[Federal Register Volume 78, Number 162 (Wednesday, August 21, 2013)]
[Notices]
[Pages 51788-51796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20346]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-70218; File No. SR-NYSE-2013-33]
Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of and Order Granting Accelerated Approval of Proposed Rule
Change, as Modified by Amendment No. 1 to: (i) Delete the Sections in
the Listed Company Manual (the ``Manual'') Containing the Listing
Application Materials (Including the Listing Application and the
Listing Agreement) and Adopt Updated Listing Application Materials that
will be Posted on the Exchange's Web site; and (ii) Adopt As New Rules
Certain Provisions that are Currently Included in the Various Forms of
Agreements That Are in the Manual, As Well As Some Additional New Rules
that Make Explicit Existing Exchange Policies with Respect to Initial
Listings
August 15, 2013.
I. Introduction
On April 30, 2013, the New York Stock Exchange LLC (``NYSE'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``SEC'' or ``Commission''), pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4
thereunder,\2\ proposed rule changes (``Proposal'') to (i) delete the
sections in the Listed Company Manual (the ``Manual'') containing the
listing application materials (including the listing application and
the listing agreement) and adopt updated listing application materials
that will be posted on the Exchange's Web site; and (ii) adopt as new
rules certain provisions that are currently included in the various
forms of agreements that are in the Manual, as well as some additional
new rules that make explicit existing Exchange policies with respect to
initial listings. The proposed rule change was published for comment in
the Federal Register on May 17, 2013.\3\ The Commission received one
comment letter on the proposal.\4\ On June 27, 2013, the Commission
extended the time period in which to either approve, disapprove, or to
institute proceedings to determine whether to disapprove the Proposals,
to August 15, 2013.\5\ On August 14, 2013, the Exchange filed Amendment
No. 1 to the proposed rule change.\6\ This order approves the proposed
rule change, as modified by Amendment No. 1, on an accelerated basis.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Securities Exchange Act Release No. 69565 (May 13,
2013), 78 FR 29165 (``Notice'').
\4\ See Letter to Elizabeth M. Murphy, Secretary, Commission,
from Shinichi Yuhara, dated June 4, 2013.
\5\ See Securities Exchange Act Release No. 69878, 78 FR 40260
(July 3, 2013) (SR-NYSE-2013-33) (``Notice''). This letter suggested
changing the title of proposed Section 107.01 to ``Accounting
Standards,'' a change made by the Exchange in Amendment No. 1.
\6\ Amendment No. 1, in pertinent part, corrects some minor
errors in the marking of the rule text included in the initial
filing (although these changes were accurately explained in the
Purpose section to the notice), amends the title of proposed new
rule 107.01, and deletes two provisions, amends one provision
included in the proposed forms of listing agreements included in the
initial filing, and amends the statutory basis section of the
initial rule filing to specify that Section 904.03 (``Due Bill''
Form Letter) will be renumbered as Section 904.01. This change was
correctly reflected in the purpose section of the initial filing,
however the statutory basis section of the initial filing
inadvertently stated that Section 904.03 was being deleted rather
than renumbered.
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II. Background
The Exchange proposes to: (i) delete the sections in the Manual
containing the listing application materials (including the listing
application and the listing agreement) and adopt updated listing
application materials that will be posted on the Exchange's Web site;
and (ii) adopt as new rules certain provisions that are currently
included in the various forms of agreements that are in the Manual, as
well as some additional new rules that make explicit existing Exchange
policies with respect to initial listings.
Changes to the Listed Company Manual
The Exchange proposes changes to the Manual's requirements
detailing the information an applicant is required to provide.\7\ The
Exchange has proposed to amend Sections 102.01C(F) and 103.01B(C) by
adding language stating that the form of listing application and
information regarding support documents required in connection with
[[Page 51789]]
adjustments to historical financial data will be available on the
Exchange's Web site or from the Exchange upon request. Similar changes
are proposed for Sections 103.04 (with respect to American Depository
Receipts), 104.01 (Domestic Companies), and 104.02 (Non-U.S.
Companies).
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\7\ All rule references in this filing are to sections of the
Manual unless otherwise specified. In addition to the changes
discussed herein, the Exchange proposes to amend the following
sections of the Manual to remove cross-references therein to
sections that are proposed to be deleted or amended and to state
that the required documents are on the Exchange's Web site or
available from the Exchange upon request: Sections 102.01C(F)
(Minimum Numerical Standards--Domestic Companies--Equity Listings);
103.01B(C) (Minimum Numerical Standards Non-U.S. Companies Equity
Listings); 103.04 (Sponsored American Depository Receipts or Shares
(``ADRS'')); 204.00(B) (Notice to and Filings with the Exchange);
204.04 (Business Purpose Changed); 204.13 (Form or Nature of Listed
Securities Changed); 204.18 (Name Change); and 204.23 (Rights or
Privileges of Listed Security Changed Last Modified: 8/21/2006). See
Notice, supra note 3.
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New Section 104.00 would describe a free confidential review of the
eligibility for listing undertaken by the Exchange of any company that:
(i) Requests such a review; and (ii) provides the documents listed in
Section 104.01 (domestic companies) or Section 104.02 (non-U.S.
companies). A company may submit an original listing application only
after it has been cleared to do so by the Exchange following the
completion of a confidential eligibility review.
New Section 107.00 (``Financial Disclosure and Other Information
Requirements'') would specifically set forth in the Manual certain
financial requirements that NYSE states it currently requires of
companies listing on the Exchange. Specifically, (i) new Section 107.01
would outline the accounting standards applicable to listed companies,
(ii) new Section 107.02 would require all companies applying for
initial listing to be audited by an independent public accountant
registered with the Public Company Accounting Oversight Board, (iii)
new Section 107.03 would stipulate that no security will be approved
for listing if the issuer has not, for the 12 months immediately prior
to the date of listing, timely filed all periodic reports required to
be filed with the Commission or Other Regulatory Authority (as defined
in the rule), and (iv) new Section 107.04 would require all companies
applying to list on the Exchange to provide the Exchange with any
information or documentation necessary to make a determination
regarding the initial listing.
The Exchange proposes to amend Sections 204.00, 204.04, 204.13,
204.18 and 204.23 to include a statement that the form of listing
application and information regarding supporting documents required in
connection with the listing application would be available on the
Exchange's Web site or from the Exchange upon request.
