

[Federal Register: September 23, 2005 (Volume 70, Number 184)]
[Notices]               
[Page 55933-55945]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23se05-94]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-52463; File No. SR-NYSE-2005-35]

 
Self-Regulatory Organizations; New York Stock Exchange, Inc.; 
Notice of Filing of Proposed Rule Change and Amendment Nos. 1 and 2 
Thereto Relating to Changes to Listed Company Manual Section 902.00 
Regarding Listing Fees

September 16, 2005.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given 
that on May 18, 2005, the New York Stock Exchange, Inc. (``NYSE'' 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 the NYSE. On July 29, 
2005, NYSE filed Amendment No. 1 to the proposed rule change.\3\ On 
August 16, 2005, NYSE filed Amendment No. 2 to the proposed rule 
change.\4\ The Commission is publishing this notice to solicit comments 
on the proposed rule change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ In Amendment No. 1, the Exchange clarified and supplemented 
certain aspects of its proposal. Amendment No. 1 supplements the 
information provided in various sections of the Exchange's Form 19b-
4.
    \4\ In Amendment No. 2, the Exchange made technical and 
clarifying changes to its proposal. Amendment No. 2 supplements the 
information provided in various sections of the Exchange's Form 19b-
4. The Commission has made minor technical changes to this notice 
with Nasdaq's consent. Telephone conversation between Susie Cho, 
Special Counsel, Jan Woo, Attorney, Division of Market Regulation, 
Commission, and John Carey, Assistant General Counsel, NYSE, on 
August 19, 2005.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The proposed rule filing proposes a number of changes to the 
current fee chapter set out in Sections 902.01 to 902.04 of the Listed 
Company Manual. In addition, the Exchange is proposing a reorganization 
of the relevant sections of the Listed Company Manual into a clearer 
and more concise format setting out fees by type of listed security.
    The text of the proposed rule change is below. Proposed new 
language is in italics; proposed deletions are in [brackets].

Listed Company Manual

* * * * *
902.00 [Listing] Fees for Listed Securities

902.01 Listed[ing] Securities Fee Agreement [, Current Form]

Each Listing Application submitted to the Exchange should must be 
accompanied by a Listed Securities Fee Agreement, in which the Company 
undertakes to pay Listing Fees and Annual Fees, unless such an 
agreement in the form shown below has previously been filed with the 
Exchange.

AGREEMENT made this ---- day of ------------ 20---- by ----------------
---- organized and existing under the laws of the State of ------------ 
(hereinafter called the ``Company'') with the New York Stock Exchange, 
Inc. (hereinafter called the ``Exchange'').

WITNESSETH:

I. WHEREAS the Company has applied for the listing upon the Exchange 
of:
-----------------------------------------------------------------------

    2. WHEREAS it is a condition precedent to the consideration of 
listing applications that this fee agreement be in effect between the 
Company and the Exchange covering the payment of Listing Fees [initial] 
and [continuing] A[a]nnual F[ f]ees.

    NOW, THEREFORE, in consideration of the Exchange receiving and 
considering the application for the listing of the aforementioned 
securities, and subsequent applications, if any, for the listing of 
additional shares of such securities and/or other securities of the 
Company, the Company covenants and agrees to pay, when due, any 
applicable L[l]isting F[f]ees and Annual Fees established from time to 
time by the Exchange.

    IN WITNESS WHEREOF, the Company has caused these presents to be 
executed by its proper officers thereunto duly authorized and its 
corporate seal to be hereunto affixed, as of the day and year first 
above written. ----------------
by---------------------------------------------------------------------
    (Name and Title)

902.02 GENERAL INFORMATION ON FEES

    There are two types of fees applicable to listed issuers--Listing 
Fees and Annual Fees. All fees are payable upon receipt of invoice. 
This chapter sets out fees by type of security, with different fees 
applicable to equity securities, closed-end funds, structured products 
(defined as securities listed under Sections 703.18, 703.19 and 
703.21), short-term securities (defined as securities having a term of 
seven years or less), investment company units

[[Page 55934]]

listed under Section 703.16 and debt securities.

Listing Fees

    Listing Fees are billed for each security listed at the time an 
issuer first lists on the Exchange, each subsequent time a new class of 
security is listed, or at any subsequent time that additional shares of 
a listed security are issued. Listing Fees are based on the number of 
shares issued and outstanding and are calculated separately for each 
class of security listed. Treasury stock, restricted stock and shares 
issued in conjunction with the exercise of an over-allotment option, if 
applicable, are included in the number of shares an issuer is billed 
for at the time the class of security is first listed.

Timing of Listing Fees for Subsequent Issuances

    To the extent that an issuer submits a supplemental listing 
application for shares that are immediately issued, such as in 
connection with a merger or acquisition, stock split or stock dividend, 
Listing Fees for those shares are billed at the time the supplemental 
listing application is processed.
    To the extent that an issuer submits a supplemental listing 
application for shares that are not issued at the time of listing, such 
as for an equity compensation plan or for convertible securities where 
the listed securities will be issued over time, only the applicable 
minimum supplemental listing application fee will be billed at the time 
the supplemental listing application is processed. Listing Fees will 
accrue on these securities as of the date of issuance and the accrued 
Listing Fees will be billed at the beginning of the following year 
along with the issuer's Annual Fees.

Calculating Listing Fees

    Generally, when an issuer lists a new class of equity securities, a 
structured product or a short-term security, Listing Fees are 
calculated according to Listing Fee schedules that set a per share rate 
based on the number of shares issued and outstanding. When a closed-end 
fund, however, first lists on the Exchange, Listing Fees are not 
calculated at a per share rate but are, instead, based on a range of 
fixed Listing Fees set according to the total number of shares issued 
and outstanding at the time of listing.
    For all listed securities, Listing Fees for subsequent listings of 
additional shares are calculated starting at the rate applicable to the 
number of shares already listed and outstanding (including treasury 
stock and restricted stock). Listing Fees for additional issuances are 
calculated according to the applicable Listing Fee schedule on a per 
share rate, subject to a minimum application fee.

U.S. Issuers

    For all issuers other than those that meet the SEC's definition of 
foreign private issuer, Listing Fees are calculated for each separate 
class being listed based on the total number of shares issued and 
outstanding at the time of listing. In this chapter, such issuers are 
referred to as ``U.S. issuers.''

Foreign Private Issuers

    For issuers that satisfy the SEC's definition of foreign private 
issuer, Listing Fees are calculated for each separate class being 
listed based on the number of shares issued and outstanding in the 
United States at the time of listing.

Annual Fees

    Annual Fees are calculated for each class or series of security 
listed based on the number of shares issued and outstanding, including 
treasury stock and restricted stock. In its first year of listing, an 
issuer is billed at the time of listing for Annual Fees that are 
prorated from the listing date through the end of the year. At the 
beginning of each subsequent year, the Exchange will invoice issuers 
for Annual Fees applicable to that year.

Calculating Annual Fees

    Annual Fees are calculated on a per share basis subject to a 
minimum fee. The Annual Fee is equal to the greater of the minimum fee 
and the fee calculated on a per share basis.

U.S. Issuers

    In order to calculate a U.S. issuer's Annual Fees for each class of 
security listed, the Exchange will include all issued and outstanding 
shares of that class as of December 31 of the previous year. The 
Exchange obtains information on the number of securities issued and 
outstanding from each issuer's transfer agent.

Foreign Private Issuers

    In order to calculate a foreign private issuer's Annual Fees, the 
Exchange will calculate a four-quarter average of securities issued and 
outstanding in the United States during the preceding year. The 
quarterly average serves to recognize the possibility of flow-back and 
flow-in of securities to and from the home country market and more 
reasonably reflect the number of securities in the United States over 
the course of the year. The Exchange obtains information on the number 
of securities issued and outstanding in the United States, including 
securities registered in the United States and securities held through 
any U.S. nominee, from each issuer's transfer agent and/or ADR 
depositary bank.
    To the extent that an issuer that is being billed as a foreign 
private issuer has a change in status that requires the issuer to 
commence filing U.S. periodic and annual reports with the SEC during 
the course of a year, the Exchange will bill that issuer as a U.S. 
issuer at the beginning of the first calendar year following the 
issuer's change in status. An issuer that changes its status is not 
subject to new Listing Fees for worldwide securities already issued and 
outstanding.

