[Federal Register Volume 69, Number 100 (Monday, May 24, 2004)]
[Notices]
[Pages 29581-29589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11652]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-49719; File No. SR-Amex-2004-16]


Self-Regulatory Organizations; Notice of Filing and Order 
Granting Accelerated Approval to a Proposed Rule Change and Amendment 
No. 1 Thereto by the American Stock Exchange LLC Relating to Funds of 
the Vanguard Stock Index Funds

May 17, 2004.
    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 February 25, 2004, the American Stock Exchange LLC (``Amex'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change (the ``Amex filing'') as 
described in Items I and II below, which Items have been prepared by 
the Exchange. On April 22, 2004, the Exchange filed Amendment No. 1 to 
the proposed rule change.\3\ 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\ See letter from Marija Willen, Associate General Counsel, 
Amex, to Nancy Sanow, Assistant Director, Division of Market 
Regulation (``Division''), Commission, dated April 21, 2004 
(``Amendment No. 1''). Amendment No. 1 replaces the original filing 
in its entirety.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Amex proposes to list and trade under Amex Rules 1000A et seq. 
a class of shares, known as VIPER Shares, of certain index funds that 
are series of the Vanguard World Funds. The funds seek to track the 
following indices compiled by Morgan Stanley Capital International Inc. 
(MSCI[reg])(``MSCI'') \4\: the MSCI U.S. Investable Market Energy 
Index, the MSCI U.S. Investable Market Industrials Index and the MSCI 
U.S. Investable Market Telecommunications Services Index.
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    \4\ ``MSCI[reg]'' is a service mark of Morgan Stanley & Co. 
Incorporated.
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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 Amex 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 Amex 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 the 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Amex Rules 1000A et seq. provide standards for listing Index 
Fund Shares, which are securities issued by an open-end management 
investment company (open-end mutual fund) for exchange trading. These 
securities are registered under the Investment Company Act of 1940 
(``1940 Act'') as well as the Act. Index Fund Shares are defined in 
Amex Rule 1000A as securities based on a portfolio of stocks or fixed 
income securities that seek to

[[Page 29582]]

provide investment results that correspond generally to the price and 
yield of a specified foreign or domestic stock index or fixed income 
securities index.
    The Exchange proposes to list and trade under Amex Rules 1000A et 
seq. the following three securities issued by funds (each a ``Vanguard 
Index Fund'' or ``Fund'') that would be separate investment portfolios 
of the Vanguard World Funds (``Trust''): \5\
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    \5\ The Trust has other funds that issue VIPER Shares. According 
to the Amex, those issues of VIPER Shares met the requirements of 
Amex Rule 1000A, Commentary .02, for listing pursuant to Rule 19b-
4(e) of the Act.
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    (a) Vanguard Energy VIPERs, a share class of Vanguard Energy Index 
Fund, which would seek to track the Morgan Stanley Capital 
International (MSCI[reg]) (``MSCI'') U.S. Investable Market Energy 
Index;
    (b) Vanguard Industrials VIPERs, a share class of Vanguard 
Industrials Index Fund, which would seek to track the MSCI U.S. 
Investable Market Industrials Index; and
    (c) Vanguard Telecommunications Services VIPERs, a share class of 
Vanguard Telecommunications Services Index Fund, which would seek to 
track the MSCI U.S. Investable Market Telecommunications Services 
Index.
    For descriptions of the underlying indices for the Funds, see 
``Target Indices--Key Characteristics,'' below as well as Exhibits A to 
C to the Amex filing, which are available at the principal office of 
the Amex and at the Commission. Exhibits A to C include index 
descriptions, component selection criteria, index maintenance and issue 
changes, top components of each index, and portfolio composition and 
characteristics. The index on which a particular Fund would be based is 
referred to as a ``Target Index,'' and the securities included in such 
index are referred to as ``Component Securities.'' The Vanguard Group, 
Inc. (``Adviser'' or ``Vanguard'') would be the investment adviser to 
each Fund.\6\ The Adviser would be registered under the Investment 
Advisers Act of 1940.
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    \6\ The Commission granted Vanguard's Application for an Order 
under Sections 6(c) and 17(b) of the 1940 Act, for the purpose of 
exempting the Funds referenced herein and other related entities 
from various provisions of the 1940 Act and rules thereunder (File 
No. 812-12912) (``Application'') in an order dated December 30, 2003 
(Release No. IC-26317) (``Exemptive Order''). A summary of the 
Application appears in Release No. IC-26282 (December 2, 2003), 68 
FR 68430 (December 8, 2003). The December 30, 2003 order amends a 
prior order granted by the Commission in December 2000 to Vanguard 
Index Funds, et al. See Release Nos. IC-24680 (October 6, 2000), 65 
FR 61005 (October 13, 2000) (notice); and IC-24789 (December 12, 
2000), 65 FR 79439 (December 19, 2000) (order) (File No. 812-12094). 
Information in this filing regarding the Funds is based on material 
in the Application and in the Funds' registration statement.
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    While the Adviser would manage each Fund, the Trust's Board of 
Trustees (``Board'') would have overall responsibility for the Funds'' 
operations. The composition of the Board is, and would be, in 
compliance with the requirements of Section 10 of the 1940 Act. 
Pursuant to Rule 10A-3 of the Act,\7\ and Section 3 of the Sarbanes-
Oxley Act of 2002,\8\ the Exchange will prohibit the initial or 
continued listing of any security of an issuer that is not in 
compliance with the requirements set forth therein.\9\
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    \7\ 17 CFR 240.10A-3.
    \8\ See Section 3 of Pub. L. 107-204, 116 Stat. 745 (2002).
    \9\ Telephone conversation between Marija Willen, Associate 
General Counsel, Amex, and Ann E. Leddy, Special Counsel, Division, 
Commission, on May 17, 2004.
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    Vanguard Marketing Corporation (``Distributor''), a wholly-owned 
subsidiary of Vanguard and a broker-dealer registered under the Act, 
would be the principal underwriter and distributor of VIPER Shares of 
the Funds.
    According to the Amex, Vanguard Index Participation Equity 
Receipts, or ``VIPER'' shares (``VIPER Shares''), are a class of 
exchange-traded securities that represent an interest in the portfolio 
of stocks held by a particular Fund. In addition to VIPER Shares, the 
Funds would offer classes of shares that are not exchange-traded, which 
are referred to as ``Conventional Shares.'' \10\
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    \10\ As described in the Application, the Vanguard Index Funds' 
organizational documents would permit the Vanguard Index Funds to 
issue shares of different classes. Each of the Funds also would 
offer one class of Conventional Shares, known as Admiral Shares.
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    VIPER Shares would be registered in book-entry form only and the 
Funds would not issue individual share certificates. The Depository 
Trust Company (``DTC'') or its nominee would be the record or 
registered owner of all outstanding VIPER Shares. Beneficial ownership 
of VIPER Shares would be shown on the records of the DTC or DTC 
Participants.
    Target Indices and Investment Objectives. As noted in the 
Application, each Fund seeks to track, as closely as possible, the 
performance of its Target Index and it is expected that, in the future, 
the Funds would have a tracking error of less than five percentage 
points per annum.\11\ When practicable, the Funds would use the 
replication method of indexing--in which each stock found in the Target 
Index would be held in about the same proportion as represented in the 
index itself--as their primary strategy. However, according to the 
Amex, the Advisor has represented that the Funds would sample their 
Target Indices--by holding stocks that, in the aggregate, would be 
intended to approximate the full index in terms of key characteristics, 
such as price/earnings ratio, earnings growth, and dividend yield ``--
regulatory constraints or other considerations were to prevent them 
from replicating the indices. In particular, because the Funds would 
not at present be able to replicate their Target Indices and still 
comply with Internal Revenue Code (``IRC'') diversification standards 
applicable to regulated investment companies, the Funds would use 
sampling to modify their exposure to certain stocks in order to 
maintain compliance with IRC diversification standards.\12\
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    \11\ According to the Amex, the prospectuses for the Funds 
disclose that each Fund would reserve the right to substitute a 
different index for the Target Index the Fund currently tracks. 
Substitution would be able to occur if the current index were to be 
discontinued, the Fund's license with the sponsor of the current 
index were to be terminated, or for any other reason determined in 
good faith by the Board. In every such instance, the substitute 
index would measure the same general market as the current index. 
Fund shareholders would be notified in the event that a Fund's 
current index were to be replaced and investors holding their shares 
through a broker or other intermediary would receive the 
notification from their intermediary.
    \12\ In order for a Fund to qualify for tax treatment as a 
regulated investment company, it would have to meet several 
requirements under the IRC. Among these is the requirement that, at 
the close of each quarter of the Fund's taxable year, (i) at least 
50% of the market value of the Fund's total assets must be 
represented by cash items, U.S. government securities, securities of 
other regulated investment companies and other securities, with such 
other securities limited for purposes of this calculation in respect 
of any one issuer to an amount not greater than 5% of the value of 
the Fund's assets and not greater than 10% of the outstanding voting 
securities of such issuer, and (ii) not more than 25% of the value 
of its total assets may be invested in the securities of any one 
issuer, or two or more issuers that are controlled by the Fund 
(within the meaning of Section 851 (b)(4)(B) of the IRC) and that 
are engaged in the same or similar trades or businesses or related 
trades or business (other than U.S. government securities or the 
securities of other regulated investment companies).
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    According to the Amex, the Application states that each Fund will 
invest at least 90% of its assets in the component securities of its 
respective Target Index.\13\
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    \13\ According to the Amex, to the extent that a Fund were to 
invest in instruments other than common stocks included in its 
Target Index, it would invest no more than 10% of its assets in 
those other instruments. Such instruments could include stock and 
index futures, options on stocks and futures, convertible 
securities, swap agreements, cash investments, forward foreign 
currency investments, foreign currency exchange contracts, shares of 
other investment companies (within the limits permitted by Section 
12(d)(1) of the 1940 Act), stocks about to be added to the Target 
Index, and any other instrument not inconsistent with the Fund's 
investment policies as described in detail in its registration 
statement, which the Adviser believes would help the Fund to track 
the performance of its Target Index.

