54440 Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Notices 

1See Securities Exchange Act Release No. 98 

(February 12, 1935). 

2See Securities Exchange Act Release No. 7011 

(February 5, 1963), 28 FR 1506 (February 16, 1963). 

3See Securities Exchange Act Release No. 52029 

(July 14, 2005), 70 FR 42456 (July 22, 2005). 

4The staff notes that there are two additional 

national securities exchanges that only trade 

standardized options which, as noted above, are 

exempt from Rule 12d2–2. 

plans to submit this existing collections 

of information to the Office of 

Management and Budget for extension 

and approval. 

• Rule 12d2–2 (17 CFR 240.12d2–2) 

and Form 25 (17 CFR 249.25) Removal 

and Notification of Removal from 

Listing and/or Registration. 

On February 12, 1935, the 

Commission adopted Rule 12d2–2,1 and 

Form 25 under the Securities Exchange 

Act of 1934 (15 U.S.C. 78b et seq.) 

(‘‘Act’’), to establish the conditions and 

procedures under which a security may 

be delisted from an exchange and 

withdrawn from registration under 

Section 12(b) of the Act.2 The 

Commission adopted amendments to 

Rule 12d2–2 and Form 25 in 2005.3

Under the amended Rule 12d2–2, all 

issuers and national securities 

exchanges seeking to delist and 

deregister a security in accordance with 

the rules of an exchange must file the 

adopted version of Form 25 with the 

Commission. The Commission also 

adopted amendments to Rule 19d–1 

under the Act to require exchanges to 

file the adopted version of Form 25 as 

notice to the Commission under Section 

19(d) of the Act. Finally, the 

Commission adopted amendments to 

exempt options and security futures 

from Section 12(d) of the Act. These 

amendments are intended to simplify 

the paperwork and procedure associated 

with a delisting and to unify general 

rules and procedures relating to the 

delisting process. 

The Form 25 is useful because it 

informs the Commission that a security 

previously traded on an exchange is no 

longer traded. In addition, the Form 25 

enables the Commission to verify that 

the delisting has occurred in accordance 

with the rules of the exchange. Further, 

the Form 25 helps to focus the attention 

of delisting issuers to make sure that 

they abide by the proper procedural and 

notice requirements associated with a 

delisting. Without Rule 12d2–2 and the 

Form 25, as applicable, the Commission 

would be unable to fulfill its statutory 

responsibilities. 

There are ten national securities 

exchanges that trade equity securities 

that will be respondents subject to Rule 

12d2–2 and Form 25.4 The burden of 

complying with Rule 12d2–2 and Form 

25 is not evenly distributed among the 

exchanges, however, since there are 

many more securities listed on the New 

York Stock Exchange, the NASDAQ 

Stock Market, and the American Stock 

Exchange LLC than on the other 

exchanges. However, for purposes of 

this filing, the Commission staff has 

assumed that the number of responses is 

evenly divided among the exchanges. 

Since approximately 994 responses 

under Rule 12d2–2 and Form 25 for the 

purpose of delisting equity securities are 

received annually by the Commission 

from the national securities exchanges, 

the resultant aggregate annual reporting 

hour burden would be, assuming on 

average one hour per response, 994 

annual burden hours for all exchanges. 

In addition, since approximately 371 

responses are received by the 

Commission annually from issuers 

wishing to remove their securities from 

listing and registration on exchanges, 

the Commission staff estimates that the 

aggregate annual reporting hour burden 

on issuers would be, assuming on 

average one reporting hour per 

response, 371 annual burden hours for 

all issuers. Accordingly, the total annual 

hour burden for all respondents to 

comply with Rule 12d2–2 is 1,365 

hours. The related costs associated with 

these burden hours are $76,177.50. 

Written comments are invited on: (a) 

Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(b) the accuracy of the agency’s estimate 

of the burden of the collection of 

information; (c) ways to enhance the 

quality, utility, and clarity of the 

information collected; and (d) ways to 

minimize the burden of the collection of 

information on respondents, including 

through the use of automated collection 

techniques or other forms of information 

technology. Consideration will be given 

to comments and suggestions submitted 

in writing within 60 days of this 

publication. 

Comments should be directed to: 

Lewis W. Walker, Acting Director/Chief 

Information Officer, Securities and 

Exchange Commission, C/O Shirley 

Martinson, 6432 General Green Way, 

Alexandria, Virginia 22312 or send an email to: PRA_Mailbox@sec.gov. 

Comments must be submitted within 60 

days of this notice. 

Dated: September 15, 2008. 

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–21902 Filed 9–18–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[File No. 500–1] 

In the Matter of: EA Industries, Inc., 

Ebiz Enterprises, Inc., and Einstein 

Noah Bagel Corp. (n/k/a ENBC Corp.); 

Order of Suspension of Trading 

September 17, 2008. 

