[Federal Register Volume 60, Number 1 (Tuesday, January 3, 1995)]
[Notices]
[Pages 163-167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32257]



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SECURITIES AND EXCHANGE COMMISSION
[Rel. No. IC-20797; 812-8422]


MID CAP SPDR Trust, Series 1, et al.; Notice of Application

December 23, 1994.
AGENCY: Securities and Exchange Commission (``SEC'').

ACTION: Notice of Application for Order under the Investment Company 
Act of 1940 (``Act'').

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Applicants: MID CAP SPDR Trust, Series 1 (``Trust'') and PDR Services 
Corporation (together with any person directly or indirectly 
controlling, controlled by, or under common control with, PDR Services, 
the ``Sponsor'').

Relevant Act Sections: Order requested under section 6(c) granting an 
exemption from sections 4(2), 14(a), 17(a) (1), 17(a) (2), 22(d), 
22(e), 24(d), 26(a) (C) and rule 22c-1; under section 17(b) granting an 
exemption from sections 17(a)(1) and 17(a)(2); and under rule 17d-1 to 
permit certain joint transactions with affiliates.

Summary of Application: Applicants request an order permitting:
    (1) the Trust to issue non-redeemable securities (``MID CAP 
SPDRs'');
    (2) secondary market transactions in MID CAP SPDRs at negotiated 
prices, rather than at a current public offering price described in the 
prospectus;
    (3) dealers to sell MID CAP SPDRs to purchasers in the secondary 
market unaccompanied by a prospectus, when prospectus delivery is not 
required by the Securities Act of 1933;
    (4) certain expenses associated with the creation and maintenance 
of the Trust to be borne by the Trust, rather than by the Sponsor;
    (5) affiliated persons of the Trust to deposit securities into, and 
receive securities from, the Trust in connection with the purchase and 
redemption of MID CAP SPDRs; and
    (6) the Trust to reimburse the Sponsor for payment of an annual 
licensing fee to Standard & Poor's. The order would also temporarily 
permit the Trust to satisfy redemption requests within five business 
days rather than seven calendar days and exempt the Sponsor from the 
Act's requirement that it purchase, or place with others, $100,000 
worth of MID CAP SPDRs;

Filing Date: The application was filed on May 28, 1993; and amended on 
July 13, 1994. By letter dated December 23, 1994, counsel, on behalf of 
applicants, agreed to file a further amendment during the notice period 
to make certain technical changes. This notice reflects the changes to 
be made to the application by such further 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 January 17, 
1995, 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 
reason for the request, and the issues contested. Persons may request 
notification of a hearing by writing to the SEC's Secretary.

Addresses: Secretary, SEC, 450 Fifth Street, N.W., Washington, DC 
20549. Applicants, c/o American Stock Exchange, Inc., 86 Trinity Place, 
New York, New York 10006.

For Further Information Contact: Felice R. Foundos, Staff Attorney, at 
(202) 942-0571, or Robert A. Robertson, Branch Chief, at (202) 942-0564 
(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 at the 
SEC's Public Reference Branch.

Applicants' Representations

    1. The Trust is a unit investment trust (``UIT'') that will be 
organized under the laws of the State of New York. The Trust is 
designed to provide investors with a low-cost instrument that closely 
tracks the Standard & Poor's MidCap 400 Index (``S&P MidCap 400 
Index''), that trades like a share of common stock, and that pays 
quarterly dividends proportionate to those paid by the portfolio of 
stocks that constitutes the S&P MidCap 400 Index.\1\ The Sponsor is a 
wholly-owned subsidiary of the American Stock Exchange (``AMEX''). The 
Bank of New York (``Trustee'') will act as trustee of the Trust. PDR 
Distributors, Inc. (``Distributor''), a registered broker-dealer and 
wholly-owned subsidiary of Signature Financial Group, Inc., will serve 
as the distributor [[Page 164]] of the Trust's securities, known as MID 
CAP SPDRs (for Standard & Poor's MidCap 400 Portfolio Depositary 
Receipts).

