[Federal Register Volume 60, Number 167 (Tuesday, August 29, 1995)]
[Notices]
[Pages 44917-44921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21358]



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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-36130; File No. SR-Amex-95-05]


Self-Regulatory Organizations; Order Approving a Proposed Rule 
Change and Amendment No. 1 to the Proposed Rule Change and Notice of 
Filing and Order Granting Accelerated Approval of Amendment No. 2 to 
the Proposed Rule Change by the American Stock Exchange, Inc. Relating 
to the Listing and Trading of Indexed Term Notes Linked to the Real 
Estate Index

August 22, 1995.
    On February 16, 1995, the American Stock Exchange, Inc. (``Amex'' 
or ``Exchange'') submitted to the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b) of the Securities Exchange 
Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ a proposed rule 
change to list and trade indexed term notes (``Notes''), the return on 
which is based in whole or in part on changes in value of the Real 
Estate Index (``Index''), a new index designed to reflect general 
movements in the underlying market for commercial real estate. On April 
4, 1995, the Exchange filed Amendment No. 1 to the proposal.\3\ Notice 
of the proposal and Amendment No. 1 appeared in the Federal Register on 
May 4, 1995.\4\ No comment letters were received on the proposal. The 
Exchange filed Amendment No. 2 to the proposed rule change on August 
10, 1995.\5\ This order approves the Amex proposal, as amended.

    \1\15 U.S.C. 78s(b)(1) (1988).
    \2\17 CFR 240.19b-4 (1994).
    \3\In Amendment No. 1, the Exchange: (1) clarified the name of 
the Real Estate Index; (2) specified that the Real Estate Index will 
be initialized at a value of 100; and (3) amended the formula for 
calculating the value of the Real Estate Index. See Letter from 
Claire McGrath, Managing Director and Special Counsel, Amex, to 
Michael Walinskas, Branch Chief, Office of Market Supervision 
(``OMS''), Division of Market Regulation (``Division''), Commission, 
dated April 4, 1995.
    \4\See Securities Exchange Act Release No. 35651 (April 27, 
1995), 60 FR 22084.
    \5\In Amendment No. 2, the Exchange amended the proposal to 
provide that: (1) the value of the REIT50 Index (as defined herein) 
will only be calculated and disseminated once per day; (2) all 
components of the REIT50 Index are and will continue to be 
``reported securities,'' as defined in Rule 11Aa3-1 of the Act, that 
are traded on the Amex, New York Stock Exchange (``NYSE''), or are 
National Market securities traded through Nasdaq; and (3) the volume 
maintenance criteria for the REIT50 Index will be changed to require 
an average monthly trading volume of 400,000 shares over the prior 
three months instead of the six month period originally proposed. 
See Letter from Claire McGrath, Managing Director and Special 
Counsel, Derivative Securities, Amex, to Michael Walinskas, Branch 
Chief, Office of Market Supervision (``OMS''), Division of Market 
Regulation (``Division''), Commission, dated August 10, 1995 
(``Amendment No. 2'').
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    Under Section 107 of the Amex Company Guide (``Guide''), the 
Exchange may approve for listing and trading securities that 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 changes in the value of the Index. The 
Index has been designed to fluctuate based on changes in the level of 
the underlying market for commercial real estate by combining the 
performance of two separate equity indexes--one comprised entirely of 
large actively traded real estate investment trusts (``REITS''), i.e., 
the REIT50 Index, and the other a broad-based index of small 
capitalization stocks, i.e., the Russell 2000 index. The Exchange 
believes that by subtracting a percentage of the returns associated 
with a broad-based small capitalization stock index (such as the 
Russell 2000 Index) from the returns generated by an index of REITs, an 
index can be generated that more 

[[Page 44918]]
closely reflects the performance of the underlying real estate 
market.\7\ The Exchange states that the Notes are intended to provide 
an exchange-listed alternative for investors who wish to gain exposure 
to general movements in the real estate sector or whose portfolios are 
heavily weighted in real estate and wish to hedge some of that 
exposure.

