On October 20, 2005, the New York Stock Exchange, Inc. (n/k/a New York Stock Exchange LLC) (“NYSE” or “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”)
Section 12 of the Act
In the case of exchange-initiated delistings, amended SEC Rule 12d2–2(b) states that a national securities exchange may file an application on Form 25 to strike a class of securities from listing and/or withdraw the registration of such securities, in accordance with its rules, if the rules of such exchange, at a minimum, provide for:
(i) Notice to the issuer of the exchange's decision to delist its securities;
(ii) An opportunity for appeal to the exchange's board of directors, or to a committee designated by the board; and
(iii) Public notice of the national securities exchange's final determination to remove the security from listing and/or registration, by issuing a press release and posting notice on its Web site. Public notice must be disseminated no fewer than 10 days before the delisting becomes effective pursuant to amended SEC Rule 12d2–2(d)(1), and must remain posted on its Web site until the delisting is effective.
The Exchange proposes to amend sections 804.00 and 806.02 of the Exchange's Listed Company Manual. With respect to the above requirements set forth in amended SEC Rule 12d2–2(b), NYSE rules currently provide the requisite issuer notice as well as an opportunity for appeal to a committee designated by the Board.
In the case of an issuer-initiated delisting, the NYSE is retaining section 806.02 of the NYSE Listed Company Manual that currently provides that an issuer may delist a security after its board approves the action and the issuer furnishes the Exchange with a copy of the board resolution authorizing such delisting certified by the secretary of the issuer. The Exchange's proposal would clarify that the issuer must comply with all of the requirements of amended SEC Rule 12d2–2(c) and thereafter file a Form 25 with the Commission to withdraw its security from listing and registration. The Exchange's proposal would also add a new requirement that the issuer must file a copy of Form 25 with the Exchange immediately after submitting the Form 25 with the Commission.
In addition to the proposed changes to comply with amended SEC Rule 12d2–2, the Exchange proposes to amend section 804.00 to delete references therein to “public Directors” and “industry Directors,” as these terms relate to a historical governance structure of the Exchange that no longer exists.
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
Amended SEC Rule 12d2–2(b) states that a national securities exchange may file an application on Form 25 to strike a class of securities from listing and/or withdraw the registration of such securities, in accordance with its rules, if the rules of such exchange, at a minimum, provide for notice to the issuer of the exchange's decision to delist, opportunity for appeal, and public notice of the exchange's final determination to delist. The Commission believes that the Exchange's current rules and proposal comply with the dictates of amended SEC Rule 12d2–2(b).
NYSE rules currently provide for the requisite issuer notice as well as an opportunity for appeal to a committee designated by the Board. Specifically, if the Exchange staff should determine to delist a security, it will notify the issuer in writing of the basis of its determination. Such notice will inform the issuer that the issuer may appeal staff delisting determinations to a committee of the Board of Directors of the Exchange.
In the case of an issuer-initiated delisting, section 806.02 of the NYSE Listed Company Manual currently provides that an issuer may delist a security after its board approves the action and the issuer furnishes the Exchange with a copy of the board resolution authorizing such delisting certified by the secretary of the issuer. The Exchange's proposal would clarify that the issuer must comply with all of the requirements of amended SEC Rule 12d2–2(c) and thereafter file a Form 25 with the Commission to withdraw its security from listing and registration. The Commission believes that the amendments will fully inform issuers of the requirements for voluntary delisting of their securities under NYSE rules and federal securities laws.
The proposal also sets forth a new requirement not in amended SEC Rule 12d2–2 that would require the issuer to notify the Exchange that it has filed Form 25 with the Commission contemporaneously with such filing. This requirement will allow the Exchange to be fully informed of the actual filing of a Form 25 and be prepared to take timely action to delist the security in accordance with the filing of the Form.
In addition, amended SEC Rule 12d2–2(c)(2)(iii) requires a company seeking voluntary delisting to publish notice of its intention, along with its reasons for delisting, via a press release and Web site. In such cases, the Commission expects that a company below Exchange continued listing standards, in complying with amended SEC Rule 12d2–2(c)(2)(iii), would disclose in its public notice that it has fallen below continued listing standards, including the specific listing policies and standards which it does not comply with, and is voluntarily delisting from the Exchange.
Pursuant to section 19(b)(2) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning Amendment No. 2, including whether Amendment No. 2 is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–NYSE–2005–72. 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 (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.