00-391. Self-Regulatory Organizations; Order Approving Proposed Rule Change by the National Association of Securities Dealers, Inc., Revising Its Fees for Listing Additional Shares  

  • [Federal Register Volume 65, Number 5 (Friday, January 7, 2000)]
    [Notices]
    [Pages 1210-1211]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 00-391]
    
    
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    SECURITIES AND EXCHANGE COMMISSION
    
    [Release No. 34-42300; File No. SR-NASD-99-40]
    
    
    Self-Regulatory Organizations; Order Approving Proposed Rule 
    Change by the National Association of Securities Dealers, Inc., 
    Revising Its Fees for Listing Additional Shares
    
    December 30, 1999.
    
    I. Introduction and Background
    
        On August 20, 1999, the National Association of Securities Dealers, 
    Inc. (``NASD''), through its wholly owned subsidiary the Nasdaq Stock 
    Market, Inc. (``Nasdaq''), filed with the Securities and Exchange 
    Commission (``Commission'') a proposed rule change pursuant to Section 
    19(b)(1) of the Securities Exchange Act of 1934 (``Act'') \1\ and Rule 
    19b-4 thereunder.\2\ The proposed rule change modifies the fee rate 
    structures and notification requirements applied by Nasdaq to issuers 
    listing additional shares on either the Nasdaq National Market 
    (``NNM'') or the Nasdaq SmallCap Market (``NSCM'').
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        \1\ 15 U.S.C. 78s(b)(1).
        \2\ 17 CFR 240.19b-4.
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        Notice of the proposed rule change was published for a comment in 
    the Federal Register on November 12, 1999.\3\ The Commission received 
    no comments on the proposal. This order approves the proposed rule 
    change.
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        \3\ Securities Exchange Act Release No. 42108 (Nov. 4, 1999), 64 
    FR 61678.
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    II. Description of the Proposal
    
        The NASD proposes to revise its current fee schedule for listing 
    additional shares. Currently, NNM issuers pay a fee of $0.02 per share 
    for all issuances, subject to a cap of $17,500 per issuance, and NSCM 
    issuers pay a fee of $0.01 per share for all issuances, subject to a 
    cap of $7,500 per issuance. The fees are assessed only on certain 
    transactions \4\ and are not subject to annual maximum caps. 
    Additionally, under the current administration, fees are assessed 
    discretely on each eligible issuance of shares, and fees on multiple 
    issuances cannot be combined. Under the revised fee schedule, multiple 
    discrete issuances could be combined on a single form, or notification, 
    to the NASD for the purpose of determining fees. Both NNM and NSCM 
    issuers would pay a flat fee of $0.01 per share for all issuances of 
    additional shares, subject to a cap of $17,500 per notification and 
    $35,000 per year. Under the proposal, the minimum fee per notification 
    will be $2,000. NSCM issuers are currently subject to a minimum fee of 
    $1,000 per issuance and NNM issuers to a minimum fee of $2,000 per 
    issuance.
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        \4\ Generally, transactions involving the issuance of additional 
    shares which raise revenues for an issuer are currently assessed 
    fees, as distinguished from those transactions, such as the creation 
    of an employee stock option or benefit plan, that do not. The 
    proposal would eliminate this distinction and fees would be assessed 
    on all issuances.
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        The NASD represents that these fees will be used to support issuer-
    related initiatives such as surveillance, educational and training 
    programs.\5\ The NASD believes that the proposed revision of the fee 
    schedule will better spread the costs of these issuer-related 
    initiatives across the base of issuers benefiting from such 
    initiatives. Specifically, the revised fee structure recognizes that 
    Nasdaq does not distinguish between NNM issuers and NSCM issuers in 
    providing educational initiatives or surveillance measures. 
    Accordingly, the per-share fee for NNM issuers has been reduced to that 
    of NSCM issuers and the minimum and maximum fees payable by NSCM 
    issuers have been increased to the levels paid by NNM issuers. 
    Furthermore, the proposed revised fee structure would eliminate the 
    current fee structure's distinction between issuance of shares eligible 
    to be assessed fees. This distinction, based generally on whether or 
    not an issuance was deemed to raise revenue, caused confusion for 
    issuers as they attempted to interpret the fee criteria and thereby 
    create difficulty for the NASD in administering of the program for 
    listing additional shares.
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        \5\ The NASD described in detail the intended uses for such fee 
    revenue when it established the additional shares program. See 
    Securities Exchange Act Release No. 31289 (Oct 5, 1992), 57 FR 46887 
    (Oct. 13, 1992), SR-NASD-99-27).
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        The proposed fee structure also would allow issuers to file 
    notification of several issuances with the NASD on a single form and 
    aggregate the fees assessed on those issuances toward the $17,500 
    maximum fee per notification.\6\ Currently, issuers must file a 
    separate notification form with respect to each discrete transaction 
    that qualifies as a fee-assessable listing of additional shares, and 
    each such transaction is subject to the maximum fee per issuance. 
    Finally, the proposed $35,000 annual cap would limit the maximum fee an 
    issuer would be required to pay which should help to ensure that no 
    individual issuer will pay, as a result of frequent stock splits or 
    capital raising transactions, a disproportionate share of the total 
    costs of initiatives provided by
    
