[Federal Register Volume 59, Number 73 (Friday, April 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9114]


[[Page Unknown]]

[Federal Register: April 15, 1994]


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SECURITIES AND EXCHANGE COMMISSION
[Release No. IC-20209; 812-8836]

 

ML Venture Partners II, L.P. et al.; Notice of Application April 
8, 1994.

AGENCY: Securities and Exchange Commission (the ``SEC'' or the 
``Commission'').

ACTION: Notice of application for an order under the Investment Company 
Act of 1940 (the ``Act'').

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APPLICANTS: ML Venture Partners II, L.P. (``MLVP II''), ML Oklahoma 
Venture Partners, Limited Partnership (``ML Oklahoma,'' and, together 
with MLVP II, the ``Partnerships''), Merrill Lynch, Pierce, Fenner & 
Smith Incorporated (``Merrill Lynch''), and Donaldson, Lufkin & 
Jenrette Securities Corporation (``DLJ'').

RELEVANT ACT SECTIONS: Exemption requested under section 57(c) from the 
provisions of section 57(a)(2).

SUMMARY OF APPLICATION: Applicants seek an order relating to the sale 
of shares of common stock of (i) Eckerd Corporation (``Eckerd''), Borg-
Warner Security Corporation (``B-W Security'') and Borg-Warner 
Automotive, Inc. (``B-W Automotive'') by MLVP II in an underwriting in 
which Merrill Lynch and/or DLJ are members of the underwriting 
syndicate, and (ii) Eckerd by ML Oklahoma in an underwriting in which 
Merrill Lynch is a member of the underwriting syndicate.

FILING DATE: The application was filed on February 18, 1994. By 
supplemental letter dated April 8, 1994, counsel, on behalf of 
applicants, agreed to file an amendment during the notice period to 
make certain technical changes. This notice reflects the changes to be 
made to the application by such amendment.

HEARING OR NOTIFICATION OF HEARING: An order granting the application 
will be issued unless the SEC orders a hearing. Interested persons may 
request a hearing by writing to the SEC's Secretary and serving 
applicants with a copy of the request, personally or by mail. Hearing 
requests should be received by the SEC by 5:30 p.m. on May 2, 1994, and 
should be accompanied by proof of service on the applicants, in the 
form of an affidavit or, for lawyers, a certificate of service. Hearing 
requests should state the nature of the writer's interest, the reasons 
for the request, and the issues contested. Persons who wish to be 
notified of a hearing may request such notification by writing to the 
SEC's Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth Street NW., Washington, DC 20549. 
MLVP II and Merrill Lynch, North Tower, World Financial Center, New 
York, New York 10281. ML Oklahoma, 6100 South Yale, One Warren Place, 
Suite 2019, Tulsa, Oklahoma 74136. DLJ, 140 Broadway, New York, New 
York 10005.

FOR FURTHER INFORMATION CONTACT: Marilyn Mann, Special Counsel, (202) 
504-2259, or Barry D. Miller, Senior Special Counsel, (202) 272-3018 
(Division of Investment Management, Office of Investment Company 
Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained for a fee from 
the SEC's Public Reference Branch.

