[Federal Register: March 5, 2007 (Volume 72, Number 42)]
[Notices]
[Page 9802-9805]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05mr07-88]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-55353; File No. SR-NASDAQ-2007-011]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Order Granting Accelerated Approval of Proposed
Rule Change To Permit Trading Pursuant to Unlisted Trading Privileges
of Shares of 93 Funds of the Proshares Trust
February 26, 2007.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on February 21, 2007, The NASDAQ Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been substantially prepared by the Exchange.
This order provides notice of the proposed rule change and approves 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
Nasdaq is proposing to trade shares of the 93 funds identified
below (collectively, the ``Funds'') of the ProShares Trust (``Trust'')
pursuant to unlisted trading privileges (``UTP'').
The text of the proposed rule change is available from Nasdaq's Web
site at nasdaq.complinet.com, at Nasdaq's principal office, 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 Exchange 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 Exchange 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 proposes to trade, pursuant to UTP, the Shares of 93
Funds, which are exchange-traded funds (``ETFs''). The Commission has
approved exchange rules for the original listing and trading of the
Shares on the American Stock Exchange (``Amex''). Nasdaq is submitting
this filing because its current generic listing standards for ETFs do
not extend to ETFs with the investment objective of corresponding to a
specified multiple of the performance, or the inverse performance, of
an index that underlies each Fund (each such index is referred to below
as an ``Underlying Index''), rather than merely mirroring the
performance of the index. Systems operated by Nasdaq and its affiliates
currently trade on an over-the-counter basis (as facilities of the
NASD) those Shares that have already commenced trading on Amex; some of
the Shares were approved for listing and trading only recently, and
actual trading has not yet commenced. This filing will allow Nasdaq to
trade the Shares as an exchange.
Ultra Funds
Certain Funds seek daily investment results, before fees and
expenses, that correspond to twice (200%) the daily performance of the
Underlying Indexes (``Ultra Funds''). If such Funds meet their
objective, the net asset value (the ``NAV'') \3\ of the Shares of each
Fund should increase (on a percentage basis) approximately twice as
much as the Fund's Underlying Index when the prices of the securities
in such Index increase on a given day, and should lose approximately
twice as much when such prices decline on a given day. This filing
applies to the following Ultra Funds:
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\3\ NAV per Share of each Fund is computed by dividing the value
of the net assets of such Fund (i.e., the value of its total assets
less total liabilities) by its total number of Shares outstanding.
Expenses and fees are accrued daily and taken into account for
purposes of determining NAV.
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4 Ultra Funds listed and traded on Amex pursuant to Commission
order on May 10, 2006 \4\: (1) Ultra S&P 500, (2) Ultra Nasdaq-100, (3)
Ultra Dow 30, and (4) Ultra S&P Mid-Cap 400; and
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\4\ Securities Exchange Act Release No. 53784 (May 10, 2006), 71
FR 28721 (May 17, 2006). These Funds were subsequently approved for
UTP trading on NYSE Arca. See Securities Exchange Act Release No.
54026 (June 21, 2006), 71 FR 36850 (June 28, 2006).
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27 Ultra Funds listed and traded on Amex pursuant to Commission
order on January 17, 2007 \5\: (1) Ultra Russell 2000, (2) Ultra S&P
SmallCap 600, (3) Ultra S&P500/Citigroup Value, (4) Ultra S&P500/
Citigroup Growth, (5) Ultra S&P MidCap 400/Citigroup Value, (6) Ultra
S&P MidCap 400/Citigroup Growth, (7) Ultra S&P SmallCap 600/Citigroup
Value, (8) Ultra S&P SmallCap 600/Citigroup Growth, (9) Ultra Basic
Materials, (10) Ultra Consumer Goods, (11) Ultra Consumer Services,
(12) Ultra Financials, (13) Ultra Health Care, (14) Ultra Industrials,
(15) Ultra Oil & Gas, (16) Ultra Real Estate, (17) Ultra
Semiconductors, (18) Ultra Technology, (19) Ultra Utilities, (20) Ultra
Russell Midcap Index, (21) Ultra Russell Midcap Growth Index, (22)
Ultra Russell Midcap Value Index, (23) Ultra Russell 1000 Index, (24)
Ultra Russell 1000 Growth Index, (25) Ultra Russell 1000 Value Index,
(26) Ultra Russell 2000 Growth Index, and (27) Ultra Russell 2000 Value
Index.