Total Maximum Fee Payable in a Calendar Year

    The total fees that may be billed to an issuer in a calendar year 
are capped at $500,000. The fee cap includes most Listing Fees and 
Annual Fees. The fee cap, however, does not include the following fees:
     Listing Fees and Annual Fees for Investment Company Units
     Listing Fees and Annual Fees for closed-end funds;
     Listing Fees for structured products; and
     Annual Fees for structured products other than retail debt 
securities.
    The term ``retail debt securities'' refers to debt securities that 
are listed under the equity criteria set out in Section 703.19 and 
traded on the equity floor of the Exchange.
    In the case of transactions involving listed issuers (such as the 
consolidation of two listed issuers into a new issuer, a merger between 
a listed issuer and an unlisted issuer where the unlisted issuer 
survives or a new issuer is formed, or a merger between two listed 
issuers where one listed issuer survives), all Listing Fees and Annual 
Fees paid by listed issuers party to the transaction in the year, and 
up to the date, that the transaction concludes will be counted towards 
calculating the Total Maximum Fee for the ultimate listed issuer in the 
year of the corporate transaction.
    In the case where the ultimate listed issuer was previously 
unlisted, however, Listing Fees and Annual Fees paid by any listed 
issuer party to the transaction will only be calculated towards the 
Total Maximum Fee for the ultimate listed issuer if such issuer lists 
on the Exchange at the time the transaction concludes.

[[Page 55935]]

Refunds of Fees

    Listing Fees and Annual Fees are non-refundable.

Cancellation, Retirement or Redemption of Securities

    An issuer must promptly advise the Exchange of the cancellation, 
retirement or partial or full redemption of listed securities. The 
resulting decrease in the number of securities outstanding does not 
reduce the fees an issuer has already paid, but will impact future 
billings.

902.03 FEES FOR LISTED EQUITY SECURITIES

    The Listing Fees and Annual Fees set out in this section apply to 
listings of common and preferred equity securities by U.S. issuers and 
foreign private issuers. However, the fees in this section do not apply 
to listings of securities issued by closed-end funds, or to structured 
products, short-term securities, or debt securities. Fees applicable to 
such securities are described in Sections 902.04, 902.05, 902.06 and 
902.07, respectively.

Listing Fees

Listing Fee Schedule

    When determining Listing Fees, calculations are made at each level 
of the schedule up to and including the last level applicable to the 
number of shares being listed. The total Listing Fee equals the sum of 
the amounts calculated at each level of the schedule. For examples of 
how Listing Fees are calculated, please see ``Calculating Listing 
Fees'' below. The Listing Fee schedule for equity securities is as 
follows:

------------------------------------------------------------------------
                                                               Fee per
                Number of securities issued                     share
------------------------------------------------------------------------
Up to and including 75 million.............................     $0.0048
Over 75 million up to and including 300 million............      0.00375
Over 300 million...........................................      0.0019
------------------------------------------------------------------------

    The first time that an issuer lists a class of common shares, the 
issuer is also subject to a one-time special charge of $37,500, in 
addition to fees calculated according to the Listing Fee schedule. 
Listing Fees for the following types of listings are also calculated 
under the Listing Fee Schedule:
     At the time it first lists, an issuer lists one or more 
classes of preferred stock or warrants, whether or not common shares 
are also listed at that time;
     Once listed, an issuer lists additional shares of a class 
of previously listed securities; or
     Once listed, an issuer lists a new class of preferred 
stock or warrants.
    These types of listings are not subject to the special charge or to 
the minimum or maximum Listing Fees applicable to an initial listing of 
common shares.

Limitations on Listing Fees

    Limitation on Listing Fees for Additional Class of Common Shares, 
including Tracking Stock. An issuer that applies to list an additional 
class of common shares at any time will be charged a fixed Listing Fee 
of $5,000 in lieu of the per share schedule. Such additional class of 
common shares includes, but is not limited to, a tracking stock.
    Minimum and Maximum Listing Fees. The minimum and maximum Listing 
Fees applicable the first time an issuer lists a class of common shares 
are $150,000 and $250,000, respectively, which amounts include the 
special charge of $37,500.
    Minimum Listing Fees for Subsequent Listing of Additional 
Securities. The minimum application fee for a subsequent listing of 
additional securities is $5,000. When listing additional securities, an 
issuer is billed Listing Fees in an amount equal to the greater of the 
$5,000 minimum supplemental listing application fee and the fee 
calculated on a per share basis. This applies to the listing of 
additional shares of an already listed equity security or to the 
listing of an additional class of equity security (other than a new 
class of common shares).
    Application Fee for Technical Original Listings and Reverse Stock 
Splits. The Exchange applies a $15,000 application fee for a Technical 
Original Listing (see Section 703.10) if 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. 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. The $15,000 application fee 
also applies to a reverse stock split.
    Fee for Certain Changes and for Poison Pills. A $5,000 fee will 
apply to applications for changes that involve modifications to 
Exchange records, for example, changes of name, par value, title of 
security or designation, and for applications relating to poison pills.
    Maximum Listing Fee for Stock Splits and Stock Dividends. Listing 
fees on shares issued in conjunction with stock splits and stock 
dividends are capped at $150,000 per split or issuance.
    Maximum Listing Fee for Issuance of Additional Shares of a Listed 
Class. Listing Fees on the issuance of additional shares of an already 
listed class of stock are capped at $500,000 per transaction, for 
example, in the case where shares are issued in conjunction with a 
merger or consolidation where a listed company survives, subsequent 
public offerings of a listed security and conversions of convertible 
securities into a listed security.
    Discounts on Listing Fees. In the case of transactions such as a 
consolidation between two or more listed issuers that results in the 
formation of a new issuer (where at the conclusion of the transaction 
the new issuer immediately lists), or a merger or consolidation between 
a listed issuer and an unlisted issuer that results in the unlisted 
issuer surviving or the creation of a new issuer (where within 12 
months from the conclusion of the transaction a previously unlisted 
issuer lists), Listing Fees for that newly listed issuer are calculated 
at a rate of 25% of total Listing Fees for each class of securities 
being listed (to the extent that total calculated listing fee for a 
class of common shares would be greater than $250,000, the calculation 
would be 25% of the $250,000 maximum for a new listing of common 
shares).
    The special charge of $37,500 and the $150,000 minimum charge 
applicable when an issuer first lists a class of common shares do not 
apply to these types of transactions.
    No discount will be applied where a listed issuer survives the 
merger or consolidation, or in the case of a backdoor listing. See 
Section 703.08(F) for a discussion of back door listings.
    Listing Fees for Pre-emptive Rights. Preemptive rights representing 
equity securities are not subject to a separate Listing Fee. As of the 
date that preemptive rights are exercised, Listing Fees will accrue on 
the securities issued and the issuer will be billed for those Listing 
Fees at the beginning of the following year.

Calculating Listing Fees

    Treasury stock, restricted stock and shares issued in conjunction 
with the exercise of an over-allotment option, if applicable, are 
included in the number of shares an issuer is billed for at the time a 
security is first listed.
    The following are examples of how Listing Fees would be calculated 
in the case of an original listing and subsequent additional issuance 
of common shares for U.S. and foreign private issuers.

[[Page 55936]]

U.S. Issuer

    Example A: A U.S. issuer listing 300,500,000 common shares in the 
context of an initial public offering or transfer from another market 
would pay total Listing Fees of $250,000 as follows:
     The special one-time charge is $37,500.
     The Listing Fee for the first 75 million shares is 
calculated at the rate of $0.0048 per share.
     The Listing Fee for the next 225 million shares is 
calculated at the rate of $0.00375 per share.
     The Listing Fee for the last 500,000 shares is calculated 
at a rate of $0.0019 per share.
     Since Listing Fees on an original listing of the primary 
class of Common Shares are subject to a maximum fee of $250,000 and the 
calculated amount exceeds this maximum, the Listing Fee will be 
$250,000.
    Example B: The same issuer subsequently applies to list an 
additional 100 million shares of common stock that are immediately 
issued. The issuer will pay total Listing Fees of $190,000 for the 
subsequent listing. Since the company has already paid Listing Fees on 
more than 300 million shares, the Listing Fee for the additional 100 
million shares is calculated at the rate of $0.0019 per share.