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[[Page 29583]]

    According to the Amex, the Funds have been advised by MSCI that on 
or before the first day of trading of each Fund, the value of its 
Target Index would be updated intra-day as individual Component 
Securities change in price. These intra-day values of the Target 
Indices are and would be disseminated at regular intervals (every 15 
seconds) throughout the trading day by organizations authorized by 
MSCI. In addition, these organizations would disseminate values for 
each Target Index once each trading day, based on closing prices in the 
relevant exchange market.
    According to the Amex, the daily closing index value and the 
percentage change in the daily closing index value for the Target 
Indices are publicly available on the MSCI Web site at http://www.msci.com. Data--including weights, index shares, closing prices and 
corporate actions--regarding each Target Index is available to MSCI 
subscribers through various methods of delivery. MSCI index data may be 
delivered to subscribers directly from MSCI on a daily or monthly basis 
via electronic delivery methods. MSCI subscribers also may receive 
index data on a monthly or quarterly basis in print format via express 
mail. Several independent data vendors package and disseminate MSCI 
data in various value-added formats (including vendors displaying both 
securities and index levels, such as FAME, FactSet, Datastream and 
RIMES, and vendors displaying index levels only, such as Bloomberg, Dow 
Jones Markets, DRI/McGraw Hill, Lipper Analytical, Quick, Quotron, 
Reuters and Telekurs).
    Target Indices--Key Characteristics. General. The Target Indices 
would be subsets of the MSCI U.S. Investable Market 2500 Index, which 
represents the investable universe of companies in the U.S. equity 
market. The MSCI U.S. Investable Market 2500 Index is a free float 
adjusted market capitalization weighted index that targets for 
inclusion 2,500 companies and represents, as of June 30, 2003, 
approximately 98% of the capitalization of the U.S. equity market. The 
U.S. Equity Market consists of U.S. domiciled companies traded on the 
New York Stock Exchange, Inc. (``NYSE''), Amex, Nasdaq National Market 
System (``Nasdaq'') or Nasdaq Small Cap Market. The subsets are created 
by grouping the constituents into their respective Global Industry 
Classification Standard (GICS[reg]) industry sector code.
    According to the Amex, the Target Indices would meet all of the 
eligibility requirements for index components set out in Amex Rule 
1000A and in particular, those requirements of Amex Rule 1000A, 
Commentary .02, with the exception of the weighting standards set out 
in (a)(3) of that commentary, and the VIPER Funds therefore would not 
be eligible for approval for listing and trading pursuant to Rule 19b-
4(e) under the Act.\14\ As further described below, a significant 
portion of the weight of all three of these indices would be accounted 
for by stocks with substantial market capitalization and trading 
volume, which, together with the other characteristics of the indices 
and the Funds, would ensure that a minimum level of liquidity would 
exist for each VIPER Fund, reducing the potential for manipulation of 
the indices' component securities and allowing for the maintenance of 
fair and orderly markets.
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    \14\ According to the Amex, the MSCI U.S. Investable Market 
Industrials Index at this time meets all of the standards of Amex 
Rule 1000A, Commentary .02. It is included in this filing because, 
based on the time required for preparation for listing, it is 
possible that the index may not satisfy the standard relating to the 
most heavily weighted stock component on the date of listing (the 
heavily weighted component stock in the index currently constitutes 
approximately 26% of the index).
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    MSCI U.S. Investable Market Energy Index. The MSCI U.S. Investable 
Market Energy Index represents the Energy companies of the MSCI U.S. 
Investable Market 2500 Index as classified in accordance with the 
Global Industry Classification Standard (GICS[reg]). The MSCI U.S. 
Investable Market Energy Index is a free float adjusted market 
capitalization weighted index. As of December 31, 2003, the index 
contained 113 constituents with a total market capitalization of 
$698,253,890,350. Each of the individual components of the index had a 
market capitalization over $75,000,000 with an average market 
capitalization of $6,234,409,735. All constituents had a monthly 
trading volume during each of the last six months of at least 250,000 
shares. The five highest weighted stocks--which represent 65.04% of 
index weight--had an average daily dollar volume in excess of 
$50,000,000 during the past two months. Additional detail on the MSCI 
U.S. Investable Market Energy Index can be found in Exhibit A to the 
Amex filing, which is available at the principal office of the Amex and 
at the Commission.
    MSCI U.S. Investable Market Industrials Index. The MSCI U.S. 
Investable Market Industrials Index represents the Industrial companies 
of the MSCI U.S. Investable Market 2500 Index as classified in 
accordance with the Global Industry Classification Standard 
(GICS[reg]). The MSCI U.S. Investable Market Industrials Index is a 
free float adjusted market capitalization weighted index. As of 
December 31, 2003, the index contained 314 constituents with a total 
market capitalization of $1,259,470,832,295. Each of the individual 
components of the index had a market capitalization over $75,000,000 
with an average market capitalization of $4,011,053,606. Approximately 
99.68% of the weight of the index is represented by the constituents 
that had a monthly trading volume during each of the last six months of 
at least 250,000 shares. The five highest weighted stocks--which 
represent 40.53% of index weight--had an average daily dollar volume in 
excess of $150,000,000 during the past two months. Additional detail on 
the MSCI U.S. Investable Market Industrials Services Index can be found 
in Exhibit B to the Amex filing, which is available at the principal 
office of the Amex and at the Commission.
    MSCI U.S. Investable Market Telecommunications Services Index. The 
MSCI U.S. Investable Market Telecommunications Services Index 
represents the Telecommunications Service companies of the MSCI U.S. 
Investable Market 2500 Index as classified in accordance with the 
Global Industry Classification Standard (GICS[reg]). The MSCI U.S. 
Investable Market Telecommunications Services Index is a free float 
adjusted market capitalization weighted index. As of December 31, 2003, 
the index contained 41 constituents with a total market capitalization 
of $367,750,455,980. Each of the individual components of the index had 
a market capitalization over $75,000,000 with an average market 
capitalization of $8,969,523,317. Approximately 99.95% of weight of the 
index is represented by the constituents that had a monthly trading 
volume during each of the last six months of at least 250,000 shares. 
The five highest weighted stocks--which represent 76.33% of index 
weight--had an average daily dollar volume in excess of $130,000,000 
during the past two months. Additional detail on the MSCI U.S. 
Investable Market Telecommunications Services Index can be found in 
Exhibit C to the Amex filing, which is available at the principal 
office of the Amex and at the Commission.
    Availability of Information about VIPER Shares. Vanguard's Web 
site, which is and will be publicly accessible at no charge, would 
contain the following information for each Fund's

[[Page 29584]]