Applicants' Representations

    1. MLVP II, a Delaware limited partnership, is a business 
development company under the Act. The investment objective of MLVP II 
is to seek long-term capital appreciation by making venture capital 
investments. The General Partners of MLVP II consist of the MLVP II 
Individual General Partners and the MLVP II Managing General Partner. 
The MLVP II Individual General Partners include the three MLVP II 
Independent General Partners (defined to be individuals who are not 
``interested persons'' of MLVP II) and one general partner who is an 
individual and who is an affiliated person of the MLVP II Managing 
General Partner MLVP II Co., L.P., the MLVP II Managing General 
Partner, is a limited partnership controlled by its general partner, 
Merrill Lynch Venture Capital Inc. (the ``Management Company''). The 
Management Company, an indirect subsidiary of Merrill Lynch & Co., Inc. 
(``ML & Co.''), performs, or arranges for the performance of, the 
management and administrative services necessary for the operation of 
MLVP II. On May 23, 1991, MLVP II, the MLVP II Managing General 
Partner, and the Management Company retained DLJ Capital Management 
Corporation (the ``Sub-Manager''), an indirect wholly-owned subsidiary 
of Donaldson, Lufkin & Jenrette, Inc., to provide management services 
in connection with the venture capital investments of MLVP II pursuant 
to a Sub-Management Agreement dated as of that date (the ``Sub-
Management Agreement''). Under the Sub-Management Agreement, the Sub-
Manager is primarily responsible for the venture capital investments of 
MLVP II. The agreement provides that the Sub-Manager shall, subject to 
the overall supervision of the MLVP II Individual General Partners, 
``make all decisions regarding Venture Capital Investments and, among 
other things, find, evaluate, structure, monitor and liquidate such 
investments.''
    2. ML Oklahoma, an Oklahoma limited partnership, is a business 
development company under the Act. The investment objective of ML 
Oklahoma is to seek long-term capital appreciation by making venture 
capital investments. ML Oklahoma has been organized to qualify as a 
``qualified venture capital company'' under Oklahoma law and intends to 
invest at least 55% of its capitalization in companies that constitute 
``Oklahoma business ventures'' under Oklahoma law. The General Partners 
of ML Oklahoma consist of the ML Oklahoma Individual General Partners 
and the ML Oklahoma Managing General Partner. The ML Oklahoma 
Individual General Partners include the three ML Oklahoma Independent 
General Partners (defined to be individuals who are not ``interested 
persons'' of ML Oklahoma) and one general partner who is an individual 
and who is an affiliated person of the ML Oklahoma Managing General 
Partner. MLOK Co., Limited Partnership, the ML Oklahoma Managing 
General Partner, is responsible for identification and management of ML 
Oklahoma's venture capital investments. The general partner of the ML 
Oklahoma Managing General Partner is the Management Company, which 
performs, or arranges for the performance of, the management and 
administrative services necessary for ML Oklahoma.
    3. Merrill Lynch, a Delaware corporation, is the principal 
subsidiary of ML & Co., Inc. ML & Co., a Delaware corporation, is a 
diversified financial services holding company which, through its 
subsidiaries, provides investment and financing, insurance, real 
estate, and related services.
    4. DLJ, a Delaware corporation, is a wholly-owned subsidiary of 
Donaldson, Lufkin & Jenrette, Inc., a holding company which through its 
subsidiaries engages in the following activities: investment banking, 
merchant banking, public finance, trading, distribution, and research. 
Donaldson, Lufkin & Jenrette, Inc. is a subsidiary of The Equitable 
Companies Incorporated.
    5. Eckerd, a Delaware corporation, operates the Eckerd Drug Store 
chain, which is the third largest drug store chain in the United 
States. Eckerd was formed in 1985 for the purposes of effecting the 
leveraged buyout of Jack Eckerd Corporation, a Florida corporation. The 
$1.43 billion leveraged buyout was structured by Merrill Lynch Capital 
Partners, Inc. (``MLCP''), a Delaware corporation and wholly-owned 
subsidiary of ML & Co., on April 30, 1986.
    6. In early 1990, Eckerd negotiated the acquisition of 223 
drugstores from Revco D.S. Inc. and Revco Discount Drug Centers, Inc. 
(collectively, ``Revco''). Eckerd Holdings II, Inc. (``Eckerd II''), a 
Delaware corporation, was formed for the purpose of completing the 