It appears to the Securities and 

Exchange Commission that there is a 

lack of current and accurate information 

concerning the securities of EA 

Industries, Inc. because it has not filed 

any periodic reports since the period 

ended June 27, 1998. 

It appears to the Securities and 

Exchange Commission that there is a 

lack of current and accurate information 

concerning the securities of Ebiz 

Enterprises, Inc. because it has not filed 

any periodic reports since the period 

ended December 31, 2002. 

It appears to the Securities and 

Exchange Commission that there is a 

lack of current and accurate information 

concerning the securities of Einstein 

Noah Bagel Corp. (n/k/a ENBC Corp.) 

because it has not filed any periodic 

reports since the period ended April 24, 

2001. 

The Commission is of the opinion that 

the public interest and the protection of 

investors require a suspension of trading 

in the securities of the above-listed 

companies. 

Therefore, it is ordered, pursuant to 

section 12(k) of the Securities Exchange 

Act of 1934, that trading in the 

securities of the above-listed companies 

is suspended for the period from 9:30 

a.m. EDT on September 17, 2008, 

through 11:59 p.m. EDT on September 

30, 2008. 

By the Commission. 

Jill M. Peterson, 

Assistant Secretary. 

[FR Doc. E8–22071 Filed 9–17–08; 4:15 pm] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58546; File No. SR–BATS– 

2008–003] 

Self-Regulatory Organizations; BATS 

Exchange, Inc.; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change To Amend BATS Rule 

11.5, Entitled ‘‘Orders and Modifiers,’’ 

To Provide for a New Order Type— 

Modified Destination Specific Order 

September 15, 2008. 

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

Securities Exchange Act of 1934 


jlentini on PROD1PC65 with NOTICES
Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Notices 54441 

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

2 17 CFR 240.19b–4. 

3 17 CFR 240.19b–4(f)(6). 

4 15 U.S.C. 78c(a)(2). 

5 15 U.S.C. 78f. 

6 15 U.S.C. 78(f)(b). [sic] 

7 15 U.S.C. 78f(b)(5). 

8 15 U.S.C. 78s(b)(3)(A). 

9 17 CFR 240.19b–4(f)(6). Upon request from 

BATS, the Commission has waived the requirement 

that the Exchange provide written notice of its 

intent to file the proposed rule change at least five 

business days prior to the date of filing. 17 CFR 

240.19b–4(f)(6)(iii). 

10See BATS Rule 11.5(c)(10). 

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

notice is hereby given that on 

September 8, 2008, BATS Exchange, 

Inc. (‘‘BATS’’ 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. 

BATS has designated the proposed rule 

change as constituting a noncontroversial rule change under Rule 

19b–4(f)(6) under the Act,3 which 

renders the proposal effective upon 

filing with the Commission. 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 is proposing to amend 

BATS Rule 11.5, entitled ‘‘Orders and 

Modifiers,’’ to provide for a new order 

type, a Modified Destination Specific 

Order. 

The text of the proposed rule change 

is available at the Exchange’s Web site 

at http://www.batstrading.com, at the 

principal office of the Exchange, 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 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 

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 

The purpose of the proposed rule 

change is to provide an additional order 

type to Users of the Exchange. The 

proposed new order type is a ‘‘Modified 

Destination Specific Order,’’ which is a 

market or limit order that instructs the 

System to route the order to a specified 

away trading center or centers as 

approved by the Exchange from time to 

time. Such trading centers may include 

execution venues know as ‘‘dark 

books.’’ The order would not be exposed 

to the BATS Book before being routed 

to a specified destination or 

destinations. An order that is not 

executed in full after routing away 

would return to the Exchange, receive a 

new timestamp, and be processed in the 

manner described in Rule 11.9(a)(2). 

The routing performed in connection 

with this new order type will be 

conducted by an affiliate of the 

Exchange, BATS Trading, Inc. (the 

‘‘Outbound Router’’), which is regulated 

as a facility of the Exchange (as defined 

in Section 3(a)(2) of the Act),4 subject to 

Section 6 of the Act.5 The role and 

functions of the Outbound Router are 

set forth in BATS Rule 2.11, which has 

previously been approved by the 

Commission. Routing of Modified 

Destination Specific Orders will be 

subject to the same requirements as 

other orders routed by the Outbound 

Router, which are contained in Rule 

2.11. Accordingly, the Exchange 

believes that routing of Modified 

Destination Specific Orders is consistent 

with the previously approved functions 

of the Outbound Router, and the 

Exchange does not believe that such 

functions are expanded through the 

addition of this order type. 

