[Federal Register: September 17, 2003 (Volume 68, Number 180)]
[Notices]
[Page 54508-54512]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17se03-147]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-48484; File No. SR-Amex-2003-72]
Self-Regulatory Organizations; Notice of Filing and Order
Accelerating Approval of Proposed Rule Change by the American Stock
Exchange LLC Relating to Trust Certificates Linked to a Basket of
Investment Grade Fixed Income Securities
September 11, 2003.
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 July 29, 2003, the American Stock Exchange LLC
[[Page 54509]]
(``Amex'' or ``Exchange'') filed with the Securities and Exchange
Commission (``SEC'' or ``Commission'') the proposed rule change as
described in Items I and II 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 and is
approving the proposal on an accelerated basis.
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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 under Section 107A of the
Amex Company Guide (``Company Guide''), trust certificates linked to a
basket of investment grade fixed income debt instruments.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Amex included statements
concerning the purpose of, and basis for, the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item III below. The Amex has prepared summaries, set forth in sections
A, B, and C below, of the most significant aspects of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change
1. Purpose
Under Section 107A of the Company Guide, the Exchange may approve
for listing and trading securities which cannot be readily categorized
under the listing criteria for common and preferred stocks, bonds,
debentures, or warrants.\3\ The Amex proposes to list for trading under
Section 107A of the Company Guide, asset-backed securities (the ``ABS
Securities'') representing ownership interests in the ``Long-Term
Certificate Trust 2003-()'' (the ``Trust''),\4\ a special
purpose entity to be formed by Structured Obligations Corporation
(``SOC''),\5\ and the trustee of the Trust pursuant to a trust
agreement, which will be entered into on the date that the ABS
Securities are issued. The assets of the Trust will consist primarily
of a basket or portfolio of up to five investment-grade fixed-income
securities (the ``Underlying Corporate Bonds'') and United States
Department of Treasury STRIPS or securities issued by the United States
Department of the Treasury (the ``Treasury Securities''). In the
aggregate, the component securities of the basket or portfolio will be
referred to as the ``Underlying Securities.''
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\3\ See Securities Exchange Act Release No. 27753 (March 1,
1990), 55 FR 8626 (March 8, 1990) (order approving File No. SR-Amex-
89-29).
\4\ The trust name will be completed with sequential numbering.
See e-mail from Jeffrey P. Burns, Assistant General Counsel, Amex,
to Florence Harmon, Senior Special Counsel, Division of Market
Regulation, Commission, dated September 5, 2003.
\5\ Structured Obligations Corporation is a wholly-owned special
purpose entity of J.P. Morgan Securities Holdings Inc. and the
registrant under the Form S-3 Registration Statement (No. 333-70730)
under which the securities will be issued.
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The ABS Securities will conform to the initial listing guidelines
under Section 107A \6\ and continued listing guidelines under Sections
1001-1003\7\ of the Company Guide. At the time of issuance, the ABS
Securities will receive an investment grade rating from a nationally
recognized securities rating organization (an ``NRSRO''). The issuance
of the ABS Securities will be a repackaging of the Underlying Corporate
Bonds together with the addition of Treasury Securities, with the
obligation of the Trust to make distributions to holders of the ABS
Securities depending on the amount of distributions received by the
Trust on the Underlying Securities. However, due to the pass-through
and passive nature of the ABS Securities, the Exchange intends to rely
on the assets and stockholder equity of the issuers of the Underlying
Corporate Bonds, rather than the Trust to meet the requirements in
Section 107A of the Company Guide. The corporate issuers of the
Underlying Corporate Bonds will meet or exceed the requirements of
Section 107A of the Company Guide. In addition, the Exchange for
purposes of including Treasury Securities, will rely on the fact that
the issuer is the U.S. Government rather than the asset and stockholder
tests found in Section 107A.
