Self-Regulatory Organizations; Pacific Exchange, Inc. (n/k/a NYSE Arca, Inc.); Notice of Filing of Proposed Rule Change and Amendments No. 1 and No. 2 Thereto To Revise Fees for Equity Securities Issued by Operating Companies Listed on the Archipelago Exchange, 27764-27768 [E6-7270]
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Federal Register / Vol. 71, No. 92 / Friday, May 12, 2006 / Notices
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission,
Nasdaq included statements concerning
the purpose of and basis for the
proposed rule change, as amended, 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.
Nasdaq 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, the Proposed Rule
Change
1. Purpose
Nasdaq wishes to eliminate its
Certificate of Designations, Preferences
and Rights of Series A Cumulative
Preferred Stock, its Certificate of
Designations, Preferences and Rights of
Series B Preferred Stock, its Certificate
of Designations, Preferences and Rights
of Series C Cumulative Preferred Stock,
and all matters set forth therein.
Nasdaq’s Series A and Series B
preferred stock were both created in
2002; the Series C preferred stock was
created in 2004. In 2004, all outstanding
shares of the Series A preferred were
exchanged for the shares of Series C
preferred. In 2005, the sole outstanding
share of Series B preferred was
exchanged for a share of Nasdaq’s Series
D preferred stock.6 Finally, in 2006,
Nasdaq acquired all outstanding shares
of the Series C preferred stock. As a
result, today there remains only one
share of Nasdaq’s preferred stock
outstanding—a share of Series D
preferred.
Under Delaware law, both a certificate
of designations (designating a series of
preferred stock) and a certificate of
elimination (eliminating a previously
adopted designation) are deemed to be
amendments to Nasdaq’s Restated
Certificate of Incorporation. Therefore,
Nasdaq is making this filing with the
Commission. Nasdaq is not, at this time,
restating its Restated Certificate of
Incorporation.7
sroberts on PROD1PC70 with NOTICES
Nasdaq believes that the proposed
rule change, as amended, is consistent
with the provisions of section 15A of
6 See Securities Exchange Act Release No. 53022
(December 23, 2005); 70 FR 77433 (December 30,
2005).
7 See Amendment No. 1.
16:54 May 11, 2006
Jkt 208001
B. Self-Regulatory Organization’s
Statement on Burden on Competition
Nasdaq does not believe that the
proposed rule change, as amended, will
result in any burden on competition that
is not necessary or appropriate in
furtherance of the purposes of the Act,
as amended.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
Written comments were neither
solicited nor received.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
This proposal, as amended, has
become effective pursuant to section
19(b)(3)(A) of the Act 10 and
subparagraph (f)(3) of Rule 19b–4
thereunder 11 because the proposal is
concerned solely with the
administration of the self-regulatory
organization.
At any time within 60 days of the
filing of the proposed rule change, the
Commission may summarily abrogate
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.
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. Comments may be submitted by
any of the following methods:
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number SR–NASD–2006–041 on the
subject line.
Paper Comments
• Send paper comments in triplicate
to Nancy M. Morris, Secretary,
Securities and Exchange Commission,
2. Statutory Basis
VerDate Aug<31>2005
the Act,8 in general and with section
15A(b)(6) of the Act,9 in particular. The
proposal is ministerial in nature and
will not affect the rights of market
participants.
U.S.C. 78o–3.
U.S.C. 78o–3(b)(6).
10 15 U.S.C. 78s(b)(3)(A).
11 17 CFR 240.19b–4(f)(3).
Station Place, 100 F Street, NE.,
Washington, DC 20549–1090.
All submissions should refer to File
Number SR–NASD–2006–041. This file
number should be included on the
subject line if e-mail 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 Web site (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change, as amended, 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 filing also will be
available for inspection and copying at
the principal office of the NASD. All
comments received will be posted
without change; the Commission does
not edit personal identifying
information from submissions. You
should submit only information that
you wish to make available publicly.
All submissions should refer to File
Number SR–NASD–2006–041 and
should be submitted on or before June
2, 2006.
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.12
Nancy M. Morris,
Secretary.
[FR Doc. E6–7269 Filed 5–11–06; 8:45 am]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–53764; File No. SR–PCX–
2006–16]
Self-Regulatory Organizations; Pacific
Exchange, Inc. (n/k/a NYSE Arca, Inc.);
Notice of Filing of Proposed Rule
Change and Amendments No. 1 and
No. 2 Thereto To Revise Fees for
Equity Securities Issued by Operating
Companies Listed on the Archipelago
Exchange
May 5, 2006.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
8 15
9 15
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12 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
1 15
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Federal Register / Vol. 71, No. 92 / Friday, May 12, 2006 / Notices
notice is hereby given that on March 1,
2006, the Pacific Exchange, Inc. (n/k/a
NYSE Arca, Inc.) (‘‘NYSE Arca’’ or
‘‘Exchange’’), through its wholly owned
subsidiary PCX Equities, Inc. (n/k/a
NYSE Arca Equities, Inc.), 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 NYSE Arca.3 On March
17, 2006, the Exchange filed
Amendment No. 1 to the proposed rule
change.4 On May 5, 2006, the Exchange
filed Amendment No. 2 to the proposed
rule change.5 The Commission is
publishing this notice to solicit
comments on the proposed rule change,
as amended, from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The NYSE Arca proposes to amend its
Schedule of Fees and Charges (‘‘Fee
Schedule’’) to revise the application,
initial, annual and additional shares
listing fees for equity securities issued
by operating companies listed on the
Archipelago Exchange, the equities
facility of the Exchange. The Exchange
also proposes related modifications to
the Fee Schedule.
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
NYSE Arca included statements
concerning the purpose of, and basis for,
the proposed rule change as amended
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, the Proposed Rule
Change
sroberts on PROD1PC70 with NOTICES
1. Purpose
In connection with the recently
completed acquisition of the NYSE Arca
3 On March 6, 2006, the Pacific Exchange, Inc.
(‘‘PCX’’) filed a rule proposal, which was effective
upon filing, that amended its rules to reflect these
name changes: from PCX to NYSE Arca; from PCX
Equities, Inc. to NYSE Arca Equities, Inc.; from PCX
Holdings, Inc., to NYSE Arca Holdings, Inc.; and
from the Archipelago Exchange, L.L.C. to NYSE
Arca, L.L.C. See File No. SR–PCX–2006–24 (March
6, 2006).
