Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 / Notices 6077 

5 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

higher fees as a result of the adoption of 

Section 902.10 and most issuers will 

pay less than would currently be the 

case. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

The Exchange does not believe that 

this proposed rule change would 

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 

Written comments on the proposed 

rule change were neither solicited nor 

received. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Within 35 days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

90 days of such date if it finds such 

longer period to be appropriate and 

publishes its reasons for so finding or 

(ii) as to which the self-regulatory 

organization consents, the Commission 

will: 

(A) By order approve the 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 (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an e-mail to rulecomments@sec.gov. Please include File 

Number SR–NYSE–2009–03 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–NYSE–2009–03. 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 (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 inspection and copying 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. 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–NYSE–2009–03 and should 

be submitted on or before February 25, 

2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.5

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–2253 Filed 2–3–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59304; File No. SR– 

NYSEALTR–2009–02] 

Self-Regulatory Organizations; Notice 

of Filing of Proposed Rule Change by 

NYSE Alternext US LLC To Revise Its 

Listing Fees 

January 27, 2009. 

Pursuant to Section 19(b)(1) 1 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’),2 and Rule 19b-4 thereunder,3

notice is hereby given that on January 8, 

2009, NYSE Alternext US LLC (‘‘NYSE 

Alternext’’ or the ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission the proposed rule changes 

as described in Items I, II, and III below, 

which Items have been prepared by the 

Exchange. The Commission is 

publishing this notice to solicit 

comments on the proposed rule changes 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to revise its 

listing fees. The text of the proposed 

rule change is available on the 

Exchange’s Web site at (http:// 

www.nyse.com), at the Exchange’s 

Office of the Secretary, 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 these statements may be examined at 

the places specified in Item IV below. 

NYSE Alternext 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 

Following the October 2008 

acquisition by NYSE Euronext of NYSE 

Alternext’s predecessor entity, the 

American Stock Exchange, NYSE 

Euronext management reexamined 

NYSE Alternext’s listing fees in light of 

the cost of providing services to listed 

companies on an ongoing basis and the 

fees charged by competitor exchanges. 

In particular, the Exchange notes that it 

is now providing listed companies with 

a suite of services similar to services 

provided to listed companies by the 

New York Stock Exchange (‘‘NYSE’’), 

which is also a subsidiary of NYSE 

Euronext. These services, which the 

Exchange has either already begun 

providing or will roll out in early 2009, 

include: A daily summary of trading 

activity in a listed company’s stock 

delivered at the end of each trading day 

to the company’s executives (‘‘market 

focus reports’’); a summary of relevant 

market information delivered each 

morning with analysis of what may 

happen in the equity markets that day; 

access to NYSENet, which is a webbased system that provides listed 

companies with easy access to detailed 

trading data updated intraday on a realVerDate Nov<24>2008 14:33 Feb 03, 2009 Jkt 217001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\04FEN1.SGM 04FEN1
6078 Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 / Notices 

4The Exchange proposes to make conforming 

changes to Section 144 of the Company guide to 

eliminate references to the application processing 

fee. 

5The Exchange notes that companies listing less 

than five million shares at the time of initial listing 

will be charged an initial listing fee that is $10,000 

higher than is currently the case, giving rise to a net 

fee increase of $5,000 after taking into account the 

elimination of the application processing fee. In 

addition, the Exchange notes that companies that 

have previously listed a class of stock or warrants 

on the Exchange that are listing an additional class 

of securities would not have been required to pay 

the application processing fee in connection with 

the listing of the second class. 

6The initial listing fee for issuers listing less than 

five million shares is increasing by $10,000, while 

the fees for the other tiers are increasing by just 

$5,000. The Exchange believes that this larger 

increase is necessary to cover the costs of regulatory 

review and use of operational resources which are 

essentially fixed in relation to any new listing 

regardless of the company’s size. 

time basis; and eGovDirect.com, a 

secure web-based system enabling 

companies to submit certifications to 

the Exchange electronically. To recoup 

the cost of providing these services and, 

more generally, in response to increased 

costs in its continuing service and 

regulatory programs, the Exchange 

proposes to make a number of changes 

to its listing fees. 