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\6\ The initial listing standards for the ABS Securities
require: (1) A minimum public distribution of one million units; (2)
a minimum of 400 shareholders; (3) a market value of at least $4
million; and (4) a term of at least one year. However, if traded in
thousand dollar denominations, then there is no minimum holder
requirement. In addition, the listing guidelines provide that the
issuer have assets in excess of $100 million, stockholder's equity
of at least $10 million, and pre-tax income of at least $750,000 in
the last fiscal year or in two of the three prior fiscal years. In
the case of an issuer which is unable to satisfy the earning
criteria stated in Section 101 of the Company Guide, the Exchange
will require the issuer to have the following: (1) Assets in excess
of $200 million and stockholders' equity of at least $10 million; or
(2) assets in excess of $100 million and stockholders' equity of at
least $20 million.
\7\ The Exchange's continued listing guidelines are set forth in
Sections 1001 through 1003 of Part 10 to the Exchange's Company
Guide. Section 1002(b) of the Company Guide states that the Exchange
will consider removing from listing any security where, in the
opinion of the Exchange, it appears that the extent of public
distribution or aggregate market value has become so reduced to make
further dealings on the Exchange inadvisable. With respect to
continued listing guidelines for distribution of the ABS Securities,
the Exchange will rely on the guidelines for bonds in Section
1003(b)(iv). Section 1003(b)(iv)(A) provides that the Exchange will
normally consider suspending dealings in, or removing from the list,
a security if the aggregate market value or the principal amount of
bonds publicly held is less than $400,000.
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The basket of Underlying Securities will not be managed and will
generally remain static over the term of the ABS Securities. Each of
the Underlying Securities provide for the payment of interest on a
semi-annual, quarterly or monthly basis, but the ABS Securities will
provide for semi-annual or quarterly distributions of interest. The
Treasury Securities will not make periodic payments of interest.\8\ The
Exchange represents that, to alleviate any cash flow timing issue, the
Trust may enter into an interest distribution agreement (the ``Interest
Distribution Agreement'') that will be described in any prospectus
supplement related to the ABS Securities (the ``Prospectus
Supplement'').\9\ Whether an Interest Distribution Agreement is
required will depend upon the timing of the interest coupon payments of
the Underlying Securities.
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\8\ A stripped fixed income security, such as certain Treasury
Securities, is a security that is separated into its periodic
interest payments and principal repayment. The separate strips are
then sold individually as zero coupon securities providing investors
with a wide choice of alternative maturities.
\9\ Pursuant to any Interest Distribution Agreement that may be
entered into by the Trust, shortfalls in the amounts available to
pay monthly or quarterly interest to holders of the ABS Securities
due to the Underlying Securities paying interest semi-annually will
be made to the Trust by JP Morgan Chase Bank or one of its
affiliates and will be repaid out of future cash flow received by
the Trust from the Underlying Securities.
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Principal distributions on the ABS Securities are expected to be
made on dates that correspond to the maturity dates of the Underlying
Securities (i.e., the Underlying Corporate Bonds and Treasury
Securities). However, some of the Underlying Securities may have
redemption provisions and in the event of an early redemption or other
liquidation (e.g., upon an event of default) of the Underlying
Securities, the proceeds from such redemption (including any make-whole
premium associated with such redemption) or liquidation will be
distributed pro rata to the holders of the ABS Securities. Each
Underlying Corporate Bond will be issued by a corporate issuer and
purchased in the secondary market. In the case of Treasury Securities,
the
[[Page 54510]]
Trust will either purchase the securities directly from primary dealers
or in the secondary market, which consists of primary dealers, non-
primary dealers, customers, financial institutions, non-financial
institutions and individuals.
Holders of the ABS Securities generally will receive interest on
the face value in an amount to be determined at the time of issuance of
the ABS Securities and disclosed to investors. The rate of interest
payments will be based upon prevailing interest rates at the time of
issuance and made to the extent that coupon payments are received from
the Underlying Securities. Distributions of interest will be made
monthly or quarterly. Investors will also be entitled to be repaid the
principal of their ABS Securities from the proceeds of the principal
payments on the Underlying Securities.\10\ The payout or return to
investors on the ABS Securities will not be leveraged.