    \1\The S&P MidCap 400 Index is an index that focuses on middle 
capitalization stocks not included in the Standard and Poor's 500 
Composite Stock Price Index (``S&P 500 Index''). The issues included 
in the S&P MidCap 400 Index were selected from a population of 1,700 
securities, each with a 1990 year-end capitalization of between $200 
million and $5 billion. As of December 31, 1993, applicants estimate 
that over $6 billion was invested in or indexed to the S&P MidCap 
400 Index.
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    2. Units of beneficial interest in the Trust will be issued in 
aggregates of 25,000 MID CAP SPDRs known as ``Creation Units.'' Each 
MID CAP SPDR will be worth one-fifth the value of the S&P MidCap Index, 
or approximately $34 at the time of filing the application. Each 
Creation Unit, therefore, would cost about $850,000.
    3. All orders to purchase Creation Units from the Trust must be 
placed with the Distributor, who shall be responsible for transmitting 
such orders to the Trustee. The Distributor will furnish to purchasers 
confirmation that the orders have been accepted, but shall reject any 
order that is not in proper form. Upon acceptance of an order, the 
Distributor will instruct the Trustee to initiate the appropriate 
procedures. The Distributor will maintain records of the orders placed 
with it, the confirmations of acceptances it issues, and the 
instructions to implement delivery. The Distributor will be responsible 
for distributing prospectuses and may provide certain other 
administrative services, such as those related to state securities 
compliance. The Sponsor will pay the Distributor a fee for its 
services. The Sponsor will not seek reimbursement from the Trust for 
the payment of such fee without obtaining exemptive relief from the 
SEC.
    4. Investors wishing to purchase a Creation Unit must transfer to 
the Trust a ``Portfolio Deposit,'' which consists of: (a) a portfolio 
of securities that is substantially similar, in composition, to the 
component securities (``Index Securities'') of the S&P MidCap 400 
Index; (b) a cash payment equal to the dividends accrued on the Trust's 
portfolio securities since the last dividend payment by the Trust, net 
of expenses and liabilities, on a Creation Unit basis; and (c) a cash 
payment or credit (``Balancing Amount'') designed to equalize the net 
asset value of the S&P MidCap 400 Index and the net asset value of a 
Portfolio Deposit. The Balancing Amount is required because, among 
other things, a Portfolio Deposit, unlike the S&P MidCap 400 Index, 
cannot contain fractional shares. An investor making a Portfolio 
Deposit also will be charged a nominal service fee (``Transaction 
Fee'') to defray securities settlement costs, as discussed below.
    5. MID CAP SPDRs will not be individually redeemable, except upon 
termination of the Trust. To redeem, an investor must accumulate enough 
MID CAP SPDRs to reconstitute a Creation Unit. An investor redeeming a 
Creation Unit will receive Index Securities and cash identical to the 
Portfolio Deposit required of an investor wishing to purchase a 
Creation Unit on that date.
    6. Because a redeeming shareholder will receive a Portfolio Deposit 
in exchange for its Creation Unit, and only a minute portion of a 
Portfolio Deposit consists of cash, the Trustee will not be forced to 
maintain large cash reserves for redemptions. This should allow the 
Trust's resources to be committed as fully as possible to tracking the 
S&P MidCap 400 Index, enabling the Trust to track the Index more 
closely than other basket products that must allocate a much greater 
portion of their assets for cash redemptions.
    7. Persons obtaining MID CAP SPDRs from the Trust in Creation Unit 
size aggregations may hold those MID CAP SPDRs or sell some or all of 
them into the secondary market. MID CAP SPDRs will be listed on the 
