[Federal Register Volume 59, Number 7 (Tuesday, January 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-625]


[[Page Unknown]]

[Federal Register: January 11, 1994]


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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 20000; 812-8592]

 

Equity Strategies Fund, Inc., et al.; Notice of Application 
January 5, 1994

agency: Securities and Exchange Commission (``SEC'').

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

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applicants: Equity Strategies Fund, Inc. (``Fund''), Nabors Industries, 
Inc. (``Nabors''), and Martin J. Whitman, on behalf of themselves and 
all ``Affected Persons,'' as defined below.

relevant act sections: Order requested under section 17(b) exempting 
applicants from section 17(a), and under rule 17d-1 to permit certain 
joint transactions otherwise prohibited by section 17(d) and rule 17d-
1.

summary of application: Applicants seek an order that would permit 
Nabors to purchase substantially all of the assets of the Fund in 
exchange for Nabors common stock. The Fund would then liquidate and 
distribute the Nabors stock pro rata to its shareholders.

filing date: The application was filed on September 20, 1993, and 
amended and restated on November 15, 1993, and January 3, 1994.

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 31, 
1994, and should be accompanied by proof of service on the applicants, 
in the form of an affidavit or, for lawyers, a certificate of service. 
Hearing requests should state the nature of the writer's interest, the 
reason for the request, and the issues contested. Persons who wish to 
be notified of a hearing may request such notification by writing to 
the SEC's Secretary.

addresses: Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549. 
Applicants, 767 Third Avenue, New York, NY 10017.

for further information contact: Barry A. Mendelson, Senior Attorney, 
at (202) 504-2284, or C. David Messman, Branch Chief, at (202) 272-3018 
(Division of Investment Management, Office of Investment Company 
Regulation).

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

Applicants' Representations

    1. The Fund, incorporated in 1981 under the laws of the state of 
Maryland, is an open-end, non-diversified management investment company 
registered under the Act. The Fund's investment adviser is EQSF 
Advisers, Inc. (``EQSF''). The Fund does not qualify to elect to be 
taxed as a regulated investment company under Subchapter M of the 
Internal Revenue Code, and thus pays taxes on its income in the same 
manner as a business corporation. As of October 31, 1993, approximately 
92% of the Fund's assets consisted of the common stock of Nabors.
    2. Nabors, a Delaware corporation incorporated in 1978, is 
principally engaged in the business of contract drilling and other 
oilfield services. It has one class of stock, voting common stock, 
which is traded on the American Stock Exchange (the ``AMEX''). As of 
October 31, 1993, approximately 18% of Nabors' stock was held by the 
Fund.
    3. Martin J. Whitman is Chairman, President, and Chief Executive 
Officer of the Fund. As of October 31, 1993, he owned approximately 
7.8% of the outstanding stock of the Fund. Mr. Whitman serves as a 
director of Nabors and has a financial interest in Nabors other than 
through the Fund by virtue of his direct and indirect ownership 
interests in various private partnerships that hold Nabors stock. (As 
of October 31, 1993, these partnerships owned in the aggregate 
approximately 3% of the outstanding stock of Nabors.) Mr. Whitman also 
controls 100% of the outstanding common stock of EQSF, the Fund's 
investment adviser.
    4. Applicants seek relief on behalf of themselves and any 
individuals (other than Mr. Whitman) who require relief from section 
17(a) and rule 17d-1 (collectively, ``Affected Persons''). ``Affected 
Persons'' are officers, directors, or employees of Nabors, the Fund, 
and EQSF who own shares of the Fund.
    5. Pursuant to an Agreement and Plan of Reorganization (the 
``Reorganization Agreement''), the Fund proposes to transfer to Nabors 
all of its assets, other than cash and cash equivalents equal to $1 
million, but none of its liabilities. The $1 million retained by the 
Fund shall be placed in a ``Reserve Fund'' for payment of any 
contingent liabilities and obligations of the Fund. In exchange for the 
Fund's assets, Nabors will transfer to the Fund shares of Nabors stock, 
as described more fully in the next paragraph. The exchange of Fund 
assets for Nabors stock will occur on the ``Closing Date.'' As soon as 
practicable after the Closing Date, the Fund will liquidate and 
dsitribute pro rata to its stockholders of record the shares of Nabors 
stock received by the Fund pursuant to the Reoganization Agreement.
    6. Immediately prior to the reorganization, the Fund's assets will 
consist entirely of Nabors stock, cash, and cash equivalents. For 
purposes of the reoganization, shares of Nabors stock will be valued at 
the average of the closing prices of Nabors stock for the five trading 
days immediately preceding the Closing Date (the ``Market Price of 
Nabors Stock'').\1\ Cash and cash equivalents held by the Fund will be 
valued in accordance with generally accepted accounting principles. The 
number of shares of Nabors stock to be issued to the Fund in the 
reorganization will be determined by dividing the aggregate value of 
the assets transferred from the Fund to Nabors by the Market Price of 
Nabors Stock.
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    \1\The Boards of the Fund and Nabors believe that using a five-
day average, rather than a single day's price, would decrease the 
possibility of manipulation of Nabors stock by third party market 
participants.
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    7. The Reserve Fund is designed to satisfy any currently unknown 
contingent liabilities that may become actual after liquidation of the 
Fund. Potential contingent liabilities include the possibility that the 
IRS or a state tax authority would assert that the Fund has made 
inadequate provision for taxes on past transactions, or that the Fund's 
net asset value had been erroneously computed. Although the Fund 
currently is unaware of any such liabilities, the Reserve Fund will be 
established to protect Fund officers and directors, who otherwise would 
be personally liable for such liabilities. The Reserve Fund shall be 
administered by one or more of the Fund's disinterested directors. Any 
amounts remaining in the Reserve Fund upon its termination (which, 
under applicable Maryland law shall occur no earlier than three years 
from its inception) shall be distributed pro rata to the Fund's 
stockholders of record as of the Closing Date.
    8. The Fund will bear all of the expenses associated with the 
reorganization, except that Nabors will bear all legal fees incurred by 
it related to the negotiation of the Reorganization Agreement. 
Applicants expect the total cost of the Reorganization to range from 
$400,000 to $450,000, of which the Fund will pay all but approximately 
$100,000.
    9. The Reorganization Agreement has been approved by the Board of 
Directors of the Fund, including the disinterested directors thereof, 
and by the Board of Directors of Nabors, including the nonmanagement 
directors thereof. (The two boards have one common member, Mr. 
Whitman.) Consumation of the reorganization is subject to the 
Commission's issuance of the order requested by applicants and to the 
approval of Fund stockholders. The Reorganization Agreement will be 
submitted to the stockholders of the Fund for approval at a special 
meeting. Fund stockholders will receive a proxy statement/prospectus 
containing information about Nabors and describing the proposed 
reorganization and the reasons therefor.
    10. In approving the Reorganization Agreement, the Fund Board 
considered a number of factors. First, and most important, the 
reorganization is tax-free. The Fund received an IRS ruling on May 20, 
1993, to the effect that, for federal income tax purposes, the 
reorganization will be tax-free to the Fund, the Fund's stockholders, 
and Nabors. Alternatives to the reorganization, including a simple 
liquidation of the Fund, would result in a taxable event to both the 
Fund and its stockholders. In this regard, applicants note that 
alternatives to the reorganization would require the Fund to pay tax, 
estimated to be about $30.3 million (approximately 35% of the Fund's 
net asset value), on the capital gains attributable to the appreciation 
of Nabors stock held by the Fund. In addition, the Fund Board 
considered that (i) the reorganization will eliminate the management 
fee currently paid by Fund stockholders, because such individuals will 
own Nabors stock directly, rather than indirectly through the Fund; 
(ii) Fund shareholders will receive readily marketable securities, 
since Nabors stock is traded on the AMEX; and (iii) the costs to the 
Fund of engaging in the reorganization will not be significant in 
relation to the benefits conferred.
    11. Fund stockholders who oppose the reorganization may redeem 
their shares at any time before the Closing Date. Redeeming 
stockholders, however, would forego the tax benefit of the 
reorganization because the elimination of the capital gains tax 
associated with the Nabors stock will inure only to the benefit of Fund 
stockholders who receive liquidating distributions.

