[Federal Register Volume 74, Number 50 (Tuesday, March 17, 2009)]
[Notices]
[Pages 11392-11393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5718]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59560; File No. SR-NYSEALTR-2009-02]


Self-Regulatory Organizations; NYSE Alternext US LLC.; Order 
Approving Proposed Rule Change To Revise Listing Fees

March 11, 2009.

I. Introduction

    On January 8, 2009, NYSE Alternext US LLC (``NYSE Alternext'' 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 revise its listing fees. The proposed rule 
change was published in the Federal Register on February 4, 2009.\3\ 
The Commission received no comments on the proposal. This order 
approves the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 59304 (January 27, 
2009), 74 FR 6077 (February 4, 2009) (hereinafter referred to as 
``Notice'').
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II. Description of the Proposal

    The Exchange proposes amending its initial listing fees for common 
stock or common stock equivalents. The initial listing fees set forth 
in Section 140 of the Exchange's Company Guide for issuances of (i) 
less than five million shares would be increased from $40,000 to 
$50,000, (ii) five million to 10 million shares would be increased from 
$50,000 to $55,000, (iii) 10,000,001 shares to 15 million shares would 
be increased from $55,000 to $60,000 and (iv) in excess of 15 million 
shares would be increased from $65,000 to $70,000. The Exchange further 
proposes eliminating its $5,000 application fee in connection with a 
company's initial listing on the Exchange.\4\
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    \4\ The Exchange proposes to make conforming changes to Section 
144 of the Company Guide to eliminate references to the application 
processing fee.
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    The Exchange also proposes eliminating the $5,000 application 
processing fee in Section 140, payable in connection with the initial 
listing of a class of bonds of an issuer that does not have another 
class of securities listed on the Exchange. Additionally, Section 140 
currently provides that, in the case of non-U.S. issuers listed on 
foreign stock exchanges, the fee, including the one-time, non-
refundable application-processing fee of $5,000, is $40,000. The 
Exchange proposes to conform the initial listing fees charged to non-
U.S. companies to those charged to domestic companies.
    Effective January 1, 2010, the Exchange proposes to increase the 
annual fee for issuers that have between 50,000,001 and 75 million 
shares outstanding from $32,500 to $36,500 and for issuers with an 
excess of 75 million shares outstanding the annual fee would be raised 
from $34,000 to $40,000.\5\ Moreover, as of the date of approval of 
this rule filing, issuers would be required to pay a supplemental 
annual fee equal to the difference between the amount they would pay in 
2009 based on the current annual fee rates and the amount they would be 
required to pay if the 2010 annual fee rates were in place on January 
1, 2009.
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    \5\ The Exchange proposes to retain the minimum annual fee of 
$27,500 for issuers with 50 million shares or less outstanding. 
Therefore, issuers with 50 million shares or less outstanding will 
not be subject to any annual fee increase for 2009.
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    The Exchange further proposes eliminating Section 146 in its 
entirety and the provisions in Sections 140 and 142(g) that grants the 
Board of Directors of the Exchange the discretion to defer, waive or 
rebate all or any part of the initial listing fee payable in connection 
with any listing of securities or additional shares. The Exchange also 
proposes amending Section 142 of the Company Guide by (i) increasing 
from $60,000 to $65,000 the maximum fee per issuer for listing 
additional shares in a calendar year and (ii) increasing from $2,000 to 
$2,500 the fee charged in connection with a company changing its name 
or ticker symbol.
    The Exchange also proposes to adopt a fee of $7,500 for technical 
original listings (``Technical Original Listings'') and reverse stock 
splits. The Exchange would apply the proposed $7,500 application fee 
for a Technical Original Listing if the change in the company's status 
is technical in nature and the shareholders of the original company 
receive or retain a share-for-share interest in the new company without 
any change in their equity position or rights.\6\ The $7,500 
application fee would also apply to reverse stock splits. The Technical 
Original Listing fee will replace the current $5,000 fee for 
``substitution listings'' set forth in Section 142(d). The Technical 
Original Listing fee is intended to apply only to those events that 
would have previously

[[Page 11393]]

been subject to the substitution listing fee.
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    \6\ Minor technical amendments are being made to Rule 142(e) to 
reflect the fact that reincorporation will be explicitly included in 
the categories of events subject to the proposed Technical Original 
Listing fee.
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    Finally, the Exchange is amending the language of Section 142 to 
state that the fees in the section apply to non-U.S. companies. 
According to the Exchange, they have always applied the fees in Section 
142 to non-U.S. companies, and therefore, this amendment clarifies the 
Exchange's policy.

III. Discussion and Commission's Findings

    After careful review, 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. 
Specifically, the Commission finds that the proposal is consistent with 
Section 6(b)(4) of the Act,\7\ which requires, among other things, that 
the rules of an exchange provide for equitable allocation of reasonable 
dues, fees, and other charges among its members and issuers and other 
persons using its facilities.
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    \7\ 15 U.S.C. 78f(b)(4).
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    As discussed in the Notice, many of the Exchange's proposed fees, 
such as the initial listing fees for common stock or common stock 
equivalents, the maximum fee per issuer for listing additional shares 
in a calendar year, the fee charged in connection with a company 
changing its name or ticker symbol, and the Technical Original Listing 
fees are competitive with or substantially similar to the fees already 
in place at Nasdaq.\8\ The Commission recognizes that competition for 
listings is becoming increasingly vigorous, and that such competition 
may help to ensure the reasonableness of fees among the markets vying 
for new listings.\9\
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    \8\ See Notice, supra note 3.
    \9\ See Securities Exchange Act Release No. 55202 (January 30, 
2007), 72 FR 6017 (February 8, 2007).
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    Moreover, as described in the Notice, the Exchange represented that 
it had increased services to listed companies and incurred increased 
costs for services and regulatory programs, which required changes to 
its listing fees.\10\ The Exchange also cited different levels of 
services based on the number of outstanding shares to support the 
higher fees generally paid to the Exchange by larger companies and to 
provide justification for the proposed increases. Accordingly, the 
Commission believes that the Exchange's proposed fee increases are 
reasonable, given the current competitive landscape, the listing fees 
charged by Nasdaq, the services the Exchange offers issuers that choose 
to list with NYSE Alternext and the increased regulatory oversight 
costs noted by the Exchange. The Commission also believes it is 
reasonable for the Exchange to charge non-U.S. companies the same 
initial listing fees as domestic companies since, according to the 
Exchange, they receive the same level of service from the Exchange. For 
these reasons, the Commission believes the proposed fee changes meet 
the statutory standard of an equitable allocation of reasonable dues, 
fees and other charges among issuers.
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    \10\ See Notice, supra note 3. Additionally, some costs were 
offset by the elimination of the $5,000 application fee.
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    For the foregoing reasons, the Commission finds that the proposed 
rule change is consistent with the Act.\11\
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    \11\ 15 U.S.C. 78f(b)(4). In approving the proposed rule change, 
the Commission has considered the proposed rule's impact in 
efficiency, competition and capital formation. See 15 U.S.C. 78c(f).
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IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\12\ that the proposed rule change (SR-NYSEALTR-2009-02) be, and it 
hereby is, approved.
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    \12\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-5718 Filed 3-16-09; 8:45 am]
BILLING CODE 8011-01-P