
[Federal Register: September 24, 2008 (Volume 73, Number 186)]
[Notices]               
[Page 55175-55180]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24se08-149]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 58591]

 
Securities Exchange Act of 1934; Emergency Order Pursuant to 
Section 12(k)(2) of the Securities Exchange Act of 1934 Taking 
Temporary Action To Respond to Market Developments

September 18, 2008.
    The Commission is aware of the continued potential of sudden and 
excessive fluctuations of securities prices and disruption in the 
functioning of the securities markets that could threaten fair and 
orderly markets. As evidenced by our recent publication of emergency 
orders under Section 12(k) of the Securities Exchange Act of 1934 
(``Exchange Act''),\1\ we are concerned about the possible unnecessary 
or artificial price movements based on unfounded rumors regarding the 
stability of financial institutions and other issuers exacerbated by 
short selling. We also believe that some persons may take advantage of 
issuers that have become temporarily weakened by current market 
conditions to engage in inappropriate short selling in the securities 
of such issuers.
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    \1\ See Exchange Act Release No. 58166 (July 15, 2008), Exchange 
Act Release No. 58572 (September 17, 2008).
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    Given the importance of confidence in our financial markets as a 
whole, we have become concerned about sudden and unexplained declines 
in the prices of securities. Such price declines can give rise to 
questions about the underlying financial condition of an issuer, which 
in turn can create a crisis of confidence without a fundamental 
underlying basis. This crisis of confidence can impair the liquidity 
and ultimate viability of an issuer, with potentially broad market 
consequences.
    As a result of these recent developments, the Commission concluded 
that there continues to exist the potential of sudden and excessive 
fluctuations of securities prices generally and disruption in the 
functioning of the securities markets that could threaten fair and 
orderly markets. Based on this conclusion, the Commission is exercising 
its powers under Section 12(k)(2) of the Exchange Act.\2\ Pursuant to 
Section 12(k)(2), in appropriate circumstances the Commission may by 
order summarily take action to alter, supplement, suspend, or impose 
requirements or restrictions with respect to matters or actions subject 
to regulation by the Commission.
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    \2\ This finding of an ``emergency'' is solely for purposes of 
Section 12(k)(2) of the Exchange Act and is not intended to have any 
other effect or meaning or to confer any right or impose any 
obligation other than set forth in this Order.
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    We have concluded that it is necessary to require certain 
institutional investment managers to report information concerning 
daily short sales of securities. For purposes of this Order, we believe 
that section 13(f) of the Exchange Act and Rule 13f-1 provide useful 
and tested terms and definitions that provide a basis for requiring new 
disclosure. The Order therefore requires that an institutional 
investment manager that exercises investment discretion \3\ with 
respect to accounts holding section 13(f) securities \4\ having an 
aggregate fair market value on the last trading day of any month of any 
calendar year of at

[[Page 55176]]

least $100,000,000 must file a new form with the Commission. 
Specifically, an institutional investment manager who has filed or was 
required to file a Form 13F for the calendar quarter ended June 30, 
2008 under section 13(f) of the Exchange Act and Rule 13f-1(a) 
thereunder will be required to file a report on new Form SH with the 
Commission on the first business day \5\ of every calendar week 
immediately following a week in which it effected short sales.
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    \3\ The term ``investment discretion'' has the same meaning as 
in Exchange Act Rule 13f-1(b). See 17 CFR 240.13f-1(b).
    \4\ The term ``section 13(f) securities'' has the same meaning 
as in Exchange Act Rule 13f-1(c). See 17 CFR 240.13f-1(c).
    \5\ See Exchange Act Rule 0-2 for a description of the business 
hours of the Commission. 17 CFR 240.0-2.
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    The Form SH, which must be filed electronically and will be 
publicly available on our EDGAR system,\6\ must include disclosure of 
the number and value of securities sold short for each section 13(f) 
security, except for short sales in options, and the opening short 
position, closing short position, largest intraday short position, and 
the time of the largest intraday short position, for that security 
during each calendar day of the prior week. No filing, however, will be 
required when no short sales of a section 13(f) security have been 
effected since the previous filing of a Form SH. In addition, this 
disclosure requirement will only apply to short sales effected after 
the effective date of the Order. Finally, an institutional investment 
manager need not report short positions otherwise reportable if: (i) 
The short position in the section 13(f) securities constitutes less 
than one-quarter of one percent of the class of the issuer's section 
13(f) securities issued and outstanding as reported on the issuer's 
most recent annual or quarterly report, and any current report 
subsequent thereto, filed with the Commission pursuant to the Exchange 
Act, unless the manager knows or has reason to believe the information 
contained therein is inaccurate; and (ii) the fair market value of the 
short position in the section 13(f) securities is less than $1,000,000.
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    \6\ No Commission procedure for seeking confidential treatment 
of information filed with or transmitted to the Commission, such as 
those in 17 CFR 200.80, 200.83, or 240.24b-2, shall apply to the 
information that this Order requires to be filed.
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    We believe that the extraordinary circumstances we now confront 
require the new disclosure requirements we are imposing today. We also 
believe such disclosure requirements are in the public interest for the 
protection of investors and will ensure transparency in short selling.
    It is ordered that, pursuant to our Section 12(k)(2) powers:

    Every institutional investment manager that exercises investment 
discretion with respect to accounts holding section 13(f) securities 
and that has filed or was required to file a Form 13F for the 
calendar quarter ended June 30, 2008, as required under section 
13(f) of the Exchange Act and Rule 13f-1(a) thereunder, must file a 
report on Form SH with the Commission. The Form SH filing must be 
made on the first business day of each week immediately following a 
week in which the institutional investment manager has effected any 
short sale with respect to any section 13(f) security that is not an 
option. With respect to each section 13(f) security that is not an 
option, the Form SH filing must reflect the number and value of 
securities sold short during the day as well as the opening short 
position, closing short position, largest intraday short position, 
and the time of the largest intraday short position, for that 
security on each calendar day of the prior week in which the 
institutional investment manager engaged in trading activity with 
respect to short sales.
    Finally, an institutional investment manager need not report 
short positions otherwise reportable if: (i) The short position in 
the section 13(f) securities constitutes less than one-quarter of 
one percent of the class of the issuer's section 13(f) securities 
issued and outstanding as reported on the issuer's most recent 
annual or quarterly report, and any current report subsequent 
thereto, filed with the Commission pursuant to the Exchange Act, 
unless the manager knows or has reason to believe the information 
contained therein is inaccurate; and (ii) the fair market value of 
the short position in the section 13(f) securities is less than 
$1,000,000.
    Short sale has the meaning set forth in Rule 200 of Regulation 
SHO (17 CFR 242.200), and terms referenced in that provision shall 
have the same meaning as set forth in Regulation SHO; and short 
positions to be reported are those resulting from ``short sales'' as 
that term is defined in SEC Rule 200(a) of Regulation SHO.

    It is further ordered that, pursuant to our Section 12(k)(2) 
powers, the text of Form SH be as set forth in the attachment to this 
Order.
    This Order shall be effective at 12:01 a.m. EDT on September 22, 
2008, the first Form SH shall be required to be filed on September 29, 
2008, and this Order shall terminate at 11:59 p.m. on October 2, 2008 
unless further extended by the Commission.

    By the Commission.
J. Lynn Taylor,
Assistant Secretary.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION, WASHINGTON, D.C. 
20549

FORM SH

INFORMATION REQUIRED OF INSTITUTIONAL INVESTMENT MANAGERS PURSUANT TO 
EMERGENCY ORDER, SECURITIES EXCHANGE ACT OF 1934 RELEASE NO. 58591, 
SEPTEMBER 18, 2008