acquisition of the 223 drug stores. Eckerd II was initially financed by 
Merrill Lynch Interfunding, Inc. (``MLIF''), an indirect wholly-owned 
subsidiary of ML & Co. specializing in leveraged buyouts, bridge loans, 
and other short-term financings, and other affiliates of ML & Co. (the 
``Merrill Lynch Investors''). MLIF and the other Merrill Lynch 
Investors subsequently exchanged their shares of Eckerd II for shares 
of common stock of EDS Holdings, Inc., a newly formed Delaware 
corporation (``EDS Holdings''), and Eckerd II became a wholly-owned 
subsidiary of EDS Holdings. Pursuant to a management agreement, Eckerd 
operated the drugstores owned by Eckerd II from 1990 to 1993. As of 
November 20, 1990, MLIF owned 484,877 shares of EDS Holdings Class A 
voting common stock and certain other affiliates of ML & Co. owned 
1,663,920 shares of EDS Holding Class A voting common stock.
    7. In February 1991, MLIF offered to sell 71,417 shares of its EDS 
Holdings common stock to MLVP II at its original cost of $12.00 per 
share or $857,004, plus reimbursement for its costs of carrying such 
investment from July 23, 1990 until the date of acquisition by MLVP II. 
Also in February 1991, MLIF offered to sell 11,916 shares of its EDS 
Holdings common stock to ML Oklahoma at its original cost of $12.00 per 
share or $142,992, plus reimbursement for its costs of carrying the 
investment from July 23, 1990 until the date of acquisition by ML 
Oklahoma. Since MLVP II, ML Oklahoma and MLIF may have been deemed to 
be under the control of ML & Co., MLVP II and ML Oklahoma refrained 
from purchasing the shares of EDS Holdings common stock from MLIF 
pending the receipt of an exemptive order from the Commission.
    Accordingly, MLIF granted MLVP II an option to purchase the 71,417 
shares of EDS Holdings common stock at $12.00 per share or $857,004, 
plus reimbursement for MLIF's costs of carrying the investment from 
July 23, 1990 until the date of acquisition by MLVP II. Similarly, MLIF 
granted ML Oklahoma an option to purchase the 11,916 shares of EDS 
Holdings common stock at $12.00 per share or $142,992, plus 
reimbursement for MLIF's costs of carrying the investment from July 23, 
1990 until the date of acquisition by ML Oklahoma.
    8. On May 29, 1992, the Commission issued an order (the ``Eckerd 
Order'') pursuant to sections 6(c) and 57(c) of the Act exempting the 
purchase by MLVP II and ML Oklahoma of the common stock of EDS Holdings 
from MLIF from the provisions of section 57(a)(1) of the Act and 
authorizing such purchase pursuant to sections 57(i) and 17(d) of the 
Act and rule 17d-1 thereunder.\1\
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    \1\ML Venture Partners II, L.P. (Investment Company Act Release 
Nos. 18687 (April 30, 1992) (notice) and 18740 (May 29, 1992) 
(order).
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    9. On July 20, 1992, in accordance with the terms of the Eckerd 
Order, MLVP II acquired 71,417 shares of common stock of EDS Holdings. 
MLVP II's cost of such acquisition aggregated $857,004, or $12.00 per 
share, plus carrying costs of $106,522, or $1.49 per share. On July 22, 
1992, in accordance with the terms of the Eckerd Order, ML Oklahoma 
acquired 11,916 shares of common stock of EDS Holdings. ML Oklahoma's 
cost of such acquisition aggregated $142,992 or $12.00 per share, plus 
carrying costs of $17,804, or $1.49 per share.
    10. On August 5, 1993, 4,500,000 shares of common stock of Eckerd 
were offered to the public in an underwritten offering lead-managed by 
Merrill Lynch. Prior to such offering, the holders of EDS Holdings 
common stock, including MLVP II and ML Oklahoma, exchanged their shares 
for shares of common stock of Eckerd pursuant to an Exchange Agreement 
with Eckerd under which the shareholders of EDS Holdings had the right 
to exchange their shares for shares of Eckerd on a one-for-one basis. 
Subsequent to such exchange, EDS Holdings was merged into Eckerd with 
Eckerd II becoming a wholly-owned subsidiary of Eckerd. Since the 
initial public offering, the common stock of Eckerd has traded on the 
New York Stock Exchange (the ``NYSE'') under the symbol ``ECK.'' In 
addition to the purchasers in the public offering and in subsequent 
secondary market transfers, the stockholders of Eckerd include MLVP II, 
ML Oklahoma, certain affiliates of ML & Co., members of management, and 
other institutional investors.
    11. As of January 31, 1994, MLVP II owned 92,843 shares, or 0.3%, 
of the outstanding common stock of Eckerd. At such date, ML Oklahoma 