The Exchange proposes to add a requirement to Section 311.01 that
would stipulate that partial redemptions of listed securities must be
done on a pro rata basis or by lot. In conjunction with this change,
the Exchange has proposed to delete this requirement from the listing
agreements for domestic and non-U.S. companies.
The Exchange proposes to add a requirement to Section 501.01 that
would require listed companies to issue new certificates for listed
securities replacing lost ones upon notification of loss of the
original certificate and receipt of proper indemnity. In conjunction
with this change, the Exchange has proposed to delete this requirement
from the listing agreements for domestic and non-U.S. companies.
The Exchange further proposes to add a requirement to Section
501.02 that would require that, in the event of the issuance of any
duplicate bond to replace a bond which has been alleged to be lost,
stolen or destroyed and the subsequent appearance of the original bond
in the hands of an innocent bondholder, either the original or the
duplicate bond must be taken up and cancelled and the issuer must
deliver to such holder another bond. In conjunction with this change,
the Exchange has proposed to delete this requirement from the listing
agreements for domestic and non-U.S. companies.
The Exchange has proposed to add certain requirements to Section
601.01 that were not previously embodied in any other rule. Provisions
being added to Section 601.01(A) would require a transfer agent to
comply with the rule of the Exchange, maintain officer for the purposes
of transfer activities that are staffed by experienced personnel,
provide adequate facilities foe the safekeeping of securities, maintain
facilities to expedite transfers, and appoint an agent for service of
process. A provision added to Section 601.01(B) would require the
transfer agent to take immediate corrective action if the transfer
agent's independent auditor specifies any material weaknesses, and
provide a letter to the Exchange indicating that the material
weaknesses have been corrected. The Exchange further proposes to delete
Section 601.03 in its entirety, as it relates solely to the transfer
agent and registrar agreements which the Exchange has also proposed to
eliminate.
The Exchange proposes to amend Section 702.00 (Original Listing
Application Securities of Other than Debt Securities) to replace the
information currently in that section with a general outline of the
listing process designed to be more descriptive of the listing
process.\8\ If, upon completion of this review, the Exchange determines
that a company is eligible for listing, the Exchange will notify that
company in writing (the ``clearance letter'') that it has been cleared
to submit an original listing application.\9\
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\8\ The revised description states that a company that does not
have any other class of securities listed on the Exchange must first
seek a free confidential review of its listing eligibility as set
forth in Section 104.00.
\9\ A clearance letter is valid for nine months from its date of
issuance. If a company does not list within the nine month period,
but wishes to list thereafter, the Exchange will perform another
confidential listing eligibility review as a condition to the
issuance of a new clearance letter.
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Upon receiving a clearance letter, a company choosing to list must
file an original listing application.\10\ Section 702.00 states that a
company should submit drafts of the original listing application and
other required documents as far in advance as possible of the time it
seeks Exchange authorization of its application. Promptly after making
a determination that a company is eligible to list but subject to
payment of the Initial Application Fee, the Exchange shall inform such
company in writing that it is entitled to receive a clearance letter
upon payment of the applicable Initial Application Fee.\11\
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\10\ The original listing application and other required
supporting documents can be found on www.nyx.com.
\11\ Section 902.03 requires certain categories of listing
applicants to pay an Initial Application Fee as a prior condition to
receipt of eligibility clearance. In its filing, the NYSE stated
that the purpose of the notification in Section 702.00 is to assure
any such company that it will not have to pay a non-refundable
Initial Application Fee subject to any risk that it will not
subsequently receive a clearance letter. Applicants that are not
subject to the Initial Application Fee will not receive any similar
notification, but rather will receive a clearance letter promptly
after the Exchange has made an eligibility determination.
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In addition to the changes to Section 702.00 discussed above, the
Exchange has proposed to delete Sections 702.01 (Introduction), 702.02
(Timetable for Original Listing of Securities Other than Debt
Securities), 702.03 (Submission of Listing Application), 702.04
(Supporting Documents) and 702.05 (Printing of Application) and
renumber subsequent sections. Section 702.01 describes the listing
application as historically used, which was not on a set form and
required companies to provide a narrative of the information relevant
to the particular issue. The listing application form used going
forward will be in the form of a questionnaire and the Exchange has
stated that it will not require the sort of narrative that was
historically included in the listing application, as this information,
according to the Exchange, is typically all readily available in the
company's Commission filings. In its filing, the NYSE stated that
Section 702.02 is being eliminated because the timeline provided in
that Section does not necessarily bear any relation to the listing
experience of any individual company and, according to NYSE, is of
[[Page 51790]]
limited practical value. Section 702.03 (Submission of Listing
Application) is being deleted as the Exchange's requirements with
respect to the submission of copies of the listing application will, as
a result of the NYSE's proposal, now be set forth in detail in listing
checklists posted on the Exchange's Web site. Section 702.04
(Supporting Documents) is also being deleted since, to the extent that
the documents described in Section 702.04 continue to be relevant to
the listing process, the Exchange will request them from issuers
pursuant to the listing application checklists that will be available
on the NYSE's Web site.
The following supporting documents currently required by Section
702.04, in its current form, and a brief discussion of whether each
individual document will continue to be required under the NYSE's
proposal and, if not, why not is discussed below:
Signed Application: The Exchange will continue to require
copies of the signed application but will require two signed copies of
the application going forward rather than the signed copy and five
conformed copies specified in Section 702.04 as fewer copies are needed
for internal record keeping purposes.
Charter and By-Laws: The charter and by-laws will continue
to be required, but the copies will no longer need to be certified as
certification is not necessary for the Exchange's review.
Resolutions: The Exchange will continue to require copies
of the applicable board resolutions, although they will no longer need
to be certified, as certification is not necessary to the Exchange's
review.
Opinions of Counsel/Certificate of Good Standing: These
documents will continue to be required.
Stock Distribution Schedule: The Exchange proposes to
eliminate the stock distribution schedule requirement as the Exchange
believes it is obsolete because distribution information is available
from the applicant's public filings and from its transfer agent.
Certificate of Transfer Agent/Certificate of Registrar:
The Exchange proposes to no longer require these documents because,
according to the Exchange, the information about the applicant's
outstanding shares is available in its prospectus or periodic
Commission reports, as well as the report of the applicant's
outstanding shares that will be required to be delivered to the
Exchange once a quarter after listing.
