[Federal Register Volume 59, Number 200 (Tuesday, October 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25727]


[[Page Unknown]]

[Federal Register: October 18, 1994]


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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-34820; File No. SR-Amex-94-27]

 

Self-Regulatory Organizations; Order Approving a Proposed Rule 
Change by the American Stock Exchange, Inc. Relating to the Listing and 
Trading of Basic Industry Portfolio Index Term Notes

October 11, 1994.

I. Introduction

    On August 8, 1994, the American Stock Exchange, Inc. (``Amex'' or 
``Exchange''), pursuant to Section 19(b)(1) of the Securities Exchange 
Act of 1934 (``Act'')\1\ and Rule 19B-4 Thereunder,\2\ filed with the 
Securities and Exchange Commission (``SEC'' or ``Commission'') a 
proposed rule change to list and trade Indexed Term Notes (``Notes''), 
the return on which is based upon a portfolio of securities issued by 
companies involved in ``basic'' industries\3\ (``Basic Industry 
Portfolio''). The Exchange filed Amendment No. 1 to the proposal on 
August 24, 1994.\4\ Notice of the proposal, as amended, appeared in the 
Federal Register on August 31, 1994.\5\ No comment letters were 
received on the proposed rule change. This order approves the proposal, 
as amended.
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    \1\15 U.S.C. 78s(b)(1) (1988).
    \2\17 CFR 240.19b-4 (1992).
    \3\Basic industries would include such industries as chemicals, 
steel, aluminum, paper, and oil (``Basic Industries'').
    \4\In Amendment No. 1 to the proposed rule change, the Exchange 
proposes to: (1) provide that at maturity, holders of the indexed 
term notes will receive a minimum of 90% of the principal amount of 
the indexed term notes; and (2) amend the listing standards 
regarding foreign securities and American Depository Receipts 
(``ADRs'') represented in the index underlying the indexed term 
notes. See Letter from Benjamin Krause, Senior Vice President, 
Capital Markets Group, Amex, to Michael Walinskas, Branch Chief, 
Office of Market Supervision (``OMS''), Division of Market 
Regulation (``Division''), Commission, dated August 24, 1994.
    \5\See Securities Exchange Act Release No. 34597 (August 25, 
1994), 59 FR 45048 (August 31, 1994).
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II. Description of the Proposal

