20572 Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Notices 

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

2 17 CFR 240.19b–4. 

3Changes are marked to the rule text that appears 

in the electronic manual of Nasdaq found at http:// 

nasdaq.complinet.com. 

4Nasdaq Rules 4510(a)(5), 4520(a)(4), 4530(a)(4) 

and 4540(a)(2) provide authority to waive entry and 

application fees and Nasdaq rules 4510(c)(2), 

4510(d)(5), 4520(c)(4), 4530(b)(2) and 4540(b)(3) 

provide authority to waive annual fees. Nasdaq 

notes that in several prior instances, the 

predecessor market operated by The Nasdaq Stock 

Market, Inc. as a facility of the NASD filed listing 

fee waivers of general applicability on an 

immediately effective basis, pursuant to SEC rule 

19b–4(f)(1), 17 CFR 240.19b–4(f)(1), as a stated 

policy, practice, or interpretation with respect to 

the meaning, administration, or enforcement of 

these existing rules. See, e.g., Securities Exchange 

Act Release No. 49133 (January 28, 2004), 69 FR 

5630 (February 5, 2004) (SR–NASD–2003–198); 

Securities Exchange Act Release No. 49286 

(February 19, 2004), 69 FR 8999 (February 26, 2004) 

(SR–NASD–2004–004). More recently, the New 

York Stock Exchange has submitted a filing to 

waive listing fees subject to Commission approval 

under section 19(b)(2) of the Act, 15 U.S.C. 

78s(b)(2). See Securities Exchange Release No. 

55421 (March 8, 2007), 72 FR 11925 (March 14, 

2007) (SR–NYSE–2007–19). As a result, Market 

Regulation staff has advised Nasdaq that this 

proposed rule change should also be filed under 

section 19(b)(2). Although Nasdaq is following 

staff’s guidance in this case, Nasdaq notes that the 

rules authorizing waivers of listing fees have been 

in effect for an extensive period of time, having first 

been approved as NASD rules in 1991, and then reapproved by the Commission as rules of Nasdaq 

during its registration as a national securities 

exchange. Accordingly, it is Nasdaq’s view that 

nothing in this filing should be construed to restrict 

Nasdaq’s approved authority to waive listing fees 

with respect to particular issuers in appropriate 

circumstances, nor should this filing be construed 

to restrict the submission of filings on an 

immediately effective basis in appropriate 

circumstances. 

The Commission notes that the waiver authority 

referred to in the Nasdaq Rules was specifically 

intended to grant Nasdaq flexibility 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 does not believe it is, as a general 

matter, appropriate to allow for the waiver of fees 

to a class of non-members without first providing 

interested persons an opportunity to comment on 

the proposed rule change pursuant to section 

19(b)(2) under the Act. 

5Nasdaq 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. 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–55645; File No. SR–

NASDAQ–2007–040] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing of Proposed Rule Change 

Relating to the Waiver of Fees Upon 

Relisting of Companies Removed for 

Late Filings 

April 19, 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 April 4, 

2007, The NASDAQ Stock Market LLC 

(‘‘Nasdaq’’) 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 

Nasdaq. The Commission is publishing 

this notice to solicit comments on the 

proposed rule change from interested 

persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

Nasdaq proposes 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. Nasdaq also 

proposes to delete a separate, 

duplicative provision in the rules. The 

text of the proposed rule change appears 

below. Proposed new language is 

italicized and proposed deletions are in 

brackets.3

* * * * * 

IM–4500–5. Waiver of Fees Upon 

Relisting for Companies Removed for 

Late Filings Entry Fees. Pursuant to 

Nasdaq’s authority to waive certain fees, 

Nasdaq has determined to waive the 

entry fee (including the application fee) 

in the following circumstances: 

(1) the company was suspended 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, pursuant to Rule 

4310(c)(14) or 4320(e)(12); and 

(2) the company has regained 

compliance with this requirement and 

applies to relist on Nasdaq within one 

year of the date it is delisted from 

Nasdaq. 

Annual Fees. A company that meets 

the above requirements and relists 

during the same year that it has 

previously paid an annual fee will not 

be subject to a second annual fee in that 

same year. 

* * * * * 

4520. The Nasdaq Capital Market 

(a) No change. 

(b) No change. 

(1)–(5) No change. 

[(6) The issuer of each class of 

securities that is a non-U.S. issue that is 

listed on the Nasdaq Capital Market 

shall pay to Nasdaq a fee in connection 

with the issuance of additional shares, 

or in the case of ADRs, the listing of 

additional shares underlying the ADRs. 

