[Federal Register Volume 72, Number 87 (Monday, May 7, 2007)]
[Notices]
[Pages 25824-25829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8600]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55687; File No. SR-NYSE-2007-27]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing of Amendment No. 3 to Proposed Rule Change and Order 
Granting Accelerated Approval to Proposed Rule Change, as Modified by 
Amendments No. 1, 2, and 3 Thereto, To Adopt Generic Listing Standards 
for Index-Linked Securities

May 1, 2007.

I. Introduction

    On March 9, 2007, the New York Stock Exchange LLC (``NYSE'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to adopt generic listing standards for equity 
index-linked securities (``Equity Index-Linked Securities''), 
commodity-linked securities (``Commodity-Linked Securities''), and 
currency-linked securities (``Currency-Linked Securities'' and, 
together with Equity Index-Linked Securities and Commodity-Linked 
Securities, ``Index-Linked Securities''). On April 4, 2007, Exchange 
filed Amendment No. 1 to the proposed rule change. On April 5, 2007, 
the Exchange filed Amendment No. 2 to the proposed rule change. The 
proposed rule change, as amended, was published for comment in the 
Federal Register on

[[Page 25825]]

April 13, 2007 for a 15-day comment period.\3\ The Commission received 
no comments on the proposal. On April 26, 2007, the Exchange filed 
Amendment No. 3 to the proposed rule change.\4\ This order approves the 
proposed rule change, as modified by Amendments No. 1, 2, and 3, on an 
accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 55600 (April 9, 
2007), 72 FR 18712 (``Notice'').
    \4\ In Amendment No. 3 to the proposed rule change, the Exchange 
clarified the eligibility criteria for component securities 
comprising the Underlying Index (as defined herein) for Equity 
Index-Linked Securities, broadened the requirement for surveillance 
procedures, including adequate comprehensive surveillance sharing 
agreements, for all Index-Linked Securities, and represented that 
Exchange trading rules governing the Index-Linked Securities would 
be identified and disclosed in the Information Memorandum.
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II. Description of the Proposal

    As explained more fully in the Notice, the Exchange proposes to add 
new Section 703.22 to its Listed Company Manual (the ``Manual'') to 
provide generic listing standards to permit the listing and trading of 
Index-Linked Securities pursuant to Rule 19b-4(e) under the Act.\5\ 
This proposal will enable the Exchange to list and trade Index-Linked 
Securities pursuant to Rule 19b-4(e) of the Act if each of the 
conditions set forth in proposed Section 703.22 of the Manual is 
satisfied. Rule 19b-4(e) provides that the listing and trading of a new 
derivative securities product by a self-regulatory organization 
(``SRO'') shall not be deemed a proposed rule change, pursuant to 
paragraph (c)(1) of Rule 19b-4, if the Commission has approved, 
pursuant to Section 19(b) of the Act, the SRO's trading rules, 
procedures, and listing standards for the product class that would 
include the new derivatives securities product, and the SRO has a 
surveillance program for the product class.\6\
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    \5\ See 17 CFR 240.19b-4(e)(1).
    \6\ When relying on Rule 19b-4(e), the SRO must submit Form 19b-
4(e) to the Commission within five business days after the SRO 
begins trading the new derivative securities products. See 
Securities Exchange Act Release No. 40761 (December 8, 1998), 63 FR 
70952 (December 22, 1998).
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Index-Linked Securities

    Index-Linked Securities are designed for investors who desire to 
participate in a specific market segment by providing exposure to one 
or more identifiable underlying securities, commodities, currencies, 
derivative instruments, or market indexes of the foregoing (the 
``Underlying Index'' or ``Underlying Indexes''). Index-Linked 
Securities are the non-convertible debt of an issuer that have a term 
of at least one year, but not greater than thirty years, and are tied 
to the performance of the Underlying Index. Index-Linked Securities may 
or may not make interest payments based on dividends or other cash 
distributions paid on the securities comprising the Underlying Index or 
Indexes to the holder during their term. Despite the fact that Index-
Linked Securities are linked to an Underlying Index, each will trade as 
a single, exchange-listed security.
    The proposed generic listing standards will not be applicable to 
Index-Linked Securities with respect to which the payment at maturity 
is based on a multiple of the negative performance of an Underlying 
Index or Indexes. An Index-Linked Security may or may not provide 
``principal protection,'' i.e., a minimum guaranteed amount to be 
repaid.\7\ In addition, Index-Linked Securities do not give the holder 
any right to receive a portfolio component, dividend payments, or any 
other ownership right or interest in the portfolio or underlying 
components comprising the Underlying Index. Pursuant to proposed 
Section 703.22 of the Manual, the current or composite value of the 
Underlying Index will be widely disseminated at least every 15 seconds 
during the trading day.
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    \7\ Some Index-Linked Securities may provide for ``contingent'' 
protection of the principal amount, whereby the principal protection 
may disappear if the Underlying Index at any point in time during 
the life of such security reaches a certain predetermined level.
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Proposed General Listing Criteria for Index-Linked Securities

