Notice2024-16659
Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Amendment No. 2 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 2, To Amend Section 802.01D of the NYSE Listed Company Manual Concerning the Suspension and Delisting of a Listed Company That Has Changed Its Primary Business Focus
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 30, 2024
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 89 Issue 146 (Tuesday, July 30, 2024)</title>
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[Federal Register Volume 89, Number 146 (Tuesday, July 30, 2024)]
[Notices]
[Pages 61207-61210]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-16659]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-100585; File No. SR-NYSE-2024-21]
Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing of Amendment No. 2 and Order Granting Accelerated
Approval of a Proposed Rule Change, as Modified by Amendment No. 2, To
Amend Section 802.01D of the NYSE Listed Company Manual Concerning the
Suspension and Delisting of a Listed Company That Has Changed Its
Primary Business Focus
July 24, 2024.
I. Introduction
On April 4, 2024, New York Stock Exchange LLC (``NYSE'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to permit the suspension and delisting of a listed
company that has changed its primary business focus. On April 17, 2024,
the Exchange filed Amendment No. 1 to the proposed rule change, which
replaced and superseded the proposed rule change as originally
filed.\3\ The proposed rule change, as modified by Amendment No. 1, was
published for comment in the Federal Register on April 25, 2024.\4\ On
June 6, 2024, the Commission designated a longer period for Commission
action on the proposed rule change.\5\ On July 17, 2024, the Exchange
filed Amendment No. 2 to the proposed rule change, which amended and
superseded the original filing, as modified Amendment No. 1, in its
entirety.\6\ The Commission has received no comment letters on the
proposal. The Commission is publishing this notice to solicit comments
on Amendment No. 2 from interested persons and is approving the
proposed rule change, as modified by Amendment No. 2, on an accelerated
basis.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ The full text of Amendment No. 1 is available on the
Commission's website at: <a href="https://www.sec.gov/comments/sr-nyse-2024-21/srnyse202421.htm">https://www.sec.gov/comments/sr-nyse-2024-21/srnyse202421.htm</a>.
\4\ See Securities Exchange Act Release No. 99992 (April 19,
2024), 89 FR 31783 (``Notice'').
\5\ See Securities Exchange Act Release No. 100293 (June 6,
2024), 89 FR 49926 (June 12, 2024) (extending the time period for
Commission action to July 24, 2024).
\6\ In Amendment No. 2, the Exchange revised the proposal to:
(i) include a requirement that any company that undertakes a change
in its primary business focus must promptly provide notice of such
change in writing to the Exchange; (ii) amend the proposed rule text
in relation to the additional factors the Exchange will consider to
delete the phrase indicating that the Exchange will consider those
additional factors ``where appropriate''; (iii) provide an
explanation of why the Exchange will consider such additional
factors; (iv) state that the Exchange will undertake its continued
listing analysis regardless of whether the listed company provides
the required notification to the Exchange; and (v) conform Form 19b-
4 to the changes being made to the proposed rule text. Amendment No.
2 is available at <a href="https://www.sec.gov/comments/sr-nyse-2024-21/srnyse202421.htm">https://www.sec.gov/comments/sr-nyse-2024-21/srnyse202421.htm</a>.
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II. The Exchange's Description of the Proposed Rule Change, as Modified
by Amendment No. 2 <SUP>7</SUP>
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\7\ This Section II reproduces Amendment No. 2, as filed by the
Exchange.
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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 those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change
1. Purpose
SR-NYSE-2024-21 was originally filed on April 4, 2024. On April 17,
2024, the Exchange filed Amendment No. 1 to the proposed rule change,
which replaced and superseded the proposed rule change as originally
filed. The proposed rule change, as modified by Amendment No. 1, was
published for comment in the Federal Register on April 25, 2024.\8\
This Amendment No. 2 to SR-NYSE-2024-21 replaces and supersedes the
original filing as modified by Amendment No. 1 in its entirety.\9\
Amendment No. 2 amends Amendment No. 1 to: (i) amend the proposed rule
text to include a requirement that any company that undertakes a change
in its primary business focus must promptly provide notice of such
change in writing to the Exchange; (ii) amend the proposed rule text in
relation to the additional factors the Exchange will consider to delete
the phrase indicating that the Exchange will consider those additional
factors ``where appropriate''; (iii) amend the Purpose section of the
filing to provide an explanation of why the Exchange will consider such
additional factors; (iv) amend the Purpose section to note that the
Exchange will undertake its continued listing analysis regardless of
whether the listed company provides the required notification to the
Exchange; and (v) amend the Purpose section to conform it to the
changes being made to the proposed rule text.
