Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto Relating to the Listing and Trading of Managed Fund Shares, 27874-27878 [E8-10701]

Download as PDF 27874 Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Notices FICC believes that requiring Demand Comparison for blind-brokered repo trades as described above will reduce risk by promoting earlier comparison and a higher rate of comparison. Demand Comparison trade entry will also encourage members to reconcile differences on a timely basis. FICC plans to implement the proposed changes four months after submission of this filing to the Commission (i.e., early August), subject to approval by the Commission, in order to provide members with the opportunity to make any necessary system changes. 3. Statutory Basis FICC believes that the proposed rule change is consistent with the requirements of Section 17A of the Act 7 and the rules and regulations thereunder applicable to FICC because it should support the prompt and accurate clearance and settlement of securities transactions by enabling earlier comparison and a higher rate of comparison of blind-brokered repo transactions. (B) Self-Regulatory Organization’s Statement on Burden on Competition FICC does not believe that the proposed rule change would have any impact or impose any burden on competition. (C) Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others Written comments have not been solicited with respect to the proposed rule change, and none have been received. FICC will notify the Commission of any written comments it receives. jlentini on PROD1PC65 with NOTICES III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within thirty-five 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 ninety 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 such proposed rule change or (B) institute proceedings to determine whether the proposed rule change should be disapproved. 7 17 U.S.C. 78q–1. VerDate Aug<31>2005 16:39 May 13, 2008 Jkt 214001 IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Comments may be submitted by any of the following methods: • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an e-mail to rulecomments@sec.gov. Please include File Number SR–FICC–2008–02 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–FICC–2008–02. 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 (https://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 Section, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of FICC and on FICC’s Web site at https://www.dtcc.com/ downloads/legal/rule_filings/2008/ficc/ 2008–02.pdf. 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–FICC– 2008–02 and should be submitted on or before June 4, 2008. Frm 00081 Fmt 4703 BILLING CODE 8010–01–P SECURITIES AND EXCHANGE COMMISSION Electronic Comments PO 00000 For the Commission by the Division of Trading and Markets, pursuant to delegated authority.8 Florence E. Harmon, Deputy Secretary. [FR Doc. E8–10725 Filed 5–13–08; 8:45 am] Sfmt 4703 [Release No. 34–57800; File No. SR– NASDAQ–2008–039] Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto Relating to the Listing and Trading of Managed Fund Shares May 8, 2008. 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 April 30, 2008, 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, II, and III below, which Items have been substantially prepared by the Exchange. On May 7, 2008, the Exchange filed Amendment No. 1 to the proposed rule change. The Commission is publishing this notice to solicit comments on the proposed rule change, as amended, from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to adopt new Nasdaq Rule 4420(o) to list and trade, or trade pursuant to unlisted trading privileges (‘‘UTP’’), securities issued by actively managed, open-end investment management companies (‘‘Managed Fund Shares’’) and to amend certain other Nasdaq rules to incorporate references to Managed Fund Shares. The text of the proposed rule change is available at the Exchange, the Commission’s Public Reference Room, and https://www.nasdaq.com. 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 8 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 E:\FR\FM\14MYN1.SGM 14MYN1 Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Notices 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 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 add new Nasdaq Rule 4420(o) to permit the listing and trading, or trading pursuant to UTP, of Managed Fund Shares.3 The Exchange also proposes to make conforming changes to the introductory paragraph of Nasdaq Rule 4420, Nasdaq Rules 4120(a)(9) and 4120(b)(4)(A), which relate to trading halts, and Nasdaq Rule 4540, which relates to entry and annual fees for issuers, to incorporate references to Managed Fund Shares. jlentini on PROD1PC65 with NOTICES Proposed Listing Rules for Managed Fund Shares Proposed Nasdaq Rule 4420(o)(2)(A) provides that Nasdaq will file separate proposals under section 19(b) of the Act before the listing and/or trading of Managed Fund Shares. Proposed Nasdaq Rule 4420(o)(2)(B) provides that transactions in Managed Fund Shares will occur throughout Nasdaq’s trading hours.4 Proposed Nasdaq Rule 4420(o)(2)(C) provides that the minimum price variation for quoting and entry of orders in Managed Fund Shares will be $0.01. Proposed Rule Nasdaq 4420(o)(2)(D) provides that Nasdaq will implement written surveillance procedures for Managed Fund Shares. Proposed Nasdaq Rule 4420(o)(2)(E) provides that, for Managed Fund Shares based on an international or global portfolio, the statutory prospectus or the application for exemption from provisions of the Investment Company Act of 1940 (‘‘1940 Act’’) for such series of Managed Fund Shares must state that such series must comply with the federal securities laws in accepting securities for deposits 3 The Exchange notes that proposed Nasdaq Rule 4420(o) is substantively identical to NYSE Arca Equities Rule 8.600. See Securities Exchange Act Release No. 57619 (April 4, 2008), 73 FR 19544 (April 10, 2008) (SR–NYSEArca–2008–25) (approving, among other things, listing standards for Managed Fund Shares). 4 See Nasdaq Rule 4120(b)(4) (describing the three trading sessions on the Exchange: (1) Pre-Market Session from 7 a.m. to 9:30 a.m; (2) Regular Market Session from 9:30 a.m. to 4 p.m. or 4:15 p.m.; and (3) Post-Market Session from 4 p.m. or 4:15 p.m. to 8 p.m.). VerDate Aug<31>2005 16:39 May 13, 2008 Jkt 214001 and satisfying redemptions with redemption securities, including that the securities accepted for deposits and the securities used to satisfy redemption requests are sold in transactions that would be exempt from registration under the Securities Act of 1933. Proposed Definitions. Proposed Nasdaq Rule 4420(o)(3)(A) defines the term ‘‘Managed Fund Share’’ as a security that: (1) Represents an interest in a registered investment company (‘‘Investment Company’’) organized as an open-end management investment company or similar entity, that invests in a portfolio of securities selected by the Investment Company’s investment adviser consistent with the Investment Company’s investment objectives and policies; (2) is issued in a specified aggregate minimum number in return for a deposit of a specified portfolio of securities and/or a cash amount with a value equal to the next determined net asset value (‘‘NAV’’); and (3) when aggregated in the same specified minimum number, may be redeemed at a holder’s request, which holder will be paid a specified portfolio of securities and/or cash with a value equal to the next determined NAV. In addition, proposed Nasdaq Rule 4420(o)(3)(B) defines the term ‘‘Disclosed Portfolio’’ as the identities and quantities of the securities and other assets held by the Investment Company that will form the basis for the Investment Company’s calculation of NAV at the end of the business day. Proposed Nasdaq