[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Notices]
[Pages 24846-24849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12235]



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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-37188; International Series Release No. 976: File No. 
SR-NYSE-96-08]


Self-Regulatory Organizations; New York Stock Exchange, Inc.; 
Notice of Filing and Order Granting Accelerated Approval of Proposed 
Rule Change Relating to Commodity Indexed Preferred Securities

May 9, 1996.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''), 15 U.S.C. 78s(b)(1), notice is hereby given that on April 8, 
1996, the New York Stock Exchange, Inc. (``NYSE'' or ``Exchange'') 
filed with the Securities and Exchange Commission (``Commission'' or 
``SEC'') the proposed rule change as described in Items I and II below, 
which Items have been prepared by the NYSE. This Order approves the 
proposed rule change on an accelerated basis and also solicits comments 
on the proposed rule change from interested persons.

I. Self-Regulatory Organization's Statement of the Terms of 
Substance of the Proposed Rule Change

    The Exchange proposes to list under Paragraph 703.19 of the Listed 
Company Manual (``Manual'') Commodity Futures Index Preferred 
Securities (``Securities''). The Securities are intermediate term 
securities whose value will be linked, in part, to changes in the 11 
individual commodities (or the futures contracts overlying such 
commodities) that comprise the J.P. Morgan Commodity Index or its 
subindices.
    The Securities either will be linked: (1) directly to the price of 
a futures contract on the commodity, (2) to an ``Excess Return Index'' 
of the commodity, or (3) to a ``Total Return Index'' of the commodity. 
An Excess Return Index represents the cumulative returns of investing 
in unleveraged positions in nearby commodity futures contracts and 
constantly rolling the position forward to the next designated contract 
as the contract nears expiration. The Total Return Index consists of 
the Excess Return Index plus the return on three-month Treasury Bills.

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 and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item 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

    The Exchange proposes to list the Securities pursuant to Para. 
703.19 of the Manual. Under Para. 703.19, the issuer will be either a 
listed company, an affiliate of a listed company or a company that 
meets NYSE listing criteria. It currently is anticipated that the 
issuer will be a financing subsidiary of a listed company.
    The Securities. The Securities will be preferred securities or debt 
securities with a term of two to ten years listed pursuant to Para. 
703.19 of the Manual. The redemption price of the Securities will be 
based, in part, on the 10-day average level of the value of the 
underlying individual commodity (or futures contract) during the 20 
days prior to maturity of the Securities. At redemption, holders will 
receive par value times a percentage calculated by dividing the ending 
value of the underlying commodity (or futures contract) by the 
beginning value of the underlying commodity (or futures contract). Such 
percentage may be greater or less than 100 percent and, therefore, at 
redemption, the holder could receive less than the original issue 
amount of the Securities.\1\ The following chart describes the linked 
contracts:
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    \1\ The underwriter of the Securities has advised the NYSE that 
the Securities will comply with the ``hybrid exemption'' of the 
Commodity Futures Trading Commission (``CFTC''), 17 CFR part 34. The 
underwriter has further advised the Exchange that it has presented a 
description of the structure and sample term sheet of the Securities 
to the staff of the CFTC, who have not raised any objections.

[[Page 24847]]



------------------------------------------------------------------------
         Official                                                       
No.   commodity name       Exchange        Units per      Contract used 
         and units                          contract                    
------------------------------------------------------------------------
1..  Aluminum $/MT     LME............  25 tons........  Third Wednesday
      (Metric Tons).                                      of Mar, Jun,  
                                                          Sep and Dec.  
2..  Copper $/MT.....  LME............  25 tons........  Third Wednesday
                                                          of Mar, Jun,  
                                                          Sep and Dec.  
3..  Nickel $/MT.....  LME............  6 tons.........  Third Wednesday
                                                          of Mar, Jun,  
                                                          Sep and Dec.  
4..  Zinc $/MT.......  LME............  25 tons........  Third Wednesday
                                                          of Mar, Jun,  
                                                          Sep and Dec.  
5..  Heating Oil #2 $/ NYMEX..........  42,000 gal.....  Every month.   
      gal.                                                              
6..  Natural Gas $/MM  NYMEX..........  10,000 MM BTU..  Every month.   
      BTU.                                                              
7..  Unleaded Gas $/   NYMEX..........  42,000 gal.....  Every month.   
      gal.                                                              
8..  WTI Light Sweet   NYMEX..........  1,000 bb1......  Every month.   
      Crude $/BBL.                                                      
9..  Platinum $/troy   NYMEX..........  50 troy oz.....  Jan, Apr, Jul, 
      oz.                                                 Oct.          
10.  Gold............  COMEX..........  100 troy oz....  Feb, Apr, Jun, 
                                                          Aug and Dec.  
11.  Silver..........  COMEX..........  5,000 troy oz..  Mar, May, Jul, 
                                                          Sep and Dec.  
------------------------------------------------------------------------