Foreign Private Issuer

    Example C: A foreign private issuer listing 125 million ADRs 
representing ordinary shares as part of a worldwide 500 million share 
offering, assuming that all 125 million ADRs are issued in the United 
States, will pay total Listing Fees of $250,000 as follows:
     The special one-time charge is $37,500.
     The Listing Fee for the first 75 million ADRs is 
calculated at the rate of $0.0048 per ADR.
     The Listing Fee for the next 50 million shares is 
calculated at the rate of $0.00375 per ADR.
     Since Listing Fees on an original listing of the ADRs are 
subject to a maximum fee of $250,000 and the calculated amount exceeds 
this maximum, the Listing Fee will be $250,000.
    Example D: The same issuer subsequently applies to list an 
additional 50 million ADRs that are immediately issued in the United 
States. The issuer will pay total Listing Fees of $187,500 for the 
subsequent listing. Since the company has already paid Listing Fees on 
125 million ADRs, Listing Fees for the additional 50 million ADRs are 
calculated at the rate of $0.00375 per ADR.
    The calculations set out in Examples C and D also apply to listings 
by foreign private issuers of ordinary shares, NY registered shares, 
and global shares.

Annual Fees

Annual Fee Schedule

    The Annual Fee for each class of equity security listed is equal to 
the greater of the minimum fee or the fee calculated on a per share 
basis:

------------------------------------------------------------------------
                                                    Minimum     Fee per
                 Type of security                     fee        share
------------------------------------------------------------------------
Primary class of common shares...................    438,000    $0.00093
Each additional class of common shares (including     20,000     0.00093
 tracking stock).................................
Primary class of preferred stock (if no class of      38,000     0.00093
 common shares is listed)........................
Each additional class of preferred stock (whether      5,000     0.00093
 primary class is common or preferred stock).....
Each class of warrants...........................      5,000     0.00093
------------------------------------------------------------------------

    To the extent that an issuer has more than one class of common 
shares listed, the class with the greatest number of shares outstanding 
will be deemed the primary class of common shares. The same analysis is 
applicable where an issuer has more than one class of preferred stock 
listed, but no class of common shares listed. Where an issuer lists a 
class of common shares, as well as a class of preferred stock, Annual 
Fees on the preferred stock will be billed at the rate applicable to an 
additional class of preferred stock.
    In the case of transactions involving listed companies (such as a 
consolidation between two or more listed issuers that results in the 
formation of a new issuer, or a merger or consolidation between a 
listed issuer and an unlisted issuer that results in the unlisted 
issuer surviving or the creation of a new issuer), where at the 
conclusion of the transaction a previously unlisted issuer immediately 
lists, Annual Fees will not be charged to that new issuer for the year 
in which it lists to the extent that the transaction concludes after 
March 31. To the extent that the transaction concludes on or before 
March 31 in any calendar year, however, the newly listing issuer will 
be charged pro rata Annual Fees from the date of listing to the end of 
the year, subject to the Total Maximum Fee.
    In addition, to the extent that a listed company is involved in a 
consolidation between two or more listed companies that results in the 
formation of a new issuer, or a merger or consolidation between a 
listed company and an unlisted issuer that results in the unlisted 
issuer surviving or the creation of a new issuer, or a merger between 
two listed issuers where one listed issuer survives, and the 
transaction concludes on or before March 31 in any calendar year, the 
non-surviving listed company(ies) will only be subject to pro rata 
Annual Fees for that year through the date of the conclusion of the 
transaction. To the extent that the transaction concludes after March 
31, the non-surviving listed company(ies) will be subject to full 
Annual Fees for that year.

902.04 FEES FOR LISTING SECURITIES OF CLOSED-END FUNDS

    The Listing Fees and Annual Fees set out in this section apply to 
equity securities of closed-end funds.

Original Listing Fee Schedule

    This Listing Fee Schedule is applicable when a closed-end fund 
first lists a class of common stock, or first lists a class of 
preferred stock in a case where common stock is not already listed.

------------------------------------------------------------------------
                                                                 Total
                 Number of securities issued                    listing
                                                                  fee
------------------------------------------------------------------------
Up to and including 10 million...............................    $20,000
Over 10 million up to and including 20 million...............     30,000
Over 20 million..............................................     40,000
------------------------------------------------------------------------

Listing Fee Schedule for Listing of Additional Securities

    In the case of the following types of additional listings, Listing 
Fees are calculated on a per share basis for each class according to 
the Listing Fee schedule below:
     At the time it first lists, a closed-end fund lists one or 
more classes of preferred stock or warrants in addition to a primary 
class of common stock or preferred stock;
     Once listed, a closed-end fund lists additional shares of 
a class of previously listed securities; or

[[Page 55937]]

     Once listed, a closed-end fund lists a new class of 
preferred stock or warrants.
    To the extent that an issuer lists more than one class of the same 
type of security, the class with the greatest number of shares issued 
will be deemed the primary class.
    When determining Listing Fees, calculations are made at each level 
of the schedule up to the last level applicable to the number of 
securities being listed. The total Listing Fee equals the sum of the 
amounts calculated at each level of the schedule. For examples of how 
Listing Fees are calculated, please see ``Calculating Listing Fees'' 
below.

------------------------------------------------------------------------
                                                               Fee per
                Number of securities issued                     share
------------------------------------------------------------------------
Up to and including 2 million..............................     $0.01475
Over 2 million up to and including 4 million...............      0.0074
Over 4 million up to and including 300 million.............      0.0035
Over 300 million...........................................      0.0019
------------------------------------------------------------------------

Limitations on Listing Fees

    Fund Family Discount. If two or more closed-end funds from the same 
fund family list at approximately the same time, the Exchange will cap 
the collective Listing Fee for those funds at $75,000. The Exchange 
will consider funds from the same fund family to be listing at 
approximately the same time if an issuer provides notice that such 
funds will be listed as part of the same transaction. A fund family 
consists of closed-end funds with a common investment adviser or 
investment advisers who are ``affiliated persons'' as defined in 
Section 2(a)(3) of the Investment Company Act of 1940, as amended.
    Limitation on Listing Fees for Additional Class of Common Shares. A 
closed-end fund that applies to list a new class of common shares in 
addition to its primary class will be charged a fixed Listing Fee of 
$5,000 in lieu of the per share schedule.
    Minimum Listing Fee for Subsequent Listing of Additional 
Securities. The minimum application fee for a subsequent listing of 
additional securities is $2,500. When listing additional securities, an 
issuer is billed Listing Fees in an amount equal to the greater of the 
$2,500 minimum supplemental listing application fee and the fee 
calculated on a per share basis. This applies to the listing of 
additional shares of an already listed equity security or to the 
listing of an additional class of equity security (other than a new 
class of common shares).
    Fee for Certain Changes. A $2,500 fee will apply to applications 
for changes that involve modifications to Exchange records, for 
example, changes of name, par value, title of security or designation.
    Application Fee for Technical Original Listings and Reverse Stock 
Splits. The Exchange applies a $15,000 application fee for a Technical 
Original Listing (see Section 703.10) if the change in the issuer's 
status is technical in nature and the shareholders of the original 
issuer receive or retain a share-for-share interest in the new issuer 
without any change in their equity position or rights. For example, a 
change in a closed-end fund's state of incorporation or a 
reincorporation or formation of a holding company that replaces a 
listed closed-end fund would be considered a Technical Original 
Listing. The $15,000 application fee also applies to a reverse stock 
split.
    Maximum Listing Fee for Stock Splits and Stock Dividends. Listing 
fees on shares issued in conjunction with stock splits and stock 
dividends are capped at $150,000 per split or issuance.
    Maximum Listing Fee for Issuance of Additional Shares of a Listed 
Class. Listing Fees on the issuance of additional shares of an already 
listed class of stock are capped at $500,000 per transaction, for 
example, in the case where shares are issued in conjunction with a 
merger or consolidation where a listed company survives, subsequent 
public offerings of a listed security and conversions of convertible 
securities into a listed security.
    Discounts on Listing Fees. In the case of transactions such as a 
consolidation between two or more listed issuers that results in the 
formation of a new issuer, or a merger or consolidation between a 
listed issuer and an unlisted issuer that results in the unlisted 
issuer surviving or the creation of a new issuer, where at the 
conclusion of the transaction a previously unlisted issuer immediately 
lists, Listing Fees for that new issuer are calculated at a rate of 25% 
of total Listing Fees for each class of securities being listed (to the 
extent that total calculated listing fee for a class of common stock 
would be greater than $250,000, the calculation would be 25% of the 
$250,000 maximum for a new listing of common stock).
    No discount will be applied where a listed issuer survives the 
merger or consolidation, or in the case of a backdoor listing. See 
Section 703.08(F) for a discussion of back door listings.
    Listing Fees for Pre-emptive Rights. Preemptive rights representing 
equity securities are not subject to a separate Listing Fee. As of the 
date that preemptive rights are exercised, Listing Fees will accrue on 
the securities issued and the issuer will be billed for those Listing 
Fees at the beginning of the following year.