AMEX and traded in the secondary market in the same manner as other 
equity securities. The price of MID CAP SPDRs on the AMEX will be based 
on a current bid/offer market. Transactions involving the sale of MID 
CAP SPDRs will be subject to customary brokerage commissions and 
charges.
    8. Applicants expect that the price at which MID CAP SPDRs trade 
will be disciplined by arbitrage opportunities created by the ability 
to purchase or redeem Creation Unit-size aggregations at net asset 
value, which should ensure that MID CAP SPDRs will not trade at a 
material discount or premium in relation to net asset value.
    9. To be eligible to purchase a Creation Unit, an organization must 
be a participant in the continuous net settlement system of the 
National Securities Clearing Corporation (``NSCC'') or a Depository 
Trust Company (``DTC'') participant, but is not required to be an AMEX 
member. The procedures employed to process a purchase order will depend 
upon whether the transaction is settled through NSCC or DTC. Procedures 
for redeeming a Creation Unit are analogous to those for purchasing 
one, although redemption requests are placed with the Trustee, rather 
than the Distributor.
    10. MID CAP SPDRs will be registered in book-entry form only; 
certificates will not be issued. The DTC or its nominee will be the 
registered owner of all outstanding MID CAP SPDRs. Records reflecting 
the beneficial owners of MID CAP SPDRs will be maintained by the DTC or 
the DTC participants.
    11. Persons purchasing Creation Units will be cautioned in the 
prospectus that some activities on their part may, depending on the 
circumstances, result in their being deemed statutory underwriters. For 
example, a broker-dealer firm may be deemed a statutory underwriter if 
it purchases Creation Units from the Trust, breaks them down into the 
constituent MID CAP SPDRs, and sells the MID CAP SPDRs directly to its 
customers; or if it chooses to couple the creation of a supply of new 
MID CAP SPDRs with an active selling effort involving solicitation of a 
secondary market demand for MID CAP SPDRs. The prospectus will state 
that whether a person is an underwriter depends upon all the facts and 
circumstances pertaining to that person's activities. The prospectus 
will explain that (a) a statutory underwriter will be subject to 
certain liability provisions of the Securities Act, and (b) dealers who 
are statutory underwriters, and dealers effecting transactions in MID 
CAP SPDRs that are part of an ``unsold allotment'' within the meaning 
of section 4(3)(C) of the Securities Act, will be unable to take 
advantage of the prospectus delivery exemption provided to dealers by 
section 4(3) of the Securities Act.
    12. As provided in the rules of the AMEX, applicants will make 
available a ``Product Description'' of MID CAP SPDRs to members and 
member organizations for distributions by them to customers purchasing 
MID CAP SPDRs. In addition, members are required to include the Product 
Description with sales materials relating to MID CAP SPDRs that is 
provided to the public. The Product Description is designed to provide 
a brief and readily understandable description of the salient aspects 
of MID CAP SPDRs. The Product Description will advise investors that a 
prospectus is available without charge upon request. Although the AMEX 
rule cannot ensure delivery of a Product Description to investors 
purchasing MID CAP SPDRs through a non-member broker-dealer in a 
transaction away from the AMEX floor, applicants expect that such 
transactions should be extremely rare. In addition, applicants note 
that transactions effected on regional exchanges pursuant to unlisted 
trading privileges can be covered by conditioning the grant of such 
privileges upon imposition of an exchange requirement that Product 
Descriptions be delivered. Purchases effected over the counter may be 