    The Securities will meet the listing criteria of Para. 703.19. 
Thus, if the Securities are listed and traded as equity securities: 
there will be at least one million Securities outstanding; the 
Securities will have a market value of at least $4 million; and there 
will be at least 400 holders of the Securities. If the Securities are 
listed and traded as debt securities, there will be a minimum public 
market value of at least $4 million. Equity margin will apply to all 
Securities, whether listed as debt or equity.
    The Indices. Securities linked to an Excess Return Index will pay 
dividends or interest (collectively, ``Distributions'') at a specified 
rate. The value of the Securities will be calculated with reference to 
the prices of nearby futures contracts on the applicable commodity. An 
independent calculation agent will calculate and disseminate the value 
of the Securities every 60 seconds during the trading day. The daily 
change in value is derived exclusively from the daily profit or loss on 
such futures positions. Over time, the elements of this change can be 
described as having two components: the change in price in the nearby 
contract (``price return'') and the cost of carry imbedded in the 
futures contract forward curve (``roll return'').\2\
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    \2\ These are accounting terms used to describe the elements 
comprising the return associated with the Index. Changes in the 
value of the Securities actually result solely from the cumulative 
profit and loss on the futures position overlying the applicable 
commodity.
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    The price return is the change in price on the nearby futures 
contracts. The roll return is the yield that is potentially available 
as a result of the difference between the prices for shorter-term 
futures positions and longer-term futures positions. These prices could 
differ depending on a variety of factors, including market expectation 
of price trends and general supply and demand. Historically, many 
commodity markets have been in ``backwardation'' for extended periods. 
That creates an opportunity to increase return by creating longer-dated 
positions and ``rolling'' positions forward as they expire. However, 
there is no guarantee that such a strategy will produce a positive 
return. If prices for shorter-dated positions are less than the prices 
for longer-dated positions (a situation known as ``contango''), there 
would be a negative return to the roll over time.
    If the Securities are linked to a Total Return Index, in addition 
to price return and roll return, the concept of ``collateral return'' 
will be included when determining the value of the Securities. 
Collateral Return incorporates the component of returns on U.S. 
Treasury Bills that would arise if the face amount of the investment is 
fully collateralized by Treasury Bills. While commodities investors are 
not obligated to collateralize their positions fully, this return is 
included to facilitate accurate comparison of the performance of an 
investment in commodities relative to an investment in financial assets 
such as a stock or bond portfolio. Under the Total Return methodology, 
the Securities would either not have a separate Distribution or the 
Distribution would be substantially less than if the Excess Return 
methodology were used.
    If the Securities are linked directly to the price of the 
commodity, there will be no element of roll return, collateral return 
or total return in the pricing. Rather, the holders of the Securities 
will receive Distributions on the face value of their Securities. The 
frequency and rates of such Distributions will vary from issue to issue 
depending upon prevailing interest rates and other factors, including 
the price of the linked commodity.
    The design, composition and calculation of a Total Return or Excess 
Return Index is expected to remain unchanged during the term of the 
Securities. If market developments require changes to these aspects of 
the product, decisions regarding such changes will be made by the JPMCI 
Policy Committee, a neutral business committee. This committee consists 
of senior employees in the commodities and research areas of J.P. 
Morgan, as well as independent industry and academic experts. Personnel 
from J.P. Morgan's commodities group serve only in an advisory, non-
voting role on the committee. J.P. Morgan immediately will notify the 
Exchange and vendors of financial information if there is a change in 
the design, composition or calculation of the Securities.
    If it becomes necessary to choose a replacement price source for 
the Securities, the new price source will meet the following criteria: 
(i) it will be priced in U.S. dollars, or if priced in a non-U.S. 
currency, the exchange on which the contract is traded must publish an 
official exchange rate for conversion of the price into U.S. dollars 
and such currency must be freely convertible into U.S. currency; (ii) 
it will be traded on a regulated futures exchange in an OECD country\3\ 
or in Singapore; and (iii) it will have a minimum annual volume of 
300,000 contracts or US $500 million. The issuer will notify the 
Exchange and vendors of financial information immediately if there is a 
change to the Securities.\4\
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    \3\ The OECD--the Organization of Economic Cooperation and 
Development--consists of the United States, Japan, Germany, France, 
Italy, the United Kingdom, Canada, Australia, Austria, Belgium, 
Denmark, Finland, Greece, Iceland, Ireland, Luxembourg, Mexico, 
Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, 
Switzerland and Turkey.
    \4\ See Memorandum from David Seaman, JPMorgan, to Vincent 
Patten, NYSE, dated May 6, 1996.
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    Members of the JPMCI Policy Committee and employees of the 
calculation agent that are involved in the calculation of, or data 
collection for, the Securities are prohibited from trading the 
underlying futures positions or the Securities. In addition, the 
calculation agent has adopted such reasonable and appropriate 
procedures to ensure that it, its agents, affiliates and