Notice of Availability of Stock Certificates: The Exchange
proposes to no longer require this document as all transactions in
listed securities in the national market system are conducted
electronically through Depository Trust & Clearing Corporation
(``DTCC'').
Specimens of the Securities for Which Listing Application
is Made: The Exchange proposes to continue to require copies of
specimen certificates, if any.
Public Authority Certificate: The Exchange proposes to
continue to require public authority certificates, where applicable.
Prospectus: The Exchange does not propose to continue to
require applicants to provide copies of their final prospectuses, as
they are publicly available through the Commission's EDGAR system.
Financial Statements: The Exchange does not propose to
continue to require applicants to provide copies of their financial
statements, as they are included in the applicant's Commission filings
which are publicly available through the Commission's EDGAR system.
Adjustments to Historical Financial Data: The Exchange
proposes to continue to require companies to provide copies of any
adjusted financial data used in connection with the financial
qualification for listing of the applicant.
Listing Agreement: The Exchange proposes to require the
applicable form of the proposed revised listing agreement as set forth
in amended Exhibit 3 of the filing.
Memorandum with Respect to Unpaid Dividends, Unsettled
Rights and Record Dates: The Exchange proposes to no longer require
this document, as all of the required information is included in the
proposed revised listing application detailed in amended Exhibit 3 of
the filing.
Registration form under the Securities Exchange Act of
1934: The Exchange proposes to continue to require applicants to supply
this document.
The Exchange noted that the second paragraph of Section 702.04
requires applicants to provide required documents at least one week
prior to listing or, if this is not possible because of the nature of
the document in question, as soon as practicable thereafter, but in any
event prior to the first day of trading subject to the Exchange's
conditional listing approval. Although the Exchange has proposed to
delete Section 702.04, amended Section 702.00 will contain a similar
requirement, with the exception of specifying the supporting documents
be submitted one week before the Exchange needs to take action.
Section 702.05 (Printing of Application) is being deleted as it is
obsolete and the Exchange has not distributed printed copies of
approved listing applications for many years. In addition, the Exchange
believes that the listing application has lost its relevance as a
disclosure document in recent decades due to the development of the
SEC's own comprehensive disclosure system.
Section 703.00 is being amended by modifying subsections 703.01
through 703.14, relating to the application process and the filing of
the listing application and any supplemental, or supporting, documents.
References to the form of supplemental listing application set forth in
Section 903.02 and also the lists of documents required to be submitted
in connection with the relevant supplemental listing application are
being deleted from these subsections. Various subsections will no
longer contain a listing of the supplemental documents to be provided
to the Exchange, but will state that the form of listing application
and information regarding supporting documents required in connection
with supplemental listing applications and debt securities applications
are available on the Exchange's Web site or from the Exchange upon
request. Section 703.01 Parts 1(A) and 2(B) and (C) currently require,
respectively, that the application be in the form of a memo from the
company and four signed typewritten copies of the supplemental listing
applications provided to the Exchange. Section 703.01 Part 2(B) is
being revised to remove an obsolete reference to the Exchange's weekly
bulletin. Furthermore, Section 703.01 Part 2 (D) and (E), which refer
to data that is to be provided in any subsequent listing application
and a statement that the application need not be typed, are being
removed from the Manual.
Section 802.01D is being revised with a provision explicitly
providing that the Exchange may delist a company for a breach of the
terms of its listing agreement.
In addition to the above described changes, various sections of the
Manual are being revised to remove, or update, obsolete or incorrect
cross-references.\12\
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\12\ See, Notice, supra note 3
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Proposed Changes to Listing Agreements
The Exchange proposes to remove from the Manual the current form of
listing agreements for various types of company. In addition, the
Exchange seeks to update the listing agreements used to reflect current
practices at the exchange. According to the NYSE, the
[[Page 51791]]
current form of listing agreements contained in the Manual reflect
practices at the Exchange and in the securities markets generally that
are no longer prevalent, such as the transfer of physical securities in
Exchange transactions rather than the contemporary system of book entry
transfer through DTCC. Consequently, NYSE believes that there are
provisions in the listing agreements that are obsolete and the Exchange
has proposed to delete these provisions.
The Exchange proposes to eliminate the Listing Securities Fee
Agreement set forth in Section 902.01 of the Manual in its entirety.
The form of original listing application supplemental listing
application, and summary of such applications contained in Section
903.01, Section 903.02, and 903.03, respectively, are being deleted
from the Manual in their entirety. A revised form of the original
listing application and the existing forms of the supplemental listing
applications for certain issuances were provided in Exhibit 3 as part
of the filing and these forms will be provided on the Exchange's Web
site.
The Stock Distribution Schedule in Section 904.01 is being deleted
as the Exchange obtains the distribution information required in
Section 904.01 from the company's transfer agent. Exchange proposes to
require applicants to provide the information in Section 904.02 (Unpaid
Dividends, Unsettled Rights, and Record Dates--Memorandum) in the
revised form of original listing application and, therefore, is
deleting Section 904.02. In addition, Sections 904.03 (``Due Bill''
Form Letter) and 904.04 (Foreign Currency Warrants and Currency Index
Warrants and Stock Index Warrants membership Circular) will be
renumbered Sections 904.01 and 904.02, respectively.
Listing Agreements
In addition to changes to the various Section of the Manual, the
Exchange has also proposed to make changes to the various Listing
Agreements contained in the Manual. The revised listing agreements will
be available on the Exchange's Web site and were submitted as part of
the rule filing in Exhibit 3, and the amended forms submitted in the
Exhibit 3 to Amendment No. 1. Specifically, the Exchange is removing
Sections 901.01 (Listing Agreement for Domestic Companies), 901.02
(Listing Agreement for Foreign Private Issuers), 901.03 (Listing
Agreement for Depository of a Foreign Private Issuer), 901.04 (For
Japanese Companies--Free Share Distribution Understanding), and 901.05
(Listing Agreement for Voting Trusts). Although the Exchange is
removing each of these agreements from the Manual, the Exchange will
still be using each of these agreements, although in the listing
agreements for domestic companies in 901.01 and foreign companies in
901.02 will be modified.