    The Exchange will apply the following requirements to all issuers 
of Index-Linked Securities:
    <bullet> If the issuer is a NYSE-listed company, the entity must be 
a company in good standing (i.e., meets NYSE's applicable continued 
listing criteria); if the issuer is an affiliate of a NYSE-listed 
company, the NYSE-listed company must be a company in good standing; if 
not listed, the issuer must meet the size and earnings requirements of 
Sections 102.01-102.03 or Sections 103.01-103.05 of the Manual. 
Sovereign issuers will be evaluated on a case-by-case basis.
    <bullet> The issuer will be expected to have a minimum tangible net 
worth \8\ of $250,000,000. In the alternative, the issuer will be 
expected: (i) To have a minimum tangible net worth of $150,000,000 and 
(ii) not to issue Index-Linked Securities, the original issue price of 
which, combined with all the issuer's other Index-Linked Securities 
listed on a national securities exchange, exceeds 25% of the issuer's 
tangible net worth at the time of issuance.\9\
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    \8\ ``Tangible net worth'' is defined as total assets, less 
intangible assets and total liabilities. Intangibles include non-
material benefits such as goodwill, patents, copyrights, and 
trademarks.
    \9\ If the Index-Linked Securities are fully and unconditionally 
guaranteed by an affiliate of the issuer, the Exchange will rely on 
such affiliate's tangible net worth for purposes of these 
requirements and will include in its calculation all Index-Linked 
Securities that are fully and unconditionally guaranteed by such 
affiliate.
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    <bullet> The issuer must be in compliance with Rule 10A-3 under the 
Act.\10\
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    \10\ See 17 CFR 240.10A-3 (setting forth the listing standards 
relating to audit committees).
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    In addition, the Exchange will apply the following requirements to 
each issue of Index-Linked Securities:
    <bullet> The issue must have a minimum public distribution of at 
least 1 million units and a minimum of 400 holders, except if traded on 
the NYSE Bonds system and the applicable NYSE Bonds listing and trading 
standards are satisfied; \11\
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    \11\ See NYSE Rule 86 (establishing rules and standards with 
respect to the Exchange's electronic system, known as ``NYSE 
Bonds,'' for receiving, processing, executing, and reporting bids, 
offers, and executions in bonds). In addition, this requirement will 
not be applicable if the issue provides for the redemption of Index-
Linked Securities at the option of the holders on at least a weekly 
basis. See Notice, supra note 3, 72 FR at 18713 (describing the 
purpose of weekly redemption rights of Index-Linked Securities and 
the rationale behind this exception to the minimum holder 
requirement).
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    <bullet> The issue must have a principal amount/aggregate market 
value of not less than $4 million;
    <bullet> The issue must have a term of at least one year, but not 
greater than thirty years;
    <bullet> The issue must be the non-convertible debt of the issuer; 
and
    <bullet> The issue must not base its payment at maturity on a 
multiple of the negative performance of an Underlying Index or Indexes, 
although the payment at maturity may or may not provide for a multiple 
of the positive performance of an Underlying Index or Indexes.