Rule 4420(o)(3)(C) defines the term ‘‘Intraday Indicative Value’’ as the estimated indicative value of a Managed Fund Share based on current information regarding the value of the securities and other assets in the Disclosed Portfolio. Proposed Nasdaq Rule 4420(o)(3)(D) defines the term ‘‘Reporting Authority’’ as Nasdaq, an institution, or a reporting service designated by Nasdaq or by the exchange that lists a particular series of Managed Fund Shares (if Nasdaq is trading such series pursuant to UTP) as the official source for calculating and reporting information relating to such series, including, but not limited to, the Intraday Indicative Value, the Disclosed Portfolio, the amount of any cash distribution to holders of Managed Fund Shares, NAV, or other information relating to the issuance, redemption, or trading of Managed Fund Shares. A series of Managed Fund Shares may have more than one Reporting Authority, each having different functions. Initial and Continued Listing. Proposed Nasdaq Rule 4420(o)(4) sets forth the initial and continued listing PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 27875 criteria applicable to Managed Fund Shares.5 Proposed Nasdaq Rule 4420(o)(4)(A)(i) provides that, for each series of Managed Fund Shares, Nasdaq will establish a minimum number of Managed Fund Shares required to be outstanding at the time of commencement of trading. In addition, under proposed Nasdaq Rule 4420(o)(4)(A)(ii), Nasdaq must obtain a representation from the issuer of each series of Managed Fund Shares that the NAV per share for such series will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. Proposed Nasdaq Rule 4420(o)(4)(B) provides that each series of Managed Fund Shares will be listed and traded subject to the application of the following continued listing criteria: (1) The Intraday Indicative Value for Managed Fund Shares must be widely disseminated by one or more major market data vendors at least every 15 seconds during the time when the Managed Fund Shares trade on Nasdaq; (2) the Disclosed Portfolio must be disseminated at least once daily and 5 The Exchange represents that, for initial and/or continued listing, Managed Fund Shares must also be in compliance with Rule 10A–3 under the Act. See 17 CFR 240.10A–3. In addition, the Exchange represents that, with respect to a series of Managed Fund Shares, the investment adviser and its related personnel are subject to Rule 204A–1 under the Investment Advisers Act of 1940 (‘‘Advisers Act’’), which relates to codes of ethics for investment advisers. See 17 CFR 275.204A–1. Rule 204A–1 requires investment advisers to adopt a code of ethics that reflects the fiduciary nature of the relationship to clients as well as compliance with other applicable securities laws. Accordingly, the Exchange notes that ‘‘firewall’’ procedures, as well as procedures designed to prevent the misuse of non-public information by an investment adviser, must be consistent with Rule 204A–1 under the Advisers Act. In addition, Rule 206(4)–7 under the Advisers Act (17 CFR 275.206(4)–7) makes it unlawful for an investment adviser to provide investment advice to clients, unless such investment adviser has (i) adopted and implemented written policies and procedures reasonably designed to prevent violation, by the investment adviser and its supervised persons, of the Advisers Act and the rules thereunder; (ii) implemented, at a minimum, an annual review regarding the adequacy of such policies and procedures and the effectiveness of their implementation; and (iii) designated an individual (who is a supervised person) responsible for administering such policies and procedures. See also Section 204A of the Advisers Act (15 U.S.C. 80b–4a) (requiring investment advisers to establish, maintain, and enforce written policies and procedures reasonably designed to prevent the misuse of material, non-public information by such investment adviser or any person associated with such investment adviser). E-mail from Jonathan F. Cayne, Associate General Counsel, Exchange, to Edward Cho, Special Counsel, Division of Trading and Markets, Commission, dated May 5, 2008 (confirming policies and procedures relating to protections against the misuse of material, nonpublic information concerning an Investment Company’s portfolio). E:\FR\FM\14MYN1.SGM 14MYN1 jlentini on PROD1PC65 with NOTICES 27876 Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Notices made available to all market participants at the same time; and (3) the Reporting Authority that provides the Disclosed Portfolio must implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material nonpublic information regarding the actual components of the portfolio. Proposed Nasdaq Rule 4420(o)(4)(B)(iii) provides that Nasdaq will consider the suspension of trading in, or removal from listing of, a series of Managed Fund Shares under any of the following circumstances: (1) If, following the initial twelve-month period after commencement of trading on the Exchange of a series of Managed Fund Shares, there are fewer than 50 beneficial holders of the series of Management Fund Shares for 30 or more consecutive trading days; (2) if the value of the Intraday Indicative Value is no longer calculated or available or the Disclosed Portfolio is not made available to all market participants at the same time; (3) if the Investment Company issuing the Managed Fund Shares has failed to file any filings required by the Commission or if Nasdaq is aware that the Investment Company is not in compliance with the conditions of any exemptive order or no-action relief granted by the Commission to the Investment Company with respect to the series of Managed Fund Shares; or (4) if such other event shall occur or condition exists which, in the opinion of Nasdaq, makes further dealings on Nasdaq inadvisable. Proposed Nasdaq Rule 4420(o)(4)(B)(iv) provides that, if the Intraday Indicative Value of a series of Managed Fund Shares is not being disseminated as required, Nasdaq may halt trading during the day in which the interruption to the dissemination of the Intraday Indicative Value occurs. If the interruption to the dissemination of the Intraday Indicative Value persists past the trading day in which it occurred, Nasdaq will halt trading no later than the beginning of the trading day following the interruption. If a series of Managed Fund Shares is trading on Nasdaq pursuant to UTP, Nasdaq will halt trading in that series as specified in Nasdaq Rules 4120 and 4121. In addition, if the Exchange becomes aware that NAV or the Disclosed Portfolio with respect to a series of Managed Fund Shares is not disseminated to all market participants at the same time, it will halt trading in such series until such time as the NAV or the Disclosed Portfolio is available to all market participants. In addition, proposed Nasdaq Rule 4420(o)(4)(B)(v) provides that, upon VerDate Aug<31>2005 16:39 May 13, 2008 Jkt 214001 termination of an Investment Company, the Managed Fund Shares issued in connection with such entity must be removed from listing on Nasdaq. Proposed Nasdaq Rule 4420(o)(4)(B)(vi) provides that voting rights must be as set forth in the applicable Investment Company prospectus. Proposed Nasdaq Rule 4420(o)(5) relates to the limitation of liability of the Exchange in connection with an issuance of a series of Managed Fund Shares. Proposed Nasdaq Rule 4420(o)(6) relates to obligations with respect to those Managed Fund Shares that receive an exemption from certain prospectus delivery requirements under section 24(d) of the 1940 Act. Lastly, proposed Nasdaq Rule 4420(o)(7) provides that, if the investment adviser of the Investment Company issuing Managed Fund Shares is affiliated with a brokerdealer, such investment adviser must erect a ‘‘firewall’’ between such investment adviser and broker-dealer with respect to access to