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    the Nasdaq to all NNM and NSCM issuers.
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        \6\ Each issuance must still be filed no later than 15 days 
    prior to issuance of the underlying shares, as required by NASD Rule 
    4310(c)(17).
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    III. Discussion
    
        The Commission finds that the proposed rule change is consistent 
    with the requirements of the Act and the rules and regulations 
    thereunder applicable to the NASD. Specifically, the Commission finds 
    that the rule change is consistent with the provisions of Sections 
    15A(b) (5) and (6) of the Act.\7\ Section 15A(b)(5) requires that the 
    rules of the NASD provide for the equitable allocation of reasonable 
    dues, fees, and other charges among members, issuers and other persons 
    using any facility or system which the NASD operates or controls. 
    Section 15A(b)(6) requires in pertinent part that the rules of the NASD 
    be designed to promote just and equitable principles of trade and not 
    permit unfair discrimination between customers, issuers, brokers or 
    dealers. The Commission believes that the revised NNM and NSCM fee 
    structures, which affect the fees payable by issuers for listing 
    additional shares, are consistent with the Act because they should 
    serve to spread more evenly the costs of various issuer-related 
    surveillance and educational initiatives among the issuers who may 
    benefit from them.
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        \7\ 15 U.S.C. 78o-3(b) (5) and (6).
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    IV. Conclusion
    
        The Commission finds that the rule change is consistent with the 
    Act, in general, and in particular with Sections 15A(b) (5) and (6) of 
    the Act.
        It is therefore ordered, pursuant to Section 19(b)(2) of the 
    Act,\8\ that the proposed rule change (SR-NASD-99-40) be, and hereby 
    is, approved.\9\
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        \8\ 15 U.S.C. 78s(b)(2).
        \9\ In approving the proposal, the Commission has considered the 
    rules' impact on efficiency, competition, and capital formation. 15 
    U.S.C. 78c(f).
    
        For the Commission, by the Division of Market Regulation, 
    pursuant to delegated authority.\10\
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        \10\ 17 CFR 200.30-3(a)(12).
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    Margaret H. McFarland,
    Deputy Secretary.
    [FR Doc. 00-391 Filed 1-6-00; 8:45 am]
    BILLING CODE 8010-01-M
    
    
    

Document Information

Published:
01/07/2000
Department:
Securities and Exchange Commission
Entry Type:
Notice
Document Number:
00-391
Pages:
1210-1211 (2 pages)
Docket Numbers:
Release No. 34-42300, File No. SR-NASD-99-40
PDF File:
00-391.pdf