[Federal Register Volume 69, Number 19 (Thursday, January 29, 2004)]
[Notices]
[Pages 4334-4335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1921]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-49116; File No. SR-Amex-2003-111]


Self-Regulatory Organizations; Notice of Filing of Proposed Rule 
Change by the American Stock Exchange LLC Relating to Listing and 
Delisting Appeal Hearing Fees

January 22, 2004.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 
1934, as amended (``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is 
hereby given that on December 12, 2003, the American Stock Exchange LLC 
(``Amex'' or ``Exchange'') filed with the Securities and Exchange 
Commission (``Commission'') the proposed rule change as described in 
Items I, II, and III below, which Items have been prepared by the 
Exchange. 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.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The American Stock Exchange LLC (``Amex'' or ``Exchange'') proposes 
to amend Sections 1203, 1204 and 1205 of the Exchange's Company Guide 
to increase the fees applicable to issuers requesting review of a 
determination to limit or prohibit the initial or continued listing of 
their securities. The text of the proposed rule change is available at 
the Amex and at the Commission.

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 Amex 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Part 12 of the Amex Company Guide provides that issuers may request 
a written or oral review of a determination by the Listing 
Qualifications Staff to limit or prohibit the initial or continued 
listing of their securities before a Listing Qualifications Panel 
(``Panel'') comprised of at least two, but generally three, members of 
the Amex Committee on Securities (``Committee''). The fee for a written 
review is $1,500, and the fee for an oral hearing is $2,500. Issuers 
may also request a review of a Panel decision by the Committee. The fee 
for such a review, which is conducted on the written record unless the 
Committee determines to hold oral hearings, is $2,500.
    The hearing fee structure was adopted in September 2001, and was 
intended to cover the cost of holding the hearing (i.e., allocated 
staff and overhead costs as well as fees for court reporters, 
conference calls and other miscellaneous expenses).\3\ Amex management 
believes that the fees should be increased at this time, because the 
allocated cost of staff and other resources necessary to prepare for 
and conduct listing hearings exceeds the current permitted fees, 
particularly in the case of delisting hearings that are often extremely 
complicated and contentious. Accordingly, the Amex proposes to increase 
the fee for Panel hearings to $4,000 for a written hearing

[[Page 4335]]

and $5,000 for an oral hearing, and $5,000 for appeals to the 
Committee.
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    \3\ See Securities Exchange Act Release No. 44768 (September 6, 
2001), 66 FR 47709 (September 13, 2001) (SR-Amex-2001-36).
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    In addition, the Amex proposes that, in the case of a delisting 
hearing, a listed company seeking an appeal of a Staff delisting 
determination be required to satisfy all outstanding listing fees due 
to the Exchange before any payment will be credited towards a hearing 
fee. The Amex believes that, in some cases, listed companies with 
substantial unpaid listing fee balances have been able to engage in 
frivolous appeals in order to delay an inevitable delisting. While the 
appeal process provides an important avenue to seek a review of Staff 
determinations, the Exchange does not believe it is appropriate for a 
listed company that is delinquent with respect to its listing fees to 
be able to access this process. In this connection, the Amex notes that 
a listed company that appears to be delinquent with respect to fees 
owed is given many opportunities to question the invoices and past due 
bills sent, if the company believes that the fees assessed are 
erroneous. Further, failure to pay listing fees in and of itself 
subjects the company to delisting pursuant to Section 1003(iv) of the 
Amex Company Guide, and a listed company which is delinquent with 
respect to its listing fees will have received notice to this effect in 
connection with the Staff delisting determination. Therefore, the 
Exchange believes that there are sufficient safeguards in place to 
prevent a listed company from being unfairly barred from appealing a 
delisting.\4\
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    \4\ Furthermore, any company that believes it has been 
improperly denied a hearing would have the right to appeal such 
denial to the Securities and Exchange Commission as provided in 
Section 19(d) of the Act and Rule 19d-3 thereunder. See 15 U.S.C. 
78s(d); 17 CFR 240.19d-3.
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    The Amex also proposes that Sections 1203 and 1204 of the Amex 
Company Guide be clarified to specify that appeal requests must be 
submitted to the Amex Office of General Counsel.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
the Act and the rules and regulations thereunder applicable to a 
national securities exchange, and in particular, the requirements of 
Section 6(b) of the Act.\5\ Specifically, the Exchange believes the 
proposed rule change furthers the objectives of Section 6(b)(5) \6\ in 
that the proposal 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; to remove impediments to and 
perfect the mechanism of a free and open market and a national market 
system; 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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    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(5).
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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.

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 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. 
Comments may also be submitted electronically at the following e-mail 
address: [email protected]. All comment letters should refer to 
File No. SR-Amex-2003-111. This file number should be included on the 
subject line if e-mail is used. To help the Commission process and 
review comments more efficiently, your comments should be sent in 
hardcopy or by e-mail but not by both methods. 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 at the Commission's 
Public Reference Room, 450 Fifth Street, NW., Washington, DC 20549. 
Copies of such filing will also be available for inspection and copying 
at the principal office of Amex. All submissions should refer to the 
File No. SR-Amex-2003-111 and should be submitted by February 19, 2004.

    For the Commission by the Division of Market Regulation, 
pursuant to delegated authority.\7\
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    \7\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 04-1921 Filed 1-28-04; 8:45 am]
BILLING CODE 8010-01-P