nature of the Listed Securities Changed
* * * * *

204.[18]14 Interest Payments
* * * * *

204.[19]15 Contingent Interest Payments
* * * * *

[204.20 Interim Earnings Statements
    The Exchange requires that two copies of each interim earnings 
statement in the form released for publication be filed promptly with 
the Exchange.]
* * * * *

204.[21]16 Legal Proceedings
* * * * *

204.[22]17 Meetings of Shareholders
    The Exchange is required to be given at least ten days' notice of 
the fixing of a date for the closing of transfer books in connection 
with any meeting of shareholders. See [Para. 204.29] Section 204.21. 
The notice should include the record date and the meeting date.
* * * * *

204.[23]18 Name Change
* * * * *

    204.[24]19 Nature of Business Changed
* * * * *

204.[25]20 Increases In Outstanding Amount Of Securities[, Increases 
In]
* * * * *

[204.26 Press Release
    Two copies of any press release are required to be sent promptly to 
the Exchange.

204.27 Prospectus
    Seven copies of any prospectus or offering circular required to be 
used pursuant to the Securities Act of 1933 in connection with the sale 
of a listed security are required to be filed promptly with the 
Exchange.

204.28 Proxy Material
    Six definitive copies of all proxy material of the company are 
required to be filed with the Exchange not later than the date on which 
such material is sent to any security holder.
    The Exchange urges that preliminary proxy material be submitted for 
review as more fully discussed in Section 4.]

204.[lsqbb]29[rsqbb]21 Record Date
* * * * *

204.[lsqbb]30[rsqbb]22 Redemption of Listed Securities
* * * * *

204.[lsqbb]31[rsqbb]23 Rights or Privileges of Listed Security Changed
* * * * *

204.[lsqbb]32[rsqbb]24 Rights to Subscribe
* * * * *

204.[lsqbb]33[rsqbb]25 Treasury Stock Changes
* * * * *

303A Corporate Governance Standards
* * * * *

    14. Listed companies must have and maintain a publicly accessible 
website. Commentary: To the extent that a listed company is subject to 
the requirements of Sections 303A.04, .05, .07(c), .09 or .10, each 
listed company's website must include a printable version of the 
applicable charters of its compensation, nominating and audit 
committees, as well as its corporate governance guidelines and code of 
business conduct and ethics. In addition, a listed company that is a 
foreign private issuer is required to include the disclosure required 
by Section 303A.11 on its website in the English language and such 
website must be accessible from the United States.
* * * * *

313.00 Voting Rights

313.00 Voting Rights
* * * * *

(B) Non-Voting Common Stock

    The Exchange's voting rights policy permits the listing of the 
voting common stock of a company which also has outstanding a non-
voting common stock as well as the listing of non-voting common stock. 
However, certain safeguards must be provided to holders of a listed 
non-voting common stock:
    (1) Any class of non-voting common stock that is listed on the 
Exchange must meet all original listing standards. The rights of the 
holders of the non-voting common stock should, except for voting 
rights, be substantially the same as those of the holders of the 
company's voting common stock.
    (2) [The requirement that listed companies publish at least once a 
year and submit to shareholders an annual report (Para. 203.01) applies 
equally to holders of voting common stock and to holders of listed non-
voting common stock.
    (3) In addition, a] Although the holders of shares of listed non-
voting common stock are not entitled to vote generally on matters 
submitted for shareholder action, holders of any listed non-voting 
common stock must receive all communications, including proxy material, 
sent generally to the holders of the voting securities of the listed 
company.
* * * * *


[[Page 37152]]


401.00 Shareholders' Meetings
* * * * *

401.04 Interval between End of Fiscal Year and Annual Meeting of 
Shareholders

    There is no Exchange requirement relating to the interval between 
the end of a company's fiscal year and the date of its annual meeting 
of shareholders. However, the Exchange believes that the annual meeting 
should be held within a reasonable interval after the close of the 
fiscal year so that the information in the annual report is relatively 
timely.
    The standard Listing Agreement requires that the annual report be 
sent to shareholders not later than 120 days (225 days for non-U.S. 
issuers) after the close of the company's fiscal year and at least 15 
days in advance of the annual meeting.]
* * * * *

703.00 Subsequent Listing Applications and Debt Securities Applications
* * * * *

703.09 Stock Option, Stock Purchase and Other Remuneration Plans 
Listing Process
* * * * *

[(C) Disclosure of Options, etc. in Annual Report

    A listed company's annual report to shareholders should disclose 
the following information as to its option plans:
     The number of shares of its stock issuable under 
outstanding options at the beginning of the year.
     Separate totals of changes in the number of shares of its 
stock under option resulting from issuance, exercise, expiration or 
cancellation of options.
     The number of shares issuable under outstanding options at 
the close of the year.
     The number of unoptioned shares available at the beginning 
and at the close of the year for the granting of options under an 
option plan.
     Any changes in the exercise price of outstanding options, 
through cancellation and reissuance or otherwise, except price changes 
resulting from the normal operation of anti-dilution provisions of the 
options.]

