Federal Register, Volume 64 Issue 233 (Monday, December 6, 1999)

[Federal Register Volume 64, Number 233 (Monday, December 6, 1999)]
[Notices]
[Pages 68136-68140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31528]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-42178; File No. SR-PCX-99-39]

Self-Regulatory Organizations; Notice of Filing of Proposed Rule
Change by the Pacific Exchange, Inc. Creating PCX Equities, Inc.

November 24, 1999.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and rule 19b-4 thereunder,\2\ notice is hereby given that
on October 7, 1999, the Pacific Exchange, Inc. (``PCX'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'' or ``SEC'') the proposed rule change as described in
Items I, II and III below, which Items have been prepared by the
Exchange. The Commission is publishing this notice to solicit comments
on the proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of
Substance of the Proposed Rule Change

The PCX proposes to create a Delaware stock corporation, to be
called PCX Equities, Inc. (``PCX Equities''), which will be a wholly-
owned subsidiary of the PCX, and to transfer to PCX Equities all of the
assets and liabilities that solely support the equities trading
business and/or equities clearing business of the PCX. The PCX also
proposes to authorize PCX Equities to issue Equity Trading Permits
(``ETPs'') and Equity Automated Systems Access Permits (``Equity
ASAPs'') that will entitle holders of the permits to trade equity
securities at the new PCX Equities. The proposed rule changes for
implementing the restructuring, including (1) the Certificate of
Incorporation for PCX Equities; (2) the Bylaws for PCX Equities; (2)
the Rules for PCX Equities; (3) changes to the PCX Constitution; and
(4) changes to the PCX rules, are available for inspection at the
places specified in Item IV of this notice.

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 Exchange 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. The Exchange 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
a. Purpose of the Proposed Restructuring. The PCX proposes to
create the PCX Equities subsidiary and the corresponding trading
permits for two primary reasons. First, the PCX intends to separate the
equities operation into a stand-alone subsidiary of the PCX that will
continue to share certain corporate functions with the Exchange's
options business and to operate pursuant to the PCX's self-regulatory
organization (``SRO'') registration. The PCX believes that by
restructuring the equities business as a private stock corporation with
business control and management, the entity will have greater
flexibility to develop and execute strategies designed to improve its
competitive position than it has under the current membership-
cooperative structure. Furthermore, the PCX anticipates that by
restructuring as a private stock corporation, PCX Equities management
will be better able to respond quickly to competitive pressures and to
make changes to the operation as market conditions warrant.
Second, the PCX intends to increase the revenue of the equities
business by conferring trading privileges on the basis of ETPs rather
than requiring equities trading participants to bear the expense of a
full PCX membership. The PCX believes these changes will ease existing
limits on trading access and allow all interested traders to
participate in programs offered, which will include competing and
remote specialist platforms as contemplated by the proposed rule
amendments filed with the SEC on February 26, 1999,\3\ and September 3,
1998,\4\ respectively.
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\3\ Exchange Act Release No. 41327 (April 22, 1999), 64 FR 23370
(April 30, 1999).
\4\ Exchange Act Release No. 41051 (February 12, 1999), 64 FR
8426 (February 19, 1999).
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As members of the PCX, PCX seat owners will retain ownership of the
subsidiary and ultimately will benefit from any improvement in the
financial health of that entity resulting from these changes.
b. PCX Equities, Inc. i. Structure. PCX proposes to create PCX
Equities, a Delaware stock corporation, as a wholly-owned subsidiary.
All of the issued shares of stock of PCX Equities will be

[[Page 68137]]