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\5\ Securities Exchange Act Release No. 55117 (January 17,
2007), 72 FR 3442 (January 25, 2007). These Funds were subsequently
approved for UTP trading on NYSE Arca. See Securities Exchange Act
Release No. 55125 (January 18, 2007), 72 FR 3462 (January 25, 2007).
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Short Funds
Nasdaq also proposes to trade Shares of certain Funds that seek
daily investment results, before fees and expenses, that correspond to
the inverse or opposite of the daily performance (-100%) of the
Underlying Indexes (``Short Funds''). If such a Fund is successful in
meeting its objective, the NAV of the corresponding Shares should
increase approximately as much (on a percentage basis) as the
respective Underlying Index loses when the prices of the securities in
the Index decline on a given day, or should decrease approximately as
much as the respective Index gains when prices in the Index rise on a
given day. This filing applies to the following Short Funds:
4 Short Funds listed and traded on Amex pursuant to Commission
order on May 10, 2006 \6\: (1) Short S&P 500, (2) Short Nasdaq-100, (3)
Short Dow 30, and (4) Short S&P Mid-Cap 400; and
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\6\ See supra note 4.
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27 Short Funds listed and traded on Amex pursuant to Commission
order on January 17, 2007 \7\: (1) Short Russell 2000, (2) Short S&P
SmallCap 600, (3) Short S&P500/Citigroup Value, (4) Short S&P500/
Citigroup Growth, (5) Short S&P MidCap 400/Citigroup Value, (6) Short
S&P MidCap 400/Citigroup Growth, (7) Short S&P SmallCap 600/Citigroup
Value, (8) Short S&P
[[Page 9803]]
SmallCap 600/Citigroup Growth, (9) Short Basic Materials, (10) Short
Consumer Goods, (11) Short Consumer Services, (12) Short Financials,
(13) Short Health Care, (14) Short Industrials, (15) Short Oil & Gas,
(16) Short Real Estate, (17) Short Semiconductors, (18) Short
Technology, (19) Short Utilities, (20) Short Russell Midcap Index, (21)
Short Russell Midcap Growth Index, (22) Short Russell Midcap Value
Index, (23) Short Russell 1000 Index, (24) Short Russell 1000 Growth
Index, (25) Short Russell 1000 Value Index, (26) Short Russell 2000
Growth Index, and (27) Short Russell 2000 Value Index.
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\7\ See supra note 5.
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UltraShort Funds
Nasdaq also proposes to trade Shares of certain Funds that seek
daily investment results, before fees and expenses, that correspond to
twice the inverse (-200%) of the daily performance of the Underlying
Indexes (``UltraShort Funds''). If such a Fund is successful in meeting
its objective, the NAV of the corresponding Shares should increase
approximately twice as much (on a percentage basis) as the respective
Underlying Index loses when the prices of the securities in the Index
decline on a given day, or should decrease approximately twice as much
as the respective Underlying Index gains when such prices rise on a
given day. This filing applies to the following UltraShort Funds:
4 UltraShort Funds listed and traded on Amex pursuant to Commission
order on June 23, 2006 \8\: (1) UltraShort S&P 500, (2) UltraShort
Nasdaq-100, (3) UltraShort Dow 30, and (4) UltraShort S&P Mid-Cap 400;
and
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\8\ Securities Exchange Act Release No. 54040 (June 23, 2006),
71 FR 37629 (June 30, 2006). These Funds were subsequently approved
for UTP trading on NYSE Arca. See Securities Exchange Act Release
No. 54045 (June 26, 2006), 71 FR 37971 (July 3, 2006).