(C) [(D)] Filing a Listing Application Relative to Stock Option, Stock 
Purchase or Other Remuneration Plans

    It is recommended that an application for listing of unissued 
shares in connection with a stock option, stock purchase or other 
remuneration plan be filed as soon as possible after all required 
corporate and shareholder action has been taken.

(D) [E] Supporting Documents

* * * * *

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 Exchange 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 Exchange 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 has long recognized the importance of investors 
receiving adequate financial information regarding listed companies 
and, in fact, has required for many years that all listed companies 
distribute an annual report including annual audited financial 
statements to their shareholders.\5\ However, Rule 14a-3 \6\ of the Act 
has for many decades made that requirement redundant for most NYSE-
listed U.S. companies, since the Commission rule requires companies 
subject to the proxy rules to distribute annual audited financials to 
shareholders with or prior to the distribution of the annual meeting 
proxy statement.\7\ The Commission's proxy rules do not apply to 
foreign private issuers who are exempt as a result of Rule 3a12-3 of 
the Act.\8\
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    \5\ This requirement is presently contained in Section 203.01 of 
the Listed Company Manual. It can be traced back to an 1895 
recommendation that all listed companies send their shareholders an 
annual report with an income statement and balance sheet.
    \6\ 17 CFR 240.14a-3.
    \7\ The requirement to distribute annual reports in Rule 14a-3 
of the Act does not apply to registered investment companies. 
However, registered investment companies, at least semi-annually, 
must transmit reports to shareholders under Section 30(e) of the 
Investment Company Act of 1940 and the rules thereunder.
    \8\ 17 CFR 240.3a12-3.
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    Today all listed companies, U.S. and foreign, are required to file 
annual reports containing audited financial statements prepared in 
accordance with or reconciled to U.S. GAAP (including on Forms 10-K, 
20-F, 40-F and N-CSR) with the Commission via the Electronic Data 
Gathering, Analysis and Retrieval system (EDGAR). Many of these 
companies also post such annual reports to their corporate Web sites. 
In SR-NYSE-2001-40,\9\ the NYSE specified that U.S. companies were 
permitted to use Commission-approved methods of electronic delivery to 
satisfy the annual financial statement delivery requirement.
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    \9\ See Securities Exchange Act Release No. 45838 (April 26, 
2002), 67 FR 22144 (May 2, 2002) (SR-NYSE-2001-40).
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    A recent Neilsen/Net Ratings study \10\ shows that 75% of Americans 
have access to the Internet in their homes, and that those numbers are 
steadily increasing among all age groups. As a result, the NYSE 
believes that the vast majority of people in this country that review 
company financials access them online--either through the company's own 
Web site, EDGAR, or some other service provider. The Exchange also 
notes the Commission's statement when proposing changes in its 
Securities Offering Reform Act filing \11\ that, ``[a]t this time, we 
believe that Internet usage has increased sufficiently to allow us to 
propose a prospectus delivery model for issuers and their 
intermediaries that relies on timely access to filed information and 
documents.''
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    \10\ See Three out of Four Americans Have Access to the 
Internet, Neilsen/NetRatings, March 18, 2004.
    \11\ See Securities Act Release No. 8501 (November 3, 2004), 69 
FR 71126 (December 8, 2004).
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    The Exchange believes that the ability to review a company's 
financials electronically provides a more timely, efficient and cost 
effective method for companies to provide and investors to access 
current financial information. The proposed amendments to the 
Exchange's rules regarding annual reports reflect that current reality.
    For these reasons, the NYSE proposes to amend its rules to provide 
that companies can satisfy the annual financial statement distribution 
requirement by making the company's annual report on Form 10-K, 20-F, 
40-F or N-CSR available on or by a link through its corporate Web site, 
with a prominent undertaking in English to deliver a paper copy of the 
company's complete audited financial statements free of charge to any 
shareholder who requests it. Listed companies will also be required to 
issue a press release simultaneously with their Web site posting 
stating that their annual report has been filed with the Commission. 
This press release must also indicate that shareholders have the 
ability to receive a hard copy of the complete audited financial 
statements free of charge upon request within a reasonable period of 
time.
    The Exchange believes that existing Commission requirements 
regarding