GENERAL INSTRUCTIONS

    1. Rule as to Use of Form SH. Institutional investment managers 
(``Managers'') must use Form SH for reports to the Commission 
required by the Commission's Emergency Order, Securities Exchange 
Act of 1934 Release No. 58591, September 18, 2008 (``September 18, 
2008 Order''). The September 18, 2008 Order provides that every 
Manager that exercises investment discretion with respect to 
accounts holding section 13(f) securities, as defined in paragraph 
(c) of section 13(f) of the Securities Exchange Act of 1934 [15 
U.S.C. 78m(f)] (``Exchange Act''), who has filed or was required to 
file a Form 13F for the calendar quarter ended June 30, 2008, must 
file a report on Form SH with the Commission to report certain 
information about short sales and short positions. The Form SH 
filing must be made on the Monday (or, if Monday is a federal 
holiday, the first business day thereafter) of each calendar week 
immediately following a Form SH reporting period (i.e., the 
preceding Monday-Sunday, or seven calendar days) in which the 
Manager has entered into any new short positions or closed part or 
all of any short positions with respect to any section 13(f) 
securities except for any short position(s) for options (``SH Short 
Positions''). The Form SH will report SH Short Positions for the 
Monday-Sunday immediately preceding the Monday on which the Form SH 
is due to be filed.
    2. Rules to Prevent Duplicative Reporting. If two or more 
Managers, each of which is required by the September 18, 2008 Order 
to file a report on Form SH for the reporting period, exercise 
investment discretion with respect to the same securities, only one 
such Manager must include information in its reports on Form SH.
    A Manager having information that is required by the September 
18, 2008 Order to be reported on Form SH, and such information is 
reported by another Manager (or Managers), such Manager must 
identify the Manager(s) reporting on its behalf in the manner 
described in Special Instruction 6.
    3. Filing of Form SH. A Manager must file a Form SH report with 
the Commission on or before 5:30 p.m. Eastern Standard Time or 
Eastern Daylight Savings Time, whichever currently is in effect in 
Washington, DC (``Eastern Time'') on the Monday (or, if Monday is a 
federal holiday, the first business day thereafter) of each week 
immediately following the preceding seven calendar day period in 
which the Manager

[[Page 55177]]

has entered into any new SH Short Position(s) or closed part or all 
of any SH Short Position(s).
    4. Official List of Section 13(f) Securities. The official list 
of section 13(f) securities published by the Commission (the ``13F 
List'') lists the securities the holdings of which a Manager is to 
report on Form 13F. See rule 13f-1(c) [17 CFR 240.13f-1(c)]. Form SH 
filers may rely on the current 13F List in determining whether they 
need to report on Form SH information about any particular equity 
security, excluding short positions on options. The 13F List is 
available on the SEC's website, at http://www.sec.gov/divisions/
investment/13flists.htm. Paper copies are available at a reasonable 
fee from the Securities and Exchange Commission, Public Reference 
Room, 100 F Street, NE, Washington, DC 20549.

SPECIAL INSTRUCTIONS

    1. This form consists of three parts: the Form SH Cover Page 
(the ``Cover Page''), the Form SH Summary Page (the ``Summary 
Page''), and the Form SH Information Table (the ``Information 
Table'').
    2. When preparing the report, omit all bracketed text. Include 
brackets used to form check boxes.

The Cover Page:

    3. The period end date used in the report (and in the EDGAR 
submission header) is the Sunday before the Form SH is filed. The 
date should name the month, and express the day and year in Arabic 
numerals, with the year being a four-digit numeral (i.e., 2008).
    4. Amendments to a Form SH must either restate the Form SH in 
its entirety or include only entries that are being reported in 
addition to those already reported in a current public Form SH for 
the same period. If the Manager is filing the Form SH report as an 
amendment, then the Manager must check the amendment box on the 
Cover Page; enter the amendment number; and check the appropriate 
box to indicate whether the amendment (a) is a restatement or (b) 
adds new entries. Each amendment must include a complete Cover Page 
and, if applicable, a Summary Page and Information Table. Amendments 
must be filed sequentially.
    5. Present the Cover Page and the Summary Page information in 
the format and order provided in the form. The Cover Page may 
include information in addition to the required information, so long 
as the additional information does not, either by its nature, 
quantity, or manner of presentation, impede the understanding or 
presentation of the required information. Place all additional 
information after the signature of the person signing the report 
(immediately preceding the Report Type section). Do not include any 
additional information on the Summary Page or in the Information 
Table.
    6. Designate the Report Type for the Form SH by checking the 
appropriate box in the Report Type section of the Cover Page, and 
include, where applicable, the List of Other Managers Reporting for 
this Manager (on the Cover Page), the Summary Page and the 
Information Table, as follows:
    a. If all of the information that a Manager is required by the 
September 18, 2008 Order to report on Form SH is reported by another 
Manager (or Managers), check the box for Report Type ``FORM SH 
NOTICE,'' include (on the Cover Page) the List of Other Managers 
Reporting for this Manager, and omit both the Summary Page and the 
Information Table.
    b. If all of the information that a Manager is required by the 
September 18, 2008 Order to report on Form SH is reported in this 
report, check the box for Report Type ``FORM SH ENTRIES REPORT,'' 
omit from the Cover Page the List of Other Managers Reporting for 
this Manager, and include both the Summary Page and the Information 
Table.
    c. If only a part of the information that a Manager is required 
by the September 18, 2008 Order to report on Form SH is reported in 
this report, check the box for Report Type ``FORM SH COMBINATION 
REPORT,'' include (on the Cover Page) the List of Other Managers 
Reporting for this Manager, and include both the Summary Page and 
the Information Table.

