46674 Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices 

7 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3Section 314 also states an Exchange policy that 

an appropriate body within the company should 

examine the appropriateness of related party 

transactions. The Exchange does not propose to 

eliminate these provisions in this filing. However, 

the Exchange is making some nonsubstantive 

changes to these provisions. 

4See Securities Exchange Act Release No. 35121 

(December 19, 1994), 59 FR 66570 (December 27, 

1994) (SR–NYSE–94–20). 

5See Securities Exchange Act Release No. 27554 

(December 20, 1989), 54 FR 53227 (December 27, 

1989) (SR–NYSE–89–16). 

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, 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–NYSE–2008–56 and should 

be submitted on or before September 2, 

2008. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.7

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–18370 Filed 8–8–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58303; File No. SR–NYSE–

2008–62] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change to Eliminate 

Sections 305 and 308 and the 

Shareholder Rights Provisions of 

Section 314 of the Listed Company 

Manual 

August 4, 2008. 

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

Securities Exchange Act of 1934 (the 

‘‘Act’’) 1 and Rule 19b–4 thereunder,2

notice is hereby given that on July 28, 

2008, the New York Stock Exchange 

LLC (the ‘‘NYSE’’ 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 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 eliminate 

Sections 305 (‘‘Concentration of Voting 

Power’’) and 308 (‘‘Defensive Tactics’’) 

and the shareholder rights provisions of 

Section 314 (‘‘Special Rights of Certain 

Shareholders’’) of the Exchange’s Listed 

Company Manual (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 

Exchange included statements 

concerning the purpose of, and basis for, 

the proposed rule change. The text of 

these 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 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 eliminate 

from its Manual Sections 305 

(‘‘Concentration of Voting Power’’) and 

308 (‘‘Defensive Tactics’’) and the 

shareholder rights provisions of Section 

314 (‘‘Special Rights of Certain 

Shareholders’’). Section 305 provides 

that, while a significant concentration of 

a company’s common stock in one 

holding is not a bar to listing, the 

Exchange will consider the existence of 

such a concentrated position in 

rendering a decision to list that 

company. Section 308 deals with 

provisions that discriminate among 

shareholders or nullify or reduce the 

voting power of common stockholders. 

Section 314 expresses the Exchange’s 

concern about the existence of special 

rights limited to one shareholder or a 

group of shareholders, such as the right 

to sell stock back to the company or 

preemptive rights (i.e., the right to 

purchase stock from the company at the 

time of any sale to any other party, so 

as to maintain that shareholder’s 

proportionate interest in the company).3

The Exchange proposes to retain the 

related party transaction policy of 

Section 314. However, the Exchange 

proposes to delete that part of Section 

314 which pertains to shareholder 

rights, as well as the entirety of Sections 

305 and 308. The provisions that the 

Exchange proposes to eliminate each 

embody Exchange policies in relation to 

shareholder rights. As such, the 

Exchange believes that these rules no 

longer serve any purpose as they are 

superseded by the Exchange’s 

shareholder rights policy as set forth in 

Section 313. 

In 1994, at the suggestion of then SEC 

chairman Arthur Levitt, the NYSE, the 

American Stock Exchange (the ‘‘Amex’’) 

and NASD each agreed to adopt a 

uniform policy (the ‘‘Uniform Voting 

Rights Policy’’) with respect to the 

voting rights of common stockholders.4

The NYSE adopted the Uniform Voting 

Rights Policy as an amendment to the 

Exchange’s existing voting rights policy, 

Section 313 of the Manual. The NYSE 

adopted Section 313 in its earlier form 

in 1989,5 intending that it would 

constitute the Exchange’s only voting 

rights policy. To that end, the Exchange 

included in its filing in relation to the 

adoption of Section 313 a proposal to 

eliminate Section 308 of the Manual on 

the basis that it dealt with the same sorts 

of issues as Section 313 and was 

therefore redundant and superseded by 

Section 313. In approving Section 313 

in 1989, the SEC stated that it was ‘‘still 

reviewing [the Section 308] portion of 

the proposal’’ and was therefore not 

approving the elimination of Section 

308 at that time. 