[[Page 37153]]

delivery of proxy statements mean that the proposed rule changes will 
have minimal effect on domestic companies subject to the proxy rules, 
but the proposed changes will provide significant efficiencies to 
listed foreign private issuers exempt from the proxy rules under Rule 
3a12-3 of the Act.\12\
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    \12\ The Exchange notes that the Commission's proposed release 
on internet availability of proxy materials would, if adopted, 
provide companies an internet posting alternative to the current 
requirement for physical delivery or electronic delivery only upon 
the consent of shareholders of such materials. See Securities 
Exchange Act Release No. 52926 (December 8, 2005), 70 FR 74598 
(December 15, 2005). If adopted as proposed, the internet posting 
alternative in the Commission proposed release would not apply to 
the requirement for every registered investment company to transmit 
reports to shareholders under Section 30(e) of the Investment 
Company Act of 1940 and the rules thereunder.
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    The Exchange also proposes to eliminate other elements of current 
Section 203.01 of the Listed Company Manual, including the requirement 
that a company inform the NYSE if it is unable to file its annual 
report with the Commission in a timely manner. Under the current rule, 
U.S. companies are required to distribute annual reports to 
shareholders no later than 120 days from the close of the fiscal year 
(225 for foreign private issuers). In order to police compliance with 
this distribution requirement, the Exchange currently requires that 
companies inform us of delays in filing annual reports with the SEC. 
NYSE then considers the circumstances surrounding the delay in 
determining whether to allow an extension of time for the distribution 
of annual reports past the required date. Due to the fact that under 
the rules as proposed, the Exchange will no longer be requiring the 
distribution of annual reports, the current language setting out the 
timeframe by which annual reports must be distributed will no longer be 
applicable. As a result, the Exchange proposes to eliminate this 
provision. The Exchange notes that the Commission's proxy rules set 
forth requirements for U.S. companies on how far in advance of 
shareholder meetings proxies must be sent to shareholders, as well as 
requirements that such proxy be preceded or accompanied by annual 
audited financial information.
    The Exchange also proposes to eliminate the requirement that a 
company notify the NYSE prior to the filing deadline if it will not 
file its annual report with the Commission on time, as well as the 
language setting out the date by which a company must distribute its 
annual report once the late annual report has been filed with the 
Commission. The Exchange notes that Section 802.01E of the Listed 
Company Manual now provides a specific process for the requirements 
applicable to companies that fail to file their required annual reports 
with the Commission by the required date, including a requirement that 
a company issue a press release disclosing the status of the 
filing.\13\ Moreover, the Exchange monitors listed companies for timely 
filing of their Commission reports on an ongoing basis.\14\
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    \13\ The Exchange has contracted with an outside vendor to 
provide us with ongoing reports listing those companies that failed 
to file their annual or quarterly reports with the Commission on the 
required date. The Exchange receives notification of these late 
filings on the next business day after the filing due date. Exchange 
staff confirms via an EDGAR search that the listed filing is 
actually late and then programs an internal electronic alert that 
notifies the applicable compliance staff member when the delinquent 
filing is subsequently made.
    \14\ See Telephone Conversation between Annemarie Tierney, 
Assistant General Counsel, NYSE, and Raymond Lombardo, Special 
Counsel, Division of Market Regulation, Commission and Rahman 
Harrison, Special Counsel, Division of Market Regulation, 
Commission, on June 20, 2006.
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    The Exchange also proposes to eliminate language from Section 
203.01 of the Listed Company Manual that sets out requirements that the 
annual financial statements be independently audited and prepared in 
accordance with generally accepted accounting principals in light of 
the fact that these requirements reflect Commission rules relating to 
the preparation of financial statements.
    In light of the fact that the proposed amendment to Section 203.01 
of the Listed Company Manual requires that companies post their annual 
reports filed with the Commission to their Web site, the Exchange 
proposes to add a new section to the Listed Company Manual--Section 
303A.14--that specifically requires listed companies to have and 
maintain a Web site. This proposed section also collects into one 
provision the information required under Section 303A of the Listed 
Company Manual that listed companies must post to their Web sites, 
including committee charters, corporate governance guidelines and their 
code of business conduct and ethics.
    Currently, Section 103.00 of the Listed Company Manual specifies 
that foreign private issuers must distribute U.S. GAAP or U.S. GAAP 
reconciled financial statements in the form of an annual report, or 
summary annual report to shareholders. Since many NYSE-listed foreign 
private issuers are also required by home country law to distribute 
home country financial statements to shareholders months in advance of 
the completion of the U.S. GAAP or U.S. GAAP reconciled financials, 
these companies are required to distribute two annual reports--one to 
satisfy home country requirements and one to satisfy the NYSE's 
requirements. On the other hand, some NYSE-listed foreign private 
issuers are incorporated in countries that have no requirement to 
distribute financials to stockholders, so the NYSE requirement is the 
only one mandating a physical distribution of annual financial 
statements.
    The Exchange proposes to amend Section 103.00 of the Listed Company 
Manual to eliminate the requirement that foreign private issuers 
distribute to shareholders at least a summary annual report that 
includes summary financial information reconciled to US generally 
accepted accounting principals and provide a full annual report to 
shareholders upon request. Under the proposed changes to Section 203.01 
of the Listed Company Manual, foreign private issuers will be required 
to post their annual report on Form 20-F or 40-F to their Web site and 
to provide hard copies of the full audited, US GAAP reconciled, 
financial statements to shareholders upon request within a reasonable 
period of time. The Exchange also proposes to amend Section 103.00 of 
the Listed Company Manual to eliminate the requirement that a company 
that proposes to distribute a summary annual report contact an Exchange 
representative to determine whether the proposed use of the summary 
annual report meets the Exchange's requirements. The Exchange believes 
that since companies will no longer be required to distribute full or 
summary annual reports, this language is superfluous. NYSE also 
proposes to eliminate language from the first and sixth paragraphs of 
Section 103.00 of the Listed Company Manual to the extent that such 
language does not set forth actual listing requirements as part of our 
overall effort to remove superfluous language and guidance from the 
Listed Company Manual.
    Incidental conforming and cleanup amendments to the NYSE's 
requirements relating to annual reports are required to Sections 
202.05, 203.03, 204.00 through .33 and 313.00 of the Listed Company 
Manual. These proposed cleanup changes include renumbering of sections 
and the elimination of references to annual report obligations 
throughout the Listed Company Manual, including with respect to 
procedures relating to the distribution of annual reports. The Exchange 
also proposes to restructure Sections 203.01 and 203.02 of the Listed 
Company Manual to present our annual and interim financial statement