The Exchange proposes to delete from the domestic and foreign
private issuers listing agreement certain requirements contained
elsewhere in either the Manual or SEC Rules.\13\ Such provisions, among
other things, relate to: (i) Changes in the general character or nature
of the company's business; (ii) changes in the company's officers or
directors; (iii) disposition of any property or of any stock interest
in any subsidiary or controlled companies; and (iv) change in, or
removal of, collateral deposited under any mortgage or trust indenture,
under which securities of a company listed on the Exchange has been
issued. The Exchange has also proposed to remove from the listing
agreement the requirement that a company file with the Exchange: (i)
four copies of all material mailed by a company to its stockholders
with respect to any amendment or proposed amendment to its Certificate
of Incorporation; (ii) a copy of any amendment to a company's
Certificate of Incorporation, or resolution of Directors in the nature
of an amendment, certified by the Secretary of the state of
incorporation, as soon as such amendment or resolution shall have been
filed in the appropriate state office; and (iii) a copy of any
amendment to a company's By-Laws. The Exchange has also proposed to
remove from the listing agreement the requirement that a company
disclose: (i) in its annual report to shareholders certain information
relating to options and options plan; \14\ and (ii) certain information
relating to the reacquisition or disposition of previously issued stock
for the company's account, within ten days after the close of a fiscal
quarter.\15\
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\13\ See Notice, supra note 3. The Commission notes that
although these items are being removed from the listing agreement,
the underlying obligation to provide this information continues to
exist in some form either through NYSE rules or Commission
requirements.
\14\ According to the NYSE, this information is no longer
necessary because Commission rules provide for comprehensive
disclosure regarding options as the Commission previously approved
removal of a similar requirement in an NYSE rule for that reason.
\15\ According to the Exchange, this is no longer needed in the
agreement because it is identical to requirement 204.25 of the
Manual.
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In addition, the Exchange is proposing to delete the requirement
that a company notify the Exchange of all facts relating to the
purchase, direct or indirect, of any of its securities listed on the
Exchange at a price in excess of the market price of such security
prevailing on the Exchange at the time of such purchase.\16\ The
requirement prohibiting a company from selecting any of its securities
listed on the Exchange for redemption otherwise than by lot or pro
rata, and from setting a redemption date earlier than fifteen days
after the date corporate action is taken to authorize the redemption is
also being deleted.\17\ The Exchange is further proposing to delete the
requirement that a company give notice of any corporate action which
will result in the redemption, cancellation or retirement, in whole or
in part, of any of its securities listed on the Exchange. The
requirement that a company notify the Exchange at least 10 days in
advance of action taken to fix a stockholders' record date, or to close
the transfer books, for any purpose, is being deleted because it
already is contained in Sections 204.06, 204.17, 204.21 and 401.02 of
the Manual.
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\16\ See Notice, supra note 3, which discusses why the Exchange
believes this isn't necessary.
\17\ The Commission notes that the Exchange has proposed to add
a requirement to Section 311.01 that would stipulate that partial
redemptions of listed securities must be done on a pro rata basis or
by lot. The other provisions being deleted are already in existing
Section 204.22 and 311.01.
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The Exchange is also proposing to delete the requirement that, in
case the securities to be listed are in temporary form, the company
agrees to order permanent engraved securities within thirty days after
the date of listing because all securities traded through the
facilities of the Exchange are now traded electronically. The
requirement prohibiting a company from making any change in the form or
nature of any of its securities listed on the Exchange, nor in the
rights or privileges of the holders thereof, without having given
twenty days' prior notice to the Exchange of the proposed change, and
having made application for the listing of the securities as changed if
the Exchange shall so require, is being removed from the listing
agreement.\18\ The Exchange also proposes to delete the requirement
that a company make available to the Exchange, upon request, the names
of member firms of the Exchange which are registered owners of stock of
the Corporation listed on the Exchange.
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\18\ The Commission notes that this requirement will continue to
exist in Section 204.13 of the Manual.
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The requirement to notify the Exchange of any diminution in the
supply of stock available for the market occasioned by deposit of stock
under voting trust agreements or other deposit
[[Page 51792]]
agreements is also being deleted.\19\ The Exchange has proposed to
delete the requirement that a company make application to the Exchange
for the listing of additional amounts of securities listed on the
Exchange sufficiently prior to the issuance thereof to permit action in
due course upon such application.\20\
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\19\ The Commission notes that this requirement will continue to
exist in Section 204.09 of the Manual.
\20\ The Commission notes that this requirement will continue to
exist in Section 703.01 Part 2 of the Manual.
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The Exchange proposes to delete the provision requiring a company
publish at least once a year and submit to its stockholders at least
fifteen days in advance of the annual meeting of such stockholders, and
not later than three months after the close of the last preceding
fiscal year of the Corporation, certain balance sheets, a surplus and
income statements.\21\ As noted by the Exchange, this requirement is in
some respects duplicative of Commission rules. In addition, the
Exchange is deleting the requirement, in the listing agreement, that:
(i) All financial statements contained in annual reports of a company
to its stockholders be audited by independent public accountants
qualified under the laws of some state or country, and will be
accompanied by a copy of the certificate made by them with respect to
their audit of such statements showing the scope of such audit and the
qualifications, if any, with respect thereto; \22\ and (ii) the company
promptly notify the Exchange if it changes its independent public
accountants regularly auditing the books and accounts of the company.
The Commission notes that this requirement will continue to exist in
Section 204.03. The requirement that all financial statements contained
in a company's annual reports to its stockholders be in the same form
as the corresponding statements contained in the company's listing
application, and disclose any substantial items of unusual or non-
recurrent nature, is also being deleted.
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\21\ For foreign private issuers, the NYSE notes that
eliminating this requirement is a substantive change. However, in
its original filing, NYSE stated that the SEC's proxy rules are not
applicable to foreign private issuers and, in conformity with that
position, the NYSE does not intend to impose such requirements
itself. The Commission notes that certain companies will still be
required to comply with the Commission's proxy rules, applicable to
domestic listed companies, contained in Regulation 14A--Solicitation
of Proxies, which requires issuers to distribute annual reports when
soliciting proxies. See also, note 38, infra, and accompanying text.
\22\ The Commission notes that this requirement will continue to
exist in new Section 107.02 of the Manual.