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\8\ See Securities Exchange Act Release No. 99992 (April 19,
2024), 89 FR 31783.
\9\ See SR-NYSE-2024-21 (April 4, 2024).
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It has been the Exchange's experience that listed companies
occasionally change the focus of their operations from the business
they were engaged in at the time of initial listing to a business line
that is completely unrelated or that was not material at the time of
its original listing. The Exchange is concerned that, in such
circumstances, investors who acquired the company's stock prior to this
change in operations (including, in many cases, in connection with the
company's initial public offering) may have made their investment
decision based on the company's disclosure about its original business
and might not have made their investment if they had been aware of how
the company would change. In addition, a wholesale change in business
operations may give rise to a concern about the suitability for listing
[[Page 61208]]
of the company had it been in engaged in that line of business at the
time of its application for listing. The Exchange notes that, in some
circumstances, there has been significant downward price movement
subsequent to such a change in business focus, which resulted in
significant investor losses and an inability to meet exchange continued
listing standards.\10\
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\10\ For example, Bit Brother, a company listed on Nasdaq,
initially focused on selling tea products but ultimately changed its
business line to crypto. After three reverse splits, one of which
was quite large (1000:1), the company was still unable to regain
sustained compliance with listing standards. The stock was delisted
from Nasdaq in February 2024. See <a href="https://www.wsj.com/finance/stocks/as-trading-frenzies-grip-penny-stocks-criticism-of-nasdaq-grows-8bd4118b">https://www.wsj.com/finance/stocks/as-trading-frenzies-grip-penny-stocks-criticism-of-nasdaq-grows-8bd4118b</a> (Feb 23, 2024).
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In light of the foregoing, the Exchange proposes to amend Section
802.01D of the Manual (``Other Criteria'') to include a new paragraph
(``Change in Primary Business Focus'') providing that the Exchange may
in its sole discretion subject a listed company to immediate suspension
and delisting in accordance with the procedures set forth in Section
804.00 of the Manual if that listed company has changed its primary
business focus to a new area of business that it was not engaged in at
the time of its original listing or which was immaterial to its
operations at the time of its original listing. The proposed rule text
provides that any company that undertakes a change in its primary
business focus must promptly provide notice of such change in writing
to the Exchange. The Exchange will undertake the continued listing
analysis and potentially take delisting action under the proposed
provision regardless of whether the listed company complies with its
obligation to provide written notification to the Exchange.
Upon becoming aware of such a change in the company's primary
business focus, by notification from the listed company or otherwise,
the Exchange's Staff would conduct a thorough assessment of the
company's suitability for continued listing in light of such change.
The Exchange would focus its analysis on whether it would have accepted
the listed company for initial listing if it had been engaged in its
modified business at the time of original listing. The Exchange notes
that this analysis will focus on the qualitative aspects of the
company's suitability for listing and will not entail an application of
the quantitative standards for initial listing. In conducting this
analysis, the Exchange would take into consideration other changes that
may have occurred in connection with the change in the company's
primary business focus, including in all cases, but not limited to, any
changes in the management, board of directors, voting power, ownership,
and financial structure of the company. The Exchange notes that the
additional factors enumerated in the proposed rule text are consistent
with areas that would be part of any initial listing review and are
therefore a necessary part of any consideration of whether the company
would have been suitable for initial listing in the form it took after
its change of primary business focus.
The Exchange acknowledges that seeking to suspend and delist a
company's stock under this revised rule would be an extraordinary
action. The Exchange therefore anticipates seldom relying on this new
discretionary authority, and only after thorough analysis of all
relevant facts and circumstances.
