[Federal Register Volume 89, Number 4 (Friday, January 5, 2024)]
[Notices]
[Pages 817-819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-29006]



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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-99256; File No. SR-NYSEAMER-2023-64]


Self-Regulatory Organizations; NYSE American LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Change To Adopt New 
Section 145a of the NYSE American Company Guide

December 29, 2023.
    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 21, 2023, NYSE American LLC (``NYSE American'' or the 
``Exchange'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by the self-regulatory 
organization. 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 Exchange proposes to adopt new Section 145a of the NYSE 
American Company Guide (the ``Company Guide'') to implement a flat 
original listing and annual fee for Acquisition Companies (as defined 
below). The proposed rule change is available on the Exchange's website 
at www.nyse.com, at the principal office of the Exchange, and at the 
Commission's Public Reference Room.

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 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
    The Exchange proposes to adopt new Section 145a of the Company 
Guide to implement a flat original listing and annual fee for companies 
that are listed on the Exchange pursuant to Sec. 119 (Listing of 
Companies Whole Business Plan is to Complete One or More Acquisitions) 
of the Company Guide (``Acquisition Companies''). The proposed changes 
will take effect from the beginning of the calendar year commencing on 
January 1, 2024.
    The Exchange currently charges Acquisition Companies original and 
annual listing fees based on a tiered fee schedule that is applicable 
to companies listing equity securities on the Exchange. The original 
and annual listing fees are calculated based on shares outstanding.\3\ 
Commencing January 1, 2024, the Exchange proposes to charge Acquisition 
Companies a flat original and annual listing fee of $85,000.
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    \3\ See Sec. 140 (Original Listing Fees) and Sec. 141 (Annual 
Fees) of the Company Guide. The Exchange currently charges original 
and annual listing fees on a tiered basis, based on the number of 
shares outstanding. With respect to original listing fees, issuers 
currently pay $50,000 if they have less than 5,000,000 shares 
outstanding, $55,000 if they have 5,000,000 to 10,000,000 shares 
outstanding, $60,000 if they have 10,000,001 to 15,000,000 shares 
outstanding and $75,000 if they have in excess of 15,000,000 shares 
outstanding. With respect to annual listing fees, issuers currently 
pay $55,000 if they have 50,000,000 shares or less outstanding and 
$75,000 if they have in excess of 50,000,000 shares outstanding.
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    The Exchange proposes to make this change to better reflect the 
value of such listing to Acquisition Companies. In particular, the 
Exchange believes it is reasonable to apply a flat original and annual 
listing fee for Acquisition Companies because the value of the listing 
for an Acquisition Company, given the limited scope of operation 
(unlike operating companies) and the requirement to engage in a merger 
or acquisition with one or more unidentified companies within 36 months 
of the effectiveness of the Acquisition Company's IPO registration 
statement, is substantially similar regardless of the number of shares 
the Acquisition Company has outstanding.
    As revised, all Acquisition Companies listed on the Exchange would 
pay the same original and annual listing fee and will pay a higher fee 
under the proposed flat fee than under the current rate. The Exchange 
believes that the adoption of a flat initial and annual fee for 
Acquisition Companies of $85,000 is not unfairly discriminatory because 
the value of the listing to an Acquisition Company is substantially 
similar regardless of the number of shares that an Acquisition Company 
has outstanding. In addition, the Exchange believes that it is not 
unfairly discriminatory for Acquisition Companies to pay a higher 
original and annual listing fee than is paid by other companies listing 
on the Exchange. Due to the substantial increase in new listings of 
Acquisition Companies on the Exchange over the last several years, the 
Exchange has devoted additional resources to review Acquisition Company 
IPOs, post-listing shareholder meeting requests, and subsequent 
business combination transactions. In particular, the Exchange notes 
that business combination transactions have become increasingly complex 
and require greater levels of analysis. Historically, many Acquisition 
Companies seeking to list on the Exchange have shares outstanding that 
placed them in the upper tiers of the current original listing fee 
structure. Therefore, the Exchange believes that adopting a flat 
original listing fee will represent an increase that is directly 
proportional to the resources devoted to Acquisition Companies.
    In adopting a flat original and annual listing fee for Acquisition 
Companies, the Exchange notes that it is mirroring the fee structure in 
place on the New York Stock Exchange and the Nasdaq Stock Market (which 
charges Acquisition Companies the same flat entry and annual listing 
fee regardless of whether such Acquisition Company is listed on the 
Nasdaq Global Select, Nasdaq Global or Nasdaq Capital Market). The 
Exchange believes it is appropriate to align its fee structure for 
Acquisition Companies with the fee structure in place on other national 
securities exchanges, even if the proposed fee structure results in 
Acquisition Companies paying higher entry or annual listing fees than 
they do currently. To that end, the Exchange notes that its proposed 
fee and fee structure for Acquisition Companies is comparable to that 
of other exchanges in that (i) the value of a listing to an Acquisition 
Company is the same regardless of the exchange on which it is listed, 
and (ii) no exchange provides Acquisition Companies with complimentary 
services (unlike certain categories of operating companies). Therefore, 
the Exchange believes it is appropriate for its fee structure to be