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The requirement that a company or its subsidiaries not make any
substantial charges against capital surplus, without notifying the
Exchange is being removed from the listing agreement.\23\ The
requirement that a company or its subsidiaries not make any substantial
change in accounting methods or policies as to depreciation and
depletion, or in bases of valuation of inventories or other assets,
without providing notice and disclosure of such change is being
deleted. The Exchange also proposes to delete from the listing
agreement the requirement that a company will maintain an audit
committee in conformity with Exchange requirements.\24\
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\23\ The Commission notes that this requirement will continue to
exist in Section 204.05 of the Manual.
\24\ The Commission notes that this requirement will continue to
exist in Sections 303A.06 and 303A.07 of the Manual. See Notice,
supra, note 3.
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The requirement that a company maintain an office or agency for
specified corporate purposes is being deleted along with the
requirement that a company maintain registrar for specified corporate
purposes. The requirement that a company have on hand at all times a
sufficient supply of certificates to meet the demands for transfer and
provide copies of preferences of stock classes in certain circumstances
is being deleted. The Exchange proposes to delete certain requirements
that a company publish information in connection with certain corporate
actions along with the requirement for domestic companies that a
company solicit proxies for all meetings of stockholders.\25\ The
foreign listing agreement will, however, be modified as noted below to
include a solicitation requirement.
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\25\ The Commission notes that these requirements will continue
to exist in Sections 202.05, 202.06, 202.12 and 402.04 of the
Manual. See Notice, supra note 3.
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Some of the key provisions that will be included in the
reformulated listing agreements for domestic companies and foreign
private issuers are: (i) A certification by the issuer that it
understands and agrees to comply with all current and future rules,
listing standards, procedures and policies of the Exchange; (ii) an
agreement by the issuer to promptly notify the Exchange in writing of
any corporate action or other event which will cause the issuer to
cease to be in compliance with Exchange listing requirements; (iii) the
issuer agrees to maintain a transfer agent and registrar which
satisfies the requirements set forth in Section 601.00 of the Manual et
seq.; (iv) the issuer agrees to file all required periodic financial
reports with the SEC, including annual reports and, where applicable,
quarterly or semi-annual reports, by due date established by the SEC;
(v) the issuer agrees to comply with all requirements under the federal
securities laws and applicable SEC rules; and (vi) that nothing
contained in, or inferred from the listing agreement shall be construed
as constituting a contract for the continued listing of the company's
securities and that the company understands that the Exchange may
suspend the company's securities and commence delisting proceedings
with or without prior notice upon failure of the company to comply with
one or more sections of the listing agreement. In addition to the above
key provisions, foreign private issuers must also agree to: (i) Solicit
proxies from U.S. holders for all meetings of shareholders; and (ii)
not appoint any successor or additional Depository unless such
Depository has entered into a listing agreement with the Exchange.
Listing Application
The Exchange has proposed deleting from the Manual the form of
original listing application contained in Section 903.01 (Listing
Applications). The revised form of original listing application will be
provided on the Exchange's Web site. In general, the information the
Exchange proposes to remove from the Listing Application is being
removed because the Exchange believes such information is available in
the applicant's filings with the SEC, made pursuant to the Exchange Act
or the Securities Act of 1933.\26\ Information being removed from the
Listing Application includes the following: (i) A discussion of the
history and present business of the company; (ii) for public utilities,
a description of the services renders, territory and population
covered, and other segmented information about the utility; (iii) a
description of the physical property of the company; (iv) information
related to affiliated companies; (v) information related to 10% owners
of the company; (vi) a description of control held by another company;
(vii) information related to the management of the company, including
names and titles of all directors and officers; (viii) a summary of the
authorized stock
[[Page 51793]]
capitalization of the company since organization; (ix) a description of
the funded debt of the company and any subsidiaries or controlled
companies; (x) a summary of the rights, preferences, privileges and
priorities of the stock of the company along with any indentures or
restrictions related to the stock; (xi) a description of the number of
employees along with a description of any work stoppages due to labor
disagreements and any pension, retirement, bonus or other plans of
benefit which may be in effect; (xii) a description of shareholder
relations procedures that are followed; (xiii) a description of any
dividends paid; (xiv) a description of the terms and conditions of any
options, purchase warrants, conversion rights or other commitments
which may require the company to issue its securities; (xv) a
description of all pending litigation of a material nature; (xvi)
information relating to the independent public accountants, Chief
Executive Officer, Chief Financial Officer, any potential future
commodity commitments the company may make, and other policies that
could be material in determining the company's financial position; and
(xvii) information relating to the financial statements of the company.
Specific information that will continue to be required as part of the
application, although in a different form, includes: (i) A statement
that the application is the company's original listing application; and
(ii) a description of the shares being offered (number, date of
authorization, and purpose of authorized but unissued shares).
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\26\ 15 U.S.C. 77a. When listing a company in connection with
its initial public offering or other securities offering, the
Exchange relies on the company's Securities Act prospectus that
registered the transaction. See Notice, supra note 3 for details of
the types of filings NYSE relies on for companies transferring from
another market or over-the-counter market, or listing in connection
with certain transactions.
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Transfer Agent Agreements
The Exchange has proposed to delete from the Manual the forms of
transfer agent and registrar agreements currently set forth in Sections
906.01, 906.02 and 906.03 of the Manual. In both of its revised listing
agreements, the Exchange has included an explicit agreement by the
applicant issuer to abide by the transfer agent and registrar
requirements set forth in Section 601.00 of the Manual et seq. The
Exchange does not believe the use of transfer agent and registrar
agreements is necessary because, as is detailed in the Notice, each
provision contained in the transfer agent and registrar agreements can
also be found in Section 601.00 of the Manual et seq. Furthermore, the
Exchange does not believe it needs to enter into agreements with the
transfer agent and registrar because any company whose transfer agent
and registrar do not comply with Section 601.00 of the Manual et seq,
would not be eligible for original, or continued, listing on the
Exchange.
III. Discussion and Commission Findings
After careful review, the Commission finds that the proposed rule
change is consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities
exchange.\27\ Specifically, the Commission finds that the Proposal is
consistent with Section 6(b)(5) of the Act,\28\ in that it is designed
to prevent fraudulent and manipulative acts and practices, to promote
just and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, and to remove impediments to and perfect the mechanisms of
a free and open market and a national market system, and, in general,
to protect investors and the public interest. In particular, as
discussed in more detail below, the Commission believes that the
Proposal is consistent with the investor protection and public interest
goals of the Exchange Act because the rules of the Exchange will
continue to ensure that the NYSE has the information needed, whether
through Commission filings or the applicant issuer, to conduct a
rigorous review of an application for listing. In addition, among other
things, and as discussed in more detail below, the rule changes should
increase transparency in the listing process as well as further
investor protection by codifying into the listing agreement the
requirement that a listed company must comply with all the rules of the
Exchange as well as the federal securities laws and rules thereunder.
