[Federal Register Volume 78, Number 126 (Monday, July 1, 2013)]
[Notices]
[Pages 39399-39407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15627]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-69847; File No. SR-NYSEArca-2013-61]
Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
of Proposed Rule Change Proposing to List and Trade Units of the First
Trust Gold Trust Pursuant to NYSE Arca Equities Rule 8.201
June 25, 2013.
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 June 11, 2013, NYSE Arca, Inc. (``Exchange'' or ``NYSE Arca'')
filed with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I, II, and III below, which
Items have been prepared by the Exchange. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange proposes to list and trade Units of the First Trust
Gold Trust pursuant to NYSE Arca Equities Rule 8.201. The text of the
proposed rule change is available on the Exchange's Web site at
www.nyse.com, at the principal office of the Exchange, and at the
Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts 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 Exchange proposes to list and trade Units of the Trust under
NYSE Arca Equities Rule 8.201.\3\ Under NYSE Arca Equities Rule 8.201,
the Exchange may propose to list and/or trade pursuant to unlisted
trading privileges (``UTP'') ``Commodity-Based Trust Shares.'' \4\ The
Securities and Exchange Commission (``Commission'') has previously
approved listing on the Exchange under NYSE Arca Equities Rule 8.201
shares of the APMEX Physical-1 oz. Gold Redeemable Trust \5\, ETFS Gold
Trust \6\, as well as the Sprott Physical Gold Trust.\7\ In addition,
the Commission has approved listing on the Exchange of streetTRACKS
Gold Trust and iShares COMEX Gold Trust.\8\ Prior to their listing on
the Exchange, the Commission approved listing of the streetTRACKS Gold
Trust on the New York Stock Exchange (``NYSE'') and listing of iShares
COMEX Gold Trust on the American Stock Exchange LLC.\9\
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\3\ See the draft registration statement for the Trust on Form
F-1, filed with the Commission on March 19, 2013 (File No. 377-
00130) (the ``Registration Statement''). The descriptions of the
Trust, the Units and the gold market contained herein are based, in
part, on the Registration Statement.
\4\ Commodity-Based Trust Shares are securities issued by a
trust that represent investors' discrete identifiable and undivided
beneficial ownership interest in the commodities deposited into the
trust.
\5\ Securities Exchange Act Release 66930 (May 7, 2012), 77 FR
27817 (May 11, 2012) (SR-NYSEArca-2012-18).
\6\ Securities Exchange Act Release No. 59895 (May 8, 2009), 74
FR 22993 (May 15, 2009) (SR-NYSEArca-2009-40).
\7\ Securities Exchange Act Release No. 61496 (February 4,
2010), 75 FR 6758 (February 10, 2010) (SR-NYSEArca-2009-113).
\8\ See Securities Exchange Act Release Nos. 56224 (August 8,
2007), 72 FR 45850 (August 15, 2007) (SR-NYSEArca-2007-76)
(approving listing on the Exchange of the streetTRACKS Gold Trust);
56041 (July 11, 2007), 72 FR 39114 (July 17, 2007) (SR-NYSEArca-
2007-43) (order approving listing on the Exchange of iShares COMEX
Gold Trust).
\9\ See Securities Exchange Act Release Nos. 50603 (October 28,
2004), 69 FR 64614 (November 5, 2004) (SR-NYSE-2004-22) (order
approving listing of streetTRACKS Gold Trust on NYSE); 51058
(January 19, 2005), 70 FR 3749 (January 26, 2005) (SR-Amex-2004-38)
(order approving listing of iShares COMEX Gold Trust on the American
Stock Exchange LLC).
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FT Portfolios Canada Co. will be the trustee and manager of the
Trust (``Manager''),\10\ and The Bank of Nova Scotia Trust Company (the
``Trust Custodian'') will be the custodian of the Trust's assets.\11\
Equity Financial Trust
[[Page 39400]]
Company (the ``Transfer Agent'') will process redemption orders and
transfers for the Trust. CIBC Mellon Trust Company (the ``Valuation
Agent'') will calculate the value of the net assets of the Trust on a
daily basis and reconcile all purchases and redemptions of Units to
determine the net asset value per Unit (``NAV''). The Trust was created
to invest and hold substantially all of its assets in physical gold
bullion. The Trust will seek to provide a secure, convenient and
exchange-traded investment alternative for investors interested in
holding physical gold bullion without the inconvenience that is typical
of a direct investment in physical gold bullion. The Trust intends to
invest primarily in long-term holdings of unencumbered, fully
allocated, physical gold bullion and will not speculate with regard to
short-term changes in gold prices. Each outstanding Unit will represent
an equal, fractional, undivided ownership interest in the Trust. The
Trust seeks to allow investors to invest in physical gold through Units
of the Trust and either redeem their Units for physical gold bullion,
or cash, less applicable expenses as described below.
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\10\ The Manager is a company subsisting under the laws of Nova
Scotia. The Manager is responsible for the day-to-day activities and
administration of the Trust. The Manager manages, or causes to be
managed, the Trust pursuant to the declaration of trust. Additional
details regarding the Manager are set forth in the Registration
Statement.
\11\ The Trust Custodian intends to appoint The Bank of Nova
Scotia as gold sub-custodian (the ``Gold Sub-Custodian''). Physical
gold bullion held directly by the Gold Sub-Custodian will be stored
on an allocated and segregated basis in the vault facilities of
ScotiaMacatta, a division of the Gold Sub-Custodian, or additional
gold sub-sub-custodians appointed by it in Canada, the United States
or London, England. The Gold Sub-Custodian intends to appoint Brinks
Global Services USA and/or Via Mat International as gold sub-sub-
custodians for physical gold bullion in the Trust's name (each such
gold sub-sub-custodians, and the Gold Sub-Custodian, a ``Gold
Custodian'', and together with the Trust Custodian, the
``Custodians''). Each Gold Custodian will be responsible for and
will bear all risk of the loss of, and damage to, the Trust's
physical gold bullion that is in the Gold Custodian's custody,
subject to certain limitations based on events beyond the Gold
Custodian's control.