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\10\ The Underlying Securities may drop out of the basket upon
maturity or upon payment default or acceleration of the maturity
date for any default other than payment default. See Prospectus
Supplement for a schedule of the distribution of interest and of the
principal upon maturity of each Underlying Security and for a
description of payment default and acceleration of the maturity
date.
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The ABS Securities will mature on the latest maturity date of the
Underlying Securities. Holders of the ABS Securities will have no
direct ability to exercise any of the rights of a holder of an
Underlying Corporate Bond, however, holders of the ABS Securities as a
group will have the right to direct the Trust in its exercise of its
rights as holder of the Underlying Securities.
The proposed ABS Securities are substantially similar to several
Select Term Notes currently listed and traded on the Exchange,\11\ with
the only difference being the number and identity of the Underlying
Securities in the basket of investment grade fixed-income securities.
In addition, the instant proposal may or may not require the use of an
Interest Distribution Agreement to ``smooth'' out any shortfall in
interest payable to investors not yet received by the Trust from the
Underlying Securities. Accordingly, the Exchange proposes to provide
for the listing and trading of the ABS Securities where the Underlying
Securities meet the Exchange's Bond and Debenture Listing Standards set
forth in Section 104 of the Amex Company Guide. The Exchange represents
that all of the Underlying Securities in the proposed basket will meet
or exceed these listing standards.
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\11\ See Securities Exchange Act Release Nos. 47730 (April 24,
2003), 68 FR 23340 (May 1, 2003) (File No. Amex-2003-25); 47884 (May
16, 2003), 68 FR 28305 (May 23, 2003) (File No. Amex-2003-37). See
also Securities Exchange Act Release Nos. 46835 (November 14, 2002),
67 FR 70271 (November 21, 2002) (File No. Amex-2002-70); 46923
(November 27, 2002), 67 FR 72247 (December 4, 2002) (File No. Amex-
2002-92).
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The Exchange's Bond and Debenture Listing Standards in Section 104
of the Company Guide provide for the listing of individual bond or
debenture issuances provided the issue has an aggregate market value or
principal amount of at least $5 million and any of: (1) The issuer of
the debt security has equity securities listed on the Exchange (or on
the New York Stock Exchange (``NYSE'') or on the Nasdaq National Market
(``Nasdaq'')); (2) an issuer of equity securities listed on the
Exchange (or on the NYSE or on the Nasdaq) directly or indirectly owns
a majority interest in, or is under common control with, the issuer of
the debt security; (3) an issuer of equity securities listed on the
Exchange (or on the NYSE or on the Nasdaq) has guaranteed the debt
security; (4) an NRSRO has assigned a current rating to the debt
security no lower than a Standard & Poor's Corporation (``S&P'') ``B''
rating or equivalent rating by another NRSRO; or (5) or if no NRSRO has
assigned a rating to the issue, an NRSRO has currently assigned (i) an
investment grade rating to an immediately senior issue or (ii) a rating
that is no lower than a S&P ``B'' rating or an equivalent rating by
another NRSRO to a pari passu or junior issue.
In addition to the Exchange's Bond and Debenture Listing Standards,
an Underlying Security must also be of investment grade quality as
rated by a NRSRO and at least 75% of the underlying basket is required
to contain Underlying Securities from issuances of $100 million or
more. The maturity of each Underlying Security is expected to match the
payment of principal of the ABS Securities with the maturity date of
the ABS Securities being the latest maturity date of the Underlying
Securities. Amortization of the ABS Securities will be based on (1) the
respective maturities of the Underlying Securities, (2) principal
payout amounts reflecting the pro-rata principal amount of maturing
Underlying Securities and (3) any early redemption or liquidation of
the Underlying Securities.
