Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Notices 57397 

12FINRA Letter. 

13 Id. 

14 IMS Letter. IMS also commented on the 

requirements of NASD Rule 3012, which is not part 

of the proposal. 

15FINRA Letter. 

16 In approving this proposal, the Commission has 

considered the proposed rule’s impact on 

efficiency, competition and capital formation. See 

15 U.S.C. 78c(f). 

17 15 U.S.C. 78o–3(b)(6). 

18See e.g. Securities Exchange Act Release No. 

53509 (March 17, 2006), 71 FR 15238 (March 27, 

2006) (SR–NASD–2006–036) (order approving rule 

change to IM–3013 finding that the proposed 

change furthered investor protection goals and 

provided clarity regarding application of the rule); 

Securities Exchange Act Release No. 56285 (August 

17, 2007), 72 FR 48715 (August 24, 2007) (SR– 

NASD–2007–049) (order approving rule change to 

NASD Rule 3013 and IM–3013 finding that the 

proposed changes decreased the likelihood of fraud 

and manipulative acts in addition to increasing 

investor protection). 

19 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3 In Amendment No. 1, the Exchange made 

technical, non-substantive corrections to Exhibits 3 

and 5. 

4This filing deletes references to the opinion of 

counsel requirements from the ‘‘Reference Guide 

For Subsequent Listing Applications’’ section at the 

front of the Manual and replaces them with a 

requirement (i) furnish the Exchange with copies of 

opinions of counsel filed in connection with recent 

public offerings or (ii) if no opinions of counsel 

exist, provide to the Exchange a certificate of good 

standing from the company’s jurisdiction of 

incorporation. In addition, the filing makes the 

same modification to the following sections of the 

Manual: 702.04 (Supporting Documents); 703.01 

(part 2) (General Information); 703.02 (part 3) (Stock 

Split/Stock Rights/Stock Dividend Listing Process); 

703.03 (Short Term Rights Offerings Relating to 

Continued 

FINRA responded that under the 

proposed rule change, firms that 

previously certified on or near April 1 

may continue to do so, so long as the 

certification is executed no later than 

the anniversary of the prior year’s 

certification.12 Furthermore, FINRA 

indicated that the commenter’s concern 

appears to result from the mistaken 

assumption that firms that are members 

of both FINRA and the NYSE must 

couple the CEO certification with the 

annual compliance report that is 

required to be submitted each year on 

April 1 under Incorporated NYSE Rule 

342.30. FINRA stated that a firm may 

choose to time the process of the CEO 

certification so that it coincides with the 

Annual Compliance Report 

requirement, but that the proposed rule 

change does not compel this outcome, 

thus giving a firm flexibility as to when 

the certification process begins and 

ends. In addition, FINRA indicated that 

the commenter did not adequately 

consider the needs of FINRA-only firms 

that have chosen a cycle other than 

April 1 that better meets their 

organizational structure and 

procedures.13

The second commenter asserted that 

NASD Rule 3013 is unworkable and 

ineffectual for small FINRA member 

firms and urged FINRA to adopt a small 

firm exemption as part of the 

proposal.14 The commenter stated that 

the provision requiring the CEO and 

CCO to meet to discuss and review 

elements related to the certification is 

unworkable for small firms when the 

CEO and CCO are the same person. 

FINRA indicated that it expects that a 

person who is both CEO and CCO of a 

firm will contemplate the required 

topics of the meeting and document that 

he or she has reviewed those matters.15

IV. Discussion and Findings 

After careful review of the proposed 

rule change, the comment letters and 

FINRA’s response to the comment 

letters, the Commission finds that the 

proposed rule change is consistent with 

the requirements of the Act, and the 

rules and regulations thereunder that 

are applicable to national securities 

associations,16 and in particular, 

Section 15A(b)(6) of the Act,17 which 

requires among other things, that FINRA 

rules be designed to prevent fraudulent 

and manipulative acts and practices, to 

promote just and equitable principles of 

trade, and, in general to protect 

investors and the public interest. The 

Commission believes that it is 

reasonable for FINRA to adopt NASD 

Rule 3013 and IM–3013 as FINRA Rule 

3130 in the Consolidated FINRA 

Rulebook because they have previously 

been found to meet statutory 

requirements.18

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act, that the 

proposed rule change (SR–FINRA– 

2008–030) be, and it hereby is, 

approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.19

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–23197 Filed 10–1–08; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58649; File No. SR–NYSE– 

