[Federal Register Volume 61, Number 178 (Thursday, September 12, 1996)]
[Notices]
[Pages 48195-48198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23308]


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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-37648; International Series Release No. 1016; File No. 
SR-PSE-96-23]


Self-Regulatory Organizations; Notice of Filing and Order 
Granting Accelerated Approval of a Proposed Rule Change by the Pacific 
Stock Exchange Incorporated Relating to the Listing and Trading of 
Equity-Linked Notes

September 5, 1996.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ notice is hereby given that on June 24, 1996, the Pacific 
Stock Exchange Incorporated (``PSE'' or ``Exchange'') filed with the 
Securities and Exchange Commission (``SEC'' or ``Commission'') the 
proposed rule change as described in Items I and II below, which Items 
have been prepared by the self-regulatory organization (``SRO''). On 
July 25, 1996, the Exchange submitted Amendment No. 1 to the 
Commission.\2\ On September 4, 1996, the Exchange submitted Amendment 
No. 2 to the Commission.\3\ The Commission is publishing this notice to 
solicit comments on the proposed rule change from interested persons 
and to grant accelerated approval to the proposed rule change, as 
amended.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ Amendment No. 1 clarified that the requisite trading volume 
levels concerning the linked security must occur in the United 
States. In addition, Amendment No. 1 removed the unnumbered 
paragraph in proposed PSE Rule 3.1(j)(3)(D)(i) that referenced 
proposed PSE Rule 3.1(j)(3)(C)(iii)(b)(2) because the language in 
that paragraph did not take into consideration the provisions 
contained in proposed PSE Rule 3.1(j)(3)(C)(iii)(b)(3). See letter 
from Michael D. Pierson, Senior Attorney, Regulatory Policy, PSE, to 
Anthony P. Pecora, Attorney, Office of Market Supervision, Division 
of Market Regulation, SEC, dated July 24, 1996.
    \3\ Amendment No. 2 conforms the definition of ELNs contained in 
PSE Rule 3.1(b)(16) with the other rules in this proposal concerning 
ELNs in that the use of American Depositary Receipts (``ADRs'') is 
limited to sponsored ADRs. See letter from Michael D. Pierson, 
Senior Attorney, Regulatory Policy, PSE, to Anthony P. Pecora, 
Attorney, Office of Market Supervision, Division of Market 
Regulation, SEC, dated September 3, 1996.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend its listing rules to provide for the 
listing

[[Page 48196]]

and trading of Equity-Linked Notes (``ELNs''). The text of the proposed 
rule change is available for inspection and copying at the PSE and at 
the Commission.

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 self-regulatory organization 
included statements concerning the purpose of and basis for the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of these statements may be examined at 
the places specified in Item III below. The self-regulatory 
organization 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
    The Exchange is proposing to list for trading Equity-Linked Notes, 
which are notes that are linked, in whole or in part, to the market 
performance of common stocks, non-convertible preferred stocks, or 
sponsored ADRs \4\ overlying such equity securities. The proposal 
states that the Exchange will consider for listing ELNs that meet the 
Exchange's issuer listing standards, ELN listing standards, minimum 
standards applicable to linked securities, and limits on the number of 
ELNs linked to a particular security, as set forth below.
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    \4\ ADR programs may be ``sponsored'' or ``unsponsored.'' A 
sponsored ADR is established by a single U.S. depository bank at the 
request, or with the consent, of the foreign issuer of the 
underlying security.
    With a sponsored ADR program, a single depository bank, working 
closely with the issuer, acts as the central source of information 
for buyers, sellers, and intermediaries. In addition, the depository 
generally is required to distribute notices of shareholder meetings 
and voting instructions to ADR holders, thereby ensuring the ADR 
holders will be able to exercise voting rights through the 
depository with respect to the underlying securities.
    ELNs may be linked only to sponsored ADRs. Telephone 
conversation between Michael D. Pierson, Senior Attorney, Regulatory 
Policy, PSE, and Anthony P. Pecora, Attorney, Office of Market 
Supervision, Division of Market Regulation, SEC (Sept. 3, 1996).
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a. Issuer Listing Standards

    Under the proposal, the issuer of ELNs must be an entity that: (a) 
Is listed on a national securities exchange or the Nasdaq National 
Market or is an affiliate of a company listed on a national securities 
exchange or the Nasdaq National Market; and (b) has a minimum net worth 
of $150 million. In addition, the market value of an ELN offering, when 
combined with the market value of all other ELN offerings previously 
completed by the issuer and currently traded on a national securities 
exchange or the Nasdaq National Market, may not be greater than 25% of 
the issuer's net worth at the time of issuance.

