[Federal Register Volume 73, Number 163 (Thursday, August 21, 2008)]
[Notices]
[Pages 49508-49511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19354]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58364; File No. SR-Amex-2008-65]


Self-Regulatory Organizations; Notice of Filing of a Proposed 
Rule Change by the American Stock Exchange LLC To Allow Issuers 
Voluntarily Delisting ETFs and Structured Products To Submit to the 
Exchange a Letter From an Authorized Officer of the Issuer Rather Than 
a Board Resolution

August 14, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 
1934, as amended (``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is 
hereby given that on August 7, 2008, the American Stock Exchange LLC 
(``Amex'' or ``Exchange'') filed with the Securities and Exchange 
Commission (``SEC'' or ``Commission'') the proposed rule change as 
described in Items I and II below, which Items have been prepared by 
the Exchange. 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)(l).
    \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 Exchange proposes to amend Exchange Rule 18 to allow issuers 
voluntarily delisting ETFs and

[[Page 49509]]

structured products to submit to the Exchange a letter from an 
authorized officer of the issuer rather than a certified copy of a 
board resolution.
    The text of the proposed rule change is available on the Amex's Web 
site at http://www.amex.com, the Office of the Secretary, the Amex and 
at the Commission's Public Reference Room.

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.

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

1. Purpose
    The Exchange proposes to amend the voluntary delisting procedures 
set forth in Exchange Rule 18 for issuers of securities listed pursuant 
to Sections 104 (Bonds and Debentures), 106 (Currency and Index 
Warrants) or 107 (Other Securities) of the Amex Company Guide and 
Exchange Rules 1000-AEMI and 1001 et seq. (Portfolio Depositary 
Receipts), 1000A-AEMI and 1001A et seq. (Index Fund Shares), 1000B et 
seq. (Managed Fund Shares), 1200-AEMI and 1201 et seq. (Trading of 
Trust Issued Receipts), 1200A-AEMI and 1201A et seq. (Commodity-Based 
Trust Shares), 1400 et seq. (Trading of Paired Trust Shares), 1500-AEMI 
and 1501 et seq. (Trading of Partnership Units), or 1600 et seq. 
(Trading of Trust Units). Exchange Rule 18 requires companies 
voluntarily withdrawing securities from listing to provide to the 
Exchange a certified copy of the resolution of the board of directors 
of the issuer authorizing such action. The Exchange proposes to amend 
Rule 18 to provide that, in the case of a voluntary delisting where the 
listing of the securities is being transferred to another national 
securities exchange, the issuer will be required to provide, in lieu of 
a certified copy of a board resolution, a letter signed by an 
authorized executive officer setting forth the reasons for the proposed 
listing withdrawal and the basis for the officer's authority to take 
such action.
    Pursuant to a merger agreement dated January 17, 2008 among the 
Exchange, the Amex Membership Corporation, NYSE Euronext and certain 
other entities, a successor to the Exchange will become an indirect, 
wholly-owned subsidiary of NYSE Euronext (the ``Acquisition''). As part 
of its strategic business planning for the post-merger group, NYSE 
Euronext intends to cease listing and trading exchange-traded funds and 
structured products (including, for example, index-linked securities 
such as index-linked notes) on the Amex shortly after the completion of 
the acquisition and plans to encourage issuers to move the listing of 
those securities from the Amex to its subsidiary, NYSE Arca, Inc. 
(``NYSE Arca'') and the New York Stock Exchange LLC (specifically, the 
NYSE Bonds platform).
    As the change of listing venue contemplated by this business plan 
will require the delisting of the securities from the Exchange, and 
there is no basis under Exchange rules for a delisting initiated by the 
Exchange itself under these circumstances, the issuers will have to 
withdraw their securities from listing voluntarily pursuant to Exchange 
Rule 18 and SEC Rule 12d2-2.\3\ Because the change of listing venue 
will be effectuated at the request of NYSE Euronext as owner of the 
Exchange, and obtaining a certified copy of the board resolutions as 
required by Rule 18 may be burdensome for the issuers involved, the 
Exchange believes that it is appropriate to provide an alternative to 
this requirement for the securities that, pursuant to the NYSE Euronext 
business plan, will no longer be listed on the Amex (or the Amex's 
successor).\4\
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    \3\ Following a withdrawal of listing, an issuer may then list 
on any national securities exchange if it meets the listing 
standards of that exchange or may remain unlisted.
    \4\ Some of these issuers are not required, by their 
constitutive documents or the laws of their jurisdictions of 
incorporation, to get board approval for withdrawal of listing and 
therefore only Rule 18 would require separate board action. For 
other issuers, the proposed option of providing a letter would allow 
them to make the listing change on a more timely and economical 
basis, while still having to comply with the requirements of their 
constitutive documents and the laws of their jurisdictions of 
incorporation.
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    In lieu of the board resolution, the issuer will be required to 
provide a letter signed by an authorized executive officer setting 
forth the reasons for the proposed withdrawal and the basis for the 
officer's authority to take such action. Requiring a letter from an 
authorized executive officer that includes the reasons for the proposed 
withdrawal and the basis for the officer's authority to take such 
action will ensure that the issuer properly made the delisting decision 
and complied with its constitutive documents and applicable laws in 
effect in its jurisdiction, consistent with investor protection and the 
public interest.\5\ The proposed rule specifies that the letter will 
only be accepted for purposes of withdrawal of listing where the 
listing of the securities is being transferred to another national 
securities exchange.
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    \5\ The basis for the officer's authority may be, for example, 
relevant provisions in the issuer's constitutive documents or board 
resolutions setting out the delegation of authority to the executive 
officer.
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    The Exchange believes that changing the rule to allow this 
exception to the requirements of Exchange Rule 18 for these classes of 
securities is appropriate for a number of reasons. First, only issuers 
that are planning to transfer their listing to another national 
securities exchange will be able to provide the letter from an 
authorized executive officer; in the event an issuer decides no longer 
to be listed on an exchange, Rule 18 will still require board 
resolutions to effect the delisting. Secondly, separate board approval 
of a change of listing venue is not required of many of the issuers 
covered by the proposed rule. To the extent board approval is otherwise 
required by, for example, the governing documents of an eligible listed 
issuer or the law of the jurisdiction in which the issuer is 
incorporated, the proposed rule change would change only the form in 
which the Exchange must be notified of the decision to delist, not the 
legal requirements for approval that apply to the particular issuer.\6\
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    \6\ Notwithstanding this proposal, issuers will have to comply 
with Rule 12d2-2(c) and any other applicable provisions under the 
Act to withdraw their securities from listing on the Exchange.
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    Finally, the Exchange believes the proposed change is justified 
because the withdrawal from listing of the applicable types of issuers 
would be occurring at the Exchange's request to further a business 
objective of the Exchange's parent company. Following the effectuation 
of this business plan, these types of securities will no longer be 
listed on the Amex, and it is therefore appropriate for Exchange to 
facilitate the withdrawal process, with the conditions proposed.
    The Exchange also proposes to make other minor clarifying changes 
to Section 1010, and to delete from Section 1010 the re-statement of 
Exchange Rule 18 and Rule 12d2-2 under the Act.