2008–82] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing and Immediate Effectiveness of 

a Proposed Rule Change, as Modified 

by Amendment No. 1, To Modify Its 

Policy With Respect to Legal Opinions 

in Connection With Listings of 

Securities 

September 25, 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 

September 9, 2008, New York Stock 

Exchange LLC (‘‘NYSE’’ or ‘‘the 

Exchange’’) filed with the Securities and 

Exchange Commission (the 

‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

prepared by the Exchange. On 

September 21, 2008, the Exchange filed 

Amendment No. 1 to the proposed rule 

change.3 The Commission is publishing 

this notice, as amended, 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 

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 III below. The 

Exchange has prepared summaries, set 

forth in Sections A, B, and C below, of 

the most significant aspects of such 

statements. 

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 III 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 amend the 

Manual by removing the provisions 

throughout Chapter Seven that require 

issuers to supply opinions of counsel to 

the Exchange in connection with any 

initial listing application or 

supplemental listing application.4

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57398 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Notices 

Listed Securities Listing Process); 703.04 (Public 

Offerings and Private Placement of Common Stock 

Listing Process); 703.05 (Preferred Stock Offerings 

Listing Process); 703.06 (Debt Securities Offerings 

Listing Process); 703.07 (Reserves for Convertible 

Securities Listing Process); 703.08 (Mergers, 

Acquisitions and Other Business Combinations 

Listing Process); 703.09 (Stock Option, Stock 

Purchase and Other Remuneration Plans Listing 

Process); 703.10 (Technical Original Listing 

Process); 703.11 (Supplemental Listing Process); 

703.12 (Warrants Listing Standards); 703.13 

(‘‘Special Stocks’’ Listing Process (Stocks Which 

Have Periodic Increases in Conversion Rate Into 

Common Stock)); 703.14 (Voting Trust Certificate 

Listing Process); and 903.01 (Format of Original 

Listing Application). 

5 In connection with the listing of equity 

securities, including rights, warrants, preferred 

stock, options, etc., the required opinion (as set 

forth in Section 702.04) relates to: (i) The legality 

of organization of the company; (ii) the 

authorization of the issuance of the securities for 

which listing application is made; (iii) the validity 

of such securities; (iv) whether shares are, or will 

be when issued, fully-paid and non-assessable; (v) 

whether shareholders are personally liable under 

the laws of the jurisdiction in which the company 

is organized and the jurisdiction in which its 

principal place of business is located; (vi) the date 

and nature of any order or proceeding of any 

Federal or State regulatory authority prerequisite to 

issuance of any unissued securities covered by the 

application and, if such steps have not been 

completed, the present status thereof; (vii) whether 

the shares require registration under the Federal 

securities laws and, if so, a statement that the shares 

are so registered; and (viii) if counsel, any partner 

of such counsel, or any member of a firm rendering 

the opinion is a director or officer of the company, 

that fact is required to be disclosed in the opinion. 

In the case of debt securities, Section 703.06(G) 

requires an opinion of counsel addressing: (i) The 

legality of organization of the company; (ii) the 

authorization by the Board of Directors, in 

accordance with Exchange policy, of the issuance 

and listing of the securities for which the listing 

application is made; (iii) the validity of such 

securities; qualification of the indenture under the 

Trust Indenture Act of 1939; and (iv) effectiveness 

of registration of the securities under the Securities 

Act of 1933, or, if not registered, the reasons why 

not. 