    Under Section 107 of the Amex Company Guide (``Guide''), the 
Exchange may approve for listing and trading securities which cannot be 
readily categorized under the listing criteria for common and preferred 
stocks, bonds, debentures, or warrants.\6\ The Amex now proposes to 
list for trading, under Section 107A of the Guide, Notes whose value is 
based in whole or in part on a static index composed of twenty-six 
actively-traded equity securities issued by companies involved in Basic 
Industries.\7\
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    \6\See Securities Exchange Act Release No. 27753 (March 1, 
1990), 55 FR 8626 (March 8, 1990).
    \7\The specific components of the Basic Industry Portfolio are: 
Alcan Aluminum; American Barrick Resources; Bethlehem Steel; Cyprus 
Amax Minerals; Dow Chemical; Du Pont (E.I.) De Nemours; Echo Bay 
Mines; Geneva Steel; Georgia Gulf; Georgia Pacific; IMC Fertilizer; 
Inco; International Paper; Kerr McGee; Kaiser Aluminum; Lyondell 
Petrochemical; Monsanto; Morton International; Northwestern Steel; 
Nucor; Phelps Dodge; Placer Dome; Reynolds Metals; USX-U.S. Steel 
Group; Weirton Steel; and Weyerhaeuser.
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    The Notes are non-convertible debt securities of Lehman Brothers, 
Inc. (``Lehman Brothers'') and will conform to the listing guidelines 
under Section 107A of the Guide.\8\ Although the specific maturity date 
will not be established until immediately prior to the time of the 
offering, the Notes will provide for maturity within a period of not 
less than one nor more than seven years from the date of issue. The 
Notes provide for a single payment at maturity, and will bear no 
periodic payments of interest. Basic Industry Portfolio Notes will 
entitle the owner at maturity to receive an amount based upon the 
percentage change between the ``Original Portfolio Value'' and the 
``Ending Average Portfolio Value;'' provided, however, that: (1) the 
amount payable at maturity will not be less than 90% of the principal 
amount of the Notes; and (2) the issuer may place a cap on the amount 
to be paid on the Notes at maturity.\9\ The ``Original Portfolio 
Value'' is the value of the Basic Industry Portfolio on the date on 
which the issuer prices the Notes for the initial offering to the 
public. The ``Ending Average Portfolio Value'' is the average of the 
closing prices of the Basic Industry Portfolio securities for a 
specified number of days prior to maturity of the Notes.\10\ The Ending 
Average Portfolio Value will be used in calculating the amount owners 
will receive upon maturity.\11\
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    \8\Specifically, the Notes must have: (1) A minimum public 
distribution of one million trading units; (2) a minimum of 400 
holders; (3) an aggregate market value of at least $4 million; and 
(4) a term of at least one year. Additionally, the issuer of the 
Notes (i.e., Lehman Brothers) must have assets of at least $100 
million, stockholders' equity of at least $10 million, and pre-tax 
income of at least $750,000 in the last fiscal year or in two of the 
three prior fiscal years. As an alternative to these financial 
criteria, the issuer must have either: (1) assets in excess of $200 
million and stockholders' equity in excess of $10 million; or (2) 
assets in excess of $100 million and stockholders' equity in excess 
of $20 million.
    \9\For example, Lehman Brothers could place a cap on the amount 
to be received at maturity as a stated percentage of the issuance 
price, e.g., 150% of the issuance price. Alternatively, a cap could 
be in the form of a participation rate whereby a holder of the Notes 
would participate in a stated percentage of the total percentage 
change between the Ending Portfolio Value and the Original Portfolio 
Value, e.g. 80% of the total appreciation of the Basic Industry 
Portfolio during the term of the Notes. The Commission notes that 
these examples are by way of illustration, not of limitation, as to 
how a cap on the amount to be paid to holders of the Notes at 
maturity could be constructed by Lehman Brothers.
    \10\Specifically, the Ending Average Portfolio Value will equal 
the average of the closing prices for the Basic Industry Portfolio 
securities for the first 10 of the last 20 trading days prior to 
maturity of the Notes. Telephone conversation between Benjamin 
Krause, Senior Vice President, Capital Markets Groups, Amex, and 
Brad Ritter, Senior PCounsel, OMS, Division, Commission, on October 
5, 1994.
    \11\The Basic Industry Portfolio Notes will entitle a holder at 
maturity to receive not less than 90% of the original issue price 
for the Notes. Additionally, holders of the Notes may not receive 
the full amount of the change between the Ending Portfolio Value and 
the Original Portfolio Value.
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    If the market value of the Basic Industry Portfolio has declined, 
the owners of the Basic Industry Portfolio Notes will receive at least 
90% of the principal amount of the Notes. The payment at maturity is 