The lead-in to Section 802.01D provides that if any of the factors
set forth in 802.01D apply to a listed company, the Exchange may in its
sole discretion subject the company to the procedures outlined in
Paras. 802.02 and 802.03, which provide noncompliant companies with an
opportunity to cure their deficiencies. The Exchange proposes to add a
parenthetical to this lead-in language to specify that, instead of
applying the procedures outlined in Paras. 802.02 and 802.03, the
Exchange will instead commence immediate suspension and delisting
procedures if the individual paragraph of Section 802.01D so
specifies). This proposed parenthetical provision in the lead-in to
Section 802.01D will make the lead-in consistent with the Exchange's
proposal to include a provision in the proposed new paragraph of that
rule providing that any listed company that is deemed to be unsuitable
for continued listing because of a change of business operations will
be subject to immediate suspension and delisting procedures.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\11\ in general, and furthers the
objectives of Section 6(b)(5) of the Act \12\ in particular, in that it
is designed to promote just and equitable principles of trade, to
foster cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest
and is not designed to permit unfair discrimination between customers,
issuers, brokers, or dealers.
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\11\ 15 U.S.C. 78f(b).
\12\ 15 U.S.C. 78f(b)(5).
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The Exchange believes it is consistent with the protection of
investors to amend Section 802.01D to provide the Exchange with the
discretion to immediately commence suspension and delisting procedures
in accordance with Section 804.00 of the Manual with respect to a
listed company that has changed its primary business focus to a new
area of business that it was not engaged in at the time of its original
listing or which was immaterial to its operations at the time of its
original listing. The Exchange notes that investors who acquired the
company's stock prior to this change in operations (including, in many
cases, in connection with the company's initial public offering) may
have made their investment decision based on the company's disclosure
about its original business and might not have made their investment if
they had been aware of how the company would change. In addition, the
Exchange is concerned that a listed company may change its business
operations to a line of business that would have given rise to a
concern about the suitability for listing of the company had it been in
engaged in that line of business at the time of its application for
listing. The Exchange notes that taking delisting action in such cases
would be discretionary and that the Exchange would undertake such
action only after a careful analysis of the company's suitability for
continued listing, taking into account all relevant factors, including,
but not limited to, changes in the management, board of directors,
voting power, ownership, and financial structure of the company. In
making these determinations, the Exchange would focus its analysis on
whether it would have accepted the listed company for initial listing
if it had been engaged in its modified business at the time of original
listing. The Exchange notes that this analysis will focus on the
qualitative aspects of the company's suitability for listing and will
not entail an application of the quantitative standards for initial
listing. The Exchange believes that the proposed requirement that any
listed company that undertakes a change in its primary business focus
must promptly provide notice of such change in writing to the Exchange
will enable the Exchange to more systematically identify circumstances
where it is necessary to consider the
[[Page 61209]]
appropriateness for continued listing of such companies.
The proposed inclusion of new parenthetical language in the lead-in
to Section 802.01D makes that lead-in consistent with the proposed new
paragraph with respect to a company's change in business, as it
provides that the Exchange can immediately suspend and delist a company
under Section 802.01D where the applicable paragraph of the rule so
provides, as is the case with the proposed new provision with respect
to changes in business operations.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Exchange notes that
there are several listing venues and that any company that the Exchange
deemed unsuitable for continued listing under the proposed rule could
apply for listing on one or more other exchanges.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were solicited or received with respect to the
proposed rule change.
III. Discussion and Commission Findings
After careful review, the Commission finds that the proposed rule
change, as modified by Amendment No. 2, is consistent with the
requirements of the Act and the rules and regulations thereunder
applicable to a national securities exchange.\13\ In particular, the
Commission finds that the proposed rule change, as modified by
Amendment No. 2, is consistent with Section 6(b)(5) of the Act,\14\
which requires, among other things, that the rules of a national
securities exchange be 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, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest;
and are not designed to permit unfair discrimination between customers,
issuers, brokers, or dealers. In addition, the Commission finds that
the proposed rule change is consistent with Section 6(b)(7) of the
Act,\15\ which requires, among other things, that the rules of a
national securities exchange provide a fair procedure for the
prohibition or limitation by the exchange of any person with respect to
access to services offered by the exchange.
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\13\ 15 U.S.C. 78f(b). In approving this proposed rule change,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
\14\ 15 U.S.C. 78f(b)(5).
\15\ 15 U.S.C. 78f(b)(7).
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The development and enforcement of meaningful listing standards for
a national securities exchange is of critical importance to financial
markets and the investing public.\16\ Meaningful listing standards are
especially important given investor expectations regarding the nature
of companies that have achieved an exchange listing for their
securities, and the role of an exchange in overseeing its market and
ensuring compliance with its listing standards.\17\
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\16\ See e.g., Securities Exchange Act Release Nos. 99238 (Dec.