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According to the Registration Statement, substantially all of the
net assets of the Trust (at least 90%), will be invested in allocated
kilogram bars of physical gold bullion with a fineness of 0.995 or
higher that are manufactured by refiners recognized by the London
Bullion Market Association (``LBMA'') for the production of ``good
delivery bars'' (``Kilogram Bars''). The Trust will not invest in gold
certificates or other financial instruments that represent gold or that
may be exchanged for gold.
The Trust intends to list the Units on the Toronto Stock Exchange
(``TSX''). According to the Registration Statement, the Trust is
neither an investment company registered under the Investment Company
Act of 1940 \12\ nor a commodity pool for purposes of the Commodity
Exchange Act.\13\
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\12\ 15 U.S.C. 80a-1.
\13\ 7 U.S.C. 1.
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The Exchange represents that the Units satisfy the requirements of
NYSE Arca Equities Rule 8.201 and thereby qualify for listing on the
Exchange.\14\
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\14\ With respect to application of Rule 10A-3 (17 CFR 240.10A-
3) under the Act, the Trust relies on the exemption contained in
Rule 10A-3(c)(7).
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Operation of the Physical Gold Bullion Market
According to the Registration Statement, the physical gold bullion
market is influenced by several factors, including:
(a) Global gold supply and demand, which is influenced by such
factors as: (i) Forward selling by gold producers; (ii) purchases made
by gold producers to unwind gold hedge positions; (iii) central bank
purchases and sales; (iv) production and cost levels in major gold-
producing countries; and (v) new production projects;
(b) investors' expectations for future inflation rates;
(c) exchange rate volatility of the U.S. dollar, the principal
currency in which the price of gold is generally quoted;
(d) interest rate volatility;
(e) unexpected global, or regional, political or economic
incidents; and
(f) changing tax, royalty, land and mineral rights ownership and
leasing regulations in gold producing countries.
LBMA
According to the Registration Statement, the LBMA is the London-
based trade association that represents the wholesale gold and silver
bullion market in London. London is the focus of the international
Over-the-Counter (OTC) market for gold and silver, with a client base
that includes the majority of the central banks that hold gold, plus
producers, refiners, fabricators and other traders throughout the
world.
According to the Registration Statement, the ``LBMA Good Delivery
List''-- the list of acceptable refiners of gold and silver bars in the
London bullion market-- is now widely recognized as representing the de
facto standard for the quality of gold and silver bars, and applies
stringent criteria for assaying standards and bar quality that an
applicant must satisfy in order to be listed. The assaying capabilities
of refiners on the Good Delivery List are periodically checked under
the LBMA's ``Proactive Monitoring'' program.
The LBMA Good Delivery List has been developed and is maintained by
the LBMA in order to facilitate the international distribution and
acceptability on technical grounds of standard bars produced by those
refiners:
(a) Who meet the criteria for inclusion in the list; and
(b) whose bars have passed the testing procedures laid down by the
LBMA.
Standard Good Delivery bars of gold are bars of approximately 400
fine troy ounces.
Operation of the Trust
According to the Registration Statement, the Trust will not hold or
trade in commodity futures contracts regulated by the Commodity
Exchange Act, as administered by the U.S. Commodity Futures Trading
Commission (``CFTC''). Gold futures are traded on the COMEX, an
affiliate of the Chicago Mercantile Exchange, Inc., and the Tokyo
Commodity Exchange.\15\
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\15\ For additional information regarding the gold bullion
market, gold futures exchanges, and regulation of the global gold
market, see, e.g., Securities Exchange Act Release Nos. 59895 (May
8, 2009), 74 FR 22993 (May 15, 2009) (SR-NYSEArca-2009-40) (order
approving Exchange listing and trading of the ETFS Gold Trust); and
66627 (March 20, 2012), 77 FR 27817 (May 11, 2012) (SR-NYSEArca-
2012-18) (order approving Exchange listing and trading of the APMEX
Physical-1 oz. Gold Redeemable Trust).
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The Trust is subject to various ``Investment and Operating
Restrictions'', as described in the Registration Statement. The
Investment and Operating Restrictions provide that the Trust:
(a) Will invest in and hold a minimum of 90% of the total net
assets of the Trust in physical gold bullion (i.e., Kilogram Bars)
and hold no more than 10% of the total net assets of the Trust, at
the discretion of the Portfolio Advisor, in cash or any asset
readily convertible into cash (whether or not denominated in U.S.
dollars) including, but not limited to, bank accounts, certificates
of deposit, money market accounts, commercial paper, U.S. and
foreign treasury obligations and other cash equivalent instruments,
except during the 60-day period following the closing of the
offering of the Units or additional offerings or prior to the
distribution of the assets of the Trust;
(b) will store all Kilogram Bars owned by the Trust at a Gold
Custodian on a fully allocated basis, provided that the Kilogram
Bars may be stored with a custodian only if it will remain within
the chain of custody with the Gold Custodian;
(c) will not purchase, sell or hold derivatives;
(d) will not issue Units following the completion of the
offering of the Units except if the net proceeds per Unit to be
received by the Trust are not less than 100% of the most recently
calculated NAV prior to, or upon the determination of the pricing of
such issuance;
(e) will ensure that no part of the stored Kilogram Bars may be
delivered out of safekeeping by a Gold Custodian, without receipt of
an instruction from the Manager in the form specified by a Gold
Custodian indicating the purpose of the delivery and giving
direction with respect to the specific amount;
[[Page 39401]]
(f) will ensure that no director or officer of the Manager or
representative of the Trust or the Manager will be authorized to
enter into the Kilogram Bars storage vaults without being
accompanied by at least one representative of a Gold Custodian, as
applicable;
(g) will ensure that the Kilogram Bars remain unencumbered;
(h) will inspect or cause to be inspected the stored Kilogram
Bars periodically on a spot inspection basis and, together with a
representative of the Trust's auditor, physically verify the
existence of each bar annually;
(i) will not guarantee the securities or obligations of any
person other than the Manager, and then only in respect of the
activities of the Trust; and
(j) will comply with certain holding restrictions of the Income
Tax Act (Canada).