Listing Standards for Equity Index-Linked Securities

    Equity Index-Linked Securities would be subject to the criteria in 
proposed Section 703.22(B)(I) of the Manual for initial and continued 
listing. For an Underlying Index to be appropriate for the initial 
listing of an Equity Index-Linked Security, such Underlying Index must 
comprise at least ten component securities of different issuers. The 
Underlying Index must also either: (i) Be approved for the trading of 
options or other derivative securities by the Commission under Section 
19(b)(2) of the Act \12\ and rules thereunder, and the conditions set 
forth in the Commission's approval order, including comprehensive 
surveillance sharing

[[Page 25826]]

agreements for non-U.S. stocks, continue to be satisfied, or (ii) 
satisfy certain eligibility standards, rebalancing obligations, and 
empirical requirements based on market value, trading volume, and 
dollar weight percentages.\13\ In particular, all component securities 
comprising the Underlying Index for Equity Index-Linked Securities must 
either be: (A) securities (other than foreign country securities and 
American Depository Receipts (``ADRs''), that are (1) issued by an Act 
reporting company which is listed on a national securities exchange and 
(2) NMS stocks, as defined in Rule 600 of Regulation NMS,\14\ or (B) 
foreign country securities or ADRs, provided that foreign country 
securities or foreign country securities underlying ADRs having their 
primary trading market outside the United States on foreign trading 
markets that are not members of the Intermarket Surveillance Group 
(``ISG'') or parties to comprehensive surveillance sharing agreements 
with the Exchange will not, in the aggregate, represent more than 20% 
of the dollar weight of the Underlying Index.
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    \12\ 15 U.S.C. 78s(b)(2).
    \13\ See Notice, supra note 3, 72 FR at 18713-18714 (providing, 
among others, detailed eligibility requirements of the component 
securities comprising the Underlying Index based on minimum market 
value, trading volume, and certain dollar weight percentages).
    \14\ See 17 CFR 242.600(b)(47).
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    In connection with an Equity Index-Linked Security, the Exchange 
would commence delisting or removal proceedings if any of the standards 
set forth in the initial eligibility criteria are not continuously 
maintained \15\ or an Underlying Index fails to satisfy the maintenance 
standards or conditions for such Underlying Index or Indexes as set 
forth by the Commission in its order under Section 19(b)(2) of the Act 
\16\ approving the Underlying Index for the trading of options or other 
derivatives. The Exchange would also commence delisting or removal 
proceedings of an Equity Index-Linked Security if: (1) The aggregate 
market value or the principal amount of the Equity Index-Linked 
Securities publicly held is less than $400,000; (2) the value of the 
Underlying Index or composite value of the Underlying Indexes is no 
longer calculated and widely disseminated on at least a 15-second basis 
during the time the Equity Index-Linked Securities trade on the 
Exchange; or (3) such other event occurs or condition exists which, in 
the opinion of the Exchange, makes further dealings on the Exchange 
inadvisable.
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    \15\ Proposed Section 703.22 of the Manual provides for certain 
exceptions to the continued listing criteria of Equity Index-Linked 
Securities based on certain numerical requirements and percentages 
with respect to the component securities comprising the Underlying 
Index. See Notice, supra note 3, 72 FR at 18714.
    \16\ 15 U.S.C. 78s(b)(2).
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Listing Standards for Commodity-Linked and Currency-Linked Securities