owned 15,491 shares, or 0.05%, of such common stock. At such date, 
affiliates of ML & Co. (excluding MLVP II and ML Oklahoma) owned 
14,588,770 shares, or approximately 47.03%, of such common stock.
    12. B-W Security, a Delaware corporation, is engaged in the 
business of providing protective services, including guard, alarm, 
armored transport, and courier services. B-W Automotive, a Delaware 
corporation, develops, manufactures and markets highly engineered 
components primarily for automotive powertrain applications.
    13. During 1987, MLCP structured a leveraged buyout of Borg-Warner 
Corporation (``Old Borg-Warner''), a predecessor of B-W Security and B-
W Automotive. As a result of such leveraged buyout, all of Old Borg-
Warner's equity securities were owned by Borg-Warner Holdings 
Corporation (``Borg-Warner Holdings''). Pursuant to a series of 
transactions, ML & Co. and its affiliates acquired 10.2 million shares 
of Borg-Warner Holdings common stock at $10.00 per share.
    14. At the time such shares were acquired by ML & Co. and its 
affiliates, MLCP offered 500,000 shares to MLVP II. The investment by 
MLVP II could not be made concurrently with the other ML & Co. 
affiliated entities without obtaining exemptive relief from the 
Commission with respect to certain provisions of the Act. Accordingly, 
the Management Company agreed to purchase and hold the 500,000 shares 
offered to MLVP II and to sell such shares to MLVP II at a price 
determined as described below following the granting of such exemptive 
relief. The purchase price to be paid by MLVP II to the Management 
Company for the Borg-Warner Holdings common stock was calculated based 
on a formula of the lower of (i) the value of the investments on the 
date MLVP II acquired such common stock (as determined by the MLVP II 
Independent General Partners) or (ii) the cost to the Management 
Company of purchasing and holding the investment.
    15. On September 1, 1988, the Commission issued an order exempting 
the purchase by MLVP II of the common stock of Borg-Warner Holdings 
from the provisions of section 57(a)(1) of the Act and authorizing such 
purchase pursuant to sections 57(i) and 17(d) of the Act and rule 17d-1 
thereunder.\2\ On September 9, 1988, the MLVP II Individual General 
Partners approved the acquisition by MLVP II of 500,000 shares of Class 
A common stock of Borg-Warner Holdings. The cost of such acquisition 
aggregated $5,000,000, or $10.00 per share, plus carrying costs of 
$427,231, or $.85 per share. Borg-Warner Holdings subsequently changed 
its name to Borg-Warner Corporation (``Borg-Warner'').
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    \2\ML Venture Partners II, L.P., Investment Company Act Release 
Nos. 16517 (Aug. 8, 1988) (notice) and 16545 (Sept. 1, 1988) 
(order).
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    16. In January 1993, Borg-Warner spun-off B-W Automotive to its 
existing shareholders, giving each shareholder, including MLVP II, one 
share of B-W Automotive for each share of Borg-Warner owned at such 
date. Borg-Warner subsequently changed its name to B-W Security.
    17. On January 19, 1993, 3,300,000 shares of common stock of B-W 
Security were offered to the public at $18.50 per share in an 
underwritten offering lead-managed by Merrill Lynch. On August 12, 
1993, 3,500,000 shares of common stock of B-W Automotive were offered 
to the public at $25.00 per share in an underwritten offering lead-
managed by Merrill Lynch. The common stock of both B-W Security and B-W 
Automotive trade presently on the NYSE under the symbols ``BOR'' and 
``BWA,'' respectively. In addition to purchasers in the public 
offerings and in subsequent secondary market transfers, the 
stockholders of B-W Security and B-W Automotive include MLVP II, 
certain affiliates of ML & Co., members of management, and other 
institutional investors.
    18. As of January 31, 1994, MLVP II owned 500,000 shares or 
approximately 2.48% of the outstanding common stock of each of B-W 
Security and B-W Automotive. At such date, affiliates of ML & Co. 
(excluding MLVP II) owned 9,700,000 shares or approximately 48.2% of 
the outstanding common stock of each of B-W Security and B-W 
Automotive.
    19. Although MLVP II has made no determination as to the time at 
which it would like to sell its investments in Eckerd, B-W Securities, 
and B-W Automotive, MLVP II is now considering alternative methods of 
disposing of such investments. One of these companies has made an 
initial filing with respect to a proposed secondary offering of its 
securities.

