[Federal Register Volume 63, Number 238 (Friday, December 11, 1998)]
[Notices]
[Pages 68483-68490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32962]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-40749; File No. SR-Amex-98-29]


Self-Regulatory Organizations; American Stock Exchange, Inc.; 
Order Approving and Notice of Filing and Order Granting Accelerated 
Approval of Amendment No. 2 to the Proposed Rule Change Relating to the 
Listing Under Rules 1000A et seq. of Select Sector SPDRs SM 
and Technology 100 Index Fund Shares

December 4, 1998.

I. Introduction

    On July 17, 1998, the American Stock Exchange, Inc. (``AMEX'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') pursuant to Section 19(b)(1) of the 
Securities Exchange Act of 1934,\1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to list and trade under AMEX Rules 1000A et seq. 
(``Index Fund Shares'') the following securities: (1) nine series of 
Select Sector SPDRs SM.; and (2) one series of the 
Technology 100 Index Fund (collectively, the ``Funds'').
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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    Notice of the proposed rule change, together with substance of the 
proposal, was published for comment in Securities Exchange Act Release 
No. 40391 (September 1, 1998), 63 FR 48280 (September 9, 1998). On 
November 12, 1998, the Exchange filed Amendment No. 2.\3\ The 
Commission received no comments on the proposal. This order approves 
the proposed rule change, as amended.
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    \3\ Amendment No. 2 changes the name of the Sector SPDRs to 
Select Sector SPDRs; clarifies the duties and identity of the 
lending agent; changes and explains the method of the dissemination 
of product information by the Exchange; delineates the construction 
and maintenance standards for the Select Sector Indices and the 
Technology 100 Index; and clarifies that in the event of market wide 
circuit breakers trading in the Select Sector SPDRs and the 
Technology 100 Index Fund would be suspended pursuant to Amex Rule 
117. The substance of this amendment is incorporated into this 
order. See Letter from Michael Cavalier, Associate General Counsel, 
Legal & Regulatory Policy, Amex, to Heather Seidel, Special Counsel, 
Division of Market Regulation (``Division''), Commission, dated 
November 11, 1998 (``Amendment No. 2'').
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II. Description of the Proposal

    The Exchange proposes to list and trade under Rules 1000A et 
seq.\4\ the following securities issued by an open-end management 
investment company: (1) nine series of Select Sector SPDRs 
SM, as described herein;\5\ and (2) one series of the 
Technology 100 Index Fund.\6\
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    \4\ Amex Rules 1000A et seq. provide for the listing and trading 
of Index Fund Shares, which are shares issued by an open-end 
management investment company that seek to provide investment 
results that correspond generally to the price and yield performance 
of a specified foreign or domestic index. See Securities Exchange 
Act Release No. 36947 (March 8, 1996), 63 FR 2348 (March 14, 1996). 
The Exchange currently lists under Rules 1000A et seq. seventeen 
series of World Equity Benchmark Shares TM (``WEBS 
TM'') based on Morgan Stanley Capital International 
foreign stock indices. ``World Equity Benchmark Shares'' and 
``WEBS'' are service marks of Morgan Stanley Group, Inc.
    \5\ ``S&P'' , ``Standard & Poor's 500'' , 
``Standard & Poor's Depository Receipts''  and ``SPDRs'' 
 are trademarks of The McGraw-Hill Companies, Inc., and 
``Select Sector SPDR'' is a service mark of The McGraw-Hill 
Companies, Inc.
    \6\ The Select Sector SPDR Trust (with respect to Select Sector 
SPDRs) and The Index Exchange Listed Securities Trust (with respect 
to the series of the Technology 100 Index Fund) filed with the 
Commission an Application for Orders under Sections 6(c) and 17(b) 
of the Investment Company Act of 1940 (``1940 Act'') as amended, for 
the purpose of exempting Select Sector SPDRs and the series of the 
Technology 100 Index Fund from Sections 2(a)(32), 5(a)(1), 22(d), 
17(a)(1) and (a)(2), and Rule 22c-1 under the 1940 Act. See 
Investment Company Act Release No. 23492 (October 20, 1998), 63 FR 
57332 (October 27, 1998).
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(a) Select Sector SPDRs

    The Exchange proposes to list and trade nine investment series of 
Select Sector SPDRs to be offered by the Select Sector SPDR Trust, an 
open-ended investment company and a Massachusetts business trust. The 
Select Sector SPDRs offered by the Trust are: The Basic Industries 
Select Sector SPDR; The Consumer Services Select Sector SPDR; The 
Consumer Staples Select Sector SPDR; The Cyclical/Transportation Select 
Sector SPDR; The Energy Select Sector SPDR; The Financial Select Sector 
SPDR; The Industrial Select Sector SPDR; The Technology Select Sector 
SPDR; and The Utilities Select Sector SPDR.\7\
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    \7\ Information on the component stocks of the Select Sector 
Indices and the Technology 100 Index is available in the public 
file.
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    Each Select Sector SPDR offers and issues Select Sector SPDR shares 
at their net asset value only in aggregations of a specified number of 
shares (``Creation Unit''), generally in exchange for a basket of 
common stocks consisting of some or all of the component securities 
(``Fund Securities'') of a specified market sector index (``Select 
Sector Index''), together with the deposit of a specified small cash 
payment known as the ``cash component'' and reflecting, for example, 
net accrued dividends. It is anticipated that the deposit of Fund 
Securities and the specified cash payment, in exchange for Select 
Sector SPDRs will be made primarily by institutional investors, 
arbitrageurs and the Exchange specialist. Creation Units are separable 
upon issue into identical shares which are listed and traded on the 
AMEX. Similarly, shares are also redeemable only in Creation Unit size 
aggregations and usually in exchange for Fund Securities and a 
specified cash payment. It is anticipated that a Creation Unit will 
consist of 50,000 shares of the relevant series of Select Sector SPDRs. 
The Select Sector SPDR Trust reserves the right to offer a ``cash'' 
option for creations and redemptions of Select Sector SPDRs, although 
it has no current intention of doing so. For each Select Sector, SPDR, 
the Administrator (State Street Bank and Trust Company) makes available 
through the National Securities Clearing Corporation (``NSCC''), 
immediately prior to the opening of business on the AMEX, the list of 
names and the required number of share of stocks of each relevant 
Select Sector Index to be included in the securities deposit required 
in connection with the creation of Select Sector SPDRs in Creation Unit 
size aggregations.\8\
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    \8\ The procedures for the creation and redemption of Select 
Sector SPDRs and Technology 100 Index Fund shares are similar to 
those applicable for SPDRs, for utilize processes of the National 
Securities Clearing Corporation in connection with the transmittal 
of trade instructions, the transfer of component securities and the 
cash component, and the transfer of Select Sector SPDRs or 
Technology 100 Index Fund shares and component securities on 
creation or redemption. This contrasts with procedures for the 
creation and redemption of other Index Fund Shares currently listed 
on the Amex (i.e., WEBSTM), which, while similar in 
certain respects to SPDR procedures, do not utilize such National 
Securities Clearing Corporation processes. Unlike the WEBS series, 
which do not hold all of the applicable index stocks but instead 
utilize a representative ``portfolio sampling'' technique, Select 
Sector SPDRs and the Technology 100 Index Fund generally will hold 
all of the securities in the applicable index, subject to certain 
conditions disclosed in the applicable prospectus.

