87 FR 49 pgs. 14312-14315 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Sections 902.03 and 902.11 of the NYSE Listed Company Manual To Establish Fees for the Listing of Rights
Type: NOTICEVolume: 87Number: 49Pages: 14312 - 14315
Pages: 14312, 14313, 14314, 14315Docket number: [Release No. 34-94378; File No. SR-NYSE-2022-12]
FR document: [FR Doc. 2022-05248 Filed 3-11-22; 8:45 am]
Agency: Securities and Exchange Commission
Official PDF Version: PDF Version
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-94378; File No. SR-NYSE-2022-12]
Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Sections 902.03 and 902.11 of the NYSE Listed Company Manual To Establish Fees for the Listing of Rights
March 8, 2022.
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 February 25, 2022, New York Stock Exchange LLC ("NYSE" or the "Exchange") filed with the Securities and Exchange Commission (the "Commission") the proposed rule change 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 change from interested persons.
Footnotes:
1 ?15 U.S.C. 78s(b)(1).
2 ?15 U.S.C. 78a.
3 ?17 CFR 240.19b-4.
I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change
The Exchange proposes to amend Sections 902.03 and 902.11 of the NYSE Listed Company Manual (the "Manual") to establish fees for the listing of rights and to remove rule text that is no longer applicable. The proposed rule change is available on the Exchange's website at www.nyse.com, at the principal office of the Exchange, 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
[top] 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 those 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 parts of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and the Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange recently adopted a new listing standard to provide for the listing of rights ( See Section 703.12(II) of the Manual). 4 The Exchange now proposes to adopt fees for listed rights.
Footnotes:
4 ? See Securities Exchange Act Release No. 94075 (January 27, 2022); 87 FR 5915 (February 2, 2022) (SR-NYSE-2022-03).
The Exchange proposes to adopt a fee schedule for listed rights equivalent to that currently applicable to listed warrants. Both types of securities represent the right to acquire shares of a listed equity security at a future time. The distinction is that, unlike warrants, rights are generally distributed without charge to all of the holders of a class of existing listed securities. Given the similarities, the Exchange anticipates that the resources devoted to the listing and regulation of rights will be substantially the same as is already the case for listed warrants. As such, the Exchange proposes to apply the same fee schedule to listed rights as it currently applies to warrants under Section 902.03 of the Manual. In connection with the listing of a class of warrants, Section 902.03 provides for a fee of $0.004 per warrant. Section 902.03 provides that listed warrants are subject to annual fees at a rate of $0.0017 per warrant, subject to a minimum annual fee of $5,000 per series of warrants. While the aforementioned fees currently apply to listed warrants, there are specific provisions for warrants of two types of issuers-foreign issuers and Acquisition Companies. As described below, the Exchange proposes to apply the same fees for rights associated with those types of companies.
Section 902.03 includes text that describes fees for warrants issued by foreign companies, where the common equity securities into which the warrants are exercisable trade in the form of American Depositary Receipts on the Exchange. Specifically, Section 902.03 provides that, where a listed company's primary listed security is an ADR and it lists warrants that are exercisable into the equity securities underlying such ADRs, it will be charged: (i) Initial listing fees for the warrants adjusted to reflect the maximum number of ADRs that could be created upon exercise of such warrants; and (ii) annual fees for the outstanding warrants adjusted to reflect the maximum number of ADRs that could be created upon exercise of such warrants. The Exchange proposes to apply these same provisions to rights issued by a foreign company where the company's primary listed security is an ADR and it lists rights that are exercisable into the equity securities underlying such ADRs.
Section 902.11 sets forth the fees applicable to Acquisition Companies ( i.e., Special Purpose Acquisition Companies or "SPACs") listed under Section 102.06 of the Manual. SPACs typically sell units in their initial public offering consisting of a common share and one or more warrants (or a fraction of a warrant). Under Section 902.11, a listed Acquisition Company is subject to a flat annual fee of $85,000, covering both its common shares and its warrants. The Exchange proposes to amend this provision to specify that the flat annual fee also covers any rights issued by the Acquisition Company.
The Exchange also proposes to delete rule text from both Section 902.03 and Section 902.11 regarding fees that were in effect for calendar years prior to 2022 but are no longer in effect, as this rule text is now irrelevant.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act, 5 in general, and furthers the objectives of Section 6(b)(4)? 6 of the Act, in particular, in that it is designed to provide for the equitable allocation of reasonable dues, fees, and other charges. The Exchange also believes that the proposed rule change is consistent with Section 6(b)(5) of the Act, 7 in that it is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest and is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers.
Footnotes:
5 ?15 U.S.C. 78f(b).
6 ?15 U.S.C. 78f(b)(4).
7 ?15 U.S.C. 78f(b)(5).
The Exchange operates in a highly competitive marketplace for the listing of the various categories of securities, including the rights affected by the proposed fees. The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, 8 the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system "has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies."? 9
Footnotes:
8 ?Release No. 34-51808 (June 9, 2005); 70 FR 37496 (June 29, 2005).
9 ? See Regulation NMS, 70 FR at 37499.