    Commodity-Linked and Currency-Linked Securities would be subject to 
the criteria in proposed Sections 703.22(B)(II) and 703.22(B)(III) of 
the Manual, respectively, for initial and continued listing. Each issue 
of Commodity-Linked or Currency-Linked Securities must meet either of 
the following initial listing standards:
    <bullet> The Commodity Reference Asset \17\ or Currency Reference 
Asset,\18\ as the case may be, to which the corresponding security is 
linked shall have been reviewed and approved for the trading of 
Commodity Trust Shares (in the case of Commodity-Linked Securities) or 
Currency Trust Shares (in the case of Currency-Linked Securities), 
options, or other derivatives by the Commission under Section 19(b)(2) 
of the Act \19\ and rules thereunder, and the conditions set forth in 
the Commission's approval order, including with respect to 
comprehensive surveillance sharing agreements, continue to be 
satisfied; or
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    \17\ Commodity Reference Asset is defined as one or more 
physical commodities or commodity futures, options, or other 
commodity derivatives, Commodity Trust Shares (as defined in NYSE 
Rule 1300B), or a basket or index of any of the foregoing.
    \18\ Currency Reference Asset is defined as one or more 
currencies, or options, currency futures, or other currency 
derivatives, Currency Trust Shares (as defined in NYSE Rule 1300A), 
or a basket or index of any of the foregoing.
    \19\ 15 U.S.C. 78s(b)(2).
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    <bullet> The pricing information for each component of a Commodity 
Reference Asset or Currency Reference Asset, as the case may be, must 
be derived from certain required sources.\20\
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    \20\ In the case of a Commodity Reference Asset, the pricing 
information for each component thereof must be derived from a market 
which is an ISG member or affiliate or with which the Exchange has a 
comprehensive surveillance sharing agreement. In the case of a 
Currency Reference Asset, the pricing information for each component 
thereof must be either (1) the generally accepted spot price for the 
currency exchange rate in question or (2) derived from a market 
which (a) is an ISG member or affiliate or with which the Exchange 
has a comprehensive surveillance sharing agreement and (b) is the 
pricing source for components of a Currency Reference Asset that has 
previously been approved by the Commission.
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    With respect to each of the Commodity-Linked and Currency-Linked 
Securities, the value of the Commodity Reference Asset or Currency 
Reference Asset, as the case may be, must be calculated and widely 
disseminated on at least a 15-second basis during the time the 
corresponding Commodity-Linked or Currency-Linked Securities trade on 
the Exchange. In addition, if the Commodity-Linked or Currency-Linked 
Securities are periodically redeemable, the indicative value of the 
subject Commodity-Linked or Currency-Linked Securities, as the case may 
be, must be calculated and widely disseminated by one or more major 
market data vendors on at least a 15-second basis during the time such 
securities trade on the Exchange.
    The Exchange would commence delisting or removal proceedings if any 
of the initial listing criteria described above for each of the 
Commodity-Linked or Currency-Linked Securities, as applicable, is not 
continuously maintained. Notwithstanding the foregoing, an issue of 
Commodity-Linked or Currency-Linked Securities would not be delisted 
for a failure to have in place comprehensive surveillance sharing 
agreements if the Commodity Reference Asset or Currency Reference 
Asset, as the case may be, has at least 10 components, and the Exchange 
has comprehensive surveillance sharing agreements with respect to at 
least 90% of the dollar weight of such Commodity Reference Asset or 
Currency Reference Asset. The Exchange would also commence delisting or 
removal proceedings if: (1) The aggregate market value or the principal 
amount of the Commodity-Linked or Currency-Linked Securities publicly 
held is less than $400,000; (2) the value of the Commodity Reference 
Asset or Currency Reference Asset, as the case may be, is no longer 
calculated or available and a new corresponding Commodity or Currency 
Reference Asset is substituted, unless the new corresponding Commodity 
or Currency Reference Asset meets the requirements of proposed Section 
703.22; or (3) such other event occurs or condition exists which, in 
the opinion of the Exchange, makes further dealings on the Exchange 
inadvisable.

Exchange Rules Applicable to Index-Linked Securities

    Index-Linked Securities traded on the Exchange's equity trading 
floor will be subject to all Exchange rules governing the trading of 
equity securities. The Exchange's equity margin rules and the 
Exchange's regular trading hours (9:30 a.m. to 4 p.m. Eastern Time) 
will apply to transactions in Index-Linked Securities. However, Index-
Linked Securities traded on the NYSE Bonds system will be subject to 
the rules applicable to such securities traded on that system.

Information Memorandum

    The Exchange represents that it will prepare and distribute, if 
appropriate,

[[Page 25827]]

an Information Memorandum that describes the product to each member 
organization highlighting the particular structure and corresponding 
risks of an Index-Linked Security. In particular, the Memorandum will 
set forth the Exchange's suitability rule that sets forth certain 
requirements for member organizations recommending a transaction in 
Index-Linked Securities. In addition, the Information Memorandum will 
note that all of the Exchange's equity trading rules will be applicable 
to trading in the Index-Linked Securities, except in the case of Index-
Linked Securities traded on the NYSE Bonds system, in which case the 
Information Memorandum will note that the Index-Linked Securities will 
be subject to the trading rules applicable to securities trading on 
such system. The Memorandum will also reference the member requirements 
to deliver a prospectus to each investor purchasing newly issued Index-
Linked Securities prior to or concurrently with the confirmation of a 
transaction.