26, 2023), 89 FR 113, 116 (Jan. 2, 2024) (SR-NYSE-2023-34) and
81856, (Oct. 11, 2017), 82 FR 48296, 48298 (October 17, 2017) (SR-
NYSE-2017-31). Among other things, the Commission has stated that
listing standards provide the means for an exchange to screen
issuers that seek to become listed, and to provide listed status
only to those that are bona fide companies and that have or will
have sufficient public float, investor base, and trading interest
likely to generate depth and liquidity sufficient to promote fair
and orderly markets. See e.g., Securities Exchange Act Release No.
93256 (Oct. 4, 2021), 86 FR 56338, 56342 (Oct. 8, 2021) (``SR-
NASDAQ-2021-007 Approval Order'').
\17\ See SR-NASDAQ-2021-007 Approval Order at id. The Commission
has also stated that adequate listing standards, by promoting fair
and orderly markets, are consistent with Section 6(b)(5) of the Act,
in that they are, among other things, designed to prevent fraudulent
and manipulative acts and practices, promote just and equitable
principles of trade, and protect investors and the public interest.
See SR-NASDAQ-2021-007 Approval Order, id. at 56342 note 59.
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As described above, the Exchange proposes to amend Section 802.01D
to be able to immediately commence suspension and delisting procedures
in accordance with Section 804.00 of the Manual with respect to a
listed company that it determines to be unsuitable for continued
listing due to a change in its primary business focus to a new area of
business that is substantially different from the business it was
engaged in at the time of its original listing or which was immaterial
to its operations at the time of its original listing. According to the
Exchange, it is concerned that some investors may have made their
investment decision in a listed company based on the company's
disclosures about its original business and might not have made their
investment if they had been aware of how the company would change its
business focus.\18\ The Exchange further states in support of its
proposal that changes in a company's primary business focus can raise
concerns about the company's suitability for continued listing because
it may not have approved initial listing of the company's security
based on the changed business focus had it been in place at the time of
application for initial listing.\19\ The Commission believes that the
Exchange's proposal will help to address these concerns and further the
protection of investors and the public interest, consistent with
Section 6(b)(5) of the Act, by ensuring that a listed company that has
substantially changed its primary business focus from when it was
originally listed will be reviewed for continued listing under the new
standard.
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\18\ See Notice, supra note 4 at 31784. The Exchange notes that,
in some circumstances, there has been significant downward price
movement subsequent to a company's change in business focus, which
resulted in significant investor losses and an inability to meet
exchange continued listing standards. Id. See also, supra note 10
and accompanying text. As a result, primary business focus changes
of a listed company can potentially impact the Exchanges ability to
maintain fair and orderly markets.
\19\ See Notice, supra note 4 at 31784.
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The Commission also believes that the proposed notice requirement
for any company that has changed its primary business focus to a new
area of business that is substantially different from the business it
was engaged in at the time of its original listing or which was
immaterial to its operations at the time of its original listing will
allow the Exchange to more efficiently identify for review those
companies that may no longer be suitable for continued listing. While
the Commission expects listed companies to comply with the written
notification requirement,\20\ if the Exchange becomes aware of a change
in a company's primary business focus by means other than a company's
written notification, the Commission would expect the Exchange to do a
review of a company under the new rule irrespective of how the change
came to its attention. In this regard, the Exchange stated that it
would conduct a thorough assessment of a company's suitability for
continued listing upon becoming aware of a change in the company's
primary business focus by notification or otherwise.\21\
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\20\ Listed companies who would meet the requirements to provide
written notification to the Exchange under the new provision but do
not do so would be considered non-compliant with the notification
requirement.
\21\ See Notice, supra note 4 at 31784.