VIPER Shares: (a) The prior business day's closing net asset value 
(``NAV''), the mid-point of the bid-asked spread at the time that the 
Fund's NAV is calculated (``Bid-Asked Price''),\15\ and a calculation 
of the premium or discount of the Bid-Asked Price in relation to the 
closing NAV; (b) data for a period covering at least the four previous 
calendar quarters (or the life of a Fund, if shorter) indicating how 
frequently each Fund's VIPER Shares traded at a premium or discount to 
NAV based on the Bid-Asked Price and closing NAV, and the magnitude of 
such premiums and discounts; (c) its Prospectus and two most recent 
reports to shareholders; and (d) other quantitative information such as 
daily trading volume. The Product Description for each Fund would 
inform investors that the Adviser's Web site has information about the 
premiums and discounts at which the Fund's VIPER Shares have 
traded.\16\
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    \15\ According to the Application, because the NAV for all share 
classes of all Vanguard funds is calculated as of the close of the 
NYSE (usually 4 pm), but the market for VIPER Shares and other ETFs 
does not close until 4:15 pm, the closing market price is not 
measured at the same time as NAV. This difference in timing could 
lead to discrepancies between performance based on NAV and 
performance based on market price that give investors an inaccurate 
picture of the correlation between the two figures. To remedy this 
problem, the Funds compare performance of a Fund's VIPER Shares 
based on NAV to performance of the VIPER Shares based on the mid-
point of the bid-asked spread at the time NAV is calculated. By 
calculating market-based and NAV-based performance at the same time, 
the two performance figures will be comparable, and any differences 
will be attributable to market forces rather than timing 
differences.
    \16\ See ``Prospectus Delivery'' below regarding the Product 
Description. The Exemptive Order granted relief from Section 24(d) 
of the 1940 Act, which relief permits dealers to sell VIPER Shares 
in the secondary market unaccompanied by a statutory prospectus when 
prospectus delivery is not required by the Securities Act of 1933.
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    The Amex would disseminate for each Fund on a daily basis by means 
of Consolidated Tape Association (``CTA'') and CQ High Speed Lines 
information with respect to the Intraday Indicative Value (as defined 
and discussed below under ``Dissemination of Intraday Indicative 
Value''), recent NAV, shares outstanding, estimated cash amount and 
total cash amount per Creation Unit. The Exchange would make available 
on its Web site daily trading volume, closing price, the NAV and final 
dividend amounts to be paid for each Fund. The closing prices of the 
Deposit Securities (as defined below) are readily available from, as 
applicable, exchanges, automated quotation systems, published or other 
public sources, or on-line information services such as Bloomberg or 
Reuters.
    Beneficial owners of VIPER Shares (``Beneficial Owners'') would 
receive all of the statements, notices, and reports required under the 
1940 Act and other applicable laws. They would receive, for example, 
annual and semi-annual fund reports, written statements accompanying 
dividend payments, proxy statements, annual notifications detailing the 
tax status of fund distributions, and Form 1099-DIVs. Some of these 
documents would be provided to Beneficial Owners by their brokers, 
while others would be provided by the Fund through the brokers.
    Creation and Redemption of VIPER Shares. Each Fund would issue and 
redeem VIPER Shares only in aggregations of 100,000 (``Creation 
Units'').\17\ Purchasers of Creation Units would be able to separate 
the Units into individual VIPER Shares. The number of VIPER Shares in a 
Creation Unit would not change except in the event of a stock split or 
similar revaluation. According to the Amex, the initial value of a 
VIPER Share for each of the three Funds is expected to be $50.
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    \17\ The Funds would offer all current and future holders of 
Conventional Shares, except those holding Conventional Shares 
through a 401(k) or other participant-directed employer-sponsored 
retirement plan, the opportunity to convert such shares into VIPER 
shares of equivalent value (``Conversion Privilege''). The 
Conversion Privilege would be a ``one-way'' transaction only. 
Holders of Conventional Shares would be able to convert those shares 
into VIPER shares, but Beneficial Owners of VIPER Shares would not 
be permitted to convert those shares into Conventional Shares.
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    Creation. Persons purchasing Creation Units from a Fund would be 
required to make an in-kind deposit of a basket of securities 
(``Deposit Securities'') consisting of stocks selected by the Adviser 
from among the stocks contained in the issuing fund's portfolio, 
together with an amount of cash specified by the Adviser (``Balancing 
Amount''), plus the applicable transaction fee (``Transaction Fee''). 
The Deposit Securities and the Balancing Amount collectively would be 
referred to as the ``Creation Deposit.'' The Balancing Amount would be 
a cash payment designed to ensure that the value of a Creation Deposit 
is identical to the value of the Creation Unit it is used to purchase. 
The Balancing Amount would be an amount equal to the difference between 
the NAV of a Creation Unit and the market value of the Deposit 
Securities.\18\ The Transaction Fee would be a fee imposed by the Funds 
on investors purchasing (or redeeming--see ``Redemption'' below) 
Creation Units. The purpose of the Transaction Fee would be to protect 
the existing shareholders of the Funds from the dilutive effect of the 
transaction costs (primarily custodial costs) that the Funds incur when 
investors purchase (or redeem) Creation Units.\19\
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    \18\ If the market value of the Deposit Securities were to be 
greater than the NAV of a Creation Unit, then the Balancing Amount 
would be a negative number, in which case the Balancing Amount would 
be paid by the Fund to the purchaser, rather than vice-versa.
    \19\ If a Fund were to permit a purchaser to deposit cash in 
lieu of depositing one or more Deposit Securities, the purchaser 
would be assessed an appropriate Transaction Fee to offset the 
transaction cost to the Fund of buying those particular Deposit 
