[Federal Register Volume 74, Number 66 (Wednesday, April 8, 2009)]
[Notices]
[Pages 16031-16033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7871]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59685; File No. SR-NYSEAmex-2009-04]


Self-Regulatory Organizations; Notice of Filing and Immediate 
Effectiveness of Proposed Rule Change by NYSE Amex LLC To Modify Its 
Annual Report Distribution Requirements

April 1, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Exchange Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is 
hereby given that on March 23, 2009, NYSE Amex LLC (``NYSE Amex'' or 
the ``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'' or ``SEC'') the proposed rule change as described in 
Items I and II below, which Items have been prepared by the Exchange. 
The Exchange has designated this proposal eligible for immediate 
effectiveness pursuant to Rule 19b-4(f)(6) \3\ under the Exchange Act. 
The Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 17 CFR 240.19b-4(f)(6).
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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 the requirements of the Company 
Guide with respect to the distribution of annual reports. The text of 
the proposed rule change is available on the Exchange's Web site 
(http://www.nyse.com), at the Exchange's

[[Page 16032]]

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. NYSE 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
    Section 610(a) of the Company Guide provides that a listed company 
is required to publish and furnish to its shareholders (or to holders 
of any other listed security when its common stock is not listed on a 
national securities exchange) an annual report containing audited 
financial statements prepared in conformity with the requirements of 
the SEC. The Exchange interprets this rule as requiring companies to 
physically distribute their annual reports to shareholders. The 
Exchange proposes to amend this requirement in response to the SEC's 
adoption of amendments to its proxy rules to permit the electronic 
delivery of financial statements.\4\ Section 610(a) is also amended to 
conform its requirements to those of Section 203.01 of the NYSE's 
Listed Company Manual.
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    \4\ See Securities Exchange Act Release No. 56135 (July 26, 
2007), 72 FR 42221 (August 1, 2007).
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    Under Section 610(a) as amended, any company 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) will be required to simultaneously make such annual report 
available to shareholders of such securities on or through the 
company's Web site. A company must also post to its Web site 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 and simultaneously issue a press 
release stating that its annual report has been filed with the SEC. 
This press release must also specify the company's Web site address and 
indicate that shareholders have the ability to receive a hard copy of 
the company's complete audited financial statements free of charge upon 
request. The company 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.\5\
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    \5\ See Section 401 of the Company Guide.
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    A listed company that:
     Is subject to the U.S. 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 Rules 14a-3 and 14a-16 of the U.S. proxy rules, or
     Is an issuer not subject to the U.S. 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 Rules 14a-3 and 14a-16 of the 
U.S. proxy rules, will not be required to issue the press release or 
post the undertaking required above.\6\ 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 will be subject to delisting pursuant to Section 1002(d) 
of the Company Guide.
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    \6\ The Commission notes that while the Exchange will not have 
independent undertakings for companies complying with Rules 14a-3 
and 14a-16, these Commission rules do contain their own requirements 
for making a hard copy available in addition to other requirements.
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    The Exchange proposes to eliminate the requirement of Section 
610(a) that companies must provide three copies of their annual report 
to the Exchange. The Exchange relies on the publicly filed annual 
report available on EDGAR for all of its regulatory purposes and does 
not need to receive physical copies.
    Section 110(a) of the Company Guide sets forth the Exchange's 
annual report requirements for foreign companies. Section 110(a) 
currently permits foreign companies to follow home country practices 
regarding the distribution of annual reports to shareholders, if, at a 
minimum, shareholders (i) are provided at least summary annual reports, 
including summary financial information, and (ii) have the ability, 
upon request, to receive a complete annual report, and 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. The 
Exchange proposes to amend Section 110(a) to provide that foreign 
companies must comply with the requirements of Section 610(a) as 
amended. In doing so, the Exchange is conforming its annual report 
requirements applicable to foreign companies to those of the NYSE.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) \7\ Exchange Act in general, and furthers the 
objectives of Section 6(b)(5) of the Exchange Act \8\\\ 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 proposed rule change is designed to facilitate compliance 
with NYSE Amex rules by aligning NYSE Amex's disclosure requirements 
with those of the SEC.
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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 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

    Because the proposed rule change: (i) Does not significantly affect 
the protection of investors or the public interest; (ii) does not 
impose any significant burden on competition; and (iii) does not become 
operative for 30 days after the date of the filing, or such shorter 
time as the Commission may designate if consistent with the protection 
of investors and the public interest, the proposed rule change has 
become effective pursuant to Section

[[Page 16033]]

19(b)(3)(A) of the Exchange Act \9\ and Rule 19b-4(f)(6) 
thereunder.\10\
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    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(6). Pursuant to Rule 19b-4(f)(6)(iii) 
under the Exchange Act, the Exchange is required to give the 
Commission 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 filing of 
the proposed rule change, or such shorter time as designated by the 
Commission. The Exchange has satisfied this requirement.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the 
Exchange Act \11\ normally does not become operative for 30 days after 
the date of its filing. However, Rule 19b-4(f)(6)(iii) \12\ permits the 
Commission to designate a shorter time if such action is consistent 
with the protection of investors and the public interest. The Exchange 
has requested that the Commission waive the 30-day operative delay.
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    \11\ 17 CFR 240.19b-4(f)(6).
    \12\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Commission believes that waiving the 30-day operative delay is 
consistent with the protection of investors and the public interest. In 
making this determination, the Commission notes that the NYSE recently 
adopted a substantially similar listing requirement governing the 
distribution of annual reports,\13\ and the Commission believes that 
the NYSE Amex's proposed rule change raises no new regulatory issues. 
The Commission also notes that the NYSE's proposal was subject to full 
notice and comment, and the Commission received no comments on the 
NYSE's rule proposal. In addition, the Commission believes that waiving 
the 30-day operative delay will immediately give issuers that have just 
filed, or are about to file, their annual reports with the Commission 
the option to comply with NYSE Amex's distribution of annual reports 
requirement by satisfying the requirements for furnishing an annual 
report contained in Rules 14a-3 and 14a-16 under the Exchange Act. For 
these reasons, the Commission designates that the proposed rule change 
become operative immediately upon filing.\14\
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    \13\ See Securities Exchange Act Release No. 59123 (December 19, 
2008), 73 FR 7991 (December 30, 2008) (SR-NYSE-2008-128).
    \14\ 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. 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 the 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 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-NYSEAmex-2009-04 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEAmex-2009-04. 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-NYSEAmex-2009-04 and should be submitted on or before 
April 29, 2009.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-7871 Filed 4-7-09; 8:45 am]
BILLING CODE 8010-01-P