Calculating Listing Fees

    Treasury stock, restricted stock and shares issued in conjunction 
with the exercise of an over-allotment option, if applicable, are 
included in the number of shares a closed-end fund is billed for at the 
time a security is first listed.
    The following are examples of how Listing Fees would be calculated 
by a closed-end fund in the case of an original listing and a 
subsequent additional issuance of common stock:
    Example A: A closed-end fund listing 50 million common shares in 
the context of an initial public offering or transfer from another 
market would pay total Listing Fees of $40,000.
    Example B: The same closed-end fund subsequently applies to list an 
additional 5 million shares of common stock that are immediately 
issued. The closed-end fund will pay total Listing Fees of $17,500 for 
the subsequent listing. Since the closed-end fund already has 50 
million shares outstanding, the Listing Fee for the additional 5 
million shares is calculated at a rate of $0.0035 per share.

Annual Fees

Annual Fee Schedule for Primary Listed Security

    The following Annual Fee Schedule is applicable to a closed-end 
fund's primary class of listed security (common stock, or preferred 
stock if no common stock is listed) and is equal to the greater of the 
minimum fee or the fee calculated on a per share basis:

Per Share Rate $0.00093 per share
Minimum Fee $25,000

Additional Classes of Listed Equity Issues

    The Annual Fee for equity issues other than the primary class of 
security listed is the greater of the minimum or the fee calculated on 
a per share basis:

Per Share Rate $0.00093 per share
Minimum Fee $5,000

    To the extent that a closed-end fund has more than one class of 
common shares listed, the class with the greatest number of shares 
outstanding will be deemed the primary class of common shares. The same 
analysis is applicable where a closed-end fund has more than one class 
of preferred stock listed, but no class of common shares listed. Where 
a closed-end fund lists a class of common shares, as well as a class of 
preferred stock, Annual Fees on the

[[Page 55938]]

preferred stock will be billed at the rate applicable to an additional 
class of preferred stock.

Limitations on Annual Fees

    Fund families that list between 3 and 14 closed-end funds will 
receive a 5% discount off the calculated Annual Fee for each fund 
listed, and those with 15 or more listed closed-end funds will receive 
a discount of 15%. No fund family shall pay aggregate Annual Fees in 
excess of $1,000,000 in any given year.
    In the case of transactions involving listed issuers (such as a 
consolidation between two or more listed issuers that results in the 
formation of a new issuer, or a merger or consolidation between a 
listed issuer and an unlisted issuer that results in the unlisted 
issuer surviving or the creation of a new issuer), where at the 
conclusion of the transaction a previously unlisted issuer immediately 
lists, Annual Fees will not be charged to that new issuer for the year 
in which it lists to the extent that the transaction concludes after 
March 31. To the extent that the transaction concludes on or before 
March 31 in any calendar year, however, the newly listing issuer will 
be charged pro rata Annual Fees from the date of listing to the end of 
the year.
    In addition, to the extent that a listed issuer is involved in a 
consolidation between two or more listed companies that results in the 
formation of a new issuer, or a merger or consolidation between a 
listed issuer and an unlisted issuer that results in the unlisted 
issuer surviving or the creation of a new issuer, or a merger between 
two listed issuers where one listed issuer survives, and the 
transaction concludes on or before March 31 in any calendar year, the 
non-surviving listed issuer(s) will only be subject to pro rata Annual 
Fees for that year through the date of the conclusion of the 
transaction. To the extent that the transaction concludes after March 
31, the non-surviving listed issuer(s) will be subject to full Annual 
Fees for that year.

902.05 Fees for Listing Structured Products

    The Listing Fees and Annual Fees set out in this section apply to 
structured products listed under Section 703.18, the equity criteria 
set out in Section 703.19, and Section 703.21, and traded on the equity 
floor of the Exchange. The term ``retail debt securities'' refers to 
debt securities that are listed under the equity criteria set out in 
Section 703.19 and traded on the equity floor of the Exchange.
    For fees applicable to structured products listed under the debt 
criteria set out in Section 703.19 and traded on the Automated Bond 
System, see Section 902.06. In addition, for fees applicable to 
structured products with a term of seven years or less, see Section 
902.07.

Listing Fees

Listing Fee Schedule

    The Listing Fee billed to an issuer when it lists securities is 
based on the number of shares issued at the time of listing. For an 
issuer of a structured product that lists a dollar amount of 
securities, an implied number of shares will be calculated by dividing 
the aggregate dollar amount of securities being listed by the 
denomination of such securities.
    When determining Listing Fees, calculations are made at each level 
of the schedule up to and including the last level applicable to the 
number of shares being listed. The total Listing Fee equals the sum of 
the amounts calculated at each level of the schedule. For examples of 
how Listing Fees are calculated, please see ``Calculating Listing 
Fees'' below.

------------------------------------------------------------------------
                                                                Fee per
                 Number of securities issued                     share
------------------------------------------------------------------------
Up to and including 2 million...............................    $0.01475
Over 2 million up to and including 4 million................      0.0074
Over 4 million up to and including 300 million..............      0.0035
Over 300 million............................................      0.0019
------------------------------------------------------------------------

    These fees apply the first time an issuer lists a structured 
product, as well as to the subsequent listing of additional shares of 
listed structured products or the listing of a new class of structured 
product. The Exchange treats each series of structured product as a 
separate issue.

Limitations on Listing Fees

    Maximum Listing Fees for Retail Debt Securities. The maximum amount 
of Listing Fees that will be billed to an issuer listing retail debt 
securities in a calendar year is $500,000.
    Minimum Listing Fee for Subsequent Listing of Additional 
Securities. The minimum application fee for a subsequent listing of 
additional securities is $2,500. When listing additional securities, an 
issuer is billed Listing Fees in an amount equal to the greater of the 
$2,500 minimum supplemental listing application fee and the fee 
calculated on a per share basis. This applies to the listing of 
additional shares of an already listed security or to the listing of an 
additional class of security.
    Fee for Certain Changes. A $2,500 fee will apply to applications 
for changes that involve modifications to Exchange records, for 
example, changes of name, par value, title of security or designation.

Calculating Listing Fees

    Shares issued in conjunction with the exercise of an over-allotment 
option, if applicable, are included in the number of shares an issuer 
is billed for at the time a security is first listed.
    The following are examples of how Listing Fees would be calculated 
in the case of an original listing and a subsequent additional issuance 
of a structured product, such as a trust preferred security:
    Example A: An issuer of trust preferred securities listing 10 
million shares in the context of an initial public offering or 
transferring such securities from another market would pay total 
Listing Fees of $65,300 as follows:
     The Listing Fee for the first 2 million shares is 
calculated at the rate of $0.01475 per share.
     The Listing Fee for the next 2 million shares is 
calculated at the rate of $0.0074 per share.
     The Listing Fee for the next 6 million shares is 
calculated at the rate of $0.0035 per share.
    Example B: The same issuer subsequently applies to list an 
additional 5 million shares of the same structured product that are 
immediately issued. The issuer will pay total Listing Fees of $17,500 
for the subsequent listing. Since the issuer has already paid Listing 
Fees on 10 million shares, the Listing Fee for the additional 5 million 
shares is calculated at the rate of $0.0035 per share.

Annual Fees

Annual Fee Schedule

    Annual Fees are based on the total number of securities outstanding 
per listed issue. The Annual Fee is equal to the greater of the minimum 
fee or the fee calculated on a per share basis.
Per Share Rate $0.00093 per share
Minimum Fee $5,000

Limitation on Annual Fees on Repackaged Securities.

    Any issue of Repackaged Securities will be subject to the Annual 
Fee schedule in effect at the time of listing of such issue, regardless 
of any changes to the fee schedule made thereafter. For purposes of 
this section, Repackaged Securities are securities listed under Section 
703.19, issued by a trust with a term of years, where the assets of the 
trust consist primarily of underlying fixed-income securities, and 
where the trust is funded (or a reserve is created) at issuance to 
cover the trust's principal

[[Page 55939]]

obligations and associated expenses during the life of the Repackaged 
Securities.

Annual Fees for Retail Debt Securities

    As set out in Section 902.02, the $500,000 Total Maximum Fee 
billable to an issuer in a calendar year includes all Annual Fees 
billed to an issuer for listed retail debt securities.

