46670 Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices 

7 17 CFR 200.30–3(a)(12). 

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

215 U.S.C. 78a. 

317 CFR 240.19b–4. 

4Shares held by directors, officers, or their 

immediate families and other concentrated holding 

of 10 percent or more are excluded in calculating 

the number of publicly-held shares. 

Nasdaq’s principal office. 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–

NASDAQ–2008–067, 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. E8–18383 Filed 8–8–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58299; File No. SR–NYSE–

2008–68] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing of Proposed Rule Change To 

Enable the Exchange To Determine 

That a Company Meets the Exchange’s 

Market Value Requirements by Relying 

on a Third-Party Valuation of the 

Company 

August 4, 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 July 31, 2008, New York Stock 

Exchange LLC (the ‘‘NYSE’’ or the 

‘‘Exchange’’) filed with the Securities 

and Exchange Commission the proposed 

rule changes 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 

changes from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend 

sections 102.01B and 102.01C of the 

Exchange’s Listed Company Manual 

(the ‘‘Manual’’) to provide that the 

Exchange will, on a case by case basis, 

exercise discretion to list a company 

whose stock is not previously registered 

under the Exchange Act, where such a 

company is listing without a related 

underwritten offering upon 

effectiveness of a registration statement 

registering only the resale of shares sold 

by the company in earlier private 

placements. The proposed amendment 

would permit the Exchange to 

determine that such a company has met 

its market value requirements by relying 

on a third-party valuation of the 

company. 

The text of the proposed rule change 

is available at http://www.nyse.com, the 

NYSE, and 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 

sections 102.01B and 102.01C of the 

Manual to provide that the Exchange 

will, on a case by case basis, exercise 

discretion to list a company whose stock 

is not previously registered under the 

Exchange Act, where such a company is 

listing without a related underwritten 

offering upon effectiveness of a 

registration statement registering only 

the resale of shares sold by the company 

in earlier private placements. The 

proposed amendment would allow the 

Exchange to determine that such a 

company has met its market value 

requirements by relying on a third-party 

valuation of the company. 

Section 102.01B of the Manual 

requires that companies listing on the 

Exchange in connection with their 

initial public offering (‘‘IPO’’) or as a 

result of a spin-off or under the 

Affiliated Company standard must have 

$60 million in market value of publiclyheld shares at the time of listing and all 

other companies must have a market 

value of publicly-held shares of $100 

million.4 In addition, the Valuation/ 

Revenue with Cash Flow, Pure 

Valuation/Revenue, and Affiliated 

Company standards of Section 102.01C 

require global market capitalization of 

$500 million, $750 million, and $500 

million, respectively. Sections 102.01B 

and 102.01C provide that, in connection 

with a company’s IPO, the Exchange 

will rely on a written commitment from 

the underwriter to represent the 

anticipated value of the company’s 

offering in order to determine a 

company’s compliance with this listing 

standard. In the case of a spin-off, the 

company may rely on a letter from the 

parent company’s investment banker or 

other financial adviser. 

The Exchange has in recent years 

been approached by a number of private 

companies that would like to list upon 

the effectiveness of a selling shareholder 

registration statement. These private 

companies typically have sold a 

significant amount of their common 

stock to qualified institutional buyers in 

one or more private placements and, as 

a condition to those sales, will have 

agreed to file a registration statement to 

facilitate the resale of the privatelyplaced shares. These companies may 

meet all of the financial criteria for 

listing on the Exchange, except that they 

have not had any prior public market for 

their common stock and they are not 

contemplating an underwritten offering 

in connection with their selling 

shareholder registration statement. As 

such, the Exchange cannot rely on 

trading on any predecessor public 

market to evaluate the company’s 

market value, as would be possible with 

a company transferring from another 

market. Nor is there a public offering 

whose price would provide the basis for 

a letter of the type provided by 

underwriters for companies listing in 

conjunction with an IPO. 

The Exchange believes that a 

company of this sort which otherwise 

meets the Exchange’s listing criteria 

should not be barred from listing. As 

such, the Exchange proposes to list such 

companies if there is available an 

independent third-party valuation of the 

company (a ‘‘Valuation’’) and 

information regarding trading in a 

private placement trading market that, 

taken together, provide evidence that 

the company meets the relevant market 

value tests. 