somewhat more difficult to address, although applicants note that the 
National Association of Securities Dealers, Inc. may wish to promulgate 
an advice to members regarding the need to distribute a Product 
Description to every [[Page 165]] MID CAP SPDR purchaser on the same 
terms as required by the AMEX rule.
    13. During the first two years of operation, the Trustee will be 
paid a ``Trustee's Fee'' of 12/100 of 1% of the Trust's net asset value 
annually. Thereafter, the Trustee's Fee will vary from 10/100 to 14/100 
of 1% per annum, depending on the net asset value of the Trust. The 
Trustee may waive all or a portion of the Trustee's fee. The Trustee 
also will receive a Transaction Fee directly from investors in 
connection with certain creations and redemptions of Creation Units to 
defray securities settlement costs. The Transaction Fee will vary from 
$250 to $1500 per Creation Unit depending upon the number of Creation 
Units the investor creates or redeems. An additional amount not to 
exceed three times the Transaction Fee will be charged to investors who 
purchase and redeem via the DTC rather than the continuous net 
settlement system of NSCC, to cover the increased expense associated 
with settlement outside the NSCC clearing process. The Sponsor may 
modify or waive the Transaction Fee for certain lot-size creations or 
redemptions. Any increase of the Transaction Fee will be subject to a 
maximum of 20/100 of 1% of the value of a Creation Unit at the time of 
creation or redemption, as the case may be. All variations in the 
Transaction Fee will be imposed in compliance with rule 22d-1, as if it 
were a sales load. The Trustee also will receive as compensation any 
benefit derived from holding funds of the Trust in non-interest bearing 
accounts.
    14. The Trust will make quarterly distributions of an amount 
representing the dividends accumulated on portfolio securities during 
such quarter, net of fees and expenses. Additional distributions will 
be made to the minimum extent necessary to comply with certain 
provisions of the Internal Revenue Code and to avoid the imposition of 
excise taxes imposed by section 4982 of the Code. The Trust also 
intends to make available the DTC book entry Dividend Reinvestment 
Service through which investors may have their dividend distributions 
reinvested in MID CAP SPDRs. The Trust's prospectus will disclose that 
brokerage commissions, if any, incurred in obtaining the Index 
Securities necessary to create additional MID CAP SPDRs with the cash 
from these distributions will be an expense of the Trust.
    15. Beneficial owners of MID CAP SPDRs will have no voting rights 
with respect to the securities held by the Trust. The Trustee will have 
the right to vote all of the voting stocks in the Trust. The Trustee 
will vote the Trust's shares in the same proportion as all other shares 
of the security are voted. If this arrangement is not permitted, the 
Trustee shall abstain from voting.
    16. Applicants assert that MID CAP SPDRs afford significant 
benefits in the public interest. MID CAP SPDRs, which track non-S&P 500 
securities, will broaden the trading, investing, and hedging 
opportunities available to investors by tracking an alternative segment 
of the domestic equity securities market, stocks with mid-range 
capitalizations. Applicants believe that MID CAP SPDRs enhance the 
choices available to investors and provide a cost-effective mechanism 
for investing in the targeted market segment. Further, the Trust should 
be able to track the S&P MidCap 400 Index more closely than other 
basket products that must allocate a portion of their assets for cash 
redemptions. In addition, MID CAP SPDRs will provide a low-cost market-
basket security that, unlike open-end index funds, can be traded at 
negotiated prices throughout the business day.