6The Exchange will also put companies on notice 

of this requirement by including a reference to it 

in the checklist of required documentation sent out 

to listing applicants and included on the 

Exchange’s Web site. See the revised list of required 

documentation included in Exhibit 3. 7See Securities Exchange Act Release No. 42539 

(March 17, 2000), 65 FR 15672 (March 23, 2000) 

(SR–Amex–99–39). 8 15 U.S.C. 78f. 

9 15 U.S.C. 78f(b)(5). 

10 15 U.S.C. 78s(b)(3)(A). 

11 17 C.F.R. 240.19b–4(f)(6). 

Exchange rules have long required the 

delivery of an opinion of counsel 

addressed to the Exchange in 

connection with each application to list 

securities, including applications to list 

additional shares of a previously listed 

class.5 The Exchange believes that its 

opinion requirement is duplicative of 

several safeguards that now exist to 

protect investors in listed securities. In 

particular, an issuer’s independent 

auditor reviews the issuance of 

securities as part of its annual audit. 

Additionally, the underwriters of 

securities sold in a public offering 

receive legal opinions as to the validity 

of the issuance of the securities they 

purchase, as well as performing their 

own due diligence on the company and 

the securities. Furthermore, a legal 

opinion as to the legality of the issuance 

of the securities being registered is 

delivered to the SEC in connection with 

the filing of any registration statement. 

Accordingly, the Exchange proposes to 

end its policy of requiring legal 

opinions in connection with listing 

applications, including applications to 

list additional shares of a previously 

listed class. In lieu of the existing 

opinion requirements, the Exchange 

will require issuers to (i) furnish the 

Exchange with copies of opinions of 

counsel filed in connection with recent 

public offerings or (ii) if no opinions of 

counsel exist, provide to the Exchange 

a certificate of good standing from the 

company’s jurisdiction of 

incorporation.6

The Exchange notes that the 

Commission approved a rule filing by 

the American Stock Exchange (the 

‘‘Amex’’) in 2000 to eliminate opinion 

requirements from the Amex Company 

Guide under the same conditions the 

Exchange is proposing in this filing.7

Additionally, to the Exchange’s 

knowledge, Nasdaq does not require 

legal opinions in connection with new 

listings. As such, the Exchange believes 

that it is appropriate to conform its 

listing procedure in this regard with 

those of its direct competitors. In doing 

so, the Exchange will avoid the 

possibility of any competitive harm 

arising out of the imposition of this 

additional burden on issuers. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

the objectives of Section 6 8 of the Act 

in general and furthers the objectives of 

Section 6(b)(5) 9 in particular, in that it 

is designed to promote just and 

equitable principles of trade, to remove 

impediments, and to 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 

amendment specifically seeks to remove 

impediments to and perfect the 

mechanisms of a free and open market 

by conforming the Exchange’s listing 

procedures to those of Nasdaq and the 

Amex, thereby eliminating any 

competitive disadvantage the Exchange 

may suffer as a result of imposing a legal 

opinion requirement with respect to 

securities listings. In addition, the 

Exchange’s procedures will continue to 

protect the interests of investors by 

imposing requirements that will ensure 

that listed companies are duly and 

validly organized and in good standing 

in their jurisdiction of incorporation. 

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 on the proposed 

rule change were neither solicited nor 

received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

The proposed rule change has taken 

effect upon filing pursuant to Section 

19(b)(3)(A) of the Act.10

The Exchange asserts that the 

proposed rule change (i) will not 

significantly affect the protection of 

investors or the public interest, (ii) will 

not impose any significant burden on 

competition, and (iii) will not become 

operative for 30 days after the date of 

this filing, or such shorter time as the 

Commission may designate if consistent 

with the protection of investors and the 

public interest. 

The Exchange provided the 

Commission with 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 the 

filing of the proposed rule change as 

required by Rule 19b–4(f)(6).11

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. 

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: 

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Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Notices 57399 

12 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3 15 U.S.C. 78s(b)(1). 

4 15 U.S.C. 78(s)(b)(2). 

5See Securities Exchange Act Release No. 58457 

(September 3, 2008), 73 FR 52711 (September 10, 

2008) (SR–NYSEArca–2008–91) (‘‘NYSE Arca 

Order’’). 