Surveillance

    The Exchange represents that it will closely monitor activity in 
Index-Linked Securities to identify and deter any potential improper 
trading activity in such securities. Additionally, the Exchange states 
that its surveillance procedures are adequate to properly monitor the 
trading of Index-Linked Securities. Specifically, the Exchange will 
rely on its existing surveillance procedures governing equities, 
options, and exchange-traded funds. The Exchange represents that it has 
developed procedures to closely monitor activity in Index-Linked 
Securities and the Underlying Indexes and their components to identify 
and deter potential improper trading activity. To the extent 
applicable, the Exchange will be able to obtain trading and beneficial 
holder information from the primary trading markets for the components 
of the Underlying Indexes in relation to Index-Linked Securities, 
either pursuant to bilateral information sharing agreements with those 
markets or because those markets are full or affiliate members of ISG.

Firewall Procedures

    For Index-Linked Securities where the Underlying Index is 
maintained by a broker-dealer, the broker-dealer will be required to 
erect a ``firewall'' around the personnel responsible for the 
maintenance of the Underlying Index or who have access to information 
concerning changes and adjustments to the Underlying Index, and the 
Underlying Index will be calculated by a third party who is not a 
broker-dealer. Any advisory committee, supervisory board, or similar 
entity that advises an Index Licensor or Administrator (each as defined 
in NYSE Rule 1100, Supplementary Material .10) or that makes decisions 
regarding the Underlying Index or portfolio composition, methodology, 
and related matters would be required to implement and maintain, or be 
subject to, procedures designed to prevent the use and dissemination of 
material, non-public information regarding the applicable Underlying 
Index or portfolio.\21\
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    \21\ The Exchange states that NYSE Rules 1300B(b) and Rule 1301B 
provide for certain conflict-of-interest restrictions on specialist 
firms transacting in components of a Commodity Reference Asset, or 
any derivative instrument thereon, with respect to any issue of 
Commodity-Linked Securities. Similarly, a proposed rule change to 
NYSE Rules 1300A and 1301A seeks to impose similar restrictions on 
specialist firms for any issue of Currency-Linked Securities. See 
Securities Exchange Act Release No. 55222 (February 1, 2007), 72 FR 
6021 (February 8, 2007) (SR-NYSE-2006-68).
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Trading Halts

    In the case of Commodity-Linked or Currency-Linked Securities, if 
the indicative value or the Commodity Reference Asset value or Currency 
Reference Asset value, as the case may be, applicable to a 
corresponding series of such securities is not being disseminated as 
required, or, in the case of Equity Index-Linked Securities, if the 
value of the Underlying Index is not being disseminated as required, 
the Exchange may halt trading during the day on which such interruption 
first occurs. If such interruption persists past the trading day in 
which it occurred, the Exchange will halt trading no later than the 
beginning of the trading day following the interruption.

III. Discussion and Commission's Findings

    After careful consideration, the Commission finds that the proposed 
rule change, as amended, is consistent with the requirements of the Act 
and the rules and regulations thereunder applicable to a national 
securities exchange.\22\ In particular, the Commission finds that the 
proposed rule change is consistent with the requirements of Section 
6(b)(5) of the Act,\23\ which requires, among other things, that the 
Exchange's rules be designed to 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 mechanism of a free and open market and a national 
market system and, in general, to protect investors and the public 
interest.
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    \22\ In approving this proposed rule change, the Commission 
notes that it has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
    \23\ 23 15 U.S.C. 78f(b)(5).
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A. Generic Listing Standards for Index-Linked Securities

    To list and trade Index-Linked Securities, the Exchange currently 
must file a proposed rule change with the Commission pursuant to 
Section 19(b)(1) of the Act \24\ and Rule 19b-4 thereunder.\25\ 
However, Rule 19b-4(e) provides that the listing and trading of a new 
derivative securities product by a SRO will not be deemed a proposed 
rule change pursuant to Rule 19b-4(c)(1) if the Commission has 
approved, pursuant to Section 19(b) of the Act, the SRO's trading 
rules, procedures, and listing standards for the product class that 
would include the new derivative securities product, and the SRO has a 
surveillance program for the product class. The Exchange's proposed 
rules for the listing and trading of Index-Linked Securities pursuant 
to Rule 19b-4(e) fulfill these requirements.
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    \24\ 15 U.S.C. 78s(b)(1).
    \25\ 25 17 CFR 240.19b-4.
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    The Exchange's ability to rely on Rule 19b-4(e) to list and trade 
Index-Linked Securities that meet the requirements of proposed Section 
703.22 of the Manual should reduce the time frame for bringing these 
securities to the market and thereby reduce the burdens on issuers and 
other market participants, while also promoting competition and making 
Index-Linked Securities available to investors more quickly.
    The Commission has previously approved generic listing standards 
pursuant to Rule 19b-4(e) for Index-Linked Securities based on indexes 
that consist of domestic, and to a certain extent, foreign, equity 
securities.\26\ The Commission has also previously approved the listing 
and trading on the Exchange of debt securities linked to the 
performance of a variety of commodities