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[[Page 68484]]

    Each of the nine Select Sector Indices, which is the benchmark for 
a Select Sector SPDR, is intended to give investors an efficient way to 
track the movement of baskets of the equity securities of public 
companies that are components of the Standard & Poor's 500 Composite 
Stock Index (``S&P 500'') and are involved in specific sectors.\9\ Each 
stock included in a Select Sector Index (the ``Component Stocks'') will 
be selected from companies represented in the S&P 500.\10\ The nine 
Select Sector Indices together will include all of the companies 
represented in the S&P 500 and all of the stocks in the S&P 500 will be 
allocated to one and only one of the Select Sector Indices. Each Select 
Sector Index will be calculated by the AMEX's Index Services Group 
(``AMEX ISG'') using the ``market capitalization'' methodology (the 
same method used in calculating the S&P 500). This design ensures that 
each of the component stocks within a Select Sector Index is 
represented in a proportion consistent with its percentage with respect 
to the total market capitalization of the Select Sector Index. Under 
certain conditions, the number of shares of a component stock may be 
adjusted to conform to requirements of Subchapter M under the Internal 
Revenue Code.\11\
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    \9\ The S&P 500 Index consists of 500 stocks chosen by Standard 
& Poor's for market size, liquidity, and industry group 
representation. It is a market-value weighted index (stock price 
times number of shares outstanding), with each stock's weight in the 
Index proportionate to its market value.
    \10\ The Select Sector Indices underlying the Select Sector 
SPDRs are not the same as S&P indices based on specific industry 
sectors, although the component stocks of the Select Sector Indices 
may be comparable to, and overlap with, the S&P sector indices to 
some degree.
    \11\ Each Select Sector SPDR Fund (as well as the Technology 100 
Index Fund) intends to qualify for and to elect treatment as a 
separate regulated investment company under Subchapter M. To qualify 
for such treatment, a company must annually distribute at least 90% 
of its net investment company taxable income (which includes 
dividends, interest and net short-term capital gains) and meet 
several other requirements, including certain diversification tests.
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    The stocks included in a Select Sector Index have been assigned to 
a Select Sector Index by Merrill Lunch, Pierce, Fenner & Smith 
Incorporated (``Merrill Lynch'' or ``the Index Compilation Agent''). 
The Index Compilation Agent, after consultation with Standard & Poor's, 
assigns Component stocks to a particular Select Sector Index with the 
aim of categorizing a company's fundamental businesses on the basis of 
the company's sales and earnings composition and its predominant source 
of revenue among the company's business lines. In addition, such 
assignment is based on the sensitivity of the company's stock price and 
business results to the common factors that affect other companies in 
the specific Select Sector Index.\12\ Standard & Poor's has sole 
control over the removal of stocks from the S&P 500 and the selection 
of replacement stocks to be added to the S&P 500, but only plays a 
consulting role in the assignment of the S&P 500 component securities 
to any Select Sector Index. The assignment of component stocks to a 
Select Sector Index is the sole responsibility of the Index Compilation 
Agent. If Standard & Poor's removes a stock from the S&P 500, Merrill 
Lynch will remove the same stock from whichever Select Sector Index it 
is in. When Standard & Poor's assign a replacement stock to the S&P 
500, Merrill Lynch will assign the same stock to whichever Select 
Sector Index it deems appropriate.
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    \12\ For example, Amex states that a common factor that could 
affect the prices for the Component Stocks in the Financial Select 
Sector Index or the Utilities Select Sector Index is interest rate 
variations. See Amendment No. 2, supra note 3.
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    Each Select Sector Index is weighted based on the market 
capitalization of each of the Component Stocks, subject to the 
following asset diversification requirements: (i) the market 
capitalization-based weighted value of any single Component Stock 
measured on the last day of a calendar quarter may not exceed 24.99% of 
the total value of its respective Select Sector Index; and (ii) with 
respect to 50% of the total value of the Select Sector Index, the 
market capitalization-based weighted value of the Component Stock must 
be diversified so that no single Component Stock measured on the last 
day of a calendar quarter represents more that 4.99% of the total value 
of its respective Select Sector Index, or in other words, the sum of 
the weight of all of the component stocks that each represent less than 
5% of the Index must be equal to at least 50% of the Index weight.
    Rebalancing the Select Sector Indices to meet the asset 
diversification requirements will be the responsibility of the AMEX 
ISG. If shortly prior to the last business day of any calendar quarter 
(a ``Quarterly Qualification Date''), a Component Stock(s) approaches 
the maximum allowable value limits set forth above (the ``Asset 
Diversification Limits''), the percentage that such Component Stock (or 
Component Stocks) represents in the Select Sector Index will be reduced 
and the market capitalization-based weighted value of such Component 
Stock (or Component Stocks) will be redistributed across the Component 
Stocks that do not closely approach the Asset Diversification Limits in 
accordance with the methodology set forth in the prospectus and 
Statement of Additional Information for the Select Sector SPDR Trust. 
The Select Sector Indices are calculated and disseminated by the AMEX 
ISG.
    Periodically, the Index Compilation Agent will supply the AMEX ISG 
with sector designations for a number of stocks deemed likely 
candidates for replacement selection by the Standard & Poor's 500 Index 
Committee. If a replacement not on the current list is selected by the 
Standard & Poor's 500 Index Committee, the AMEX ISG will ask the Index 
Compilation Agent to assign the stock to one of the nine sectors 
promptly. AMEX will disseminate information on this assignment and on 
consequent changes in the Select Sector Index(es). The AMEX does not 
expect the timing of dissemination of such information to be materially 
affected by whether a replacement stock had been included among the 
candidates for replacement supplied by the Index Compilation Agent.
    The Index Compilation Agent at any time may determine that a 
Component Stock which has been assigned to one Select Sector Index has 
undergone such a transformation in the composition of its business that 
is should be removed from that Select Sector Index and assigned to a 
different Select Sector Index. In the event that the Index Compilation 
Agency notifies the AMEX ISG that a Component Stocks Select Sector 
Index assignment should be changed the AMEX will disseminate notice of 
the change by using an information circular to their membership within 
one business day of receipt of such notice and will implement the 
change in the affected Select Sector Indices on a date no less than one 
week after the initial dissemination of information on the sector 
change to the maximum extent practicable.\13\ It is not anticipated 
that Component Stocks will change sectors frequently.
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    \13\ Telephone Conversation between Michael Cavalier, Associate 
General Counsel, Legal & Regulatory Policy, Amex, and Marc McKayle, 
Attorney, Division, Commission, on November 24, 1998.
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    Component Stocks removed from and added to the S&P 500 will be 
deleted from and added to the appropriate Select Sector Index 
consistent with the timing of the announcement and