Description of the Units
According to the Registration Statement, the Trust will be
authorized to issue an unlimited number of Units. Each Unit will
represent a beneficial interest in the net assets of the Trust. Units
will be transferable and redeemable at the option of the unitholder in
accordance with the provisions set forth in the ``Declaration of
Trust''. All Units will have equal rights and privileges with respect
to all matters, including voting, receipt of distributions from the
Trust, liquidation and other events in connection with the Trust. Units
and fractions thereof will be issued only as fully paid and non-
assessable units. Units will have no preference, conversion, exchange
or pre-emptive rights. Each whole Unit will entitle the holder thereof
to a vote at meetings of unitholders.
Redemption of Units
According to the Registration Statement, subject to the terms of
the Declaration of Trust and the Manager's right to suspend redemptions
in the circumstances described below, Units may be redeemed at the
option of a unitholder in any month for Kilogram Bars or cash. All
redemptions will be determined using U.S. dollars, regardless of
whether the redeemed Units were acquired on a U.S. national securities
exchange or the TSX. Redemption requests will be processed on the last
business day of the applicable month.
Redemption for Physical Gold
According to the Registration Statement, all redemptions of Units
for Kilogram Bars will be determined using U.S. dollars. Unitholders
whose Units are redeemed for Kilogram Bars will be entitled to receive
a redemption price equal to 100% of the NAV of the redeemed Units on
the last day of the month on which the NYSE Arca is open for trading
for the month in respect of which the redemption request is processed
(the ``Monthly Redemption Date''). The NAV of Units in connection with
a redemption will be calculated by the Valuation Agent in the same
manner as the NAV of Units is calculated on an ongoing basis.
Redemption requests must be for amounts that are at least equivalent to
the value of one Kilogram Bar plus applicable expenses. Any redemption
proceeds not paid in Kilogram Bars because such proceeds are not
equivalent to the value of one Kilogram Bar will be paid in cash at a
rate equal to 100% of the NAV of the redeemed Units as of 4:00 p.m.,
Eastern Time, on the applicable Monthly Redemption Date that represents
such excess amount.
Procedures to Redeem for Physical Gold Bullion (Kilogram Bars)
A unitholder that owns a sufficient number of Units who desires to
exercise redemption privileges for Kilogram Bars must do so by
instructing his, her or its broker, who must be a direct or indirect
participant of the Canadian Depository for Securities (``CDS'') or the
Depository Trust Company (``DTC''), as applicable, to deliver to the
Transfer Agent on behalf of the unitholder a written request signed by
a unitholder in the form as the Manager may from time to time in its
sole discretion determine, which must be guaranteed by a Canadian
chartered bank, or by a bank, brokerage firm or other financial
intermediary that is a member of an approved ``Medallion Guarantee
Program'' or that the Manager on behalf of the Trust otherwise approves
(a ``Gold Redemption Notice''), of the unitholder's intention to redeem
Units for Kilogram Bars. A Gold Redemption Notice must be received by
the Transfer Agent no later than 4:00 p.m., Toronto Time, on the 15th
day of the month in which the Gold Redemption Notice will be processed
or, if such day is not a business day, then on the immediately
following day that is a business day. Any Gold Redemption Notice
received after such time will be processed on the next Monthly
Redemption Date.
Once a Gold Redemption Notice is received by the Transfer Agent,
the Transfer Agent, together with the Manager, will determine whether
such Gold Redemption Notice complies with the applicable requirements,
is for an amount of gold that is equal to at least one Kilogram Bar
plus applicable expenses, and contains delivery instructions that are
acceptable to the armored service transportation carrier, or such other
transportation provider as deemed appropriate by the logistical
coordinator. If the Transfer Agent and the Manager determine that the
Gold Redemption Notice complies with all applicable requirements, it
will provide a notice to such redeeming unitholder's broker confirming
that the Gold Redemption Notice was received and determined to be
complete.
If the Gold Redemption Notice is determined to have complied with
the applicable requirements, the Transfer Agent and the Manager will
determine as of 4:00 p.m., Toronto Time, on the Monthly Redemption Date
the amount of Kilogram Bars and the amount of cash that will be
delivered to the redeeming unitholder. Also, if the Units being
redeemed are certificated on such Monthly Redemption Date, the
redeeming unitholder's broker will deliver the certificate(s)
evidencing the redeeming Units to CDS or DTC or the Transfer Agent, as
applicable, for cancellation.
The Transfer Agent and the Manager will determine the amount of
Kilogram Bars the redeeming unitholder will receive and the amount of
cash necessary to cover the expenses associated with the redemption and
delivery that must be paid by the redeeming unitholder. Once such
determination has been made, the Transfer Agent will inform the broker
through which the unitholder has delivered its Gold Redemption Notice
of the amount of Kilogram Bars and cash that the redeeming unitholder
will receive upon the redemption of the unitholder's Units.
Based on instructions from the Manager, the Gold Custodian will
release the requisite amount of Kilogram Bars from its custody to the
armored transportation service carrier or such other transportation
provider as deemed appropriate by the logistical coordinator. As
directed by the Manager, any cash to be received by a redeeming
unitholder in connection with a redemption of Units for Kilogram Bars
will be delivered or caused to be delivered by the Manager to the
unitholder's brokerage account within 10 business days after the
applicable Monthly Redemption Date.