4 See Amendment No. 1.
5 See Amendment No. 2.
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16:54 May 11, 2006
Jkt 208001
and Arca Equities by Archipelago
Holdings, Inc.—the parent of NYSE
Arca, L.L.C. (‘‘NYSE Arca
Marketplace’’)—and the now completed
merger between Archipelago Holdings,
Inc. and the New York Stock Exchange
(‘‘NYSE’’), NYSE Arca undertook a
review of its listings business and
competitive position in a rapidly
changing industry.6 As a result of this
review, the NYSE Arca determined to
make significant changes to the fees
associated with its listings program.
Accordingly, the NYSE Arca proposes to
revise, and in some cases increase, the
application, initial, annual and
additional share listing fees for equity
securities issued by operating
companies listed on NYSE Arca
Marketplace. This filing also proposes a
number of related modifications to the
Fee Schedule.7
The NYSE Arca believes this proposal
would enable it to compete effectively
for listings, while supporting the
ongoing costs of issuer services,
including regulatory oversight and
product and service offerings. This
proposal further seeks to streamline and
clarify the fees applicable to operating
companies, making them more
transparent and easier to understand
and apply.
a. Application Fee. Currently, the
NYSE Arca levies a non-refundable
application processing fee of $500,
credited towards the applicable initial
listing fee if the application is approved.
The Exchange proposes to eliminate the
application fee.
b. Maximum Total Fees Paid by an
Issuer Each Year. The NYSE Arca
proposes a maximum cap of $250,000
on the total fees paid each year by an
issuer. Currently, the Exchange does not
have such an issuer cap.
6 For instance, on December 8, 2005, Nasdaq
announced that it had completed its acquisition of
Instinet Group Incorporated, including INET ECN.
In addition, on August 24, 2005, the Boston Stock
Exchange, along with Citigroup, Credit Suisse First
Boston, Fidelity Brokerage Company and Lehman
Brothers, announced the formation of a new joint
venture that will launch an electronic stock
exchange, the Boston Equities Exchange. Further,
on August 16, 2005, the Philadelphia Stock
Exchange announced that Citigroup, Credit Suisse
First Boston, Morgan Stanley and UBS have each
acquired equity stakes in that exchange, with
provisions that allow for each firm to obtain
additional equity based on specific performance
criteria.
7 These proposed fee changes apply only to equity
securities issued by operating companies. They do
not apply to other types of listed issues, including
but not limited to open and closed-end funds,
exchange-traded funds, commodity-based trusts,
trust issued receipts, portfolio depositary receipts,
structured products and investment company units.
For these issues, the Fee Schedule remains
unchanged.
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27765
c. Listing Fee.8 Currently, the Listing
Fee applicable to common stock upon
first listing depends on whether the
stock is listed in conjunction with an
initial public offering (‘‘IPO’’) or not,
and whether it is classified as a Tier I
or Tier II listing.9 For IPOs listed
exclusively on Tier I,10 the Listing Fee
is based on the issuer’s total shares
outstanding (‘‘TSO’’), as follows:
TSO
Less than 10,000,000 ...............
10,000,001 to 30,000,000 ........
30,000,000 to $75,000,000 ......
Greater than $75,000,000 ........
Listing fee
$25,000
75,000
100,000
125,000
For IPOs listed exclusively on Tier
II,11 the current Listing Fee is fixed at
$25,000. For IPOs which dually list,
there is no Listing Fee, regardless of Tier
classification. There is also no Listing
Fee for already publicly-traded
companies which transfer their listings
from another marketplace, regardless of
whether such issuers are exclusively or
dually listed, their Tier classification, or
TSO.
To simplify and streamline these fees,
the NYSE Arca proposes to adopt new
Listing Fees based on TSO at the time
a security is listed on NYSE Arca
Marketplace, as follows: 12
TSO
Up to and including 30 million ..
30,000,001 up to and including
50 million ...............................
Over 50 million .........................
Listing fee
$100,000
125,000
150,000
These proposed fees also would apply
to each class of preferred stock or
warrant listed, whether or not the issuer
has common shares also listed.13
Further, these fees would apply
regardless of Tier classification or
whether the issue is exclusively or
8 There are two types of fees applicable to
issuers—Listing Fees and Annual Fees. Previously,
NYSE Arca referred to Listing Fees as Initial Listing
Fees and Additional Share Listing Fees. For ease of
application, in light of the completed merger
between Archipelago Holdings, Inc. and the NYSE,
NYSE Arca proposes to conform its fee
nomenclature to the NYSE’s nomenclature.
9 Tier I is designed for larger capitalization,
mature issuers; Tier II is for smaller issuing
companies. Both Tiers have their own set of listing
criteria.
10 See NYSE Arca Equities Rule 5.2(c).
11 See NYSE Arca Equities Rule 5.2(k).
12 For purposes of Listing Fee calculations, NYSE
Arca would include treasury stock, restricted stock
and shares issued in conjunction with the exercise
of an overallotment option, if applicable, in the
number of shares for which an issuer is billed at
the time a security is first listed.
13 As discussed below, for additional classes of
common stock when the issuer has a class of
common stock already listed, the Exchange would
levy a flat Listing Fee for initial listing of $5,000.
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sroberts on PROD1PC70 with NOTICES
dually listed. These proposed Listing
Fees also would apply to foreign private
issuers, but only to the extent their
securities are issued and outstanding in
the United States.14 However, in light of
the recently completed merger between
Archipelago Holdings, Inc. and the
NYSE, issuers that transfer their listing
to the NYSE Arca Marketplace from the
NYSE would not be subject to Listing
Fees upon initial listing.
For additional classes of common
stock, preferred stock, debt instruments,
purchase rights and warrants, the
current initial listing fee is $2,500,
regardless of whether such securities are
also listed elsewhere. These fees apply
to each additional issue listed,
regardless of shares outstanding or Tier
classification.
For additional classes of common
stock, the NYSE Arca proposes a flat
Listing Fee of $5,000 in lieu of the per
share schedule above.
The Listing Fee for debt instruments
and purchase rights remains $2,500.
d. Technical Original Listing Fee.15
Currently, the NYSE Arca charges a fee
for technical original listing
applications of $2,500. Under the
current rule, a technical original listing
occurs as a result of, for example:
• Change in the issuer’s state of
incorporation;
• Reincorporation under the laws of
the same state;
• Recapitalization;
• Creation of a holding company or a
new company by operation of law or
through an exchange offer; 16 or
• Similar events, which, in effect,
create a new security or which alters
any of its rights, preferences, privileges
or terms.
Additionally, this fee currently
applies 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.17 By the proposed rule change,
the NYSE Arca proposes to rename the
fee,18 to codify its current practice
regarding applying the fee,19 and to
14 See 17 CFR 240.3b–4 (defining ‘‘foreign private
issuer’’).