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\27\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition and
capital formation. 15 U.S.C. 78c(f).
\28\ 15 U.S.C. 78f(b)(5).
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The Commission finds that the changes proposed to Sections 102.01C,
103.01B, 103.04, 104.01, 104.02, 204.00, 204.04, 204.13, 204.18,
204.23, 703.01 (part 1), 703.02 (part 3), 703.04, 703.05, 703.06,
703.07, 703.08, 703.09, 703.10, 703.11, 703.12, 703.13, 703.14, each of
which provide that the form of listing application and information
regarding supporting documents are available on the Exchange's Web site
or from the Exchange upon request, are consistent with the act in that
they make the necessary forms widely available. The Commission notes,
and the Exchange acknowledged in its original filing, that in the event
that the Exchange makes any substantive changes to the documents being
removed from the Manual,\29\ the Exchange will be required, under
Section 19b(1) of the Act, to submit a rule filing to obtain approval
of such changes.\30\ Furthermore, the Commission notes that the
Exchange has represented that it will maintain all historical versions
of those documents on its Web site after changes have been made in
order to make it possible to review how each document has changed over
time.\31\
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\29\ As noted in the Notice, these documents include the listing
application and the listing agreement. See 78 FR 29165. These
documents were submitted as part of the NYSE's rule filing as
Exhibit 3 and amended Exhibit 3 to the filing.
\30\ See 78 FR 29165. The Exchange represented that in the event
that the Exchange makes any substantive changes (including changes
to the rights, duties, or obligations of the applicant or the
Exchange, or that would otherwise require a rule filing), it will
submit a rule filing to the Commission to obtain approval of such
changes. The Exchange noted that it would not submit a rule filing
if the changes made to a document are typographical or stylistic in
nature.
\31\ The Commission notes that this should allow it to monitor
for compliance with Section 19(b) of the Act.
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The Exchange proposed to add new Section 104.00 describing the
Exchange's free confidential review process. The application process is
further described in Section 702.00 which describes the steps an issuer
must follow in obtaining a clearance letter. Among other clarifications
about the confidential review and listing process, the new language
states that if a company has to pay an initial application fee, that it
will be informed in writing that upon payment of the fee, it will
receive a clearance letter to list. This process should give issuers
certainty that they will not have to pay a non-refundable initial
application fee if they will not be receiving a clearance letter to
list. The Commission finds the addition of rule language describing the
application process to be consistent with the protection of investor
and the public interest in that it makes the listing application
process more transparent for issuers.
The Exchange has proposed to amend Sections 104.01 and 104.02 to
remove the requirement that the copy of the charter and by-laws (or
equivalent constitutional documents) be certified and to require that
specimens of bonds or stock certificates be provided only if they
exist. The Commission finds these changes to be consistent with the
protection of investors and the public interest in that they make it
easier for issuers to comply with the listing application requirements
without weakening the quality of information provided to the Exchange.
The Exchange believes that the provisions the Exchange proposes to
[[Page 51794]]
include in new Section 107.00 are consistent with the protection of
investors and the public interest. The requirements included in
proposed Section 107.00 are all policies the Exchange has long applied
as part of its initial listing process and they are important in
ensuring that only qualified companies are admitted to listing. These
provisions specify the accounting standards upon which a listing
determination will be made, require the issuer's auditor to be PCAOB
registered, require the timely filing of periodic reports, and comply
with any Exchange requests for additional information and
documentation. The Commission finds these provisions to be consistent
with the Act in that they provide the Exchange with additional
abilities to ensure that only qualified companies are listed on the
Exchange.
The Exchange further proposed to change Section 501.01 to require
listed companies to issue new certificates for securities listed on the
Exchange, replacing lost ones upon notification of the loss and receipt
of proper indemnity. Amended Section 501.02(c) would require that,
following the issuance of a duplicate bond issued to replace a lost,
stolen or destroyed bond, should the original bond subsequently appear
in the hands of an innocent bondholder, the original or duplicate bond
must be taken up and cancelled. The Commission notes that these
provisions are identical to those currently set forth in the existing
forms of listing agreements, which the Exchange is proposing now to
delete from the Manual in this filing. The Commission believes these
provisions are consistent with the Act in that they are intended to
protect shareholders and innocent bondholders.
The Exchange has proposed to delete Sections 906.01, 906.02 and
906.03 from the Manual and will no longer be entering into contracts
with transfer agents. As a result, the Exchange proposed to amend
Sections 601.01(A) and (B) to reflect the addition of certain
provisions currently found in Sections 906.01, 906.02 and 906.03. The
provisions being added to Sections 601.01(A) would require that the
transfer agent: (i) Comply with the rules of the Exchange; (ii)
maintain offices for the purposes of transfer activities that are
staffed by experienced personnel; (iii) maintain adequate facilities
for the safekeeping of securities; (iv) maintain facilities to expedite
transfers; (v) appoint an agent for service of process. The provision
being added to Section 601.01(B) would require the transfer agent to
take immediate corrective action on any material weakness specified in
the auditor's report and submit a subsequent letter indicating that the
material weakness has been corrected. The provision also notes that no
approval to act in a dual capacity as transfer agent or registrant will
be approved until the auditor's report has been delivered. The Exchange
is deleting Section 601.03 in its entirety since it merely contains
cross-references to Sections 906.01, 906.02 and 906.03. The listing
agreement will also require the issuer to maintain a registered
transfer agent and a registrar, as necessary, which satisfies the
requirements of Section 601.00. The Commission believes these changes
are consistent with the protection of investors and the public interest
since the specific requirements being deleted will still be included in
Section 601.01 of the Manual. Furthermore, if a listed company does not
use a transfer agent that is in compliance with the provisions
contained in Section 601.01, which includes capital surplus
requirements, such company would no longer meet the requirements set
forth in the Manual and the listing agreement and could be delisted
from the Exchange. The Commission believes this will ensure that a
listed company will have a qualified transfer agent and registrar at
all times while listed on the Exchange, protecting investors and the
public interest.