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27 UltraShort funds listed and traded on Amex pursuant to
Commission order on January 17, 2007 \9\: (1) UltraShort Russell 2000,
(2) UltraShort S&P SmallCap 600, (3) UltraShort S&P500/Citigroup Value,
(4) UltraShort S&P500/Citigroup Growth, (5) UltraShort S&P MidCap 400/
Citigroup Value, (6) UltraShort S&P MidCap 400/Citigroup Growth, (7)
UltraShort S&P SmallCap 600/Citigroup Value, (8) UltraShort S&P
SmallCap 600/Citigroup Growth, (9) UltraShort Basic Materials, (10)
UltraShort Consumer Goods, (11) UltraShort Consumer Services, (12)
UltraShort Financials, (13) UltraShort Health Care, (14) UltraShort
Industrials, (15) UltraShort Oil & Gas, (16) UltraShort Real Estate,
(17) UltraShort Semiconductors, (18) UltraShort Technology, (19)
UltraShort Utilities, (20) UltraShort Russell Midcap Index, (21)
UltraShort Russell Midcap Growth Index, (22) UltraShort Russell Midcap
Value Index, (23) UltraShort Russell 1000 Index, (24) UltraShort
Russell 1000 Growth Index, (25) UltraShort Russell 1000 Value Index,
(26) UltraShort Russell 2000 Growth Index, and (27) UltraShort Russell
2000 Value Index.
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\9\ See supra note 5.
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Access to the current portfolio composition of each Fund is
currently available through the Trust's Web site (http://www.proshares.com
).\10\ The Underlying Indexes are identified in Amex's
proposed rule changes to list the Funds (the ``Original Filings'').\11\
The Original Filings state that Amex would disseminate for each Fund on
a daily basis by means of Consolidated Tape Association (``CTA'') and
CQ High Speed Lines information with respect to an Indicative Intra-Day
Value (``IIV''), the daily trading volume, closing price, NAV, and
final dividend amounts, if any, to be paid for each Fund.\12\
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\10\ The Trust's Web site is publicly accessible at no charge
and contains the following information for each Fund's Shares: (1)
The prior business day's closing NAV, the reported closing price,
and a calculation of the premium or discount of such price in
relation to the closing NAV; (2) data for a period covering at least
the current and three immediately preceding calendar quarters (or
the life of a Fund, if shorter) indicating how frequently each
Fund's Shares traded at a premium or discount to NAV based on the
daily closing price and the closing NAV, and the magnitude of such
premiums and discounts; (3) its prospectus and product description;
and (4) other quantitative information such as daily trading volume.
The prospectus and/or product description for each Fund would inform
investors that the Trust's Web site has information about the
premiums and discounts at which the Fund's Shares have traded.
\11\ See supra notes 4, 5 and 8.
\12\ The Original Filings explain that, if the IIV is not
disseminated as required, Amex would halt trading in the shares of
the Funds. If Amex halts trading for this reason, then Nasdaq would
do so as well.
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The Original Filings state that the daily closing index value and
the percentage change in the daily closing index value for each
Underlying Index would be publicly available on various Web sites such
as http://www.bloomberg.com. The Original Filings further state that
data regarding each Underlying Index are also available from the
respective index provider to subscribers. According to the Original
Filings, several independent data vendors package and disseminate index
data in various value-added formats (including vendors displaying both
securities and index levels and vendors displaying index levels only).
The Original Filings state that the value of each Underlying Index
is updated intra-day on a real-time basis as its individual component
securities change in price, and the intra-day values of each Underlying
Index are disseminated at least every 15 seconds throughout Amex's
trading day by Amex or another organization authorized by the relevant
Underlying Index provider.
To provide updated information relating to each Fund for use by
investors, professionals, and persons wishing to create or redeem
Shares, Amex disseminates through the facilities of the CTA: (1)
Continuously throughout Amex's trading day, the market value of a
Share; and (2) at least every 15 seconds throughout Amex's trading day,
the IIV as calculated by Amex.
Shares would trade on Nasdaq from 9:30 a.m. ET until 8 p.m. ET,
even if the IIV is not disseminated from 4:15 p.m. ET to 8 p.m. ET.\13\
Nasdaq has appropriate rules to facilitate transactions in the Shares
during these trading sessions.
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\13\ Because NSCC does not disseminate the new basket amount to
market participants until approximately 6 p.m. to 7 p.m. ET, an
updated IIV is not possible to calculate from 4:15 p.m. to 8 p.m.