15 To conform to NYSE fee nomenclature, NYSE
Arca proposes to adopt the term ‘‘Technical
Original Listing’’ in place of ‘‘Substitute Initial
Listing.’’
16 The proposed new rule text regarding the
application of the fee in these circumstances
codifies the Exchange’s existing practice.
17 The proposed new rule text regarding the
application of the fee in these circumstances
codifies the Exchange’s existing practice.
18 See supra at n.15.
19 See supra at n.16 and n.17.
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16:54 May 11, 2006
Jkt 208001
are issued and outstanding in the
United States. The NYSE Arca would
calculate the Annual Fee for foreign
private issuers based on a four-quarter
average of the securities issued and
outstanding in the United States during
the preceding year.20
To the extent that an issuer that is
billed by NYSE Arca as a foreign private
issuer has a change in status that
requires the issuer to commence filing
U.S. periodic and annual reports with
TSO
Annual fee
the Commission during the course of a
Less than 10,000,000 ...............
$15,000 year, NYSE Arca would bill that issuer
10,000,001 to 50,000,000 ........
20,000 Listing and Annual Fees as a domestic
50,000,001 to 100,000,000 ......
35,000 issuer at the beginning of the first
Greater than 100,000,000 ........
50,000
calendar year following the issuer’s
change in status. An issuer that changes
For Tier II exclusive IPO listings, the
its status would not be subject to new
current annual Fee is $12,500,
Listing Fees for worldwide securities
regardless of TSO.
already issued and outstanding.
For dual listings in conjunction with
For additional classes of common
IPOs, and exclusive and dual listings of
stock, preferred stock, debt instruments,
already publicly-traded companies, the
purchase rights and warrants, the NYSE
Exchange does not levy an Annual Fee
Arca’s current Annual Fee is $500,
for the first 12-calendar months
regardless of whether they are also
following listing. At the end of this 12listed elsewhere. These fees apply to
month period, NYSE Arca proposes to
each such issue listed, regardless of
assess, on a pro-rated basis, the
shares outstanding or Tier classification.
applicable Annual Fee for the balance of
For issuers with more than one class
the then current calendar year, as
of common stock listed, the Exchange
follows:
proposes an Annual Fee of $20,000 or
• For exclusive IPO Listings, the
$0.000375 per share listed, whichever is
Annual Fee is based on the fees set forth greater, for each additional class of
above for exclusive IPOs, depending on
common stock.21
Tier classification;
For additional classes of preferred
• For dual IPO and exclusive and
stock where the issuer has a class of
dual non-IPO Listings, the Annual Fee
common or preferred stock already
is $10,000, regardless of Tier
listed, the Exchange proposes an
classification or shares outstanding.
Annual Fee of $5,000 or $0.000375 per
The current maximum Annual Fee
share, whichever is greater. Further, the
payable by a single issuer for all issues
NYSE Arca proposes an Annual Fee for
listed is $90,000. Annual Fees are not
each class of warrant listed of $5,000 or
pro-rated or reduced for securities that
$0.000375 per warrant, whichever is
delist for any reason.
greater. The Annual Fee for debt
The Exchange proposes an Annual
instruments and purchase rights would
Fee for listed issuers listing common or
remain $500.
preferred securities as follows: A
Issues would be subject to the Annual
minimum of $30,000 for issuers with up Fee in the year of listing, pro-rated
to and including 10 million TSO plus,
based on days listed that calendar year.
However, issuers that transfer their
for each share over 10 million TSO up
to and including 100 million TSO,
20 The purpose of utilizing a four-quarter average
issuers would be subject to an
is to recognize the possibility of flow-back and
additional per share charge of
flow-in of securities to and from the home country
$0.000375. For all issuers with TSO
market and more reasonably reflect the number of
above 100 million, the Annual Fee
securities in the United States over the course of the
would be a flat $85,000 per issue listed. year.
21 For purposes of Annual Fee calculation when
For example, an issuer with 54.5 million
an issuer has multiple classes of common stock
TSO would pay an Annual Fee of
listed, the NYSE Arca would assess the class of
$46,687.50 ($30,000 plus $0.000375
common stock with the highest TSO the Annual
times 44.5 million), an issuer with 100
Fee proposed above for listed issuers, that is, a
minimum Annual Fee of $30,000 for up to and
million TSO would pay an Annual Fee
including 10 million TSO plus, if applicable, a per
of $63,750 ($30,000 plus $0.000375
share charge of $0.000375 on each share over 10
times 90 million), and an issuer with
million up to and including 100 million TSO,
110 million TSO would pay the
subject to the $85,000 maximum Annual Fee per
issue. For each additional class of common stock
maximum Annual Fee of $85,000 per
listed, the NYSE Arca would assess Annual Fees as
issue. These proposed Annual Fees
proposed above for additional classes, that is, an
would also apply to foreign private
Annual Fee of $20,000 or $0.000375 per share
issuers, but only to the extent securities listed, whichever is greater.
increase the amount of the fee to $5,000
per application.
e. Annual Fee. Currently, the Annual
Fee depends on whether a security was
listed in conjunction with an IPO,
whether the security is listed
exclusively or dually, and Tier
classification. For Tier I exclusive IPO
listings, the current Annual Fee is based
on TSO, as follows:
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listing from the NYSE to the NYSE Arca
Marketplace would, for the year of
transfer, be subject only to the
applicable NYSE Annual Fee billed for
that year and, in subsequent years, such
issuers would pay the applicable NYSE
Arca Marketplace Annual Fee; similarly,
issuers that transfer their listings from
NYSE Arca Marketplace to the NYSE
would, for the year of transfer, be
subject only to the applicable NYSE
Arca Marketplace Annual Fee billed for
that year and, in subsequent years, such
issuers would pay applicable NYSE
Annual Fees.
f. Subsequent Listing of Additional
Securities.22 Currently, the fee
applicable to all issuers for Subsequent
Listing of Additional Securities is
$.0025 per additional share listed,
assessed beginning with the 100,000th
additional share listed per application.
There is no charge per application for
the first 99,999 additional shares listed.
For domestic issuers, the minimum and
a maximum charge per application
currently depends on whether an issue
is exclusively or dually listed, as
follows:
• For all exclusive listings, the
maximum charge per application is
$15,000 and the annual maximum
charge is $30,000;
• For all dual listings, the maximum
charge per application is $7,500 and the
maximum annual charge is $14,000; and
• For all applications to list
additional shares, the current minimum
charge is $500.
