10636 Federal Register / Vol. 74, No. 46 / Wednesday, March 11, 2009 / Notices 

8 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3 17 CFR 240.19b–4(f)(6). 

4Section 802.01C provides that a company will 

be considered to be below compliance standards if 

the average closing price of a security as reported 

on the consolidated tape is less than $1.00 over a 

consecutive 30 trading day period. Once notified, 

the company must bring its share price and average 

share price back above $1.00 by six months 

following receipt of the notification. A company is 

not eligible to follow the cure procedures outlined 

in Sections 802.02 and 802.03 with respect to this 

criteria. The company must, however, notify the 

Exchange, within 10 business days of receipt of the 

notification, of its intent to cure this deficiency or 

be subject to suspension and delisting procedures. 

In the event that at the expiration of the six-month 

cure period, both a $1.00 share price and a $1.00 

average share price over the preceding 30 trading 

days are not attained, the Exchange will commence 

suspension and delisting procedures. 

Notwithstanding the foregoing, if a company 

determines that, if necessary, it will cure the price 

condition by taking an action that will require 

approval of its shareholders, it must so inform the 

Exchange in the above referenced notification, must 

obtain the shareholder approval by no later than its 

next annual meeting, and must implement the 

action promptly thereafter. The price condition will 

be deemed cured if the price promptly exceeds 

$1.00 per share, and the price remains above the 

level for at least the following 30 trading days. 

5See, e.g., Securities Exchange Act Release No. 

58588 (September 18, 2008), 73 FR 55174 

(September 24, 2008) (‘‘The Commission is aware 

of the continued potential of sudden and excessive 

fluctuations of securities prices and disruption in 

the functioning of the securities markets that could 

threaten fair and orderly markets. Given the 

importance of confidence in our financial markets 

as a whole, we have also become concerned about 

sudden and unexplained declines in the prices of 

securities. Such price declines can give rise to 

questions about the underlying financial condition 

of an issuer, which in turn can create a crisis of 

confidence without a fundamental underlying basis. 

This crisis of confidence can impair the liquidity 

and ultimate viability of an issuer, with potentially 

broad market consequences.’’). 

6The Exchange notes that there are not currently 

any companies in the Exchange’s delisting appeal 

process that have been sent a delisting notification 

for noncompliance with the dollar price continued 

listing requirement. The Exchange also notes that it 

would continue to identify companies in a 

compliance period as below compliance for price, 

including by continuing to append an indicator to 

the company’s stock ticker to identify it as being 

below compliance for price and including the 

company on a list of companies that are below 

compliance for price posted to the Exchange’s Web 

site, unless the company regains compliance during 

the suspension. A company would continue to be 

subject to delisting for failure to comply with other 

listing requirements. 

be submitted on or before March 26, 

2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.8

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–5130 Filed 3–10–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59510; File No. SR–NYSE– 

2009–21] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change by New York 

Stock Exchange LLC To Temporarily 

Suspend Its Price Continued Listing 

Standard and Extend the Period of the 

Temporary Lowering of Its Average 

Global Market Capitalization Continued 

Listing Standard 

March 4, 2009. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Exchange Act’’),1 and Rule 19b–4 

thereunder,2 notice is hereby given that 

on February 26, 2009, New York Stock 

Exchange, LLC (the ‘‘NYSE’’ or the 

‘‘Exchange’’) 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 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. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to (i) suspend 