Securities.
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    The Adviser would make available through the DTC or the Distributor 
on each business day, prior to the opening of trading on the Exchange, 
a list of names and the required number of shares of each Deposit 
Security to be included in the Creation Deposit for each Fund.\20\ The 
Adviser also would make available on a daily basis information about 
the previous day's Balancing Amount.
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    \20\ In accordance with Vanguard's Code of Ethics and Insider 
Trading Policy, personnel of the Adviser with knowledge about the 
composition of a Creation Deposit would be prohibited from 
disclosing such information to any other person, except as 
authorized in the course of their employment, until such information 
is made public.
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    The Adviser currently contemplates that Creation Units would be 
created principally in kind, but the Funds reserve the option to permit 
or require the substitution of an amount of cash--i.e., a ``cash in 
lieu'' amount--to be added to the Cash Component to replace any Deposit 
Security that may not be available in sufficient quantity for delivery, 
may not be eligible for transfer, or may not be eligible for trading by 
an Authorized Participant (as defined below) or the investor for which 
an Authorized Participant is acting.\21\ Brokerage commissions incurred 
by a Fund to acquire any Deposit Security not part of a Creation 
Deposit would be expected to be immaterial, and in any event the 
Adviser represents that it would adjust the relevant Transaction Fee to 
ensure that the Fund collects the extra expense from the purchaser.
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    \21\ According to the Application, in certain instances, a Fund 
may require a purchasing investor to purchase a Creation Unit 
entirely for cash. For example, on days when a substantial 
rebalancing of a Fund's portfolio is required, the Adviser might 
prefer to receive cash rather than in-kind stocks so that it has 
liquid resources on hand to make the necessary purchases. The 
registration statement states that the Funds have no current 
intention of issuing Creation Units for cash.
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    Orders to create or redeem VIPER Shares would be required to be 
placed through an Authorized Participant, which would be either (1) a 
broker-dealer or other participant in the continuous net settlement 
system of the

[[Page 29585]]

National Securities Clearing Corporation or (2) a DTC participant, and 
which has entered into a participant agreement with the Distributor.
    As noted above, on each business day, each Fund would make 
available a list of names and amount of each security constituting the 
current Deposit Securities and the Balancing Amount effective as of the 
previous business day. As noted below in ``Dissemination of Intraday 
Indicative Value,'' the Exchange would disseminate through the 
facilities of the CTA, at regular intervals (currently anticipated to 
be 15 second intervals) during the Exchange's regular trading hours, 
the Intraday Indicative Value on a per VIPER Share basis. The Funds 
would not be involved in, or responsible for, the calculation or 
dissemination of any such amount and would make no warranty as to its 
accuracy.
    Redemption. VIPER Shares in Creation Unit-size aggregations would 
be redeemable on any day on which the NYSE is open in exchange for a 
basket of securities (``Redemption Securities''). As it does for 
Deposit Securities, the Adviser would make available to Authorized 
Participants on each business day prior to the opening of trading a 
list of the names and number of shares of Redemption Securities for 
each Fund. The Redemption Securities given to redeeming investors in 
most cases would be the same as the Deposit Securities required of 
investors purchasing Creation Units on the same day.\22\ Depending on 
whether the NAV of a Creation Unit is higher or lower than the market 
value of the Redemption Securities, the redeemer of a Creation Unit 
would either receive from or pay to the Fund a cash amount equal to the 
difference. (In the typical situation where the Redemption Securities 
are the same as the Deposit Securities, this cash amount would be equal 
to the Balancing Amount described above in the creation process.) The 
redeeming investor also would be required to pay to the Fund a 
Transaction Fee to cover transaction costs.\23\
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    \22\ There may be circumstances, however, where the Deposit and 
Redemption Securities could differ. For example, if ABC stock were 
replacing XYZ stock in a Fund's Target Index at the close of today's 
trading session, today's prescribed Deposit Securities might include 
ABC but not XYZ, while today's prescribed Redemption Securities 
might include XYZ but not ABC. According to the Application, having 
the flexibility to prescribe different baskets for creation and 
redemption promotes efficient portfolio management and lowers the 
Fund's brokerage costs, and thus is in the best interests of the 
Fund's shareholders.
    \23\ Redemptions in which cash is substituted for one or more 
Redemption Securities would be assessed an appropriate Transaction 
Fee to offset the transaction cost to the fund of selling those 
particular Redemption Securities. See supra note .
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    A Fund would have the right to make redemption payments in cash, in 
kind, or a combination of each, provided that the value of its 
redemption payments equals the NAV of the VIPER Shares tendered for 
redemption.\24\ The Adviser currently contemplates that Creation Units 
of each Fund would be redeemed principally in kind, except in certain 
circumstances. A Fund would be able to make redemptions partly or 
wholly in cash in lieu of transferring one or more Redemption 
Securities to a redeeming investor if the Fund determines, in its 
discretion, that such alternative is warranted due to unusual 
circumstances. This could happen if the redeeming investor is unable, 
by law or policy, to own a particular Redemption Security. The Adviser 
represents that it would adjust the Transaction Fee imposed on a 
redemption wholly or partly in cash to take into account any additional 
brokerage or other transaction costs incurred by the Fund.
---------------------------------------------------------------------------