ET. It is also Nasdaq's understanding that the official index
sponsors for the Underlying Indexes currently do not calculate
updated index values during those times. However, if the index
sponsors calculated an Underlying Index for a Fund during those
times in the future, Nasdaq would not trade that Fund during those
times unless the official index value were widely disseminated.
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Nasdaq will halt trading in the Shares of a Fund under the
conditions specified in Nasdaq Rules 4120 and 4121. The conditions for
a halt include a regulatory halt by the listing market. UTP trading in
the Shares will also be governed by provisions of Nasdaq Rule 4120
relating to temporary interruptions in the calculation or wide
dissemination of the IOPV or the value of the Underlying Index.\14\
Additionally, Nasdaq may cease trading the Shares if other unusual
conditions or circumstances exist which, in the opinion of Nasdaq,
makes further dealings on Nasdaq detrimental to the maintenance of a
fair and orderly market. Nasdaq will also follow any procedures with
respect to trading halts as set forth in Nasdaq Rule 4120(c). Finally,
Nasdaq will stop trading the Shares of a Fund if the listing market
delists them.
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\14\ See Securities Exchange Act Release No. 55269 (February 9,
2007), 72 FR 7490 (February 15, 2007) (SR-NASDAQ-2006-050).
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In connection with the trading of the Shares, Nasdaq will inform
Nasdaq members in an Information Circular of the special
characteristics and risks associated with trading the Shares, as
[[Page 9804]]
well as the requirements of Nasdaq Rule 2310, which requires Nasdaq
members to determine that a particular security is suitable for a
customer before recommending a transaction in it. Nasdaq also would
require its members to deliver a prospectus or product description to
investors purchasing the Shares prior to or concurrently with a
transaction in the Shares.
Nasdaq deems the Shares to be equity securities, thus rendering
trading in the Shares subject to Nasdaq's existing rules applicable to
UTP trading of equity securities. Nasdaq believes that its surveillance
procedures are adequate to address any concerns about the trading of
the Shares on Nasdaq. Trading of the Shares through NASD facilities
operated by Nasdaq is currently subject to NASD's surveillance
procedures for equity securities in general and ETFs in particular.
After Nasdaq begins to trade the Shares as an exchange, NASD, on behalf
of Nasdaq, will continue to monitor such trading. Nasdaq's transition
to exchange status will not result in any change in the surveillance
process with respect to the Shares.\15\
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\15\ Surveillance of all trading on NASD facilities operated by
Nasdaq, including the trading of Shares, is currently being
conducted by NASD. After Nasdaq begins to trade the Shares as an
exchange, NASD will continue to surveil trading, pursuant to a
regulatory services agreement. Nasdaq is responsible for NASD's
performance under this regulatory services agreement.
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2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act \16\ in general and furthers the
objectives of Section 6(b)(5) \17\ in particular in that it is designed
to prevent fraudulent and manipulative acts and practices, to promote
just and equitable principles of trade, remove impediments to a free
and open market and a national market system, and, in general, to
protect investors and the public interest. In addition, the Exchange
believes that the proposal is consistent with Rule 12f-5 under the Act
\18\ because it deems the Shares to be equity securities, thus
rendering trading in the Shares subject to Nasdaq's existing rules
governing the trading of equity securities.
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\16\ 15 U.S.C. 78f(b).
\17\ 15 U.S.C. 78f(b)(5).
\18\ 17 CFR 240.12f-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
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended. The
proposal will promote competition with respect to trading of the Shares
by ensuring that Nasdaq can continue to trade the Shares after it
begins to operate as an exchange for non-Nasdaq securities.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
Written comments were neither solicited nor received.
III. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NASDAQ-2007-011 on the subject line.
Paper Comments
Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2007-011. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room. Copies of such
filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NASDAQ-2007-011 and should be submitted on or before
March 26, 2007.
IV. Commission's Findings and Order Granting Accelerated Approval of
the Proposed Rule Change
After careful review, 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.\19\ In particular, the Commission finds that the proposed
rule change is consistent with Section 6(b)(5) of the Act,\20\ which
requires that an exchange have rules designed, among other things, to
promote just and equitable principles of trade, to remove impediments
to and perfect the mechanism of a free and open market and a national
market system, and in general to protect investors and the public
interest. The Commission believes that this proposal should benefit
investors by increasing competition among markets that trade the
Shares.