The Exchange believes that a 

Modified Destination Specific Order 

will enhance order execution 

opportunities for market participants by 

allowing such participants to access, at 

a potentially reduced fee, pools of 

liquidity in addition to orders resting on 

the Exchange. Accordingly, the addition 

of a Modified Destination Specific Order 

type to BATS Rule 11.5 promotes just 

and equitable principles of trade, 

removes impediments to, and perfects 

the mechanism of, a free and open 

market and a national market system. 

2. Statutory Basis 

The Exchange believes the proposal is 

consistent with the requirements of the 

Act and the rules and regulations 

thereunder that are applicable to a 

national securities exchange, and, in 

particular, with the requirements of 

Section 6(b).6 In particular, for the 

reasons described above, the proposed 

change is consistent with Section 6(b)(5) 

of the Act,7 because it would promote 

just and equitable principles of trade, 

remove impediments to, and perfect the 

mechanism of, a free and open market 

and a national market system, and, in 

general, protect investors and the public 

interest. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change imposes any 

burden on competition. 

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. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Because the foregoing proposed rule 

change is non-controversial and does 

not: (i) Significantly affect the 

protection of investors or the public 

interest; (ii) impose any significant 

burden on competition; and (iii) become 

operative for 30 days from the date on 

which it was filed, or such shorter time 

as the Commission may designate, it has 

become effective pursuant to Section 

19(b)(3)(A) of the Act 8 and Rule 19b– 

4(f)(6) thereunder.9

The Exchange believes that the 

addition of the new order type, a 

Modified Destination Specific Order, is 

consistent with other rules of the 

Exchange previously approved by the 

Commission, including: (1) Its 

Destination Specific Order, which 

operates similarly to the proposed order 

type, except that a Destination Specific 

Order does not bypass the BATS Book 

when first received by the Exchange,10

and (2) Rule 2.11, which governs the 

Outbound Router of the Exchange. 

Furthermore, the Exchange believes that 

a Modified Destination Specific Order 

will enhance order execution 

opportunities for market participants by 

allowing such participants to access, at 

a potentially reduced fee, pools of 

liquidity in addition to orders resting on 

the Exchange. 

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission may summarily abrogate 

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. 


jlentini on PROD1PC65 with NOTICES
54442 Federal Register / Vol. 73, No. 183 / Friday, September 19, 2008 / Notices 

11 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. 58299 

(August 4, 2008), 73 FR 46670. 

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. 

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–BATS–2008–003 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–BATS–2008–003. 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–BATS– 

2008–003 and should be submitted on 

or beforeOctober 10, 2008. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.11

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–21947 Filed 9–18–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58550; File No. SR–NYSE– 

2008–68] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Order 

Approving Proposed Rule Change To 

Determine That a Company Meets the 

Exchange’s Market Value 

Requirements by Relying on a ThirdParty Valuation of the Company 

September 15, 2008. 

I. Introduction 

On July 31, 2008, the New York Stock 

Exchange LLC (‘‘NYSE’’ 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 allow the Exchange, on a case 

by case basis, to exercise discretion to 

list a company whose stock is not 

previously registered under the Act and 

that is listing upon effectiveness of a 

selling shareholder registration 

statement without a related 

underwritten offering, by relying on an 

independent third-party valuation of the 

company and information regarding 

trading in a private placement trading 

market to determine that such a 

company has met its market value 

requirements. The proposed rule change 

was published for comment in the 

Federal Register on August 11, 2008.3

The Commission received no comments 

on the proposal. This order approves the 

proposed rule change. 

II. Description of the Proposal 

Section 102.01B of the Exchange’s 

Listed Company Manual (‘‘Manual’’) 

currently 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 

demonstrate an aggregate market value 

of publicly-held shares of $60 million at 

the time of listing. All other companies 

must demonstrate 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 a company to 

have a global market capitalization of 

$500 million, $750 million, and $500 

million, respectively. Sections 102.01B 

and 102.01C of the Manual 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 

these listing standards. 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 notes that it has been 

approached by a number of private 

companies that would like to list upon 

the effectiveness of a selling shareholder 

registration statement. NYSE represents 

that these private companies typically 

have sold a significant amount of 

common stock to qualified institutional 

buyers in one or more private 

placements and, as a condition to those 

sales, have agreed to file a registration 

statement to facilitate the resale of the 

privately-placed shares. These 

companies have not had any prior 

public market for their common stock 

and are not contemplating an 

underwritten offering in connection 

with their selling shareholder 

registration statement. As such, the 

company would not be able to obtain a 

written representation from an 

underwriter to determine compliance 

with the market value requirements, as 

a company would in the case of an IPO, 

and 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. Thus, 

while the company may meet all of the 

Exchange’s other listing criteria, the 

company would not be able to satisfy 

NYSE’s current market value 

requirements in Sections 102.01B and 

102.01C of the Manual. 

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 company is 

listing, without a related underwritten 

offering, upon effectiveness of a 


jlentini on PROD1PC65 with NOTICES