Amy N. Kroll, Esquire
Foley & Lardner
Washington Harbour
3000 K Street, N.W., Suite 500
Washington, D.C. 20007-5143

Re: Rule 10a-1; Exemptive Relief under Short Sale Rule

Dear Ms. Kroll:

In your letter dated March 8, 2004, as supplemented by telephone conversations with the staff, you request exemptive relief regarding Rule 10a-1 under the Securities Exchange Act of 1934 (Exchange Act) for clients of Harborside Securities, L.L.C. (Harborside) that seek to execute short sale transactions that Harborside proposes to match prior to the opening of regular trading and execute after the close of regular trading at the volume-weighted average price (VWAP). This response is attached to the enclosed photocopy of your letter. By doing this, we avoid having to recite or summarize the facts set forth in your letter. Each defined term in this response has the same meaning as defined in your letter, unless otherwise noted.

Response:

Rule 3b-3 under the Exchange Act defines the term "short sale," and Rule 10a-1 governs short sales generally. Paragraph (a) of Rule 10a-1 applies to short sales of any exchange-listed security, if transactions in such security are reported pursuant to an "effective transaction reporting plan" (Listed Security). A short sale of a Listed Security may not be effected at a price either: (1) below the last reported price of a transaction reported in the consolidated transaction reporting system (minus tick); or (2) at the last reported price if that price is lower than the last reported different price (zero-minus tick).

Absent an exemption, short sales of Listed Securities effected by Harborside's clients on a VWAP basis must comply with paragraph (a)(1) of Rule 10a-1. The final execution price of such VWAP short sale transactions by Harborside's clients may be on a minus tick or a zero-minus tick with respect to the last sale in the consolidated transaction reporting system. Transactions under such circumstances in exchange-listed securities would not comply with Rule 10a-1. You state that the manner in which Harborside proposes to effect the proposed VWAP transactions should not give rise to any concerns with regard to possible short selling in an effort to manipulate or destabilize trading in any particular security. In particular, you note that the parties to each transaction will irrevocably agree to a transaction for which orders are matched before the opening of regular trading on the date of the transaction, and are executed after the close of regular trading at the volume-weighted average price (VWAP). Furthermore, the VWAP short sales agreed to before the opening of regular trading that are the subject of this letter will not be used as part of the VWAP calculation that day, and thus these transactions should not exert any downward pressure on the subject stock's price. These short sales will also be properly marked as "short exempt," and will be reported using a special VWAP trade modifier. Further, if one of the parties effected short sales in the market intraday, these short sales would be subject to Rule 10a-1.

Based upon your representations and the facts presented, but without necessarily concurring in your analysis, the Commission hereby grants an exemption from paragraph (a)(1) of Rule 10a-1 to permit short sale transactions in Listed Securities by Harborside's clients that have been guaranteed the VWAP by Harborside prior to the opening of regular trading, subject to the following conditions:

1. Persons relying on this exemption may not enter pre-arranged matching sale and purchase orders in the VWAP Match.
    
2. Transactions by persons relying on this exemption shall not be made for the purpose of creating actual, or apparent, active trading in or otherwise affecting the price of any security.
    
3. Harborside's clients will be allowed to effect exempt short sale transactions in the VWAP match if the subject Listed Security qualifies as an "actively-traded security" or is one of the securities that comprise the S&P 500 Index.¹ Where the subject Listed Security is not an "actively-traded security" or a S&P 500 Index security, the proposed short sale transaction will be permitted only if it is conducted as part of a basket transaction of 20 or more securities in which the subject Listed Security does not comprise more than 5% of the value of the basket traded.
    
4. Harborside's clients will be allowed to effect exempt short sale transactions on a VWAP basis through Harborside with another broker-dealer as the contra side only if the total aggregate positions of Harborside's clients short sales being effected on a VWAP basis in the subject Listed Security with one or more such contra-parties does not exceed 10% of the subject Listed Security's relevant ADTV, as such term is defined in Regulation M.² (The foregoing volume restriction will not apply to any exempt short sale transaction by a client where it is part of an agency cross transaction that Harborside effects between two of its clients.)
    
5. Harborside's clients will be allowed to effect exempt short sale transactions on a VWAP basis if the VWAP value of a Listed Security being sold short is determined in reference to transactions executed either in the consolidated marketplace or in the "primary market" for the Listed Security. To qualify as a "primary market," the referenced market must account for 75% or more of the Listed Security's ADTV. That is, the average daily trading volume reported by the referenced market during the two full calendar months immediately preceding the date of the proposed short sale or during any 60 consecutive calendar days ending within the 10 calendar days preceding the date of the proposed short sale must be equal to or greater than 75% of the worldwide average daily trading volume of the same security during the same relevant time period.
    
6. Harborside shall maintain and provide the Division of Market Regulation, upon request, separately retrievable written records pertaining to each exempt short sale transaction effected in the VWAP Match, including the date, time, security, price, size of each transaction, and, when applicable, the name of the broker-dealer providing the contra side.

The foregoing exemption from Rule 10a-1 is based solely on your representations and the facts you have presented to the staff, and is strictly limited to the application of this rule to transactions under the circumstances described above. Such transactions should be discontinued, pending presentation of the facts for our consideration, in the event that any material change occurs with respect to any of those facts or representations. The exemption granted herein is subject to modification or revocation if at any time the Commission determines that such action is necessary or appropriate in furtherance of the purposes of the Exchange Act.³ In addition, your attention is directed to the anti-fraud and anti-manipulation provisions of the Exchange Act, particularly Sections 9(a) and 10(b), and Rule 10b-5 thereunder. Responsibility for compliance with these and other applicable provisions of the federal or state securities laws must rest with Harborside and with participants effecting VWAP short sale transactions. The Division expresses no view with respect to other questions that the proposed transactions may raise, including, but not limited to, the applicability of other federal and state laws to the proposed transactions.

Attachment

Endnotes

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¹ For purposes of this exemption, actively-traded securities must have an average daily trading volume (ADTV) value of at least $1 million and be issued by an issuer with a public float value of at least $150 million. For purposes of this letter, ADTV shall be calculated in reference to the date on which the proposed VWAP short sale transaction is to take place. That is, the worldwide average daily trading volume during the two full calendar months immediately preceding the date of the proposed short sale or during any 60 consecutive calendar days ending within the 10 calendar days preceding the date of the proposed short sale.

² 17 CFR 242.100.

³ It is noted that the Commission has proposed in Regulation SHO to codify an express exemption for VWAP transactions that satisfy certain conditions. See Securities Exchange Act Release No. 48709 (Oct. 28, 2003), 68 FR 62972, 62982 (Nov. 6, 2003). If the exemption for VWAP transactions proposed in Regulation SHO is adopted, the relief that Harborside requested, and is hereby granted in this letter, would cover VWAP short sale transactions in all covered securities that satisfy these certain conditions.

Incoming Letter:

The Incoming Letter is in Acrobat format.

http://www.sec.gov/divisions/marketreg/mr-noaction/harborside031604.htm