Transporting the Gold from a Custodian to the Redeeming Unitholder
A unitholder redeeming Units for Kilogram Bars will receive the
Kilogram Bars from a Gold Custodian. Kilogram Bars received by a
unitholder as a result of a redemption of Units will be delivered by
armored transportation service carrier or such other transportation
provider as deemed appropriate by the logistical coordinator
[[Page 39402]]
pursuant to delivery instructions provided by the unitholder to the
Manager. The armored transportation service carrier or such other
transportation provider as deemed appropriate by the logistical
coordinator will be engaged by or on behalf of the redeeming
unitholder. Such Kilogram Bars can be delivered (i) To an account
established by the unitholder at an institution located in North
America recognized as a depository for physical precious metals; (ii)
in the United States, to any physical address (subject to approval by
the armored transportation service carrier or such other transportation
provider as deemed appropriate by the logistical coordinator); (iii) in
Canada, to any business address (subject to approval by the armored
transportation service carrier); and (iv) outside of the United States
and Canada, to any address approved by the armored transportation
service carrier or such other transportation provider as deemed
appropriate by the logistical coordinator.
Costs associated with the redemption of Units and the delivery of
Kilogram Bars will be borne by the redeeming unitholder, as set forth
in the Registration Statement.
The armored transportation service carrier or such other
transportation provider as deemed appropriate by the logistical
coordinator will receive Kilogram Bars in connection with a redemption
of Units approximately 10 business days after the Monthly Redemption
Date. Once the Kilogram Bars representing the redeemed Units has been
placed with the armored transportation service carrier or such other
transportation provider as deemed appropriate by the logistical
coordinator, the Gold Custodian will no longer bear the risk of loss
of, and damage to, such Kilogram Bars. In the event of a loss after the
Kilogram Bars have been placed with the armored transportation service
carrier or such other transportation provider as deemed appropriate by
the logistical coordinator, the unitholder will not have recourse
against the Trust, the Manager, the Advisor, or Gold Custodian.
However, Kilogram Bars being delivered to a redeeming unitholder will
be insured until the client signs accepting delivery of the Kilogram
Bars.
Redemption for Cash
All redemptions for cash shall be determined using U.S. dollars.
Unitholders whose Units are redeemed for cash will be entitled to
receive a redemption price per Unit equal to 95% of the lesser of (i)
the volume-weighted average trading price of the Units traded on the
NYSE Arca or, if trading has been suspended on the NYSE Arca, the
trading price of the Units traded on the TSX, for the last five days on
which the respective exchange is open for trading for the month in
which the redemption request is processed and (ii) the NAV of the
redeemed Units as of 4:00 p.m., Toronto Time, on the Monthly Redemption
Date. Cash proceeds from the redemption of Units will be transferred to
a redeeming Unitholder approximately three business days after the
applicable Monthly Redemption Date.
Suspension of Redemptions
The Manager, on behalf of the Trust, may suspend the right or
obligation of the Trust to redeem Units (whether for Kilogram Bars and/
or cash) for the whole or any part of any period with the prior
approval of securities regulatory authorities having jurisdiction,
where required, for any period during which the Manager determines that
conditions exist which render impractical the sale of assets of the
Trust or which impair the ability for the Manager to determine the NAV
or the redemption amount of Units.
In the event of any such suspension, the Manager will issue a press
release announcing the suspension and will advise the Trustee. The
suspension may apply to all requests for redemption received prior to
the suspension, but as for which payment has not been made, as well as
to all requests received while the suspension is in effect. All
unitholders making such requests will be advised by the Manager of the
suspension and that the redemption will be effected at a price
determined on the first valuation date that the NAV per Unit is
calculated following the termination of the suspension. All such
unitholders will have, and will be advised that during such suspension
of redemptions that they have, the right to withdraw their requests for
redemption. The suspension will terminate in any event on the first
business day on which the condition giving rise to the suspension has
ceased to exist or when the Manager has determined that such condition
no longer exists, provided that no other condition under which a
suspension is authorized then exists, at which time the Manager will
issue a press release announcing the termination of the suspension.
Subject to applicable laws any declaration of suspension made by the
Manager, on behalf of the Trust, will be conclusive.
Generally, a mutual fund, such as the Trust, that is a reporting
issuer in Canada only may suspend the right of security holders to
request that the mutual fund redeem its securities without the approval
of securities regulatory authorities for the whole or any part of a
period during which normal trading is suspended on a stock exchange,
options exchange or futures exchange within or outside Canada on which
securities are listed and traded, or on which specified derivatives are
traded, if those securities or specified derivatives represent more
than 50 percent by value, or underlying market exposure, of the total
assets of the mutual fund without allowance for liabilities and if
those securities or specified derivatives are not traded on any other
exchange that represents a reasonably practical alternative for the
mutual fund. Given the intended portfolio assets of the Trust (which
will consist primarily of gold, not exchange traded securities), the
Trust likely will not avail itself of the foregoing and will need to
seek the approval of the securities regulatory authority in each
province and territory of Canada if it intends to suspend redemptions.
The securities regulatory authorities will consider whether the
proposed suspension is not contrary or prejudicial to the public
interest.
If the approval of securities regulatory authorities is required to
suspend redemptions, the Trust must apply to the Ontario Securities
Commission, the securities regulatory authority for the jurisdiction in
which the head office of the Trustee is located, for approval pursuant
to Sections 5.7(2) and 5.7(3) of National Instrument 81-102--Mutual
Funds and must concurrently file a copy of the application with the
securities regulatory authority in each of the other Canadian
jurisdictions in which the Units will be offered. The Trust may suspend
redemptions only after the application is approved by the Ontario
Securities Commission and has not been disallowed by any of the other
relevant Canadian jurisdictions.