information regarding the composition and/or changes to the Investment Company’s portfolio. This proposed rule also requires personnel who make decisions on the Investment Company’s portfolio composition to be subject to procedures designed to prevent the use and dissemination of material, non-public information regarding the Investment Company’s portfolio. Other Proposed Rule Changes The Exchange also proposes to amend: (1) The introductory paragraph of Nasdaq Rule 4420 to add a reference to new paragraph (o) thereunder; (2) Nasdaq Rule 4120(a)(9) and Nasdaq Rule 4120(b)(4)(A) to add references to Managed Fund Shares with respect to trading halts; 6 and (3) Nasdaq Rule 4540(a) and (b) to add references to Managed Fund Shares to those securities already covered under the rule relating to both entry and annual fees. Key Features of Managed Fund Shares Registered Investment Company. A Managed Fund Share means a security that represents an interest in an investment company registered under the 1940 Act organized as an open-end investment company or similar entity that invests in a portfolio of securities selected by its investment adviser consistent with its investment objectives and policies. In contrast, the open-end investment company that issues securities of an exchange-traded fund 6 Nasdaq also seeks to make an unrelated, minor typographical change to Nasdaq Rule 4120(b)(4)(A) with respect to the term ‘‘Trust Issued Receipt.’’ PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 seeks to provide investment results that correspond generally to the price and yield performance of a specific foreign or domestic stock index, fixed income securities index, or combination thereof. 1940 Act Exemptive Relief. The 1940 Act contemplates two categories of investment companies: (1) Those which issue redeemable securities (i.e., openend investment companies); and (2) those which do not issue redeemable securities (i.e., closed-end investment companies). Index Fund Shares 7 and Portfolio Depository Receipts 8 (collectively, ‘‘Index ETFs’’) are redeemable, but only in large blocks of shares, not individually, so it is not certain whether they would be redeemable under the 1940 Act. Because Index ETFs do not fit neatly into either the open-end category or the closed-end category, Index ETFs have had to seek exemptive relief from the Commission to permit registration as an open-end investment company. Managed Fund Shares share key structural features with Index ETFs—creation and redemption in large blocks of shares being the most important one—that result in the need for exemptive relief, and therefore, Managed Fund Shares will require relief from the same provisions of the 1940 Act. Intraday Trading. Like Index ETFs, Managed Fund Shares will be listed and traded on a national securities exchange, and therefore, will be available for sale and purchase on an intraday basis, like other listed securities. In contrast, shares of managed mutual funds may only be purchased and sold (issued and redeemed) in direct transactions with the fund, once each day. Creations and Redemptions. As with Index ETFs, Managed Fund Shares will be issued and redeemed on a daily basis at NAV. Also, like Index ETFs, creations and redemptions for Managed Fund Shares must be in large specified blocks of shares called ‘‘Creation Units.’’ Purchases and sales of shares in amounts smaller than the number of shares required for a Creation Unit may be effected only in the secondary market and not directly with the fund. In addition, for most Index ETFs, the creation and redemption process is effected ‘‘in kind.’’ Creation ‘‘in kind’’ typically means that the investor— usually a brokerage house or large institutional investor—purchases the Creation Unit with a ‘‘Portfolio Deposit’’ equal in value to the aggregate NAV of the shares in the Creation Unit. The Portfolio Deposit generally consists of a 7 See 8 See E:\FR\FM\14MYN1.SGM Nasdaq Rule 4420(j). Nasdaq Rule 4420(i). 14MYN1 Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Notices basket of securities that reflects the composition of the Index ETF’s portfolio. Similarly, an investor redeeming shares in the Index ETF receives in exchange for shares in the Index ETF the securities in the ‘‘Redemption Basket,’’ which is usually the same as the Portfolio Deposit and consists of securities that reflect the composition of the Index ETF’s portfolio.9 The Portfolio Deposit often includes a small cash component to make the value of the deposit or basket exactly equal to the aggregate NAV. Most Index ETFs also permit cash creations and redemptions under specified, limited circumstances. Managed Fund Shares may use one or more of the following three approaches to creations and redemptions: (1) ‘‘In kind’’ creations and redemptions using a Portfolio Deposit that reflects the composition of the fund; (2) cash creations and redemptions; or (3) ‘‘in kind’’ creations and redemptions using a Portfolio Deposit consisting of securities that do not reflect the composition of the fund, but instead consisting of other securities including, for example, specified Index ETFs. Portfolio Disclosure. One common feature of Index ETFs is disclosure of the contents of the Portfolio Deposit on a daily basis. Aside from providing the information required for daily creations and redemptions, the Portfolio Deposit gives market participants a basis for estimating the intraday value of the fund and thus, provides a basis for the arbitrage that keeps the market price of Index ETFs generally in line with the NAV of the Index ETF. While Managed Fund Shares may use an in-kind or cash creation and redemption mechanism, as noted above, each series of Managed Fund Shares will disclose daily the identities and quantities of the portfolio of securities and other assets (i.e., the Disclosed Portfolio) held by the applicable fund that will form the basis for the fund’s calculation of NAV at the end of the business day. Intraday Indicative Value.10 For each series of Managed Fund Shares, an estimated value, defined in proposed Nasdaq Rule 4420(o)(3)(C) as the ‘‘Intraday Indicative Value’’ that reflects to the ‘‘Portfolio Deposit’’ herein include the Redemption Basket unless otherwise specified. 10 This value of the estimated NAV is for use by investors, professionals, and persons wishing to create or redeem shares. jlentini on PROD1PC65 with NOTICES 9 References VerDate Aug<31>2005 16:39 May 13, 2008 Jkt 214001 an estimated intraday value of the fund portfolio, will be disseminated. The Intraday Indicative Value will be based upon the current value for the components of the Disclosed Portfolio and will be disseminated by the Exchange at least every 15 seconds during the regular market session through the facilities of the Consolidated Tape Association The dissemination of the Intraday Indicative Value, together with the Disclosed Portfolio, will allow investors to determine the value of the underlying portfolio of a series of Managed Fund Shares on a daily basis and to provide a close estimate of that value throughout the trading day. Trading Halts Nasdaq will halt trading in Managed Fund Shares under the conditions specified in Nasdaq Rules 4120 and 4121, as proposed to be amended, and in proposed Nasdaq Rule 4420(o)(4)(B)(iv), as discussed above. With respect to trading of Managed Fund Shares pursuant to UTP, the conditions for a halt include a regulatory halt by the listing market, and Nasdaq will stop trading Managed Fund Shares if the listing market delists them. Additionally, Nasdaq may cease trading Managed Fund Shares if other unusual conditions or circumstances exist which, in the opinion of Nasdaq, make further dealings on Nasdaq detrimental to the maintenance of a fair and orderly market. Trading Rules Nasdaq deems Managed Fund Shares to be equity securities, thus rendering trading in the Managed Fund