b. ELN Listing Standards

    The proposal states that the issue must have: (a) A minimum public 
distribution of one million ELNs; (b) a minimum of 400 holders of the 
ELNs (provided, however, that if the ELN is traded in $1,000 
denominations, there is no minimum number of holders); (c) a minimum 
market value of $4 million; and (d) a term of two to seven years, 
provided that if the issuer of the underlying security is a non-U.S. 
company, or if the underlying security is a sponsored ADR, the issue 
may not have a term of more than three years.

c. Minimum Standards Applicable to the Linked Security

    The proposed new rules state that the underlying security must 
have: (a) A market capitalization of at least $3 billion and trading 
volume in the United States of at least 2.5 million shares in the one-
year period preceding the listing of the ELNs; or (b) a market 
capitalization of at least $1.5 billion and trading volume in the 
United States of at least 10 million shares in the one-year period 
preceding the listing of the ELNs; or (c) a market capitalization of at 
least $500 million and trading volume in the United States of at least 
15 million shares in the one-year period preceding the listing of the 
ELNs.\5\
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    \5\ If an issuer proposes to list an offering of ELNs that does 
not satisfy the market capitalization or trading volume requirements 
discussed above, the PSE, with the concurrence of the staff to the 
Commission, may evaluate the trading volume, public float, and 
market capitalization of that security, as well as other relevant 
factors, and determine on a case-by-case basis that it is 
appropriate to list ELNs overlying that security. However, depending 
on the proposed facts, the Commission may require the PSE to submit 
a rule filing pursuant to Section 19(b) of the Act that addresses 
the pertinent regulatory issues. In this regard, the Commission 
notes that any proposal to list an ELN that is linked to a security 
with a market capitalization of less than $500 million would raise 
significant regulatory concerns for which a Section 19(b) rule 
filing would be required. See Securities Exchange Act Release No. 
34758 (Sept. 30, 1994), 59 FR 50943 (approving listing of Selected 
Equity-Linked Debt Securities (``SEEDS'') by the National 
Association of Securities Dealers, Inc. (``NASD'')).
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    In addition, the notes must be issued by a company that has a 
continuous reporting obligation under the Act, as amended, and the 
security must be listed on a national securities exchange or the Nasdaq 
National Market and be subject to last sale reporting.
    Furthermore, the notes must be issued by either: (a) A U.S. 
company; or (b) a non-U.S. company \6\ (including a company that is 
traded in the United States through sponsored ADRs) provided that one 
of the following three criteria is met: First, the Exchange must have a 
comprehensive surveillance sharing agreement in place with the primary 
exchange in the country where the linked security is primarily traded 
(in the case of an ADR, the primary exchange on which the security 
underlying the ADR is traded).
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    \6\ For the purposes of this rule, a non-U.S. company is any 
company formed or incorporated outside of the United States.
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    Second, as an alternative, the combined trading volume of the non-
U.S. security (a security issued by a non-U.S. company) and other 
related non-U.S. securities occurring in the U.S. market and in markets 
with which the Exchange has in place a comprehensive surveillance 
sharing agreement must represent (on a share equivalent basis for any 
ADRs) at least 50% of the combined world-wide trading volume in the 
non-U.S. security, other related non-U.S. securities, and other classes 
of common stock related to the non-U.S. security over the six month 
period preceding the date of listing.
    Third, an alternate trading volume test would permit an ELN on a 
non-U.S. security if: (a) The combined trading volume of the non-U.S. 
security and other related non-U.S. securities occurring in the U.S. 
market represents (on a share equivalent basis) at least 20% of the 
combined world-wide trading volume in the non-U.S. security and in 
other related non-U.S. securities over the six-month period preceding 
the date of listing of the non-U.S. security for an ELN listing; (b) 
the average daily trading volume for the non-U.S. security in the U.S. 
markets over the six-month period preceding the date of listing of the 
non-U.S security for an ELN listing is 100,000 or more shares; and (c) 
the trading volume for the non-U.S. security in the U.S. market is at 
least 60,000 shares per day for a majority of the trading days for the 
six-month period preceding the date of selection of the non-U.S. 
security for an ELN listing.\7\
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    \7\ The Commission notes that volume in foreign markets with 
which the Exchange has a comprehensive surveillance information 
sharing agreement in place is not included in these calculations. 
See Securities Exchange Act Release no. 37405 (July 7, 1996), 61 FR 
36596, at n.8.
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    In addition, if the underlying security to which the ELN is to be 
linked is the stock of a non-U.S. company that is traded in the U.S. 
market as a sponsored

[[Page 48197]]

ADR, ordinary shares or otherwise, then the minimum number of holders 
of the underlying security shall be 2,000.