902.06 Listing Fees for Short Term Securities

    The Listing Fees and Annual Fees in this section apply to ``short-
term'' securities, or those securities having a term of seven years or 
less, such as, but not limited to, warrants representing equity 
securities, index warrants, foreign currency warrants, contingent value 
rights and structured products.

Listing Fees

    When determining Listing Fees, calculations are made at each level 
of the schedule up to and including the last level applicable to the 
number of shares being listed. The total Listing Fee equals the sum of 
the amounts calculated at each level of the schedule. For examples of 
how Listing Fees are calculated, please see ``Calculating Listing 
Fees'' below.

------------------------------------------------------------------------
                                                               Fee per
                Number of securities issued                     share
------------------------------------------------------------------------
Up to and including 2 million..............................    $0.007375
Over 2 million up to and including 4 million...............       0.0037
Over 4 million up to and including 300 million.............      0.00175
Over 300 million...........................................      0.00095
------------------------------------------------------------------------

    These fees apply to the original listing of short-term securities, 
as well as to the subsequent listing of additional shares of listed 
short-term securities or the listing of a new class of short-term 
security. The Exchange treats each series of short-term security as a 
separate issue.

Limitations on Listing Fees

    Minimum Listing Fee for Subsequent Listing of Additional 
Securities. The minimum application fee for a subsequent listing of 
additional securities is $2,500. When listing additional securities, an 
issuer is billed Listing Fees in an amount equal to the greater of the 
$2,500 minimum supplemental listing application fee and the fee 
calculated on a per share basis. This applies to the listing of 
additional shares of an already listed security or to the listing of an 
additional class of security.
    Fee for Certain Changes. A $2,500 fee will apply to applications 
for changes that involve modifications to Exchange records, for 
example, changes of name, par value, title of security or designation.

Calculating Listing Fees

    Shares issued in conjunction with the exercise of an over-allotment 
option, if applicable, are included in the number of shares an issuer 
is billed for at the time a security is first listed.
    The following are examples of how Listing Fees would be calculated 
in the case of an original listing and a subsequent additional issuance 
of a short-term security, such as index warrants:
    Example A: An issuer listing 10 million index warrants in the 
context of an initial public offering or transferring such securities 
from another market would pay total Listing Fees of $32,650 as follows:
     The Listing Fee for the first 2 million shares is 
calculated at the rate of $0.007375 per share.
     The Listing Fee for the next 2 million shares is 
calculated at the rate of $0.0037 per share.
     The Listing Fee for the next 6 million shares is 
calculated at the rate of $0.00175 per share.
    Example B: The same issuer subsequently applies to list an 
additional 5 million shares of the same security that are immediately 
issued. The issuer will pay total Listing Fees of $8,750 for the 
subsequent listing. Since the company has already paid Listing Fees on 
10 million shares, the Listing Fee for the additional 5 million index 
warrants is calculated at the rate of $0.00175 per share.

Annual Fees

    Annual Fees are based on the total number of securities outstanding 
per listed issue. The Annual Fee is equal to the greater of the minimum 
fee or the fee calculated on a per share basis.

Per Share Rate $0.00093 per share
Minimum Fee $5,000

902.07 Fees for Listing Investment Company Units

    The Listing Fees and Annual Fees set out in this section apply to 
Investment Company Units listed under Section 703.16.

Listing Fees

    A flat Listing Fee of $5,000 will be applied at the time a series 
of Investment Company Units first lists on the Exchange.

Annual Fees

    A flat Annual Fee of $2,000 will apply to each series of Investment 
Company Units listed on the Exchange.

902.08 Listing Fees for Debt Securities

    This fee schedule applies to bonds and other fixed income debt 
securities that list on the Exchange, including debt securities that 
list under the debt standard in Section 703.19 and trade on the 
Automated Bond System.

Debt of NYSE equity issuers and affiliated companies* NO FEE
Debt of issuers exempt from registration under Securities and Exchange 
Act of 1934 NO FEE
All other debt securities--New issues
$50 per million principal amount or fraction thereof. Minimum per issue 
$2,500--Issues outstanding one year or more
$25 per million principal amount or fraction thereof. Minimum per issue 
$1,250
(For zero-coupon issues the principal amount is based on total proceeds 
received by the issuer.)

    * The Exchange shall determine on a case-by-case basis whether a 
company is related to an issuer in a manner that qualifies the company 
as an ``affiliated Company.''

    The following applies to Non-NYSE equity companies:
    (1) In the case of relisting a previously listed issue so as to 
change the obligor or guarantor, a fee of $2,500 shall apply.
    (2) In the case of a shelf registration application, a fee of 
$1,400 shall apply, which shall be applied toward the total listing 
fee.
    (3) In the case of American Depositary Receipts (``ADRs'') that 
represent debt of a foreign company or sovereign, the principal amount 
of such shall be calculated as follows:
    (a) If the issue is only available through a single offering, the 
principal amount shall be deemed to equal 10 percent of the U.S. dollar 
value of the worldwide outstanding float.
    (b) If future offerings may be added to the issue, the principal 
amount shall be deemed to equal 12.5 percent of the U.S. dollar value 
of the worldwide outstanding float.

[902.02 Schedule of Current Listing Fees

    Each Listing Application submitted to the Exchange should be 
accompanied by a check to the order of the New York Stock Exchange, 
Inc. for the fees payable at that time. A Listing Fee Agreement, in 
which the Company undertakes to pay initial and continuing annual fees, 
should accompany the application, unless such an agreement in the form 
shown in Para. 902.01 has previously been filed with the Exchange.
    It is suggested that the calculation of the fees be checked in 
advance with the

[[Page 55940]]

Exchange where there is any question as to the amount of the fee 
payable. All fees will be calculated to the nearest dollar.
    There is a $1 million cap on listing fees per issuer in any given 
calendar year. This fee cap includes and encompasses all classes of 
securities except derivatives issued by listed companies as part of 
their capital structure. This cap will not apply to closed-end funds.

A. Original Listing Fee

    A special charge of $36,800 in addition to initial fees (described 
below) is payable in connection with the original listing of a 
company's stock. In any event, each issuer is subject to a minimum 
original listing fee of $150,000 inclusive of the special charge 
referenced in the preceding sentence.
    The special charge is also applicable to an application which in 
the opinion of the Exchange is a ``back-door listing''. See Para. 
703.08 (F) for definition.
    Original listings of closed-end funds are not subject to either the 
special charge or to the minimum original listing fee. Closed end funds 
will instead pay an original listing fee based on the number of shares 
outstanding upon listing. Closed-end funds with up to 10 million shares 
outstanding will be subject to a $20,000 original listing fee, closed-
end funds with greater than 10 million shares up to 20 million shares 
outstanding will be subject to a $30,000 original listing fee, and 
closed-end funds with more than 20 million shares outstanding will be 
subject to a $40,000 original listing fee. Original listings of closed-
end funds are also not subject to the initial fees described below.
    If two or more closed-end funds from the same fund family list at 
the same time, the Exchange will cap the collective original listing 
fee for those funds at $75,000. A fund family consists of closed end 
funds with a common investment adviser or investment advisers who are 
``affiliated persons'' as defined in Section 2(a)(3) of the Investment 
Company Act of 1940, as amended.