Applicants' Legal Analysis

    1. Applicants request an order granting an exemption from sections 
4(2), 14(a), 17(a)(1), 17(a)(2), 22(d), 22(e), 24(d), and 26(a)(2)(C) 
and rule 22c-1 and permitting them to engage in affiliated transactions 
otherwise prohibited by section 17(d) and rule 17d-1. Applicants 
represent that the relief requested herein is substantially similar to 
that granted in the application concerning the Standard and Poor's 
Depositary Receipts (``SPDRs''), a similar instrument that tracks the 
S&P 500 Index.\2\

    \2\See SPDR Trust, Series 1, Investment Company Act Release Nos. 
18959 (Sept. 17, 1992) (notice) and 19055 (October 26, 1992) (order) 
(``SPDR Order'').
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    2. Section 4(2) of the Act defines a UIT as an investment company 
that, among other things, issues only redeemable securities. Because 
MID CAP SPDRs are not individually redeemable, applicants request an 
order that would permit the Trust to register and operate as a UIT. 
Applicants note that beneficial owners of MID CAP SPDRs wishing to 
redeem may purchase additional MID CAP SPDRs and tender the resulting 
Creation Unit for redemption. Moreover, because the market price of MID 
CAP SPDRs will be disciplined by arbitrage opportunities, beneficial 
owners should be able to sell MID CAP SPDRs at approximately net asset 
value.
    3. Section 22(d), among other things, prohibits a dealer from 
selling a redeemable security that is being currently offered to the 
public by or through an underwriter, except at a current public 
offering price described in the prospectus. Rule 22c-1 generally 
requires that a dealer selling, redeeming, or repurchasing a redeemable 
security do so only at a price based on its net asset value. Secondary 
market transactions in MID CAP SPDRs will take place at negotiated 
prices (generally the current bid/offer price quoted on the AMEX), not 
at a current offering price described in the prospectus, and not at a 
price based on net asset value. Thus, purchases and sales of MID CAP 
SPDRs by dealers in the secondary market will not comply with section 
22(d) and rule 22c-1. Accordingly, applicants have requested an 
exemption from these two provisions.
    4. The concerns sought to be addressed by section 22(d) and rule 
22c-1 with respect to pricing are equally satisfied by the proposed 
method of pricing MID CAP SPDRs. While there is little legislative 
history regarding section 22(d), its provisions, as well as those of 
rule 22c-1, appear to have been enacted (a) to prevent dilution caused 
by certain riskless-trading schemes by principal underwriters and 
contract dealers, (b) to prevent unjust discrimination or preferential 
treatment among buyers resulting from sales at different prices, and 
(c) to assure an orderly distribution of investment company shares by 
eliminating price competition from dealers offering shares at less than 
the published sales price and repurchasing shares at more than the 
published redemption price. Applicants believe that none of these 
purposes will be thwarted by permitting MID CAP SPDRs to trade in the 
secondary market at negotiated prices. First, secondary market trading 
in MID CAP SPDRs, because it does not involve the Trust as a party, 
cannot result in dilution of a beneficial owner's investment. Second, 
to the extent different prices exist during a given trading day, or 
from day to day, such variances occur as a result of third-party market 
forces, such as supply and demand and interest rates, not as a result 
of unjust or discriminatory manipulation. Therefore, secondary market 
trading in MID CAP SPDRs will not lead to discrimination or 
preferential treatment among purchasers. Finally, applicants contend 
that the proposed distribution system will be orderly because arbitrage 
activity will ensure that the difference between the market price of 
MID CAP SPDRs and their net asset value remains narrow.
    5. Section 24(d) of the Act provides, in relevant part, that the 
prospectus delivery exemption provided to dealer 
[[Page 166]] transactions by section 4(3) of the Securities Act does 
not apply to any transaction in a redeemable security issued by a UIT. 
If MID CAP SPDRs are viewed as redeemable because Creation Units are 
redeemable and MID CAP SPDRs are deemed to be securities of the same 
class, section 24 would apply. Because the applicability of section 
24(d) is not free from doubt, applicants have requested an exemption 
from that section to permit dealers trading in MID CAP SPDRs to rely on 
the prospectus delivery exemption provided by section 4(3) of the 
Securities Act. Assuming section 24(d) applies, the exemption is 
necessary because, according to applicants, the imposition of 
prospectus delivery requirements on transactions by dealers in the 
secondary market will materially and adversely impede the success of 
the MID CAP SPDRs product.
    6. Applicants note that the secondary market for MID CAP SPDRs is 
significantly different from the typical secondary market for UIT 
securities, which usually is maintained by the sponsor. MID CAP SPDRs 
will be listed on a national securities exchange and will be traded in 
a manner similar to the shares of common stock issued by operating 
companies and closed-end investment companies. Dealers selling shares 
of operating companies and closed-end funds in the secondary market 
generally are not required to deliver a prospectus to the purchaser. 
Applicants contend that the MID CAP SPDRs should be subject to the same 
