[Federal Register Volume 61, Number 45 (Wednesday, March 6, 1996)] [Notices] [Pages 8998-9000] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-5153] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-36904; File No. SR-NYSE-96-01] Self-Regulatory Organizations; Notice of Filing of Proposed Rule Change by the New York Stock Exchange, Inc. Relating to Amendment of Exchange Rule 460.10 February 28, 1996. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act''),\1\ notice is hereby given that on January 5, 1996, the New York Stock Exchange, Inc. (``NYSE'' or ``Exchange'') filed with the Securities and Exchange Commission (``Commission'') the proposed rule change, and on February 26, 1996, filed Amendment No. 1 to the proposed rule change,\2\ as described in Items I, II, and III below, which Items have been prepared by the self-regulatory organization. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. \1\ 15 U.S.C. Sec. 78s(b)(1). \2\ See Letter from Donald Siemer, Director, Market Surveillance, NYSE to Glen Barrentine, Team Leader, Division of Market Regulation, SEC, dated February 23, 1996. --------------------------------------------------------------------------- I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The proposed rule change consists of amendments to Exchange Rule 460.10 to modify certain prohibitions on the ownership by specialists of securities in which they are registered (``specialty securities'') and to modify the prohibition on business transactions specialists may have with the issuers of specialty securities. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange is proposing to amend Rule 460.10 to modify certain prohibitions on the ownership of specialty securities and business transactions specialists may have with the issuers of specialty securities. a. Ownership Restrictions NYSE Rule 460.10 prohibits a specialist \3\ from acquiring more than 10% of the outstanding shares of any equity security in which the specialist is registered. If a specialist acquires 5% or more of an equity issue in which he or she is registered, notice is required to be given to Market Surveillance, and the specialist may be directed to reduce the position below that level. \3\ By its terms, Rule 460.10 apply to the specialist, his or her member organization or any other member, allied member or approved person in such member organization or officer or employee thereof, individually or in the aggregate. --------------------------------------------------------------------------- The restrictions on beneficial ownership codified in the rule are intended to ensure that specialists do not enter into a control relationship with an issuer in whose securities the specialist is registered, such that the specialist's status as a significant shareholder may create conflicts of interest with respect to the specialist's affirmative and negative obligations to maintain a fair and orderly market in the security. The language of the rule refers specifically to ``any equity security'' in which the specialist is registered, although a specialist may be registered in a particular security where a position in excess of the 5% and 10% parameters would not give rise to the control relationship/potential conflict of interest issue noted above. For example, a specialist registered in both a warrant and the underlying common stock could convert a 10% position in the warrant tinto the common stock, but the resulting position in the common stock would not approach the 10% control relationship threshold. Other examples could be found in convertible securities, or American Depository Receipts or Global Depository Receipts, where conversion of the security would result in a small position in relation to the overall number of shares outstanding in the common stock. The proposed amendment would delete the 10% threshold for such convertible [[Page 8999]] securities, provided that, upon conversion, the position in the underlying common stock does not exceed 10% of the issue.\4\ \4\ The proposed rule does not change the requirement that if a specialist acquires 5% or more of an equity issue in which he or she is registered, he or she must give notice to market surveillance. --------------------------------------------------------------------------- Another example of a security in which 10% ownership would not present a control issue is presented by certain investment company units (the ``units''). In File No. SR-NYSE-95-23,\5\ the Exchange described certain entities organized as open-end management investment companies, which would hold securities comprising, or otherwise based on or representing an investment in, an index or portfolio of securities that represent the equity markets of a country. Each unit represents ownership of a portion of a portfolio of securities corresponding to an underlying ``country index,'' as determined by a consortium of investment concerns and the Institute of Actuaries. Specialists may be required to enter into transactions in these securities to effect creation or redemption of the units, and these transactions may result in an ownership of greater than 10% of an issue of units. Pursuant to changes to Rule 460.10 that have been proposed in File No. SR-NYSE-95-23,\6\ the specialists' activities in these transactions, however, would be subject to facilitation of their market-making responsibilities. In addition and as described more fully below,\7\ Rule 460.10, as proposed to be amended hereby, would allow the specialist to engage in such transactions only according to the same terms and conditions as every other investor. The Exchange believes that given the open-ended nature of these entities in that securities will be issued on a continuous basis, the issue of control by a specialist would not be relevant. The proposed amendment would delete the 10% threshold for certain investment company units, provided that, the redemption of such units would not result in a position, directly or indirectly, in any equity security in which the specialist is registered exceeding the 10% threshold.