owned by PCX. Current PCX members will retain their memberships in the
PCX, which will be the sole stockholder of PCX Equities.
ii. Financial Information. PCX plans to transfer all of the assets
and liabilities that solely support the equities business or equities
clearing business to PCX Equities. Assets that support both the options
and equities business will be retained as assets of PCX. Costs related
to these shared assets will appear as inter-company charges to PCX
Equities. Such charges will be defined in an agreement between PCX and
PCX Equities.
Revenue generated by the equities activity, including ETP and
Equity ASAP fees, specialist fees, tape fees and transaction fees, will
accrue to PCX Equities. Direct expenses related to the equities
activity, such as technology and personnel, will be charged to PCX
Equities. Allocations of the cost of certain technology, regulatory and
corporate functions will be charged to PCX Equities pursuant to an
agreement between PCX Equities and PCX. PCX Equities is expected to be
included in the same consolidated tax group as PCX for federal income
tax purposes. The PCX believes that by changing the business model, the
PCX Equities management will have greater flexibility with respect to
any future changes to fees or other aspects of the operation that may
be necessary to attract new entrants or to develop new business
opportunities.
iii. Governing Documents and Rules. The proposed Certificate of
Incorporation, Bylaws and Rules will govern the activities of PCX
Equities. Rules 1 and 3, which relate to qualifications for ETPs and
Equity ASAPs and corporate governance, and Rule 10, which relates to
disciplinary procedures, reflect significant departures from existing
PCX Rules. The remaining rules, although modified to reflect the ETPs
and Equity ASAPs, are similar to current PCX rules. The Rules and
Bylaws will reflect the status of PCX Equities as a wholly-owned
subsidiary of PCX, under management of the PCX Equities Board of
Directors and its designated officers, with self-regulation pursuant to
the PCX's registration pursuant to Section 6 of the Act.\5\
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\5\ 15 U.S.C. 78f.
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iv. Board of Directors. The Board of Directors of PCX Equities
shall consist of no fewer than ten (10) or more than twelve (12)
directors. The number of directors is currently contemplated to be ten
(10) members, composed of:
The Chief Executive Officer of PCX;
The President of PCX Equities;
Five public directors, at least three of whom must also be
members of the Board of Governors of the PCX;
One allied person from an ETP Firm who is also a member of
the PCX Board of Governors, and
Two nominees of the combined ETP holders and Equity ASAP
holders (the ``ETP/Equity ASAP holder directors'').
The Board of Directors will be appointed initially by the
Incorporator. Subsequent Boards of Directors will be nominated by the
sitting Boards of Directors, subject to the ETP/Equity ASAP holder
nominating procedures set forth below for the two ETP/Equity ASAP
holder directors, and elected by PCX, the sole shareholder. PCX, as the
sole stockholder, will have the right to approve, remove and replace
any member of the Board of Directors. Any vacancy on the Board of
Directors will be filled with a person who satisfies the classification
associated with the vacant seat. To the extent that the number of Board
seats is changed from the initially contemplated ten (10) members, at
least fifty percent of the Board will be public directors, and at least
twenty percent (but no fewer than two (2) directors) will be ETP/Equity
ASAP holder directors nominated by the ETP holders and Equity ASAP
holders.
The ETP/Equity ASAP holder directors will be nominated by the
Nominating Committee or by petition of at least twenty percent of ETP
holders and Equity ASAP holders. If a petition is submitted and a vote
is necessary, the nomination must be supported by a plurality of the
ETP holders and Equity ASAP holders. If no petition is filed, the
nominees put forward by the Nominating Committee will be deemed to be
elected, and no separate vote of ETP holders and Equity ASAP holders
will be held. Pursuant to a stockholders voting agreement, the PCX
Equities Board of Directors will agree to nominate the persons who are
so selected by ETP holders and Equity ASAP holders to the Board of
Directors, and PCX, as the sole stockholder, will agree to elect such
persons.
v. Nominating Committee.The Nominating Committee will nominate two
nominees for the PCX Equities Board of Directors and one nominee for
the PCX Board of Governors. Such nominees may be ETP holders, allied
persons of ETP firms, or Equity ASAP holders. The nominee for the PCX
Board of Governors may be the same as one of the nominees for the PCX
Equities Board of Directors. The Nominating Committee will have seven
members, six of whom will be ETP holders or Equity ASAP holders. The
seventh member will be a person from the public. The Incorporator will
appoint the initial Nominating Committee. Thereafter, the sitting
Nominating Committee will propose six of the seven new members of the
subsequent Nominating Committee and submit the slate of candidates to
ETP holders and Equity ASAP holders for approval. Candidates for the
Nominating Committee also may be put forward by a petition of at least
twenty percent of ETP holders and Equity ASAP holders. If no petition
is filed, the slate proposed by the sitting Nominating Committee will
be deemed to be approved by ETP holders and Equity ASAP holders, and no
separate vote of ETP holders and Equity ASAP holders will be held. The
Chief Executive Officer (``CEO'') of PCX Equities will appoint the
public member of the Nominating Committee.
vi. Management. PCX Equities will have a Chairman of the Board and
a President, either of whom may be the CEO, a Secretary, and a Chief
Regulatory Officer, appointed by and serving at the pleasure of the
Board of Directors of PCX Equities. The officers of PCX Equities will
manage the business and affairs of PCX Equities, subject to the
oversight of the Board of Directors, and, in some cases, the approval
of PCX as the sole stockholder.
vii. Disciplinary Process. PCX Equities' disciplinary process will
be similar to the existing PCX disciplinary process and will be
governed by a Business Conduct Committee. The Business Conduct
Committee will be appointed initially by the Incorporator. Following
the rollout period (as described below), the CEO or his or her designee
may appoint the members of the Business Conduct Committee. Except
during the rollout period, members of this committee will be ETP
holders or Equity ASAP holders.
The PCX Equities Chief Regulatory Officer, or his or her staff,
will authorize the initiation of disciplinary actions and proceedings.
The Business Conduct Committee will conduct hearings, render decisions,
and impose sanctions. Decisions of the Business Conduct Committee may
be appealed for review to a Board Appeals Committee, which will be
appointed by the PCX Equities Board of Directors and will include
public members of the Board of Directors. Decisions of the Board
Appeals Committee may be appealed to the PCX Board of Governors and
subsequently to the SEC.
As with PCX decisions, the SEC has the authority to review final
disciplinary sanctions imposed by the PCX Equities on ETP holders and
Equity ASAP holders, including sanctions