6See Securities Exchange Act Release No. 58161 

(July 15, 2008), 73 42380 (July 21, 2008) (SR– 

Amex–2008–39). Notice of the Amex proposed rule 

change was published in Securities Exchange Act 

Release No. 57932 (June 5, 2008), 73 FR 33467 (June 

12, 2008) (‘‘Amex Order’’) 

7See Securities Exchange Act Release No. 58162 

(July 15, 2008), 73 FR 42391 (July 21, 2008) (SR– 

NYSEArca–2008–73). 

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–2008–82 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–2008–82. 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 self-regulatory 

organization. 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– 

2008–82 and should be submitted on or 

before October 23, 2008. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.12

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–23193 Filed 10–1–08; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58647; File No. SR– 

NYSEArca–2008–99] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Notice of Filing and 

Immediate Effectiveness of Proposed 

Rule Change Relating to the ProShares 

Trust II 

September 25, 2008. 

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 September 18, 2008, NYSE Arca, Inc. 

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

with the Securities and Exchange 

Commission (‘‘Commission’’) the 

proposed rule change 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 

Pursuant to the provisions of Section 

19(b)(1) of the Exchange Act,3 NYSE 

Arca, through its wholly-owned 

subsidiary NYSE Arca Equities, Inc. 

(‘‘NYSE Arca Equities’’), is submitting 

this proposed rule change in connection 

with the listing and trading on the 

Exchange of shares (‘‘Shares’’) of 

fourteen (14) funds (‘‘Funds’’) of 

ProShares Trust II (formerly known as 

Commodities & Currency Trust) 

(‘‘Trust’’) based on several currencies, 

commodities and commodities indexes, 

relating to the names of the Trust and 

the Funds, the Funds’ Web site 

disclosure relating to the availability of 

information regarding the Shares, and 

the expected price of the Shares at 

commencement of trading. The text of 

the proposed rule change is available on 

the Exchange’s Web site at 

www.nyse.com, at the Exchange’s 

principal office 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 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 Commission has approved the 

listing of the Shares on the Exchange 

pursuant to Section 19(b)(2) 4 of the 

Exchange Act. The Exchange intends to 

list and trade the Shares pursuant to 

NYSE Arca Equities Rule 8.200, 

Commentary .02, which permits the 

trading of Trust Issued Receipts 

(‘‘TIRs’’) either by listing or pursuant to 

unlisted trading privileges (‘‘UTP’’).5

The Commission previously approved 

the Shares for listing on the American 

Stock Exchange LLC (‘‘Amex’’) 6 and for 

trading on the Exchange pursuant to 

UTP.7 The Exchange is filing this 

proposal to reflect changes to the names 

of the Trust and the Funds, to clarify the 

Funds’ Web site disclosure relating to 

the availability of information regarding 

the Shares, and to correct a 

representation in the NYSE Arca Order 

regarding the expected price of the 

Shares at commencement of trading. 

Additional information regarding the 

Funds and the Trust is included in the 

NYSE Arca Order and the Amex Order. 

In the NYSE Arca Order, the 

Commission approved listing on the 

Exchange of the following Funds of the 

Trust (formerly known as Commodities 

& Currency Trust): (1) Ultra DJ–AIG 

Commodity ProShares, (2) UltraShort 

DJ–AIG Commodity ProShares, (3) Ultra 

DJ–AIG Agriculture ProShares, (4) 

UltraShort DJ–AIG Agriculture 

ProShares, (5) Ultra DJ–AIG Crude Oil 

ProShares, (6) UltraShort DJAIG Crude 

Oil ProShares, (7) Ultra Gold ProShares, 

(8) UltraShort Gold ProShares, (9) Ultra 

Silver ProShares, (10) UltraShort Silver 

ProShares, (11) Ultra Euro ProShares, 

(12) UltraShort Euro ProShares, (13) 

Ultra Yen ProShares and (14) UltraShort 

Yen ProShares. The Trust has advised 

mstockstill on PROD1PC66 with NOTICES