[Federal Register Volume 76, Number 19 (Friday, January 28, 2011)]
[Notices]
[Pages 5229-5230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1856]



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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-63752; File No. SR-NYSEAMEX-2011-04]


Self-Regulatory Organizations; NYSE Amex LLC; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Amend the 
Criteria for Listing Special Purpose Acquisition Companies (SPACs) To 
Provide an Option To Hold a Tender Offer in Lieu of a Shareholder Vote 
on a Proposed Acquisition

January 21, 2011.
    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 January 12, 2011, NYSE Amex LLC (``Exchange'' or ``NYSE Amex'') 
filed with the Securities and Exchange Commission (``Commission'') the 
proposed rule change as described in Items I and II below, which Items 
have been prepared by the self-regulatory organization. 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.
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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 Section 119 of the NYSE Amex LLC 
Company Guide (the ``Guide'') to amend the criteria for listing 
companies that have indicated that their business plan is to engage in 
a merger or acquisition with an unidentified company or companies (an 
``acquisition vehicle''). The text of the proposed rule change is 
available at the Exchange, the Commission's Public Reference Room, and 
http://www.nyse.com.

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 those 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 parts of such statements.

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

1. Purpose
    In November 2010, the Exchange adopted a new Section 119 of the 
Guide setting forth standards for listing companies whose business plan 
was to complete an initial public offering and engage in a merger or 
acquisition with an acquisition vehicle.\3\ These listing requirements 
included additional protections designed to protect investors from 
certain risks unique to this type of company, including that the 
acquisition vehicle obtain a vote of shareholders prior to consummating 
any acquisition and offer shareholders voting against the acquisition 
the ability to redeem their shares in exchange for a pro rata share of 
the cash held by the acquisition vehicle.\4\ Similar protections have 
been voluntarily adopted by other acquisition vehicles that have not 
listed on the Exchange.
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    \3\ See Securities Exchange Act Release No. 63366 (November 23, 
2010), 75 FR 74119 (November 30, 2010) (SR-NYSEAmex-2010-103). Prior 
to adopting new Section 119 of the Guide, the Exchange had permitted 
certain of such companies to list on the Exchange under Initial 
Listing Standards 3 or 4, which do not require prior operating 
history, as long as certain protections were provided to investors 
in such companies, such as requiring a shareholder vote prior to any 
acquisition. The Exchange adopted Section 119 to provide greater 
transparency to the listing criteria applicable to such companies. 
See id.
    \4\ Section 119 of the Guide also requires that at least 90% of 
the gross proceeds from the acquisition vehicle's initial public 
offering and any concurrent sale of equity securities must be 
deposited in a trust account; that within 36 months of the 
effectiveness of the acquisition vehicle's initial public offering 
registration statement, the acquisition vehicle must complete one or 
more business combinations having an aggregate fair market value of 
at least 80% of the value of the deposit account; and that each 
business combination must be approved by a majority of the 
acquisition vehicle's independent directors.
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    The Exchange understands that in a number of cases, hedge funds and 
other activist investors may have acquired an interest in an 
acquisition vehicle and used their ability to vote against a proposed 
acquisition as leverage to obtain additional consideration not 
available to other shareholders. For example, they may negotiate the 
sale of their stake to an affiliate of the acquisition vehicle's 
management for a price higher than their pro rata share of the deposit 
account. In other cases, the withheld votes may have caused the 
proposed acquisition to fail altogether. In order to prevent this type 
of ``greenmail,'' recent acquisition vehicles, which went public and 
did not list on an exchange, adopted a modified structure under which 
they would not seek a vote on the acquisition, unless otherwise 
required by law. Instead, these acquisition vehicles would conduct a 
redemption offer pursuant to Rule 13e-4 and Regulation 14E under the 
Securities Exchange Act of 1934 (the ``Act'') after the public 
announcement and prior to the completion of the business combination, 
enabling shareholders who are opposed to the transaction to tender 
their shares in exchange for a pro rata share of the cash held by the 
acquisition vehicle. This is the same outcome available to public 
shareholders who vote against the acquisition pursuant to the 
Exchange's existing rule.
    Under this new alternative, shareholders would still maintain the 
ability to ``vote with their feet'' if they oppose a proposed 
transaction and would, as just noted, also obtain their pro rata share 
of the acquisition vehicle's cash through the tender offer pursuant to 
Rule 13e-4 and Regulation 14E under the Act. As such, the Exchange 
believes that the protections provided by the existing rule would 
continue to be available. Further, this tender offer alternative would 
help prevent shareholders who support the acquisition and elect to 
retain their shares from being denied the benefits of the transaction 
by the actions of the activist investors. Accordingly, the Exchange 
proposes to modify Section 119 of the Guide \5\ to allow an acquisition 
vehicle to conduct a tender offer for all shares of all shareholders in 
exchange for a pro rata share of the cash held in trust by the 
acquisition vehicle in compliance with Rule 13e-4 and Regulation 14E 
under the Act instead of soliciting a shareholder vote.
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    \5\ The amended Section 119 standards are the same as the 
amended standards adopted by Nasdaq in IM-5101-2 in December 2010. 
See Securities Exchange Act Release No. 63607 (December 23, 2010), 
75 FR 82420 (December 30, 2010) (SR-NASDAQ-2010-137).
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    In addition, the proposed rule change would require an acquisition 
vehicle that is not subject to the Commission's proxy rules to conduct 
a tender offer for shares in exchange for a pro rata share of the cash 
held in trust by the acquisition vehicle in compliance with Rule 13e-4 
and Regulation 14E under the Act and provide information similar to 
that required by the Commission's proxy rules, even if the acquisition 
vehicle seeks a shareholder vote. This change will assure that 
investors, in all cases, get comparable information about the proposed 
transaction.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b)