[[Page 25828]]

and commodity indexes \27\ and derivative products based on 
currencies.\28\ In approving these securities for Exchange trading, the 
Commission considered applicable Exchange rules that govern their 
trading. The Commission believes that generic listing standards for 
Index-Linked Securities should fulfill the intended objective of Rule 
19b-4(e) and allow Index-Linked Securities that satisfy the proposed 
generic listing standards to commence trading without the need for 
public comment and Commission approval.\29\
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    \26\ See, e.g., Securities Exchange Act Release No. 54167 (July 
18, 2006), 71 FR 42145 (July 25, 2006) (SR-NASDAQ-2006-002) 
(approving Rule 4420(m) of the NASDAQ Stock Market LLC); Securities 
Exchange Act Release No. 52204 (August 3, 2005), 70 FR 46559 (August 
10, 2005) (SR-PCX-2005-63) (approving generic listing standards for 
index-linked securities for the Pacific Exchange, Inc., n/k/a NYSE 
Arca, Inc.); and Securities Exchange Act Release No. 51563 (April 
15, 2005), 70 FR 21257 (April 25, 2005) (SR-Amex-2005-001) 
(approving Section 107(D) of the American Stock Exchange LLC Company 
Guide).
    \27\ See, e.g., Securities Exchange Release No. 55548 (March 28, 
2007), 72 FR 16392 (April 4, 2007) (SR-NYSE-2006-71) (approving a 
proposal to list and trade notes linked to the performance of sub-
indices of the Dow Jones-AIG Commodity Index); Securities Exchange 
Release No. 54731 (November 9, 2006), 71 FR 66814 (November 16, 
2006) (SR-NYSE-2006-54) (approving the listing and trading of two 
series of commodity-linked securities); Securities Exchange Release 
No. 54177 (July 19, 2006), 71 FR 42700 (July 27, 2006) (SR-NYSE-
2006-19) (approving the listing and trading of index-linked notes 
linked to the performance of the Goldman Sachs Crude Oil Total 
Return Index); Securities Exchange Release No. 53849 (May 22, 2006), 
71 FR 30706 (May 30, 2006) (SR-NYSE-2006-20) (approving the listing 
and trading of index-linked securities linked to the performance of 
the GSCI Total Return Index); and Securities Exchange Release No. 
53876 (May 25, 2006), 71 FR 32158 (June 2, 2006) (SR-NYSE-2006-16) 
(approving the listing and trading of index-linked securities linked 
to the performance of the Dow Jones-AIG Commodity Index Total 
Return).
    \28\ See, e.g., Securities Exchange Act Release No. 55268 
(February 9, 2007), 72 FR 7793 (February 20, 2007) (SR-NYSE-2007-03) 
(approving the listing and trading of Currency Trust Shares relating 
to the Japanese Yen); Securities Exchange Act Release No. 54020 
(June 20, 2006), 71 FR 36579 (June 27, 2006) (SR-NYSE-2006-35) 
(approving the listing and trading of six Currency Trust Shares); 
and Securities Exchange Act Release No. 52843 (November 28, 2005), 
70 FR 72486 (December 5, 2005) (SR-NYSE-2005-65) (approving the 
listing and trading of Euro Shares).
    \29\ The Commission notes that the failure of a particular 
product or index to comply with the proposed generic listing 
standards under Rule 19b-4(e), however, would not preclude the 
Exchange from submitting a separate filing pursuant to Section 
19(b)(2), requesting Commission approval to list and trade a 
particular index-linked product.
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B. Listing and Trading Index-Linked Securities