until June 30, 2009, the application of 

its price criteria for capital and common 

stock set forth in Section 802.01C of the 

Exchange’s Listed Company Manual 

(the ‘‘Manual’’), and (ii) extend until the 

same date the temporary lowering of the 

average market capitalization 

requirement of Section 802.01B of the 

Manual. 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 

In recent months, the U.S. and global 

equities markets have experienced 

extreme volatility and a precipitous 

decline in trading prices of many 

securities. As a consequence of these 

market conditions, the Exchange has 

experienced an unusually high number 

(as compared to historical levels) of 

listed companies having stock prices 

that have either fallen below the 

Exchange’s $1.00 price requirement for 

capital and common stock set forth in 

Section 802.01C of the Manual (i.e., the 

average closing price of their stock has 

fallen below $1.00 over a consecutive 30 

trading day period) 4 or having an 

average closing stock price that is below 

$2.00. In response, the Exchange 

proposes to suspend the application of 

the stock price requirement of Section 

802.01C until June 30, 2009. This 

proposed suspension will provide 

temporary relief to companies in 

response to the extreme volatility and a 

precipitous decline in trading prices of 

many securities experienced in the U.S. 

and global equities markets, which the 

Commission had acknowledged 

constituted a threat to the fair and 

orderly functioning of the securities 

markets and could lead to a crisis of 

confidence among investors regarding 

the viability of companies whose stock 

prices have declined significantly.5

Under the proposed suspension of the 

Exchange’s stock price continued listing 

standard, companies will not be notified 

of new events of noncompliance with 

the price requirement during the 

suspension period. Companies that are 

in a compliance period at the time of 

commencement of the suspension 6 will 

still be deemed to have regained 

compliance during the rule suspension 

period if, at the expiration of their 

respective six-month cure periods 

established prior to the commencement 

of the rule suspension, they have a 

$1.00 closing share price on the last 

trading day of the period and a $1.00 

average share price based on the 

preceding 30 trading days. In addition, 

any company that is in a compliance 

period at the time of commencement of 

the rule suspension can return to 

compliance during the suspension if at 

the end of any calendar month during 

the suspension such company has a 

$1.00 closing share price on the last 


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Federal Register / Vol. 74, No. 46 / Wednesday, March 11, 2009 / Notices 10637 

7A company would continue to be subject to 

delisting for failure to comply with other listing 

requirements. 

8For example, if a company is four months into 

its compliance period for noncompliance with the 

price continued listing standard when the 

suspension starts and the company does not regain 

compliance during the suspension, the company 

would have an additional two months starting on 

June 30, 2009, to regain compliance. 

9See Securities Exchange Act Release No. 59299 

(January 27, 2009), 74 FR 5709 (January 30, 2009) 

(SR–NYSE–2009–06). 

10Section 802.01B of the Manual provides that 

the Exchange will promptly delist any company 

(including limited partnerships and REITs) if it is 

determined that the company has an average global 

market capitalization over a consecutive 30 tradingday period of less than $25 million, regardless of 

the original listing standard under which it listed. 

A company is not eligible to utilize the cure 

procedures set forth in Sections 802.02 and 802.03 

with respect to this criterion and instead is 

immediately subject to the Exchange’s delisting 

procedures set forth in Section 804 of the Manual. 

11See Securities Exchange Act Release 58809 

(October 17, 2008), 73 FR 63222 (October 23, 2008) 

(SR–NASDAQ–2008–082) for the suspension of 

NASDAQ’s bid price and market value of publicly 

held shares through January 16, 2009. See also 

Securities Exchange Act Release 59219 (January 8, 

2009), 74 FR 2640 (January 15, 2009), extending the 

suspension of these requirements to April 19, 2009. 

NASDAQ’s continued listing requirements relating 

to bid price are set forth in NASAQ Marketplace 

Rules 4310(c)(4), 4320(e)(2)(E)(ii), 4450(a)(5), 

4450(b)(4), and 4450(h)(3) and the related 

compliance periods are set forth in NASDAQ 

Marketplace Rules 4310(c)(8)(D), 4320(e)(2)(E)(ii), 

and 4450(e)(2). NASDAQ’s continued listing 

requirements relating to market value of publicly 

held shares are set forth in NASDAQ Marketplace 

Rules 4310(c)(7), 4320(e)(5), 450(a)(2), 4450(b)(3) 

and 4450(h)(2) and the related compliance periods 

are set forth in Rules 4310(c)(8)(B) and 4450(e)(1). 