Applicants' Legal Analysis

    1. MLVP II, ML Oklahoma, Merrill Lynch, and DLJ request an order of 
the Commission pursuant to section 57(c) exempting from the provisions 
of section 57(a)(2) sales of shares of common stock of (i) Eckerd, B-W 
Securities, and B-W Automotive, MLVP II in underwritings in which 
Merrill Lynch and/or DLJ are members of the underwriting syndicate, and 
(ii) Eckerd by ML Oklahoma in underwritings in which Merrill Lynch is a 
member of the underwriting syndicate.\3\
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    \3\Applicants do not believe that the proposed transactions 
would constitute joint transactions under section 57(a)(4) and rule 
17d-1 and therefore have not requested that the order include relief 
under that section and rule. Applicants recognize that the 
Commission expresses no opinion on this issue.
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    2. Section 57(a)(2) prohibits certain affiliates of a business 
development company from purchasing any security or other property on a 
principal basis from the business development company or from any 
company controlled by the business development company, except 
securities of which the seller is the issuer. Section 57(b) provides, 
in part, that the affiliates affected by section 57(a) include any 
``person directly or indirectly either controlling, controlled by or 
under common control with'' the business development company. Section 
57(c) provides that a person may file an application with the 
Commission for an order exempting a proposed transaction from one or 
more provisions of section 57(a) (1)-(3), and that the Commission shall 
issue such an order if evidence establishes that: (a) the terms of the 
proposed transaction, including the consideration to be paid or 
received, are reasonable and fair and do not involve overreaching of 
the business development company or its shareholders or partners on the 
part of any person concerned; (b) the proposed transaction is 
consistent with the policy of the business development company as 
recited in the filings made by such company with the Commission under 
the Securities Act of 1933, its registration statement and reports 
filed under the Securities Exchange Act of 1934, and its report to 
shareholders or partners; and (c) the proposed transaction is 
consistent with the general purposes of the Act.
    3. Applicants believe that the Management Company is controlled by 
ML & Co. and that ML & Co. might be deemed to exercise a controlling 
influence over MLVP II, ML Oklahoma and Merrill Lynch since the general 
partner of the MLVP II Managing General Partner and ML Oklahoma 
Managing General Partner is an indirect subsidiary of ML & Co. and 
Merrill Lynch is an indirect wholly-owned subsidiary of ML & Co. 
Likewise, applicants believe that the Sub-Manager Is controlled by 
Donaldson, Lufkin & Jenrette, Inc. and that Donaldson, Lufkin & 
Jenrette, Inc. might be deemed to exercise a controlling influence over 
MLVP II and DLJ since the Sub-Manager has primary control over the 
venture capital investments of MLVP II and DLJ is a wholly-owned 
subsidiary of Donaldson, Lufkin & Jenrette, Inc. As a result of these 
affiliations, sales of securities on a principal basis by MLVP II to 
Merrill Lynch and/or DLJ and ML Oklahoma to Merrill Lynch are 
prohibited by section 57(a) of the Act and cannot be effected unless an 
order is obtained pursuant to section 57(c) of the Act.
    4. Applicants submit that the statutory standards set forth above 
will be satisfied with respect to the relief requested under section 
57(c) of the Act. In this connection, applicants believe that the 
structure of the proposed transaction has been designed to insure that 
the terms of the transaction will be fair and reasonable, will not 
involve overreaching on the part of any person concerned, and will 
eliminate the possibility of abuses of the potential conflict of 
interest. The terms of the proposed transaction provide that the 
Partnerships will only sell shares in an underwritten offering in which 
Merrill lynch and/or DLJ (in the case of MLVP II) are members of the 
underwriting syndicate if certain conditions are met. The Sub-Manager 
for MLVP II and the ML Oklahoma Managing General Partner must initially 
evaluate the proposed transaction and determine to recommend the sale 
of the investments.
    5. The abuses that section 57(a)(2) is designed to deter are 
limited with respect to the proposed transactions. The shares of each 
of Eckerd, B-W Securities, and B-W Automotive are traded on the NYSE 
and the price to be paid for shares in an underwritten offering will 
approximate the trading price of such shares on the NYSE less an 
underwriting discount. The underwriting terms with respect to the 
Partnerships' sale of shares must be on the same terms applicable to 
any selling shareholder participating in the offering, including terms 
applicable to affiliates of ML & Co. and/or DLJ (with respect to sales 
by MLVP II). The underwriting terms and arrangements, including the 
underwriting discount, will be reviewed and passed upon by the NASD and 
by the Individual General Partners, and separately by the Independent 
General Partners.
    6. Liquidity in portfolio investments is becoming increasingly 
important as MLVP II and ML Oklahoma approach their eighth and sixth 
year, respectively, of their ten year terms. The ability to sell shares 
in an underwritten offering in which Merrill Lynch and/or DLJ (in the 
case of MLVP II) are acting as underwriters may provide liquidity not 
otherwise available to the Partnerships. With respect to ML Oklahoma 
and MLVP II's investments in Eckerd and MLVP II's investments in B-W 
Security and B-W Automotive, the Partnerships are significantly 
restricted in the number of shares they can sell in the public market. 
Due to their affiliation with such companies through Merrill Lynch, 
sales by the Partnerships in the public market of shares of such 
companies are subject to the volume limitations contained in rule 144 
under the Securities Act of 1933. In this regard, the Partnerships' 
sales may be subject to further aggregation with sales by affiliates of 
Merrill Lynch, further limiting the Partnerships' ability to liquidate 
their investments. Given the substantial holdings of affiliates of 
Merrill Lynch in Eckerd, B-W Security and B-W Automotive, and the fact 
that Merrill Lynch acted as lead managing underwriter for such 
companies in their respective initial public offerings, it is likely 
that Merrill Lynch will be the lead managing underwriter or otherwise a 
member of the underwriting syndicate in future offerings of such 
companies' securities. Thus, in the absence of the requested relief, 
MLVP II and ML Oklahoma will be at a substantial disadvantage because 
they will be unable to liquidate their holdings at a time when other 
Merrill Lynch affiliates are selling shares in an underwritten offering 
for which Merrill Lynch and/or DLJ (in the case of MLVP II) are members 
of the underwriting syndicate.
    7. MLVP II and ML Oklahoma believe that the relief requested is 
consistent with the purpose of MLVP II and ML Oklahoma, their stated 
policies and the disclosure made to their prospective investors. 
Applicants also believe that the proposed transactions are in the best 
interests of MLVP II and ML Oklahoma to the extent that such 
transactions permit the Partnerships to liquidate portfolio securities 
on favorable terms and in a more expeditious manner than would 
otherwise be available.