[[Page 68485]]

effectiveness of additions and deletions from the S&P 500 insofar as 
practicable. The AMEX will announce a change to a Select Sector Index 
promptly following an announcement by Standard & Poor's of an addition 
to and deletion from the S&P 500.\14\ Generally, changes in the 
applicable component stock for the relevant Select Sector SPDR Index 
will be made concurrently with Standard & Poor's change to the S&P 
500.\15\
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    \14\ Standard & Poor's generally announces S&P 500 changes five 
business days before they take effect.
    \15\ Telephone Conversation between Michael Cavalier, Associate 
General Counsel, Legal & Regulatory Policy, Amex, and Marc McKayle, 
Attorney, Division, Commission, on November 20, 1998.
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    Standard & Poor's will advise the AMEX ISG regarding the handling 
of nonroutine corporate actions which may arise from time to time and 
which may have an impact on the calculation of the S&P 500, and, 
consequently, on the calculation of the Select Sector Indices. 
Corporate Actions such as a merger or acquisition, stock splits, and 
routine spin-offs, which require adjustments in the Select Sector Index 
calculation, will be handled by the AMEX staff. Index Divisor 
adjustments will be calculated, when necessary, in the same manner they 
are handled by Standard & Poor's in its maintenance of the S&P 500. In 
the event a merger or acquisition changes a company's fundamental 
business and source of revenues, the Select Sector Index assignment of 
the stock may change. In any event, a new Index Divisor for affected 
Select Sector Indices will be disseminated to the public promptly by 
the AMEX ISG.
    Each Select Sector SPDR will normally invest at least 95% of its 
total assets in stocks that comprise the relevant Select Sector Index 
or stock equivalent positions which the Adviser deems appropriate as an 
alternative to such stocks.\16\
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    \16\ As noted above, supra note 8, Select Sector SPDRs generally 
will hold all of the securities in the applicable index, subject to 
certain conditions disclosed in the applicable prospectus.
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(b) Technology 100 Index Fund Shares

    The Exchange also proposes to list and trade Technology 100 Index 
Fund shares issued by the Index Exchange Listed Security Trust, an 
open-ended investment company and a Massachusetts business trust. Such 
trust is an ``index fund'' presently consisting of a single investment 
portfolio, the Technology 100 Index Fund. Fund shares may be created 
and redeemed in a manner similar to that described above for Select 
Sector SPDRs.\17\ The Fund Administrator (State Street Bank and Trust 
Company) makes available through NSCC, immediately prior to the opening 
of business on the AMEX, the list of names and the required number of 
shares of stocks to be included in the securities deposit required in 
connection with creation of Fund shares in Creation Unit size 
aggregations. Creation Units are separable upon issuance into identical 
shares which are listed and traded on the AMEX. Similarly, shares are 
also redeemable only in Creation Unit size aggregations and usually in 
exchange for Fund Securities and a specified cash payment. It is 
anticipated that one Creation Unit will consist of 50,000 Fund shares.
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    \17\ As noted above, supra note 8, the Technology 100 Index Fund 
generally will hold all of the securities in the applicable index, 
subject to certain conditions disclosed in the applicable 
prospectus. The Fund reserves the right to offer a ``cash'' option 
for creations and redemptions of Fund shares, although it has no 
current intention of doing so. The Fund will normally invest at 
least 95% of its total assets in stocks that comprise the benchmark 
index or stock equivalent positions which the Adviser deems 
appropriate as an alternative to such stocks.
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    The Fund's investment objective is to provide investment results 
that correspond generally to the price and yield performance of 
publicly traded equity securities of technology companies as 
represented by an index (the ``Technology 100 Index'') compiled by 
Merrill Lynch. The Technology 100 Index, which is constructed in 
accordance with specified selection criteria, is intended to give 
investors an efficient, equal-dollar weighted way to track movements of 
certain technology stocks and American Depositary Receipts (``ADRs'') 
traded within the United States. According to the AMEX, the Technology 
100 Index provides a diversified representation of technology stocks 
and ADRs traded in the United States. The majority of the Technology 
100 Index components are involved in the following industries: computer 
software, data processing, computer services, semiconductors, and 
telecommunications equipment.
    The Technology 100 Index is constructed by Merrill Lynch based on 
two criteria: market capitalization and trading volume. First, to 
assure that stocks in the Index are highly liquid, stocks with daily 
trading volume of less than $12.5 million (shares traded times trade 
price) are eliminated from the selection universe of all U.S. traded 
technology stocks and ADRs. The median 63 day trading volume 
calculation, using the most recent 63 trading days, is used for this 
screening; the data for the initial index construction is from January 
30, 1998. Second, the top 100 stocks from the liquidity-screened 
universe of technology names are chosen by market capitalization. The 
price used to calculate market capitalization in connection with the 
initial index construction is the primary exchange closing price as of 
January 30, 1998.
    The Technology 100 Index is calculated and maintained by the AMEX 
ISG in consultation with Merrill Lynch, which may suggest changes in 
the industry categories represented in the Index or changes in the 
number of component stocks in an industry category to properly reflect 
the changing conditions in the technology sector. The Technology 100 
Index is calculated using an equal dollar weighting methodology 
designed to ensure that each security is represented in an 
approximately equal dollar amount. In addition, Merrill Lynch may 
advise the Exchange regarding the handling of unusual corporate 
actions. Routine corporate actions (e.g. stock splits) that require 
straightforward index divisor adjustments are handled by the Exchange 
staff without consulting Merrill Lynch.
    Whenever possible, all stock replacements and unusual divisor 
adjustments caused by the occurrence of extraordinary events such as 
dissolution, merger, bankruptcy, non-routine spin-offs, or 
extraordinary dividends will be made by the Exchange in consultation 
with Merrill Lynch. In the case of replacements, the largest non-index 
constituent in terms of market capitalization from the list of U.S.-
traded technology stocks and ADRs will be chosen.
    In selecting replacement stocks, the market capitalization and 
trading volume is calculated using the primary exchange closing price 
one day prior to potential replacements being considered. There is no 
fixed period between the consideration and change dates, but in most 
instances the period between the consideration and the change dates 
will be no more than a month.\18\ The chosen stock must have a median 
daily trading volume over the previous 63 days that is greater than 
that of the 75th percentile rank of the existing Index stocks. If the 
liquidity level is insufficient, the next largest stock will be 
considered. In the event that no stock meets the liquidity criteria,