Summary Page

    7. Include on the Summary Page the Report Summary, containing 
the Number of Other Included Managers, the Information Table Entry 
Total and the Information Table Value Total.
    a. Enter as the Number of Other Included Managers the total 
number of other Managers listed in the List of Other Included 
Managers on the Summary Page, not counting the Manager filing this 
report. See Special Instruction 8. If none, enter the number zero 
(``0'').
    b. Enter as the Information Table Entry Total the total number 
of line entries providing issuer information included in the 
Information Table.
    c. Enter as the Information Table Value Total the aggregate fair 
market value in U.S. dollars of all securities sold short during the 
reporting period that are reported in this report, i.e., the total 
for Column 5 (Value of Securities Sold Short (Day)) of all line 
entries in the Information Table. The Manager must express this 
total as a rounded figure, corresponding to the individual Column 4 
entries in the Information Table. See Special Instruction 9.
    8. Include on the Summary Page the List of Other Included 
Managers. Use the title, column headings and format provided.
    a. If this Form SH does not report the information that a 
Manager is required by the September 18, 2008 Order to report on 
Form SH of any Manager other than the Manager filing this report, 
enter the word ``NONE'' under the title and omit the column headings 
and list entries.
    b. If this Form SH reports the information that a Manager is 
required by the September 18, 2008 Order to report on Form SH of one 
or more Managers other than the Manager filing this report, enter in 
the List of Other Included Managers all such Managers together with 
their respective Form 13F file numbers, if known. (The Form 13F file 
numbers are assigned to Managers when they file their first Form 
13F.) Assign a number to each Manager in the List of Other Included 
Managers, and present the list in sequential order. The numbers need 
not be consecutive. The List of Other Managers cannot include the 
Manager filing this report.