[[Page 68138]]

imposed on rule violations of PCX Equities.
viii. Equity Listings and Delistings. The management of PCX
Equities will list and delist securities in accordance with rules and
standards comparable to those set forth in the PCX Rules of the Board
of Governors and currently used by the Equity Listing Committee of the
PCX.
ix. Other Committees. The proposed Bylaws and Rules of PCX Equities
envision only two Equity Committees--the Nominating Committee and the
Business Conduct Committee. However, the PCX Equities Board may appoint
other committees, if it deems it appropriate. Except for the Nominating
Committee, the CEO of PCX Equities will appoint the members of all
Equity Committees for terms of one year. The CEO also will appoint the
Chair and Vice Chair of each Equity Committee. ETP Holders, Equity ASAP
Holders and public representatives may be appointed to serve all Equity
Committees. The PCX Equities Board may also appoint the Board of
Appeals Committee as well as any Board Committee it deems appropriate.
x. Regulation of PCX Equities, Inc. Following the restructuring,
PCX Equities will operate as a subsidiary of PCX, which is a national
securities exchange registered under Section 6 of the Act. For purposes
of the Act, ETP Holders and Equity ASAP holders will be ``members'' of
the PCX.
As a registered national securities exchange and the parent company
of the PCX Equities, PCX will continue to carry out PCX's statutory
responsibilities to enforce compliance by ETP holders and Equity ASAP
holders in accordance with provisions of the federal securities laws
and the Rules of the PCX Equities. As the registered SRO, the PCX will
continue to have ultimate responsibility in the administration and
enforcement of rules governing the operation of its subsidiary. The
Board of Governors and management of PCX believe that the regulatory
methods and resources of the PCX and PCX Equities will satisfy
obligations of the PCX.
PCX will be required to approve any changes to the rules and
governing documents of PCX Equities and to file any such changes with
the SEC pursuant to Section 19(b) of the Act \6\ and Rule 19b-4
thereunder.\7\
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\6\ 15 U.S.C. 78s.
\7\ 17 CFR 240.19b-4.
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xi. Representation on PCX Board. The PCX Board is currently
composed of 22 governors. The composition of the PCX Board will be
modified as part of the restructuring to include one governor
representing PCX Equities. This governor will be nominated by the
Nominating Committee or by a petition of at least twenty percent of ETP
holders and Equity ASAP holders to provide PCX Equities input on the
PCX Board. The nomination must be supported by a plurality of the ETP
holders and Equity ASAP holders. Pursuant to the agreement between PCX
Equities and the PCX, the PCX Board of Governors will appoint the
person who is so nominated by ETP holders and Equity ASAP holders to
the Board of Governors.
xii. Agreement between PCX and PCX Equities. Currently, the PCX
equities operations and options operations share certain infrastructure
and personnel. After the completion of the restructuring, these shared
assets will remain the property of PCX and the shared personnel will
continue to be employed by PCX. In each case, however PCX Equities will
have access to those resources through inter-company contracts with
PCX. In particular, PCX will contract to provide PCX Equities with
certain management and support services and staff. The contract will
include services for administration, membership, technology, finance
and accounting, human resources and legal services. The agreement
between PCX and PCX Equities will allocate charges for these services
and staff between PCX and PCX Equities.
c. Equity Trading Permits and Equity ASAPs. i. Classes of Trading
Permits and Privileges Conferred by ETPs and Equity ASAPs. PCX Equities
will be authorized to issue two types of equity trading permits: ETPs
and the Equity ASAPs. The Board of Governors does not currently
contemplate any other type of equity trading permit, although as
technology advances, additional electronic trading practices may be
authorized for both or either of the ETP or Equity ASAP holders.
ETPs will authorize a holder to trade equity securities on any
facility of PCX Equities, including the trading floors, P/COAST, or
OptiMark, as a specialist, floor broker or order flow firm. ETP holders
may engage in trading of equities in the same manner as currently
practiced by PCX Members who trade on the equity floor. Like current
ASAP Members, Equity ASAP holders will be entitled to limited trading
privileges on the equities floor and access to P/COAST, OptiMark, and