Other Canadian securities regulatory authorities which must be
notified are as follows: British Columbia Securities Commission,
Alberta Securities Commission, Saskatchewan Securities Commission,
Manitoba Securities Commission, Autorite des marches financiers, New
Brunswick Securities Commission, Nova Scotia Securities Commission,
Securities Commission of Newfoundland and Labrador, Prince Edward
Island Securities Office, Office of the Attorney General, Northwest
Territories Securities Registry, Government of Nunavut Securities
Registry and Registrar of Securities, Government of the Yukon
Territory.
[[Page 39403]]
Suspension of Calculation of Net Asset Value Per Unit
During any period in which the right of unitholders to request a
redemption of their Units for Kilogram Bars and/or cash is suspended,
the Manager, on behalf of the Trust, will direct the Valuation Agent to
suspend the calculation of the value of the net assets of the Trust and
the NAV. During any such period of suspension, the Trust will not issue
or redeem any Units. In the event of any such suspension or termination
thereof, the Manager will issue a press release announcing the
suspension or the termination of such suspension, as the case may be.
Secondary Market Trading
The Units may trade in the secondary market on the Exchange at
prices that are lower or higher relative to their NAV. The amount of
the discount or premium in the trading price relative to the NAV may be
influenced by non-concurrent trading hours between the COMEX, which is
the U.S. exchange on which gold for physical delivery is traded and
NYSE Arca. While the Units will trade on NYSE Arca until 4:00 p.m.,
Toronto time, liquidity in the global gold market will lessen after the
close of the COMEX at 1:30 p.m., Eastern time. As a result, during this
time, trading spreads, and the resulting premium or discount to the NAV
may widen.
Termination Events
According to the Registration Statement, the Trust does not have a
fixed termination date but will be terminated and dissolved in the
event any of the following occurs:
(a) There are no outstanding Units;
(b) the Trustee resigns or is removed and no successor trustee is
appointed and approved by the Unitholders, if required;
(c) the Trustee has been declared bankrupt or insolvent or has
entered into a liquidation or winding-up, whether compulsory or
voluntary (and not merely voluntary liquidation for the purposes of
amalgamation or reconstruction);
(d) the Trustee makes a general assignment for the benefit of its
creditors or otherwise acknowledges its insolvency; or
(e) the assets of the Trustee have become subject to seizure or
confiscation by any public or governmental authority.
In addition, the Trustee may, in its discretion, terminate the
Trust, without unitholder approval, if, in the opinion of the Trustee,
the value of net assets of the Trust have been reduced such that it is
no longer economically feasible to continue the Trust and/or it would
be in the best interests of the unitholders to terminate the Trust, by
giving each holder of Units at the time at least ninety (90) days
notice.
In the event of the winding-up of the Trust, the rights of
unitholders to require redemption of any or all of their Units will be
suspended, and the Manager or, in the event of (c), (d) or (e) above,
such other person appointed by the Trustee, the unitholders of the
Trust or a court of competent jurisdiction, as the case may be, will
make appropriate arrangements for converting the investments of the
Trust into cash and the Trustee will proceed to wind-up the affairs of
the Trust in such manner as seems to it to be appropriate. The assets
of the Trust remaining after paying or providing for all obligations
and liabilities of the Trust will be distributed among the unitholders
registered as of 4:00 p.m., Toronto time, on the date on which the
Trust is terminated in accordance with the Declaration of Trust.
Distributions of net income and net taxable capital gains will, to the
extent not inconsistent with the orderly realization of the assets of
the Trust, continue to be made in accordance with the Declaration of
Trust until the Trust has been wound up. Additional information
relating to the Trust's termination is provided in the Registration
Statement.
Determining the NAV of the Trust
According to the Registration Statement, the NAV of the Trust will
be determined daily as of 4:00 p.m., Toronto time, on each business day
by the Trust's Valuation Agent. The value of the net assets of the
Trust on any such day will be equal to the aggregate fair market value
of the assets of the Trust as of such date, less an amount equal to the
fair value of the liabilities of the Trust (excluding all liabilities
represented by outstanding Units) as of such date, after processing of
all subscriptions and redemptions of Units as of such date. The
Valuation Agent will calculate the NAV per Unit by dividing the value
of the net assets of the Trust represented by the Units on that day by
the total number of Units then outstanding on such day.
Calculation of Net Asset Value
According to the Registration Statement, the Trustee shall or shall
cause the Valuation Agent of the Trust to calculate the value of the
net assets of the Trust. The value of the net assets of the Trust as of
4:00 p.m., Toronto Time, on each business day will be the amount
obtained by deducting from the aggregate fair market value of the
assets of the Trust as of such time an amount equal to the fair value
of the liabilities of the Trust (excluding all liabilities represented
by outstanding Units) as of such time.
The NAV per Unit at any time shall be the quotient obtained by
dividing the value of the net assets of the Trust at such time by the
total number of Units then outstanding and adjusting the number to the
nearest one hundredth of a cent. For the purpose of this calculation:
(a) Units subscribed for shall be deemed to be outstanding as of
the business day after the day upon which payment in full for such
Units shall have actually been received by the Manager; and
(b) Units which the Trust is required to redeem shall be deemed to
be outstanding at 4:00 p.m., Toronto Time, on the valuation date as of
which NAV is to be determined for the purpose of the redemption, and
thereafter the Units shall be deemed to be no longer outstanding and
the redemption price shall, until paid, be deemed to be a liability of
the Trust.
The NAV will be determined in accordance with the following:
(a) The assets of the Trust will be deemed to include the following
property:
(i) All Kilogram Bars owned by or contracted for the Trust;
(ii) all cash on hand or on deposit, including any interest accrued
thereon adjusted for accruals deriving from trades executed but not yet
settled;
(iii) all bills, notes and accounts receivable;
(iv) all interest accrued on any interest-bearing securities owned
by the Trust other than interest, the payment of which is in default;
(v) prepaid expenses; and
(vi) such other cash equivalent instruments, as may be held by the
Trust from time to time.
