60378 Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Notices 

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

6 15 U.S.C. 78f(b)(4). 

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

8 17 CFR 240.19b–4 [sic]. 

9 17 CFR 200.30–3(a)(12). 

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

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4The Commission notes that NYSE is also 

proposing to adopt a new initial listing standard for 

all tapes through the Order Delivery 

Mode, through Auto Ex, and as liquidity 

providing trades and quotes. Based 

upon the information above, the 

Exchange believes that the proposed 

rule change is consistent with the 

protection of investors and the public 

interest. 

Operative Date and Notice 

The Exchange intends to make the 

proposed credit and rebate structure 

effective on filing of this proposed rule 

for trading on September 23, 2008. 

Pursuant to Exchange Rule 16.1(c), the 

Exchange will ‘‘provide ETP Holders 

with notice of all relevant dues, fees, 

assessments and charges of the 

Exchange’’ through the issuance of a 

Regulatory Circular of the changes to the 

Fee Schedule and will provide a copy 

of the rule filing on the Exchange’s Web 

site (http://www.nsx.com). 

Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

the provisions of Section 6(b) of the 

Act,5 in general, and Section 6(b)(4) of 

the Act,6 in particular, in that it is 

designed to provide for the equitable 

allocation of reasonable dues, fees and 

other charges among its members and 

other persons using the facilities of the 

Exchange. Moreover, the proposed fee 

and rebate structure is not 

discriminatory in that all ETP Holders 

are eligible to submit (or not submit) 

liquidity adding trades and quotes in 

Order Delivery Mode in all tapes and 

may do so at their discretion. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

the proposed rule change will impose 

any inappropriate burden on 

competition. 

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 

The proposed rule change has taken 

effect upon filing pursuant to Section 

19(b)(3)(A)(ii) of the Act 7 and 

subparagraph (f)(2) of Rule 19b–4 8

thereunder, because, as provided in 

(f)(2), it ‘‘changes a due, fee or other 

charge imposed by the Exchange 

applicable only to a member’’ (known 

on the Exchange as an ETP Holder). At 

any time within sixty (60) days of the 

filing of such 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: 

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–NSX–2008–17 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–NSX–2008–17. 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 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–NSX–2008–17 and should 

be submitted on or before October 31, 

2008. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.9

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–24118 Filed 10–9–08; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58741; File No. SR–NYSE– 

2008–97] 

Self-Regulatory Organizations; Notice 

of Filing of Proposed Rule Change by 

New York Stock Exchange LLC To 

Adopt an Initial Listing Standard 

Applicable Only to Companies 

Transferring From NYSE Arca 

October 6, 2008. 

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

Securities Exchange Act of 1934 (the 

‘‘Act’’),2 and Rule 19b–4 thereunder,3

notice is hereby given that on October 

1, 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 

Section 102.01C of the Exchange’s 

Listed Company Manual (the ‘‘Manual’’) 

to adopt an initial listing standard that 

will be applicable only to companies 

that are listed on NYSE Arca, Inc. 

(‘‘NYSE Arca’’) as of October 1, 2008 

and that transfer to the Exchange on or 

before March 31, 2009. The Exchange 

also proposes to apply the continued 

listing standard applicable under 

Section 802.01B to companies listed 

under the Earnings Test to companies 

listed under the proposed new initial 

listing standard.4

mstockstill on PROD1PC66 with NOTICES

Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Notices 60379 

operating companies. See Securities Exchange Act 

Release No. 58740 (October 6, 2008) (SR–NYSE– 

2008–98). 

5As set forth in Section 802.01B(1) of the Manual. 

6Companies listed under the Earnings Test are 

considered to be below compliance standards if 

their average global market capitalization over a 

consecutive 30 trading-day period is less than 

$75,000,000 and, at the same time, total 

stockholders’ equity is less than $75,000,000. In 

addition Section 802.01B requires all listed 

companies to maintain a minimum of $25 million 

in global market capitalization and Section 802.01C 

requires all listed companies to maintain a $1.00 

minimum stock price. The Exchange represents that 

the holders, trading volume and publicly-held 

shares requirements of Section 802.01A along with 

the requirements of Sections 802.01D (‘‘Other 

Criteria’’) and 802.01E (‘‘SEC Annual Report Timely 

Filing Criteria’’) would also apply. Telephone 

conversation between John Carey, Chief Counsel, 

NYSE and David J. Michehl, Special Counsel, 

Division of Trading and Markets, Commission on 

October 6, 2008. 