Investors will be able to obtain the prices for the Underlying
Securities through Bloomberg L.P. or other market vendors, including
the broker-dealer through whom the investor purchased the ABS
Securities. In addition, The Bond Market Association provides links to
price and other bond information sources on its investor Web site at
http://www.investinginbonds.com. Transaction prices and volume data for
the most actively traded bonds on the exchanges are also published
daily in newspapers and on a variety of financial Web sites. The
National Association of Securities Dealers' Trade Reporting and
Compliance Engine (``TRACE'') will also help investors obtain
transaction information for most corporate debt securities, such as
investment grade corporate bonds.\12\ For a fee, investors can have
access to intra-day bellwether quotes.\13\
Price and transaction information for Treasury Securities may also
be obtained at http://publicdebt.treas.gov and http://www.govpx.com
proprietary systems such as Bloomberg, Reuters and Dow Jones Telerate.
Valuation prices \14\ and analytical data may be obtained through
vendors such as Bridge Information Systems, Muller Data, Capital
Management Sciences, Interactive Data Corporation and Barra.
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\12\ See Securities Exchange Act Release No. 43873 (January 23,
2001), 66 FR 8131 (January 29, 2001). Investors are able to access
TRACE information at http://www.nasdbondinfo.com/.
\13\ Corporate prices are available at 20-minute intervals from
Capital Management Services at http://www.bondvu.com/.
\14\ ``Valuation Prices'' refer to an estimated price that has
been determined based on an analytical evaluation of a bond in
relation to similar bonds that have traded. Valuation prices are
based on bond characteristics, market performance, changes in the
level of interest rates, market expectations and other factors that
influence a bond's value.
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The ABS Securities will be listed in $1,000 denominations with the
Exchange's existing debt floor trading rules applying to trading.
First, pursuant to Amex Rule 411, the Exchange will impose a duty of
due diligence on its members and member firms to learn the essential
facts relating to every customer prior to trading the ABS
Securities.\15\ Second, the ABS Securities will be subject to the debt
margin rules of the Exchange.\16\ Third, the Exchange will, prior to
trading the ABS Securities, distribute a circular to the membership
providing guidance with regard to member firm compliance
responsibilities (including suitability recommendations) when handling
transactions in the ABS Securities and highlighting the special risks
and characteristics of the ABS Securities. With respect to suitability
recommendations and risks, the Exchange will require members, member
organizations and employees
[[Page 54511]]
thereof recommending a transaction in the ABS Securities: (1) To
determine that such transaction is suitable for the customer, and (2)
to have a reasonable basis for believing that the customer can evaluate
the special characteristics of, and is able to bear the financial risks
of such transaction.
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\15\ Amex Rule 411 requires that every member, member firm or
member corporation use due diligence to learn the essential facts,
relative to every customer and to every order or account accepted.
\16\ See Amex Rule 462.
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The Exchange represents that its surveillance procedures are
adequate to properly monitor the trading of the ABS Securities.
Specifically, the Amex will rely on its existing surveillance
procedures governing debt, which have been deemed adequate under the
Act. In addition, the Exchange also has a general policy which
prohibits the distribution of material, non-public information by its
employees.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6 of the Act \17\ in general and furthers the objectives
of Section 6(b)(5)\18\ in particular in that it is designed to prevent
fraudulent and manipulative acts and practices, promote just and
equitable principles of trade, remove impediments to and perfect the
mechanisms of a free and open market and a national market system, and,
in general, protect investors and the public interest.
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\17\ 15 U.S.C. 78f.
\18\ 15 U.S.C. 78f(b)(5).
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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.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
The Exchange did not receive any written comments on the proposed
rule change.
III. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Persons making written submissions
should file six copies thereof with the Secretary, Securities and
Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for inspection and copying in the
Commission's Public Reference Room. Copies of such filing will also be
available for inspection and copying at the principal office of the
Amex. All submissions should refer to the File No. SR-Amex-2003-72 and
should be submitted by October 8, 2003.