Applicants' Conditions

    Applicants agree that the order of the Commission granting the 
requested relief shall be subject to the following conditions:\4\
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    \4\The conditions with respect to the sale of the Partnerships' 
respective investments in Eckerd, and MLVP II's investments in B-W 
Security and B-W Automotive (the ``Investments'') are identical for 
MLVP II and ML Oklahoma, except that references to the Sub-Manager 
are to be considered references to the ML Oklahoma Managing General 
Partner in the case of ML Oklahoma, and references to Merrill Lynch 
and/or DLJ are to be considered references to Merrill Lynch alone in 
the case of ML Oklahoma. References to the ``Partnership'' refer to 
either MLVP II or ML Oklahoma.
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    1. If the Partnership is offered the opportunity to sell shares of 
an Investment in an underwritten offering in which Merrill Lynch and/or 
DLJ is a member of the underwriting syndicate, the Sub-Manager will 
review the terms of the proposed offering. The Sub-Manager will provide 
a written report to the Independent General Partners which will set 
forth the Sub-Manager's recommendation as to whether the Partnership 
should sell shares in such underwritten offering based on the Sub-
Manager's analysis of all factors it deems relevant, including the 
terms of the proposed underwritten offering.
    2. The Partnership will be given the opportunity to sell shares in 
such underwritten offering on at least a proportionate basis with 
affiliates of Merrill Lynch and DLJ (if any), and on the same terms 
applicable to any selling shareholders participating in the offering, 
including terms applicable to affiliates of ML & Co. and DLJ (if any) 
selling shares in such offering. In this regard, the underwriting 
discount with respect to such offering will be no larger than the 
customary underwriting discount charged by underwriters for equity 
securities in similar transactions.
    3. The Partnership will only participate in such underwritten 
offering if the shares to be sold continue to be traded on the NYSE as 
of the date of the offering and if the offering price is determined by 
reference to, and approximates, the price of the shares on the NYSE at 
the time the offering price is determined.
    4. The underwriting terms and arrangements with respect to the 
proposed transaction must be determined by the Individual General 
Partners, and a majority of the Independent General Partners, to be 
fair and reasonable.
    5. If the Sub-Manager, on the basis of its evaluation described 
above, recommends that the Partnership sell shares in such underwritten 
offering the Individual General Partners shall then determine whether, 
in their view, it is in the best interests of the Partnership to sell 
shares in such underwritten offering. The Partnership shall only sell 
shares in such underwritten offering if the Individual General 
Partners, including a majority of the Independent General Partners, 
determine that:
    (i) The terms of the proposed transaction, including the 
consideration to be paid to the Partnership, are reasonable and fair 
and to not involve overreaching of the Partnership or its partners on 
the part of any person concerned;
    (ii) The proposed transaction is consistent with the policy of the 
Partnership as indicated in its filings under the Securities Act of 
1933 and the Securities Exchange Act of 1934, and its reports to its 
partners; and
    (iii) Participation by the Partnership in the proposed transaction 
is in the best interests of the Partners of the Partnership.
    6. The Partnership will maintain the records required by section 
57(f)(3) of the Act as if each of the transactions permitted under 
these conditions were approved by the Independent General Partners 
under section 57(f).

    For the SEC, by the Division of Investment Management, under 
delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-9114 Filed 4-14-94; 8:45 am]
BILLING CODE 8010-01-M