[Federal Register Volume 67, Number 7 (Thursday, January 10, 2002)]
[Notices]
[Pages 1373-1376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-632]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-45235; File No. SR-Amex-2001-100]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change and Amendment Nos. 1 and 2 Thereto by the American Stock 
Exchange LLC Relating to the Initial and Annual Listing Fees, Fees for 
Listing Additional Shares and the One-Time Charge for Listing Shares 
Issued in Connection With Acquisition of a Listed Company by an 
Unlisted Company

January 4, 2002.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on December 10, 2001, the American Stock Exchange LLC (``Amex'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I, II, and III below, which Items have been prepared by the 
Exchange. The Exchange filed Amendment No. 1 to the proposed rule 
change on December 26, 2001.\3\ The Exchange filed Amendment No. 2 to 
the proposed rule change on December 26, 2001.\4\ The Commission is 
publishing this notice to solicit comments on the proposed rule change 
from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See letter from Michael J. Ryan, Executive Vice President 
and General Counsel, Amex, to Nancy Sanow, Assistant Director, 
Division of Market Regulation (``Division''), Commission, dated 
December 13, 2001 (``Amendment No. 1''). In Amendment No. 1, the 
Amex requested that Commission grant accelerated approval to the 
proposed rule change.
    \4\ See letter from Michael J. Ryan, Executive Vice President 
and General Counsel, Amex, to Marc McKayle, Special Counsel, 
Division, Commission, dated December 20, 2001 (``Amendment No. 2''). 
In Amendment No. 2, the Amex stated that it seeks to implement the 
revised Annual Fee schedule under Section 141 as of January 1, 2002 
and the revisions to Sections 140, 142, 144 and 341 upon Commission 
approval. In addition, the Amex made a minor correction to the 
proposed rule change, clarified that it will not reimburse part of 
the annual fee paid under Section 141 to issuers whose securities 
are removed from listing and registration for the portion of the 
year remaining after the date of removal, and added additional 
reasons for amending the Refund of Listing Fees under Section 144.
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I. Self-Regulatory Organization's Statement of the Terms of 
Substance of the Proposed Rule Change

    The Exchange proposes to amend Sections 140, 141, 142, 144 and 341 
of the Amex Company Guide relating to the Exchange issuer initial 
listing fee,

[[Page 1374]]

annual fee, the fee for listing additional shares.
    The text of the proposed rule change appears below. New text is in 
italics; deleted text is in [brackets].

Sec. 140. Original Listing Fees

                              Stock Issues
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Less than 5,000,000 shares....................................  $30,000
5,000, 000 to 10,000,000 shares...............................   40,000
10,000,001 to 15,000,000 shares...............................   50,000
In excess of 15,000,000 shares................................    60,000
------------------------------------------------------------------------


  Issues Listed Under Sec.  106 (Currency and Index Warrants) and Sec.
                         107 (Other Securities)
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Less than 1,000,000 shares....................................    $5,000
1,000,000 to 2,000,000 shares.................................    10,000
2,000,001 to 3,000,000 shares.................................    15,000
3,000,001 to 4,000,000 shares.................................    17,500
4,000,001 to 5,000,000 shares.................................    20,000
5,000,001 to 6,000,000 shares.................................    22,500
6,000,001 to 7,000,000 shares.................................    25,000
7,000,001 to 8,000,000 shares.................................    27,500
8,000,001 to 9,000,000 shares.................................    30,000
9,000,001 to 10,000,000 shares................................    32,500
10,000,001 to 15,000,000 shares...............................    37,500
In excess of 15,000,000 shares................................    45,000
------------------------------------------------------------------------