    \24\ In the event an Authorized Participant has submitted a 
redemption request in good order and is unable to transfer all or 
part of a Creation Unit-size aggregation for redemption, a Fund 
would nonetheless be able to accept the redemption request in 
reliance on the Authorized Participant's undertaking to deliver the 
missing VIPER Shares as soon as possible, which undertaking shall be 
secured by the Authorized Participant's delivery and maintenance of 
collateral. The Authorized Participant Agreement would permit the 
Fund to buy the missing VIPER Shares at any time and would subject 
the Authorized Participant to liability for any shortfall between 
the cost to the Fund of purchasing the VIPER Shares and the value of 
the collateral.
---------------------------------------------------------------------------

    Dividends. Dividends from net investment income would be declared 
and paid at least annually by each Fund in the same manner as by other 
open-end investment companies. Capital gains distributions, if any, 
would generally occur in December.
    The final dividend amount for the VIPER Shares of each Fund, which 
would be made available on http://www.amextrader.com, would be the 
amount of dividends to be paid by a Fund to holders of its VIPER Shares 
for the appropriate period (usually annually). The final dividend 
amount would also be disseminated by the Funds to Bloomberg and other 
sources.
    According to the Amex, the Funds intend to make available to 
Beneficial Owners of VIPER Shares the DTC book-entry dividend 
reinvestment service. Without this service, Beneficial Owners would 
have to take their distributions in cash. Information about the 
dividend reinvestment service would appear in each Fund's prospectus 
and in its Product Description.\25\
---------------------------------------------------------------------------

    \25\ See supra note 16, and below, ``Prospectus Delivery.''
---------------------------------------------------------------------------

    The cash proceeds of dividends and capital gain distributions 
payable to all Beneficial Owners participating in DTC's reinvestment 
service would be used to purchase additional VIPER Shares for such 
Beneficial Owners. These additional shares would be purchased on the 
secondary market. Some DTC Participants would be able to elect not to 
utilize the dividend reinvestment service. Beneficial Owners who hold 
VIPER Shares through these DTC Participants may not be able to reinvest 
their dividends and distributions. These Beneficial Owners would 
receive their dividends and distributions in cash. The prospectus for 
VIPER Shares and the Product Description would disclose this fact.
    Criteria for Initial and Continued Listing. Shares would be subject 
to the criteria for initial and continued listing of Index Fund Shares 
in Amex Rule 1002A. A minimum of 100,000 VIPER Shares would be required 
to be outstanding for each Fund at the start of trading. This minimum 
number of Shares required to be outstanding at the start of trading 
would be comparable to requirements that have been applied to 
previously listed series of Portfolio Depositary Receipts and Index 
Fund Shares. The initial price of a VIPER Share for each Fund would be 
approximately $50 per share.
    The Exchange believes that the proposed minimum number of VIPER 
Shares outstanding at the start of trading is sufficient to provide 
market liquidity.
    Original and Annual Listing Fees. The Amex original listing fee 
applicable to the listing of the Index Fund Shares would be $5,000 for 
each Fund. In addition, the annual listing fee applicable to the VIPER 
Funds under Section 141 of the Amex Company Guide (``Company Guide'') 
would be based upon the year-end aggregate number of outstanding VIPER 
Shares in all Vanguard funds listed on the Exchange.
    Stop and Stop Limit Orders. Amex Rule 154, Commentary .04(c) 
provides that stop and stop limit orders to buy or sell a security 
(other than an option, which is covered by Amex Rule 950(f) and 
Commentary thereto) the price of which is derivatively based upon 
another security or index of securities, may with the prior approval of 
a Floor Official, be elected by a quotation, as set forth in Commentary 
.04(c) (i-v). The Exchange has designated Index Fund

[[Page 29586]]

Shares, including VIPER Shares, as eligible for this treatment.\26\
---------------------------------------------------------------------------

    \26\ See Securities Exchange Act Release No. 29063 (April 10, 
1991), 56 FR 15652 (April 17, 1991) (SR-Amex-90-31), regarding 
Exchange designation of equity derivative securities as eligible for 
such treatment under Amex Rule 154, Commentary .04(c).
---------------------------------------------------------------------------

    Amex Rule 190. Amex Rule 190, Commentary .04 applies to Index Fund 
Shares listed on the Exchange, including VIPER Shares. Commentary .04 
states that nothing in Amex Rule 190(a) should be construed to restrict 
a specialist registered in a security issued by an investment company 
from purchasing and redeeming the listed security, or securities that 
can be subdivided or converted into the listed security, from the 
issuer as appropriate to facilitate the maintenance of a fair and 
orderly market.
    Prospectus Delivery. The Exchange, in an Information Circular to 
Exchange members and member organizations, would inform members and 
member organizations, prior to commencement of trading, of the 
prospectus and Product Description delivery requirements that apply to 
the Funds. The Exemptive Order granted relief from Section 24(d) of the 
1940 Act, which relief permits dealers to sell VIPER Shares in the 
secondary market unaccompanied by a statutory prospectus when 
prospectus delivery is not required by the Securities Act of 1933. Any 
Product Description used in reliance on the Section 24(d) exemptive 
order would comply with all representations made therein and all 
conditions thereto.
    Trading Halts. In addition to other factors that may be relevant, 
the Exchange would be able to consider factors such as those set forth 
in Amex Rule 918C(b) in exercising its discretion to halt or suspend 
trading in Index Fund Shares, including VIPER Shares. These factors 
would include, but are not limited to, (1) the extent to which trading 
is not occurring in stocks underlying the index; or (2) whether other 
unusual conditions or circumstances detrimental to the maintenance of a 
fair and orderly market are present.\27\ In addition, trading in VIPER 
Shares would be halted if the circuit breaker parameters under Amex 
Rule 117 have been reached.
---------------------------------------------------------------------------