regulatory scheme as securities issued by operating companies and 
closed-end funds.
    7. Because MID CAP SPDRs will be exchange-listed, prospective 
investors will have access to several types of information about the 
product. Information regarding sales price and volume will be 
continually available on a real time basis throughout the day on 
brokers' computer screens and other electronic services, such as 
Quotron. The previous day's price and volume information will be 
published daily in the financial section of newspapers. Applicants also 
will publish daily, on a per MID CAP SPDR basis, the amount of 
accumulated dividends, net of accrued expenses. In addition, applicants 
expect that MID CAP SPDRs, like SPDRs, will be viewed as a novel, cost-
effective, index security and will generate significant interest in the 
financial community. Applicants expect that broker-dealers and market 
analysts will familiarize themselves with the product, follow its 
performance, and share their opinions of the product with clients and 
other investors, resulting in even greater amounts of available 
information for investors.
    8. In addition to all the information set forth above, investors 
will receive the Product Description. While not intended to substitute 
for a full prospectus, the Product Description will contain useful 
information about MID CAP SPDRs.
    9. Section 26(a)(2)(C) requires, among other things, that the trust 
indenture prohibit payments to the trust's depositor (i.e., the 
Sponsor), and any affiliated person of the depositor, except payments 
for performing certain administrative services not relevant hereto. 
Applicants request an exemption from section 26(a)(2)(C) to permit the 
Trust to reimburse the Sponsor or AMEX, up to a maximum of 30 basis 
points of the Trust's net asset value on an annualized basis, for the 
following expenses: (a) annual licensing fees for use of the ``S&P 
MidCap 400'' trademark; (b) federal and state annual registration fees 
for the issuance of MID CAP SPDRs; (c) expenses of the Sponsor relating 
to the printing and distribution of marketing materials describing MID 
CAP SPDRs and the Trust; and (d) the initial fees and expenses incurred 
in connection with the organization of the Trust, which will be 
capitalized and amortized over five years on a straight-line basis.
    10. Ordinarily, the sponsor of a UIT has several sources of income, 
and expenses normally incurred by the sponsor in connection with the 
creation and maintenance of a UIT can be offset against the income from 
such sources. As the proposed Trust is structured, however, the usual 
sources of income are not available because the Sponsor will not impose 
a sales load, maintain a secondary market, or deposit Index Securities 
into the Trust. Although the Sponsor's parent company, the AMEX, will 
earn some income on the trading fees imposed on transactions occurring 
on the exchange, applicants expect that such fees will generate 
substantially less revenue than what would have been generated by a 
normal sales load or sales charges on secondary market trades of MID 
CAP SPDRs. In light of the above, applicants contend that the abuse 
sought to be remedied by section 26(a)(2)(C)--``double dipping'' by UIT 
sponsors collecting money from their captive trusts on top of the 
profits already generated by sales charges and other sources of 
income--will not be present if the requested exemption is granted. In 
any event, the payment is capped at 30 basis points of the Trust's net 
asset value on an annualized basis. Expenses in excess of that figure 
will be absorbed by the Sponsor or the AMEX.
    11. Section 14(a) provides, in part, that no registered investment 
company may make an initial public offering of its securities unless it 
has a net worth of $100,000, or provision is made in connection with 
the registration of such securities that (i) firm agreements to 
purchase $100,000 worth of such securities will have been made by not 
more than 25 persons, and (ii) all proceeds, including sales loads, 
will be refunded to investors if the investment company has a net worth 
of less than $100,000 within 90 days after the effective date of the 
registration statement.
    12. Rule 14a-3 under the Act provides an exemption from section 
14(a) for UITs that invest only in ``eligible trust securities'' and 
agree to certain investor safeguards, including the refund of any sales 
loads collected from investors. Applicants will comply in all respects 
with rule 14a-3, except that the Trust will not restrict its 
investments to eligible trust securities, which do not include equity 
securities, and the Trustee will not refund the Transaction Fee 
discussed above. The fact that the Trust's portfolio is invested in 
equity rather than debt securities, applicants contend, does not negate 
the effectiveness of the safeguards nor subject investors to greater 
risk of loss due to investment in an undercapitalized investment 
company. With respect to the Transaction Fee, applicants believe that 
it is not a sales load, and therefore is not covered by the refund 
provision. In addition, the Transaction Fee will be paid not by small 
retail investors, but by institutional and other sophisticated, well-
capitalized investors who can afford the $850,000 purchase price of a 
Creation Unit. Such investors are able to assume the risk, which will 
be disclosed in the prospectus, of forfeiting the relatively small 
additional amount represented by the Transaction Fee.
    13. Section 17(a) generally prohibits an affiliated person of a 