    In addition to the above per-share fee, there is one-time 
application processing fee [charge] of $5,000 for companies that do not 
have a stock or warrant issue listed on the Exchange. (The one-time 
[charge] application processing fee of $5,000 does not apply to any 
company which previously paid the one-time [charge] fee in connection 
with the listing of a debt issue.)
    In the case of non-U.S. companies listed on foreign stock 
exchanges, the fee, including the one-time charge, will be 50% of the 
rates set forth above, with a maximum fee of $[25,000] 32,500. Where 
the original listing of more than one class of stock is included in the 
same application, the fee is based on the aggregate number of shares of 
all such classes.
    Warrants--The original (as well as the annual and additional) 
listing fees for warrant issues are the same as those for stock issues.
    Bonds--$100 per $1 million principal amount (or fraction thereof) 
with a minimum fee of $5,000 and a maximum fee of $10,000. In the case 
of an issuer listing more than one outstanding publicly traded debt 
security, the fee will be based on the aggregate principal amount of 
all of such issues provided they are included within a single 
application.
    In addition, there is one-time application processing fee [charge] 
of $5,000 for companies that do not have an issue of securities listed 
on the Exchange.
    Index Fund Shares and Trust Issued Receipts--The original listing 
fee for Index Fund Shares listed under Rule 1000A and Trust Issued 
Receipts listed under Rule 1200 is $5,000 for each series, with no 
application processing fee.
    Special Shareholders Rights Plans--Upon the shareholder rights 
becoming exercisable and tradable separately.
     An original fee will be charged based on the number of 
shareholder rights then outstanding and on additional issuance of 
rights;
     Shareholder rights will be subject to the Exchange's 
continuing annual fee schedule.

Sec. 141. Annual Fees

  Stock Issues and Issues Listed under Sec.  106 and Sec.  197 and Rule
                      1200 (Trust Issued Receipts)
------------------------------------------------------------------------
                      Shares outstanding                           Fee
------------------------------------------------------------------------
5,000,000 shares or less (minimum)............................   $15,000
5,000,001 to 10,000,000 shares................................    17,500
10,000,001 to 25,000,000 shares...............................   20,000
25,000,001 to 50,000,000 shares...............................   22,500
In excess of 50,000,000 shares (maximum)......................   30,000
------------------------------------------------------------------------


           Issued Listed under Rule 1000A (Index Fund Shares)
------------------------------------------------------------------------
                      Shares outstanding                           Fee
------------------------------------------------------------------------
1,000,000 shares or less shares (minimum).....................    $6,500
1,000,001 to 2,000,000 shares.................................     7,000
2,000,001 to 3,000,000 shares.................................     7,500
3,000,001 to 4,000,000 shares.................................     8,000
4,000,001 to 5,000,000 shares.................................     8,500
5,000,001 to 6,000,000 shares.................................     9,000
6,000,001 to 7,000,000 shares.................................     9,500
7,000,001 to 8,000,000 shares.................................    10,000
8,000,001 to 9,000,000 shares.................................    10,500
9,000,001 to 10,000,000 shares................................    11,000
10,000,001 to 11,000,000 shares...............................    11,500
11,000,001 to 12,000,000 shares...............................    12,000
12,000,001 to 13,000,000 shares...............................    12,500
13,000,001 to 14,000,000 \5\ shares...........................    13,000
14,000,001 to 15,000,000 shares...............................    13,500
15,000,001 to 16,000,000 shares...............................    14,000
In excess of 16,000,000 shares (maximum)......................   14,500
------------------------------------------------------------------------
\5\ The Commission notes that in the Exchange's initial proposal, it
  stated ``13,000,001 to 14,000,001.'' In fact, the Exchange intended to
  state ``13,000,000 to 14,000,000'' shares. The Commission has made
  this technical change in anticipation of the Exchange filing an
  amendment with the Commission that makes this correction. Telephone
  conversation between Michael Cavalier, Associate General Counsel,
  Amex, and Christopher Solgan, Law Clerk, Division, Commission, on
  January 3, 2002.