The Exchange's proposed deletion of Section 702.01 of the Manual in
its current form, as described above, is consistent with the protection
of investors and the public interest, as it simply eliminates a
description which is not accurate as it relates to the listing
application process proposed to be adopted pursuant to this filing. The
indicative timeline for the original listing of securities proposed to
be deleted from Section 702.02 is very approximate and, according to
NYSE, does not necessarily bear any relation to the listing experience
of any individual company. The proposed changes to Sections 702.03,
702.04 and 702.05 of the Manual are consistent with the protection of
investors and the public interest, as the information required to be
included in the listing application that is detailed in these Sections
will either continue to be required, or is readily available from
another source (such as the Commission's EDGAR system).\32\ As a
result, the Exchange does not feel that it is necessary to include
those requirements in the Manual. The Commission believes that the
elimination of these Sections from the Manual is consistent with the
protection of investors and the public interest as it simplifies the
listing process without sacrificing any of the substantive information
available to the Exchange. Furthermore, the elimination of these
provisions could result in a cost savings for the issuer, and therefore
investors, while not resulting in any significant weakening in the
regulatory requirements.
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\32\ See Notice, supra note 3, for a detailed discussion of
these items and whether they are retained or not and, if not, why.
In addition the list of supporting documents to be retained was
submitted as part of the rule filing in Exhibit 3, as amended.
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The Commission believes that the proposed deletions from Sections
703.01 through 703.14, relating to the application process and the
filing of the listing application and any supplemental, or supporting,
documents, is consistent with the Act as the information required to be
provided by these Sections would still be required as part of the
Listing Application or are readily available from other sources (such
as the Commission's EDGAR system).\33\ In addition, the Exchange has
retained certain language in its rules covering the listing application
process and a suggested timetable for filing an application.\34\
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\33\ See Notice, supra note 3. In its filing, NYSE noted that
each subsection of Section 703.00 would be modified to state that
the form of listing application and the information regarding
supporting documents required in connection with supplemental
listing applications and debt securities applications would be
available on the Exchange's Web site or from the Exchange upon
request.
\34\ See, for example, changes to 703.01 (Part 1) and 703.01
(Part 2) being proposed in the Exhibit 5 to the rule filing.
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The Commission believes that the proposed addition to the
Exchange's continued listing criteria, Section 802.01D, of the
stipulation that a listed company could face delisting if it breaches
the terms of its listing agreement is consistent with the Act as it
sets forth specifically in the Manual the Exchange's ability to remove
unsuitable companies from its market for such violations. While, as
NYSE notes, it currently has broad discretion to delist a company when
its continued listing is inadvisable, the Commission believes that
explicitly stating that a violation of the listing agreement may result
in delisting provides transparency to listed companies and investors,
and is consistent with the terms of the listing agreement. The
Commission also believes that the removal of unsuitably listed
companies serves to protect investors and the public interest.
The proposed modifications to the domestic and foreign listing
agreements, and their removal from the Manual, are
[[Page 51795]]
consistent with the protection of investors and the public interest
because: (i) Certain provisions are duplicative and are already
included elsewhere in the Manual; \35\ (ii) certain provisions are no
longer applicable and their removal is consistent with previous actions
by the Commission to eliminate similar requirements; (iii) certain
provisions are no longer relevant in light of changes to the structure
and practices in the securities markets; \36\ or (iv) certain
provisions, as is discussed above, have been added to the Manual or new
agreements. Removing Sections 901.00-901.05, 902.01 and 903 of the
Manual and adding them to the Exchange's Web site are consistent with
the protection of investors and the public interest, as the proposed
changes streamline the Exchange's listing process, making it more
easily understood, while at the same time do not result in a weakening
of the Exchange's regulatory requirements.\37\
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\35\ See Exhibit 3 for a full list of supporting documents still
required. We note that other Exchanges do not list the supporting
documents required to be included with an application for listing.
\36\ For example, public companies now make a significant number
of disclosure via the Commission's EDGAR system, including the
disclosure of the public company's annual and quarterly financial
statements. NYSE has represented that, in addition to its other
surveillance activities, it relies, in part, on information
available in EDGAR when monitoring companies for compliance with
listing standards and other Exchange rules, and when evaluating a
prospective company for listing.
\37\ The Commission notes that making certain agreements
available via the Exchange's Web site would be consistent with the
manner in which similar agreement are made available by other
national securities exchanges.
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The Commission notes that certain key provisions, discussed above,
are either being added or will remain in the reformulated listing
agreements. These provisions include: (i) An acknowledgement by the
issues that a violation of all current and future rules, listing
standards, procedures and policies of the Exchange along with a failure
by the issuer to promptly notify the Exchange of any corporation action
or other event that causes the issuer to cease to be in compliance with
the Exchange's listing requirements could result in removal of the
issuer's securities from listing and trading on the Exchange; (ii) a
requirement that the issuer file all required periodic financial
reports with the Commission, including annual reports and, where
applicable, quarterly or semi-annual reports by the due dates
established by the Commission; and (iii) a requirement that the issuer
agrees to comply with all requirements under the federal securities
laws and applicable Commission rules. The Commission believes that the
inclusion of these provisions is consistent with the Act in that each
of these provisions aids in the protection of investors and the public
interest. In addition, the Commission notes that the listing agreement
for foreign private issuers includes the requirement that foreign
private issuers solicit proxies from U.S. holders for all meetings of
shareholders.\38\ The Commission believes that this is an important
provision consistent with the Act as it provides U.S. investors with
information relating to the meetings of shareholders for companies that
are not required to follow U.S. proxy rules, thus aiding in the
protection of investors and the public interest.\39\ The Commission
believes that a listed company should deliver the proxy statement in a
sufficient period of time before the shareholder meeting so as to allow
shareholders time to receive, review and vote on the information set
forth in the proxy materials and annual report.\40\ In other words, the
Commission expects that, in order to satisfy this requirement of the
listing agreement, foreign private issuers would solicit proxies from
U.S. investors sufficiently in advance of the shareholder meeting so as
to allow U.S. investors a reasonable opportunity to vote.\41\
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\38\ See also, NYSE Rule 402 and Section 203.01 of the Manual
which applies to all listed companies, foreign and domestic.