In addition, for American Depositary
Receipts (‘‘ADRs’’) and American
Depositary Shares (‘‘ADSs’’) only, NYSE
Arca’s current maximum additional
shares listing charge per year is $10,000,
the minimum charge per application is
$500, and the maximum per application
charge at $7,500. These fees are assessed
only on the ADRs and ADSs that are
issued and outstanding in the United
States.
For an issuer to list additional shares
of a class of previously listed securities,
NYSE Arca proposes to adopt the
following schedule, subject to a
minimum fee of $5,000 per application:
to the number of shares already listed
and outstanding (including treasury
stock and restricted stock). This
schedule applies to subsequent
issuances of common stock, preferred
stock and warrants.
These fees would be assessed as
follows, subject to any maximum on
fees paid by an issuer per year:
• To the extent that an issuer submits
a supplemental listing application for
shares that are immediately issued, such
as in connection with a merger or
acquisition, stock split or stock
dividend, Listing Fees for those shares
would be billed at the time the
supplemental listing application is
processed.
• However, to the extent an issuer
submits a supplemental listing
application for shares that are not issued
at the time of listing, such as for an
equity compensation plan or for
convertible securities where the listed
securities will be issued over time, only
the $5,000 minimum supplemental
listing application fee would be billed at
the time the supplemental listing
application is processed. Listing Fees
would accrue on these securities as of
the date of issuance and the accrued
Listing Fees would be billed at the
beginning of the following year along
with the issuer’s Annual Fees.
These fees would also apply to foreign
private issuers, but only to the extent
securities are issued and outstanding in
the United States, subject to any
maximum on fees paid by an issuer per
year. In addition, issuers that transfer
their listing to the NYSE Arca
Marketplace from the NYSE would be
subject to these fees.
g. Miscellaneous Administrative Fees.
Currently, NYSE Arca charges $250 to
administer certain modifications to
NYSE Arca records. The Exchange,
stating that this fee has not been
increased in many years, proposes to
increase this fee to $2,500 per
modification, which includes changes
in company name, symbol, par value,
and title of security or designation. The
fee would also apply to poison pill
plans (also known as shareholder rights
plans).
h. Maximum Listing Fee for Stock
Fee per
Number of securities issued
share
Splits and Stock Dividends. The NYSE
Arca proposes that Listing Fees on
Up to and including 75 million
$0.0048
shares issued in conjunction with stock
75,000,001 to 300 million .......
0.00375
splits and stock dividends be capped at
Over 300 million .....................
0.0019
$150,000 per split or issuance, subject to
the $250,000 maximum on total fees
The Listing Fees for subsequent
paid each year by an issuer. Currently,
listings of additional shares are
calculated starting at the rate applicable the Exchange does not have such a cap.
i. Listing Fee Discounts. In the case of
transactions such as a consolidation
22 Previously, the NYSE Arca referred to
between two or more listed issuers that
Subsequent Listing of Additional Securities as
Additional Shares Listing.
result in the formation of a new issuer
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16:54 May 11, 2006
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that immediately lists upon
consummation of the consolidation, or a
merger between a listed issuer and an
unlisted issuer that results in the
unlisted issuer surviving or the creation
of a new issuer (which lists within 12
months from the consummation of the
transaction), Listing Fees for that newly
listed issuer would be 25% of the
Listing Fee for each class of securities
being listed, up to 25% of the maximum
applicable to the issue(s) listed. No
discount would be applied, however,
where a listed issuer survives the
merger or consolidation, or in the case
of a backdoor (or ‘‘reverse’’) merger.
j. Rule Change Implementation. The
NYSE Arca proposes to implement these
revised fees, as applicable, for all
currently listed issuers upon
effectiveness of this proposal, except as
follows:
• For calendar year 2006, NYSE Arca
proposes that issuers listed on NYSE
Arca Marketplace, and issuers with
listing applications pending as of the
effective date of this proposal, would
continue to be subject to the current Fee
Schedule. As of January 1, 2007,
however, all such issuers would be
subject to the Fee Schedule as proposed
to be revised.
• Further, NYSE Arca proposes, for
the period through December 31, 2007,
that all issuers which transfer their
listings from Nasdaq or the American
Stock Exchange, or apply to list during
that time, would not be subject to
Listing Fees upon initial listing. Such
issuers, however, would be subject to
Annual Fees and Fees for Subsequent
Listing of Additional Securities, as
proposed above. Going forward, NYSE
Arca would consider whether to extend
this period beyond December 31, 2007,
and would make any necessary
proposals under Rule 19b–4 prior to that
date.
2. Statutory Basis
The NYSE Arca believes that the
proposal is consistent with Section 6(b)
of the Act 23 in general, and Section
6(b)(4) of the Act 24 in particular, in that
it provides for the equitable allocation
of reasonable dues, fees and other
charges among its ETP Holders, issuers,
and other persons using its facilities.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange believes that the
proposed rule change would not impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act.
2315
2415
E:\FR\FM\12MYN1.SGM
U.S.C. 78f(b).
U.S.C. 78f(b)(4).
12MYN1
27768
Federal Register / Vol. 71, No. 92 / Friday, May 12, 2006 / Notices
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants or Others
The Exchange has not solicited, and
does not intend to solicit, comments on
this proposed rule change. The
Exchange has not received any written
comments from members or other
interested parties.
III. Date of Effectiveness of the
Proposed Rule
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 self-regulatory
organization 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.
Comments may be submitted by any of
the following methods:
Electronic comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
No. SR–PCX–2006–16 on the subject
line.
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 filing also will be
available for inspection and copying at
the principal office of the NYSE Arca.
All comments received will be posted
without change; the Commission does
not edit personal identifying
information from submissions. You
should submit only information that
you wish to make available publicly. All
submissions should refer to File
Number SR–PCX–2006–16 and should
be submitted by June 2, 2006.
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.25
Nancy M. Morris,
Secretary.
[FR Doc. E6–7270 Filed 5–11–06; 8:45 am]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–53761; File No. SR–Phlx–
2006–20]
Self-Regulatory Organizations;
Philadelphia Stock Exchange, Inc.;
Notice of Filing and Immediate
Effectiveness of Proposed Rule
Change and Amendment No. 2 Thereto
Establishing a Pilot Option Transaction
Charge Credit for Specialists That
Send Certain Principal Acting as Agent
Orders for Execution Via the
Intermarket Option Linkage
May 5, 2006.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
• Send paper comments in triplicate
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
to Nancy M. Morris, Secretary,
notice is hereby given that on March 31,
Securities and Exchange Commission,
2006, the Philadelphia Stock Exchange,
100 F Street, NE., Washington, DC
Inc. (‘‘Phlx’’ or ‘‘Exchange’’) filed with
20549–1090.
the Securities and Exchange
All submissions should refer to File
Commission (‘‘Commission’’) the
Number SR–PCX–2006–16. This file
proposed rule change as described in
number should be included on the
Items I, II and III below, which Items
subject line if e-mail is used. To help the have been prepared by the Exchange.