The Exchange proposes to amend its 

initial listing fees for common stock or 

common stock equivalents. The initial 

listing fees set forth in Section 140 of 

the Exchange’s Company Guide for 

issuances of (i) less than five million 

shares will be increased from $40,000 to 

$50,000, (ii) five million to 10 million 

shares will be increased from $50,000 to 

$55,000, (iii) 10,000,001 shares to 15 

million shares will be increased from 

$55,000 to $60,000 and (iv) in excess of 

15 million shares will be increased from 

$65,000 to $70,000. The Exchange 

currently charges a nonrefundable 

$5,000 application fee in connection 

with a company’s initial listing on the 

Exchange. The Exchange proposes to 

eliminate this application fee 4 and 

notes that, as a consequence, any 

company paying the increased initial 

listing fee in connection with the listing 

of five million shares or more at the 

time of first listing on the Exchange will 

not pay a higher aggregate fee to the 

Exchange as the initial listing fee 

increase of $5,000 is offset by the 

elimination of the application fee.5 The 

Exchange also notes that the proposed 

minimum initial listing fee of $50,000 

for up to five million shares is the same 

as the Nasdaq Capital Market minimum 

fee for issuances of up to 15 million 

shares, while the proposed maximum 

fee of $70,000 for more than 15 million 

shares is less than the $75,000 

maximum initial listing fee charged by 

Nasdaq Capital Market for listing in 

excess of 15 million shares.6 As such, 

the Exchange believes that the proposed 

amended initial listing fees are 

competitive with those of other markets. 

In addition, the Exchange believes that 

it is appropriate to charge companies 

different amounts based on the number 

of shares listed, as the Exchange 

provides different levels of services to 

companies based on their size. For 

example, only larger companies are 

provided with the market focus reports 

described above. 

The Exchange notes that it is 

extremely difficult to establish listing 

fee schedules on the basis of market 

capitalization as stock prices are 

inherently volatile. As a consequence, 

all of the major national securities 

exchanges use the number of shares 

outstanding as a proxy for a company’s 

size in establishing fee schedules, as, 

much of the time, the number of shares 

a company has outstanding provides a 

reasonable guide as to its size. 

Section 140 provides for a $5,000 

application processing fee payable in 

connection with the initial listing of a 

class of bonds of an issuer that does not 

have another class of securities listed on 

the Exchange. The Exchange proposes to 

eliminate this fee. 

Section 140 currently provides that, 

in the case of non-U.S. issuers listed on 

foreign stock exchanges, the fee, 

including the one-time, non-refundable 

application-processing fee of $5,000, is 

$40,000. The Exchange proposes to 

conform the initial listing fees charged 

to non-U.S. companies to those charged 

to domestic companies. The Exchange 

believes it is appropriate to charge these 

non-U.S. companies as much as other 

companies as they receive the same 

level of service from the Exchange and 

therefore are as costly to service on an 

ongoing basis as any other company of 

similar size. Accordingly, the Exchange 

believes that by charging non-U.S. 

companies the same fees as domestic 

companies it will be providing for a 

more equitable allocation of reasonable 

dues, fees and other charges among its 

members, issuers and other persons 

using its facilities. 

Section 141 of the Company Guide 

currently provides that issuers must pay 

a minimum annual fee of $27,500 if the 

issuer has 50 million shares or less 

outstanding. If the issuer has from 

50,000,001 to 75 million shares 

outstanding, the current annual fee is 

$32,500. If the issuer has in excess of 75 

million shares outstanding, the current 

annual fee is $34,000. The Exchange 

proposes to retain the minimum annual 

fee of $27,500 for issuers with 50 

million shares or less outstanding. 

Therefore, issuers with 50 million 

shares or less outstanding will not be 

subject to any annual fee increase for 

2009. With effect from January 1, 2010, 

the Exchange proposes to increase the 

annual fee for issuers that have between 

50,000,001 and 75 million shares 

outstanding from $32,500 to $36,500 

and for issuers with in excess of 75 

million shares outstanding the annual 

fee will be raised from $34,000 to 

$40,000. As of the date of approval of 

this rule filing, issuers will be required 

to pay a supplemental annual fee equal 

to the difference between the amount 

they would pay in 2009 based on the 

current annual fee rates and the amount 

they would be required to pay if the 

2010 annual fee rates were in place on 

January 1, 2009. As with initial listing 

fees, the Exchange notes that larger 

companies receive more services from 

the Exchange and it is therefore 

justifiable to charge them higher annual 

fees to recoup the related expenses. For 

example, only larger companies are 

provided with the market focus reports 

described above. 

Sections 140 and 146 of the Company 

Guide contain provisions that grant the 

Board of Directors of the Exchange the 

discretion to defer, waive or rebate all 

or any part of the initial listing fee 

payable in connection with any listing 

of securities. Section 142(g) grants the 

Board of Directors the same discretion 

to defer, waive or rebate all or any part 

of the fees payable for the listing of 

additional shares. The Exchange 

proposes to eliminate these provisions 

in Sections 140 and 142(g) and to 

eliminate Section 146 in its entirety. 

The Exchange has not exercised this 

discretion recently and has concluded 

that it is no longer relevant to its 

strategy going forward. 