B. Initial Fee

    The initial fee schedule applies to original listings,** other than 
to original listings of closed-end funds as described above, and to the 
listing of additional shares of an already listed class of stock,* new 
issues of preferred stock, warrants, or similar securities which are 
the subject of subsequent applications. New issues of additional 
classes of common stock of listed companies will be charged a fixed 
initial fee of $5,000 in lieu of the per share schedule.
    Each stock or warrant--and in the case of preferred stock, each 
series--shall be regarded as a separate issue.
    Each application must cover the maximum number of shares that may 
be issued involving the particular transaction in question. However, 
the initial fee payable at the time of consideration of an application 
will cover only the determinable number of shares to be issued at or 
about that time. The balance of any initial fee under this schedule 
will accrue when subsequent issuance is made of shares not issued and 
paid for at the time that application is considered. This covers items 
like future issuances of shares for stock options, employee stock 
plans, conversion of other securities, contingencies, etc. Billing for 
such accrued initial fees is made as soon as possible following the 
close of the calendar year. Payment shall be made within 30 days of 
date upon receipt of invoice.
    The initial fee shall be paid on shares issued at the time of 
billing by the Exchange. The subsequent reacquisition by the company 
and/or surrender to it for exchange, cancellation, or retirement shall 
not reduce this fee. The Exchange should be advised of shares 
cancelled. The shares authorized for listing on the Exchange should be 
reduced by the number of shares cancelled as well as by the shares no 
longer required to be issued under a specific plan for which an 
application was previously filed with the Exchange.
    The pertinent initial fees per million shares are:

------------------------------------------------------------------------
                                                                Initial
                         Fee bracket                              fee
------------------------------------------------------------------------
1st and 2nd million shares...................................    $14,750
3rd and 4th million shares...................................      7,400
5th up to 300 million shares.................................      3,500
In excess of 300 million shares..............................      1,900
------------------------------------------------------------------------

    Reduced Initial Fee--A fee of $15,000 will apply to a company which 
either changes its state of incorporation or reincorporates, forms a 
holding company which replaces a listed company or has a reverse stock 
split. This fee will be applicable only if the change in the company's 
status is technical in nature and providing also that shareholders of 
the original company receive a share-for-share interest in the new 
company without any change in their equity position or rights.
    Amalgamations are calculated at 25% of the applicable basic initial 
fee. An amalgamation is defined as the listing of shares resulting from 
merger or consolidation of two or more listed companies into a new 
company or into an unlisted company that becomes listed.
    Mergers between an unlisted company and a listed company (other 
than back door listings (as defined in para.703.08(E))--If listing 
occurs within 12 months of the merger, 25% of the applicable basic 
initial fee, except during the first year following the listed 
company's original listing, where the fee shall be the lesser of (1) 
25% of the applicable basic initial fee or (2) the full fee less a 
credit for the fee the listed company paid at the time of its initial 
listing.
    In all other circumstances, the full initial fee rate will apply. 
For example: where a change in a listed security is effected which in 
the opinion of the Exchange in effect represents a new issue or class 
of security, or where the rights or privileges or the identities of 
previous shareholders are altered.
    Minimum Initial Fee--The minimum fee for the consideration of an 
application is $2,500. Credit against initial fees will be limited to 
the determinable number of shares to be issued at or about the time the 
application is processed where the minimum fee applies.
    The minimum initial fee of $2,500 will apply for changes such as 
change of name, change of par value, the title of the security, etc., 
since these require changes in Exchange records.

    * Fees on shares issued in conjunction with stock splits are capped 
at $250,000 per split and at $500,000 for all splits over a rolling 
three calendar-year period. Fees on shares issued in conjunction with a 
merger or acquisition (other than amalgamations) are capped at 
$500,000.
    ** Fees on shares listed in conjunction with the original listing 
are limited to $250,000 per company, inclusive of the special charge 
and encompassing all classes of securities.

C. Continuing Annual Fee

    This annual fee is payable each year on each equity security listed 
on the Exchange and subject to the continuing annual fee schedule. A 
newly listed Company is billed upon listing (prorated based upon the 
number of days from the listing date through the end of the year. In 
January of each year a billing for the continuing annual listing fee 
covering the following twelve months is made.)
    Per Share Calculation--All issued shares including treasury shares 
are included in the calculation.
Continuing Annual Fees (Effective January 1, 2003)
Per Share Rate $930 per million

[[Page 55941]]

Minimum Fee $35,000

    The continuing annual fees for closed end funds are as follows:
    Closed-end funds will pay at a rate of $930 per million shares, 
subject to a minimum annual fee of $25,000. Fund families with between 
3 and 14 closed-end funds listed will receive a 5% discount off the 
calculated continuing annual fee for each fund listed, and those with 
more than 14 listed closed-end funds will receive a discount of 15%. No 
fund family shall pay aggregate continuing annual fees in excess of $1 
million in any one year.*

    * In SR-NYSE-2003-33 (February 11, 2004), the Exchange eliminated a 
fee policy under which shares subject to continuing annual fees for a 
period of 15 consecutive years became exempt from further fees. The 
Exchange is phasing-in increases in fees for closed-end funds that were 
previously eligible for the 15-year exemption so that closed-end funds 
that are affected by the elimination will pay only 50% of increased 
fees in fiscal year 2004 and 100% in fiscal year 2005 and afterwards.

    Companies with more than one class of common stock will pay a 
minimum fee of $35,000 for the class with the greatest number of shares 
outstanding, with a minimum fee of $20,000 applicable to each 
additional class.
    Additional classes of common stock are subject to this schedule for 
continuing fees.
    Computation of Fee--Other Equity Issues--The fee is the greater of 
the minimum of $5,000 per issue or the fee calculated on a per share 
basis. All issued shares are included in the calculation.
Special Rule for Repackaged Securities
    Any issue of Repackaged Securities (as defined below), will be 
subject to the continuing annual fee schedule in effect at the time of 
listing of such issue, regardless of any changes to the fee schedule 
made thereafter. For the purpose of this Para. 902.02.C, Repackaged 
Securities are securities listed under Para. 703.19 of this Manual, 
issued by a trust with a term of years, where the assets of the trust 
consist primarily of underlying fixed-income securities, and where the 
trust is funded (or a reserve is created) at issuance to cover the 
trust's principal obligations and associated expenses during the life 
of the Repackaged Securities.
Overall Fee Cap
    In calculating the continuing listing fee for a listed company, the 
fees for all classes (or series) of listed securities of the company, 
excluding derivative products, fixed income products, and closed-end 
funds, are aggregated and the total continuing listing fee is capped at 
$500,000.
    Per Share Rates--Same as those applicable to common stock.

D. Supplements

    A fee of $430 will be made for processing information statements 
which are supplements to previous applications relating to minor 
changes where no action by the Exchange is involved.
2. Fees for Bonds and Similar Securities

Debt Listing Fees

    The fee schedule applies to bonds and other fixed income debt 
securities that list for trading on the Exchange

Debt of NYSE equity issuers and affiliated companies*--NO FEE
Debt of issuers exempt from registration under Securities and Exchange 
Act of 1934--NO FEE
All other debt securities--New issues
$50 per million principal amount or fraction thereof. Minimum per issue 
$2,500--Issues outstanding one-year or more
$25 per million principal amount or fraction thereof. Minimum per issue 
$1,250
(For zero-coupon issues principal amount based on total proceeds 
received by the issuer.)

    * The Exchange shall determine on a case-by-case basis whether a 
company is related to an issuer in a manner that qualifies the company 
as an ``affiliated Company.''

    The following applies to Non-NYSE equity companies:
    (1) In the case of relisting a previously listed issue so as to 
change the obligor or guarantor, a fee of $2,500 shall apply.
    (2) In the case of a shelf registration application, a fee of 
$1,400 shall apply, which shall be applied toward the total listing 
fee.
    (3) In the case of American Depositary Receipts (``ADRs'') that 
represent debt of a foreign company or sovereign, the principal amount 
of such shall be calculated as follows:
    (a) If the issue is only available through a single offering, the 
principal amount shall be deemed to equal 10 percent of the U.S. dollar 
value of the worldwide outstanding float.
    (b) If future offerings may be added to the issue, the principal 
amount shall be deemed to equal 12.5 percent of the U.S. dollar value 
of the worldwide outstanding float.

902.03 Short-Term Securities

Fees for Short-Term Securities

    Short-term securities are defined by the Exchange as those 
securities having a term of seven years or less (e.g. index warrants, 
foreign currency warrants, contingent value rights, etc.)

A. Short-Term Securities Initial Fees

    The initial fee schedule applies to the original listing of short-
term securities, and any additional short-term securities which are the 
subject of subsequent applications.
    Each short-term security series shall be regarded as a separate 
issue.

------------------------------------------------------------------------
                                                                  Per
                  Initial fee security issue                    million
------------------------------------------------------------------------
1st and 2nd million..........................................     $7,375
3rd and 4th million..........................................      3,700
5th and up to 300 million....................................      1,750
In Excess of 300 million.....................................        950
------------------------------------------------------------------------

B. Short-Term Securities Continuing Annual Fees

(Effective January 1, 2003)
    An annual fee is payable each year on each short-term security 
listed on the Exchange and subject to the continuing annual fee 
schedule. Following an initial proration period short-term securities 
will be billed in January of each year and will be billed for the 
forthcoming 12 months.

Per Share Rate: $930 per million
Minimum Fee per Issue: $5,000

902.04 Overseas Companies

    Rule:

A. Original Listing Fees

    There are original and continuing annual fees associated with a New 
York Stock Exchange listing. The following highlights these fees which 
are based upon either the number of ordinary shares or ADR's (or 
similar securities) issued in the United States.