[[Page 24848]]

employees do not take advantage of, or communicate to any other person, 
any knowledge concerning changes in the value of an Index.
    Surveillance. The Exchange will be able to obtain market 
surveillance information, including customer identity information, with 
respect to transactions occurring on the applicable futures exchange 
pursuant to its information sharing agreement with such exchange. The 
Exchange will not trade any security unless it has a surveillance 
agreement with the market trading the underlying futures contract. In 
the extremely unlikely event that the securities are no longer based on 
an exchange-traded futures contract (if, for example, that exchange no 
longer trades a particular futures contract), the J.P. Morgan Policy 
Committee will seek to substitute a similar futures contract. In that 
situation, in addition to the conditions listed above, the Exchange 
would continue to trade the Securities only if the new futures contract 
underlying the Securities trade on an exchange that has a comprehensive 
information sharing agreement with the NYSE or if the Commission staff 
otherwise concurs in the continuation of such trading.\5\
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    \5\ The NYSE has comprehensive surveillance sharing agreements 
with all of the exchanges upon which the futures contracts relating 
to a particular Securities trade. Specifically, NYSE is able to 
obtain market surveillance information, including customer identity 
information, for transactions occurring on NYMEX and Comex. 
Furthermore, under the ISG information sharing agreement, SFA will 
be able to provide, upon NYSE request, surveillance information with 
respect to trades effected on the LME, including client identity 
information. Finally, if the underlying commodity for an issuance of 
Securities changes or if a different market is utilized for purposes 
of calculating the value of a designated futures contract, the NYSE 
will ensure that it has entered into a surveillance sharing 
agreement with respect to the new relevant market.
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    Sales Practices. Because there is an element of derivative pricing 
regarding the Securities, the Exchange will require members, member 
organizations and their employees to make a determination with respect 
to customers whose accounts have not previously been approved to trade 
futures or options that a transaction in the Securities is suitable for 
such customer. In addition, members, member organizations and their 
employees recommending a transaction in the Securities will be 
required: (i) to determine that the recommend transaction is suitable 
for the customer; and (ii) to have a reasonable basis for believing 
that the customer can evaluate the special characteristics of, and is 
able to bear the financial risks of, the recommended transaction.
    The Exchange also will distribute a circular to its membership 
prior to the commencement of trading in the Securities. That circular 
will provide guidance with respect to member firm compliance 
responsibilities (including suitability recommendations) when handling 
transactions in the Securities and highlighting the special risks and 
characteristics thereof.
    Basis--The basis under the Securities Exchange Act of 1934 (``1934 
Act'') for this propose rule change is the requirement under Section 
6(b)(5) 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 a national market system, and, 
in general, to protect investors and the public interest.

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

    The Exchange believes that the proposed rule change will not result 
in 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

    Comments were neither solicited nor received.

