Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order Granting Approval to a Proposed Rule Change Relating to the Waiver of Fees upon Relisting of Companies Removed for Late Filings, 32152-32153 [E7-11157]

Download as PDF 32152 Federal Register / Vol. 72, No. 111 / Monday, June 11, 2007 / Notices that the rules of an exchange be designed to promote just and equitable principles of trade, to prevent fraudulent and manipulative acts and, in general, to protect investors and the public interest. B. Self-Regulatory Organization’s Statement on Burden on Competition CBOE 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. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others The Exchange neither solicited nor received comments on the proposal. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the foregoing rule does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, provided that the selfregulatory organization has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing of the proposed rule change or such shorter time as designated by the Commission, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 10 and Rule 19b–4(f)(6) thereunder.11 At any time within 60 days of the filing of such 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. rmajette on DSK8KYBLC1PROD with MISCELLANEOUS 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: U.S.C. 78s(b)(3)(A). CFR 240.19b–4(f)(6). The Exchange provided the Commission with written notice of its intention to file the proposed rule change on May 16, 2007. 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–CBOE–2007–56 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. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.12 Florence E. Harmon, Deputy Secretary. [FR Doc. E7–11158 Filed 6–8–07; 8:45 am] BILLING CODE 8010–01–P 11 17 12:15 Mar 07, 2011 Jkt 223001 [Release No. 34–55832; File No. SR– NASDAQ–2007–040] Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order Granting Approval to a Proposed Rule Change Relating to the Waiver of Fees upon Relisting of Companies Removed for Late Filings May 31, 2007. On April 4, 2007, The NASDAQ Stock Market LLC (‘‘Nasdaq’’) filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to Section 19(b)(1) of the Securities Exchange Act All submissions should refer to File of 1934 (‘‘Act’’) 1 and Rule 19b–4 Number SR–CBOE–2007–56. This file thereunder,2 a proposed rule change to number should be included on the waive fees upon the relisting of subject line if e-mail is used. To help the companies removed for late filings. The Commission process and review your proposed rule change was published for comments more efficiently, please use comment in the Federal Register on only one method. The Commission will April 25, 2007.3 The Commission post all comments on the Commission’s received no comments on the proposal. Internet Web site (https://www.sec.gov/ This order approves the proposed rule rules/sro.shtml). Copies of the change. In its filing, Nasdaq proposed to submission, all subsequent allow, in certain circumstances, a amendments, all written statements company to relist without paying a new with respect to the proposed rule entry and application fee if the company change that are filed with the was delisted solely for the failure to file Commission, and all written a required periodic report with the communications relating to the Commission or other appropriate proposed rule change between the regulatory authority. In addition, Commission and any person, other than Nasdaq proposed to delete separate, those that may be withheld from the duplicative provisions in its rules. public in accordance with the Nasdaq has proposed to waive the provisions of 5 U.S.C. 552, will be entry and application fee for any available for inspection and copying in company that was suspended 4 and/or the Commission’s Public Reference delisted from the Nasdaq Stock Market Room. Copies of such filing also will be solely for its failure to file a required available for inspection and copying at periodic report with the Commission or the principal office of the CBOE. All other appropriate regulatory authority, if comments received will be posted the company regains compliance with this requirement and applies to relist on without change; the Commission does Nasdaq within one year of the date it not edit personal identifying was delisted from Nasdaq.5 In addition, information from submissions. You should submit only information that 1 15 U.S.C. 78s(b)(1). you wish to make available publicly. All 2 17 CFR 240.19b–4. submissions should refer to File 3 See Securities Exchange Act Release No. 55645 Number SR–CBOE–2007–56 and should (April 19, 2007), 72 FR 20572. 4 Nasdaq Rule 4802(f) requires a security to meet be submitted on or before July 2, 2007. 10 15 VerDate Mar<15>2010 SECURITIES AND EXCHANGE COMMISSION 12 17 PO 00000 CFR 200.30–3(a)(12). Frm 00097 Fmt 4703 Sfmt 4703 the requirements for initial listing (which include the requirement to pay the applicable listing fees) if the security has been the subject of a decision to delist by a Listing Qualifications Panel, the Nasdaq Listing and Hearing Review Council or the Nasdaq Board. 