    \27\ See Amex Rule 918C.
---------------------------------------------------------------------------

    Suitability. Prior to commencement of trading, the Exchange would 
issue an Information Circular informing members and member 
organizations of the characteristics of the Funds' VIPER Shares and of 
applicable Exchange rules, as well as of the requirements of Amex Rule 
411 (Duty to Know and Approve Customers).
    Purchases and Redemptions in Creation Unit Size. In the Information 
Circular referenced above, members and member organizations would be 
informed that procedures for purchases and redemptions of VIPER Shares 
in Creation Unit Size are described in the Fund prospectus and 
Statement of Additional Information, and that VIPER Shares would not be 
individually redeemable but would be redeemable only in Creation Unit 
size aggregations or multiples thereof.
    Surveillance. The Exchange represents that its surveillance 
procedures are adequate to properly monitor the trading of the VIPER 
Shares. Specifically, the Amex would rely on its existing surveillance 
procedures governing Index Fund Shares, which have been deemed adequate 
under the Act. In addition, the Exchange and MSCI also have a general 
policy prohibiting the distribution of material, non-public information 
by its employees. Because MSCI is a broker-dealer that maintains the 
Target Indices, it is imperative that a functional separation exist, 
such as a firewall between the trading desk of the broker-dealer and 
the research persons responsible for maintaining the Target Indices. 
MSCI has represented that such a firewall exists.
    Hours of Trading/Minimum Price Variation. The Funds would trade on 
the Exchange until 4:15 pm (New York time) each business day. Shares of 
each fund would trade with a minimum price variation of $.01.
    Dissemination of Intraday Indicative Value. In order to provide 
updated information relating to each Fund for use by investors, 
professionals and persons wishing to create or redeem VIPER Shares, as 
noted above, the Exchange would disseminate through the facilities of 
the CTA: (i) continuously throughout the trading day, through the 
facilities of the consolidated tape, the market value of a VIPER 
Share,\28\ and (ii) every 15 seconds throughout the trading day, 
separately from the consolidated tape, a calculation of the estimated 
NAV (also known as the Intraday Indicative Value or ``IIV'') \29\ of a 
VIPER Share as calculated by a third party calculator (``IIV 
Calculator'') (that is currently expected to be the Amex). Comparing 
these two figures would help an investor to determine whether, and to 
what extent, VIPER Shares may be selling at a premium or a discount to 
NAV.
---------------------------------------------------------------------------

    \28\ The consolidated tape would show the market price of VIPER 
Shares only; it would not show the price (i.e., the NAV) of 
Conventional Shares.
    \29\ The Application refers to the IIV as the ``estimated NAV.'' 
The IIV is also referred to by other issuers as an ``Underlying 
Trading Value,'' ``Indicative Optimized Portfolio Value (IOPV),'' 
and ``Intraday Value'' in various places such as the prospectus and 
marketing materials for different exchange-traded funds.
---------------------------------------------------------------------------

    The IIV Calculator would calculate the IIV of a VIPER Share as 
follows: First, it would establish the market value of a Creation 
Deposit based on the previous night's closing price of each Deposit 
Security plus the previous night's Balancing Amount. Then, throughout 
the day at 15-second intervals, it would recalculate the market value 
of a Creation Deposit based on the then-current market price of each 
Deposit Security plus the previous night's Balancing Amount.
    The IIV may not reflect the value of all securities included in the 
applicable Target Index. In addition, the IIV would not necessarily 
reflect the precise composition of the current portfolio of securities 
held by each Fund at a particular point in time. Therefore, the IIV on 
a per VIPER Share basis disseminated during Amex trading hours should 
not be viewed as a real time update of the net asset value of a 
particular Fund, which would be calculated only once a day. The IIV 
that would be disseminated by the Amex at the start of the trading day 
is expected to be generally close to the most recently calculated Fund 
net asset value on a per VIPER Share basis. It is possible that the 
value of the portfolio of securities held by a Fund may diverge from 
the value of the Deposit Securities during any trading day. If there 
were to be such a divergence, the IIV would not precisely reflect the 
value of the Fund portfolio. However, during the trading day, the IIV 
of a Fund's VIPER Shares would be expected to closely approximate the 
value per VIPER Share of the portfolio of securities for each Fund 
except under unusual circumstances (e.g., in the case of extensive 
rebalancing of multiple securities in a Fund at the same time by the 
Adviser).
    The Exchange believes that dissemination of the IIV based on the 
Deposit Securities would provide additional information regarding each 
Fund that would not otherwise be available to the public and would be 
useful to professionals and investors in connection with VIPER Shares 
trading on the Exchange or the creation or redemption of VIPER Shares. 
The IIV would also include the applicable estimated cash component for 
each Fund.

[[Page 29587]]

2. Statutory Basis
    The Exchange believes that the proposed rule change, as amended, is 
consistent with Section 6 of the Act,\30\ in general, and furthers the 
objectives of Section 6(b)(5),\31\ in particular, in that it is 
designed to prevent fraudulent and manipulative acts and practices, 
promote just and equitable principles of trade, to foster cooperation 
and coordination with persons engaged in regulating, clearing, 
settling, processing information with respect to, and facilitating 
transactions in securities, to remove impediments to and perfect the 
mechanisms of a free and open market and a national market system, and, 
in general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \30\ 15 U.S.C. 78f(b).
    \31\ 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.

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

    The Exchange did not receive any written comments on the proposed 
rule change.

III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change 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 [email protected]. Please include 
File Number SR-Amex-2004-16 on the subject line.
    Paper comments:
    Send paper comments in triplicate to Jonathan G. Katz, Secretary, 
Securities and Exchange Commission, 450 Fifth Street, NW., Washington, 
DC 20549-0609.
    All submissions should refer to File Number SR-Amex-2004-16. 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 Commission's 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 the 
filing also will be available for inspection and copying at the 
principal office of the Amex. 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-Amex-2004-16 and should be submitted on or before June 
14, 2004.