When the exchanges adopted the 

Uniform Voting Rights Policy, it was the 

Commission’s stated intention that it 

would result in a uniform industry-wide 

approach to voting rights issues. In light 

of this philosophical approach, the 

Exchange has long believed that 

Sections 305, 308 and the shareholder 

rights provisions of Section 314 have 

been superseded by the Uniform Voting 

Rights Policy and that it is appropriate 

to consider shareholder rights issues 

solely in the context of Section 313. In 

the Exchange’s experience, the 

continued presence of these provisions 

in the Manual causes occasional 

confusion among issuers and their 


rmajette on PRODPC74 with NOTICES
Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices 46675 

6 15 U.S.C. 78f(b)(5). 

7 15 U.S.C. 78s(b)(3)(A). 

8 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 Exchange 

has satisfied the five-day pre-filing requirement. 

9 17 CFR 240.19b–4(f)(6). 

10 17 CFR 240.19b–4(f)(6)(iii). 

11For 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). 

counsel, raising concerns among issuers 

as to whether they are fully in 

compliance with Exchange rules even in 

the context of Exchange advice that 

their provisions do not violate Section 

313. This can be problematic in 

particular in relation to companies that 

are considering transferring their listing 

from Nasdaq or the Amex, where those 

companies are experienced with dealing 

with the Uniform Voting Rights Policy 

as the sole authority in the shareholder 

rights area. 

The Exchange believes that it is 

appropriate to eliminate Sections 305, 

308 and the shareholder rights 

provisions of Section 314. Their 

continued existence is inconsistent with 

the intention that the Uniform Voting 

Rights Policy should be the sole 

controlling authority in the area of 

shareholder rights and the existence of 

this discrepancy between the Exchange 

and its competitors places the Exchange 

at a competitive disadvantage. The 

Exchange notes that neither Nasdaq nor 

the Amex has comparable rules to 

Sections 305, 308 and the shareholder 

rights provisions of Section 314. As 

such, the proposed elimination of these 

provisions is consistent with the 

philosophy that the Uniform Voting 

Rights Policy represents a common 

approach to shareholder rights across all 

of the major markets. It also eliminates 

a potential competitive advantage [sic] 

that the NYSE currently faces in 

competing for listings. Furthermore, the 

Exchange’s experience with the Uniform 

Voting Rights policy is that it has been 

a successful mechanism for the 

prevention of abuses of shareholder 

rights. As such, the Exchange believes 

that the elimination of Sections 305, 308 

and the shareholder rights provisions of 

Section 314 will not diminish the 

protections against such abuses 

currently afforded to listed company 

shareholders. 

2. Statutory Basis 

The basis under the Act for this 

proposed rule change is the requirement 

under Section 6(b)(5) 6 that an exchange 

have rules that are 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, in general, to protect investors and 

the public interest. The proposed rule 

change promotes the mechanism of a 

free and open market by fully 

conforming the shareholder rights 

policies of the Exchange to those of 

Nasdaq and the Amex, eliminating a 

potential competitive disadvantage in 

competing for listings. The Exchange 

believes that the proposed amendment 

is consistent with the protection of 

investors and the public interest as the 

Exchange’s continued application of the 

Uniform Voting Rights Policy will 

continue to provide significant 

protections with respect to shareholder 

rights. 

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 

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 7 and Rule 19b–

4(f)(6) thereunder.8

A proposed rule change filed 

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

Act 9 normally does not become 

operative for 30 days after the date of its 

filing. However, Rule 19b–4(f)(6)(iii) 10

permits the Commission to designate a 

shorter time if such action is consistent 

with the protection of investors and the 

public interest. The NYSE has requested 

that the Commission waive the 30-day 

operative delay. The Commission 

believes that waiving the 30-day 

operative delay is consistent with the 

protection of investors and the public 

interest because it would allow the 

NYSE to immediately conform its 

shareholder voting rights rules to those 

of other exchanges by eliminating voting 

rights provisions that other exchanges 

do not have. The Commission believes 

that this should eliminate a potential 

competitive disadvantage that the NYSE 

currently faces in competing for listings. 

However, the Commission notes that the 

NYSE’s current Uniform Voting Rights 

Policy should continue to provide 

important protections with regard to 

shareholder rights. For these reasons, 

the Commission designates that the 

proposed rule change become operative 

immediately.11

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 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–2008–62 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–2008–62. 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 


rmajette on PRODPC74 with NOTICES
46676 Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices 

12 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3See SR–Amex–2008–62 (the ‘‘Merger 

Transaction filing’’). 