Commission process and review your
On April 25, 2006, the Exchange filed
comments more efficiently, please use
Amendment No. 1 to the proposed rule
only one method. The Commission will change, and withdrew Amendment No.
post all comments on the Commissions
1 on May 4, 2006. On May 5, 2006, the
Internet Web site (https://www.sec.gov/
Exchange filed Amendment No. 2.3 The
rules/sro.shtml). Copies of the
25 17 CFR 200.30–3(a)(12).
submission, all subsequent
1 15 U.S.C. 78s(b)(1).
amendments, all written statements
2 17 CFR 240.19b–4.
with respect to the proposed rule
3 In Amendment No. 2, the Exchange clarified
change that are filed with the
that the proposed rule change is a pilot that will
Commission, and all written
expire on July 31, 2006. In Amendment No. 2, the
Exchange also clarified the purpose of the proposed
communications relating to the
sroberts on PROD1PC70 with NOTICES
Paper Comments
VerDate Aug<31>2005
16:54 May 11, 2006
Jkt 208001
PO 00000
Frm 00108
Fmt 4703
Sfmt 4703
Exchange has designated this proposal
as one establishing or changing a due,
fee, or other charge imposed by a selfregulatory organization pursuant to
Section 19(b)(3)(A)(ii) of the Act 4 and
Rule 19b–4(f)(2) thereunder,5 which
renders the proposal effective upon
filing with the Commission.6 The
Commission is publishing this notice to
solicit comments on the proposed rule
change, as amended, from interested
persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to establish
an option transaction charge credit of
$0.21 per contract for Exchange options
specialist units7 that incur Phlx option
transaction charges when a customer
order is delivered to the limit order
book via the Exchange’s Options Floor
Broker Management System (‘‘FBMS’’) 8
and is then sent to an away market and
executed via the Intermarket Option
Linkage (‘‘Linkage’’) under the Plan for
the Purpose of Creating and Operating
an Intermarket Option Linkage (
‘‘Plan’’) 9 as a Principal Acting as Agent
Order (‘‘P/A Order’’).10
This proposal is a pilot that will
expire on July 31, 2006, is in connection
rule change and made technical changes to the
proposed rule change, including the proposed rule
text.
4 15 U.S.C. 78s(b)(3)(A)(ii).
5 17 CFR 240.19b–4(f)(2).
6 For purposes of calculating the 60-day period
within which the Commission may summarily
abrogate the proposed rule change the Commission
considers the period to commence on May 5, 2006,
the date on which the Exchange filed Amendment
No. 2. See 15 U.S.C. 78s(b)(3)(C).
7 The Exchange uses the terms ‘‘specialist’’ and
‘‘specialist unit’’ interchangeably in its proposed
rule change.
8 The FBMS is a component of the Exchange’s
Automated Options Market (AUTOM) System
designed to enable Floor Brokers and/or their
employees to enter, route and report transactions
stemming from options orders received on the
Exchange. The Options FBMS also is designed to
establish an electronic audit trail for options orders
represented and executed by Floor Brokers on the
Exchange, such that the audit trial provides an
accurate, time-sequenced record of electronic and
other orders, quotations and transactions on the
Exchange, beginning with the receipt of an order by
the Exchange, and further documenting the life of
the order through the process of execution, partial
execution, or cancellation of that order. See Phlx
Rule 1080, Commentary .06.
9 See Securities Exchange Act Release Nos. 43086
(July 28, 2000), 65 FR 48023 (August 4, 2000); and
43573 (November 16, 2000), 65 FR 70851
(November 28, 2000) (order approving Phlx as a
participant in the Plan).
10 A P/A Order is an order for the principal
account of a specialist (or equivalent entity on
another participant exchange that is authorized to
represent public customer orders), reflecting the
terms of a related unexecuted public customer order
for which the specialist is acting as agent. See Phlx
Rule 1083(k)(i).
E:\FR\FM\12MYN1.SGM
12MYN1
]]>Agencies
[Federal Register Volume 71, Number 92 (Friday, May 12, 2006)]
[Notices]
[Pages 27764-27768]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-7270]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-53764; File No. SR-PCX-2006-16]
Self-Regulatory Organizations; Pacific Exchange, Inc. (n/k/a NYSE
Arca, Inc.); Notice of Filing of Proposed Rule Change and Amendments
No. 1 and No. 2 Thereto To Revise Fees for Equity Securities Issued by
Operating Companies Listed on the Archipelago Exchange
May 5, 2006.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\
[[Page 27765]]
notice is hereby given that on March 1, 2006, the Pacific Exchange,
Inc. (n/k/a NYSE Arca, Inc.) (``NYSE Arca'' or ``Exchange''), through
its wholly owned subsidiary PCX Equities, Inc. (n/k/a NYSE Arca
Equities, Inc.), 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 NYSE Arca.\3\ On
March 17, 2006, the Exchange filed Amendment No. 1 to the proposed rule
change.\4\ On May 5, 2006, the Exchange filed Amendment No. 2 to the
proposed rule change.\5\ The Commission is publishing this notice to
solicit comments on the proposed rule change, as amended, from
interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ On March 6, 2006, the Pacific Exchange, Inc. (``PCX'') filed
a rule proposal, which was effective upon filing, that amended its
rules to reflect these name changes: from PCX to NYSE Arca; from PCX
Equities, Inc. to NYSE Arca Equities, Inc.; from PCX Holdings, Inc.,
to NYSE Arca Holdings, Inc.; and from the Archipelago Exchange,
L.L.C. to NYSE Arca, L.L.C. See File No. SR-PCX-2006-24 (March 6,
2006).
\4\ See Amendment No. 1.
\5\ See Amendment No. 2.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The NYSE Arca proposes to amend its Schedule of Fees and Charges
(``Fee Schedule'') to revise the application, initial, annual and
additional shares listing fees for equity securities issued by
operating companies listed on the Archipelago Exchange, the equities
facility of the Exchange. The Exchange also proposes related
modifications to the Fee Schedule.