    \6\See Securities Exchange Act Release No. 27753 (March 1, 
1990), 55 FR 8626 (March 8, 1990).
    \7\See Discussion of the Index, infra.
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    The Notes will be non-convertible debt securities of the issuer and 
will conform to the listing guidelines under Section 107A of the 
Guide.\8\ The Notes will have a term of two to five years from the date 
of issue and may provide for periodic payments to holders. At maturity, 
holders of the Notes will receive not less than 90% of the original 
issue price of the Notes plus an amount in U.S. dollars equal to 
participation rate (i.e., a specified percentage) multiplied by the 
increase, if any, in the level of the Index at the time of the offering 
and the average of the closing Index level on the first ten of the last 
twenty business days preceding maturity (``Closing Index Level'').\9\

    \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 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 issuer-specific financial 
criteria, the issuer may 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\If the Closing Index Level is lower than the level of the 
Index at the time of the offering, holders will receive at least 90% 
of the original issue price. The minimum level that holders will 
receive at maturity will be set at the time of the offering of the 
Notes.
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    The Notes may not be redeemed prior to maturity and holders of the 
Notes will have no claim to the securities underlying the Index. Thus, 
holders will be able to liquidate their investment prior to maturity 
only by selling the Notes in the secondary market. The Exchange 
anticipates that the trading value of the Notes in the secondary market 
will depend in large part on the value of the securities comprising the 
Index and such other factors as the level of interest rates, the 
volatility of the value of the Index, the time remaining to maturity, 
dividend rates, and the credit of the issuer.
    The Notes will be subject to the equity floor trading and margin 
rules of the Exchange. In addition, members and member firms will have 
an obligation pursuant to Exchange Rule 411 to learn the essential 
facts relating to every customer prior to trading the Notes. The 
Exchange also will require, pursuant to Exchange Rule 411, that a 
member or member firm specifically approve a customer's account for 
trading the Notes prior to, or promptly after, the completion of the 
transaction. The Exchange will also distribute a circular to its 
membership prior to trading the Notes providing guidance with regard to 
member firm compliance responsibilities (including suitability 
recommendations) when handling transactions in the Notes and 
highlighting the special risks and characteristics of the Notes.
The Index

    The Index is calculated as a combination of the performance of two 
separate equity indexes: the REIT50 Index, which is a total return 
index comprised of 50 large, activity traded REITs;\10\ and the Russell 
2000 Index.\11\ The Index will initially be set at a level of 100 as of 
the market close on the day prior to the start of trading of the Notes. 
At any point in time, the Index value is calculated by multiplying the 
initial Index level (i.e., 100) by a factor determined as follows. 
First, the percentage change in the REIT50 Index from the market close 
of the day prior to the start of trading of the Notes is determined. 
Next, the percentage change of the Russell 2000 Index from the market 
close on the day prior to the start of trading of the Notes is 
determined. One half of the calculated percent change in the Russell 
2000 Index is then subtracted from the calculated percent change in the 
REIT50 Index. This differential is added to the number one to yield the 
factor by which the initial Index level (i.e., 100) is multiplied to 
determine the current Index level. The following formula summarizes 
this calculation:

    \10\See Discussion of the REIT50 Index, infra.
    \11\See Discussion of the Russell 2000 Index, infra.
    [GRAPHIC][TIFF OMITTED]TN29AU95.008
    
Where:
RE50=REIT50 Index.
R2000=Russell 2000 Index.
Init=Indicates the level of the designated index as of the market close 
on the day prior to the start of trading of the Notes.
t=Indicates the current level of the designated index.

    The Index will be calculated continuously based on the most 
recently reported values of the REIT50 Index and the Russell 2000 Index 
and will be disseminated every 15 seconds over the Consolidated Tape 
Association Network B.

Russell 2000 Index

    The Russell 2000 Index is a well established, broad-based, 
benchmark index of the small-capitalization segment of the U.S. equity 
market.\12\ Options on the Russell 2000 Index trade at the Chicago 
Board Options Exchange\13\ and futures trade at the Chicago Mercantile 
Exchange. The Russell 2000 is capitalization-weighted, and values are 
disseminated every 15 seconds to market vendors through the Option 
Price Reporting Authority. The value of the Russell 2000 Index does not 
reflect reinvestment of dividends paid on component stocks on the 
index.

    \12\See Securities Exchange Act Release No. 31382 (October 30, 
1992), 57 FR 52802 (November 5, 1992) (order approving the listing 
of options on the Russell 2000 Index) (``Exchange Act Release No. 
31382'').
    \13\Id.
REIT50 Index

    The REIT50 Index is a new capitalization-weighted index that 
conforms with Exchange Rule 901C and, as discussed below, is a total 
return index. The REIT50 Index is composed of the 50 largest publicly-
traded equity REITs, as measured by market capitalization, traded on 
the Amex, NYSE, or as National Market securities traded through 
Nasdaq.\14\ The REIT50 Index will be maintained so that at each 
quarterly review, as discussed below, each component of the Index will 
have had an average monthly trading volume of at least 400,000 shares 
over the prior three month period,\15\ with share prices greater than 
or equal to $5 for the 

[[Page 44919]]
majority of business days during the preceding three calendar months. 
The REIT50 Index also does not and will not include health care REITs 
or REITs that invest primarily in real estate mortgages or debt 
securities. The REIT50 Index also will exclude real estate operating 
companies and partnerships.