[[Page 68486]]

the largest stock in terms of market capitalization will be added.
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    \18\ Telephone conversation between Michael Cavalier, Associate 
General Counsel, Legal & Regulatory Policy, Amex, and Marc McKayle, 
Attorney, Division, Commission, on December 3, 1998.
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    Merrill Lynch will reconstitute the Index annually after the close 
of the third Friday of December. The reconstitution will take two 
steps: first, determination of Index constituents, and second, share 
calculations to ensure equal weighting. Index constituents will be 
replaced if; 1) a stock is no longer deemed a representative 
``technology'' stock; or 2) the stock's market capitalization declines 
below that of the 125th market cut-off to reduce unnecessary turnover. 
The shares and volume figures are calculated using data as the second 
Friday of December.

(c) Dissemination of Information by the Exchange19

    The value of the Select Sector Indices and the Technology 100 Index 
will be calculated continuously by AMEX and disseminated every 15 
seconds on Network B of the Consolidated Tape Association (``CTA''). 
The major electronic financial data vendors, including Bloomberg, 
Quotron, Reuters, and Bridge Information Systems, are expected to 
publish information on the Select Sector and Technology 100 Indices for 
their subscribers.
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    \19\ The Exchange will not disseminate the Indicative Per Share 
Portfolio Value described in the initial Rule 19b-4 filing, but will 
instead disseminate information as described herein. See Amendment 
No. 2, supra note 3.
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    In order to provide up to date pricing information for the Funds' 
shares, the Exchange will calculate and disseminate every 15 seconds 
through CTA Network B an amount representing on a per share basis the 
sum of the ``Dividend Equivalent Payment'' effective through and 
including the previous business day, plus the current value of the 
``Deposit Securities'' (the sum of the Dividend Equivalent Payment plus 
the current value of the Deposit Securities is the ``Value''). The 
Dividend Equivalent Payment is an amount intended to enable a Fund to 
make a distribution of dividends on the next payment date as if all the 
portfolio securities of the Fund had been held for the entire dividend 
period. The ``Deposit Securities'' consist of a designated portfolio of 
securities constituting a substantial replication, or a representation, 
of the stocks included in the relevant Fund index.

(d) Other Characteristics of Select Sector SPDRs and Technology 100 
Index Fund

    For each of the nine series of Select Sector SPDRs and the 
Technology 100 Index Fund, it is anticipated that a minimum of three 
Creation Units will be outstanding at the commencement of trading on 
the Exchange.20 Based on market prices as of November 12, 
1998, it is anticipated that the initial trading price of a Select 
Sector SPDR will range from approximately $21 to $28, and that the 
initial trading price of a Technology 100 index Fund share will be 
approximately $25.21
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    \20\ Based on the estimated initial trading prices for the 
Select Sector SPDRs and the Technology 100 Index Fund shares, the 
value of the one creation unit should be between $1 million and $1.5 
million. Telephone conversation between Michael Cavalier, Associate 
General Counsel, Legal & Regulatory Policy, Amex, and Marc McKayle, 
Attorney, Division, Commission, on November 20, 1998.
    \21\ See Amendment No. 2, supra note 3.
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    The Funds will pass along dividends and interest, net of expenses, 
to fund shareholders as ``income dividend distributions.'' Net capital 
gains will be distributed to shareholders as ``capital gain 
distributions.''
    The net asset value for the Funds is calculated by the 
Administrator, State Street Bank and Trust Company (``State Street''), 
which is also the Adviser and Custodian for the Funds. State Street 
will also act as the lending agent for the Select Sector 
SPDR.22 The lending agent for the Technology 100 Index Fund 
will be determined.23 ALPS Mutual Funds Services, Inc. 
serves as the principal underwriter and distributor for the Funds.
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    \22\ The lending agents for the Funds will cause the delivery of 
loaned securities from each Fund to borrowers, arrange for the 
return of loaned securities to the Fund at the termination of the 
loans, request deposit of collateral when required by the loan 
arrangements, and provide recordkeeping and accounting services. See 
Amendment No. 2, supra note 3.
    \23\ Merrill Lynch will not be the lending agent for the 
Technology 100 Index Fund as indicated in the original filing. 
Telephone Conversation Between Michael Cavalier, Associate General 
Counsel, Legal & Regulatory Policy, Amex, and Marc McKayle, 
Attorney, Division, Commission, on November 23, 1998.
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    Select Sector SPDRs and Technology 100 Index Fund shares are 
registered in book-entry form through the Depository Trust Company. 
Trading in Select Sector SPDRs and Technology 100 Index Fund shares on 
the Exchange is effected until 400 p.m. each business day. The minimum 
trading increment under Rule 127 for Select Sector SPDRs and Technology 
100 Index Fund shares will be \1/64\ of $1.00.