Shares subject to Nasdaq’s existing rules governing the trading of equity securities. Nasdaq will allow trading in Managed Fund Shares from 7:00 a.m. until 8:00 p.m. Eastern Time.11 Surveillance The Exchange intends to utilize its existing surveillance procedures applicable to derivative products (including exchange-traded funds) to monitor trading in Managed Fund Shares and represents that such procedures are adequate to address any concerns regarding the trading of Managed Fund Shares on Nasdaq. Trading of Managed Fund Shares on 11 See PO 00000 supra note 4. Frm 00084 Fmt 4703 Sfmt 4703 27877 Nasdaq will be subject to surveillance procedures of the Financial Industry Regulatory Authority (‘‘FINRA’’) for equity securities, in general, and exchange-traded funds, in particular.12 The Exchange may also obtain information via the Intermarket Surveillance Group (‘‘ISG’’) from other exchanges who are members or affiliate members of ISG. Information Circular Prior to the commencement of trading, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading Managed Fund Shares. Specifically, the Information Circular will discuss the following: (1) The procedures for purchases and redemptions of Managed Fund Shares in Creation Units (and that Managed Fund Shares are not individually redeemable); (2) Nasdaq Rule 2310, which imposes suitability obligations on Nasdaq members with respect to recommending transactions in Managed Fund Shares to customers; (3) how information regarding the Intraday Indicative Value is disseminated; (4) the requirement that members deliver a prospectus to investors purchasing newly issued Managed Fund Shares prior to or concurrently with the confirmation of a transaction; (5) the risks involved in trading Managed Fund Shares during the Pre-Market and Post-Market Sessions when an updated Intraday Indicative Fund value will not be calculated or publicly disseminated; (6) any exemptive, no-action, or interpretive relief granted by the Commission from any rules under the Act; (7) related fees and expenses; (8) trading hours of the Managed Fund Shares; (9) NAV calculation and dissemination; and (10) trading information. The Exchange notes that investors purchasing Managed Fund Shares directly from a Fund will receive a prospectus. Members purchasing Managed Fund Shares from a Fund for resale to investors will deliver a prospectus to such investors. 2. Statutory Basis 12 The Exchange states that FINRA surveils trading on Nasdaq pursuant to a regulatory services agreement. Nasdaq is responsible for FINRA’s performance under this regulatory services agreement. E:\FR\FM\14MYN1.SGM 14MYN1 27878 Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Notices The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,13 in general, and furthers the objectives of section 6(b)(5) of the Act,14 in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and a national market system. The Exchange believes that the proposed rules will facilitate the listing and trading of additional types of exchange-traded products that will enhance competition among market participants, to the benefit of investors and the marketplace. In addition, the Exchange believes that the listing and trading criteria set forth in the proposed rules are intended to protect investors and the public interest. 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. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others The Exchange states that written comments on the proposed rule change were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 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 Exchange consents, the Commission will: A. By order approve such proposed rule change; or B. Institute proceedings to determine whether the proposed rule change should be disapproved. jlentini on PROD1PC65 with NOTICES 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: SECURITIES AND EXCHANGE COMMISSION Electronic Comments [Release No. 34–57801; File No. SR– NYSEArca–2008–31] • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an e-mail to rulecomments@sec.gov. Please include File Number SR–NASDAQ–2008–039 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. 14 15 U.S.C. 78f(b). U.S.C. 78f(b)(5). VerDate Aug<31>2005 16:39 May 13, 2008 [FR Doc. E8–10701 Filed 5–13–08; 8:45 am] 15 17 Jkt 214001 May 8, 2008. I. Introduction On April 4, 2008, NYSE Arca, Inc. (‘‘NYSE Arca’’ or ‘‘Exchange’’), through its wholly owned subsidiary, NYSE Arca Equities, Inc. (‘‘NYSE Arca All submissions should refer to File Equities’’), filed with the Securities and Number SR–NASDAQ–2008–039. This Exchange Commission (‘‘Commission’’), file number should be included on the pursuant to section 19(b)(1) of the subject line if e-mail is used. To help the Securities Exchange Act of 1934 Commission process and review your (‘‘Act’’)1 and Rule 19b–4 thereunder,2 a comments more efficiently, please use proposed rule change to list and trade only one method. The Commission will the shares of twelve actively managed post all comments on the Commission’s exchange-traded funds of the Internet Web site (https://www.sec.gov/ WisdomTree Trust (‘‘Trust’’) pursuant to rules/sro.shtml). Copies of the NYSE Arca Equities Rule 8.600 submission, all subsequent (Managed Fund Shares). The proposed amendments, all written statements rule change was published for comment with respect to the proposed rule in the Federal Register on April 21, change that are filed with the 2008 for a 15-day comment period.3 The Commission, and all written Commission received no comments on communications relating to the the proposal. This order approves the proposed rule change between the proposed rule change on an accelerated Commission and any person, other than basis. those that may be withheld from the II. Description of the Proposal public in accordance with the provisions of 5 U.S.C. 552, will be The Exchange proposes to list and available for inspection and copying in trade the shares (‘‘Shares’’) of the the Commission’s Public Reference following twelve actively managed Room, 100 F Street, NE., Washington, exchange-traded funds of the Trust DC 20549, on official business days pursuant to NYSE Arca Equities Rule between the hours of 10 a.m. and 3 p.m. 8.600 (Managed Fund Shares): (1) Copies of the filing also will be available WisdomTree U.S. Current Income Fund for inspection and copying at the (‘‘Current Income Fund’’); (2) principal office of the Exchange. All WisdomTree Dreyfus Australian Dollar comments received will be posted Fund; (3) WisdomTree Dreyfus Brazilian without change; the Commission does Real Fund; (4) WisdomTree Dreyfus not edit personal identifying British Pound Sterling Fund; (5) information from submissions. You WisdomTree Dreyfus Canadian Dollar should submit only information that Fund; (6) WisdomTree Dreyfus Chinese you wish to make available publicly. All Yuan Fund; (7) WisdomTree Dreyfus submissions should refer to File Euro Fund; (8) WisdomTree Dreyfus Number SR–NASDAQ–2008–039 and Indian Rupee Fund; (9) WisdomTree should be submitted on or before June Dreyfus Japanese Yen Fund; (10) 4, 2008. WisdomTree Dreyfus New Zealand Dollar Fund; (11) WisdomTree Dreyfus For the Commission, by the Division of Trading and Markets, pursuant to delegated South African Rand Fund; and (12) authority.15 WisdomTree Dreyfus South Korean Won Fund (‘‘International Currency Florence E. Harmon, Income Funds,’’ and together with the Deputy Secretary. BILLING CODE 8010–01–P 13 15 Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Accelerated Approval of Proposed Rule Change Relating to the Listing and Trading of Shares of Twelve Actively Managed Exchange-Traded Funds of the WisdomTree Trust PO 00000 Fmt 4703 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 57670 (April 15, 2008), 73 FR 21397. 2 17 CFR 200.30–3(a)(12). Frm 00085 1 15 Sfmt 4703 E:\FR\FM\14MYN1.SGM 14MYN1