based on changes in the value of the Basic Industry Portfolio, subject 
to any cap on appreciation that may be included by the issuer, but does 
not reflect the payment of dividends on the securities that comprise 
the portfolio. Basic Industry Portfolio Notes are cash-settled in that 
they do not give the holder any right to receive a portfolio security 
or any other ownership right or interest in the portfolio securities, 
although the return on the investment is based on the aggregate value 
of the Basic Industry Portfolio securities.
    According to the Amex, Basic Industry Portfolio Notes will allow 
investors to combine the protection of a portion of the principal 
amount of the Notes with a potential additional payment based upon the 
performance of a portfolio of securities representing 26 highly 
capitalized companies engaged in Basic Industries. In particular, the 
proposed Basic Industry Portfolio Notes will provide at least 90% 
principal protection with the opportunity to participate in any upside 
appreciation of the underlying Basic Industry Portfolio, subject to any 
cap on appreciation that may be included by the issuer.
    The Basic Industry Portfolio consists of securities of 26 companies 
that collectively, at the time of issuance,\12\ will satisfy the 
generic listing requirements approved by the Commission for the listing 
and trading of options on newly established narrow-based indexes.\13\ 
Specifically, the component securities of the Basic Industry Portfolio 
satisfy the following criteria: (1) A minimum market capitalization of 
$75 million, except that up to 10% of the component securities may have 
a market capitalization of not less than $50 million; (2) trading 
volume in each of the six months prior to the offering of the Notes of 
not less than one million shares, except that up to 10% of the 
component securities may have a trading volume in each of the six 
months prior to the offering of the Notes of not less than 500,000 
shares, (3) at least 90% of the component securities will meet the then 
current criteria for standardized options trading set forth in Exchange 
Rule 915; (4) all components of the Basic Industry Portfolio will be 
listed on the Amex or the New York Stock Exchange, or will be National 
Market securities traded through Nasdaq; (5) all components of the 
Basic Industry Portfolio will be subject to last sale reporting 
pursuant to Rule 11Aa3-1 of the Act; and (6) no more than 20% of the 
weight of the Basic Industry Portfolio shall be represented by foreign 
securities or ADRs for which the Exchange does not have in place a 
comprehensive surveillance sharing agreement with the appropriate 
regulatory organization(s) in such country(ies).\14\
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    \12\The Commission notes that because the Basic Industry 
Portfolio is a static portfolio, the Amex will not make adjustments 
subsequent to issuance of the Notes for purposes of maintaining 
compliance with these standards.
    \13\See Securities Exchange Act Release No. 34157 (June 3, 
1994), 59 FR 30062 (June 10, 1994).
    \14\The Exchange has represented that Lehman Brothers may 
conclude prior to issuance of the Notes, based on changes in its 
market research and investment strategy, that the composition of the 
Basic Industry Portfolio should be altered. In such an event, Lehman 
Brothers would be allowed, with the concurrence of the staff of the 
Commission, to replace component securities accounting for up to 10% 
of the number of components of the Basic Industry Portfolio (i.e., 
two components) provided that with the replacement components, the 
Basic Industry Portfolio still satisfies the requirements for the 
listing and trading of options on newly established narrow-based 
indexes. Id. If Lehman Brothers determines to make any changes to 
the Basic Industry Portfolio that do not satisfy these conditions, 
the Exchange would be required to obtain approval from the 
Commission pursuant to Section 19(b) of the Act before listing Notes 
based on the altered Basic Industry Portfolio.
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    At the outset, each of the securities in the Basic Industry 
Portfolio will have equal representation. Specifically, each security 
included in the Basic Industry Portfolio will be assigned a multiplier 
on the date of issuance so that the security represents an equal 
percentage of the value of the entire portfolio on the date of 
issuance. The multiplier indicates the number of shares (or fraction of 
one share) of a security, given its market price on an exchange or 
through Nasdaq, to be included in the calculation of the portfolio. 
Accordingly, each of the 26 companies included in the Basic Industry 
Portfolio will represent approximately 3.85 percent of the total 
portfolio at the time of issuance.
    The multiplier for each security in the Basic Industry Portfolio 
will generally remain unchanged except for limited adjustments that may 
be necessary as a result of stock splits or stock dividends.\15\ There 
will be no adjustments to the multipliers to reflect cash dividends 