d. Limits on the Number of ELNs Linked to a Particular Security

    The proposal provides that the issuance of ELNs relating to any 
underlying U.S. security may not exceed five percent of the total 
outstanding shares of such underlying security. In addition, the 
issuance of ELNs relating to any underlying non-U.S. security or 
sponsored ADR may not exceed: (a) Two percent of the total shares 
outstanding worldwide if at least 20 percent of the worldwide trading 
volume in such security occurs in the U.S. market during the six-month 
period preceding the date of listing; or (b) three percent of the total 
shares outstanding worldwide if at least 50 percent of the worldwide 
trading volume in such security occurs in the U.S. market during the 
six-month period preceding the date of listing; or (c) five percent of 
the total shares outstanding worldwide if at least 70 percent of the 
worldwide trading volume in such security occurs in the U.S. market 
during the six-month period preceding the date of listing.\8\
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    \8\ Id. at n.9.
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    In addition, if an issuer proposes to issue ELNs that relate to 
more than the allowable percentages of the underlying security 
specified above, then the Exchange, with the concurrence of the staff 
of the Division of Market Regulation of the SEC, will evaluate the 
maximum percentage of ELNs that may be issued on a case-by-case 
basis.\9\
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    \9\ As with the market capitalization and trading volume 
requirements, the Commission notes that the Exchange may be required 
to submit a rule filing to the Commission pursuant to Section 19(b) 
of the Act to address regulatory issues raised by any Exchange 
proposal to list an ELN related to more than the allowable 
percentages of outstanding shares of the underlying security. See 
supra note 4.
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    Finally, the proposed rule states that prior to the commencement of 
trading of particular ELNs listed pursuant to PSE Rule 3.1(j)(3), the 
Exchange will distribute a circular to its membership providing 
guidance regarding member firm compliance responsibilities (including 
suitability recommendations and account approval) when handling 
transactions in ELNs.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
Section 6(b) \10\ of the Act in general and furthers the objectives of 
Section 6(b)(5) \11\ in particular in that it is designed to promote 
just and equitable principles of trade, to prevent fraudulent and 
manipulative acts and practices, and, in general, to protect investors 
and the public interest.
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    \10\ 15 U.S.C. 78f(b).
    \11\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange believes the proposed rule change will impose no 
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.

III. 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, N.W., 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 at the 
Commission's Public Reference Section, 450 Fifth Street, N.W., 
Washington, D.C. 20549. Also, copies of such filing will be available 
for inspection and copying at the principal office of the PSE. All 
submissions should refer to File No. SR-PSE-96-23 and should be 
submitted by October 3, 1996.

IV. Commission's Findings and Order Granting Accelerated Approval of 
the Proposed Rule Change

    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) of the Act.\12\ 
Specifically, the Commission believes that providing for the listing 
and trading of ELNs will offer a new and innovative means for investors 
to participate in the securities markets. In particular, the Commission 
believes that the availability of ELNs will permit investors to more 
closely approximate their desired investment objectives through, for 
example, shifting some of the opportunity for upside gain in return for 
additional income.\13\ Accordingly, for these reasons, as well as for 
the reasons stated in the Commission's prior approval orders concerning 
equity-linked debt securities,\14\ the Commission finds that the PSE's 
standards for the listing and

[[Page 48198]]

