[Federal Register Volume 73, Number 250 (Tuesday, December 30, 2008)]
[Notices]
[Pages 79961-79962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30897]
[[Page 79961]]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-59123; File No. SR-NYSE-2008-128]
Self-Regulatory Organizations; Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC To
Amend the Requirements of Section 203.01 of the Listed Company Manual
with respect to Annual Reports
December 19, 2008.
Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Exchange Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is
hereby given that, on December 16, 2008, New York Stock Exchange, LLC
(the ``NYSE'' or the ``Exchange'') filed with the Securities and
Exchange Commission the proposed rule changes [sic] 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 changes [sic] from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 15 U.S.C. 78a.
\3\ 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 provide that a listed company that is
subject to the U.S. proxy rules, or is an issuer not subject to the
proxy rules that provides its audited financial statements to
beneficial shareholders in a manner that is consistent with the
physical or electronic delivery requirements applicable to annual
reports set forth in the U.S. proxy rules, is not required to issue the
press release or post the undertaking required by Section 203.01. The
text of the proposed rule change is available on the Exchange's Web
site (http://www.nyse.com), at the Exchange's Office of the Secretary
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 self-regulatory organization
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 proposes to amend Section 203.01 of the NYSE Listed
Company Manual to provide that a listed company that is subject to the
U.S. proxy rules, or is an issuer not subject to the proxy rules that
provides its audited financial statements to beneficial shareholders in
a manner that is consistent with the physical or electronic delivery
requirements applicable to annual reports set forth in the U.S. proxy
rules, is not required to issue the press release or post the
undertaking required by Section 203.01.
Section 203.01 was amended in August 2006 to eliminate the
requirement that companies physically distribute an annual report
containing audited financial statements.\4\ The rule currently requires
that a listed company must make its annual report filed with the SEC
simultaneously available on or through its Web site. Listed companies
are also required to post a prominent undertaking on their Web site
providing all holders the ability to receive a hard copy of the audited
financial statements upon request and to issue a press release stating
that the filing is available and reiterating that all shareholders have
the ability to receive a hard copy upon request.
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\4\ See Exchange Act Release No. 54344 (August 21, 2006), 71 FR
51260 (August 29, 2006) (SR-NYSE-2005-68).
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Since the section was amended, however, the Exchange believes that
many U.S. companies are very confused by the press release and Web site
undertaking requirements of Section 203.01 since many of them still
avail themselves of the option under the proxy rules to meet the annual
report distribution requirement by means of a physical distribution. In
light of the fact that many U.S. companies still meet the annual report
distribution requirement by means of a physical distribution and a
number of foreign companies voluntarily comply with the requirements of
the U.S. proxy rules by making physical distributions, the Exchange
proposes to amend Section 203.01 to provide that a listed company that
is subject to the U.S. proxy rules, or is an issuer not subject to the
proxy rules that provides its audited financial statements (as included
on Forms 10-K, 20-F and 40-F) to beneficial shareholders in a manner
that is consistent with the physical or electronic delivery
requirements applicable to annual reports set forth in the U.S. proxy
rules, is not required to issue the press release or post the
undertaking required by Section 203.01.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) \5\ of the Exchange Act in general, and furthers the
objectives of Section 6(b)(5) of the Act \6\ 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, 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.
The Exchange believes the proposed rule change is consistent with the
protection of investors, as only companies that are distributing their
annual financial statements to beneficial holders in a manner
consistent with the requirements of the Commission's proxy rules will
be exempted from the press release and undertaking requirements of
Section 203.01.
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\5\ 15 U.S.C. 78f(b).
\6\ 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 Exchange 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
The proposed rule change has taken effect upon filing pursuant to
Section 19(b)(3)(A) of the Exchange Act.\7\
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\7\ 15 U.S.C. 78s(b)(3)(A).
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The Exchange asserts that the proposed rule change (i) will not
significantly affect the protection of investors or the public
interest, (ii) will not impose any significant burden on competition,
and (iii) will not become operative for 30 days after the date of this
filing, or such shorter time as the Commission may designate if
consistent
[[Page 79962]]
with the protection of investors and the public interest. The Exchange
provided the Commission with written notice of its intent to file the
proposed rule change, along with a brief description and text of the
proposed rule change, at least five business days prior to the date of
the filing of the proposed rule change as required by Rule 19b-
4(f)(6).\8\
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\8\ 17 CFR 240.19b-4(f)(6).
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A proposed rule change filed under Rule 19b-4(f)(6) normally does
not become operative for 30 days after the date of filing. However,
Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter
time if such action is consistent with the protection of investors and
the public interest. NYSE has requested that the Commission waive the
30-day delayed operative date, as permitted by Rule 19b-4(f)(6)(iii),
so that the proposed rule change may become operative immediately. The
Exchange believes that such waiver is appropriate so that a company
that qualifies for the exemption and is filing its annual report with
the Commission during the 30 days after the effective date of the
proposal may be relieved of the obligation to issue a press release in
relation to its filing. The Commission believes that waiving the 30-day
operative delay is consistent with the protection of investors and the
public interest because it relieves companies of an obligation that may
be redundant for companies that already meet the delivery requirements
applicable to annual reports set forth in the U.S. proxy rules, and
that in any case will no longer be applicable to companies similarly
situated after the 30-day period.\9\ Accordingly, the Commission
designates the proposed rule change as operative upon filing with the
Commission.
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\9\ For purposes only of waiving the 30-day operative delay, the
Commission has considered the proposed rule's impact on efficiency,
competition, and capital formation. See 15 U.S.C. 78c(f).
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At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Exchange Act.
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 Exchange 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-2008-128 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2008-128. 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 the 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
available publicly. All submissions should refer to File Number SR-
NYSE-2008-128 and should be submitted on or before January 20, 2009.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
Florence E. Harmon,
Acting Secretary.
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\10\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E8-30897 Filed 12-29-08; 8:45 am]
BILLING CODE 8011-01-P