(e) Stop and Stop Limit Orders

    AMEX Rule 154, Commentary .04(c) provides that stop and stop limit 
orders to buy or sell a security (other than an option, which is 
covered by AMEX Rule 950(f) and Commentary thereto) the price of which 
is derivatively priced based upon another security or index of 
securities, may with the prior approval of a Floor Official, be elected 
by a quotation, as set forth in Commentary .04(c)(i-v). The Exchange 
has designated Index Fund Shares, including Select Sector SPDRs and 
shares of the Technology 100 Index Fund, as eligible for this 
treatment.\24\
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    \24\ See Securities Exchange Act Release No. 29063, n. 9 (April 
10, 1991), 56 FR 15652 (April 17, 1991) (order approving File No. 
SR-Amex-90-31 regarding Exchange designation of equity derivative 
securities as eligible for such treatment under Rule 154, Commentary 
.04(c)).
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(f) Trading Halts

    In addition to other factors that may be relevant, the Exchange may 
consider factors such as those set forth in AMEX Rule 918C(b) in 
exercising its discretion to halt or suspend trading in Index Fund 
Shares, including Select Sector SPDRs and Technology 100 Index Fund 
shares. These factors would include (1) the current calculation of the 
numerical index value derived from the current market prices of the 
underlying stocks in such stock index group is not available; (2) 
trading in one or more of the underlying stocks comprising such stock 
index group has been halted in the primary market(s) under 
circumstances which indicate that such stock or stocks will likely re-
open at a price or prices significantly different than the price or 
prices at which such stocks or stocks last traded prior to the halt; 
(3) the extent to which trading is not occurring in stocks underlying 
the index; (4) other unusual conditions or circumstances detrimental to 
the maintenance of a fair and orderly market are present.25
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    \25\ In the event of market wide circuit breakers trading in the 
Select Sector SPDRs and the Technology 100 Index Fund would be 
suspended pursuant to Amex Rule 117. See Amendment No. 2, supra note 
3.
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(g) Disclosure

    Member firms will be informed by an information circular, prior to 
the commencement of trading, that investors purchasing Select Sector 
SPDRs or Technology 100 Index Fund shares will be required to receive a 
fund prospectus prior to, or concurrently with, the confirmation of a 
transaction within. The information circular will address Exchange 
members' responsibilities under AMEX Rule 411 (``know your customer 
rule'') regarding transactions in such Fund Shares. AMEX Rule 411 
generally requires that members use due diligence to learn the 
essential facts relative to every customer, every order or account 
accepted.26 The circular also will address members' 
responsibility to deliver a prospectus to all investors as

[[Page 68487]]

well as highlight the characteristics of purchases in the Funds.
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    \26\ See Amex Rule 411.
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III. Discussion

    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.\27\ The 
Commission believes that the Exchange's proposal to list and trade nine 
Select Sector SPDRs and one series of Technology 100 Index Fund Shares 
will provide investors with a convenient and efficient way of 
participating in the securities markets. The Exchange's proposal should 
help to provide investors with increased flexibility in satisfying 
their investment needs by allowing them to purchase and sell a low cost 
security replicating the performance of a portfolio of stocks at 
negotiated prices throughout the business day.\28\ The Commission also 
believes that Fund Shares in general, and Select Sector SPDRs and the 
Technology 100 Index Fund shares in particular, will benefit investors 
by allowing them to trade securities based on a portfolio of stocks in 
secondary market transactions.\29\ Accordingly, as discussed below, the 
proposed rule change is consistent with Section 6(b)(5) of the Act \30\ 
which requires Exchange rules to facilitate transactions in securities 
while continuing to further investor protection and the public 
interest.\31\
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    \27\ 15 U.S.C. 78f(b)(5).
    \28\ Pursuant to Section 6(b)(5) of the Act, the Commission must 
predicate approval of any new securities product upon a finding that 
the introduction of such product is in the public interest. Such a 
finding would be difficult with respect to a product that served no 
hedging or other economic function, because any benefits that might 
be derived by market participants likely would be outweighed by the 
potential for manipulation, diminished public confidence in the 
integrity of the markets, and other valid regulatory concerns.
    \29\ The Commission notes, however, that unlike typical open-end 
investment companies, where investors have the right to redeem their 
fund shares on a daily basis, investors in Select Sector SPDRs and 
the Technology 100 Index Fund can redeem them in Creation Unit size 
aggregations only. Nevertheless, Select Sector SPDRs and the 
Technology 100 Index Fund shares would have the added benefit of 
liquidity from the secondary market and fund holders, unlike holders 
of most other open-end funds, would be able to dispose of their 
shares in a secondary market transaction.
    \30\ 15 U.S.C. 78f(b).
    \31\ In approving this rule, the Commission notes that it has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. 15 U.S.C. 78c(f).
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    As the Commission noted in previous orders approving other products 
(SPDRs and MidCap SPDRs) for listing and trading on AMEX,\32\ the 
Commission believes that the trading of a security like the Select 
Sector SPDRs and the Technology 100 Index Fund shares, which replicate 
the performance of a portfolio of stocks, could benefit the securities 
markets by, among other things, helping to ameliorate the volatility 
occasionally experienced in these markets. The Commission believes that 
the creation of one or more products where actual portfolios of stocks 
or instruments representing a portfolio of stocks, such as Select 
Sector SPDRs and the Technology 100 Index Fund shares, trade at a 
single location in an auction market environment could alter the 
dynamics of program trading, because the availability of such single 
transaction portfolio trading could, in effect, restore the execution 
of program trades to more traditional block trading techniques.\33\ 
Accordingly, the Commission believes that trading shares of the Funds 
will provide retail investors with a cost efficient means to make 
investment decisions based on the direction of certain sectors the 
market, and may provide market participants several advantages over 
existing methods of effecting program or other trades involving stocks.
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    \32\ See Securities Exchange Act Release Nos. 31591 (December 
11, 1992), 57 FR 60253 (December 18, 1992) (``SPDRs Order''), and 
35534 (March 24, 1995), 60 FR 16686 (March 31, 1995) (``MidCAP SPDRs 
Order'').
    \33\ Program trading is defined as index arbitrage or any 
trading strategy involving the related purchase or sale of a 
``basket'' or group of fifteen or more stocks having a total market 
value of $1 million or more.
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    Based on market prices as of November 12, 1998, it is anticipated 
that the initial trading price of a Select Sector SPDR will range from 
approximately $21 to $28, and the initial trading price of the 
Technology 100 Index Fund share will be approximately $25. The 
estimated cost of an individual Select Sector SPDR or the Technology 
100 Index Fund should make it attractive to individual retail investors 
who wish to hold a security replicating the performance of a portfolio 
of stocks representing a particular sector of the marketplace.\34\ 
Accordingly, the Commission believes that trading of Select Sector 
SPDRs and the Technology 100 Index Fund shares will provide retail 
investors with a cost efficient means to make investment decisions 
based on the direction of various segments of the market and may 
provide market participants several advantages over existing methods of 
effecting program or other trades involving stocks.
---------------------------------------------------------------------------