\8\ \5\ See Securities Exchange Act Release No. 36032 (July 28, 1995), 60 FR 40403 (Aug. 8, 1995) (File No. SR-NYSE-95-23). \6\ In Release No. 34-36032, supra, note 5, the Exchange proposed, among other matters, to amend Rule 460.10 to provide that, notwithstanding the prohibition of Rule 460.10 on specialist engaging in any business transaction with any company in whose stock the specialists is registered, specialists registered in a security issued by an investment company may purchase and redeem the listed security, or securities that can be subdivided or converted into the listed security, from the issuer as appropriate to facilitate the maintenance of a fair and orderly market in the subject security. \7\ See part II. A. 1. b. below. \8\ For purposes of Rule 460.10, on investment company unit refers to a security that represents an interest in a registered investment company that could be organized as a unit investment trust, an open-end management investment company, or a similar entity, all as more completely described in proposed Section 703.16 of the Exchange's Listed Company Manual, which is proposed to be amended in Release No. 34-36032, supra, note 5. --------------------------------------------------------------------------- The proposed amendment would also exempt from the 10% threshold, with Exchange permission, a specialist registered in a security where the corporate control relationship issue is absent, such as a foreign currency warrant, which trades in relationship to the value of that underlying currency, or an index warrant, which trades in relationship to the value of that underlying index. With respect to these securities, however, the specialist would not be permitted to acquire a position of more than 25% of the issue. In these situations, the Exchange believes that the specialist should be permitted, to the extent consistent with the specialist's market making responsibilities, to exceed the 10% parameter in Rule 460.10 without being required to liquidate its position in the security. b. Business Transactions Rule 460.10 also prohibits a specialist, his or her member organization or any other member, allied member, approved person in such member organization or officer or employee from engaging in any business transaction with any company in whose stock the specialist is registered.\9\ This prohibition is designed to prevent a potential conflict of interest with the specialist's market making obligations and any status he or she might attain through business dealings with the issuer. This prohibition, however, may be read to cover any type of business dealing between a specialist and an issuer, including one where the service or good is routinely available to the public and confers no special status to the recipient beyond that of a consumer. The Exchange proposes to amend the rule to permit the receipt of such routine business services by a specialist or other party listed in the rule. For example, a specialist organization may wish to contract for commercial insurance services from one of its specialty stock companies. The amended rule would permit such a transaction, as long as the type of service is generally available to other business entities. \9\ Under certain circumstances, NYSE Rule 98 affords exemptive relief to approved persons of a specialist organization from restrictions found in various NYSE rules, including certain provisions of NYSE Rule 460. See Securities Exchange Act Release No. 36043 (Aug. 1, 1995), 60 FR 40218 (August 7, 1995) (Order approving File No. NYSE-95-21). --------------------------------------------------------------------------- 2. Statutory Basis The proposed rule change is consistent with Section 6(b)(5) of the Act in that it is designed to prevent fraudulent and manipulative acts and practices and to perfect the mechanism of a free and open market.\10\ \10\ 15 U.S.C. Sec. 78f(b)(5). --------------------------------------------------------------------------- The basis under the Act for this proposed rule change is the requirement under Section 6(b)(8) that an Exchange have rules that do not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.\11\ The Exchange does not believe that market makers in derivative securities in other market centers are subject to restrictions such as those contained in Rule 460.10. Thus, the proposed rule change is consistent with these objectives in removing a barrier to competition without compromising investor protection or the public interest. \11\ 15 U.S.C. Sec. 78f(b)(8). --------------------------------------------------------------------------- B. Self-Regulatory Organization's Statement on Burden on Competition The New York Stock Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received from Members, Participants, or Others No written comments were either solicited or received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the 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 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. [[Page 9000]] Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. Sec. 552, will be available for inspection and copying at the Commission's Public Reference Section, 450 Fifth Street, NW., Washington, DC 20549. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to File No. SR-NYSE-96-01 and should be submitted by March 27, 1996. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. Margaret H. McFarland, Deputy Secretary. [FR Doc. 96-5153 Filed 3-5-96; 8:45 am] BILLING CODE 8010-01-M