[Federal Register Volume 67, Number 29 (Tuesday, February 12, 2002)]
[Notices]
[Pages 6553-6554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3301]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-45403; File No. SR-Amex-2001-100]


Self-Regulatory Organizations; Order Granting Accelerated 
Approval to a Proposed Rule Change and Amendment Nos. 1, 2 and 3 
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

February 6, 2002.

I. Introduction

    On December 6, 2001, the American Stock Exchange LLC (``Amex'' or 
``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 amend sections 140, 141, 142, 144 and 341 of 
the Amex Company Guide relating to the Exchange's initial listing fee, 
annual fee, the fee for listing additional shares and a one-time charge 
for listing shares issued in connection with the acquisition of a 
listed company by an unlisted company. 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 Exchange filed Amendment No. 3 to the proposed rule change 
on January 5, 2002.\5\ The proposed rule change, as amended by 
Amendments Nos. 1 and 2, was published for comment in the Federal 
Register on January 10, 2002.\6\ No comments were received regarding 
the proposed rule change, as amended. This order approves the proposed 
rule change, as amended, on an accelerated basis.
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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.
    \5\ See letter from Michael Cavalier, Associate General Counsel, 
Amex, to Christopher Solgan, Law Clerk, Division, Commission, dated 
January 4, 2002 (``Amendment No. 3''). In Amendment No. 3, the Amex 
made a minor correction to the text of the proposed rule change. 
This is a technical amendment and is not subject to notice and 
comment.
    \6\ See Securities Exchange Act Release No. 45235 (January 4, 
2002), 67 FR 1373.
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II. Description of the Proposed Rule Change

    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 the acquisition of a listed company by 
an unlisted company.
    Specifically, the Exchange proposes to amend section 140 of the 
Company Guide by increasing 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. The Exchange 
also proposes that the one time-charge of $5,000 for issuers who do not 
have a stock or warrant issue listed on the Exchange would now be 
designated an application 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.
    The Exchange proposes to amend section 141 of the Company Guide by 
increasing annual fees for stock issues and for issues listed under 
sections 106 and 107 of the Company Guide. In addition, the Exchange 
proposes to codify an existing procedure in section 141 of the Company 
Guide 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. Finally, the Exchange proposes that it would no 
longer reimburse issuers whose securities are removed from Exchange 
listing for part of any previously paid annual fee applicable to the 
portion of the year remaining after the date of suspension from 
dealings.
    For issues over 100,000 shares, the Exchange proposes to amend 
section

[[Page 6554]]

142 of the Company Guide to increase the maximum fee per company for 
listing additional shares 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. Section 142(a) 
of the Company Guide 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 of the Company Guide for annual fees.
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    \7\ 15 U.S.C. 781.
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    The Exchange proposes to amend section 142(d) of the Company Guide 
(``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) of the 
Company Guide and the $2,500 fee increase for listing new substituted 
shares).
    The Exchange proposes to increase the service charge under section 
144 of the Company Guide to $1,500 for applicants that withdraw their 
applications or for applications that are not approved. 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.
    Lastly, the Exchange proposes to amend section 341 of the Company 
Guide 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.

III. Discussion

    The Commission finds that the proposed rule change, as amended, is 
consistent with the requirements of section 6 of the Act \8\ and the 
rules and regulations thereunder applicable to a national securities 
exchange.\9\ The Commission finds specifically that the proposed rule 
change is consistent with section 6(b)(4) of the Act,\10\ which 
requires, among other things, that the rules of a national securities 
exchange be 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. Specifically, the increase 
reflects additional costs that the Exchange has represented it incurs 
for services provided to issuers. As represented by the Exchange, it 
has incurred significantly increased regulatory and technology costs 
over the last several years. In addition, the Exchange stated that the 
proposed fee increases are necessary to adequately fund the Exchange's 
listed equities business and development of value-added services for 
Amex-listed companies and to allow it to relieve pressures on other 
revenue sources that have traditionally underwritten short falls in 
regulatory related fees.\11\
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    \8\ 15 U.S.C. 78f.
    \9\ 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).
    \10\ 15 U.S.C. 78f(b)(4).
    \11\ See Amendment No. 1, supra note 3.
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    The Exchange seeks to implement the proposed annual fees set forth 
in section 141 of the Company Guide as of January 1, 2002. The 
Commission believes that it is reasonable for the Amex to implement 
these annual fee increases as of January 1, 2002. As noted above, the 
Exchange stated that it had incurred increased costs over the last 
several years and has not increased its annual fees for listing since 
1993.
    The Commission finds good cause for approving the proposed rule 
change, as amended, prior to the thirtieth day after publication in the 
Federal Register. The Commission notes that the proposed rule change 
and Amendment Nos. 1 and 2 were noticed for the full 21-day comment 
period and the Commission received no comments regarding the proposed 
rule change, as amended. The Commission believes that granting 
accelerated approval to the proposed rule change will permit the 
Exchange to implement the new annual fees as of January 1, 2002, and 
other fees as of the date of this Order, therefore allowing it to 
adequately fund its listed equities business and issuer services. 
Accordingly, the Commission finds good cause, consistent with section 
19(b)(2) of the Act \12\ to approve the proposed rule change, as 
amended, on an accelerated basis.
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    \12\ 15 U.S.C. 78s(b)(2).
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IV. Conclusion

    For the foregoing reasons, the Commission finds that the proposal, 
as amended, is consistent with the requirements of the Act and rules 
and regulations thereunder.
    It is therefore ordered, pursuant to section 19(b)(2) of the 
Act,\13\ that the proposed rule change (SR-Amex-2001-100), as amended, 
is approved on an accelerated basis.
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    \13\ Id.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 02-3301 Filed 2-11-02; 8:45 am]
BILLING CODE 8010-01-P