[[Page 49510]]

Implementation
    This rule filing is being made to implement a NYSE Euronext 
business plan for the Amex after the completion of the Acquisition and 
the rule text will specify that the rule will become operative as of 
the date of the closing of the Acquisition and that in the event that 
the Acquisition has not been effected on or before December 31, 2008, 
the rule will not take effect. In the event that the rule change does 
not take effect, the Exchange will rescind the approved rule text by a 
separate filing with the Commission.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6 of the Act in general and furthers the objectives of 
Section 6(b)(5) \7\ in particular in that it is designed to promote 
just and equitable principles of trade, to foster cooperation and 
coordination with persons engaged in regulating, clearing, settling, 
processing information with respect to, and facilitating transactions 
in securities, and to remove impediments to and perfect the mechanism 
of a free and open market and a national market system and, in general, 
to protect investors and the public interest.
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    \7\ 15 U.S.C. 78f(b)(5).
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    The Exchange notes that requiring a letter from an authorized 
executive officer instead of a certified copy of the resolutions 
adopted by the issuer's board of directors is consistent with the 
requirements of Rule 12d2-2 \8\ under the Act and notes that the 
proposal is similar to the voluntary withdrawal procedures for dually-
listed issuers on NYSE Arca, Inc.\9\ and index-linked notes on 
NYSE.\10\ Replacing the board certification requirement with a letter 
from an authorized executive officer may ease the burden on issuers of 
securities who wish to transfer the listing to another national 
securities exchange. Further, the Exchange notes that the requirement 
of a letter from an authorized executive officer would ensure the 
issuer properly made the delisting decision and complied with 
applicable laws in effect in its jurisdiction, consistent with investor 
protection and the public interest, and would not supersede the 
requirements of the issuer's governing documents or its jurisdiction of 
incorporation.
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    \8\ 17 CFR 240.12d2-2.
    \9\ NYSE Arca Equities Rule 5.4(b). See Securities Exchange Act 
Release No. 54672 (October 30, 2006), 71 FR 65021 (November 6, 2006) 
(SR-NYSEArca-2006-47).
    \10\ Section 806.02 of the NYSE's Listed Company Manual. See 
Securities Exchange Act Release No. 57041 (December 26, 2007), 73 FR 
216 (January 2, 2008) (SR-NYSE-2007-99).
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    The Exchange notes that the proposed alternative procedure for 
withdrawal of listing would apply only to securities that would be 
listed and traded on another national securities exchange following the 
withdrawal of listing. Since the securities would list and trade on 
another national securities exchange, transparent last sale information 
will continue to be disseminated on the securities on an uninterrupted 
basis. It would also ensure that the other protections for trading a 
security on a national securities exchange remain, such as the periodic 
reporting obligations under the Act.
    Finally, the Exchange believes that the restatements of Rule 18 in 
Company Guide Section 1010 and of Rule 12d2-2 under the Act are no 
longer necessary and deletion of these restatements is consistent with 
the requirements of the Act. When the Company Guide was published 
separately from the rest of the Amex Rules, the restatements of 
provisions not found in the Company Guide was helpful to readers. Now 
that all of the Amex and Commission rules are equally available, and 
immediately updated when changed, on the Internet, these restatements 
are not only not necessary, but may create confusion in the event that 
such rules are changed.

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

    The Exchange did not receive any written comments on 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 Amex 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-Amex-2008-65 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-Amex-2008-65. 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 on official business 
days between the hours of 10 a.m. and 3 p.m. 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-
Amex-2008-65 and should be submitted on or before September 11, 2008.


[[Page 49511]]


    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-19354 Filed 8-20-08; 8:45 am]
BILLING CODE 8010-01-P