\39\ The Commission notes that other exchanges do not have
specific requirements relating to the timeframes under which proxies
must be provided to investors. Instead, exchanges generally rely on
the rules of the Commission or the jurisdiction under which they
have been incorporated.
\40\ See Securities Exchange Act Release No. 33768 (March 16,
1994).
\41\ The Commission notes that domestic issuers already have to
do so under Commission proxy rules. The Commission, however, also
notes that while foreign private issuers are not required to follow
proxy rules promulgated by the Commission, Section 4 of the Listing
Manual contains certain provisions regarding shareholders' meetings
and proxies. See 17 CFR 240.3a-12-3(b).
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One key change being made to the listing agreements is the removal
of certain requirements relating to disclosures about the issuers
business, financial and accounting policies. Specifically, the Exchange
has proposed to remove from the listing agreement the requirement that
an issuer disclose how long the independent public accountant has
audited the company's accounts; whether their audit is continuous or
periodic, or the extent of their authority. However, the Commission
notes that Regulation S-X contains requirements relating to auditor
independence that provide assurances as to the independence and
qualifications of the auditor that, in the Commission's opinion, more
than adequately replace the requirements being deleted by the proposal.
As a result, the Commission believes that these changes are consistent
with the Act.
Many of the provisions that are being removed from the listing
agreement, as noted above, are being removed because they are already
included in other sections of the Manual or NYSE believes it no longer
needs the issuer to provide additional information because it is
obsolete or already receives the information through Commission filings
and its monitoring of such through EDGAR. For example, one eliminated
provision had required companies to provide four copies of all material
mailed to stockholders with respect to amendments or proposed
amendments to its certificate of incorporation. NYSE indicated that it
has other rules that require companies to provide it with copies of
notices to shareholders concerning charter amendments. In addition,
NYSE noted that its rules require listed companies to submit to it
copies of all proxy material submitted to shareholders. While the
Commission notes that the current requirement in the listing agreement
requires copies of all communications to shareholders concerning an
amendment to its certificate of incorporation, we are satisfied that
the requirements in NYSE's rules should provide it with adequate notice
of changes to a company's certificate of incorporation for purposes of
monitoring compliance with Exchange rules and corporate actions that
could impact the trading of the company's securities. Another example
concerns the deletion, from the listing agreement, of the requirement
that a listed company promptly notify the Exchange of any action to fix
a stockholders' record date, or to close the transfer books, and that
it will give the Exchange at least ten days' notice in advance of such
record date or closing of the books. In support of deleting these from
the listing agreement the Exchange cited several existing Sections of
the Manual that contain these requirements and also stated that it
notifies companies of these requirements in a letter sent annually to
all listed companies. The Commission continues to believe that
notification to the Exchange 10 days in advance of fixing a date for
taking a record of shareholders and the closing of the transfer books
is important. As a result, the deletion from the listing agreement
simply recognizes that this is already covered elsewhere in NYSE's
rules.
Other provisions of the listing agreement that are being permitted
to be deleted, such as a requirement that a
[[Page 51796]]
listed company will not make any substantial change in accounting
methods without notifying the Exchange and disclosing the effect of any
such change in its next interim and annual report to its stockholders,
are being done in recognition of the fact that, under Commission
disclosure rules, any changes in accounting methods and its effect on
the company would have to be disclosed in Commission filings, such as
10-Ks and 10-Qs. Exchange monitoring of such filings, as well as
material news requirements under Exchange rules, should give the
Exchange the information necessary to monitor for compliance with
Exchange rules, and listing standards, along with any potential trading
impact. As a result, the Commission believes it is consistent with
investor protection and the public interest to remove this provision
from the listing agreement. Finally, some of the requirements in the
current listing agreement are being updated to reflect current
requirements. For example, in terms of publishing quarterly statements
of earnings to the same degree of consolidation as in the annual
report, the Exchange is adding a provision that the listed company
agrees to file all required periodic financial reports with the
Commission, including annual reports and, where applicable, quarterly
or semi- annual reports, by the due dates established by the
Commission. In summary, the Commission notes that provisions being
deleted from the Manual because they are covered elsewhere under
Exchange rules, or under Commission requirements, are not meant to
provide support that the Commission no longer believes these provisions
are necessary. Rather, based on the NYSE's filing, we are satisfied
these substantive provisions are covered elsewhere in Exchange or
Commission rules.
The proposed deletions of Sections 904.01 through 904.03 of the
Manual are consistent with the protection of investors and the public
interest, as: (i) The Stock Distribution Schedule in Section 904.01 is
obsolete because the Exchange has indicated it obtains the distribution
information it needs from the company's transfer agent; (ii) the
information required by Section 904.02 would still be required in the
revised listing application.
The proposed modifications to the listing application are
consistent with the protection of investors and the public interest,
because the Exchange is simply eliminating from the application
information requirements that are duplicative of disclosure
requirements under the Federal securities laws or where similar
disclosure provisions under the Federal securities laws provide
information sufficient for the Exchange to make informed determinations
about the suitability of issuers for listing.
A significant number of changes are technical in nature and relate
to updating internal cross-references and rule numbering as a result of
the changes described above. As a result, the Commission finds these
changes consistent with the act as they work to protect investors and
the public interest by removing confusion in the application and
organization of the Manual.
IV. Accelerated Approval of Proposed Rule Changes, as Modified by
Amendment No. 1
The Amendment No. 1 revised the proposal to, among other things,
ensure that the rule text provided is properly marked, therefore
reducing confusion when determining which rule changes have been
proposed and remove unnecessary provisions from the listing agreements.
In addition, changes proposed in Amendment No. 1 will clarify and
strengthen the Exchange's proposal and listing application process, and
avoid redundancies and ambiguities that exist in the original filing,
thereby making the listing process more streamlined and efficient.
Accordingly, the Commission also finds good cause, pursuant to Section
19(b)(2) of the Act,\42\ for approving the proposal, as modified by
Amendment No. 1, prior to the 30th day after the date of publication of
notice in the Federal Register.
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\42\ 15 U.S.C. 78s(b)(2).
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V. Conclusion
It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\43\ that the proposed rule changes (SR-NYSE-2013-33), as modified
by the Amendment No. 1, be, and hereby are, approved on an accelerated
basis.
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\43\ 15 U.S.C. 78s(b)(2).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\44\
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\44\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-20346 Filed 8-20-13; 8:45 am]
BILLING CODE 8011-01-P