The fee in connection with additional 

shares shall be $5,000 for any amount of 

additional shares listed on an annual 

basis. This fee will be assessed annually 

based on the issuer’s total shares 

outstanding as reported on its periodic 

reports filed with the SEC. There shall 

be no fee, however, for issuances of up 

to 49,999 additional shares per year.] 

(c)–(e) No change. 

* * * * * 

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 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. 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 

Existing Nasdaq rules provide the 

authority to waive entry, application 

and annual fees.4 Pursuant to this 

authority, Nasdaq has determined to 

waive the entry and application fee for 

any company that was suspended 5 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 is 

delisted from Nasdaq. In addition, 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, it is more likely that they 

will be compliant with all other 

quantitative and qualitative 


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Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Notices 20573 

6 15 U.S.C. 78f. 

7 15 U.S.C. 78f(b)(4). 

8 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3Amendment No. 1 replaced and superseded the 

original filing in its entirety. 

requirements. Further, relevant 

information about these companies is 

already contained in Nasdaq’s 

compliance systems. Finally, Nasdaq 

anticipates that 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. 

Nasdaq is implementing these waivers 

to incent companies to re-list on Nasdaq 

once they regain compliance with the 

periodic filing requirement, rather than 

seek a listing elsewhere. Nasdaq 

believes that this waiver is appropriate, 

especially because Nasdaq’s rules 

governing the delisting of companies 

that are delinquent in periodic reports 

are generally stricter than those of other 

markets. As such, the proposed waivers 

will promote competition between 

Nasdaq and other exchange markets. 

The proposed rule change will not 

affect Nasdaq’s commitment of 

resources to its regulatory oversight of 

the listing process or its other regulatory 

programs. Specifically, Nasdaq will still 

conduct a complete review of these 

companies for compliance with Nasdaq 

listing standards in the same manner as 

any other company applying for listing 

on Nasdaq. Any fee waiver under this 

proposed rule is predicated on the 

Company successfully completing that 

review process and demonstrating 

compliance with the initial listing 

requirements. 

Finally, Nasdaq proposes to delete a 

duplicative provision in Rule 4520(b). 

Currently, Rule 4520(b)(6) is identical to 

Rule 4520(b)(2). As such, Nasdaq 

proposes to delete Rule 4520(b)(6). 

2. Statutory Basis 

Nasdaq believes that the proposed 

rule change is consistent with the 

provisions of Section 6 of the Act,6 in 

general, and with Section 6(b)(4) of the 

Act,7 in particular. Nasdaq believes that 

the proposed waivers are equitable and 

reasonable because these companies 

previously paid entry and annual fees to 

Nasdaq and to again charge such fees 

would impose duplicative costs. 

B. Self-Regulatory Organization’s 

Statement on Burden on Competition 

Nasdaq 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 

Written comments were neither 

solicited nor received. 

III. 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–NASDAQ–2007–040 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Nancy M. Morris, Secretary, 

Securities and Exchange Commission, 

Station Place, 100 F Street, NE., 

Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–NASDAQ–2007–040. 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. Copies of such filing also will be 

available for inspection and copying at 

the principal office of Nasdaq. 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–NASDAQ–2007–040 and 

should be submitted on or before May 

16, 2007. 

For the Commission, by the Division of 

Market Regulation, pursuant to delegated 

authority.8

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E7–7838 Filed 4–24–07; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–55646; File No. SR–NYSE–

2007–02] 

Self-Regulatory Organizations; New 

York Stock Exchange LLC; Notice of 

Filing of Proposed Rule Change and 

Amendment No. 1 Thereto To Adopt 

New Rule 447 (‘‘Emergency Powers’’) 

April 19, 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 January 9, 

2007, New York Stock Exchange LLC 

(‘‘NYSE’’ or ‘‘Exchange’’) filed with the 

Securities and Exchange Commission 

(‘‘SEC’’ or ‘‘Commission’’) the proposed 

rule change as described in Items I, II, 

and III below, which Items have been 

substantially prepared by NYSE. On 

April 18, 2007, NYSE submitted 

Amendment No. 1 to the proposed rule 

change.3 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 adopt new 

Rule 447 (‘‘Emergency Powers’’) which 

would allow the Exchange to grant 

exemptive regulatory relief in the event 

of an emergency, e.g. a pandemic-like 

situation. The text of the proposed rule 

change is available at NYSE, the 

Commission’s Public Reference Room, 

and http://www.nyse.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 had received on the 


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