5 The Commission notes that Nasdaq has the authority under its rules to waive fees on a caseby-case basis. See Securities Exchange Release No. 28731 (January 2, 1991), 56 FR 906 (January 9, 1991) (SR–NASD–90–61). The Commission notes that it is not, as a general matter, appropriate to allow for the waiver of fees to one class of nonmembers, while excluding other non-members from such class, without first providing interested persons an opportunity to comment on the proposed rule change pursuant to section 19(b)(2) under the Act. E:\ERIC\11JNN1.SGM 11JNN1 rmajette on DSK8KYBLC1PROD with MISCELLANEOUS Federal Register / Vol. 72, No. 111 / Monday, June 11, 2007 / Notices if such a company relists during the same calendar year that it has previously paid an annual fee, the company will not be subject to a second annual fee in that same year. Nasdaq believes that this waiver is appropriate given that, on average, the review of such an issuer is likely to be simpler than the typical application for several reasons. First, because these companies were previously listed on Nasdaq and compliant with all requirements except the filing requirement, Nasdaq believes it is more likely that they will be compliant with all other quantitative and qualitative requirements. Further, Nasdaq notes that relevant information about these companies is already contained in Nasdaq’s compliance systems. Finally, in its filing, Nasdaq states that it anticipates there would be fewer questions concerning the company’s financial statements given that these companies will often have undergone extensive review by their auditors and, in some cases, by independent investigators and the Commission or other regulatory entities, in order to resolve the issues that caused the late filings.6 Nasdaq is implementing these waivers as an incentive for companies to re-list on Nasdaq upon regaining compliance with the periodic filing requirement. Nasdaq believes that this waiver is appropriate since Nasdaq’s rules governing the delisting of companies that are delinquent in periodic reports are generally stricter than those of other markets. Nasdaq believes that the proposed waivers will promote competition between Nasdaq and other exchange markets. 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.7 In particular, the Commission finds that the proposal is consistent with Section 6(b)(4) of the Act,8 which requires that an exchange have rules that provide for the equitable allocation of reasonable dues, fees, and other charges among its members and other persons using its facilities. The Commission also finds that the proposal is consistent with Section 6(b)(5) of the 6 The Commission notes that the timely filing of accurate financial reports under the Act is critical to investors and out national market and assures that investors receive up to date financial information about listed companies. 7 In approving this proposed rule change, the Commission has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 8 15 U.S.C. 78f(b)(4). VerDate Mar<15>2010 12:15 Mar 07, 2011 Jkt 223001 Act,9 which requires, inter alia, that the rules of a national securities exchange be designed to remove impediments to and perfect the mechanism of a free and open market and a national market system and not designed to permit unfair discrimination between issuers. The Commission notes that Nasdaq has represented that the waiver of listing fees should not have a material financial impact on the exchange, or impact Nasdaq’s resource commitment to its regulatory oversight of the listing process or its regulatory programs. In addition, the proposal does not have any impact on whether a company is actually eligible to list on Nasdaq. Nasdaq has represented that a complete review of compliance with listing standards will be conducted for any company seeking to take advantage of the fee waiver, just as for any company that applies for listing on Nasdaq. Nasdaq has also represented that any fee waiver granted under this rule is predicated upon the company successfully completing the review process and demonstrating compliance with the initial listing standards. Finally, the Commission notes that companies eligible for the fee waiver have previously paid entry and annual fees to Nasdaq. Under the fee waiver, companies must reapply within one year of delisting and are eligible for the wavier of the annual fee only if they relist during the same year for which the annual fee had previously been paid. The Commission believes it reasonable for Nasdaq to conclude that eligible companies should not be charged duplicate fees if they relist within such time periods. Based on the above, the Commission agrees that the proposed waiver does not constitute an inequitable allocation of reasonable dues, fees, and other charges, does not permit unfair discrimination between issuers, and is generally consistent with the Act. It Is Therefore Ordered, pursuant to Section 19(b)(2) of the Act,10 that the proposed rule change (File No. SR– NASDAQ–2007–040) be, and it hereby is, approved. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.11 Florence E. Harmon, Deputy Secretary. [FR Doc. E7–11157 Filed 6–8–07; 8:45 am] BILLING CODE 8010–01–P U.S.C. 78f(b)(5). U.S.C. 78s(b)(2). 11 17 CFR 200.30–3(a)(12). SECURITIES AND EXCHANGE COMMISSION [Release No. 34–55861; File No. SR– NASDAQ–2007–054] Self-Regulatory Organizations; the NASDAQ Stock Market LLC; Notice of Filing and Order Granting Accelerated Approval of Proposed Rule Change To Trade the Shares of the iShares GSCI Commodity-Indexed Trust Pursuant to Unlisted Trading Privileges June 5, 2007. 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 May 18, 2007, The NASDAQ Stock Market LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been substantially prepared by the Exchange. This order provides notice of the proposed rule change and approves the proposed rule change on an accelerated basis. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change Nasdaq proposes to trade shares of the iShares GSCI Commodity-Indexed Trust (the ‘‘Trust’’) pursuant to unlisted trading privileges (‘‘UTP’’). The text of the proposed rule change is available at Nasdaq, the Commission’s Public Reference Room, and nasdaq.complinet.com. 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 Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III 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 Pursuant to Nasdaq Rule 4630, which permits the Exchange to approve for 9 15 10 15 PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 32153 1 15 2 17 E:\ERIC\11JNN1.SGM U.S.C. 78s(b)(1). CFR 240.19b–4. 11JNN1

