[Federal Register Volume 78, Number 15 (Wednesday, January 23, 2013)]
[Notices]
[Pages 4908-4910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01245]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-68677; File No. SR-NASDAQ-2013-003]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of a Proposed Rule Change
To Increase the Record-Keeping and Substitution Listing Fees Payable by
Companies Listed on Nasdaq
January 16, 2013.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 \2\ thereunder, notice is hereby given
that on January 2, 2013, 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, II,
and III, below, which Items have been prepared by Nasdaq. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
Nasdaq is proposing to modify the record-keeping and substitution
listing fees payable by companies listed on Nasdaq. While changes
pursuant to this proposal are effective upon filing, the Exchange will
implement the proposed rule on January 2, 2013.
The text of the proposed rule change is below. Proposed new
language is italicized; proposed deletions are in brackets.\3\
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\3\ Changes are marked to the rule text that appears in the
electronic manual of Nasdaq found at http://nasdaqomx.cchwallstreet.com.
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* * * * *
5910. The [NASDAQ] Nasdaq Global Market
(a)-(d) No change.
(e) Recordkeeping Fee.
A Company that makes a change such as a change to its name, the par
value or title of its security, or its symbol shall pay a fee of
[$2,500] $7,500 to Nasdaq and submit the appropriate form as designated
by Nasdaq.
(f) Substitution Listing Fee
A Company that implements a Substitution Listing Event shall pay a
fee of [$7,500] $15,000 to Nasdaq and submit the appropriate form as
designated by Nasdaq. Notwithstanding the foregoing, this substitution
listing fee shall not apply to securities that are listed on a national
securities exchange other than Nasdaq and not designated by Nasdaq as
Nasdaq national market system securities.
5920. The Nasdaq Capital Market
(a)-(c) No change.
(d) Record-Keeping Fee
A Company that makes a change such as a change to its name, the par
value or title of its security, or its symbol shall pay a fee of
[$2,500] $7,500 to Nasdaq and submit the appropriate form as designated
by Nasdaq.
(e) Substitution Listing Fee
A Company that implements a Substitution Listing Event shall pay a
fee of [$7,500] $15,000 to Nasdaq and submit the appropriate form as
designated by Nasdaq. Notwithstanding the foregoing, this substitution
listing fee shall not apply to securities that are listed on a national
securities exchange other than Nasdaq and not designated by Nasdaq as
Nasdaq national market system securities.
* * * * *
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. 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
Nasdaq proposes to modify the fees charged to Nasdaq-listed
companies for record-keeping changes and substitution listings.
Currently, a company owes a $2,500 record-keeping fee when it makes a
change to its name, the par value or title of its security, or its
symbol.\4\ This fee was adopted in 2003 and has never been changed.\5\
Nasdaq proposes to increase this record-keeping fee to $7,500, for
notifications made after January 2, 2013.
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\4\ See Rule 5910(e) and 5920(d).
\5\ Securities Exchange Act Release No. 48631 (October 15,
2003), 68 FR 60426 (October 22, 2003) (approving SR-NASD-2003-127).
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In addition, a company currently owes a $7,500 substitution listing
fee when it affects a reverse stock split, re-incorporation or a change
in the company's place of organization, forms a holding company that
replaces the listed company, reclassifies or exchanges the company's
listed shares for another security, lists a new class of securities in
substitution for a previously-listed class of securities, or makes any
technical change whereby the shareholders of the original company
receive a share-for-share interest in the new company without any
change in their equity position or rights.\6\ This fee was adopted in
2005 and has never been changed.\7\ Nasdaq proposes to increase this
substitution listing fee to $15,000, for notifications made after
January 2, 2013.
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\6\ See Rules 5910(d) and 5920(c) [sic] and Rule 5005(a)(40).
\7\ Securities Exchange Act Release No. 52712 (November 1,
2005), 70 FR 67511 (November 7, 2005) (approving SR-NASD-2004-162).
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Nasdaq also proposes to correct capitalization in the heading of
Rule 5910 to be consistent with the capitalization used in the
remainder of the Rule 5000 Series.
2. Statutory Basis
Nasdaq believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\8\ in general and with Sections
6(b)(4) and 6(b)(5) of the Act,\9\ in particular in that it provides
for the equitable allocation of reasonable dues, fees, and other
charges among its members, issuers and other persons using its
facilities and does not unfairly discriminate between customers,
issuers, brokers or dealers.