Agencies

[Federal Register Volume 73, Number 94 (Wednesday, May 14, 2008)]
[Notices]
[Pages 27874-27878]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-10701]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57800; File No. SR-NASDAQ-2008-039]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto 
Relating to the Listing and Trading of Managed Fund Shares

May 8, 2008.
    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 April 30, 2008, 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, II, 
and III below, which Items have been substantially prepared by the 
Exchange. On May 7, 2008, the Exchange filed Amendment No. 1 to the 
proposed rule change. The Commission is publishing this notice to 
solicit comments on the proposed rule change, as amended, from 
interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to adopt new Nasdaq Rule 4420(o) to list and 
trade, or trade pursuant to unlisted trading privileges (``UTP''), 
securities issued by actively managed, open-end investment management 
companies (``Managed Fund Shares'') and to amend certain other Nasdaq 
rules to incorporate references to Managed Fund Shares. The text of the 
proposed rule change is available at the Exchange, the Commission's 
Public Reference Room, and https://www.nasdaq.com.

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

[[Page 27875]]

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 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 add new Nasdaq Rule 4420(o) to permit the 
listing and trading, or trading pursuant to UTP, of Managed Fund 
Shares.\3\ The Exchange also proposes to make conforming changes to the 
introductory paragraph of Nasdaq Rule 4420, Nasdaq Rules 4120(a)(9) and 
4120(b)(4)(A), which relate to trading halts, and Nasdaq Rule 4540, 
which relates to entry and annual fees for issuers, to incorporate 
references to Managed Fund Shares.
---------------------------------------------------------------------------

    \3\ The Exchange notes that proposed Nasdaq Rule 4420(o) is 
substantively identical to NYSE Arca Equities Rule 8.600. See 
Securities Exchange Act Release No. 57619 (April 4, 2008), 73 FR 
19544 (April 10, 2008) (SR-NYSEArca-2008-25) (approving, among other 
things, listing standards for Managed Fund Shares).
---------------------------------------------------------------------------

Proposed Listing Rules for Managed Fund Shares
    Proposed Nasdaq Rule 4420(o)(2)(A) provides that Nasdaq will file 
separate proposals under section 19(b) of the Act before the listing 
and/or trading of Managed Fund Shares. Proposed Nasdaq Rule 
4420(o)(2)(B) provides that transactions in Managed Fund Shares will 
occur throughout Nasdaq's trading hours.\4\ Proposed Nasdaq Rule 
4420(o)(2)(C) provides that the minimum price variation for quoting and 
entry of orders in Managed Fund Shares will be $0.01. Proposed Rule 
Nasdaq 4420(o)(2)(D) provides that Nasdaq will implement written 
surveillance procedures for Managed Fund Shares. Proposed Nasdaq Rule 
4420(o)(2)(E) provides that, for Managed Fund Shares based on an 
international or global portfolio, the statutory prospectus or the 
application for exemption from provisions of the Investment Company Act 
of 1940 (``1940 Act'') for such series of Managed Fund Shares must 
state that such series must comply with the federal securities laws in 
accepting securities for deposits and satisfying redemptions with 
redemption securities, including that the securities accepted for 
deposits and the securities used to satisfy redemption requests are 
sold in transactions that would be exempt from registration under the 
Securities Act of 1933.
---------------------------------------------------------------------------

    \4\ See Nasdaq Rule 4120(b)(4) (describing the three trading 
sessions on the Exchange: (1) Pre-Market Session from 7 a.m. to 9:30 
a.m; (2) Regular Market Session from 9:30 a.m. to 4 p.m. or 4:15 
p.m.; and (3) Post-Market Session from 4 p.m. or 4:15 p.m. to 8 
p.m.).
---------------------------------------------------------------------------