Agencies

[Federal Register Volume 72, Number 111 (Monday, June 11, 2007)]
[Notices]
[Pages 32152-32153]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-11157]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55832; File No. SR-NASDAQ-2007-040]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order 
Granting Approval to a Proposed Rule Change Relating to the Waiver of 
Fees upon Relisting of Companies Removed for Late Filings

 May 31, 2007.
    On April 4, 2007, The NASDAQ Stock Market LLC (``Nasdaq'') 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 waive fees 
upon the relisting of companies removed for late filings. The proposed 
rule change was published for comment in the Federal Register on April 
25, 2007.\3\ The Commission received no comments on the proposal. This 
order approves the proposed rule change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 55645 (April 19, 
2007), 72 FR 20572.
---------------------------------------------------------------------------

    In its filing, Nasdaq proposed to allow, in certain circumstances, 
a company to relist without paying a new entry and application fee if 
the company was delisted solely for the failure to file a required 
periodic report with the Commission or other appropriate regulatory 
authority. In addition, Nasdaq proposed to delete separate, duplicative 
provisions in its rules.
    Nasdaq has proposed to waive the entry and application fee for any 
company that was suspended \4\ and/or delisted from the Nasdaq Stock 
Market solely for its failure to file a required periodic report with 
the Commission or other appropriate regulatory authority, if the 
company regains compliance with this requirement and applies to relist 
on Nasdaq within one year of the date it was delisted from Nasdaq.\5\ 
In addition,

[[Page 32153]]

if such a company relists during the same calendar year that it has 
previously paid an annual fee, the company will not be subject to a 
second annual fee in that same year.
---------------------------------------------------------------------------

    \4\ Nasdaq Rule 4802(f) requires a security to meet the 
requirements for initial listing (which include the requirement to 
pay the applicable listing fees) if the security has been the 
subject of a decision to delist by a Listing Qualifications Panel, 
the Nasdaq Listing and Hearing Review Council or the Nasdaq Board.
    \5\ The Commission notes that Nasdaq has the authority under its 
rules to waive fees on a case-by-case basis. See Securities Exchange 
Release No. 28731 (January 2, 1991), 56 FR 906 (January 9, 1991) 
(SR-NASD-90-61). The Commission notes that it is not, as a general 
matter, appropriate to allow for the waiver of fees to one class of 
non-members, while excluding other non-members from such class, 
without first providing interested persons an opportunity to comment 
on the proposed rule change pursuant to section 19(b)(2) under the 
Act.
---------------------------------------------------------------------------