The Exchange proposes to amend 

Section 142 of the Company Guide by 

(i) increasing from $60,000 to $65,000 

the maximum fee per issuer for listing 

additional shares in a calendar year, 

which is the maximum imposed by 

Nasdaq Capital Market and Nasdaq 

Global Market, and (ii) increasing from 

$2,000 to $2,500 the fee charged in 

connection with a company changing its 

name or ticker symbol, which is also the 

fee charged by Nasdaq Capital Market 

and Nasdaq Global Market for changes 

of this nature. The Exchange also 

proposes to amend Section 142 to adopt 

a fee of $7,500 for technical original 

listings (‘‘Technical Original Listings’’) 

and reverse stock splits. The Exchange 

will apply the proposed $7,500 

application fee for a Technical Original 

Listing if the change in the company’s 

status is technical in nature and the 

Federal Register / Vol. 74, No. 22 / Wednesday, February 4, 2009 / Notices 6079 

7Minor technical amendments are being made to 

Rule 142(e) to reflect the fact that reincorporations 

will be explicitly included in the categories of 

events subject to the proposed Technical Original 

Listing fee. 

8See Section 902.03 of the NYSE Listed Company 

Manual. 

9See Nasdaq Marketplace Rules 4510(f) (for the 

Nasdaq Global Market fee) and 4520(e) (for the 

Nasdaq Capital Market fee). 

10 15 U.S.C. 78f. 11 15 U.S.C. 78f(b)(4). 12 17 CFR 200.30–3(a)(12). 

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. For example, a change in a 

company’s state of incorporation or a 

reincorporation or formation of a 

holding company that replaces a listed 

company would be considered a 

Technical Original Listing.7 The $7,500 

application fee will also apply to a 

reverse stock split. The Technical 

Original Listing fee will replace the 

current $5,000 fee for ‘‘substitution 

listings’’ set forth in Section 142(d). The 

Technical Original Listing fee is 

intended to apply only to those events 

that would have previously been subject 

to the substitution listing fee. The 

Exchange has changed the fee’s name 

and provided more detail as to when it 

is applicable in order to better inform 

companies as to when it is applicable 

and to conform to the comparable rule 

of the NYSE.8 Nasdaq Capital Market 

and Nasdaq Global Market have a fee set 

at the same $7,500 level for 

‘‘substitution listing events,’’ which is 

applicable in the same circumstances as 

the Technical Original Listing fee.9 The 

Exchange believes that the increases in 

the various fees charged under Section 

142 referenced in this paragraph are 

justified by the increasing cost of 

providing services to companies and in 

particular the cost of the Exchange’s 

utilization of staff operational resources 

in making changes required by the 

events giving rise to the applicable fees. 

The Exchange also notes that the 

increased fees are set at the same level 

as those of Nasdaq Capital Market and 

Nasdaq Global Market and are therefore 

reasonable in light of the charges 

imposed by competitor exchanges. The 

Exchange is amending the language of 

Section 142 to state that the fees in that 

section apply to non-U.S. companies. As 

the fees in Section 142 have always 

applied to non-U.S. companies, this 

amendment is simply a clarification and 

not a substantive change. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

the provisions of Section 6 10 of the Act 

in general and Section 6(b)(4) of the 

Act 11 in particular, in that it is designed 

to provide for the equitable allocation of 

reasonable dues, fees and other charges 

among its members and other persons 

using its facilities. The Exchange 

believes that the proposal does not 

constitute an inequitable allocation of 

dues, fees and other charges as the 

proposed fees are set at levels that are 

competitive with those already in place 

at Nasdaq Capital Market and Nasdaq 

Global Market and, to the extent 

different levels of fees are charged to 

companies of different sizes, the 

differential fees are reasonable in light 

of the different levels of service devoted 

to companies based on their size. 

Accordingly, the Exchange believes that 

the proposal provides for an equitable 

allocation of reasonable dues, fees and 

other charges among its members, 

issuers and other persons using its 

facilities. 

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 purpose of the Act. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants or Others 

The Exchange has neither solicited 

nor received written comments on the 

proposed rule change. 

III. Date of Effectiveness of the 

Proposed Rule Change and Timing for 

Commission Action 

Within 35 days of the date of 

publication of this notice in the Federal 

Register or within such longer period (i) 

as the Commission may designate up to 

90 days of such date if it finds such 

longer period to be appropriate and 

publishes its reasons for so finding or 

(ii) as to which the self-regulatory 

organization consents, the Commission 

will: 

(A) By order approve the 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 (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an e-mail to rulecomments@sec.gov. Please include File 

Number SR–NYSEALTR–2009–02 on 

the subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington DC 

20549–1090. 

All submissions should refer to File 

Number SR–NYSEALTR–2009–02. 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 (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 inspection and copying 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 such filing will also be 

available for inspection and copying at 

the principal office of the Exchange. 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 No. 

SR–NYSEALTR–2009–02 and should be 

submitted on or before February 25, 

2009. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.12

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–2250 Filed 2–3–09; 8:45 am] 

BILLING CODE 8011–01–P