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aligned with the fee structures in place on other listing venues.\4\
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    \4\ See, for example, Section 902.11 of the NYSE Listed Company 
Manual and Nasdaq Rules 5910(a)(1)(B), 5910(b)(2)(F), 5920(a)(1)(B) 
and 5920(b)(2)(G). The Exchange notes that Acquisition Companies 
listed on the New York Stock Exchange pay a flat initial and annual 
fee of $85,000.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Act,\5\ in general, and furthers the 
objectives of Section 6(b)(4) \6\ of the Act, in particular, in that it 
is designed to provide for the equitable allocation of reasonable dues, 
fees, and other charges. The Exchange also believes that the proposed 
rule change is consistent with Section 6(b)(5) of the Act,\7\ 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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    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(4).
    \7\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that it is not unfairly discriminatory and 
represents an equitable allocation of reasonable fees to adopt new Sec. 
145a of the Company Guide to enact a flat original and annual listing 
fee for Acquisition Companies.
    The Exchange believes that the proposed changes to its original and 
annual fees for Acquisition Companies are reasonable. The Exchange 
operates in a highly competitive marketplace for the listing of 
Acquisition Companies. The Commission has repeatedly expressed its 
preference for competition over regulatory intervention in determining 
prices, products, and services in the securities markets. Specifically, 
in Regulation NMS,\8\ the Commission highlighted the importance of 
market forces in determining prices and SRO revenues and, also, 
recognized that current regulation of the market system ``has been 
remarkably successful in promoting market competition in its broader 
forms that are most important to investors and listed companies.'' \9\
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    \8\ Release No. 34-51808 (June 9, 2005); 70 FR 37496 (June 29, 
2005).
    \9\ See Regulation NMS, 70 FR at 37499.
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    The Exchange believes that the ever-shifting market share among the 
exchanges with respect to new listings and the transfer of existing 
listings between competitor exchanges demonstrates that issuers can 
choose different listing markets in response to fee changes. 
Accordingly, competitive forces constrain exchange listing fees. Stated 
otherwise, changes to exchange listing fees can have a direct effect on 
the ability of an exchange to compete for new listings and retain 
existing listings.
    The Exchange believes the proposed change to apply a flat original 
and annual listing fee for all Acquisition Companies is reasonable, and 
not unfairly discriminatory, because the value of the listing to an 
Acquisition Company, and the Exchange's costs in regulating and 
supporting the listing of an Acquisition Company, is substantially 
similar regardless of the number of shares that an Acquisition Company 
has outstanding. As revised, all Acquisition Companies listed on the 
Exchange would pay the same original and annual listing fee and will 
pay a higher fee under the proposed flat fee than under the current 
rate. The Exchange believes that the adoption of a flat initial and 
annual fee for Acquisition Companies is not unfairly discriminatory 
because the value of the listing to an Acquisition Company is 
substantially similar regardless of the number of shares that an 
Acquisition Company has outstanding. In addition, the Exchange believes 
that it is not unfairly discriminatory for Acquisition Companies to pay 
a higher original and annual listing fee of $85,000 than is paid by 
other companies listing on the Exchange. Due to the substantial 
increase in new listings of Acquisition Companies on the Exchange over 
the last several years, the Exchange has devoted additional resources 
to review Acquisition Company IPOs, post-listing shareholder meeting 
requests, and subsequent business combination transactions. In 
particular, the Exchange notes that business combination transactions 
have become increasingly complex and require greater levels of 
analysis. Historically, many Acquisition Companies seeking to list on 
the Exchange have shares outstanding that placed them in the upper 
tiers of the current original listing fee structure. Therefore, the 
Exchange believes that adopting a flat original listing fee of $85,000 
will represent an increase that is proportional to the resources 
devoted to Acquisition Companies.
    Pricing for the listing of similar securities on other national 
securities exchanges was also considered, and, for the reasons 
discussed above in the Purpose section, the Exchange believes that the 
proposed flat original and annual listing fee is reasonable given the 
competitive landscape.
    For the foregoing reasons, the Exchange believes that the proposal 
is consistent with the Act.

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 market for listing 
services is extremely competitive and listed companies may freely 
choose alternative venues. For this reason, the Exchange does not 
believe the proposed rule change will result in any burden on 
competition for listings. The Exchange also does not believe that the 
proposed rule change will have any meaningful impact on competition 
among listed companies because all similarly situated companies will be 
charged the same fee.

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

    The foregoing rule change has become effective upon filing pursuant 
to Section 19(b)(3)(A) \10\ of the Act and paragraph (f) thereunder. At 
any time within 60 days of the filing of the proposed rule change, the 
Commission summarily may temporarily suspend such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors, or otherwise 
in furtherance of the purposes of the Act.
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    \10\ 15 U.S.C. 78s(b)(3)(A).
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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. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number SR-NYSEAMER-2023-64 on the subject line.

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Paper Comments

     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-NYSEAMER-2023-64. 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 (http://www.sec.gov/rules/sro.shtml). 
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-NYSEAMER-2023-64 and should be submitted on or 
before January 26, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Christina Z. Milnor,
Assistant Secretary.
[FR Doc. 2023-29006 Filed 1-4-24; 8:45 am]
BILLING CODE 8011-01-P