    Proposed Definitions. Proposed Nasdaq Rule 4420(o)(3)(A) defines 
the term ``Managed Fund Share'' as a security that: (1) Represents an 
interest in a registered investment company (``Investment Company'') 
organized as an open-end management investment company or similar 
entity, that invests in a portfolio of securities selected by the 
Investment Company's investment adviser consistent with the Investment 
Company's investment objectives and policies; (2) is issued in a 
specified aggregate minimum number in return for a deposit of a 
specified portfolio of securities and/or a cash amount with a value 
equal to the next determined net asset value (``NAV''); and (3) when 
aggregated in the same specified minimum number, may be redeemed at a 
holder's request, which holder will be paid a specified portfolio of 
securities and/or cash with a value equal to the next determined NAV.
    In addition, proposed Nasdaq Rule 4420(o)(3)(B) defines the term 
``Disclosed Portfolio'' as the identities and quantities of the 
securities and other assets held by the Investment Company that will 
form the basis for the Investment Company's calculation of NAV at the 
end of the business day. Proposed Nasdaq Rule 4420(o)(3)(C) defines the 
term ``Intraday Indicative Value'' as the estimated indicative value of 
a Managed Fund Share based on current information regarding the value 
of the securities and other assets in the Disclosed Portfolio. Proposed 
Nasdaq Rule 4420(o)(3)(D) defines the term ``Reporting Authority'' as 
Nasdaq, an institution, or a reporting service designated by Nasdaq or 
by the exchange that lists a particular series of Managed Fund Shares 
(if Nasdaq is trading such series pursuant to UTP) as the official 
source for calculating and reporting information relating to such 
series, including, but not limited to, the Intraday Indicative Value, 
the Disclosed Portfolio, the amount of any cash distribution to holders 
of Managed Fund Shares, NAV, or other information relating to the 
issuance, redemption, or trading of Managed Fund Shares. A series of 
Managed Fund Shares may have more than one Reporting Authority, each 
having different functions.
    Initial and Continued Listing. Proposed Nasdaq Rule 4420(o)(4) sets 
forth the initial and continued listing criteria applicable to Managed 
Fund Shares.\5\ Proposed Nasdaq Rule 4420(o)(4)(A)(i) provides that, 
for each series of Managed Fund Shares, Nasdaq will establish a minimum 
number of Managed Fund Shares required to be outstanding at the time of 
commencement of trading. In addition, under proposed Nasdaq Rule 
4420(o)(4)(A)(ii), Nasdaq must obtain a representation from the issuer 
of each series of Managed Fund Shares that the NAV per share for such 
series will be calculated daily and that the NAV and the Disclosed 
Portfolio will be made available to all market participants at the same 
time.
---------------------------------------------------------------------------

    \5\ The Exchange represents that, for initial and/or continued 
listing, Managed Fund Shares must also be in compliance with Rule 
10A-3 under the Act. See 17 CFR 240.10A-3. In addition, the Exchange 
represents that, with respect to a series of Managed Fund Shares, 
the investment adviser and its related personnel are subject to Rule 
204A-1 under the Investment Advisers Act of 1940 (``Advisers Act''), 
which relates to codes of ethics for investment advisers. See 17 CFR 
275.204A-1. Rule 204A-1 requires investment advisers to adopt a code 
of ethics that reflects the fiduciary nature of the relationship to 
clients as well as compliance with other applicable securities laws. 
Accordingly, the Exchange notes that ``firewall'' procedures, as 
well as procedures designed to prevent the misuse of non-public 
information by an investment adviser, must be consistent with Rule 
204A-1 under the Advisers Act. In addition, Rule 206(4)-7 under the 
Advisers Act (17 CFR 275.206(4)-7) makes it unlawful for an 
investment adviser to provide investment advice to clients, unless 
such investment adviser has (i) adopted and implemented written 
policies and procedures reasonably designed to prevent violation, by 
the investment adviser and its supervised persons, of the Advisers 
Act and the rules thereunder; (ii) implemented, at a minimum, an 
annual review regarding the adequacy of such policies and procedures 
and the effectiveness of their implementation; and (iii) designated 
an individual (who is a supervised person) responsible for 
administering such policies and procedures. See also Section 204A of 
the Advisers Act (15 U.S.C. 80b-4a) (requiring investment advisers 
to establish, maintain, and enforce written policies and procedures 
reasonably designed to prevent the misuse of material, non-public 
information by such investment adviser or any person associated with 
such investment adviser). E-mail from Jonathan F. Cayne, Associate 
General Counsel, Exchange, to Edward Cho, Special Counsel, Division 
of Trading and Markets, Commission, dated May 5, 2008 (confirming 
policies and procedures relating to protections against the misuse 
of material, non-public information concerning an Investment 
Company's portfolio).
---------------------------------------------------------------------------

    Proposed Nasdaq Rule 4420(o)(4)(B) provides that each series of 
Managed Fund Shares will be listed and traded subject to the 
application of the following continued listing criteria: (1) The 
Intraday Indicative Value for Managed Fund Shares must be widely 
disseminated by one or more major market data vendors at least every 15 
seconds during the time when the Managed Fund Shares trade on Nasdaq; 
(2) the Disclosed Portfolio must be disseminated at least once daily 
and

[[Page 27876]]