12 15 U.S.C. 78f(b). 

13 15 U.S.C. 78f(b)(5). 

14 15 U.S.C. 78s(b)(3)(A). 

15 17 CFR 240.19b–4(f)(6). Pursuant to Rule 19b– 

4(f)(6)(iii) under the 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 Commission 

has determined to waive this requirement. 

16 17 CFR 240.19b–4(f)(6). 

17 17 CFR 240.19b–4(f)(6)(iii). 

trading day of such month and a $1.00 

average share price based on the 30 

trading days preceding the end of such 

month.7 Any company that is in a 

compliance period at the time of 

commencement of the rule suspension 

that does not regain compliance during 

the suspension period will recommence 

its compliance period upon reinstitution 

of the stock price continued listing 

standard and receive the remaining 

balance of its compliance period.8

Following the temporary rule 

suspension, any new events of 

noncompliance with the Exchange’s 

stock price continued listing standard 

would be determined based on a 

consecutive 30 trading-day period 

commencing on June 30, 2009. 

In response to the current unusual 

market conditions, the Exchange 

previously adopted a policy (by means 

of an immediately effective rule filing 9) 

providing that, through April 22, 2009, 

its average global market capitalization 

continued listing requirement will 

apply only to companies (including 

limited partnerships and real estate 

investment trusts (‘‘REITs’’)) whose 

average global market capitalization 

over a consecutive 30 trading-day 

period falls below $15 million.10 The 

Exchange notes that it remains the case 

that an unusually high number (as 

compared to historical levels) of listed 

companies have market capitalizations 

close to or below $25 million over a 

consecutive 30 trading-day period. The 

Exchange considers it unlikely that the 

market conditions giving rise to this 

phenomenon will pass prior to April 22, 

2009, the current end date of the 

temporary lowering of the Exchange’s 

market capitalization requirements. 

Consequently, the Exchange proposes to 

extend the period for which its market 

capitalization continued listing standard 

is lowered until June 30, 2009. This will 

also have the benefit of conforming the 

end dates of the suspension of the dollar 

stock price continued listing 

requirement and the easing of the 

market capitalization continued listing 

requirement, avoiding confusion in 

communicating these policies to listed 

companies and facilitating any 

extension of both policies in a single 

filing. 

The proposed suspension of the 

Exchange’s price continued listing 

requirement and the proposed extension 

of the period of application of the 

temporary lower market capitalization 

requirement will each enable companies 

to remain listed in the current difficult 

market conditions with the prospect of 

a future recovery in their stock prices 

enabling them to comply with the 

applicable listing requirements upon the 

standards’ reinstatement. During the 

period between now and June 30, 2009, 

the Exchange will consider whether it is 

appropriate to propose further revisions 

to these requirements. 

The Exchange notes that this filing is 

based in part on a NASDAQ filing, 

pursuant to which NASDAQ responded 

to the current market conditions by 

temporarily suspending its bid price 

and market value of publicly held 

shares continued listing requirements 

through April 19, 2009.11

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

Section 6(b) 12 of the Exchange Act, in 

general, and furthers the objectives of 

Section 6(b)(5) of the Exchange Act 13 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 remove 

uncertainty regarding the ability of 

certain companies to remain listed on 

the NYSE during the current highly 

unusual market conditions, thereby 

protecting investors, facilitating 

transactions in securities, and removing 

an impediment to a free and open 

market. 

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 

19(b)(3)(A) of the Act 14 and Rule 19b– 

4(f)(6) thereunder.15

A proposed rule change filed 

pursuant to Rule 19b–4(f)(6) under the 

Act 16 normally does not become 

operative for 30 days after the date of its 

filing. However, Rule 19b–4(f)(6)(iii) 17

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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10638 Federal Register / Vol. 74, No. 46 / Wednesday, March 11, 2009 / Notices 

18See supra note 11. 

19See supra note 9. 