7The total market capitalization and market value 

of publicly-held shares requirements of the NYSE 

Arca Transfer Standard equal those of Amex Initial 

Listing Standard 4 (Amex Company Guide Section 

101(d)). 8 17 CFR 240.a51–1(a)(ii). 

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 

Section 102.01C of the Manual to adopt 

an initial listing standard that will be 

applicable only to companies that are 

listed on NYSE Arca, Inc. (‘‘NYSE 

Arca’’) as of October 1, 2008 and that 

transfer to the Exchange on or before 

March 31, 2009. The Exchange also 

proposes to apply the continued listing 

standard applicable under Section 

802.01B to companies listed under the 

Earnings Test 5 to companies listed 

under the proposed new initial listing 

standard. 

Upon completion of its acquisition of 

the American Stock Exchange (to be 

renamed NYSE Alternext US LLC at the 

time of the acquisition), NYSE Euronext 

will have three equity listing markets: 

The NYSE; NYSE Arca; and NYSE 

Alternext US. NYSE Euronext 

management has made a strategic 

business decision to move forward with 

only two operating company equity 

listing markets and, consequently, has 

decided to discontinue the operating 

company equity listing program on 

NYSE Arca. As part of this transition, 

the Exchange wishes to offer the 

opportunity to list on the NYSE to all 

suitable NYSE Arca companies. NYSE 

Arca listed companies wishing to 

transfer to the NYSE will be required to 

submit a listing application and be 

subject to the same listing application 

process as all other applicant 

companies. Most companies currently 

listed on NYSE Arca would meet the 

NYSE’s continued listing requirements 

set forth in Section 802.01B of the 

Manual for companies listed under the 

Exchange’s Earnings Test.6 However, a 

number of these companies that meet 

the NYSE’s continued listing standards 

do not qualify to list under any of the 

existing NYSE initial listing standards. 

In order to list these companies, the 

Exchange proposes to adopt a special 

listing standard applicable only to those 

companies listed on NYSE Arca on the 

date of initial submission of this filing 

and the Exchange would only utilize 

this standard for a brief period, ending 

on March 31, 2009. 

Companies transferring from NYSE 

Arca under the proposed standard (the 

‘‘NYSE Arca Transfer Standard’’) would 

be required to have $75 million in total 

market capitalization for 90 consecutive 

days prior to applying for listing and 

$20 million in market value of publiclyheld shares (but not the $100 million 

market value of publicly-held shares 

requirement of Section 102.01B). Such 

companies would have to meet the 

holders, publicly-held shares and 

trading volume requirements as set forth 

in Section 102.01A as companies that 

list under the existing initial listing 

standards and the $4 stock price 

requirement of Section 102.01B.7

The Exchange believes it is 

appropriate to adopt a short-term listing 

standard applicable only to NYSE Arca 

companies. These companies listed on 

NYSE Arca on the assumption that it 

would exist as a permanent listing 

market and it is solely because of a 

business decision made by NYSE 

Euronext that these companies will 

need to transfer their listings. Many of 

these companies listed on NYSE Arca 

because of its association with the NYSE 

and in the expectation that they would 

ultimately switch their listing to the 

NYSE when they met the NYSE’s listing 

standards. As such, the Exchange 

believes that fairness dictates that it 

should seek to list these companies on 

the NYSE where such a listing is 

appropriate and in the interests of the 

investing public. 

The NYSE will only list companies 

under the NYSE Arca Transfer Standard 

if it believes that those companies are 

suitable for trading on the NYSE. All of 

the companies that would be listed 

under the NYSE Arca Transfer Standard 

will far exceed the NYSE’s continued 

listing standards at the time of initial 

listing and will be in compliance with 

NYSE Arca continued listing standards. 