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\19\ In approving this rule change, the Commission notes that it
has considered the proposal's impact on efficiency, competition, and
capital formation. See 15 U.S.C. 78c(f).
\20\ 15 U.S.C. 78f(b)(5).
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In addition, the Commission finds that the proposal is consistent
with Section 12(f) of the Act,\21\ which permits an exchange to trade,
pursuant to UTP, a security that is listed and registered on another
exchange.\22\ The Commission notes that it previously approved the
listing and trading of the Shares on Amex and the trading of the Shares
on NYSE Arca pursuant to UTP.\23\ The Commission also finds that the
proposal is consistent with Rule 12f-5 under the Act,\24\ which
provides that an exchange shall not extend UTP to a security unless the
exchange has in effect a rule or rules providing for transactions in
the class or type of security to which the exchange extends UTP. The
Exchange has represented that it meets this requirement because it
deems the Shares to be equity securities, thus rendering trading in the
Shares subject to the Exchange's existing rules
[[Page 9805]]
governing the trading of equity securities.
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\21\ 15 U.S.C. 78l(f).
\22\ Section 12(a) of the Act, 15 U.S.C. 78l(a), generally
prohibits a broker-dealer from trading a security on a national
securities exchange unless the security is registered on that
exchange pursuant to Section 12 of the Act. Section 12(f) of the Act
excludes from this restriction trading in any security to which an
exchange ``extends UTP.'' When an exchange extends UTP to a
security, it allows its members to trade the security as if it were
listed and registered on the exchange even though it is not so
listed and registered.
\23\ See supra notes 4-9.
\24\ 17 CFR 240.12f-5.
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The Commission further believes that the proposal is consistent
with Section 11A(a)(1)(C)(iii) of the Act,\25\ which sets forth
Congress' finding that it is in the public interest and appropriate for
the protection of investors and the maintenance of fair and orderly
markets to assure the availability to brokers, dealers, and investors
of information with respect to quotations for and transactions in
securities. Quotations for and last sale information regarding the
Shares are disseminated through the facilities of the CTA and the
Consolidated Quotation System. Furthermore, the IIV, updated to reflect
changes in currency exchange rates, is calculated by Amex and published
via the facilities of the Consolidated Tape Association on a 15-second
delayed basis throughout the Exchange's Core Trading Session. In
addition, if the listing market halts trading when the IIV is not being
calculated or disseminated, the Exchange would halt trading in the
Shares.
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\25\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
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The Commission notes that, if the Shares should be delisted by the
listing exchange, the Exchange would no longer have authority to trade
the Shares pursuant to this order.
In support of this proposal, the Exchange has made the following
representations:
1. The Exchange's surveillance procedures are adequate to properly
monitor Exchange trading of the Shares in all trading sessions and to
deter and detect violations of Exchange rules.
2. Prior to the commencement of trading, the Exchange would inform
its members in an Information Bulletin of the special characteristics
and risks associated with trading the Shares.
3. Prior to the commencement of trading, the Exchange would inform
its members in an Information Bulletin the requirement that members
deliver a prospectus to investors purchasing newly issued Shares prior
to or concurrently with the confirmation of a transaction.
This approval order is conditioned on the Exchange's adherence to
these representations.
The Commission finds good cause for approving this proposal before
the thirtieth day after the publication of notice thereof in the
Federal Register. As noted previously, the Commission previously found
that the listing and trading of the Shares on Amex and the trading of
the Shares on NYSE Area pursuant to UTP are consistent with the Act.
The Commission presently is not aware of any regulatory issue that
should cause it to revisit those findings or would preclude the trading
of the Shares on the Exchange pursuant to UTP. Therefore, accelerating
approval of this proposal should benefit investors by creating, without
undue delay, additional competition in the market for the Shares.
V. Conclusion
It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\26\ that the proposed rule change (SR-NASDAQ-2007-011), be and it
hereby is, approved on an accelerated basis.
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\26\ 15 U.S.C. 78s(b)(2).
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\27\
Florence E. Harmon,
Deputy Secretary.
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\27\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E7-3749 Filed 3-2-07; 8:45 am]
BILLING CODE 8010-01-P