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

    After careful consideration, 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.\32\ In particular, the Commission finds that the proposed 
rule change is consistent with Section 6(b)(5) of the Act \33\ and will 
promote just and equitable principles of trade, foster cooperation and 
coordination with persons engaged in clearing, settling, processing 
information with respect to, and facilitating transactions in 
securities, and, in general, protect investors and the public 
interest.\34\
---------------------------------------------------------------------------

    \32\ In approving this proposal, the Commission has considered 
its impact on efficiency, competition, and capital formation. 15 
U.S.C. 78c(f).
    \33\ 15 U.S.C. 78f(b)(5).
    \34\ 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 
functions, 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.
---------------------------------------------------------------------------

    The Commission believes that the new VIPER Shares will provide 
investors with an additional investment choice. The Commission believes 
that the Amex's proposal should advance the public interest by 
providing investors with increased flexibility in satisfying their 
investment needs by allowing them to purchase and sell single 
securities at negotiated prices throughout the business day that 
generally track the price and yield performance of the respective 
underlying Target Indices.\35\
---------------------------------------------------------------------------

    \35\ The Commission notes that, as is the case with similar 
previously approved exchange traded funds, investors in VIPER Shares 
can redeem in Creation Unit size aggregations only. See, e.g., 
Securities Exchange Act Release No. 44990 (October 25, 2001), 66 FR 
55712 (November 2, 2001) (SR-Amex-2001-45) (``Release No. 34-
44990''). This citation was corrected by Securities Exchange Act 
Release No. 44990 (November 5, 2001), 66 FR 56869 (November 13, 
2001) (SR-Amex-2001-45).
---------------------------------------------------------------------------

    Furthermore, the proposed rule change raises no issues that have 
not been previously considered by the Commission in connection with 
earlier filings for Index Fund Shares pursuant to Rule 19b-4 under the 
Act.\36\ The VIPER Shares to be issued by the Vanguard Index Funds are 
similar in structure and operation to exchange-traded index fund shares 
that the Commission has previously approved for listing and trading on 
national exchanges under Section 19(b)(2) of the Act.\37\ In 
particular, with respect to each of the following key issues, the 
Commission believes that the VIPER Shares satisfy established 
standards.
---------------------------------------------------------------------------

    \36\ 17 CFR 240.19b-4.
    \37\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

A. Fund Characteristics

    Similar to other previously-approved, exchange-listed index fund 
shares, the Commission believes that the proposed VIPER Shares will 
provide investors with an alternative to trading a broad range of 
securities on an individual basis and will give investors the ability 
to trade a product representing an interest in a portfolio of 
securities designed to reflect substantially the applicable Target 
Index. The estimated cost of individual VIPER Shares, approximately 
$50, should make them attractive to individual retail investors who 
wish to hold a security representing the performance of a portfolio of 
stocks. In addition, unlike the case with standard open-end investment 
companies specializing in such stocks, investors will be able to trade 
each of the VIPER Shares continuously throughout the business day in 
secondary market transactions at negotiated prices.\38\ Accordingly, 
the proposed Funds will allow investors to: (1) Respond quickly to 
market changes through intra-day trading opportunities; (2) engage in 
hedging strategies similar to those used by institutional investors;

[[Page 29588]]

and (3) reduce transaction costs for trading a portfolio of securities.
---------------------------------------------------------------------------

    \38\ Because of the potential arbitrage opportunities, the 
Commission believes that VIPER Shares will not trade at a material 
discount or premium in relation to their NAV.
---------------------------------------------------------------------------

    The Commission believes that each of the proposed Funds is 
reasonably designed to provide investors with an investment vehicle 
that substantially reflects in value the applicable Target Index and, 
in turn, the performance of: (1) The component securities comprising 
the MSCI U.S. Investable Market Energy Index; (2) the component 
securities comprising the MSCI U.S. Investable Market Industrials 
Index; and (3) the MSCI U.S. Investable Market Telecommunications 
Services Index.
    The Commission notes that the MSCI U.S. Investable Market Energy 
Index and the MSCI U.S. Investable Market Telecommunications Services 
Index do not meet the weighting standards set out in Amex Rule 1000A, 
Commentary .02(a)(3), which require that the most heavily weighted 
component stock cannot exceed 30% of the weight of the index or 
portfolio, and the five most heavily weighted component stocks cannot 
exceed 65% of the weight of the index or portfolio. The Commission 
notes further that, although the MSCI U.S. Investable Market 
Industrials Index currently meets the requirements of Amex Rule 1000A, 
Commentary .02, it is possible that the index may not satisfy the 
standard relating to the most heavily weighted stock component on the 
date of listing (the heavily weighted component stock in the index 
currently constitutes approximately 26% of the index). The Commission 
notes, however, that a significant portion of the weight of each of the 
three Target Indices is accounted for by stocks with substantial market 
capitalization and trading volume. Together with the other 
characteristics of the Target Indices and the Funds, the Commission 
believes that a minimum level of liquidity would exist for each VIPER 
Fund, reducing the potential for manipulation of the Target Indices' 
component securities and allowing for the maintenance of fair and 
orderly markets.
    Moreover, the Commission finds that, although the value of the 
VIPER Shares will be derived from and based on the value of the 
securities and cash held in the Fund, VIPER Shares are not leveraged 
instruments. Accordingly, the level of risk involved in the purchase or 
sale of VIPER Shares is similar to the risk involved in the purchase or 
sale of traditional common stock, with the exception that the pricing 
mechanism for the VIPER Shares is based on a portfolio of securities. 
The Commission notes that each Fund will invest at least 90% of its 
assets in the component securities of its respective Target Index. As 
noted above, each Fund will use a replication method of indexing to 
attempt to track its Target Index. It is expected that each Fund will 
have a tracking error relative to the performance of its Underlying 
Index of less than five percentage points per annum. The Advisers to 
each Fund may attempt to reduce tracking error by using a variety of 
investment instruments, including futures contracts, options, 
convertible securities, swaps and currency exchange contracts; however, 
these instruments will not constitute more than 10 percent of the 
Funds' assets.
    While the Commission believes that the above characteristics of the 
Target Indices make it unlikely that the Funds could become highly 
concentrated with illiquid stocks, susceptible to manipulation, in the 
event that the Funds' characteristics change significantly from that 
described herein, the Commission would expect the Amex to contact 
Commission staff to file a proposed rule change pursuant to Rule 19b-4 
of the Act. Accordingly, the level of risk involved in the purchase or 
sale of VIPER Shares is similar to the risk involved in the purchase or 
sale of traditional common stock, with the exception that the pricing 
mechanism for the VIPER Shares is based on a portfolio of securities.

B. Disclosure

    The Commission believes that the Amex's proposal should provide for 
adequate disclosure to investors relating to the terms, 
characteristics, and risks of trading the Funds. The Exchange will 
circulate an Information Circular detailing applicable prospectus and 
product description delivery requirements. Because the VIPER Shares 
have been granted relief from the prospectus delivery requirements of 
the 1940 Act, they will be subject to Amex Rule 1000A, which requires 
delivery of a product description describing the Funds. Pursuant to the 
rule, the delivery requirement will extend to a member or member 
organization carrying an omnibus account for a non-member broker-
dealer, who must notify the non-member to make the product description 
available to its customers on the same terms as are directly applicable 
to members and member organizations. In addition, Rule 1000A requires 
that a member or member organization must deliver a prospectus to a 
customer upon request.
    The circular also will address members' responsibility to deliver a 
prospectus or product description to all investors and highlight the 
characteristics of the Funds. For example, the information circular 
will also inform members and member organizations that VIPER Shares are 
not individually redeemable, but are redeemable only in Creation-Unit-
size aggregations as set forth in each Fund prospectus and statement of 
additional information. The circular will also advise members of their 
obligations pursuant to Amex Rule 411 (Duty to Know and Approve 
Customer).