III. Findings and Conclusions

    The Commission finds that the proposed rule change is consistent 
with the requirements of the Act and the rules and regulations 
thereunder applicable to a national securities exchange, and, in 
particular, the requirements of Section 6(b)(5). In particular, the 
Commission believes that the availability of exchange-traded Securities 
will provide an instrument for investors to achieve desired investment 
objectives (e.g., commodity exposure and portfolio diversification) 
through the purchase of an exchange-traded securities product linked to 
one of the single commodities noted above.\6\ For the reasons discussed 
below, the Commission has concluded that the NYSE listing standards 
applicable to Securities are consistent with the Act.
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    \6\ Pursuant to Section 6(b)(5) of the Act the Commission must 
predicate approval of exchange trading for new products upon a 
finding that the introduction of the product is in the public 
interest. Such a finding would be difficult with respect to a 
product that served no investment, hedging or other economic 
function, because any benefits that might be derived by market 
participants would likely be outweighed by the potential for 
manipulation, diminished public confidence in the integrity of the 
markets, and other valid regulatory concerns.
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    The Securities are similar in structure to a previous American 
Stock Exchange (``Amex'') product, Commodity Indexed Preferred 
Securities (``ComPS''), which the Commission approved in February 
1996.\7\ ComPS were listed pursuant to Section 107 of the Amex Company 
Guide, Other Securities, and, like the NYSE Securities, the principal 
value of ComPS is derived from the performance of futures contracts 
overlying certain selected physical commodities.
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    \7\ See Securities Exchange Act Release No. 36885 (February 26, 
1996).
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    The value of the Securities will be affected partially by certain 
risks that are associate with the purchase and sale of exchange-traded 
futures contracts. Furthermore, the Commission notes that the prices of 
commodities, including the eleven individual commodities which may 
underlie a particular Securities issuance, may be subject to volatile 
price movements caused by numerous factors.\8\ Accordingly, an 
investment in Securities may also be subject to volatile price 
movements due to price changes in the underlying commodities and 
related futures contracts. In addition, Securities possess many complex 
features, such as the incorporation of roll return and collateral 
return into their pricing methodologies.
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    \8\ Such factors include, but are not limited to, international 
economic, social and political conditions and levels of supply and 
demand for the individual commodities.
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    In order to address the complex and risky nature of Securities, the 
NYSE has proposed special suitability, disclosure, and compliance 
requirements. First, the Exchange will require members to make a 
determination with respect to customers whose accounts have not 
previously been approved to trade futures or options that a transaction 
in the proposed securities is suitable for such customer.\9\ This is 
important given the embedded derivative component of Securities. 
Second, the NYSE will require that members who make recommendations in 
Securities determine that the transaction recommended is suitable for 
the customer and have a reasonable basis for believing that the 
customer can evaluate the special characteristics of, and is able to 
bear the financial risks of, the recommended transaction. Third, 
because Securities are cash-settled, holders will not receive, nor be 
required to liquidate, the underlying physical commodities or overlying 
futures

[[Page 24849]]