    \34\ For example, an investor wishing to hold securities 
tracking technology stocks could purchase in a single transaction 
the Technology Select Sector SPDR or the Technology 100 Index Fund.
---------------------------------------------------------------------------

    Moreover, the Commission believes that Select Sector SPDRs and the 
Technology 100 Index Fund shares will provide investors with several 
advantages over standard open-end mutual fund shares specializing in 
such stocks. In particular, investors will be able to trade the Funds 
continuously throughout the business day in secondary market 
transactions at negotiated prices.\35\ In contrast, Investment Company 
Rule 22c-1 \36\ limits holders and prospective holders of open-end 
investment company shares to purchasing or redeeming securities of the 
fund based on the net asset value of the securities held by the funds 
as designated by the board of directors. Accordingly, the Select Sector 
SPDRs and the Technology 100 Index Fund shares should allow investors 
to: (1) respond quickly to market changes; (2) trade at a known price; 
(3) engage in hedging strategies not currently available to retail 
investors; and (4) reduce transaction costs for trading a portfolio of 
securities.
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    \35\ Because of potential arbitrage opportunities, the 
Commission believes that the Funds will not trade at a material 
discount or premium in relation to their net asset value. The mere 
potential for arbitrage should keep the market price of the Funds 
comparable to its net asset value, and therefore, arbitrage activity 
likely will be minimal. In addition, the Commission believes the 
Trusts will track the underlying index more closely than an open-end 
index fund because the Trusts will accept only in-kind deposits, 
and, therefore, will not incur brokerage expenses in assembling its 
portfolio. In addition, the Trusts will generally redeem only in 
kind, thereby enabling the Trusts to invest virtually all of its 
assets in securities comprising the underlying index.
    \36\ Investment Company Act Rule 22c-1 generally requires that a 
registered investment company issuing a redeemable security, its 
principal underwriter, and dealers in that security, may sell, 
redeem, or repurchase the security only at a price based on the net 
asset value next computed after receipt of an investor's request to 
purchase, redeem, or resell. The net asset value of a mutual fund 
generally is computed once daily Monday through Friday as designated 
by the investment company's board of directors. The Commission 
granted the Select Sector SPDRs and the Technology 100 Fund an 
exemption from this provision in order to allow them to trade at 
negotiated prices in the secondary market. See supra note 6.
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    Although the Funds are not leveraged instruments, and, therefore, 
do not possess any of the attributes of stock index options, their 
prices will still be derived and based upon the securities held in 
their respective Trusts. In essence, the Funds are equity securities 
that are priced off a portfolio of stocks based on the nine Select 
Sector SPDR Indices and the Technology 100 Index. Accordingly, the 
level of risk involved in the purchase or sale of these Funds is 
similar to the risk involved in the

[[Page 68488]]

purchase or sale of traditional common stock, with the exception that 
the pricing mechanism for the Funds is based on a basket of stocks. 
Based on these factors, the Commission believes that it is appropriate 
to regulate the Funds in a manner similar to other equity securities. 
Nevertheless, the Commission believes that the nature of the Funds 
raise, certain product design, disclosure, trading, market impact and 
other issues that must be addressed adequately. As discussed in more 
detail below, the Commission believes AMEX has adequately addressed 
these concerns.

(a) The Funds Generally

    The Commission believes that the proposed Funds are reasonably 
designed to provide investors with an investment vehicle that 
substantially reflects in value the index it is based upon, and, in 
turn, the performance of: (1) public companies that are components of 
the S&P 500 and are involved in a specific Select Sector Index as 
designed by Merrill Lynch, and (2) publicly traded equity securities of 
technology companies as represented by an index compiled by Merrill 
Lynch. The components of the nine individual Select Sector SPDRs, 
collectively, comprise all of the components in the S&P 500, a broad-
based, capitalization-weighted index consisting of 500 of the most 
actively-traded and liquid stocks in the U.S. Thus, although Merrill 
Lynch is primarily responsible for the assignment of stocks into Select 
Sector Indices, the nature of the S&P 500 provides a liquidity screen 
that should insure that the Select Sector Indices are comprised of 
highly liquid securities. Merrill Lynch also imposes specific criteria 
in its selection of the Technology 100 Index components. In selecting 
components for the Technology 100 Index, Merrill Lynch evaluates the 
market capitalization and trading volume of the components to assure 
that the stocks within the Index are liquid and highly capitalized.
    The aim of these component selection processes is to make Fund 
Index components highly representative of the over-all economic sector 
make-up and market capitalization of a given market. At the same time, 
securities that are illiquid or that have a small capitalization are 
avoided. The Commission believes that these criteria should serve to 
ensure that the underlying securities of these Indices are well 
capitalized and actively traded.
    Additionally, the Funds generally will hold all of the securities 
in the applicable index, subject to certain conditions disclosed in the 
applicable prospectus. The Commission also notes that the Funds will 
normally invest at least 95% of their total assets in stocks that 
comprise the relevant Sector Index, the Technology 100 Index, or stock 
equivalent positions which the Adviser deems appropriate as an 
alternative to such stocks. The Commission believes that taken 
together, the foregoing are adequate to characterize the Funds as bona 
fide index funds. Furthermore, the Commission believes that the 
component selection and replacement procedures for the Funds should 
help to ensure that the component securities generally remain highly 
capitalized and actively traded, and that the components continue to 
reflect their corresponding indices.