C. Dissemination of Fund Information

    With respect to pricing, the Exchange will disseminate the recent 
NAV for each Fund on the Exchange Web site.\39\ As indicated above, 
each Fund's NAV will be calculated once daily as of 4 p.m. Amex will 
also disseminate by means of the CTA and CQ High Speed Lines each 
Fund's IIV at 15-second intervals and the market value of its VIPER 
Shares. The Commission believes that comparing these two figures will 
help an investor to determine whether, and to what extent, VIPER Shares 
may be selling at a premium or a discount to NAV.
---------------------------------------------------------------------------

    \39\ The Exchange will post additional information about each 
fund, including dividend amounts to be paid as well.
---------------------------------------------------------------------------

    Amex will also make available additional information about each 
Fund, including shares outstanding, daily trading volume, closing 
price, estimated cash amount and total cash amount per Creation Unit, 
and final dividend amounts to be paid for each Fund.\40\ The Commission 
believes that dissemination of this information will facilitate 
transparency with respect to the proposed VIPER Shares and diminish the 
risk of manipulation or unfair informational advantage.
---------------------------------------------------------------------------

    \40\ The Commission believes that the closing prices of Deposit 
Securities are readily available from, as applicable, the relevant 
exchanges, automated quotation systems, published or other public 
sources, or on-line information services such as Bloomberg or 
Reuters.
---------------------------------------------------------------------------

    In addition, the Commission notes that Vanguard's Web site is and 
will be publicly accessible at no charge, and will contain each fund's 
NAV as of the prior business day, the Bid-Asked Price, and a 
calculation of the premium or discount of the Bid-Asked Price in 
relation to the closing NAV. Additional information available to 
investors will include data for a period covering at least the four 
previous calendar quarters (or the life of a Fund, if shorter) 
indicating how frequently each Fund's VIPER Shares traded at a premium 
or discount to NAV based on the Bid-Asked Price and closing NAV, and 
the magnitude of such premiums and discounts; the Fund's Prospectus and 
two most recent reports to shareholders;

[[Page 29589]]

and other quantitative information such as daily trading volume.\41\
---------------------------------------------------------------------------

    \41\ See supra ``Availability of Information about VIPER 
Shares.''
---------------------------------------------------------------------------

    Based on the representations made in the Amex proposal, the 
Commission believes that pricing and other important information about 
each Fund is adequate.

D. Listing and Trading

    The Commission finds that adequate rules and procedures exist to 
govern the listing and trading of VIPER Shares. VIPER Shares will be 
deemed equity securities subject to Amex rules governing the trading of 
equity securities, including, among others, rules governing trading 
halts, responsibilities of the specialist, account opening and customer 
suitability requirements, and the election of stop and stop limit 
orders.
    In addition, the Funds will be subject to Amex listing and 
delisting/suspension rules and procedures governing the trading of 
Index Fund Shares on the Amex.\42\ As the Commission has noted 
previously,\43\ the listing and delisting criteria for VIPER Shares 
should help to ensure that a minimum level of liquidity will exist in 
each of the Funds to allow for the maintenance of fair and orderly 
markets. Accordingly, the Commission believes that the rules governing 
the trading of VIPER Shares provide adequate safeguards to prevent 
manipulative acts and practices and to protect investors and the public 
interest.
---------------------------------------------------------------------------

    \42\ See Amex Rule 1002A.
    \43\ See, e.g., Release No. 34-44990, supra note 35.
---------------------------------------------------------------------------

    As noted above, a minimum of 100,000 VIPER Shares will be required 
to be outstanding for each Fund at the start of trading. The Commission 
believes that this minimum number is sufficient to help to ensure that 
a minimum level of liquidity will exist at the start of trading.\44\
---------------------------------------------------------------------------

    \44\ This minimum number of shares required to be outstanding at 
the start of trading is comparable to requirements that have been 
applied to previously listed series of Portfolio Depositary Receipts 
and Index Fund Shares.
---------------------------------------------------------------------------

E. Surveillance

    The Commission finds that Amex has adequate surveillance procedures 
to monitor the trading of the proposed VIPER Shares, including concerns 
with specialists purchasing and redeeming Creation Units. The Amex 
represents that it will rely on existing surveillance procedures 
governing Index Fund Shares, and in addition, that the exchange and 
MSCI prohibit the distribution of material, non-public information by 
their employees that could undermine a fair and orderly market. In 
addition, the Exchange and MSCI also have a general policy prohibiting 
the distribution of material, non-public information by their 
employees. Because MSCI is a broker-dealer that maintains the Target 
Indices, it is imperative that a functional separation exist, such as a 
firewall between the trading desk of the broker-dealer and the research 
persons responsible for maintaining the Target Indices. MSCI has 
represented that such a firewall exists.

F. Accelerated Approval

    The Commission finds good cause, pursuant to Section 19(b)(2) of 
the Act,\45\ for approving the proposed rule change prior to the 
thirtieth day after the date of publication of notice in the Federal 
Register. The Commission notes that the proposed rule change is 
consistent with the listing and trading standards in Amex Rule 1000A et 
seq. (Index Fund Shares), and the Commission has previously approved 
similar products.\46\ The Commission does not believe that the proposed 
rule change raises novel regulatory issues. Consequently, the 
Commission believes that it is appropriate to permit investors to 
benefit from the flexibility afforded by trading these products as soon 
as possible. Accordingly, the Commission finds that there is good 
cause, consistent with Section 6(b)(5) of the Act,\47\ to approve the 
proposal on an accelerated basis.
---------------------------------------------------------------------------

    \45\ 15 U.S.C. 78s(b)(2).
    \46\ See, e.g., Release No. 34-44990, supra note 35.
    \47\ 15 U.S.C. 78s(b)(5).
---------------------------------------------------------------------------

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\48\ that the proposed rule change (SR-Amex-2004-16), is hereby 
approved on an accelerated basis.
---------------------------------------------------------------------------

    \48\ Id.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\49\
---------------------------------------------------------------------------

    \49\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Jill M. Peterson,
Assistant Secretary.
[FR Doc. 04-11652 Filed 5-21-04; 8:45 am]
BILLING CODE 8010-01-P