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The Commission also believes that the Exchange's discretion to
initiate
[[Page 61210]]
suspension and delisting procedures for a company that has
substantially changed its primary business focus has been reasonably
tailored to allow the Exchange to be able to distinguish the more
significant instances of business purpose change that would raise
concerns about continued listing and which could, depending on the
circumstances, negatively impact the company's financial strength and
outlook.\22\ In particular, the proposed rule states that the Exchange
will focus its analysis of the company's suitability for continued
listing on whether it would have accepted the listed company for
initial listing if it had been engaged in its modified business at the
time of original listing.\23\ In conducting this analysis, the proposed
rule also specifies certain criteria that the Exchange will consider in
assessing a company's suitability for continued listing, such as
changes in the management, board of directors, voting power, ownership,
and financial structure of the company.\24\ The Exchange notes that
these additional factors are consistent with areas that would be part
of any initial listing review and that changes in these areas may have
occurred in connection with changes in a company's primary business
focus that should be considered by the Exchange.\25\ Moreover, the
Exchange acknowledges that seeking to suspend and delist a company's
stock under this revised rule would be an extraordinary action.\26\ The
Commission expects that the Exchange will therefore carefully utilize
this new authority, and, as the Exchange states, only after a thorough
analysis of all relevant facts and circumstances.\27\
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\22\ See id.
\23\ See id. As discussed above, the review of a company under
the new standard is based on the Exchange's assessment of the
company's suitability for continued listing given the change in its
primary business focus. Continued listing quantitative standards
will continue to apply to a company that is being reviewed under the
new standard just as with any company already listed on the
Exchange. See id.
\24\ See proposed Section 801.01D.
\25\ See Amendment No. 2, supra note 6 at 5.
\26\ See Notice, supra note 4 at 31784.
\27\ See id.
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Finally, the Commission also notes that a company that is subject
to suspension and delisting under this new provision would be entitled
to a review of the delisting determination under the procedures set
forth in Section 804.00 of the Manual. The Commission believes that
this will provide, consistent with Section 6(b)(7) of the Act, a fair
procedure for review of a suspension and delisting of a company under
the new provision.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change, as modified by Amendment No. 2, is consistent with the Act.
Comments may be submitted by any of the following methods:
Electronic Comments
<bullet> Use the Commission's internet comment form (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#6b191e070e46080406060e051f182b180e08450c041d"><span class="__cf_email__" data-cfemail="0a787f666f27696567676f647e794a796f69246d657c">[email protected]</span></a>. Please include
file number SR-NYSE-2024-21 on the subject line.
Paper Comments
<bullet> 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-2024-21. This file
number should be included on the subject line if email 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 website (<a href="https://www.sec.gov/rules/sro.shtml">https://www.sec.gov/rules/sro.shtml</a>). 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 website viewing and
printing 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. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-NYSE-2024-21 and should be
submitted on or before August 20, 2024.
V. Accelerated Approval of Proposed Rule Change, as Modified by
Amendment No. 2
The Commission finds good cause, pursuant to Section 19(b)(2) of
the Act,\28\ to approve the proposed rule change, as modified by
Amendment No. 2, prior to the 30th day after the date of publication of
Amendment No. 2 in the Federal Register. As discussed above, in
Amendment No. 2, the Exchange revised the proposal to: (i) include a
requirement that any company that undertakes a change in its primary
business focus must promptly provide notice of such change in writing
to the Exchange; (ii) amend the proposed rule text in relation to the
additional factors the Exchange will consider to delete the phrase
indicating that the Exchange will consider those additional factors
``where appropriate''; (iii) provide an explanation of why the Exchange
will consider such additional factors; (iv) state that the Exchange
will undertake its continued listing analysis regardless of whether the
listed company provides the required notification to the Exchange; and
(v) amend the Form 19b-4 to conform it to the changes being made to the
proposed rule text. The Commission believes that these revisions
strengthen the proposal and provide greater clarity on the application
of the proposal and its scope, and the Exchange's review of a company
that has changed its primary business focus to a new area of business
that is substantially different from the business it was engaged in at
the time of its original listing or which was immaterial to its
operations at the time of its original listing. The additional
explanation in support of the proposal as well as the amended rule
language in Amendment No. 2 assist the Commission in evaluating the
Exchange's proposal and in determining that it is consistent with the
Act.
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\28\ 15 U.S.C. 78f(b)(2).
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Accordingly, the Commission finds good cause for approving the
proposed rule change, as modified by Amendment No. 2, on an accelerated
basis, pursuant to Section 19(b)(2) of the Act.
VI. Conclusion
It is therefore ordered, pursuant to Section 19(b)(2) of the Act
\29\ that the proposed rule change (SR-NYSE-2024-21), as modified by
Amendment No. 2, be, and hereby is, approved.
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\29\ Id.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\30\
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\30\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-16659 Filed 7-29-24; 8:45 am]
BILLING CODE 8011-01-P
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