The Exchange believes that the ever-shifting market share among the exchanges with respect to new listings and the transfer of existing listings between competitor exchanges demonstrates that issuers can choose different listing markets in response to fee changes. Accordingly, competitive forces constrain exchange listing fees. Stated otherwise, changes to exchange listing fees can have a direct effect on the ability of an exchange to compete for new listings and retain existing listings.
As discussed above, rights are very similar in their structure to warrants. And the Exchange anticipates devoting substantially the same resources to the listing of a series of rights as it does to the listing of a series of warrants. Therefore, the Exchange believes that it is reasonable and represents an equitable allocation of its fees among market participants to apply to listed rights the existing fees currently charged to issuers of listed warrants.
The Exchange believes that the proposal is not unfairly discriminatory because the same fee schedule will apply to all issuers of listed rights. In addition, rights have substantial structural similarities to warrants and the Exchange believes it is therefore appropriate to apply the same fee schedule to the two classes of securities. Conversely, rights are not similar in nature to any other class of securities listed on the Exchange, so the Exchange does not believe it is unfairly discriminatory to charge different fees for the listed rights than for any other class of listed securities other than warrants. Further, the Exchange operates in a competitive environment and its fees are constrained by competition in the marketplace. Other national securities exchanges currently list rights, and if a company believes that the Exchange's fees are unreasonable it can decide either not to list its rights or to list them on an alternative venue.
[top] The Exchange believes that the proposal to charge listing fees for rights on an ADR-equivalent basis is equitable and not unfairly discriminatory because
The Exchange recognizes that the proposal would result in a differential treatment of rights issued by companies with ADRs listed on the Exchange from that of other issuers of rights, leading to lower bills in many cases for the companies with listed ADRs. However, the Exchange notes that companies with listed ADRs that represent multiple underlying shares (or fractional shares) face unique circumstances when deciding how to structure their rights. If those companies want to market their rights in both their home market and the United States, there are clear advantages to the company and its investors if the same security is issued in both markets. In particular, issuing the same security avoids pricing confusion and, by ensuring complete fungibility, facilitates the movement of rights between the two markets in aftermarket trading. As the ADRs would not be traded in the home market and might not be properly understood by investors there, it is clear why a company would make the decision to issue rights to purchase a single common share in both markets rather than issuing rights to purchase ADRs in the US market and rights to purchase a single share in the home market. While other categories of listed companies may also sometimes choose to issue rights that are exercisable for multiple listed common shares or a fraction of a common share, their reasons for doing so are not the same unique market structural reasons that cause foreign companies to do so when their listed equity security is an ADR. Consequently, while the proposal does result in a different treatment of foreign companies with listed ADRs in a very limited circumstance, the Exchange believes that this proposed difference in treatment is not unfairly discriminatory. The Exchange also notes that foreign companies with listed ADRs would not always pay lower fees on rights if this proposal was adopted. Rather, the issuer would always pay fees on an ADR-equivalent basis, which would result in lower fees if the listed ADR represents multiple common shares and higher fees if it represents a fractional common share.
The changes the Exchange proposes to make to Sections 902.02 and 902.11 to remove provisions that are no longer needed, as they do not apply by their terms to any calendar year starting after January 1, 2022, are non-substantive in nature.
For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
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 purposes of the Act. The proposed rule change is designed to ensure that the fees charged by the Exchange accurately reflect the services provided and benefits realized by listed companies. The market for listing services is extremely competitive. Each listing exchange has a different fee schedule that applies to issuers seeking to list securities on its exchange. Issuers have the option to list their securities on these alternative venues based on the fees charged and the value provided by each listing. Because issuers have a choice to list their securities on a different national securities exchange, the Exchange does not believe that the proposed fee changes impose a burden on competition.
Intramarket Competition
The proposed amended fees will be charged to all listed issuers on the same basis. The Exchange does not believe that the proposed fees will have any meaningful effect on the competition among issuers listed on the Exchange.
Intermarket Competition
The Exchange operates in a highly competitive market in which issuers can readily choose to list new securities on other exchanges and transfer listings to other exchanges if they deem fee levels at those other venues to be more favorable. Because competitors are free to modify their own fees in response, and because issuers may change their chosen listing venue, the Exchange does not believe its proposed fee change can impose any burden on intermarket competition.
C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others
No written comments were solicited or received with respect to the proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)? 10 of the Act and subparagraph (f)(2) of Rule 19b-4? 11 thereunder, because it establishes a due, fee, or other charge imposed by the Exchange.
Footnotes:
10 ?15 U.S.C. 78s(b)(3)(A).
11 ?17 CFR 240.19b-4(f)(2).
At any time within 60 days of the filing of such 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 under Section 19(b)(2)(B)? 12 of the Act to determine whether the proposed rule change should be approved or disapproved.
Footnotes:
12 ?15 U.S.C. 78s(b)(2)(B).
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 rule-comments@sec.gov. Please include File Number SR-NYSE-2022-12 on the subject line.
Paper Comments
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
[top] All submissions should refer to File Number SR-NYSE-2022-12. 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 website ( 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
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 13
Footnotes:
13 ?17 CFR 200.30-3(a)(12).
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-05248 Filed 3-11-22; 8:45 am]
BILLING CODE 8011-01-P