Schedule of Original Listing Fees (effective September 8, 1989):

Original Fee plus $36,800
Shares or ADRs Issued: Per Million (or similar securities)
    1st and 2nd million: $14,750
    3rd and 4th million: $7,400
    5th up to 300 million: $3,500
    In excess of 300 million: $1,900
Minimum Fee: $150,000
Maximum Fee: $250,000

    Fees for non-U.S. companies whose ordinary shares or ADRs (or 
similar securities) are traded in the U.S. are based on the number of 
shares or ADRs actually issued and outstanding in the U.S.

[[Page 55942]]

    For example, assume ADRs from non-U.S. company are to be listed and 
traded on the New York Stock Exchange. Currently there are 8.5 million 
ADRs issued in the United States. The NYSE would levy its initial 
listing fee based on those 8.5 million ADRs as follows:

Original Fee plus $36,800
Per Share/ADR Fee
    1st and 2nd million: $29,500
    3rd and 4th million: $14,800
    5th and 8.5th million: $15,750
Total: $96,850

    Since the per ADR fee of $96,850 does not exceed the minimum fee of 
$150,000, the company would pay an initial listing fee of $150,000.
    Also payable upon listing is the first year's continuing annual 
listing fee which will be based on the number of ADRs or shares issued 
in the U.S. and prorated for the balance of the calendar year.

B. Initial Listing Fees

    If an Exchange-listed company issues shares or ADRs (or similar 
security) during the year, an initial fee, using the Schedule of 
Original Listing Fees, is levied only on those shares or ADRs (or 
similar security) issued in the U.S.
    For example, assume an overseas company which has 8.5 million ADRs 
issued in the U.S. sells 2.5 million ADRs, only 1.0 million of which 
are issued in the U.S. The company would pay an initial fee at the rate 
of $3,500 per million ADRs or $3,500.

C. Continuing Annual Fees

    The Exchange, through information provided by ADR or share agents, 
calculates a four-quarter average of shares or ADRs (or similar 
security) issued in the U.S. as a basis for an overseas company's 
annual fee. The quarterly average serves to correct for the possibility 
of flow-back and flow-in of shares or ADRs (or similar security) to and 
from the home country market and more accurately represents the number 
of shares or ADRs (or similar security) in the U.S. over the course of 
the year.
    The annual fee is equal to the greater of the fee calculated on a 
per share or ADR (or similar security) basis or based on the range 
minimums listed below.

Schedule of Continuing Annual Fees

Per Share or ADR Rate: $930 per million (or similar securities)
Minimum Fee for Shares or ADRs
    Listed (or similar securities) (millions) $35,000
Maximum Annual Fee $500,000

    Companies with more than one class of common stock will pay the 
minimum fee of $35,000 for the class with the greatest number of shares 
outstanding and a minimum fee of $20,000 for any additional class.]
* * * * *

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 NYSE 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. NYSE 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
    In the course of analyzing business goals and the competitive 
environment, the NYSE recently completed a review of the current 
listing fee schedule. As a result of this review, the Exchange is 
proposing a number of changes to the current fee chapter set out in 
Sections 902.01 to 902.04 of the Listed Company Manual. These proposed 
changes will not impact fees paid by issuers of closed-end funds, 
structured products, or short-term securities, except as specified. In 
addition, the Exchange is proposing a reorganization of the relevant 
sections of the Listed Company Manual into a clearer and more concise 
format setting out fees by type of listed security.
    Reorganization of Fee Chapter. The Exchange proposes to restructure 
Section 902.00 of the Listed Company Manual. The proposed format sets 
out general information applicable to all fees, as well as separate fee 
provisions for listing equity securities, closed-end funds, structured 
products, short-term securities, investment company units and debt 
securities. Each proposed section includes guidelines on how fees are 
calculated, as well as numerical examples. We also propose 
recategorizing ``original listing'' and ``initial listing fees'' as 
``Listing Fees'' and ``continuing annual fees'' as ``Annual Fees'' to 
minimize confusion regarding terminology.
    Overall Fee Cap. The Exchange proposes to decrease the current 
total issuer per annum fee cap by 50% from $1 million to $500,000, with 
certain exceptions. The proposed $500,000 annual total maximum fee 
amount will include all Listing Fees and Annual Fees payable by an 
issuer other than with respect to the following fees, which are 
excluded from the cap:
     Listing Fees and Annual Fees for Investment Company 
Units;\5\
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    \5\ Telephone conversation between Susie Cho, Special Counsel, 
Jan Woo, Attorney, Division of Market Regulation, Commission, and 
John Carey, Assistant General Counsel, NYSE, on August 19, 2005.
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     Listing Fees and Annual Fees for closed-end funds;
     Listing Fees for all structured products; and
     Annual Fees for structured products other than retail debt 
securities.
    The Exchange also proposes to clarify that the term ``structured 
products'' refers to securities listed under Sections 703.18, 703.19 
and 703.21, and that the term ``retail debt securities'' refers to debt 
securities that are listed under the equity criteria set out in Section 
703.19 and traded on the equity floor of the Exchange.
    Fees on closed-end funds and structured products (other than Annual 
Fees for retail debt securities) will continue to be subject to the fee 
schedules, including fee caps, currently in place for those products.
    Listing Fees. The Exchange's current Listing Fee schedule with 
respect to equity securities was last increased in 1989.\6\ The 
Exchange proposes to modify the Listing Fee schedule applicable to 
listed equity securities, while also simplifying the schedule. 
Currently, the Listing Fee schedule includes four tiers. The Exchange 
proposes reducing this schedule to three tiers. Under the rates as 
proposed, companies that list up to and including 75 million shares of 
an equity security will pay $4,800 per million, above 75 million up to 
and including 300 million shares will pay $3,750 per million, and above 
300 million shares will continue to pay $1,900 per million. As a result 
of these proposed changes, companies may pay higher Listing Fees than 
under the current rates. The Exchange also proposes to set forth 
Listing Fees for all types of securities as per share numbers instead 
of the current per million approach (i.e., $0.0048 per share rather 
than $4,800 per million). In addition, the Exchange proposes to specify 
the fees applicable to tracking stocks. The fees with respect to 
Investment Company Units specified in the filing are the same as those 
that have been charged traditionally.
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    \6\ See Securities Exchange Act Release No. 26602 (March 6, 
1989), 54 FR 10471 (March 13, 1989) (SR-NYSE-88-44). Telephone 
conversation between Susie Cho, Special Counsel, Jan Woo, Attorney, 
Division of Market Regulation, Commission, and John Carey, Assistant 
General Counsel, NYSE, on August 19, 2005.

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[[Page 55943]]

    Currently, Section 902.02 establishes an initial listing fee cap 
for shares issued in conjunction with stock splits of $250,000 per 
split and, for a single issuer who transacts multiple splits, a cap of 
$500,000 over a consecutive three calendar year period. The Exchange 
proposes to decrease the Listing Fee cap for shares issued in 
conjunction with stock splits by 40% to $150,000 per stock split. The 
Exchange also proposes to eliminate the three year cap on stock splits 
in light of the proposed $500,000 annual total maximum fee. The 
Exchange also proposes to apply the $150,000 fee cap to stock 
dividends. These proposed changes would also apply to fees paid by 
closed-end funds and structured products for stock splits and stock 
dividends.
    The Exchange also proposes increasing from $2,500 to $5,000 the 
current minimum application fee for the authorization of a subsequent 
application to list additional securities or another class of equity 
securities, or to make certain changes (such as a change of name or par 
value) applicable to issuers that list equity securities. In addition, 
the Exchange proposes to slightly increase the special charge that is 
applied when a company first lists a class of common stock from $36,800 
to $37,500. Note that the Exchange also proposes to eliminate the 
current $430.00 application fee applicable to processing minor 
amendments to previously filed applications.\7\
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    \7\ Telephone conference between John Carey, Assistant General 
Counsel, NYSE, and Florence E. Harmon, Senior Special Counsel, 
Division of Market Regulation, Commission, on August 11, 2005.
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    Annual Fees. The Exchange proposes increasing the current minimum 
Annual Fee payable on a common stock or a preferred-only listing from 
$35,000 to $38,000. The Exchange has also clarified that the Annual Fee 
for each class of equity security listed is equal to the greater of the 
minimum fee or the fee calculated on a per share basis of $0.00093. The 
Exchange also proposes to clearly set out the minimum and per share 
rates applicable to each type of listed security.
    Codification and Clarification of Billing Practices. The Exchange 
is also proposing to make a number of changes and clarifications to its 
current billing policies. For example, the Exchange proposes to clarify 
that the current fee cap of $500,000 for shares issued in conjunction 
with a merger or acquisition is also applicable to all additional 
issuances of already listed securities (for example, subsequent public 
offerings and conversions of debt) on a per transaction basis.
    The Exchange also proposes to specify that a foreign private issuer 
as defined in Rule 3b-4(c) under the Act \8\ that loses that status for 
purposes of SEC filings will be billed as a U.S. company starting at 
the beginning of the year following its change in status.
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    \8\ 15 U.S.C. 78a.
---------------------------------------------------------------------------