    \14\See Amendment No. 2, supra note 5.
    \15\Id.
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    As of January 31, 1995, the highest weighed component in the REIT50 
Index accounted for 4.66% of the value of the index, and the top five 
components accounted for 21.00% of the value of the REIT50 Index. Also, 
during the period from August 1, 1994 through January 31, 1995, the 
average daily trading volume per component of the REIT50 Index ranged 
from a low of 19,567 shares per day to a high of 140,173 shares per 
day. Moreover, as of January 31, 1995, 98.87% of the REIT50 Index, by 
weight, and 98.00%, by number of components, were eligible for 
standardized options trading pursuant to Amex Rule 915.\16\

    \16\Telephone conversation between Clifford Weber, Managing 
Director, New Products Development, Amex, and Brad Ritter, Senior 
Counsel, OMS, Division, Commission, on August 22, 1995.
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    The Exchange will review the component securities on a quarterly 
basis to ensure that the REIT50 Index continues to represent only the 
largest and most actively traded REITs. After the close of trading on 
the last business day of December, March, June, and September, all 
eligible REITs will be ranked by descending market capitalization, and 
the 50 largest, subject to the maintenance criteria discussed above, 
will comprise the REIT50 Index until the next quarterly review. Only 
REITs that have been trading for at least three calendar months will be 
considered for inclusion in the REIT50 Index. Resulting composition 
changes will be made after the close of trading on the third Friday of 
January, April, July, and October. The divisor of the REIT50 Index will 
be adjusted as necessary to ensure that there is no discontinuity in 
the value of the REIT50 Index as a result of these replacements.
    The number of component stocks in the REIT50 Index will remain 
fixed between quarterly reviews. In the event that one or more 
component securities must be removed due to merger, takeover, 
bankruptcy, or other circumstances, the REIT next on the list from the 
most recent quarterly review, subject to the maintenance criteria 
discussed above, will be selected to replace that security in the 
REIT50 Index. In such case, the divisor will be adjusted as necessary 
to ensure that there is no discontinuity in the value of the REIT50 
Index.
    The REIT50 Index is a total return index in that the regular cash 
dividends of its component securities are included in calculating the 
value of the REIT50 Index. Therefore, at the close of trading each day, 
the prices of component securities that will trade ``ex-dividend'' the 
next day will be adjusted (downward) by the value of the dividend to 
reflect the price impact on the stock as it trades without (or ``ex'') 
the dividend on the following day. The divisor is then adjusted to 
assure continuity of the Index value. The REIT50 Index value will be 
calculated continuously throughout the trading day but the value of the 
REIT50 Index will only be disseminated once per day after the close of 
trading on the Exchange. This daily closing value for the REIT50 Index 
will be disseminated over the Consolidated Tape Association's Network B 
under a separate ticker symbol.\17\

    \17\The Exchange believes that the continuous dissemination of 
the value of the REIT50 Index throughout the trading day will likely 
result in confusion between the REIT50 Index and the Morgan Stanley 
REIT Index that the Exchange will be disseminating every 15 seconds 
throughout the trading day. See Securities Exchange Act Release No. 
36103 (August 14, 1995) (approval of the Amex's proposal to list 
options on the Morgan Stanley REIT Index). Because the values of 
both the Index and the Russell 2000 Index will be disseminated 
throughout the trading day, the value of the REIT50 Index at any 
particular time can easily be calculated by anyone who wants to know 
the value of the REIT50 Index more frequently than once per day. See 
Amendment No. 2, supra note 5.
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.\18\ 
Specifically, the Commission believes that providing for exchange-
trading of the Notes will offer a new and innovative means for 
investors of participating in the market for commercial real 
estate.\19\ In particular, the Commission believes that the Notes will 
permit investors to gain equity exposure in the commercial real estate 
market, while at the same time, limiting the downside risk of their 
original investment. For the reasons discussed in the Indexed Term Note 
Approval Orders, the Commission finds that the listing and trading of 
the Notes is consistent with the Act.\20\