(b) Disclosure

    The Commission believes that the Exchange's proposal should ensure 
that investors are adequately apprised of the terms, characteristics, 
and risks of trading the Funds.\37\ As noted above, all Fund Share 
investors will receive a prospectus regarding the product. Because the 
Funds will be in continuous distribution, the prospectus delivery 
requirements of the Securities Act of 1933 will apply both to initial 
investors, and to all investors purchasing such securities in secondary 
market transactions on the AMEX. The prospectus will address the 
special characteristics of the Select Sector SPDRs or the Technology 
100 Index Fund shares, including a statement regarding its 
redeemability and method of creation.
---------------------------------------------------------------------------

    \37\ The Amex will be required to file a proposed rule change if 
an exemption from the prospectus delivery requirement with respect 
to any of the Funds is sought in the future.
---------------------------------------------------------------------------

    The Commission notes that the Exchange will issue an information 
circular to its members explaining the unique characteristics of this 
type of security prior to the commencement of trading in shares of the 
Funds. The Commission also notes the circular will address Exchange 
members' responsibilities under AMEX Rule 411 regarding transactions in 
such Fund Shares. AMEX Rule 411 generally requires that members use due 
diligence to learn the essential facts relative to every customer, 
every order or account accepted.\38\ The circular also will address 
members' responsibility to deliver a prospectus to all investors as 
well as highlight the charactistics of purchases in the Fund Shares.
---------------------------------------------------------------------------

    \38\ See Amex Rule 411.
---------------------------------------------------------------------------

(c) Trading of the Index Fund Shares

    The Commission finds that adequate rules and procedures exist to 
govern the trading of Index Fund Shares, including Select Sector SPDRs 
and the Technology 100 Index Fund shares. The Fund shares will be 
deemed equity securities subject to all AMEX rules governing the 
trading of equity securities, including, among others, rules governing 
priority, parity, and precedence of orders, market volatitly related 
trading halt provisions pursuant to Rule 117, and responsibilities of 
specialist. The Commission also notes that the AMEX may consider 
halting trading in any series of Index Funds Shares under certain other 
circumstances, including those set forth in AMEX Rule 918C(b)(4) 
regarding the presence of other unusual conditions or circumstances 
detrimental to the maintenance of a fair and orderly market.
    The Commission is satisfied with the AMEX's development of specific 
listing and delisting criteria for Index Fund Shares, including Select 
Sector SPDRs and the Technology 100 Index Fund shares. These criteria 
should help to ensure that a minimum level of liquidity will exist in 
the Funds and allow for the maintenance of fair and orderly markets. 
The delisting criteria also allows the Exchange to consider the 
suspension of trading and the delisting of a Select Sector SPDR or the 
Technology 100 Index Fund, if an event were to occur that made further 
dealings in such securities inadvisable. Thus, the Exchange has 
flexibility to delist any of the Funds if circumstances warrant such 
action.\39\ Accordingly, the Commission believes that the rules 
governing the trading of Index Fund Shares, including the Select Sector 
SPDRs and the Technology 100 Index Fund, provide adequate safeguards to 
prevent manipulative acts and practices and to protect investors and 
the public interest.
---------------------------------------------------------------------------

    \39\ The Commission believes that any restrictions that change 
the fund shares fundamental characteristics should raise concerns 
under the delisting criteria. In such a case, the Amex should 
determine whether continued listing as a fund share is appropriate.
---------------------------------------------------------------------------

    Under AMEX's proposal, there will be no special account opening or 
customer suitability rules applicable to the trading of the Fund 
shares.\40\ Nevertheless, as noted above, AMEX Rule 411, which provides 
in pertinent part that ``[e]very member or member organization shall 
use due diligence to learn the essential facts relative to every 
customer and to every order or account accepted,'' will apply.
---------------------------------------------------------------------------

    \40\ This reflects the fact that the Fund shares are equity 
products and not an options product, and, therefore, do not 
necessitate the imposition of options-like rules.

---------------------------------------------------------------------------

[[Page 68489]]

(d) Market Impact

    The Commission believes AMEX has adequately addressed the potential 
market impact concerns raised by the proposal. First, AMEX's proposal 
permits listing and trading of specific Index Fund Share only after 
review by the Commission. Second, AMEX has developed policies regarding 
trading halts in Index Fund Shares. Specifically, the Exchange would 
halt Index Fund Share trading in the Funds if the circuit breaker 
parameters under AMEX Rule 117 were reached. In addition, in deciding 
whether to halt trading or conduct a delayed opening in Index Fund 
Shares, in general, and the Select Sector SPDRs and the Technology 100 
Index Fund Shares, in particular, AMEX represents that it will be 
guided by, but not necessarily bound to, relevant stock index option 
trading rules. These rules would permit AMEX to halt or suspend 
trading, based on certain factors, whenever two floor governors and a 
senior executive officer of the Exchange deemed such action appropriate 
and in the interest of a fair and orderly market or to protect 
investors.\41\
---------------------------------------------------------------------------

    \41\ See Amex Rule 918C(b).
---------------------------------------------------------------------------

    The Commission believes that the trading of Index Fund Shares in 
general, and Select Sector SPDRs and the Technology 100 Index Fund, in 
particular, on AMEX should not adversely impact U.S. securities 
markets. As to the trading of the Fund Shares, the Commission notes 
that the corpus of the Trusts portfolios of stock are actively traded 
and liquid. In fact, as described above, the Commission believes the 
Funds may provide substantial benefits to the marketplace and 
investors, including, among others, enhancing the stability of the 
markets for individual stocks.\42\ Accordingly, the Commission believes 
that the Select Sector SPDRs and the Technology 100 Index Fund shares 
do not contain features that will make them likely to impact adversely 
the U.S. securities markets.
---------------------------------------------------------------------------