paid with respect to a portfolio security. In addition, no adjustments 
of any multiplier of a portfolio security will be made unless such 
adjustment would require a change of at least 1% in the multiplier then 
in effect.
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    \15\Lehman Brothers will adjust the multiplier of any portfolio 
security if the security is subject to a stock split or reverse 
split to equal the product of the number of shares issued with 
respect to one share of the portfolio security and the prior 
multiplier. In the case of a stock dividend, the multiplier will be 
adjusted so that the new multiplier will equal the former multiplier 
plus the product of the number of shares of such portfolio security 
issued with respect to one share of the portfolio security and the 
prior multiplier.
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    If the issuer of a security included in the Basic Industry 
Portfolio no longer exists, whether for reason of a merger, acquisition 
or similar type of corporate control transaction, then Lehman Brothers 
will assign to that security a value equal to the security's final 
value for the purposes of calculating portfolio values. For example, if 
a company included in the portfolio is acquired by another company, 
Lehman Brother shall thereafter assign a value to the shares of the 
acquired company's securities equal to the value per share at the time 
that the acquisition takes place.
    If the issuer of a Basic Industry Portfolio security is in the 
process of liquidation or subject to a bankruptcy proceeding, 
insolvency, or other similar adjudication, such security will continue 
to be included in the Basic Industry Portfolio so long as a market 
price on an exchange or through Nasdaq for such security is available. 
If such a market price is no longer available for a portfolio security, 
including, but not limited to, liquidation, bankruptcy, insolvency, or 
any other similar proceeding, the value of the portfolio security will 
be assigned a value of zero in connection with calculating the daily 
portfolio value and the closing portfolio value of the Basic Industry 
Portfolio, for so long as no such market price exists for that 
security.\16\
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    \16\Lehman Brothers will not attempt to find a replacement stock 
or to compensate for the extinction of a security due to bankruptcy 
or a similar event.
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    The value of the Basic Industry Portfolio will be calculated 
continuously by the Amex and will be disseminated every 15 seconds over 
the Consolidated Tape Association's Network B. The portfolio value will 
equal the sum of the products of the most recently available market 
prices and the applicable multipliers for the portfolio securities.
    The Notes may not be redeemed prior to maturity and are not 
callable by the issuer. Holders of Basic Industry Portfolio Notes will 
be able to cash-out of their investment by selling the security on the 
Amex. The Exchange anticipates that the trading value of the security 
in this secondary trading market will depend in large part on the value 
of the securities comprising the Basic Industry Portfolio and also on 
such other factors as the level of interest rates, the volatility of 
the value of the Basic Industry Portfolio, the time remaining to 
maturity, dividend rates, and the creditworthiness of the issuer, 
Lehman Brothers.
    Because Basic Industry Portfolio Notes are linked to a portfolio of 
equity securities, the Amex's existing equity floor trading rules will 
apply to the trading of Basic Industry Portfolio Notes. First, pursuant 
to Amex Rule 411, the exchange will impose a duty of due diligence on 
its members and member firms to learn the essential facts relating to 
every customer prior to trading Basic Industry Portfolio Notes.\17\ 
Second, consistent with Amex Rule 411, the Exchange will further 
require that a member or member firm specifically approve a customer's 
account for trading Basic Industry Portfolio Notes prior to, or 
promptly after, the completion of the transaction. Third, Basic 
Industry Portfolio Notes will be subject to the equity margin rules of 
the Exchange. Fourth, the Exchange will, prior to trading Basic 
Industry Portfolio Notes, distribute a circular to the membership 
providing guidance with regard to member firm compliance 
responsibilities (including suitability recommendations) when handling 
transactions in Basic Industry Portfolio Notes and highlighting the 
special risks and characteristics of the Basic Industry Portfolio 
Notes.\18\
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    \17\Amex Rule 411 requires that every member, member firm or 
member corporation use due diligence to learn the essential facts 
relative to every customer and to every order or account accepted.
    \18\The circular shall also highlight any cap on appreciation, 
if any, that the issuer includes in the Notes.
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III. Commission Findings and Conclusions