    \18\15 U.S.C. Sec. 78f(b)(2) (1988).
    \19\The Commission notes that the Index Notes are very similar 
in structure to other indexed term notes recently approved by the 
Commission for listing on the Amex. See Securities Exchange Act 
Release Nos. 35886 (June 23, 1995), 60 FR 33884, (June 29, 1995) 
(approval for listing of indexed term notes linked to a portfolio of 
``consolidation candidate'' securities), 34820 (October 11, 1994), 
59 FR 52571 (October 18, 1994) (approval for listing of indexed term 
notes linked to a portfolio of ``basic'' industry securities), 34723 
(September 27, 1994), 59 FR 50631 (October 4, 1994) (approval for 
listing of indexed term notes linked to a portfolio of banking 
industry securities), and 33495 (January 19, 1994), 59 FR 3883 
(January 27, 1994) (approval for listing of Telecommunications 
Basket Stock Upside Note Securities) (collectively, Indexed Term 
Note Approval Orders'').
    \20\Id.
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    As with the other indexed term notes approved for listing by the 
Exchange, the Notes are not leveraged instruments. Their price, 
however, will still be derived and based upon the underlying linked 
securities, i.e., the securities comprising the Russell 2000 and REIT50 
Indexes. Accordingly, the level of risk involved in the purchase or 
sale of Index 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 indexes. 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 securities 
represented in the underlying linked indexes.\21\ The Commission 
believes the Amex has adequately addressed each of these issues such 
that the Commission's regulatory concerns are adequately minimized.\22\ 
In particular, by imposing the listing standards, suitability, 
disclosure, and compliance requirements noted above, the Amex has 
adequately addressed the potential public customer concerns that could 
arise from the hybrid nature of the Notes.\23\ Moreover, the Commission 
believes that the Exchange's existing surveillance procedures are 
adequate to detect and deter any attempts at manipulation of the Notes 
and the indexes underlying the Notes.

    \21\Id.
    \22\Id.
    \23\The Commission notes that the Exchange will also distribute 
a circular to its membership calling attention to the specific risks 
associated with the Notes.
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    In addition, even though the Exchange has not proposed any options 
eligibility requirements for the components of the REIT50 Index, the 
Commission believes that the listing standards and issuance 
restrictions discussed above, particularly the 

[[Page 44920]]
objective standards for share prices and average monthly trading 
volumes\24\ for the REITs represented in the REIT50 Index will ensure 
that the REIT50 Index will be composed predominantly of highly 
capitalized, liquid securities.\25\ Moreover, because the value of the 
Index is based on a combination of the values of the REIT50 Index and 
the Russell 2000 Index, the lack of an options eligibility requirement 
for the components of the REIT50 Index is even less problematic. The 
Russell 2000 Index is a broad-based index composed of 2,000 equity 
securities that the Commission has previously found to be not readily 
susceptible to manipulation and suitable for standardized options 
trading.\26\ In addition, as of January 31, 1995, greater than 98% of 
the weight of the REIT50 Index, and 49 of 50 components in the index 
were options eligible.

    \24\The Commission notes that the average monthly trading volume 
requirement of 400,000 shares per month over a three month period is 
significantly higher than the Amex's initial trading volume 
requirement for options on individual securities, which only 
requires volume of 2.4 million shares over a 12-month period. See 
Amex Rule 915.
    \25\For index options and other derivative products where the 
value of the product is based on an index of securities, the 
Commission generally requires that a certain percentage of the 
index, both by weight and by number of components, be eligible for 
standardized options trading. This requirement serves to minimize 
the potential for any adverse impact on the markets for the 
securities underlying these indexes resulting from the trading of 
these products. See, e.g., Securities Exchange Act Release No. 34157 
(June 3, 1994), 59 FR 30062 (June 10, 1994). For the reasons 
discussed herein, however, the Commission believes that the Amex has 
structured the Notes, in general, and the REIT50 Index, in 
particular, so that the lack of such maintenance criteria does not 
create any significant manipulation or market impact concerns.
    \26\See Exchange Act Release No. 31382, supra note 12.
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    Furthermore, because the Notes are non-leveraged, intermediate-term 
instruments that are based on the difference between two indexes, the 
Commission believes that the lack of a component concentration 
maintenance standard for the REIT50 Index does not raise any material 
regulatory concerns. Specifically, the REIT50 Index will be maintained 
with the 50 largest exchange-traded REITs, by market capitalization. 
Moreover, as of January 31, 1995, the highest weighted component 
accounted for only 4.66% of the weight of the index and the five 
highest weighted components accounted for only 21.00% of the weight of 
the index. The Commission believes, therefore, that the potential that 
the Index could be manipulated by manipulating one or a few components 
of the REIT50 Index has been adequately minimized.
    As a result, the Commission believes that any concerns regarding 
the potential for manipulation of the Index, the REIT50 Index, or the 
Russell 2000 Index, or any adverse market impact on the securities 
comprising the underlying indexes, have been adequately addressed by 
the Amex.
    The Commission also believes that the decision of the Amex to 
disseminate the value of the REIT50 Index only once per day after the 
close of trading is consistent with the Act. The value disseminated 
will be the daily closing value of the REIT50 Index. The Amex will, 
however, calculate the value of the REIT50 Index continuously 
throughout the trading day so that the value of the Index that is 
disseminated will always be based on the current value of the REIT50 
Index. Moreover, because the values for the Index and the Russell 2000 
Index will be disseminated every 15 seconds throughout the trading day, 
investors and market participants could calculate the value of the 
REIT50 Index at any time based on the formula provided above. 
Additionally, the Commission believes that disseminating the value of 
the REIT50 Index only once per day after the close will minimize the 
potential for confusion that may exist between the REIT50 Index and the 
Morgan Stanley REIT Index, which is also calculated and disseminated by 
the Amex.
    The Commission realizes that Index Notes will be dependent upon the 
individual credit of the issuer. To some extent this credit risk is 
minimized by the Exchange's listing standards in Section 107A of the 
Guide which provide that only issuers satisfying substantial asset and 
equity requirements may issue securities such as Index Notes.\27\ In 
addition, the Exchange's hybrid listing standards further require that 
Index Notes have at least $4 million in market value.\28\ In any event, 
financial information regarding the issuer, in addition to information 
on the underlying indexes and the issuers of the securities comprising 
the underlying indexes, will be publicly available.\29\