[[Page 5230]]

of the Act,\6\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\7\ 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 a national market system, and, 
in general, to protect investors and the public interest. The Exchange 
believes the proposed rule change is consistent with these requirements 
in that it imposes additional requirements on acquisition vehicles, 
which are designed to protect investors and the public interest and 
prevent fraudulent and manipulative acts and practices on the part of 
acquisition vehicles and their promoters.
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    \6\ 15 U.S.C. 78f(b).
    \7\ 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 Act.

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

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

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A) of the Act \8\ and Rule 19b-4(f)(6) \9\ thereunder because 
the proposal does not: (i) Significantly affect the protection of 
investors or the public interest; (ii) impose any significant burden on 
competition; and (iii) by its terms, become operative for 30 days from 
the date on which it was filed, or such shorter time as the Commission 
may designate if consistent with the protection of investors and the 
public interest.\10\
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    \8\ 15 U.S.C. 78s(b)(3)(A).
    \9\ 17 CFR 240.19b-4(f)(6).
    \10\ In addition, Rule 19b-4(f)(6)(iii) requires the Exchange to 
give the Commission written notice of the Exchange's 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 under Rule 19b-4(f)(6) normally may 
not become operative prior to 30 days after the date of filing. 
However, Rule 19b-4(f)(6)(iii) \11\ 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 period. The Commission 
hereby grants the request. The Commission notes that the Exchange's 
proposal is nearly identical to the rules of another exchange, which 
were subject to notice and comment and approved by the Commission.\12\ 
Therefore, the Commission believes it is consistent with the protection 
of investors and the public interest to waive the 30-day operative 
delay and designates the proposal as operative upon filing.\13\
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    \11\ 17 CFR 240.19b-4(f)(6)(iii).
    \12\ See Nasdaq IM-5101-2 and supra note 5.
    \13\ For purposes only of waiving the operative delay for this 
proposal, 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 summarily may temporarily suspend 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 Act.\14\
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    \14\ 15 U.S.C. 78s(b)(3)(C).
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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-2011-04 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-2011-04. 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 Web site 
viewing and printing in the Commission's Public Reference Room, 100 F 
Street, NE., Washington, DC 20549, 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 
available publicly. All submissions should refer to File Number SR-
NYSEAmex-2011-04 and should be submitted on or before February 18, 
2011.

    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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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-1856 Filed 1-27-11; 8:45 am]
BILLING CODE 8011-01-P