Therefore, the Exchange proposes to 

amend sections 102.01B and 102.10C to 

provide that, in the case of a company 

whose stock is not previously registered 

under the Exchange Act that is listing 

upon effectiveness of a registration 

statement without a related 

underwritten offering, the Exchange will 

have the discretion to determine that 

such company has met the applicable 


rmajette on PRODPC74 with NOTICES
Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices 46671 

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

market value requirements based on a 

combination of both (i) a Valuation and 

(ii) the most recent trading price for the 

company’s common stock in a trading 

system for unregistered securities 

operated by a national securities 

exchange or a registered broker-dealer (a 

‘‘Private Placement Market’’). The 

Exchange will attribute a market value 

to the company equal to the lesser of (i) 

the value calculable based on the 

Valuation and (ii) the value calculable 

based on the most recent trading price 

in a Private Placement Market. Any 

Valuation used for this purpose must be 

provided by an entity that has 

significant experience and demonstrable 

competence in the provision of such 

valuations. The Valuation must be of a 

recent date as of the time of the 

approval of the company for listing and 

the evaluator must have considered, 

among other factors, the annual 

financial statements required to be 

included in the registration statement, 

along with financial statements for any 

completed fiscal quarters subsequent to 

the end of the last year of audited 

financials included in the registration 

statement. The Exchange will consider 

any market factors or factors particular 

to the listing applicant that would cause 

concern that the value of the company 

had diminished since the date of the 

Valuation and will continue to monitor 

the company and the appropriateness of 

relying on the Valuation up to the time 

of listing. In particular, the Exchange 

will examine the trading price trends for 

the stock in the Private Placement 

Market over a period of several months 

prior to listing and will only rely on a 

Private Placement Market price if it is 

consistent with a sustained history over 

that several month period evidencing a 

market value in excess of the applicable 

standard. 

The Exchange may withdraw its 

approval of the listing at any time prior 

to the listing date if it believes that the 

Valuation no longer accurately reflects 

the company’s likely market value. 

Companies listed on the basis of a 

Valuation will be required to meet the 

$100 million test applied to companies 

transferring from another market under 

section 102.01B, rather than the $60 

million IPO standard. Companies listing 

under the Valuation/Revenue with Cash 

Flow standard of section 102.01C(II)(a) 

of the Manual and the Affiliated 

Company standard of section 

102.01C(III) will be required to have a 

global market capitalization of $600 

million, rather than the usual $500 

million requirement. Companies listing 

under the Pure Valuation/Revenue 

standard of section 102.01C(II)(b) will 

be required to have $900 million of 

global market capitalization, rather than 

the usual $750 million requirement. 

The Exchange acknowledges that a 

Valuation is only an estimate of what a 

company’s true market value will be 

upon commencement of public trading. 

The Exchange also acknowledges that 

Private Placement Markets generally do 

not have the depth of liquidity of the 

public trading markets and may 

therefore be an imperfect guide as to the 

likely performance of a security upon 

listing. However, the Exchange believes 

that the trading price in a Private 

Placement Market will provide evidence 

as to the reliability of a Valuation and 

that, by assuming a market value equal 

to the lesser of the Valuation and a 

value based on the most recent Private 

Placement Market trading, the Exchange 

will be using a conservative estimation 

of a company’s market value. 

Additionally, by applying the $100 

million transfer market value 

requirement rather than the $60 million 

IPO requirement of Section 102.01B, 

along with imposing market value 

requirements under section 102.01C that 

are 20% higher than the normal 

standards, the Exchange believes that it 

can have sufficient comfort that 

companies listed pursuant to this 

proposed procedure will evidence 

appropriate levels of market value 

immediately upon the commencement 

of public market trading. Furthermore, 

Exchange staff will consider each 

Valuation with care and, giving due 

consideration to the reputation and 

experience of the third party provider of 

the Valuation, make an individualized 

determination as to whether it is 

appropriate to utilize the Exchange’s 

discretion to list a company on the basis 

of this proposed procedure. In making 

that determination, Exchange staff will 

consider the appropriateness of relying 

on Private Placement Market trading in 

light of the volume and degree of price 

volatility of such trading. As with all 

other listing applicants, the Exchange 

reserves the right to deny listing to any 

company seeking to utilize the 

provisions of this proposed rule 

amendment if the Exchange determines 

that the listing of any such company is 

not in the interests of the Exchange or 

the public interest. 

Any company listing in reliance upon 

this proposed amendment will be 

required to meet the IPO distribution 

requirements of section 102.01A, i.e., 

400 beneficial holders of round lots of 

100 shares and 1,100,000 publicly held 

shares. The Exchange will rely upon 

information provided by the company’s 

transfer agent in determining whether 

the company meets the holders 

requirement. The Exchange will be able 

to determine compliance with the 

1,100,000 publicly held shares 

requirement by reviewing the disclosure 

in the company’s registration statement. 