    Taken together, the Commission finds that the NYSE proposal 
contains adequate rules and procedures to govern the listing and 
trading of Index-Linked Securities listed pursuant to Rule 19b-4(e) on 
the Exchange. All Index-Linked Security products listed under the 
proposed generic standards will be subject to the full panoply of NYSE 
rules and procedures that currently govern the trading of equity 
securities on the Exchange.
    As set forth more fully above, NYSE has proposed size, earnings, 
and minimum tangible net worth requirements for each Index-Linked 
Security issuer, as well as minimum distribution and holder, principal 
amount/market value, and minimum term thresholds for each issuance of 
Index-Linked Securities. The Exchange's proposed listing criteria 
include minimum market capitalization, monthly trading volume, and 
relative weighting requirements for each Equity Index-Linked Security 
and the components underlying each such security. For Commodity-Linked 
and Currency-Linked Securities, the assets (or their derivatives) to 
which they are linked must either have been reviewed and approved for 
trading by the Commission or their pricing information must be derived 
from certain required sources.\30\ These requirements are designed to 
ensure that the trading markets for the Underlying Index components are 
adequately capitalized and sufficiently liquid, and that, in the case 
of Equity Index-Linked Securities, no one component dominates the 
Underlying Index. The Commission believes that these requirements 
should minimize the potential for manipulation.
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    \30\ See supra note 20 and accompanying text.
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    The Commission also finds that, in the case of Commodity-Linked and 
Currency-Linked Securities with at least 10 components, the requirement 
that at least 90% of the dollar weight of the corresponding Commodity 
Reference Asset or Currency Reference Asset, as the case may be, must 
have comprehensive surveillance sharing agreements with the Exchange 
should permit the Exchange to identify potential trading and other 
violations of its rules. In the case of Equity Index-Linked Securities, 
each component security (other than foreign country securities and 
ADRs) must be issued by a reporting company under the Act, listed on a 
national securities exchange, and be an ``NMS stock,'' as such term is 
defined in Rule 600 of Regulation NMS.\31\ The Commission believes that 
such a requirement will contribute to the transparency of the 
Underlying Index. Alternatively, such component securities may also be 
foreign country securities, including foreign country securities 
underlying ADRs, so long as the foreign country securities having their 
primary trading market on foreign markets that are not ISG members or 
parties to comprehensive surveillance agreements with the Exchange do 
not, in the aggregate, represent more than 20 percent of the dollar 
weight of the Underlying Index. The Commission also believes that, with 
respect to Equity Index-Linked Securities, the requirement that at 
least 90 percent of the component securities, by dollar weight, and 80 
percent of the total number of component securities, be eligible 
individually for options trading should prevent an Index-Linked 
Security from being a vehicle for trading options on a security not 
otherwise options eligible. The Commission also notes that, by 
requiring pricing information for the relevant Underlying Index or 
Indexes to be readily available, the proposed listing standards of 
Section 703.22 of the Manual should help ensure a fair and orderly 
market for Index-Linked Securities listed and traded pursuant to Rule 
19b-4(e).
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    \31\ 17 CFR 240.600(b)(47).
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    The Exchange has also developed delisting criteria that will permit 
it to suspend trading of an Index-Linked Security in circumstances that 
make further dealings in the product inadvisable. The Commission 
believes that the delisting criteria should help ensure that a minimum 
level of liquidity exists for each Index-Linked Security to allow for 
the maintenance of fair and orderly markets. Also, in the event that 
the value of the Underlying Index or, in the case of Commodity-Linked 
and Currency-Linked Securities that are periodically redeemable, the 
indicative value, is no longer calculated and widely disseminated on at 
least a 15-second basis, the Exchange may halt trading during the day 
on which the interruption first occurs; however, if the interruption 
persists past the trading day on which it occurred, the Exchange will 
halt trading no later than the beginning of the trading day following 
the interruption and will commence delisting proceedings.

C. Surveillance

    The Commission notes that any Index-Linked Securities approved for 
listing and trading would be subject to the Exchange's existing 
surveillance procedures governing equities, options, and exchange-
traded funds, as well as procedures the Exchange represents it has 
developed to closely monitor activity in Index-Linked Securities and 
the Underlying Indexes and their components. The Exchange has 
represented that its surveillance procedures are adequate to properly 
monitor the trading of Index-Linked Securities listed pursuant to these 
proposed generic listing standards. In addition, the Commission notes 
that the Exchange has represented that it will be able to obtain 
trading and beneficial holder information from the primary trading 
markets for the components of the Underlying Indexes in relation to 
Index-Linked Securities, either pursuant

[[Page 25829]]

to bilateral information sharing agreements with those markets or 
because those markets are full members or affiliate members of the ISG. 
In particular, the Exchange has represented that it will implement 
adequate comprehensive surveillance sharing agreements for non-U.S. 
components, as applicable.