    \27\See supra note 8.
    \28\See Amex Company Guide Sec. 107A.
    \29\The companies that comprise the Russell 2000 and REIT50 
Indexes are reporting companies under the Act.
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    The Commission finds good cause for approving the proposed rule 
change and Amendment No. 2 to the proposal prior to the thirtieth day 
after the date of publication of notice of filing thereof in the 
Federal Register. First, Amendment No. 2 provides that the value of the 
REIT50 Index will only be disseminated by the Amex once per day after 
the close of trading on the Exchange. For the reasons discussed above, 
the Commission believes this amendment is consistent with the Act. 
Moreover, because the Notes will be priced based on the value of the 
Index, the value of which will be disseminated throughout the trading 
day, the Commission does not believe that this is a material change to 
the proposal requiring notice in the Federal Register prior to 
approval.
    Second, Amendment No. 2 provides that all components of the REIT50 
Index are and will continue to be reported securities, as defined in 
Rule 11Aa3-1 of the Act, that are traded on the Amex, NYSE, or are 
National Market securities traded through Nasdaq. This requirement 
serves to further minimize any concerns regarding potential 
manipulation of the REIT50 Index.
    Third, Amendment No. 2 alters the maintenance criteria for the 
REIT50 Index concerning average monthly trading volume to make the 
requirement over a three month rather than a six month period. As 
discussed above, this requirement is still significantly higher than 
the Exchange's initial trading volume listing criteria for options on 
individual securities. Moreover, the original proposal, as it was 
published in the Federal Register, contemplated that the Exchange would 
be able to add REITs to the REIT50 Index that have been listed and 
trading for a minimum of three months. As a result, the Commission 
believes this amendment was necessary in order to eliminate the 
inconsistency that existed in the original proposal. Furthermore, the 
Commission notes that the original proposal appeared in the Federal 
Register for the full 21-day comment period and that no comments were 
received by the Commission regarding the proposal in general, or, the 
issue of including in the REIT50 Index REITs that have been trading for 
no less than three months, in particular.
    Based on the above, the Commission believes that the proposed rule 
change is consistent with Section 6(b) (5) of the Act and finds good 
cause for approving Amendment No. 2 to the proposal on an accelerated 
basis.
    Interested persons are invited to submit written data, views and 
arguments concerning Amendment No. 2. Persons making written 
submissions should file six copies thereof with the Secretary, 
Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, 
D.C. 20549. Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the 

[[Page 44921]]
Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for inspection and copying in the 
Commission's Public Reference Section, 450 Fifth Street, N.W., 
Washington, D.C. Copies of such filing will also be available for 
inspection and copying at the principal office of the Amex. All 
submissions should refer to File No. SR-Amex-95-05 and should be 
submitted by September 19, 1995.
    It therefore is ordered, pursuant to Section 19(b)(2) of the 
Act,\30\ that the proposed rule change (SR-Amex-95-05), as amended, is 
approved.

    \30\15 U.S.C. Sec. 78s(b)(2) (1988).
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    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\31\

    \31\17 CFR 200.30-3(a)(12) (1994).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 95-21358 Filed 8-28-95; 8:45 am]
BILLING CODE 8010-01-M