    The annual fee is payable in January of each year and is based on 
the total number of all classes of shares (excluding treasury shares) 
and warrants according to information available on Exchange records as 
of December 31 of the preceding year. (The above fee schedule also 
applies to companies whose securities are admitted to unlisted trading 
privileges.)
    In the calendar year in which a company first lists, the annual fee 
will be prorated to reflect only that portion of the year during which 
the security has been admitted to dealings and will be payable within 
30 days of the date the company receives the invoice, based on the 
total number of outstanding shares of all classes of stock at the time 
of original listing.
    The annual fee for issues listed under Rule 1000A (Index Fund 
Shares) and Rule 1200 (Trust Issued Receipts) is based upon the number 
of shares of a series of Index Fund Shares or Trust Issued Receipts 
outstanding at the end of each calendar year. For multiple series of 
Index Fund Shares issued by an open-end management investment company, 
or for multiple series of Trust Issued Receipts, the annual listing fee 
is based on the aggregate number of shares in all series outstanding at 
the end of each calendar year.
    Bond Issues--There is an annual fee of $3,500 for listed bonds and 
debentures of companies whose equity securities are not listed on the 
Exchange. The annual fee is payable in January of each year. In the 
year in which a company lists, the fee will be prorated to reflect only 
that portion of the year during which the security was admitted to 
dealings and will be payable in December.

    Note: In all cases, if after payment on full of the annual fee 
for any year, all of the issuer's securities are removed from 
listing and registration, the Exchange will not reimburse that part 
of the annual fee applicable to the portion of the year remaining 
after the date of suspension from dealings.

Sec. 142. Additional Listing Fees

    (a) Previously Listed Equity Issues--Listing of additional shares 
subsequent to original listing--2 cents per share subject to a minimum 
fee of $2,000 (100,000 shares or less) and a maximum fee of [$17,500 
(875,000 shares or more)] $22,500 (1,125,000 shares or more) per 
application.
    The annual maximum fee per company for listing additional shares 
shall be $45,000. (The above fees for listing of additional shares also 
apply to companies whose securities are admitted to unlisted trading 
privileges.)

[[Page 1375]]

    (b) Previously Listed Debt Issues--Listing of additional bonds 
subsequent to original listing--$150 per $1 million principal amount 
(or fraction thereof) with a minimum fee of $1,000 and a maximum fee of 
$12,000.
    (c) Different Class--The schedule for original listing (Sec. 140) 
is applicable to the listing of securities of an issue, class or series 
not previously listed.
    (d) Substitution Listing--In cases where, after original listing, a 
change is effected by charter amendment or otherwise, under which 
shares listed upon the Exchange are reclassified or changed into or 
exchanged for another security, either with or without a change in par 
value, the fee for the listing of such number of ``new'' substituted 
shares (to the extent not in excess of the amount previously listed) is 
[$2,500] $5,000. The full additional listing fee is charged (see 
paragraph (a) above) for all shares included in the application in 
excess of the amount previously listed. The maximum fee for the 
aggregate of all such ``new'' substituted shares and excess shares is 
[$20,000] $27,500. In the case of an application for the substitution 
listing of bonds or warrants upon their assumption by a new obligor or 
issuer, the listing fee will be $500.
    (e) Reincorporation, Merger or Consolidation--If a listed company 
reincorporates, or merges with or consolidates into one or more 
corporations, the substitution listing fee (paragraph (d) above) may be 
applicable. (See also Sec. 341 for the appropriate fee to be paid in 
connection with the acquisition of a listed company by an unlisted 
company.)

Sec. 144. Refunds of Listing Fees

    (a) Applications Withdrawn or Not Approved--If a listing 
application is not approved by the Exchange or is withdrawn by the 
applicant, a service charge of [$1,000] $1,500 is deducted by the 
Exchange from the [listing] application processing fee previously paid 
by the applicant, and the balance is refunded to it.
    (b) Credits After Approval--No cash refund of a listing fee is made 
where an application has been finally approved by the Exchange. If 
additional unissued shares are authorized for addition to the list 
``upon official notice of issuance'' and all of such shares are not 
issued for the purpose specified in the application, a credit is 
allowed. The credit may be applied in full or partial payment of fees 
payable for future listing applications of the same company. The amount 
of the credit is the difference between the fee paid for the listing of 
such authorized shares and the fee which would have applied had the 
application been initially submitted for the number of shares, which 
were actually issued and added to the list under the same listing 
authorization. If a company cancels all listing authorization pursuant 
to any single application (see section 350), without the issuance of 
any such shares, the Exchange makes a minimum charge of [$1,000] 
$1,500.