    The Commission finds that the proposed rule change is consistent 
with the requirements of the Act and the rules and regulations 
thereunder applicable to a national securities exchange, and, in 
particular, the requirements of Section 6(b)(5) of the Act.\19\ 
Specifically, the Commission believes that providing for exchange-
trading of Basic Industry Portfolio Notes will offer a new and 
innovative means of participating in the market for securities of 
companies involved in Basic Industries.\20\ In particular, the 
Commission believes that Basic Industry Portfolio Notes will permit 
investors to gain equity exposure in such companies, while at the same 
time, limiting the downside risk of the original investment. For the 
reasons discussed in the MITTS Approval Orders, the Commission finds 
that the listing and trading of Basic Industry Portfolio Notes is 
consistent with the Act.\21\
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    \19\15 U.S.C. 78f(b)(5) (1988).
    \20\The Commission Notes that the Basic Industry Portfolio Notes 
are very similar in structure to several Market Index Target-Term 
Securities (``MITTS'') recently approved for listing on the New York 
Stock Exchange, Inc. (``NYSE''). See Securities Exchange Act Release 
Nos. 34692 (September 20, 1994), 59 FR 49267 (September 27, 1994), 
34691 (September 20, 1994), 59 FR 49264 (September 27, 1994), and 
34655 (September 12, 1994), 59 FR 47966 (September 19, 1994) 
(``MITTS Approval Orders'').
    \21\Id.
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    As with the MITTS products, Basic Industry Portfolio Notes are not 
leveraged instruments. Their price, however, will still be derived and 
based upon the underlying linked securities. Accordingly, the level of 
risk involved in the purchase or sale of Basic Industry Portfolio Notes 
is similar to the risk involved in the purchase or sale of traditional 
common stock. Nonetheless, the Commission has several specific concerns 
with this type of product because the final rate or return of the Notes 
is derivatively priced, based on the performance of the underlying 
securities. The concerns include: (1) Investor protection concerns, (2) 
dependence on the credit of the issuer of the security, (3) systemic 
concerns regarding position exposure of issuers with partially hedged 
positions or dynamically hedged positions, and (4) the impact on the 
market for the underlying linked securities.\22\
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    \22\Id.
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    The Commission believes the Amex has adequately addressed each of 
these issues such that the Commission's regulatory concerns are 
adequately minimized.\23\ In particular, by imposing the listing 
standards, suitability, disclosure, and compliance requirements noted 
above, the Amex has adequately addressed the potential public customers 
concerns that could arise from the hybrid nature of the Notes.\24\ 
Further, the Commission believes that the listing standards and 
issuance restrictions should help to reduce the likelihood of any 
adverse market impact on the securities comprising the Basic Industry 
Portfolio.
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    \23\Id.
    \24\The Exchange will also distribute a circular to its 
membership, in a form approved by the Commission, calling attention 
to the specific risks associated with Basic Industry Portfolio 
Notes.
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    The Commission realizes that Basic Industry Portfolio Notes are 
dependent upon the individual credit of the issuer, Lehman Brothers. To 
some extent this credit risk is minimized by the Exchange's continued 
listing standards which require issuers to maintain an aggregate market 
value of $1 million for its publicly-held shares.\25\ In addition, the 
Exchange's hybrid listing standards further require that Basic Industry 
Portfolio Notes have at least $4 million in market value.\26\ In any 
event, financial information regarding Lehman Brothers, in addition to 
the information on the issuers of the underlying securities comprising 
the Basic Industry Portfolio, will be publicly available.\27\
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    \25\See Amex Company Guide Sec. 1003(b).
    \26\See Amex Company Guide Sec. 107A.
    \27\The companies that comprise the Basic Industry Portfolio are 
reporting companies under the Act.
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    It is therefore ordered, Pursuant to Section 19(b)(2) of the 
Act,\28\ that the proposed rule change (File No. SR-Amex-94-27), as 
amended, is approved.
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    \28\15 U.S.C. 78s(b)(2) (1988).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\29\
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    \29\17 CFR 200.30-3(a)(12) (1993).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-25727 Filed 10-17-94; 8:45 am]
BILLING CODE 8010-01-M