IV. Commission's Findings and Order Granting Accelerated Approval of
Proposed Rule Change
After careful consideration, the Commission finds that the proposed
rule change is consistent with the requirements of the Act and the
rules and regulations thereunder applicable to a national securities
exchange, and, in particular, with the requirements of Section 6(b)(5)
of the Act.\19\ The Commission finds that this proposal is similar to
several approved certificates linked to a portfolio of investment grade
debt currently listed and traded on the Amex.\20\ Accordingly, the
Commission finds that the listing and trading of the ABS Securities is
consistent with the Act and will promote just and equitable principles
of trade, foster cooperation and coordination with persons engaged in
regulating, clearing, settling, processing information with respect to,
and facilitating transactions in securities, and, in general, protect
investors and the public interest consistent with Section 6(b)(5) of
the Act.\21\
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\19\ Id.
\20\ See Securities Exchange Act Release Nos. 48312 (August 8,
2003), 68 FR 48970 (August 15, 2003) (File No. SR-Amex-2003-69);
47730 (April 24, 2003), 68 FR 23340 (May 1, 2003) (File No. SR-Amex-
2003-25) (approving the listing and trading of trust certificates
linked to a basket of investment grade fixed income securities);
44342 (May 23, 2001), 66 FR 29613 (May 31, 2001) (accelerated
approval order for the listing and trading of Select Ten Notes)
(File No. SR-Amex-2001-28).
\21\ 15 U.S.C. 78f(b)(5). In approving this rule, the Commission
notes that it has considered the proposed rule's impact on
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
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As described more fully above, the ABS securities are asset-backed
securities and represent a repackaging of the Underlying Corporate
Bonds together with the addition of the Treasury Securities, subject to
certain distribution of interest obligations of the Trust. The ABS
Securities are not leveraged instruments. The ABS Securities are debt
instruments whose price will still be derived and based upon the value
of the Underlying Securities. Investors are guaranteed at least the
principal amount that they paid for the Underlying Securities. In
addition, each of the Underlying Corporate Bonds may provide for
payment of interest on a semi-annual, quarterly or monthly basis, while
the ABS securities themselves will provide for semi-annual or quarterly
distribution of interest, pursuant to any Interest Distribution
Agreement. The Treasury Securities will not make periodic payments of
interest.\22\ In addition, the ABS securities will mature on the latest
maturity date of the Underlying Securities.\23\ However, due to the
pass-through and passive nature of the ABS Securities, the level of
risk involved in the purchase or sale of the ABS Securities is similar
to the risk involved in the purchase or sale of traditional common
stock.
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\22\ See supra note 8.
\23\ The Commission notes, however, that the Exchange has
represented that the Underlying Securities may drop out of the
basket upon maturity or upon payment default or acceleration of the
maturity date for any default other than payment default. See
Prospectus for a schedule of the distribution of interest and of the
principal upon maturity of each Underlying Security and for a
description of payment default and acceleration of the maturity
date.
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The Commission notes that the Exchange's rules and procedures that
address the special concerns attendant to the trading of hybrid
securities will be applicable to the ABS Securities. In particular, by
imposing the hybrid listing standards, suitability, disclosure, and
compliance requirements noted above, the Commission believes the
Exchange has addressed adequately the potential problems that could
arise from the hybrid nature of the ABS Securities. Moreover, the
Commission notes that the Exchange will distribute a circular to its
membership calling attention to the specific risks associated with the
ABS Securities.