Sec. 341. Acquisition of a Listed Company by an Unlisted Company

    The policy set forth below relates to any plan of acquisition, 
merger or consolidation, the net effect of which is that a listed 
company is acquired by an unlisted company even though the listed 
company is the nominal survivor. In applying this policy, consideration 
will be given to all relevant factors, including the proportionate 
amount of the securities of the resulting company to be issued to each 
of the combining companies, changes in ownership or management of the 
listed company, whether the unlisted company is larger than the listed 
company, and the nature of the businesses being combined. In evaluating 
the listing eligibility of the surviving company, the Exchange will 
apply its original listing guidelines. See section 713(b).
    The Exchange recommends that any proposed plan of the above nature, 
including particularly any plan under which shareholders of the listed 
company would own less than 50% of the shares or voting power of the 
resulting company, be submitted for an informal opinion before its 
promulgation.
    In addition to the applicable per share fee for additional 
listings, there is a one-time charge of [$7,500] $10,000 for such 
listings.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant aspects of such 
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, Proposed Rule Change

(1) Purpose
    The Exchange proposes to amend Sections 140, 141, 142, 144 and 341 
of the Amex Company Guide to modify initial and annual listing fees, 
fees for listing additional shares and the one-time charge for listing 
shares issued in connection with acquisition of a listed company by an 
unlisted company, as discussed below. The Exchange believes these fees 
changes are necessary to adequately fund the Exchange listed equities 
business and development of value-added services for Amex listed 
issuers.
a. Original Listing Fees (Section 140)
    Currently, original listing fees range from $5,000 to $45,000 
depending on the number of shares to be listed. The Exchange proposes 
to increase the original listing fees for stock issues, excluding 
securities listed under Sections 106 (Currency and Index Warrants) and 
107 (Other Securities) of the Company Guide, and to reduce the number 
of tiers from twelve to four tiers as follows:

Less than 5,000,000 shares....................................   $30,000
5,000,000 to 10,000,000 shares................................    40,000
10,000,001 to 15,000,000 shares...............................    50,000
In excess of 15,000,000 shares................................    60,000
 

    The Exchange states that in order to continue to foster listing of 
structured equity derivative securities (e.g., MITTs, SUNs, Equity 
Linked Notes), the listing fee for issues listed under Section 106 
(Currency and Index Warrants) and section 107 (Other Securities) will 
remain unchanged from the current original listing fee schedule.
    Currently, according to the Exchange, issuers also pay a one time-
charge of $5,000 if they do not already have a stock or warrant issue 
listed on the Exchange. The one time $5,000 fee would be designated as 
an application processing fee, reflecting its true nature and purpose. 
For non-U.S. companies, the original listing fee would continue to be 
50% of the above rates, with a maximum of $32,500 (including a $2,500 
processing fee).
    The original listing fee for Index Fund Shares (e.g., iShares, 
VIPERs) listed under Rule 1000A and Trust Issued Receipts (e.g., 
HOLDRs) listed under Rule 1200 is $5000 for each series, with no 
application processing fee.
b. Annual Fees (Section 141)
    According to the Exchange, annual fees under Section 141 currently 
range from $6,500 to $14,500. The Exchange

[[Page 1376]]

proposes to increase annual fees for stock issues and for issues listed 
under sections 106 and 107 as described below, with the number of tiers 
reduced from 17 to 5:

5,000,000 shares or less (minimum)............................   $15,000
5,000,001 to 10,000,000 shares................................    17,500
10,000,001 to 25,000,000 shares...............................    20,000
25,000,001 to 50,000,000 shares...............................    22,500
In excess of 50,000,000 shares maximum........................    30,000
 