20For 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). 21 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3See Securities Exchange Act Release No. 59117 

(December 18, 2008), 73 FR 79964. 

4Amendment No. 1 makes minor, nonsubstantive changes to the description of the 

proposed rule change and to the proposed rule text. 

Because Amendment No. 1 is non-substantive in 

nature, the Commission is not publishing it for 

comment. 

The Commission believes that 

waiving the 30-day operative delay is 

consistent with the protection of 

investors and the public interest 

because it will allow NYSE to 

immediately implement a temporary 

measure, until June 30, 2009, to suspend 

its $1.00 price continued listing 

requirement for capital and common 

stock to respond to recent market 

volatility and conditions. The 

Commission notes that this will provide 

certain companies with immediate relief 

from receiving a non-compliance or 

delisting notification, or from being 

delisted, as a result of the current 

market conditions. The Commission 

notes that this action is temporary in 

nature, and that following the 

suspension, companies currently in the 

compliance period will resume at the 

same stage and receive the remaining 

balance of its compliance period if they 

remain non-compliant with these 

standards. This will ensure that the 

temporary suspension addresses the 

concerns to companies and investors 

caused by the current market 

conditions, and that may result in a 

company’s securities becoming noncompliant with the $1.00 price 

requirement, or unable to cure such a 

deficiency, due to these market 

conditions. The Commission also notes 

that the proposed rule change is 

substantially similar to a recent Nasdaq 

filing to suspend its bid price test, and 

thus, raises no new regulatory issues.18

In addition, the Commission believes 

that waiving the operative delay is 

consistent with the protection of 

investors and the public interest 

because it will allow NYSE to 

immediately conform the end dates of 

the suspension of the $1.00 price 

requirement and the temporary lowering 

of the average market capitalization 

requirement of Section 802.01B of the 

Manual,19 preventing any confusion 

over the end dates of these temporary 

modifications to the continued listing 

standards due to market conditions. For 

these reasons, the Commission 

designates that the proposed rule 

change become operative immediately 

upon filing.20

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 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 rulecomments@sec.gov. Please include File 

Number SR–NYSE–2009–21 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–NYSE–2009–21. 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– 

2009–21 and should be submitted on or 

before April 1, 2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.21

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–5209 Filed 3–10–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59522; File No. SR– 

NYSEArca–2008–134] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Order Approving Proposed 

Rule Change, as Modified by 

Amendment No. 1 Thereto, To Amend 

Rule 10.16, Sanctioning Guidelines 

March 5, 2009. 

I. Introduction 

On December 11, 2008, NYSE Arca, 

Inc. (‘‘NYSE Arca’’ or ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (‘‘Commission’’) pursuant 

to Section 19(b)(1) of the Securities 

Exchange Act of 1934 (‘‘Act’’) 1 and Rule 

19b–4 thereunder,2 a proposed rule 

change to amend NYSE Arca Rule 10.16 

(‘‘Rule 10.16’’ or ‘‘Sanctioning 

Guidelines’’). The proposed rule change 

was published for comment in the 

Federal Register on December 30, 

2008.3 The Commission received no 

comments on the proposed rule change. 

On February 13, 2009, NYSE Arca filed 

Amendment No. 1 to the proposed rule 

change.4 This order approves the 

proposed rule change, as amended. 

II. Description 

Rule 10.16 sets forth (1) general 

principles that apply to all 

determinations of sanctions in options 

market-related disciplinary proceedings, 

(2) a list of principal considerations to 

use to determine sanctions, and (3) a set 

of suggested fines and non-monetary 

penalties for violations of specific 

options rules of the Exchange (‘‘Specific 

Sanctioning Guidelines). The 

Sanctioning Guidelines are used by 

various Exchange bodies (hereafter 

‘‘adjudicators’’) to help determine 

appropriate remedial sanctions in 

disciplinary proceedings. The Exchange 

proposes to make the following 


rwilkins on PROD1PC63 with NOTICES