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\8\ 15 U.S.C. 78f.
\9\ 15 U.S.C. 78f(b)(4) and (5).
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Nasdaq believes that the proposed fees are reasonable because they
will reflect Nasdaq's higher costs related to processing record keeping
changes and substitution listings since the fees were set in 2003 and
2005, respectively. In that regard, Nasdaq notes that expenses
surrounding the processing and distribution of these changes, including
technology costs and salaries, have increased since the fees were set,
but that the fees have not been concomitantly increased. In addition,
Nasdaq has developed an electronic notification system for listed
companies and expects to launch early in 2013 an
[[Page 4909]]
interface allowing companies to notify Nasdaq about these changes
through an on-line portal.\10\ This web-based interface will simplify
the notification process for the company and help eliminate errors that
may otherwise have resulted from re-keying information. While over
time, Nasdaq hopes that this technology will reduce the costs
associated with maintaining the process, Nasdaq has invested
significant up-front development costs in creating the system. Nasdaq
has also committed resources to its online reference library, which
includes a number of FAQs providing advice about these changes and the
related forms and fees.\11\
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\10\ See the NASDAQ OMX Listing Center at
https:[sol][sol]listingcenter.nasdaqomx.com/Show--
Doc.aspx?File=listing--information.html#forms. While the Change in
Company Record and Substitution Listing Event forms are currently
available as pdfs, which have to be emailed to Nasdaq, they are
being converted into online forms, which can be completed and
submitted to Nasdaq electronically.
\11\ https:[sol][sol]listingcenter.nasdaqomx.com/
MaterialHome.aspx?mcd=LQ.
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Nasdaq also believes that the proposed changes are equitable and
not unfairly discriminatory because they would apply equally to all
companies listed on Nasdaq that effect one of these changes. In this
manner, the proposed fees will help assure that the expenses arising
from changes initiated by certain companies are borne by those
companies.
Finally, NASDAQ notes that it operates in a highly competitive
market in which market participants can readily switch exchanges if
they deem the listing fees excessive.\12\ In such an environment,
NASDAQ must continually review its fees to assure that they remain
competitive. In that regard, Nasdaq notes that the proposed fees remain
similar to the fees charged by the New York Stock Exchange.\13\
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\12\ The Justice Department recently noted the intense
competitive environment for exchange listings. See ``NASDAQ OMX
Group Inc. and IntercontinentalExchange Inc. Abandon Their Proposed
Acquisition Of NYSE Euronext After Justice Department Threatens
Lawsuit'' (May 16, 2011), available at
http:[sol][sol]www.justice.gov/atr/public/press_releases/2011/
271214.htm.
\13\ NYSE charges $7,500 for ``changes that involve
modifications to [NYSE] records, for example, changes of name, par
value, title of security or designation, and for applications
relating to poison pills.'' See Section 902.03 of the NYSE Listed
Company Manual and Securities Exchange Act Release No. 68024
(October 10, 2012), 77 FR 63388 (October 16, 2012) (SR-NYSE-2012-
51). In addition, NYSE charges $15,000 for a new listing where 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.'' These changes include a change in a company's
state of incorporation or a reincorporation or formation of a
holding company that replaces a listed company, and a reverse stock
split. See Section 902.03 of the NYSE Listed Company Manual.
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B. Self-Regulatory Organization's Statement on Burden on Competition
Nasdaq does not believe that the proposed rule change will result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended. The market for
listing services is extremely competitive and listed companies may
freely choose alternative venues. In addition, Nasdaq's proposed fees
are similar to the fees charged by its competitors. For this reason,
and the reasons discussed in connection with the statutory basis for
the proposed rule change, Nasdaq does not believe that the proposed
rule change will result in any burden on competition for listings.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
No written comments were either solicited or received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\14\ At any time within 60 days of the
filing of the proposed rule change, the Commission summarily may
temporarily suspend such rule change if it appears to the Commission
that such action is necessary or appropriate in the public interest,
for the protection of investors, or otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.
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\14\ 15 U.S.C. 78s(b)(3)(A)(ii).
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IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
File Number SR-NASDAQ-2013-003 on the subject line.
[[Page 4910]]
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-NASDAQ-2013-003. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet 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 Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such 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-NASDAQ-2013-003 and should
be submitted on or before February 13, 2013.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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\15\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-01245 Filed 1-22-13; 8:45 am]
BILLING CODE 8011-01-P