Information Table

    9. In determining the fair market value of securities sold 
short, a Manager must use the market price of the section 13(f) 
securities as of the close of floor trading on the New York Stock 
Exchange (``NYSE'') for the day in question. If the securities are 
sold short on a non-business day, a Manager must use the market 
price of the section 13(f) securities as of the close of the NYSE 
for the most recent business day. Such market closing time shall be 
used to determine the price for all SH Short Positions, irrespective 
of which U.S. equity market the issuer trades on. Enter values 
rounded to the nearest one thousand dollars (with ``000'' omitted).
    10. Furnish the Information Table using the table title, column 
headings and format provided. Provide column headings once at the 
beginning of the Information Table; repetition of column headings on 
subsequent pages is not required. Present the table in accordance 
with the column instructions provided in Special Instructions 10.a.i 
through 10.a.viii. Do not include any additional information in the 
Information Table. Begin the Information Table on a new page; do not 
include any portion of the Information Table on either the Cover 
Page or the Summary Page.
    a. Instructions for each column in the Information Table:
    i. Column 1. Name of Issuer. Enter in Column 1 the name of the 
issuer as it appears in the current official list of Section 13(f) 
Securities published by the Commission in accordance with rule 13f-
1(c) (the ``13F List''). Reasonable abbreviations are permitted.
    ii. Column 2. CUSIP Number. Enter in Column 2 the nine (9) digit 
CUSIP number of the security for which information is being 
reported.
    iii. Column 3. Short Position (Start of Day). Enter in Column 3 
the number of securities that represent the Manager's short position 
in the issuer as of the start of each calendar day (or days, in the 
case of Saturday and Sunday) during the reporting period. The Short 
Position (Start of Day) for Monday, September 22, 2008 shall be 
zero.
    iv. Column 4. Number of Securities Sold Short (Day). Enter in 
Column 4 the aggregate number of securities in the issuer that the 
Manager sold short for each calendar day (or days, in the case of 
Saturday and Sunday) during the reporting period.
    v. Column 5. Value of Securities Sold Short (Day). Enter in 
Column 5 the market value in U.S. dollars of the number of 
securities reported in Column 4. In valuing such securities, use the 
fair market value for each security, as set forth in Special 
Instruction 9, supra.
    vi. Column 6. Short Position (End of Day). Enter in Column 6 the 
number of securities that represent the Manager's short position in 
the issuer as of the end each calendar day (or days, in the case of 
Saturday and Sunday) during the reporting period.
    vii. Column 7. Largest Intra-Day Short Position. Enter in Column 
7 the number of securities that represent the Manager's largest 
single short position in the issuer for each calendar day (or days, 
in the case of Saturday and Sunday) during the reporting period.

[[Page 55178]]

    viii. Column 8. Time of Day of Largest Intra-Day Short Position. 
Enter in Column 7 the time of day (Eastern Time) that the Manager 
had the largest single short position in the issuer, as reported in 
Column 7.
    11. Preparation of the electronic filing:
    a. No line on the Cover Page or the Summary Page may exceed 80 
characters in length. See rule 305 of Regulation S-T [17 CFR 
232.305].
    b. No line in the Form SH Information Table may exceed 132 
characters in length. See rule 305 of Regulation S-T [17 CFR 
232.305].
    c. If the Form SH Report Type is ``SH ENTRIES REPORT'' or ``SH 
COMBINATION REPORT,'' then place one EDGAR  tag at the end of 
the Cover Page and one  tag at the end of the Summary Page. 
Additional EDGAR  tags are not required. Those electing to 
include additional  tags should, for each page containing a 
 tag, include no more than sixty (60) lines per page, 
including the line on which the  tag is placed.
    d. In preparing the Form SH report for electronic filing, a 
Manager may omit underscoring used in the form to indicate the 
placement of information that the Manager is to furnish.
    e. Use the following EDGAR submission types for the following 
Form SH Report Types:

------------------------------------------------------------------------
          Form SH report type                 EDGAR submission type
------------------------------------------------------------------------
FORM SH ENTRIES REPORT:
    Initial Filing.....................  SH-ER.
    Amendments.........................  SH-ER/A.
FORM SH NOTICE:
    Initial Filing.....................  SH-NT.
    Amendments.........................  SH-NT/A.
FORM SH COMBINATION REPORT:
    Initial Filing.....................  SH-ER.
    Amendments.........................  SH-ER/A.
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION, Washington, DC 20549

FORM SH

FORM SH COVER PAGE

Report for the Period Ended:
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[Month, Day, Year]

Check here if Amendment [ballot];
Amendment Number:------------------------------------------------------
This Amendment (Check only one):
[ballot] is a restatement.
[ballot] adds new entries.

Institutional Investment Manager Filing this Report:

Name:------------------------------------------------------------------
Address:---------------------------------------------------------------
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Form 13F File Number: 28-----------------------------------------------

The institutional investment manager filing this report and the 
person by whom it is signed hereby represent that the person signing 
the report is authorized to submit it, that all information 
contained herein is true, correct and complete, and that it is 
understood that all required items, statements, schedules, lists, 
and tables, are considered integral parts of this form.

Person Signing this Report on Behalf of Reporting Manager:

Name:------------------------------------------------------------------
Title:-----------------------------------------------------------------
Phone:-----------------------------------------------------------------

Signature, Place, and Date of Signing:

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[Signature]

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[City, State]

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[Date]

Report Type (Check only one):

[ballot] FORM SH ENTRIES REPORT. (Check here if all entries of this 
reporting manager are reported in this report.)