trading of ELNs are consistent with the Act.
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    \12\ 15 U.S.C. 78f(b)(5).
    \13\ Pursuant to Section 6(b) of the Act, the Commission must 
predicate approval of 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.
    \14\ The Commission notes that it previously has approved the 
listing of equity-linked debt securities by the American Stock 
Exchange, Inc. (``Amex''), the Chicago Board Options Exchange, 
Incorporated (``CBOE''), the NASD, the New York Stock Exchange, Inc. 
(``NYSE''), and the Philadelphia Stock Exchange, Inc. (``Phlx''). 
See Securities Exchange Act Release Nos. 32343 (May 20, 1993), 58 FR 
30833 (order originally approving the listing of ELNs by the Amex); 
33328 (Dec. 13, 1993), 58 FR 66041 (approving revised market 
capitalization and trading volume requirements for the listing of 
ELNs by the Amex); 33468 (Jan. 13, 1994), 59 FR 3387 (order 
originally approving the listing of Equity-Linked Debt Securities 
(``ELDS'') by the NYSE); 34545 (Aug. 18, 1994), 59 FR 43877 (order 
approving the listing of ELDS by the NYSE linked to securities 
issued by non-U.S. companies); 34549 (Aug. 18, 1994), 59 FR 43873 
(order approving the listing of ELNs by the Amex linked to 
securities issued by non-U.S. companies); 34758 (Sept. 30 1994), 59 
50943 (order originally approving the listing of SEEDS by the NASD); 
34759 (Sept. 30, 1994), 59 FR 50939 (order originally approving the 
listing of ELNs by the CBOE); 34765 (Sept. 30, 1994), 59 FR 51220 
(approving revised market capitalization and trading volume 
requirements for the listing of ELNs by the Amex); 34766 (Sept. 30, 
1994), 59 FR 51220 (approving revised market capitalization and 
trading volume requirements for the listing of SEEDS by the NASD); 
34985 (Nov. 18, 1994), 59 FR 60860 (order approving alternative 
market capitalization and trading volume requirements for the 
listing of ELDS by the NYSE); 35479 (Mar. 13, 1995), 60 FR 14993 
(order originally approving the listing of ELNs by the Phlx); 36578 
(Dec. 13, 1995), 60 FR 65700 (approving revised market 
capitalization and trading volume requirements for the listing of 
ELNs by the Amex); 36990 (Mar. 20, 1996), 61 FR 13545 (approving 
revised market capitalization and trading volume requirements for 
the listing of ELNs by the Amex); 36993 (Mar. 20, 1996), 61 FR 13557 
(approving revised market capitalization and trading volume 
requirements for the listing of ELDS by the NYSE); 36994 (Mar. 20, 
1996), 61 FR 13553 (approving revised market capitalization and 
trading volume requirements for the listing of SEEDS by the NASD); 
36995 (Mar. 20, 1996), 61 FR 13550 (approving revised market 
capitalization and trading volume requirements for the listing of 
ELNs by the CBOE); 37405 (July 3, 1996), 61 FR 36596 (approving 
revised market capitalization and trading volume requirements for 
the listing of ELDS by the NYSE) (collectively, ``Equity-Linked Note 
Approval Orders''). The discussions articulated in the Equity-Linked 
Note Approval Orders are incorporated herein.
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    As with previously approved ELNs, ELDS, and SEEDS, the ELNs, the 
PSE is proposing to trade are not leveraged instruments. Their price, 
however, will be derived and based upon the underlying linked security. 
Accordingly, the level of risk involved in the purchase and sale of an 
ELN is similar to the risk involved in the purchase or sale of 
traditional common stock. Nonetheless, in considering other SROs' 
respective proposals to list and trade ELNs, ELDS, and SEEDS, the 
Commission had several specific concerns with this type of product 
because the final rate of return of an ELN is derivately priced (i.e., 
based on the performance of the underlying security). The concerns 
included: (1) Investor protection concerns, (2) dependence on the 
credit of the issuer of the instrument, (3) systemic concerns regarding 
position exposure of issuers with partially hedged positions or 
dynamically hedged positions, and (4) the impact on the market for the 
underlying linked security.\15\ The Commission concluded, however, that 
the SROs' proposals adequately addressed each of these issues such that 
the Commission's regulatory concerns were minimized adequately.\16\ 
Similarly, in this proposal, the PSE has proposed safeguards, as 
described above, that the Commission finds to be equivalent to those 
approved for the trading of equity-linked debt securities in other 
markets. In particular, by imposing the listing standards, suitability, 
disclosure, and compliance requirements noted above, the PSE has 
adequately addressed the potential public customer concerns that could 
arise from the hybrid nature of ELNs. Further, the Commission believes 
that the listing standards and issuance restrictions should help to 
reduce the likelihood of any adverse market impact on the securities 
underlying the ELNs.
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    \15\ See Equity-Linked Note Approval Orders, supra note 14.
    \16\ See Equity-Linked Note Approval Orders, supra note 14.
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    The Commission finds good cause for approving the amended proposed 
rule change prior to the thirtieth day after the date of publication of 
notice thereof in the Federal Register in order to allow the PSE to 
begin listing ELNs without delay. As discussed above, the proposal 
merely provides the PSE with the ability to list equity-linked debt 
securities on the same basis as other SROs. Moreover, the Commission 
notes that the prior proposals by other SROs to list and trade equity-
linked debt securities were published by the Commission for the full 
statutory comment period without any comments being received by the 
Commission. In light of the Commission's approval of the listing and 
trading equity-linked debt securities by other SROs, accelerating 
approval of this proposal does not raise any new regulatory issues and 
will allow the PSE to compete on an equal basis with other markets with 
regard to these equity-linked products.\17\ Therefore, the Commission 
there is good cause to grant accelerated approval to the proposed rule 
change, as amended, consistent with Section 6(b)(5) and Section 
19(b)(2) of the Act.\18\
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    \17\ See Equity-Lined Note Approval Orders, supra note 14.
    \18\ 15 U.S.C. 78f(b)(5) and 78s(b)(2).
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\19\ that the proposed rule change (SR-PSE-96-23), as amended, is 
hereby approved on an accelerated basis.

    \19\ 15 U.S.C. 78s(b)(2).
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    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\20\
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    \20\ 17 C.F.R. 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-23308 Filed 9-11-96; 8:45 am]
BILLING CODE 8010-01-M