    \42\ Even though Index Fund Share transactions may serve as 
substitutes for transactions in the cash market, and possibly make 
the order flow in individual stocks smaller than would otherwise be 
the case, the Commission acknowledges that during turbulent market 
conditions the ability of large institutions to redeem or create 
Index Fund Shares could conceivably have an impact on price levels 
in the cash market. In particular, if a Index Fund Share is 
redeemed, the resulting long stock position could be sold into the 
market, thereby depressing stock prices further. The Commission 
notes, however, that the redemption or creation of Index Fund Shares 
likely will not exacerbate a price movement because Index Fund 
Shares will be subject to the equity margin requirements of 50% and 
Index Fund Shares are non-leveraged instruments. In addition, as 
noted above, during turbulent market conditions, the Commission 
believes Index Fund Shares, including Select Sector SPDRs and the 
Technology 100 Index Fund shares, in particular, will serve as a 
vehicle to accommodate and ``bundle'' order flow that otherwise 
would flow to the cash market, thereby allowing such order flow to 
be handled more efficiently and effectively. Accordingly, although 
Select Sector SPDRs and the Technology 100 Index Fund Shares, like 
any other Index Fund Share, could, in certain circumstances, have an 
impact on the cash market, on balance we believe the product will be 
beneficial to the marketplace and can actually aid in maintaining 
orderly markets.
---------------------------------------------------------------------------

(e) Dissemination of Portfolio Information

    The Commission believes that the Values the Exchange proposes to 
disseminate for the Funds will provide investors with timely and useful 
information concerning the value of the Select Sector SPDRs and the 
Technology 100 Index Fund shares on a per Fund basis. The Exchange 
represents that the information will be disseminated through the 
facilities of the CTA and will reflect currently-available information 
concerning the value of the assets comprising the Deposit Securities. 
This information will be disseminated every 15 seconds during regular 
AMEX trading hours of 9:30 a.m. to 4:00 p.m., New York time. In 
addition, since it is expected that the Value will closely track the 
applicable Fund, the Commission believes that the Values will provide 
investors with adequate information to determine the intra-day value of 
the given Select Sector SPDR or the Technology 100 Index Fund.\43\ The 
Commission expects that the AMEX will monitor the disseminated Value, 
and if the AMEX were to determine that the Value does not closely track 
the applicable Fund, it would arrange to disseminate an adequate 
alternative value.
---------------------------------------------------------------------------

    \43\ Supra, note 8.
---------------------------------------------------------------------------

(f) Surveillance

    The Commission notes that the AMEX has submitted surveillance 
procedures for the trading of Select Sector SPDRs and the Technology 
100 Index Fund shares. These procedures incorporate the Fund Shares 
into the existing AMEX surveillance procedures to address concerns 
associated with the listing and trading of such securities.
    The Commission also notes that certain concerns are raised when a 
broker dealer, such as Merrill Lynch, is involved in the development 
and maintenance of a stock index, upon which a product such as the Fund 
shares is based. The Commission notes that Merrill Lynch has 
implemented procedures to prevent the misuse of material, non-public 
information regarding changes to component stocks in a Select Sector 
Index or the Technology 100 Index to assuage such concerns. The 
Commission believes that the ``Fire Wall'' procedures put in place by 
Merrill Lynch to segregate and survey their trading desk and research 
department should help address concerns raised by Merrill Lynch's 
involvement in the management of the Select SPDR Indices and the 
Technology 100 Fund Index.

(g) Stop and Stop Limit Orders

    As noted above, AMEX Rule 154, Commentary .04(c) provides that stop 
and stop limit orders to buy or sell a security (other than an option, 
which is covered by AMEX Rule 950(f) and Commentary thereto) the price 
of which is derivatively priced based upon another security or index of 
securities, may with the prior approval of a Floor Official, be elected 
by a quotation, as set forth in Commentary .04(c)(i-v). The Exchange 
has designated Index Fund Shares, including Select Sector SPDRs and 
shares of the Technology 100 Index Fund, as eligible for this 
treatment. The Commission believes that to allow stop and stop limit 
orders in Index Fund Shares to be elected by quotation, a rule 
typically used in the options context, is appropriate because, as a 
result of their derivative nature, Index Fund Shares are in effect 
equity securities that have a pricing and trading relationship to the 
underlying securities similar to the relationship between options and 
their underlying securities.

(h) Accelerated Approval of Amendment No. 2

    The Commission finds good cause to approve Amendment No. 2 to the 
proposed rule change prior to the thirtieth day after the day of 
publication of notice of filing thereof in the Federal Register. 
Specifically, Amendment No. 2 strengthens the proposed rule change by 
clarifying the duties and identity of the lending agents, the 
construction and maintenance standards for the Select Sector Indices 
and the Technology 100 Index, and trading halt procedures for the 
Funds. Amendment No. 2 also strengthens the proposal by providing for a 
method of disseminating information on the value of the Fund Shares 
that more closely tracks the actual value of Funds. Additionally, 
Amendment No. 2 concerns issues that have been raised in prior Exchange 
proposals that have been the subject of a full comment period pursuant 
to Section 19(b) of the Act.\44\ Accordingly, the Commission believes 
that there is good cause, consistent with Section

[[Page 68490]]

6(b)(5) and 19(b) of the Act,\45\ to approve Amendment No. 2 to the 
proposal on an accelerated basis.
---------------------------------------------------------------------------

    \44\ 15 U.S.C. 78s(b).
    \45\ 15 U.S.C. 78f(b) and 78s(b).
---------------------------------------------------------------------------

    Interested persons are invited to submit written data, views and 
arguments concerning Amendment No. 2, including whether the proposed 
rule change is consistent with the Act. Persons making written 
submissions should file six copies thereof with the Secretary, 
Securities and Exchange Commission, 450 Fifth Street, NW., Washington, 
DC 20549. Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the 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 at the Commission's Public Reference Room. Copies of such 
filing will also be available for inspection and copying at the 
principal office of the Exchange. All submissions should refer to File 
No. SR-AMEX-98-29 and should be submitted by January 4, 1999.

IV. Conclusion

    It is therefore ordered, pusuant to Section 19(b)(2) of the 
Act,\46\ that the proposed rule change (SR-AMEX-98-29), as amended, is 
approved.
---------------------------------------------------------------------------

    \46\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\47\
---------------------------------------------------------------------------

    \47\ 17 CFR 299.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 98-32962 Filed 12-10-98; 8:45 am]
BILLING CODE 8010-01-M