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 NYSE Arca included
statements concerning the purpose of, and basis for, the proposed rule
change as amended 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, the Proposed Rule Change
1. Purpose
In connection with the recently completed acquisition of the NYSE
Arca and Arca Equities by Archipelago Holdings, Inc.--the parent of
NYSE Arca, L.L.C. (``NYSE Arca Marketplace'')--and the now completed
merger between Archipelago Holdings, Inc. and the New York Stock
Exchange (``NYSE''), NYSE Arca undertook a review of its listings
business and competitive position in a rapidly changing industry.\6\ As
a result of this review, the NYSE Arca determined to make significant
changes to the fees associated with its listings program. Accordingly,
the NYSE Arca proposes to revise, and in some cases increase, the
application, initial, annual and additional share listing fees for
equity securities issued by operating companies listed on NYSE Arca
Marketplace. This filing also proposes a number of related
modifications to the Fee Schedule.\7\
---------------------------------------------------------------------------
\6\ For instance, on December 8, 2005, Nasdaq announced that it
had completed its acquisition of Instinet Group Incorporated,
including INET ECN. In addition, on August 24, 2005, the Boston
Stock Exchange, along with Citigroup, Credit Suisse First Boston,
Fidelity Brokerage Company and Lehman Brothers, announced the
formation of a new joint venture that will launch an electronic
stock exchange, the Boston Equities Exchange. Further, on August 16,
2005, the Philadelphia Stock Exchange announced that Citigroup,
Credit Suisse First Boston, Morgan Stanley and UBS have each
acquired equity stakes in that exchange, with provisions that allow
for each firm to obtain additional equity based on specific
performance criteria.
\7\ These proposed fee changes apply only to equity securities
issued by operating companies. They do not apply to other types of
listed issues, including but not limited to open and closed-end
funds, exchange-traded funds, commodity-based trusts, trust issued
receipts, portfolio depositary receipts, structured products and
investment company units. For these issues, the Fee Schedule remains
unchanged.
---------------------------------------------------------------------------
The NYSE Arca believes this proposal would enable it to compete
effectively for listings, while supporting the ongoing costs of issuer
services, including regulatory oversight and product and service
offerings. This proposal further seeks to streamline and clarify the
fees applicable to operating companies, making them more transparent
and easier to understand and apply.
a. Application Fee. Currently, the NYSE Arca levies a non-
refundable application processing fee of $500, credited towards the
applicable initial listing fee if the application is approved. The
Exchange proposes to eliminate the application fee.
b. Maximum Total Fees Paid by an Issuer Each Year. The NYSE Arca
proposes a maximum cap of $250,000 on the total fees paid each year by
an issuer. Currently, the Exchange does not have such an issuer cap.
c. Listing Fee.\8\ Currently, the Listing Fee applicable to common
stock upon first listing depends on whether the stock is listed in
conjunction with an initial public offering (``IPO'') or not, and
whether it is classified as a Tier I or Tier II listing.\9\ For IPOs
listed exclusively on Tier I,\10\ the Listing Fee is based on the
issuer's total shares outstanding (``TSO''), as follows:
---------------------------------------------------------------------------
\8\ There are two types of fees applicable to issuers--Listing
Fees and Annual Fees. Previously, NYSE Arca referred to Listing Fees
as Initial Listing Fees and Additional Share Listing Fees. For ease
of application, in light of the completed merger between Archipelago
Holdings, Inc. and the NYSE, NYSE Arca proposes to conform its fee
nomenclature to the NYSE's nomenclature.
\9\ Tier I is designed for larger capitalization, mature
issuers; Tier II is for smaller issuing companies. Both Tiers have
their own set of listing criteria.
\10\ See NYSE Arca Equities Rule 5.2(c).
------------------------------------------------------------------------
TSO Listing fee
------------------------------------------------------------------------
Less than 10,000,000....................................... $25,000
10,000,001 to 30,000,000................................... 75,000
30,000,000 to $75,000,000.................................. 100,000
Greater than $75,000,000................................... 125,000
------------------------------------------------------------------------
For IPOs listed exclusively on Tier II,\11\ the current Listing Fee
is fixed at $25,000. For IPOs which dually list, there is no Listing
Fee, regardless of Tier classification. There is also no Listing Fee
for already publicly-traded companies which transfer their listings
from another marketplace, regardless of whether such issuers are
exclusively or dually listed, their Tier classification, or TSO.
---------------------------------------------------------------------------
\11\ See NYSE Arca Equities Rule 5.2(k).
---------------------------------------------------------------------------
To simplify and streamline these fees, the NYSE Arca proposes to
adopt new Listing Fees based on TSO at the time a security is listed on
NYSE Arca Marketplace, as follows: \12\
---------------------------------------------------------------------------
\12\ For purposes of Listing Fee calculations, NYSE Arca would
include treasury stock, restricted stock and shares issued in
conjunction with the exercise of an overallotment option, if
applicable, in the number of shares for which an issuer is billed at
the time a security is first listed.
------------------------------------------------------------------------
TSO Listing fee
------------------------------------------------------------------------
Up to and including 30 million............................. $100,000
30,000,001 up to and including 50 million.................. 125,000
Over 50 million............................................ 150,000
------------------------------------------------------------------------
These proposed fees also would apply to each class of preferred
stock or warrant listed, whether or not the issuer has common shares
also listed.\13\ Further, these fees would apply regardless of Tier
classification or whether the issue is exclusively or
[[Page 27766]]
dually listed. These proposed Listing Fees also would apply to foreign
private issuers, but only to the extent their securities are issued and
outstanding in the United States.\14\ However, in light of the recently
completed merger between Archipelago Holdings, Inc. and the NYSE,
issuers that transfer their listing to the NYSE Arca Marketplace from
the NYSE would not be subject to Listing Fees upon initial listing.
---------------------------------------------------------------------------
\13\ As discussed below, for additional classes of common stock
when the issuer has a class of common stock already listed, the
Exchange would levy a flat Listing Fee for initial listing of
$5,000.
\14\ See 17 CFR 240.3b-4 (defining ``foreign private issuer'').
---------------------------------------------------------------------------
For additional classes of common stock, preferred stock, debt
instruments, purchase rights and warrants, the current initial listing
fee is $2,500, regardless of whether such securities are also listed
elsewhere. These fees apply to each additional issue listed, regardless
of shares outstanding or Tier classification.
For additional classes of common stock, the NYSE Arca proposes a
flat Listing Fee of $5,000 in lieu of the per share schedule above.
The Listing Fee for debt instruments and purchase rights remains
$2,500.
d. Technical Original Listing Fee.\15\ Currently, the NYSE Arca
charges a fee for technical original listing applications of $2,500.