(b) The market value of the portfolio assets of the Trust will be
determined as follows:
(i) The value of Kilogram Bars will be based on the per ounce price
as indicated by the daily 3 p.m. London Fix \16\ (15:00 Greenwich Mean
Time) and, if the 3 p.m. London Fix is not available, such Kilogram
Bars will be valued at a price provided by another pricing service as
determined by the
[[Page 39404]]
Manager, in consultation with the Valuation Agent;
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\16\ Twice daily during London trading hours there is a fix
which provides reference gold prices for that day's trading. Many
long-term contracts will be priced on the basis of either the
morning (AM) or afternoon (PM) London Fix, and market participants
will usually refer to one or the other of these prices when looking
for a basis for valuations.
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(ii) the value of any cash on hand or on deposit, bills, demand
notes, accounts receivable, prepaid expenses, and interest accrued and
not yet received, will be deemed to be the full amount thereof unless
the Manager determines that any such deposit, bill, demand note,
account receivable, prepaid expense or interest is not worth the full
amount thereof, in which event the value thereof will be deemed to be
such value as the Manager determines to be the fair value thereof;
(iii) short-term investments including notes and money market
instruments will be valued at cost plus accrued interest;
(iv) the value of any security or other property for which no price
quotations are available or, in the opinion of the Manager (which may
delegate such responsibility to the Valuation Agent under the valuation
services agreement), to which the above valuation principles cannot or
should not be applied, will be the fair value thereof determined from
time to time in such manner as the Manager (or the Valuation Agent, as
the case may be) will from time to time in time provide; and
(v) the value of all assets and liabilities of the Trust will be
valued in U.S. dollars and the value of assets and liabilities of the
Trust in terms of a currency other than U.S. dollars will be converted
to U.S. dollars by applying the rate of exchange obtained from the best
available sources to the Valuation Agent as agreed upon by the Manager
including, but not limited to, the Trustee or any of its affiliates.
For the purposes of determining the fair market value of any
security or property pursuant to paragraph (b) above to which, in the
opinion of the Trust's Valuation Agent in consultation with the
Manager, the above valuation principles cannot be applied (because no
price or yield equivalent quotations are available as provided above,
or the current pricing option is not appropriate, or for any other
reason), will be the fair value as determined in such manner by the
Trust's Valuation Agent in consultation with the Manager and generally
adopted by the marketplace from time to time. For greater certainty,
fair valuing an investment comprising the property of the Trust may be
appropriate if: (i) Market quotations do not accurately reflect the
fair value of an investment; (ii) an investment's value has been
materially affected by events occurring after the close of the exchange
or market on which the investment is principally traded; (iii) a
trading halt closes an exchange or market early; or (iv) other events
result in an exchange or market delaying its normal close.
For the purposes of determining the value of Kilogram Bars, the
Manager will rely solely on weights provided to the Manager by third
parties and confirmed by the applicable Gold Custodian. The Manager or
the Trust's Valuation Agent will not be required to make any
investigation or inquiry as to the accuracy or validity of such
weights.
The Exchange will obtain a representation from the issuer of the
Units that the NAV will be calculated on each business day and will be
made available to all market participants at the same time.
Intraday Indicative Value
The Trust Web site will provide an intraday indicative value
(``IIV'') per Unit, as calculated by a third party financial data
provider during the Exchange's core trading session (9:30 a.m. to 4:00
p.m., Eastern time; hereafter ``Core Trading Session'').\17\ The IIV
will be calculated based on a price of gold derived from updated bids
and offers indicative of the spot price of gold.
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\17\ The IIV on a per Unit basis disseminated during the Core
Trading Session should not be viewed as a real-time update of the
NAV, which will be calculated once a day
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Availability of Information
The Web site for the Trust, which the Trust will launch upon the
closing of the initial public offering, will contain the following
information, on a per Unit basis, for the Trust:
(a) The midpoint of the bid-ask price at the close of trading in
relation to the NAV as of the time the NAV is calculated (``Bid/Ask
Price''), and a calculation of the premium or discount of such price
against such NAV; and
(b) data in chart format displaying the frequency distribution of
discounts and premiums of the Bid/Ask Price against the NAV, within
appropriate ranges, for each of the four previous calendar quarters.
(c) the Trust's prospectus, as well as the two most recent reports
to stockholders.
The Trust Web site also will provide the last sale price of the
Units as traded in the U.S. market, as well as a breakdown of the
holdings of the Trust, including the assets described above under
``Calculation of Net Asset Value''.
Currently, the Consolidated Tape Plan does not provide for
dissemination of the spot price of a commodity, such as gold, over the
Consolidated Tape. However, there will be disseminated over the
Consolidated Tape quotation and last sale information for the Units. In
addition, there is a considerable amount of gold price and gold market
information available on public Web sites and through professional and
subscription services. The IIV relating to the Units will be widely
disseminated by one or more major market data vendors at least every 15
seconds during the Core Trading Session.\18\
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\18\ Currently, it is the Exchange's understanding that several
major market data vendors display and/or make widely available IIVs
taken from the CTA or other data feeds.
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Investors may obtain on a 24-hour basis gold pricing information
based on the spot price for an ounce of gold from various financial
information service providers, such as Reuters and Bloomberg. Reuters
and Bloomberg provide at no charge on their Web sites delayed
information regarding the spot price of gold and last sale prices of
gold futures, as well as information about news and developments in the
gold market. Reuters and Bloomberg also offer a professional service to
subscribers for a fee that provides information on gold prices directly
from market participants. An organization named EBS provides an
electronic trading platform to institutions such as bullion banks and
dealers for the trading of spot gold, as well as a feed of live
streaming prices to Reuters and Moneyline Telerate subscribers.
Complete real-time data for gold futures and options prices traded
on the COMEX are available by subscription from Reuters and Bloomberg.