any other systems approved by the Board of Directors, in accordance
with rules comparable to those set forth in the PCX Rules of the Board
of Governors.\8\
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\8\ Equity ASAP holders have electronic access to the PCX
Equities floor. They are required to execute eighty percent of their
trade and volume via an approved systems, i.e., PCOAST or Optimark.
The balance of their volume and trade can be entered by telephone
with a floor broker. Telephone call between Kathryn Beck, General
Counsel, PCX, and Kelly Riley, Division of Market Regulation, SEC,
on November 23, 1999.
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An ETP or Equity ASAP does not grant its holder any right to trade
options on the PCX. Any ETP holder or Equity ASAP holder that wishes to
trade options must be approved for an obtain a PCX membership pursuant
to the PCX's standard application procedures.
ETP holders and Equity ASAP holders will have limited voting rights
and may nominate, through the Nominating Committee or by petition, two
members to the PCX Equities Board of Directors and one member to the
PCX Board of Governors. Unlike current ASAP members, Equity ASAP
holders will have these limited voting rights.
ETP holders and Equity ASAP holders will hold six of the seven
places on the Nominating Committee. The Incorporator will select the
initial Nominating Committee. The sitting Nominating Committee will
make subsequent nominations to the Nominating Committee. The seventh
place on the Nominating Committee will be a person from the public
selected by the Chief Executive Officer of PCX Equities.
Neither ETP holders nor Equity ASAP holders will have any
distribution or other ownership rights in PCX Equities or PCX by virtue
of their status as an ETP holder or Equity ASAP holder.
ii. Number of ETPs and Equity ASAPs. There will be no limit on the
number of ETPs and Equity ASAPs issued by PCX Equities.
iii. Qualifications for ETPs and Equity ASAPs. PCX Equities will
commence issuing ETPs and Equity ASAPs once the subsidiary is created.
Current PCX members, PCX ASAP members, and any other interested persons
or entities which are registered broker-dealers and are not existing
PCX members may be granted PCX Equities trading privileges through an
application process. ETP qualification and Equity ASAP qualifications
will be substantially the same as the requirements for PCX membership
and PCX ASAP membership, respectively.
The application process for applicants who are not current PCX
members or ASAP members will be the same as that now required by PCX.
The decision to grant or deny an application for trading privileges
will be made by officers of

[[Page 68139]]

PCX Equities and the denial of an application will be appealable.
Current PCX members and ASAP members will be required to submit an
application and fee, but the documentation and application processing
time will be less.
iv. ETP/Equity ASAP Rollout Process. The Board believes that the
proposed rollout mechanism will allow equity specialists, floor
brokers, their firms, and seat owners to decide among themselves when
to convert to ETPs during a nine-month period. As set forth in the
schedule below, the monthly fee to be charged during the rollout period
will be closely correlated, but discounted, to the current prevailing
monthly lease rate for PCX memberships and will decrease
proportionately over that period until it reaches $2,000 per month in
the tenth month following inception.
During the rollout period, which will commence only after the
restructuring has been approved by the SEC, both PCX members and ETP
holders will be permitted to trade equities on the equities trading
floors of the PCX. Similarly, both ASAP holders and Equity ASAP holders
will be provided automated system access as set forth in the PCX Rules.
At the end of the rollout period, all individuals executing equity
trades through PCX Equities must hold an ETP or an Equity ASAP, and all
firms clearing equities trades must have either an ETP or Equity ASAP.
After the rollout period, PCX memberships will no longer confer rights
to trade, to route orders, or to be a good clearing give-up through the
equity trading facilities of PCX Equities.
v. Cost of ETPS and Equity ASAPs. Current PCX members, whether
trading equities or options, or both, current ASAP members, and non-
members who want to trade through PCX Equities' trading facilities,
will be subject to a fee schedule applicable to each type of permit.
The fees for an ETP will be assessed on a monthly basis and the fee for
an Equity ASAP will be assessed on a yearly basis. The fees will be set
by PCX Equities at a fixed level rather than indexed and will be
subject to change.
The proposed fee schedule for ETPs is as follows:

----------------------------------------------------------------------------------------------------------------
ETP rollout period* Post rollout
--------------------------------------------------------------------------------------------- period ETP monthly
Months 1-4 Months 5-7 Month 8 Month 9 fee
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2% of the average of the last $7,000 $6,000 $5,000 $2,000
five seat sales at the time of
the rollout Period.............
----------------------------------------------------------------------------------------------------------------
* Fee Schedule subject to adjustment.

Although the fee is subject to change, initially, the fee for
Equity ASAPs is planned to be $4,000 annually. Management of PCX
Equities will recommend changes to the initial rates and charges as
deemed appropriate for development of new business or in response to
competitive changes. All such rate changes shall be subject to the
approval of the PCX Board of Governors and filing with the SEC.
vi. Non-transferability of ETPs or Equity ASAPs. ETPs and Equity
ASAPs will not be transferable by sale or lease, but they may be
transferred between individuals within the same firm in accordance with
the Rules of PCX Equities.
d. PCX. i. Trading Options. Current members who trade only equities
or who trade equities and options on the PCX must obtain an ETP or
Equity ASAP by the end of the rollout period as described above. For
those members who currently trade only options on the PCX, the proposed
restructuring will not affect their access to or activities on the
PCX's options trading facilities. PCX memberships will continue to be
required to transact options business at PCX. After the rollout period,
however, PCX memberships will no longer confer rights to trade on the
equity floor or electronically through the equity trading facilities or
to be a good clearing give-up on the equity trading facilities. After
the completion of the restructuring, PCX memberships may be purchased,
sold or leased as they are today. The rights of PCX members upon the
liquidation of PCX will remain unchanged. The proposed amendments to
the PCX Constitution and Rules primarily involve the deletion of
equities-related language and the addition of language allowing the
restructuring and new categories of trading permits as discussed above.
A copy of the proposed amendments to the PCX Constitution and the PCX
Rules are included in the public file and may be inspected at the
places specified in Item IV of this notice.
ii. National Market System Plans. The PCX currently is a
participant in various national market system (``NMS'') plans,
including the Consolidated Tape Association (``CTA'') Plan, the
Consolidated Quotation System (``CQS'') Plan, the Intermarket Trading
System (``ITS'') Plan and the Options Price Reporting Authority
)``OPRA''). These plans are joint industry plans for SROs that address
last sale reporting, quotation reporting, intermarket trading and
options price reporting, respectively. Following the creation of PCX
Equities, PCX, in its continuing role as the SRO, will continue to
serve as the voting member of these NMS Plans. Nevertheless, PCX
expects that, for those plans that relate to equity trading, i.e., the
CTA Plan, the CQS Plan and the ITS Plan, a PCX Equities representative
will serve as the PCX's representative in dealing with these plans.
2. Basis
The PCX believes the proposed rule change is consistent with
Section 6(b) \9\ of the Act, in general, and furthers the objectives of
Section 6(b)(5),\10\ in particular, in that it is designed to promote
just and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, and to remove impediments and perfect the mechanisms of a
free and open market and a national market system and to protect
investors and the public interest.
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\9\ 15 U.S.C. 78f(b).
\10\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

The PCX does not believe that the proposed rule change will impose
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received from Members, Participants, or Others

Written comments on the proposed rule change were neither solicited
nor received.

[[Page 68140]]

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 self-regulatory organization consents, the Commission will:
(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 proposal is
consistent with the Act. Persons making written submissions should file
six copies thereof with the Secretary, Securities and Exchange
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549-0609. 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 will also be
available for inspection and copying at the principal office of the
PCX. All submissions should refer to File No. SR-PCX-99-39 and should
be submitted by December 27, 1999.

For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.
Jonathan G. Katz,
Secretary.
[FR Doc. 99-31528 Filed 12-3-99; 8:45 am]
BILLING CODE 8010-01-M