    The Exchange proposes to specify, for all types of securities, 
that, in addition to treasury stock and restricted stock, shares issued 
pursuant to overallotment options will also be included when 
calculating Listing Fees at the time an issuer lists a class of 
security for the first time.
    The Exchange proposes to amend its current policy regarding credits 
for issuers paying the minimum Listing Fee. Under the Exchange's policy 
since 2000 regarding Listing Fees, if an issuer's Listing Fee when it 
first lists as calculated based on the Listing Fee schedule is less 
than $150,000, the difference between the calculated fee and $150,000 
is applied as a credit against future Listing Fees billed to the 
issuer. As proposed, new issuers billed the minimum would not receive a 
credit towards future Listing Fees. The approximately 140 issuers that 
currently have an unused Listing Fee credit will be able to apply that 
unused credit towards future listings until December 31, 2005.
    The Exchange also proposes to amend its current policy regarding 
credits for issuers paying the minimum supplemental listing application 
fee. Currently, where an issuer pays the minimum application fee, such 
as where shares of an equity compensation plan are being listed subject 
to issuance, such minimum fee is applied against the Listing Fees that 
accrue during the calendar year as shares are issued. As proposed, 
issuers that pay the minimum supplemental listing application fee will 
not have that fee applied towards Listing Fees for future issuances.
    The Exchange proposes to specify that Listing Fees and Annual Fees 
are non-refundable in all cases where an issuer delists from the 
Exchange, whether involuntarily or voluntarily.
    The Exchange proposes to clarify that, in the context of the 
discount provided for Listing Fees to issuers that list more than one 
fund, the discount will be applicable when funds in the same fund 
family list at approximately the same time, as opposed to requiring 
that all such funds list on the same day. The Exchange will consider 
funds from the same fund family to be listing at approximately the same 
time if an issuer provides notice that such funds will be listed as 
part of the same transaction.
    The Exchange proposes to amend the current limitations on Listing 
Fees applicable to certain mergers of companies and closed-end funds. 
The current rule provides that in the case of a consolidation, or 
``amalgamation,'' of two listed companies into a new company or an 
unlisted company, which becomes listed, Listing Fees are calculated at 
a rate of 25% of basic Listing Fees. The current rule also provides 
that, in the case of a merger or consolidation of a listed company and 
an unlisted company that results in the formation of a new company or 
where the unlisted company survives, Listing Fees are calculated at a 
rate of 25% of basic Listing Fees, unless the merger occurs within 12 
months of the listed company's listing date, in which case the new 
company or the unlisted company pays Listing Fees equal to the lesser 
of (1) 25% of basic Listing Fees or (2) full Listing Fees minus a 
credit for Listing Fees paid by the listed company at the time of 
listing. The Exchange proposes to simplify the discounts applicable to 
these transactions so that, in the case of transactions such as a 
consolidation between two or more listed issuers that results in the 
formation of a new issuer (where at the conclusion of the transaction 
the new issuer immediately lists), or a merger or consolidation between 
a listed issuer and an unlisted issuer that results in the unlisted 
issuer surviving or the creation of a new issuer (where within 12 
months from the conclusion of the transaction a previously unlisted 
issuer lists), Listing Fees for that newly listed issuer will be 
calculated at a rate of 25% of total Listing Fees for all classes of 
securities being listed (to the extent that total calculated listing 
fee for a class of common shares would be greater than $250,000, the 
calculation would be 25% of the $250,000 maximum for a new listing of 
common shares). The Exchange also proposes to specify that the current 
special charge of $36,800 (proposed to be increased to $37,500) and the 
$150,000 minimum charge applicable when a company first lists a class 
of common shares do not apply to these types of transactions.
    The Exchange also proposes to eliminate the current rule that 
provides for credit towards Annual Fees in the case where two listed 
companies merge and one of the listed companies survives. Currently, in 
this case, a credit is given to the surviving listed company for the 
pro rata portion of the non-surviving listed company's Annual Fees (for 
the period from the date of the conclusion of the transaction through 
the end of the calendar year) towards

[[Page 55944]]

the surviving listed company's Annual Fees in the following year. 
Instead, the Exchange proposes to implement a new policy regarding all 
corporate mergers and consolidations. As proposed, in the case of 
transactions involving listed companies (such as the consolidation of 
two listed issuers into a new issuer, a merger between a listed issuer 
and an unlisted issuer where the unlisted issuer survives or a new 
issuer is formed, or a merger between two listed issuers where one 
listed issuer survives), all Listing Fees and Annual Fees paid by 
listed companies party to the transaction in the year, and up to the 
date, that the transaction concludes will be counted towards 
calculating the $500,000 annual total issuer maximum fee for the 
ultimate listed issuer in the year of the corporate transaction.
    In the case where the ultimate listed issuer was previously 
unlisted, however, Listing Fees and Annual Fees paid by any listed 
issuer party to the transaction will only be calculated towards the 
$500,000 annual total maximum fee for the ultimate listed issuer if 
such issuer lists on the Exchange at the time the transaction 
concludes.
    In addition, an ultimate listed company previously unlisted listing 
on the Exchange at the time the transaction concludes will not be 
required to pay Annual Fees in the year in which it lists to the extent 
that the transaction concludes after March 31. To the extent that the 
transaction concludes on or before March 31 in any calendar year, 
however, the newly listing issuer will be charged pro rata Annual Fees 
from the date of listing to the end of the year, subject, in the case 
of an operating company, to the Total Maximum Fee.
    In addition, to the extent that a listed company is involved in a 
consolidation between two or more listed companies that results in the 
formation of a new issuer, or a merger or consolidation between a 
listed company and an unlisted issuer that results in the unlisted 
issuer surviving or the creation of a new issuer, or a merger between 
two listed issuers where one listed issuer survives, and the 
transaction concludes on or before March 31 in any calendar year, the 
non-surviving listed company will only be subject to pro rata Annual 
Fees for that year through the date of the conclusion of the 
transaction. To the extent that the transaction concludes after March 
31, the non-surviving listed company will be subject to full Annual 
Fees for that year. The foregoing is a codification of the Exchange's 
current policy.
    Implementation Dates for Proposed Changes. The proposed fee changes 
will be implemented as of the date of Commission approval of this 
filing with the exception of the proposed increase in the minimum 
continuing annual fee for common stock and preferred-only listings from 
$35,000 to $38,000, which is proposed to be effective as of January 1, 
2006 should the Commission approve this filing before that date.
    With respect to the proposed decrease in the current total issuer 
per annum fee cap from $1 million to $500,000, to the extent that, at 
the time this rule filing is approved by the SEC, a listed issuer has 
already paid or been invoiced for total fees in an amount greater than 
$500,000 but less than $1 million, the Exchange does not propose to 
provide a refund or credit for the amount that exceeds $500,000.
2. Statutory Basis
    The Exchange believes that the basis under the Act for this 
proposed rule change, as amended, is the requirement under Section 
6(b)(5) \9\ that an exchange have rules that are designed to prevent 
fraudulent and manipulative acts and practices, to promote just and 
equitable principles of trade, to remove impediments to, and perfect 
the mechanism of a free and open market and, in general, to protect 
investors and the public interest.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change, as 
amended, 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

    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 Exchange consents, the Commission shall: (a) By order approve 
such 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, as amended, 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 rule-comments@sec.gov. Please include 

File No. SR-NYSE-2005-35 on the subject line.

Paper comments

     Send paper comments in triplicate to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission, Station Place, 100 F 
Street, NE., Washington, DC 20549-9303.
    All submissions should refer to File Number SR-NYSE-2005-35. 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 Commissions 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 the NYSE. 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-2005-35 and should be submitted on or before 
October 14, 2005. 


[[Page 55945]]


    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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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 05-19041 Filed 9-22-05; 8:45 am]

BILLING CODE 8010-01-P