[[Page 37154]]

requirements in a more logical and orderly manner.
    The Exchange also proposes to amend Section 204.00 of the Listed 
Company Manual to consolidate and streamline the requirements for 
companies to provide notice to and file certain documents with the 
Exchange. In relation to this change, the Exchange proposes to limit 
the need for companies to provide information that is available via the 
Commission's Electronic Data Gathering Analysis and Retrieval (EDGAR) 
system or through electronic media alerts subscribed to by the NYSE. 
For example, the Exchange proposes to eliminate the requirement that 
companies provide us with two copies of every communication sent to 
shareholders and with copies of press releases as the appropriate 
Exchange staff is automatically notified of EDGAR filings or press 
release dissemination through electronic alert systems to which the 
Exchange subscribes. The Exchange also proposes to eliminate certain 
explanatory language from this section that the Exchange considers to 
be superfluous as a result of the proposed changes. For example, the 
Exchange no longer believes that it needs to specify that 
advertisements, circulars and news items appearing in the public press 
are acceptable as authoritative advice of the company in light of the 
clear list of items that must be directly noticed or provided to the 
Exchange.
    The Exchange further proposes to eliminate Section 401.04 of the 
Listed Company Manual. This section provides guidance regarding the 
interval between end of fiscal year and annual meeting of shareholders. 
While the Exchange is not disavowing that best practice would be to 
hold the annual meeting of shareholders at a reasonable interval after 
the close of the fiscal year, as part of overall efforts to streamline 
the provisions of the Listed Company Manual, the Exchange has been 
proposing on an ongoing basis to eliminate sections that provide ``best 
practice'' guidance, as opposed to requiring specific action. The 
Exchange ultimately intends that the Listed Company Manual will include 
only those specific rules that listed companies must satisfy in order 
to list and remain listed.
    The Exchange further proposes a cleanup of Section 703.09 of the 
Listed Company Manual regarding disclosure of options, stock purchase 
and other remuneration plans. Due to the fact that the Form 10-K 
requirements for comprehensive disclosure on options available under 
equity compensation plans pursuant to Item 201(d) of Regulation S-K and 
on options issued as executive compensation pursuant to Item 402 of 
Regulation S-K subsume the Exchange's disclosure requirements, the 
Exchange no longer deems it necessary to itself recommend specific 
disclosure of these items, particularly in light of the proposed 
elimination of the Exchange's requirement that listed companies 
distribute an annual report to shareholders.
2. Statutory Basis
    The Exchange believes that its proposed rule change, as amended, is 
consistent with Section 6(b) of the Act \15\ in general, and furthers 
the objectives of Section 6(b)(5) of the Act \16\ in particular, in 
that it is 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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    \15\ 15 U.S.C. 78f(b).
    \16\ 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, as 
amended, would 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

    The Exchange has neither solicited nor received written comments on 
the proposed rule change, as amended.

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 NYSE 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 is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to [email protected]. Please include 
File Number SR-NYSE-2005-68 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, Station Place, 100 F 
Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2005-68. 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, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). 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 also will be available for inspection and copying at the 
principal office of the Exchange. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make publicly available. All submissions should refer to 
File Number SR-NYSE-2005-68 and should be submitted on or before July 
20, 2006.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\17\
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    \17\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
 [FR Doc. E6-10243 Filed 6-28-06; 8:45 am]
BILLING CODE 8010-01-P