made available to all market participants at the same time; and (3) the 
Reporting Authority that provides the Disclosed Portfolio must 
implement and maintain, or be subject to, procedures designed to 
prevent the use and dissemination of material non-public information 
regarding the actual components of the portfolio.
    Proposed Nasdaq Rule 4420(o)(4)(B)(iii) provides that Nasdaq will 
consider the suspension of trading in, or removal from listing of, a 
series of Managed Fund Shares under any of the following circumstances: 
(1) If, following the initial twelve-month period after commencement of 
trading on the Exchange of a series of Managed Fund Shares, there are 
fewer than 50 beneficial holders of the series of Management Fund 
Shares for 30 or more consecutive trading days; (2) if the value of the 
Intraday Indicative Value is no longer calculated or available or the 
Disclosed Portfolio is not made available to all market participants at 
the same time; (3) if the Investment Company issuing the Managed Fund 
Shares has failed to file any filings required by the Commission or if 
Nasdaq is aware that the Investment Company is not in compliance with 
the conditions of any exemptive order or no-action relief granted by 
the Commission to the Investment Company with respect to the series of 
Managed Fund Shares; or (4) if such other event shall occur or 
condition exists which, in the opinion of Nasdaq, makes further 
dealings on Nasdaq inadvisable.
    Proposed Nasdaq Rule 4420(o)(4)(B)(iv) provides that, if the 
Intraday Indicative Value of a series of Managed Fund Shares is not 
being disseminated as required, Nasdaq may halt trading during the day 
in which the interruption to the dissemination of the Intraday 
Indicative Value occurs. If the interruption to the dissemination of 
the Intraday Indicative Value persists past the trading day in which it 
occurred, Nasdaq will halt trading no later than the beginning of the 
trading day following the interruption. If a series of Managed Fund 
Shares is trading on Nasdaq pursuant to UTP, Nasdaq will halt trading 
in that series as specified in Nasdaq Rules 4120 and 4121. In addition, 
if the Exchange becomes aware that NAV or the Disclosed Portfolio with 
respect to a series of Managed Fund Shares is not disseminated to all 
market participants at the same time, it will halt trading in such 
series until such time as the NAV or the Disclosed Portfolio is 
available to all market participants.
    In addition, proposed Nasdaq Rule 4420(o)(4)(B)(v) provides that, 
upon termination of an Investment Company, the Managed Fund Shares 
issued in connection with such entity must be removed from listing on 
Nasdaq. Proposed Nasdaq Rule 4420(o)(4)(B)(vi) provides that voting 
rights must be as set forth in the applicable Investment Company 
prospectus. Proposed Nasdaq Rule 4420(o)(5) relates to the limitation 
of liability of the Exchange in connection with an issuance of a series 
of Managed Fund Shares.
    Proposed Nasdaq Rule 4420(o)(6) relates to obligations with respect 
to those Managed Fund Shares that receive an exemption from certain 
prospectus delivery requirements under section 24(d) of the 1940 Act. 
Lastly, proposed Nasdaq Rule 4420(o)(7) provides that, if the 
investment adviser of the Investment Company issuing Managed Fund 
Shares is affiliated with a broker-dealer, such investment adviser must 
erect a ``firewall'' between such investment adviser and broker-dealer 
with respect to access to information regarding the composition and/or 
changes to the Investment Company's portfolio. This proposed rule also 
requires personnel who make decisions on the Investment Company's 
portfolio composition to be subject to procedures designed to prevent 
the use and dissemination of material, non-public information regarding 
the Investment Company's portfolio.
Other Proposed Rule Changes
    The Exchange also proposes to amend: (1) The introductory paragraph 
of Nasdaq Rule 4420 to add a reference to new paragraph (o) thereunder; 
(2) Nasdaq Rule 4120(a)(9) and Nasdaq Rule 4120(b)(4)(A) to add 
references to Managed Fund Shares with respect to trading halts; \6\ 
and (3) Nasdaq Rule 4540(a) and (b) to add references to Managed Fund 
Shares to those securities already covered under the rule relating to 
both entry and annual fees.
---------------------------------------------------------------------------

    \6\ Nasdaq also seeks to make an unrelated, minor typographical 
change to Nasdaq Rule 4120(b)(4)(A) with respect to the term ``Trust 
Issued Receipt.''
---------------------------------------------------------------------------

Key Features of Managed Fund Shares
    Registered Investment Company. A Managed Fund Share means a 
security that represents an interest in an investment company 
registered under the 1940 Act organized as an open-end investment 
company or similar entity that invests in a portfolio of securities 
selected by its investment adviser consistent with its investment 
objectives and policies. In contrast, the open-end investment company 
that issues securities of an exchange-traded fund seeks to provide 
investment results that correspond generally to the price and yield 
performance of a specific foreign or domestic stock index, fixed income 
securities index, or combination thereof.
    1940 Act Exemptive Relief. The 1940 Act contemplates two categories 
of investment companies: (1) Those which issue redeemable securities 
(i.e., open-end investment companies); and (2) those which do not issue 
redeemable securities (i.e., closed-end investment companies). Index 
Fund Shares \7\ and Portfolio Depository Receipts \8\ (collectively, 
``Index ETFs'') are redeemable, but only in large blocks of shares, not 
individually, so it is not certain whether they would be redeemable 
under the 1940 Act. Because Index ETFs do not fit neatly into either 
the open-end category or the closed-end category, Index ETFs have had 
to seek exemptive relief from the Commission to permit registration as 
an open-end investment company. Managed Fund Shares share key 
structural features with Index ETFs--creation and redemption in large 
blocks of shares being the most important one--that result in the need 
for exemptive relief, and therefore, Managed Fund Shares will require 
relief from the same provisions of the 1940 Act.
---------------------------------------------------------------------------

    \7\ See Nasdaq Rule 4420(j).
    \8\ See Nasdaq Rule 4420(i).
---------------------------------------------------------------------------

    Intraday Trading. Like Index ETFs, Managed Fund Shares will be 
listed and traded on a national securities exchange, and therefore, 
will be available for sale and purchase on an intraday basis, like 
other listed securities. In contrast, shares of managed mutual funds 
may only be purchased and sold (issued and redeemed) in direct 
transactions with the fund, once each day.
    Creations and Redemptions. As with Index ETFs, Managed Fund Shares 
will be issued and redeemed on a daily basis at NAV. Also, like Index 
ETFs, creations and redemptions for Managed Fund Shares must be in 
large specified blocks of shares called ``Creation Units.'' Purchases 
and sales of shares in amounts smaller than the number of shares 
required for a Creation Unit may be effected only in the secondary 
market and not directly with the fund.
    In addition, for most Index ETFs, the creation and redemption 
process is effected ``in kind.'' Creation ``in kind'' typically means 
that the investor--usually a brokerage house or large institutional 
investor--purchases the Creation Unit with a ``Portfolio Deposit'' 
equal in value to the aggregate NAV of the shares in the Creation Unit. 
The Portfolio Deposit generally consists of a

[[Page 27877]]

basket of securities that reflects the composition of the Index ETF's 
portfolio. Similarly, an investor redeeming shares in the Index ETF 
receives in exchange for shares in the Index ETF the securities in the 
``Redemption Basket,'' which is usually the same as the Portfolio 
Deposit and consists of securities that reflect the composition of the 
Index ETF's portfolio.\9\ The Portfolio Deposit often includes a small 
cash component to make the value of the deposit or basket exactly equal 
to the aggregate NAV. Most Index ETFs also permit cash creations and 
redemptions under specified, limited circumstances.
---------------------------------------------------------------------------

    \9\ References to the ``Portfolio Deposit'' herein include the 
Redemption Basket unless otherwise specified.
---------------------------------------------------------------------------