Under the current rule, a technical original listing occurs as a result
of, for example:
---------------------------------------------------------------------------
\15\ To conform to NYSE fee nomenclature, NYSE Arca proposes to
adopt the term ``Technical Original Listing'' in place of
``Substitute Initial Listing.''
---------------------------------------------------------------------------
Change in the issuer's state of incorporation;
Reincorporation under the laws of the same state;
Recapitalization;
Creation of a holding company or a new company by
operation of law or through an exchange offer; \16\ or
---------------------------------------------------------------------------
\16\ The proposed new rule text regarding the application of the
fee in these circumstances codifies the Exchange's existing
practice.
---------------------------------------------------------------------------
Similar events, which, in effect, create a new security or
which alters any of its rights, preferences, privileges or terms.
Additionally, this fee currently applies 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.\17\
By the proposed rule change, the NYSE Arca proposes to rename the
fee,\18\ to codify its current practice regarding applying the fee,\19\
and to increase the amount of the fee to $5,000 per application.
---------------------------------------------------------------------------
\17\ The proposed new rule text regarding the application of the
fee in these circumstances codifies the Exchange's existing
practice.
\18\ See supra at n.15.
\19\ See supra at n.16 and n.17.
---------------------------------------------------------------------------
e. Annual Fee. Currently, the Annual Fee depends on whether a
security was listed in conjunction with an IPO, whether the security is
listed exclusively or dually, and Tier classification. For Tier I
exclusive IPO listings, the current Annual Fee is based on TSO, as
follows:
------------------------------------------------------------------------
TSO Annual fee
------------------------------------------------------------------------
Less than 10,000,000....................................... $15,000
10,000,001 to 50,000,000................................... 20,000
50,000,001 to 100,000,000.................................. 35,000
Greater than 100,000,000................................... 50,000
------------------------------------------------------------------------
For Tier II exclusive IPO listings, the current annual Fee is
$12,500, regardless of TSO.
For dual listings in conjunction with IPOs, and exclusive and dual
listings of already publicly-traded companies, the Exchange does not
levy an Annual Fee for the first 12-calendar months following listing.
At the end of this 12-month period, NYSE Arca proposes to assess, on a
pro-rated basis, the applicable Annual Fee for the balance of the then
current calendar year, as follows:
For exclusive IPO Listings, the Annual Fee is based on the
fees set forth above for exclusive IPOs, depending on Tier
classification;
For dual IPO and exclusive and dual non-IPO Listings, the
Annual Fee is $10,000, regardless of Tier classification or shares
outstanding.
The current maximum Annual Fee payable by a single issuer for all
issues listed is $90,000. Annual Fees are not pro-rated or reduced for
securities that delist for any reason.
The Exchange proposes an Annual Fee for listed issuers listing
common or preferred securities as follows: A minimum of $30,000 for
issuers with up to and including 10 million TSO plus, for each share
over 10 million TSO up to and including 100 million TSO, issuers would
be subject to an additional per share charge of $0.000375. For all
issuers with TSO above 100 million, the Annual Fee would be a flat
$85,000 per issue listed. For example, an issuer with 54.5 million TSO
would pay an Annual Fee of $46,687.50 ($30,000 plus $0.000375 times
44.5 million), an issuer with 100 million TSO would pay an Annual Fee
of $63,750 ($30,000 plus $0.000375 times 90 million), and an issuer
with 110 million TSO would pay the maximum Annual Fee of $85,000 per
issue. These proposed Annual Fees would also apply to foreign private
issuers, but only to the extent securities are issued and outstanding
in the United States. The NYSE Arca would calculate the Annual Fee for
foreign private issuers based on a four-quarter average of the
securities issued and outstanding in the United States during the
preceding year.\20\
---------------------------------------------------------------------------
\20\ The purpose of utilizing a four-quarter average is to
recognize the possibility of flow-back and flow-in of securities to
and from the home country market and more reasonably reflect the
number of securities in the United States over the course of the
year.
---------------------------------------------------------------------------
To the extent that an issuer that is billed by NYSE Arca as a
foreign private issuer has a change in status that requires the issuer
to commence filing U.S. periodic and annual reports with the Commission
during the course of a year, NYSE Arca would bill that issuer Listing
and Annual Fees as a domestic issuer at the beginning of the first
calendar year following the issuer's change in status. An issuer that
changes its status would not be subject to new Listing Fees for
worldwide securities already issued and outstanding.
For additional classes of common stock, preferred stock, debt
instruments, purchase rights and warrants, the NYSE Arca's current
Annual Fee is $500, regardless of whether they are also listed
elsewhere. These fees apply to each such issue listed, regardless of
shares outstanding or Tier classification.
For issuers with more than one class of common stock listed, the
Exchange proposes an Annual Fee of $20,000 or $0.000375 per share
listed, whichever is greater, for each additional class of common
stock.\21\
---------------------------------------------------------------------------
\21\ For purposes of Annual Fee calculation when an issuer has
multiple classes of common stock listed, the NYSE Arca would assess
the class of common stock with the highest TSO the Annual Fee
proposed above for listed issuers, that is, a minimum Annual Fee of
$30,000 for up to and including 10 million TSO plus, if applicable,
a per share charge of $0.000375 on each share over 10 million up to
and including 100 million TSO, subject to the $85,000 maximum Annual
Fee per issue. For each additional class of common stock listed, the
NYSE Arca would assess Annual Fees as proposed above for additional
classes, that is, an Annual Fee of $20,000 or $0.000375 per share
listed, whichever is greater.
---------------------------------------------------------------------------
For additional classes of preferred stock where the issuer has a
class of common or preferred stock already listed, the Exchange
proposes an Annual Fee of $5,000 or $0.000375 per share, whichever is
greater. Further, the NYSE Arca proposes an Annual Fee for each class
of warrant listed of $5,000 or $0.000375 per warrant, whichever is
greater. The Annual Fee for debt instruments and purchase rights would
remain $500.
Issues would be subject to the Annual Fee in the year of listing,
pro-rated based on days listed that calendar year. However, issuers
that transfer their
[[Page 27767]]
listing from the NYSE to the NYSE Arca Marketplace would, for the year
of transfer, be subject only to the applicable NYSE Annual Fee billed
for that year and, in subsequent years, such issuers would pay the
applicable NYSE Arca Marketplace Annual Fee; similarly, issuers that
transfer their listings from NYSE Arca Marketplace to the NYSE would,
for the year of transfer, be subject only to the applicable NYSE Arca
Marketplace Annual Fee billed for that year and, in subsequent years,
such issuers would pay applicable NYSE Annual Fees.
f. Subsequent Listing of Additional Securities.\22\ Currently, the
fee applicable to all issuers for Subsequent Listing of Additional
Securities is $.0025 per additional share listed, assessed beginning
with the 100,000th additional share listed per application. There is no
charge per application for the first 99,999 additional shares listed.