The Commission notes that the ABS Securities are dependent upon the
individual credit of the issuers of the Underlying Securities. To some
extent this credit risk is minimized by the Exchange's listing
standards in Section 107A of the Company Guide which provide that only
issuers satisfying asset and equity requirements may issue securities
such as the ABS Securities. In addition, the Exchange's ``Other
Securities'' listing standards further provide that there is no minimum
holder requirement if the securities are traded in thousand dollar
denominations.\24\ The Commission notes that the Exchange has
represented that the ABS Securities will be listed in $1000
denominations with its existing debt floor trading rules applying to
the
[[Page 54512]]
trading. In any event, financial information regarding the issuers of
the Underlying Securities will be publicly available.\25\
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\24\ See Company Guide Section 107A.
\25\ The ABS Securities will be registered under Section 12 of
the Act.
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Due to the pass-through and passive nature of the ABS Securities,
the Commission does not object to the Exchange's reliance on the assets
and stockholder equity of the Underlying Securities rather than the
Trust to meet the requirement in Section 107A of the Company Guide. The
Commission notes that the distribution and principal amount/aggregate
market value requirements found in Sections 107A(b) and (c),
respectively, will otherwise be met by the Trust as issuer of the ABS
Securities. Thus, the ABS Securities will conform to the initial
listing guidelines under Section 107A and continued listing guidelines
under Sections 1001-1003 of the Company Guide, except for the assets
and stockholder equity characteristics of the Trust. At the time of
issuance, the Commission also notes that the ABS Securities will
receive an investment grade rating from an NRSRO.
The Commission also believes that the listing and trading of the
ABS Securities should not unduly impact the market for the Underlying
Securities or raise manipulative concerns. As discussed more fully
above, the Exchange represents that, in addition to requiring the
issuers of the Underlying Securities to meet the Exchange's Section
107A listing requirements (in the case of Treasury securities, the
Exchange will rely on the fact that the issuer is the U.S. Government
rather than the asset and stockholder tests found in Section 107A), the
Underlying Securities will be required to meet or exceed the Exchange's
Bond and Debenture Listing Standards pursuant to Section 104 of the
Amex's Company Guide, which among other things, requires that
underlying debt instrument receive at least an investment grade rating
of ``B'' or equivalent from an NRSRO. Furthermore, at least 75% of the
basket is required to contain Underlying Securities from issuances of
$100 million or more. The Amex also represents that the basket of
Underlying Securities will not be managed and will remain static over
the term of the ABS securities. In addition, the Amex's surveillance
procedures will serve to deter as well as detect any potential
manipulation.
The Commission notes that the investors may obtain price
information on the Underlying Securities through market venders such
Bloomberg, L.P., or though Web sites such as http://www.investinbonds.com
(for Underlying Corporate Bonds) and http://publicdebt.treas.gov and http://www.govpx.com (for Treasury
Securities).
The Commission finds good cause for approving the proposed rule
change prior to the thirtieth day after the date of publication of
notice thereof in the Federal Register. The Amex has requested
accelerated approval because this product is similar to several other
instruments currently listed and traded on the Amex.\26\ The Commission
believes that the ABS Securities will provide investors with an
additional investment choice and that accelerated approval of the
proposal will allow investors to begin trading the ABS Securities
promptly. Additionally, the ABS Securities will be listed pursuant to
Amex's existing hybrid security listing standards as described above.
Based on the above, the Commission believes that there is good cause,
consistent with Sections 6(b)(5) and 19(b)(2) of the Act \27\ to
approve the proposal, on an accelerated basis.
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\26\ See supra note 20.
\27\ 15 U.S.C. 78f(b)(5) and 78s(b)(2).
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V. Conclusion
It Is Therefore Ordered, pursuant to Section 19(b)(2) of the
Act,\28\ that the proposed rule change (SR-Amex-2003-72) is hereby
approved on an accelerated basis.
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\28\ 15 U.S.C. 78o-3(b)(6) and 78s(b)(2).
For the Commission by the Division of Market Regulation,
pursuant to delegated authority.\29\
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\29\ 17 CFR200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 03-23738 Filed 9-16-03; 8:45 am]
BILLING CODE 8010-01-P