D. Information Memorandum

    The Exchange has represented that it will distribute, as 
appropriate, an Information Memorandum to members describing the 
product, the structure of the product, and the corresponding risks of 
the Index-Linked Security. In addition, the Information Memorandum will 
set forth the Exchange's suitability requirements with respect to 
recommendations in transactions in Index-Linked Securities to customers 
and the prospectus delivery requirements. The Memorandum will also 
identify and describe the Exchange's trading rules governing the Index-
Linked Securities.

E. Firewall Procedures

    The Exchange has further represented that, if the Underlying Index 
is maintained by a broker-dealer, such broker-dealer will establish a 
``firewall'' around personnel responsible for the maintenance of the 
Underlying Index. As an added measure, a third-party who is not a 
broker-dealer will calculate the Underlying Index. In addition, the 
Exchange has stated that any person, committee, board, or similar 
entity that advises the Index Licensor or Administrator (each as 
defined in NYSE Rule 1100, Supplementary Material .10) or that makes 
decisions regarding the composition and methodology of the Underlying 
Index, will be subject to policies and procedures designed to prevent 
the use and dissemination of material, non-public information. With 
respect to trading on NYSE, the Exchange has stated that, with respect 
to any issue of Index-Linked Securities, specialists will be restricted 
from making markets in and trading components of the Underlying 
Securities or any derivative instruments thereof.\32\
---------------------------------------------------------------------------

    \32\ See supra note 21.
---------------------------------------------------------------------------

F. Acceleration

    The Commission finds good cause for approving the proposed rule 
change, as modified by Amendments No. 1, 2, and 3 thereto, before the 
30th day after the date of publication of notice of filing thereof in 
the Federal Register. The Exchange requested accelerated approval of 
the proposal to facilitate the prompt listing and trading of Index-
Linked Securities based on indexes or portfolios meeting the specified 
criteria of proposed Section 703.22 of the Manual. The Commission notes 
that the Exchange's proposed generic listing standards are based, in 
part, on previously approved listing standards for Index-Linked 
Securities based on an Underlying Index made up of equity 
securities.\33\ The Commission also notes that it has previously 
approved the listing and trading of derivative products based on 
commodities and currencies.\34\ The Commission believes that 
accelerated approval of the proposed rule change should expedite the 
listing and trading of additional Index-Linked Securities, subject to 
the standards discussed herein, to the benefit of the investing public. 
Therefore, the Commission finds good cause, consistent with Section 
19(b)(2) of the Act,\35\ to approve the proposed rule change on an 
accelerated basis.
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    \33\ See supra note 26.
    \34\ See supra notes 27-28.
    \35\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether Amendment No. 3 
is consistent with the Act. Comments may be submitted by any of the 
following methods:

Electronic Comments

    <bullet> Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an e-mail to <a href="/cdn-cgi/l/email-protection#afdddac3ca82ccc0c2c2cac1dbdcefdccacc81c8c0d9"><span class="__cf_email__" data-cfemail="e496918881c9878b8989818a9097a4978187ca838b92">[email protected]</span></a>. Please include 
File Number SR-NYSE-2007-27 on the subject line.

Paper Comments

    <bullet> Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, Station Place, 100 F 
Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2007-27. 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 Exchange. All comments received will be posted without 
change; the Commission does not edit personal identifying information 
from submissions. You should submit only information that you wish to 
make available publicly. All submissions should refer to File Number 
SR-NYSE-2007-27 and should be submitted on or before May 29, 2007.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\36\ that the proposed rule change (SR-NYSE-2007-27), as modified 
by Amendments No. 1, 2, and 3, is hereby approved on an accelerated 
basis.
---------------------------------------------------------------------------

    \36\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\37\
---------------------------------------------------------------------------

    \37\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-8600 Filed 5-4-07; 8:45 am]
BILLING CODE 8010-01-P


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