The NYMEX also provides delayed futures and options information on
current and past trading sessions and market news free of charge on its
Web site. There are a variety of other public Web sites providing
information on gold, ranging from those specializing in precious metals
to sites maintained by major newspapers, such as The Wall Street
Journal. In addition, the London AM Fix and London PM Fix are publicly
available at no charge at www.bullioninternational.com.
The Trust's daily (or as determined by the Manager in accordance
with the Trust Agreement) NAV will be posted on the Trust's Web site as
soon as practicable. The Exchange will provide on its Web site
(www.nyx.com) a link to the Trust's Web site. In addition, the Exchange
will make available over the Consolidated Tape last sale, quotation
information, trading volume, closing prices and NAV for the Units from
the previous day.
Criteria for Initial and Continued Listing
The Trust and the Units will be subject to the criteria in NYSE
Arca
[[Page 39405]]
Equities Rule 8.201(e) for initial and continued listing of the Units.
The Exchange will require a minimum of 100,000 Units to be
outstanding at the start of trading. The minimum number of Units
required to be outstanding is comparable to requirements that have been
applied to previously listed shares of the ETFS Gold Trust.\19\ The
Exchange believes that the anticipated minimum number of Units
outstanding at the start of trading is sufficient to provide adequate
market liquidity.
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\19\ See note 6, supra.
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Trading Rules
The Exchange deems the Units to be equity securities, thus
rendering trading in the Fund subject to the Exchange's existing rules
governing the trading of equity securities. Trading in the Units on the
Exchange will occur in accordance with NYSE Arca Equities Rule 7.34(a).
The Exchange has appropriate rules to facilitate transactions in the
Units during all trading sessions. As provided in NYSE Arca Equities
Rule 7.6, Commentary .03, the minimum price variation (``MPV'') for
quoting and entry of orders in equity securities traded on the NYSE
Arca Marketplace is $0.01, with the exception of securities that are
priced less than $1.00 for which the MPV for order entry is $0.0001.
With respect to trading halts, the Exchange may consider all
relevant factors in exercising its discretion to halt or suspend
trading in the Units. Trading on the Exchange in the Units may be
halted because of market conditions or for reasons that, in the view of
the Exchange, make trading in the Units inadvisable. These may include:
(1) The extent to which conditions in the underlying gold market have
caused disruptions and/or lack of trading, or (2) whether other unusual
conditions or circumstances detrimental to the maintenance of a fair
and orderly market are present. In addition, trading in Units will be
subject to trading halts caused by extraordinary market volatility
pursuant to the Exchange's ``circuit breaker'' rule.\20\ The Exchange
may halt trading of the Units on the Exchange in the event trading in
the Units is halted on TSX. The Exchange will halt trading if the
Manager, on behalf of the Trust, directs the Trust's Valuation Agent to
suspend the calculation of the value of the net assets of the Trust and
the NAV. The Exchange may halt trading during the day in which an
interruption occurs to the dissemination of the IIV, as described
above. If the interruption to the dissemination of the IIV persists
past the trading day in which it occurs, the Exchange will halt trading
no later than the beginning of the trading day following the
interruption.
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\20\ See NYSE Arca Equities Rule 7.12.
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Surveillance
The Exchange represents that trading in the Units will be subject
to the existing trading surveillances, administered by the Financial
Industry Regulatory Authority (``FINRA'') on behalf of the Exchange,
which are designed to detect violations of Exchange rules and
applicable federal securities laws.\21\ The Exchange represents that
these procedures are adequate to properly monitor Exchange trading of
the Units in all trading sessions and to deter and detect violations of
Exchange rules and applicable federal securities laws.
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\21\ FINRA surveils trading on the Exchange pursuant to a
regulatory services agreement. The Exchange is responsible for
FINRA's performance under this regulatory services agreement.
---------------------------------------------------------------------------
The surveillances referred to above generally focus on detecting
securities trading outside their normal patterns, which could be
indicative of manipulative or other violative activity. When such
situations are detected, surveillance analysis follows and
investigations are opened, where appropriate, to review the behavior of
all relevant parties for all relevant trading violations.
NYSE Arca Equities Rule 8.201 sets forth certain restrictions on
Equity Trading Permit (``ETP'') Holders acting as registered Market
Makers in the Units. Pursuant to NYSE Arca Equities Rule 8.201(g), an
ETP Holder acting as a registered Market Maker in the Units is required
to provide the Exchange and FINRA, on behalf of the Exchange with
information relating to its trading in the underlying gold, related
futures or options on futures, or any other related derivatives in a
manner prescribed by the Exchange. Commentary .04 of NYSE Arca Equities
Rule 6.3 requires an ETP Holder acting as a registered Market Maker,
and its affiliates, in the Units to establish, maintain and enforce
written policies and procedures reasonably designed to prevent the
misuse of any material nonpublic information with respect to such
products, any components of the related products, any physical asset or
commodity underlying the product, applicable currencies, underlying
indexes, related futures or options on futures, and any related
derivative instruments (including the Units).
FINRA, on behalf of the Exchange, will communicate as needed
regarding trading in the Units, gold futures contracts, and options on
gold futures with other markets that are members of the Intermarket
Surveillance Group (``ISG''), and FINRA, on behalf of the Exchange, may
obtain trading information regarding trading in the Units, gold futures
contracts, and options on gold futures contracts from such markets,
including the COMEX. In addition, the Exchange may obtain information
regarding trading in the Units, gold futures contracts, and options on
gold futures from markets that are members of ISG or with which the
Exchange has in place a comprehensive surveillance sharing
agreement.\22\ Also, pursuant to NYSE Arca Equities Rule 8.201(g), the
Exchange and FINRA are able to request and obtain information regarding
trading in the Units and the underlying gold, gold futures contracts,
options on gold futures, or any other gold derivative, through ETP
Holders acting as registered Market Makers, in connection with such ETP
Holders' proprietary or customer trades which they effect on any
relevant market.