    The Exchange states that Index Fund Shares would continue to be 
subject to current annual fee schedule. In addition, the Exchange 
proposes to codify an existing procedure in section 141 to provide that 
the annual fee for Index Fund Shares and Trust Issued Receipts is based 
on the number of shares of a series outstanding at year-end, with 
multiple series aggregated for purposes of the fee calculation.\6\
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    \6\ Portfolio Depository Receipts (i.e., SPDRs, MidCap SPDRs, 
DIAMONDS, Nasdaq 100 Index Tracking Stock) are not subject to annual 
or additional listing fees.
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    If an issuer's securities are removed from Exchange listing, the 
Exchange currently reimburses the issuer for part of any previously 
paid annual fee applicable to the portion of the year remaining after 
the date of suspension from dealings. The Exchange proposes that it 
would no longer make such reimbursement.
c. Additional Listing Fees (Section 142)
    According to the Exchange, the fee for listing additional shares is 
2 cents per share subject to a minimum of $2,000 (for 100,000 shares or 
less) and a maximum of $17,500 (for 875,000 shares or more) per 
application. The minimum fee would continue to be $2,000 for issues of 
up to 100,000 shares. For issues over 100,000 shares, the Exchange 
proposes to increase the maximum fee per company to $22,500 for issues 
of 1,125,000 shares or more. In addition, the Exchange proposes a 
maximum fee per company in any one year for listing additional shares 
of $45,000.
    The Exchange states that section 142(a) would also be amended to 
make clear that Section 142 fees apply to Amex securities admitted to 
unlisted trading privileges (i.e. the relatively few Amex-traded issues 
grandfathered under section 12 of the Act \7\ and not required to 
execute a listing agreement with the Exchange), comparable to the 
provision in section 141 for annual fees.
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    \7\ 15 U.S.C. 78l.
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    The Exchange proposes to amend section 142(d) (``Substitution 
Listing'') by raising the fee for listing of new substituted shares 
from $2,500 to $5,000, and raising the maximum fee for substituted 
shares and excess shares from $20,000 to $27,500 per quarter, 
(corresponding to the sum of the proposed $5,000 increase in maximum 
fees for listing additional shares under section 142(a) and the $2,500 
fee increase for listing new substituted shares).
d. Refund of Listing Fees (Section 144)
    Currently, under section 144, if an applicant withdraws its 
application or the application is not approved, the Exchange deducts a 
$1,000 service charge and refunds $4,000 from the application 
processing fee to the applicant. The Exchange proposes to increase this 
service charge to $1,500. In addition the Exchange proposes to increase 
the minimum charge if an issuer cancels a listing authorization without 
issuing such authorized shares from $1,000 to $1,500. As with the other 
proposed fee changes in this filing, the Exchange states that it is 
increasing these charges to better reflect increased Exchange costs 
associated with reviewing and processing such applications.
e. Acquisition of a Listed Company by an Unlisted Company (Section 341)
    The Exchange proposes to amend section 341 to increase the one-time 
charge imposed in connection with acquisition of a listed company by an 
unlisted company from $7,500 to $10,000.
(2) Statutory Basis
    The Exchange believes that the proposed rule change, as amended, is 
consistent with section 6(b) of the Act,\8\ in general and furthers the 
objectives of section 6(b)(4) of the Act,\9\ in particular, because it 
is designed to provide for the equitable allocation of reasonable dues, 
fees, and other charges among its members and issuers and other persons 
using its facilities.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(4).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change, as 
amended, will impose any burden on competition.

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. Date of Effectiveness of the Proposed Rule Change and Timing 
for Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding, or (ii) as to 
which the Exchange consents, the Commission will:
    A. By order approve such proposed rule change; or
    B. Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change, as amended, is consistent with the Act. Persons making written 
submissions should file six copies thereof with the Secretary, 
Securities and Exchange Commission, 450 Fifth Street, NW., Washington, 
DC 20549-0609. Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for inspection and 
copying in the Commission's Public Reference Room. Copies of such 
filings will also be available for inspection and copying at the 
principal office of the Exchange. All submissions should refer to File 
No. SR-Amex-2001-100 and should be submitted by January 31, 2002.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 02-632 Filed 1-9-02; 8:45 am]
BILLING CODE 8010-01-M