4See SR–Amex–2008–63 (the ‘‘NYSE Alternext 

Equities filing’’). 

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–

2008–62 and should be submitted on or 

before September 2, 2008. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.12

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–18372 Filed 8–8–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58290; File No. SR–NYSE–

2008–70] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing of Proposed Rule Change 

Amending Rules Governing 

Membership in Order To Waive-In 

Members in Good Standing of the 

American Stock Exchange LLC as 

Members and Member Organizations 

of the Exchange 

August 1, 2008. 

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 July 30, 

2008, the 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, II, and III 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. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend 

rules governing membership in order to 

waive-in members in good standing of 

the American Stock Exchange LLC as 

members and member organizations of 

the Exchange. The text of the proposed 

rule change is available at the NYSE’s 

principal office, 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 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

In connection with the acquisition by 

NYSE Euronext of The Amex 

Membership Corporation, including the 

relocation of all equities trading 

conducted on or through the existing 

systems and facilities of the American 

Stock Exchange LLC (‘‘Amex’’) to the 

trading systems and facilities operated 

by the NYSE (the ‘‘Equities 

Relocation’’), the NYSE proposes to 

amend Rules 2, 300, and 304A in order 

to provide that all NYSE Alternext U.S. 

LLC (‘‘NYSE Alternext’’) member 

organizations and members in good 

standing are deemed qualified and 

approved as NYSE member 

organizations or members. 

Background 

NYSE Alternext Transaction 

On January 17, 2008, the Amex 

Membership Corporation and NYSE 

Euronext entered into an Agreement and 

Plan of Merger (‘‘Merger Agreement’’) 

whereby, through a series of mergers, 

NYSE Euronext will acquire Amex, and, 

as a result of these mergers, Amex will 

become one of the U.S. wholly-owned 

subsidiaries of NYSE Group and will be 

renamed NYSE Alternext U.S. LLC (the 

‘‘Mergers’’).3

As described more fully in the Merger 

Transaction filing, in connection with 

the Mergers, Amex proposes to 

demutualize by separating all trading 

rights from equity ownership in Amex. 

As part of the demutualization, those 

persons who were previously Amex 

Regular Members or Options Principal 

Members (‘‘OPMs’’) will receive a 

certain amount of NYSE Euronext stock. 

Once the Mergers close, all trading 

rights appurtenant to the Amex Regular 

Members’ memberships or OPMs’

memberships will be cancelled. 

As proposed in the Merger 

Transaction filing, immediately 

following the closing of the Mergers, 

those persons and entities who were 

authorized to trade on the Amex before 

the closing of the Mergers, including 

Amex (i) owners, lessees, or nominees 

of Regular Members or OPMs, (ii) 

limited trading permit holders, and (iii) 

associate members, will be deemed to 

have satisfied applicable qualification 

requirements necessary to trade in 

NYSE Alternext’s demutualized 

marketplace and will be issued trading 

permits (referred to as ‘‘86 Trinity 

Permits’’) at no cost. The 86 Trinity 

Permit will authorize owners, lessees, or 

nominees of Amex Regular Members or 

OPMs, Amex limited trading permit 

holders, and Amex associate members 

who were authorized to trade on the 

Amex immediately before the Mergers 

to continue to trade at NYSE Alternext’s 

systems and facilities at 86 Trinity 

Place, New York, New York (the ‘‘86 

Trinity Trading Systems’’). NYSE 

Alternext will recognize the former 

Amex (i) owners, lessees, or nominees 

of Regular Members or OPMs, (ii) 

limited trading permit holders, and (iii) 

associate members as either NYSE 

Alternext member organizations or 

members, as applicable. 

In connection with the Mergers, NYSE 

Euronext intends to relocate all equities 

trading previously conducted on the 86 

Trinity Trading Systems to the NYSE’s 

trading systems and facilities located at 

11 Wall Street, New York, New York 

(the ‘‘NYSE Alternext Trading 

Systems’’). The NYSE Alternext Trading 

Systems will be operated by the NYSE 

on behalf of NYSE Alternext. NYSE 

Alternext will also adopt a version of 

the NYSE’s rules for trading equities on 

NYSE Alternext after the Equities 

Relocation.4


rmajette on PRODPC74 with NOTICES