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\22\ For a list of the current members of ISG, see
www.isgportal.org. The Investment Industry Regulatory Organization
of Canada is a member of ISG. The Chicago Mercantile Exchange
(``CME''), and the New York Mercantile Exchange (``NYMEX'') are
members of ISG, and the Exchange may obtain market surveillance
information with respect to transactions occurring on the COMEX
pursuant to the ISG memberships of CME and NYMEX.
---------------------------------------------------------------------------
In addition, the Exchange also has a general policy prohibiting the
distribution of material, non-public information by its employees.
Information Bulletin
Prior to the commencement of trading, the Exchange will inform its
ETP Holders in an Information Bulletin of the special characteristics
and risks associated with trading the Units. Specifically, the
Information Bulletin will discuss the following: (1) The procedures for
purchases and redemptions of Units; (2) NYSE Arca Equities Rule 9.2(a),
which imposes a duty of due diligence on its ETP Holders to learn the
essential facts relating to every customer prior to trading the Units;
(3) the requirement that ETP Holders deliver a prospectus to investors
purchasing newly issued Units prior to or concurrently with the
confirmation of a transaction; (4) the possibility that trading spreads
and the resulting premium or discount on the Units may widen as a
result of reduced liquidity of gold trading during the Core and Late
Trading Sessions after the close of the major world gold markets; and
(5) trading information. For
[[Page 39406]]
example, the Information Bulletin will advise ETP Holders, prior to the
commencement of trading, of the prospectus delivery requirements
applicable to the Trust. The Exchange notes that investors purchasing
Units directly from the Trust will receive a prospectus. ETP Holders
purchasing Units from the Trust for resale to investors will deliver a
prospectus to such investors.
In addition, the Information Bulletin will reference that the Trust
is subject to various fees and expenses described in the Registration
Statement. The Information Bulletin will also reference the fact that
there is no regulated source of last sale information regarding
physical gold, that the Commission has no jurisdiction over the trading
of gold as a physical commodity, and that the CFTC has regulatory
jurisdiction over the trading of gold futures contracts and options on
gold futures contracts.
The Information Bulletin will also discuss any relief, if granted,
by the Commission or the staff from any rules under the Act.
2. Statutory Basis
The basis under the Act for this proposed rule change is the
requirement under Section 6(b)(5) \23\ that an exchange have rules that
are designed to prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, to remove
impediments to, and perfect the mechanism of a free and open market
and, in general, to protect investors and the public interest.
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\23\ 15 U.S.C. 78f(b)(5).
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The Exchange believes that the proposed rule change is designed to
prevent fraudulent and manipulative acts and practices in that the
Shares will be listed and traded on the Exchange pursuant to the
initial and continued listing criteria in NYSE Arca Equities Rule
8.201. The Exchange has in place surveillance procedures that are
adequate to properly monitor trading in the Shares in all trading
sessions and to deter and detect violations of Exchange rules and
applicable federal securities laws. FINRA, on behalf of the Exchange,
will communicate as needed regarding trading in the Units, gold futures
contracts, and options on gold futures with other markets that are
members of the ISG, and FINRA, on behalf of the Exchange, may obtain
trading information regarding trading in the Units, gold futures
contracts, and options on gold futures contracts from such markets,
including the COMEX. In addition, the Exchange may obtain information
regarding trading in the Units, gold futures contracts, and options on
gold futures from markets that are members of ISG or with which the
Exchange has in place a comprehensive surveillance sharing agreement.
The proposed rule change is designed to promote just and equitable
principles of trade and to protect investors and the public interest in
that there is a considerable amount of gold price and gold market
information available on public Web sites and through professional and
subscription services. Investors may obtain on a 24-hour basis gold
pricing information based on the spot price for an ounce of gold from
various financial information service providers. Complete real-time
data for gold futures and options prices traded on the COMEX are
available by subscription from Reuters and Bloomberg. The Trust's Web
site will provide an IIV per share for the Units, as calculated by a
third party financial data provider during the Exchange's Core Trading
Session. The Trust's Web site will also provide the Trust's prospectus,
as well as the two most recent reports to stockholders. The Exchange
will provide on its Web site a link to the Trust's Web site. In
addition, the Exchange will make available over the Consolidated Tape
quotation information, trading volume, closing prices and NAV for the
Units from the previous day.
The proposed rule change is designed to perfect the mechanism of a
free and open market and, in general, to protect investors and the
public interest in that it will facilitate the listing and trading of
an additional type of exchange-traded product that will enhance
competition among market participants, to the benefit of investors and
the marketplace. As noted above, the Exchange has in place surveillance
procedures relating to trading in the Units and may obtain information
via ISG from other exchanges that are members of ISG or with which the
Exchange has entered into a comprehensive surveillance sharing
agreement. In addition, as noted above, investors will have ready
access to information regarding gold pricing and gold futures
information.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Exchange notes that the
proposed rule change will facilitate the listing and trading of an
additional exchange-traded product that holds physical gold and that
will enhance competition among market participants, to the benefit of
investors and the marketplace.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received from Members, Participants, or Others
No written comments were solicited or received with respect to the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
(A) By order approve or disapprove the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the 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 email to [email protected]. Please include
File Number SR-NYSEArca-2013-61 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEArca-2013-61. This
file number should be included on the subject line if email 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
[[Page 39407]]
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 Web site viewing and printing in the Commission's Public
Reference Room, 100 F Street, NE., Washington, DC 20549, on official
business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of
the filing also will be available for inspection and copying at NYSE's
principal office. 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-
NYSEArca-2013-61, and should be submitted on or before July 22, 2013.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\24\
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\24\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-15627 Filed 6-28-13; 8:45 am]
BILLING CODE 8011-01-P