contracts. The Commission notes that this provision will effectively 
terminate a Securities investor's exposure to commodity market risk at 
the security's maturity and limit an investor's loss to the amount of 
his initial investment. Finally, the Exchange plans to distribute a 
circular to its membership calling attention to the specific risks 
associated with Securities.\10\ This will assist members in determining 
the customers eligible to trade Securities, formulating recommendations 
in Securities, and in monitoring customer and firm transactions in 
Securities.
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    \9\ Such a requirement is more than the duty to know and approve 
customers, and entails an obligation to make a determination that 
the transaction is suitable for the customer.
    \10\ The NYSE circular will be submitted to the Commission for 
its review and should include, among other things, a discussion of 
those risks which may cause commodities to experience volatile price 
movements in addition to details on the pricing methodology to be 
used for that particular issuance.
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    The Commission also believes that several factors significantly 
minimize the potential for manipulation of Securities. First, each of 
the futures contracts overlying the commodities is relatively actively 
traded, and has considerable open interest. Second, the majority of 
futures contracts overlying the component commodities trade on 
exchanges that impose position limits on speculative trading activity, 
which are designed, and serve, to minimize potential manipulation and 
other market impact concerns. Third, as discussed below, the NYSE has 
entered into certain surveillance sharing agreements with each of the 
futures exchanges upon which the underlying designated futures 
contracts trade. These agreements should help to ensure the 
availability of information necessary to detect and deter potential 
manipulations and other trading abuses, thereby making Securities less 
readily susceptible to manipulation. Fourth, the price of Securities 
(with respect to those commodities traded in the U.S.) will be 
calculated every 60 seconds and disseminated to vendors of electronic 
financial information. Fifth, adequate procedures are in place to 
prevent the misuse of information by members of the policy committee 
responsible for replacements with respect to the underlying 
contract.\11\ Accordingly, for the reasons discussed above, the 
Commission believes that Securities are not readily susceptible to 
manipulation and that in any event, the surveillance procedures in 
place are sufficient to detect and deter potential manipulation.
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    \11\ As discussed above, members of the policy committee are 
expressly prohibited from trading Securities and from communicating 
any knowledge concerning changes in the value of the underlying 
commodities. The NYSE has advised that it has surveillance 
procedures in place to periodically review activity in the 
Securities, including the ability to monitor any activity in the 
Securities by members of the JPMCI. Telephone conversation between 
Vincent Patten, NYSE, and Stephen M. Youhn, SEC, on May 7, 1996.
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    The Commission notes that Securities, unlike standardized options, 
do not contain a clearinghouse guarantee but are instead dependent upon 
the individual credit of the issuer. This heightens the possibility 
that a purchaser of Securities may not be able to receive any cash 
payment due upon maturity. To some extent this credit risk is minimized 
by the Exchange's listing guidelines requiring Securities issuers to 
comply with the listing requirements of Para. 703.19(1).\12\ In 
addition, financial information regarding the issuer will be disclosed 
or incorporated in the prospectus accompanying the offering of 
Securities.
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    \12\ Paragraph 703.19(1) of the Manual states that if the issuer 
is a NYSE-listed company, the issuer must be a company in good 
standing (i.e., above Continued Listing Criteria): if an affiliate 
of an NYSE-listed company, the NYSE-listed company must be a company 
in good standing; if not listed, the issuer must meet NYSE specific 
original listing standards. These standards, among other things, set 
forth minimum requirements for net tangible assets, net income, and 
aggregate market value of publicly held shares.
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    Based on the above, the Commission finds that the proposal to trade 
the Securities is consistent with the Act, and, in particular, the 
requirements of Section 6(b)(5).\13\
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    \13\ The Commission notes that a Rule 19b-4 filing might be 
required in order to list any other derivative product based upon a 
commodity interest that differs from the proposed Securities.
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    The Commission finds good cause for approving the proposed rule 
change prior to the thirtieth day after the date of publication of 
notice thereof in the Federal Register in order to allow NYSE to list 
the Securities without delay. The proposal will provide the Exchange 
with increased flexibility in the listing of commodity linked products 
without compromising investor protection concerns. In addition, the 
NYSE proposal is nearly identical to the Amex ComPS proposal, with the 
securities being based on the same commodities underlying the futures 
contracts, and subject to the same valuation methods used for ComPS. 
The Amex proposal was subject to the full notice and comment period and 
the Commission notes that no comment letters were received. 
Accordingly, the Commission does not believe the NYSE proposal raises 
any new or unique regulatory issues. For these reasons, the Commission 
believes there is good cause, consistent with Sections 6(b)(5) and 
19(b)(2) of the Act, to approve the proposed rule change on an 
accelerated basis.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing. Persons making written submissions 
should file six copies thereof with the Secretary, Securities and 
Exchange Commission, 450 Fifth Street NW., Washington, D.C. 20549. 
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 Section, 450 Fifth Street, N.W., 
Washington, D.C. Copies of such filing will also be available for 
inspection and copying at the principal office of the above-mentioned 
self-regulatory organization. All submissions should refer to the file 
number in the caption above and should be submitted by June 6, 1996.
    It therefore is ordered, pursuant to Section 19(b)(2) of the 
Act,\14\ that the proposed rule change (SR-NYSE-96-08) is approved.

    \14\ 15U.S.C. 78s(b)(2) (1988).
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    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-12235 Filed 5-15-96; 8:45 am]
BILLING CODE 8010-01-M