2. Statutory Basis 

The basis under the Exchange Act for 

this proposed rule change is the 

requirement under section 6(b)(5) 5 that 

an Exchange have rules that are 

designed 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. In particular, the 

Exchange believes that the safeguards it 

has included in its proposed 

amendment are sufficient to ensure that 

companies that are listed pursuant to 

the proposed Valuation procedure will 

evidence their compliance with the 

applicable market value requirements 

immediately after commencement of 

listed trading, thereby protecting 

investors by ensuring a liquid market in 

such companies’ stocks. 

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 purpose of the Exchange Act. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants or Others 

The Exchange has neither solicited 

nor received written comments on the 

proposed rule change. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Within 35 days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

90 days of such date if it finds such 

longer period to be appropriate and 

publishes its reasons for so finding or 

(ii) as to which the self-regulatory 

organization consents, the Commission 

will: 

(A) By order approve the proposed 

rule change, or 

(B) Institute proceedings to determine 

whether the proposed rule change 

should be disapproved. 

IV. Solicitation of Comments 

Interested persons are invited to 

submit written data, views, and 


rmajette on PRODPC74 with NOTICES
46672 Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Notices 

6 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3After the Merger, the name of the Amex will be 

changed to NYSE Alternext U.S. LLC and the 

revised rule text in Exhibit 5 reflects that name 

change. 

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–2008–68 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–2008–68. 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, 100 F Street, NE., Washington, 

DC 20549, 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–2008–68 and should 

be submitted on or before September 2, 

2008. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.6

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–18369 Filed 8–8–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58301; File No. SR–NYSE–

2008–56] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing of Proposed Rule Change To 

Amend Section 902.09 of the Listed 

Company Manual To Establish Fees for 

Securities Listed Under Sections 

703.21 and 703.22 of the Listed 

Company Manual and Traded on NYSE 

Bonds and To Waive Fees for 

Structured Products Transferred From 

the Amex to the NYSE 

August 4, 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 24, 

2008, the New York Stock Exchange 

LLC (‘‘NYSE’’ or ‘‘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 

proposal from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend 

Section 902.09 of the Listed Company 

Manual (the ‘‘Manual’’) to extend the 

initial and continued listing fees 

charged thereunder to securities listed 

under Section 703.21 (Equity-Linked 

Debt Securities) and Section 703.22 

(Index-Linked Securities) and traded on 

NYSE Bonds. In addition, the Exchange 

proposes to waive, in connection with 

transfers to the NYSE from NYSE 

Alternext US 3 after the closing of the 

purchase of the American Stock 

Exchange LLC (the ‘‘Amex’’) by NYSE 

Euronext (the ‘‘Merger’’), (i) all fees 

payable under Section 902.08 in 

connection with such transfers, and (ii) 

in the case of securities that will be 

traded on NYSE Bonds, all fees payable 

under Section 902.09 in connection 

with such transfer, including the 

prorated annual fee payable for the 

calendar year in which the transfer 

occurs. The fee waiver described in the 

previous sentence will only apply (i) if 

such transfer occurs during the calendar 

year in which the Merger is 

consummated and (ii) if the Merger is 

consummated no later than March 31, 

2009. 

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 902.09 of the Manual to extend 

the initial and continued listing fees 

charged thereunder to securities listed 

under Section 703.21 (Equity-Linked 

Debt Securities) and Section 703.22 

(Index-Linked Securities) and traded on 

NYSE Bonds. In addition, the Exchange 

proposes to waive, in connection with 

transfers to the NYSE from NYSE 

Alternext U.S. after the closing of the 

Merger, (i) all fees payable under 

Section 902.08 in connection with such 

transfers, and (ii) in the case of 

securities that will be traded on NYSE 

Bonds, all fees payable under Section 

902.09 in connection with such transfer, 

including the prorated annual fee 

payable for the calendar year in which 

the transfer occurs. The fee waiver 

described in the previous sentence will 

only apply (i) if such transfer occurs 

during the calendar year in which the 

Merger is consummated and (ii) if the 

Merger is consummated no later than 

March 31, 2009. 

The Exchange has noted that it does 

not currently set forth in the Manual 

any listing fees for securities that are 

listed under either Section 703.21 

(Equity-Linked Debt Securities) or 

Section 703.22 (Index-Linked 

Securities) and traded on NYSE Bonds. 

The Exchange has not previously listed 

any securities under Sections 703.21 or 

703.22 that traded on NYSE Bonds and, 

as a consequence, this filing is adopting 

fees for such listings for the first time. 

We have determined that the most 

appropriate fee schedule for these 

securities is that set forth in Section 

902.09. 


rmajette on PRODPC74 with NOTICES