[ballot] FORM SH NOTICE. (Check here if no entries reported are in 
this report, and all entries are reported by other reporting 
manager(s).)

[ballot] FORM SH COMBINATION REPORT. (Check here if a portion of the 
entries for this reporting manager is reported in this report and a 
portion is reported by other reporting manager(s).)

List of Other Managers Reporting for this Manager:
[If there are no entries in this list, omit this section.]
Form 13F File Number
28---------------------------------------------------------------------
Name-------------------------------------------------------------------
[Repeat as necessary.]

FORM SH SUMMARY PAGE

Report Summary:

Number of Other Included Managers:
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Form SH Information Table Entry Total:
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Form SH Information Table Value Total:
(thousands)------------------------------------------------------------

List of Other Included Managers:

Provide a numbered list of the name(s) and Form 13F file number(s) 
of all institutional investment managers with respect to which this 
Form SH report is filed, other than the manager filing this report.

[If there are no entries in this list, state ``NONE'' and omit the 
column headings and list entries.]
No.--------------------------------------------------------------------
Form 13F File Number Name
28---------------------------------------------------------------------
Name-------------------------------------------------------------------
[Repeat as necessary.]

                                                            FORM SH INFORMATION TABLE--PAGE 1
                                                               MONDAY, [Month, Day, Year]

                                                                             Number of       Value of                                     Time of day of
                                                          Short position    securities      securities    Short position  Largest intra-  largest intra-
             Name of issuer                    CUSIP      (start of day)    sold short      sold short     (end of day)      day short       day short
                                                                               (day)           (day)                         position        position






[[Page 55179]]


                                                            FORM SH INFORMATION TABLE--PAGE 2
                                                               TUESDAY, [Month, Day, Year]

                                                                             Number of       Value of                                     Time of day of
                                                          Short position    securities      securities    Short position  Largest intra-  largest intra-
             Name of issuer                    CUSIP      (start of day)    sold short      sold short     (end of day)      day short       day short
                                                                               (day)           (day)                         position        Position






                                                            FORM SH INFORMATION TABLE--PAGE 3
                                                              WEDNESDAY, [Month, Day, Year]

                                                                             Number of       Value of                                     Time of day of
                                                          Short position    securities      securities    Short position  Largest intra-  largest intra-
             Name of issuer                    CUSIP      (start of day)    sold short      sold short     (end of day)      day short       day short
                                                                               (day)           (day)                         position        position






                                                            FORM SH INFORMATION TABLE--PAGE 4
                                                              THURSDAY, [Month, Day, Year]

                                                                             Number of       Value of                                     Time of day of
                                                          Short position    securities      securities    Short position  Largest intra-  largest intra-
             Name of issuer                    CUSIP      (start of day)    sold short      sold short     (end of day)      day short       day short
                                                                               (day)           (day)                         position        position

                                          ..............  ..............  ..............  ..............  ..............  ..............  ..............




[[Page 55180]]


                                                            FORM SH INFORMATION TABLE--PAGE 5
                                                               FRIDAY, [Month, Day, Year]

                                                                             Number of       Value of                                     Time of day of
                                                          Short position    securities      securities    Short position  Largest intra-  largest intra-
             Name of issuer                    CUSIP      (start of day)    sold short      sold short     (end of day)      day short       day short
                                                                               (day)           (day)                         position        position

                                          ..............  ..............  ..............  ..............  ..............  ..............  ..............




                                                            FORM SH INFORMATION TABLE--PAGE 6
                                                           SATURDAY-SUNDAY, [Month, Day, Year]

                                                                             Number of       Value of                                     Time of day of
                                                          Short position    securities      securities    Short position  Largest intra-  largest intra-
             Name of issuer                    CUSIP      (start of day)    sold short      sold short     (end of day)      day short       day short
                                                                               (day)           (day)                         position        position

                                          ..............  ..............  ..............  ..............  ..............  ..............  ..............






















[FR Doc. E8-22487 Filed 9-23-08; 8:45 am]

BILLING CODE 8010-01-P