    Nasdaq believes that this waiver is appropriate given that, on 
average, the review of such an issuer is likely to be simpler than the 
typical application for several reasons. First, because these companies 
were previously listed on Nasdaq and compliant with all requirements 
except the filing requirement, Nasdaq believes it is more likely that 
they will be compliant with all other quantitative and qualitative 
requirements. Further, Nasdaq notes that relevant information about 
these companies is already contained in Nasdaq's compliance systems. 
Finally, in its filing, Nasdaq states that it anticipates there would 
be fewer questions concerning the company's financial statements given 
that these companies will often have undergone extensive review by 
their auditors and, in some cases, by independent investigators and the 
Commission or other regulatory entities, in order to resolve the issues 
that caused the late filings.\6\
---------------------------------------------------------------------------

    \6\ The Commission notes that the timely filing of accurate 
financial reports under the Act is critical to investors and out 
national market and assures that investors receive up to date 
financial information about listed companies.
---------------------------------------------------------------------------

    Nasdaq is implementing these waivers as an incentive for companies 
to re-list on Nasdaq upon regaining compliance with the periodic filing 
requirement. Nasdaq believes that this waiver is appropriate since 
Nasdaq's rules governing the delisting of companies that are delinquent 
in periodic reports are generally stricter than those of other markets. 
Nasdaq believes that the proposed waivers will promote competition 
between Nasdaq and other exchange markets.
    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.\7\ 
In particular, the Commission finds that the proposal is consistent 
with Section 6(b)(4) of the Act,\8\ which requires that an exchange 
have rules that provide for the equitable allocation of reasonable 
dues, fees, and other charges among its members and other persons using 
its facilities. The Commission also finds that the proposal is 
consistent with Section 6(b)(5) of the Act,\9\ which requires, inter 
alia, that the rules of a national securities exchange be designed to 
remove impediments to and perfect the mechanism of a free and open 
market and a national market system and not designed to permit unfair 
discrimination between issuers.
---------------------------------------------------------------------------

    \7\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \8\ 15 U.S.C. 78f(b)(4).
    \9\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission notes that Nasdaq has represented that the waiver of 
listing fees should not have a material financial impact on the 
exchange, or impact Nasdaq's resource commitment to its regulatory 
oversight of the listing process or its regulatory programs.
    In addition, the proposal does not have any impact on whether a 
company is actually eligible to list on Nasdaq. Nasdaq has represented 
that a complete review of compliance with listing standards will be 
conducted for any company seeking to take advantage of the fee waiver, 
just as for any company that applies for listing on Nasdaq. Nasdaq has 
also represented that any fee waiver granted under this rule is 
predicated upon the company successfully completing the review process 
and demonstrating compliance with the initial listing standards.
    Finally, the Commission notes that companies eligible for the fee 
waiver have previously paid entry and annual fees to Nasdaq. Under the 
fee waiver, companies must reapply within one year of delisting and are 
eligible for the wavier of the annual fee only if they relist during 
the same year for which the annual fee had previously been paid. The 
Commission believes it reasonable for Nasdaq to conclude that eligible 
companies should not be charged duplicate fees if they relist within 
such time periods.
    Based on the above, the Commission agrees that the proposed waiver 
does not constitute an inequitable allocation of reasonable dues, fees, 
and other charges, does not permit unfair discrimination between 
issuers, and is generally consistent with the Act.
    It Is Therefore Ordered, pursuant to Section 19(b)(2) of the 
Act,\10\ that the proposed rule change (File No. SR-NASDAQ-2007-040) 
be, and it hereby is, approved.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\11\
---------------------------------------------------------------------------

    \11\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-11157 Filed 6-8-07; 8:45 am]
BILLING CODE 8010-01-P
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