    Managed Fund Shares may use one or more of the following three 
approaches to creations and redemptions: (1) ``In kind'' creations and 
redemptions using a Portfolio Deposit that reflects the composition of 
the fund; (2) cash creations and redemptions; or (3) ``in kind'' 
creations and redemptions using a Portfolio Deposit consisting of 
securities that do not reflect the composition of the fund, but instead 
consisting of other securities including, for example, specified Index 
ETFs.
    Portfolio Disclosure. One common feature of Index ETFs is 
disclosure of the contents of the Portfolio Deposit on a daily basis. 
Aside from providing the information required for daily creations and 
redemptions, the Portfolio Deposit gives market participants a basis 
for estimating the intraday value of the fund and thus, provides a 
basis for the arbitrage that keeps the market price of Index ETFs 
generally in line with the NAV of the Index ETF. While Managed Fund 
Shares may use an in-kind or cash creation and redemption mechanism, as 
noted above, each series of Managed Fund Shares will disclose daily the 
identities and quantities of the portfolio of securities and other 
assets (i.e., the Disclosed Portfolio) held by the applicable fund that 
will form the basis for the fund's calculation of NAV at the end of the 
business day.
    Intraday Indicative Value.\10\ For each series of Managed Fund 
Shares, an estimated value, defined in proposed Nasdaq Rule 
4420(o)(3)(C) as the ``Intraday Indicative Value'' that reflects an 
estimated intraday value of the fund portfolio, will be disseminated. 
The Intraday Indicative Value will be based upon the current value for 
the components of the Disclosed Portfolio and will be disseminated by 
the Exchange at least every 15 seconds during the regular market 
session through the facilities of the Consolidated Tape Association The 
dissemination of the Intraday Indicative Value, together with the 
Disclosed Portfolio, will allow investors to determine the value of the 
underlying portfolio of a series of Managed Fund Shares on a daily 
basis and to provide a close estimate of that value throughout the 
trading day.
---------------------------------------------------------------------------

    \10\ This value of the estimated NAV is for use by investors, 
professionals, and persons wishing to create or redeem shares.
---------------------------------------------------------------------------

Trading Halts
    Nasdaq will halt trading in Managed Fund Shares under the 
conditions specified in Nasdaq Rules 4120 and 4121, as proposed to be 
amended, and in proposed Nasdaq Rule 4420(o)(4)(B)(iv), as discussed 
above. With respect to trading of Managed Fund Shares pursuant to UTP, 
the conditions for a halt include a regulatory halt by the listing 
market, and Nasdaq will stop trading Managed Fund Shares if the listing 
market delists them. Additionally, Nasdaq may cease trading Managed 
Fund Shares if other unusual conditions or circumstances exist which, 
in the opinion of Nasdaq, make further dealings on Nasdaq detrimental 
to the maintenance of a fair and orderly market.
Trading Rules
    Nasdaq deems Managed Fund Shares to be equity securities, thus 
rendering trading in the Managed Fund Shares subject to Nasdaq's 
existing rules governing the trading of equity securities. Nasdaq will 
allow trading in Managed Fund Shares from 7:00 a.m. until 8:00 p.m. 
Eastern Time.\11\
---------------------------------------------------------------------------

    \11\ See supra note 4.
---------------------------------------------------------------------------

Surveillance
    The Exchange intends to utilize its existing surveillance 
procedures applicable to derivative products (including exchange-traded 
funds) to monitor trading in Managed Fund Shares and represents that 
such procedures are adequate to address any concerns regarding the 
trading of Managed Fund Shares on Nasdaq. Trading of Managed Fund 
Shares on Nasdaq will be subject to surveillance procedures of the 
Financial Industry Regulatory Authority (``FINRA'') for equity 
securities, in general, and exchange-traded funds, in particular.\12\ 
The Exchange may also obtain information via the Intermarket 
Surveillance Group (``ISG'') from other exchanges who are members or 
affiliate members of ISG.
---------------------------------------------------------------------------

    \12\ The Exchange states that FINRA surveils trading on Nasdaq 
pursuant to a regulatory services agreement. Nasdaq is responsible 
for FINRA's performance under this regulatory services agreement.
---------------------------------------------------------------------------

Information Circular
    Prior to the commencement of trading, the Exchange will inform its 
members in an Information Circular of the special characteristics and 
risks associated with trading Managed Fund Shares. Specifically, the 
Information Circular will discuss the following: (1) The procedures for 
purchases and redemptions of Managed Fund Shares in Creation Units (and 
that Managed Fund Shares are not individually redeemable); (2) Nasdaq 
Rule 2310, which imposes suitability obligations on Nasdaq members with 
respect to recommending transactions in Managed Fund Shares to 
customers; (3) how information regarding the Intraday Indicative Value 
is disseminated; (4) the requirement that members deliver a prospectus 
to investors purchasing newly issued Managed Fund Shares prior to or 
concurrently with the confirmation of a transaction; (5) the risks 
involved in trading Managed Fund Shares during the Pre-Market and Post-
Market Sessions when an updated Intraday Indicative Fund value will not 
be calculated or publicly disseminated; (6) any exemptive, no-action, 
or interpretive relief granted by the Commission from any rules under 
the Act; (7) related fees and expenses; (8) trading hours of the 
Managed Fund Shares; (9) NAV calculation and dissemination; and (10) 
trading information.
    The Exchange notes that investors purchasing Managed Fund Shares 
directly from a Fund will receive a prospectus. Members purchasing 
Managed Fund Shares from a Fund for resale to investors will deliver a 
prospectus to such investors.
2. Statutory Basis

[[Page 27878]]

    The Exchange believes that the proposed rule change is consistent 
with section 6(b) of the Act,\13\ in general, and furthers the 
objectives of section 6(b)(5) of the Act,\14\ in particular, in that it 
is designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in facilitating 
transactions in securities, and to remove impediments to and perfect 
the mechanism of a free and open market and a national market system. 
The Exchange believes that the proposed rules will facilitate the 
listing and trading of additional types of exchange-traded products 
that will enhance competition among market participants, to the benefit 
of investors and the marketplace. In addition, the Exchange believes 
that the listing and trading criteria set forth in the proposed rules 
are intended to protect investors and the public interest.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    The Exchange states that written comments on the proposed rule 
change were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 35 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 Exchange consents, the Commission will:
    A. By order approve such 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 (https://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File Number SR-NASDAQ-2008-039 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-2008-039. 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 (https://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, 100 F Street, 
NE., Washington, DC 20549, on official business days between the hours 
of 10 a.m. and 3 p.m. Copies of the 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-2008-039 and should 
be submitted on or before June 4, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
---------------------------------------------------------------------------

    \15\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E8-10701 Filed 5-13-08; 8:45 am]
BILLING CODE 8010-01-P
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