In addition, the same staff in NYSE 

Regulation’s Financial Compliance and 

Corporate Governance groups is 

responsible for ongoing compliance 

reviews of both NYSE and NYSE Arca 

companies. As such, the NYSE 

Regulation staff involved in making 

initial listing determinations on the 

NYSE is extremely familiar with the 

companies currently listed on NYSE 

Arca and is uniquely positioned to 

determine whether those companies are 

suitable for listing on the NYSE. The 

Exchange believes its depth of 

knowledge with respect to NYSE Arca 

companies makes it appropriate to list 

them on this one time basis under a less 

onerous standard than the Exchange 

applies to other listing applicants. 

Companies listing under the NYSE Arca 

Transfer Standard will be subject to the 

standard listing application and review 

process applicable to all listing 

applicants and, if Exchange staff 

determine that an NYSE Arca company 

is not suitable for listing on the NYSE— 

notwithstanding its qualification under 

the numerical requirements of the NYSE 

Arca Transfer Standard—the Exchange 

will not list that company. 

The requirements of the NYSE Arca 

Transfer Standard will exceed those 

established by the Exchange Act Rule 

3a51–1(a)(2) (the ‘‘Penny Stock Rule’’).8

The proposed standard’s requirement 

that an applicant have $75 million in 

global market capitalization for 90 days 

prior to transferring from NYSE Arca 

exceeds the $50 million market 

capitalization for 90 days prior to listing 

option in the Penny Stock Rule, as well 

as the $50 million market capitalization 

requirement of Rule 3a51–1(a)(2)(i)(B). 

In addition, companies listing under the 

NYSE Arca Transfer Standard will be 

required at the time of transfer to have 

a $4 stock price, 400 round lot holders 

and 1.1 million publicly held shares, 

thereby meeting or exceeding all of the 

mstockstill on PROD1PC66 with NOTICES

60380 Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Notices 

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

10 17 CFR 200.30–3(a)(12). 

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

2 15 U.S.C. 78a et SEC [sic]. 

3 17 CFR 240.19b–4. 

Penny Stock Rule’s remaining 

requirements. 

Companies listing under the NYSE 

Arca Transfer Standard will have to 

comply with all other applicable 

Exchange listing rules, including the 

Exchange’s corporate governance 

requirements. As with all other listing 

applicants, the Exchange reserves the 

right to deny listing to any company 

seeking to list under the NYSE Arca 

Transfer Standard if the Exchange 

determines that the listing of any such 

company is not in the interests of the 

Exchange or the public interest. 

2. Statutory Basis 

The basis under the Act for this 

proposed rule change is the requirement 

under Section 6(b)(5) 9 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 Exchange 

believes that the proposed amendment 

is consistent with the protection of 

investors and the public interest in that 

the requirements of the NYSE Arca 

Transfer Standard are sufficiently 

stringent that the proposed amendment 

will not lead to the listing of any 

companies that are not suited for listing 

on the NYSE. In addition, the proposal 

applies for a very brief period to a small 

number of companies that are subject to 

unique and disadvantageous 

circumstances. 

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 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 

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 

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–2008–97 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–2008–97. 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–2008–97 and should 

be submitted on or before October 31, 

2008. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.10

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–24178 Filed 10–9–08; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58736; File No. SR–NYSE– 

2008–91] 

Self-Regulatory Organizations; Notice 

of Filing of Proposed Rule Change by 

New York Stock Exchange LLC To 

Adopt a Policy Relating to its 

Treatment of Trade Reports That It 

Determines To Be Inconsistent With 

the Prevailing Market 

October 6, 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 September 26, 2008, New York Stock 

Exchange, LLC (the ‘‘NYSE’’ or the 

‘‘Exchange’’) filed with the Securities 

and Exchange 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 adopt a 

policy relating to its treatment of trade 

reports that it determines to be 

inconsistent with the prevailing market. 

The Exchange does not expect that the 

proposed rule change will have any 

direct effect, or significant indirect 

effect, on any other Exchange rule in 

effect at the time of this filing. 

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 

mstockstill on PROD1PC66 with NOTICES