registered investment company from purchasing from or selling to such 
company any security or other property. Because purchases and 
redemptions will be ``in-kind'' rather than cash transactions, section 
17(a) may prohibit affiliated persons of the Trust from purchasing or 
redeeming Creation Units. Moreover, because the definition of 
affiliated person includes anyone owning 5% or more of an issuer's 
outstanding voting stock, every purchaser of a Creation Unit will be 
affiliated with the Trust so long as there are twenty or fewer holders 
of Creation Units. Applicants request an exemption from section 17(a) 
pursuant to sections 6(c) and 17(b), to [[Page 167]] permit affiliated 
persons of the Trust to purchase and redeem Creation Units.
    14. Applicants contend that no useful purpose would be served by 
prohibiting affiliated persons from making ``in kind'' purchases or 
``in kind'' redemptions of Creation Units. The composition of the 
Portfolio Deposit deposited by a purchaser or given to a redeemer will 
be the same regardless of the investor's identity, and will be valued 
pursuant to the same objective standards applied to valuing the Trust's 
portfolio securities. Thus, ``in kind'' purchases and redemptions will 
afford no opportunity for affiliated persons to effect a transaction 
detrimental to the other holders of MID CAP SPDRs. Applicants believe 
that ``in kind'' purchases and redemptions will not result in abusive 
self-dealing or overreaching by affiliated persons of the Trust.
    15. Applicants request an order pursuant to rule 17d-1 that would 
permit the Trust to reimburse the Sponsor or the AMEX for the payment 
by either such party to Standard & Poor's of the annual fee required 
under a license agreement. The license agreement allows applicants to 
use the S&P MidCap 400 Index as a basis for MID CAP SPDRs and to use 
certain of Standard & Poor's trademark rights. Applicants believe that 
relief is necessary because the Trust's undertaking to reimburse the 
Sponsor (an affiliated person of the Trust) and/or the AMEX (an 
affiliated person of the Sponsor) may constitute a joint enterprise or 
joint arrangement in which the Trust is a participant, in contravention 
of section 17(d) and rule 17d-1.
    16. Applicants request a temporary exemption from the requirement 
imposed by section 22(e) of the Act to provide payment or satisfaction 
of redemptions within seven days following tender of a Creation Unit 
for redemption. Applicant represents that the Trust's clearing agent, 
NSCC, currently clears all trades through its system in five business 
days and short settlement of trades will not be available in connection 
with the MID CAP SPDR clearing process. NSCC is closed for business on 
certain holidays. Under the present system, if a Beneficial Owner were 
to tender a Creation Unit for redemption during a seven day period 
preceding such a holiday, NSCC's five business day settlement system 
would result in a redemption on the eighth calendar day following 
tender, resulting in a technical violation of section 22(e). Applicants 
request relief to permit redemption in five business days following a 
redemption request until the effective date of rule 15c6-1 adopted 
under the Securities Exchange Act, which will shorten the settlement 
period to three business days. The rule provides for a transition 
period during which securities may settle in four business days. After 
the effective date of the rule, the NSCC will settle in accordance with 
the rule and relief from 22(e) will no longer be necessary.
    17. Applicants assert that the NSCC is the appropriate institution 
to provide securities clearing services for the Trust. It is the 
nation's largest clearing agency, clearing 95% of all domestic equity 
trades, and has a well-established reputation in the financial 
community. In addition, the clearance and settlement of four hundred 
separate securities essentially as a single transaction requires 
sophisticated clearing services. Applicants have found that NSCC is 
able to provide these services and has enhanced its existing clearing 
processes to handle purchases and redemptions of Creation Units. The 
use of NSCC will provide beneficial owners of MID CAP SPDRs with state-
of-the-art securities handling, clearance, and transfer systems 
services, which, given the complexity of mirroring the component shares 
of the S&P MidCap 400 Index, is extremely important to all such owners. 
Applicants also note that the Sponsor has found the clearing process 
efficient and reliable when clearing SPDRS for the SPDR Trust.

Applicants' Conditions

    Applicants agree that the order granting the requested relief will 
be subject to the following conditions:
    1. Applicants will not register a new series of the Trust, whether 
identical or similar to Series 1, by means of filing a post-effective 
amendment to the Trust's registration statement or by any other means, 
unless Applicants have requested and received with respect to such new 
series, either exemptive relief from the SEC or a no-action position 
from the Division of Investment Management of the Commission.
    2. The Trust's prospectus and the Product Description will clearly 
disclose that, for purposes of the Act, MID CAP SPDRs are issued by the 
Trust and that the acquisition of MID CAP SPDRs by investment companies 
is subject to the restrictions of section 12(d)(1) of the Act.

    By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-32257 Filed 12-30-94; 8:45 am]
BILLING CODE 8010-01-M