For domestic issuers, the minimum and a maximum charge per application
currently depends on whether an issue is exclusively or dually listed,
as follows:
---------------------------------------------------------------------------
\22\ Previously, the NYSE Arca referred to Subsequent Listing of
Additional Securities as Additional Shares Listing.
---------------------------------------------------------------------------
For all exclusive listings, the maximum charge per
application is $15,000 and the annual maximum charge is $30,000;
For all dual listings, the maximum charge per application
is $7,500 and the maximum annual charge is $14,000; and
For all applications to list additional shares, the
current minimum charge is $500.
In addition, for American Depositary Receipts (``ADRs'') and
American Depositary Shares (``ADSs'') only, NYSE Arca's current maximum
additional shares listing charge per year is $10,000, the minimum
charge per application is $500, and the maximum per application charge
at $7,500. These fees are assessed only on the ADRs and ADSs that are
issued and outstanding in the United States.
For an issuer to list additional shares of a class of previously
listed securities, NYSE Arca proposes to adopt the following schedule,
subject to a minimum fee of $5,000 per application:
------------------------------------------------------------------------
Fee per
Number of securities issued share
------------------------------------------------------------------------
Up to and including 75 million............................ $0.0048
75,000,001 to 300 million................................. 0.00375
Over 300 million.......................................... 0.0019
------------------------------------------------------------------------
The Listing Fees for subsequent listings of additional shares are
calculated starting at the rate applicable to the number of shares
already listed and outstanding (including treasury stock and restricted
stock). This schedule applies to subsequent issuances of common stock,
preferred stock and warrants.
These fees would be assessed as follows, subject to any maximum on
fees paid by an issuer per year:
To the extent that an issuer submits a supplemental
listing application for shares that are immediately issued, such as in
connection with a merger or acquisition, stock split or stock dividend,
Listing Fees for those shares would be billed at the time the
supplemental listing application is processed.
However, to the extent an issuer submits a supplemental
listing application for shares that are not issued at the time of
listing, such as for an equity compensation plan or for convertible
securities where the listed securities will be issued over time, only
the $5,000 minimum supplemental listing application fee would be billed
at the time the supplemental listing application is processed. Listing
Fees would accrue on these securities as of the date of issuance and
the accrued Listing Fees would be billed at the beginning of the
following year along with the issuer's Annual Fees.
These fees would also apply to foreign private issuers, but only to
the extent securities are issued and outstanding in the United States,
subject to any maximum on fees paid by an issuer per year. In addition,
issuers that transfer their listing to the NYSE Arca Marketplace from
the NYSE would be subject to these fees.
g. Miscellaneous Administrative Fees. Currently, NYSE Arca charges
$250 to administer certain modifications to NYSE Arca records. The
Exchange, stating that this fee has not been increased in many years,
proposes to increase this fee to $2,500 per modification, which
includes changes in company name, symbol, par value, and title of
security or designation. The fee would also apply to poison pill plans
(also known as shareholder rights plans).
h. Maximum Listing Fee for Stock Splits and Stock Dividends. The
NYSE Arca proposes that Listing Fees on shares issued in conjunction
with stock splits and stock dividends be capped at $150,000 per split
or issuance, subject to the $250,000 maximum on total fees paid each
year by an issuer. Currently, the Exchange does not have such a cap.
i. Listing Fee Discounts. In the case of transactions such as a
consolidation between two or more listed issuers that result in the
formation of a new issuer that immediately lists upon consummation of
the consolidation, or a merger between a listed issuer and an unlisted
issuer that results in the unlisted issuer surviving or the creation of
a new issuer (which lists within 12 months from the consummation of the
transaction), Listing Fees for that newly listed issuer would be 25% of
the Listing Fee for each class of securities being listed, up to 25% of
the maximum applicable to the issue(s) listed. No discount would be
applied, however, where a listed issuer survives the merger or
consolidation, or in the case of a backdoor (or ``reverse'') merger.
j. Rule Change Implementation. The NYSE Arca proposes to implement
these revised fees, as applicable, for all currently listed issuers
upon effectiveness of this proposal, except as follows:
For calendar year 2006, NYSE Arca proposes that issuers
listed on NYSE Arca Marketplace, and issuers with listing applications
pending as of the effective date of this proposal, would continue to be
subject to the current Fee Schedule. As of January 1, 2007, however,
all such issuers would be subject to the Fee Schedule as proposed to be
revised.
Further, NYSE Arca proposes, for the period through
December 31, 2007, that all issuers which transfer their listings from
Nasdaq or the American Stock Exchange, or apply to list during that
time, would not be subject to Listing Fees upon initial listing. Such
issuers, however, would be subject to Annual Fees and Fees for
Subsequent Listing of Additional Securities, as proposed above. Going
forward, NYSE Arca would consider whether to extend this period beyond
December 31, 2007, and would make any necessary proposals under Rule
19b-4 prior to that date.
2. Statutory Basis
The NYSE Arca believes that the proposal is consistent with Section
6(b) of the Act \23\ in general, and Section 6(b)(4) of the Act \24\ in
particular, in that it provides for the equitable allocation of
reasonable dues, fees and other charges among its ETP Holders, issuers,
and other persons using its facilities.
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\23\15 U.S.C. 78f(b).
\24\15 U.S.C. 78f(b)(4).
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B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange believes that the proposed rule change would not
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
[[Page 27768]]
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
The Exchange has not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any written comments from members or other interested parties.
III. Date of Effectiveness of the Proposed Rule
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 self-regulatory organization 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. Comments may be submitted by any of
the following methods:
Electronic comments
Use the Commission's Internet comment form (https://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File No. SR-PCX-2006-16 on the subject line.
Paper Comments
Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-PCX-2006-16. This file
number should be included on the subject line if e-mail 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 Commissions Internet Web site (https://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 inspection and copying in the
Commission's Public Reference Room. Copies of such filing also will be
available for inspection and copying at the principal office of the
NYSE Arca. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-PCX-
2006-16 and should be submitted by June 2, 2006.
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\25\
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\25\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. E6-7270 Filed 5-11-06; 8:45 am]
BILLING CODE 8010-01-P