Applicants' Legal Analysis

    1. Because the Fund owns of record more than 5% of the outstanding 
shares of Nabors, Nabors is an ``affiliated person'' of the Fund within 
the meaning of section 2(a)(3) of the Act. Because Mr. Whitman controls 
the Fund's investment adviser, is a director of the Fund and Nabors, 
and holds a substantial indirect interest in Nabors, Mr. Whitman is an 
affiliated person of the Fund and Nabors. The Affected Persons, by 
virtue of their official positions and/or employment relationships, are 
affiliated persons of the Fund or affiliated persons of such persons.
    2. Section 17(a)d of the Act, in relevant part, makes it unlawful 
for any affiliated person of a registered investment company, or any 
affiliated person of such an affiliated person, acting as principal, to 
purchase from or sell to such registered company any security or other 
property. Section 17(b) of the Act authorizes the Commission to exempt 
a proposed transaction from section 17(a) if: (i) The terms of the 
proposed transaction, including the consideration to be paid or 
received, are reasonable and fair and do not involve overreaching on 
the part of any person concerned; (ii) the proposed transaction is 
consistent with the policy of each registered investment company 
concerned, and (iii) the proposed transaction is consistent with the 
general purposes of the Act.
    3. For the reasons discussed above, the Fund Board and the Nabors 
Board found that the reorganization is in the best interests of the 
Fund and Nabors, respectively, and will not dilute the interests of the 
existing stockholders of either company. In addition, each Board 
determined that the terms of the proposed reorganization and the 
consideration to be paid or received are fair and reasonable and do not 
involve overreaching by any person. Although the Fund has agreed to pay 
most of the costs associated with the reorganization, applicants aver 
that the benefits to the Fund, in particular the elimination of a $30 
million deferred tax liability, substantially outweigh any such costs. 
Accordingly, applicants submit that the proposed reorganization 
satisfies the standards of section 17(b).
    4. Section 17(d) and rule 17d-1, taken together, prohibit an 
affiliated person of a registered investment company or an affiliated 
person of such person, acting as principal, from participating in any 
joint enterprise or other joint arrangement in which such registered 
company is a participant, without prior receipt of a Commission order. 
Under rule 17d-1(b), the Commission will consider whether the 
participation of such registered company in such joint enterprise or 
arrangement on the basis proposed is consistent with the provisions, 
policies, and purposes of the Act, and the extent to which such 
participation is on a basis different from or less advantageous than 
that of other participants.
    5. There are no employment contracts or other special benefits 
accorded to any affiliated person of the Fund or Nabors under the 
Reorganization Agreement. Indeed, the reorganization could be 
considered detrimental to Mr. Whitman and those Affected Persons who 
are employees of EQSF because it will eliminate the management fee 
currently payable to EQSF by the Fund. Accordingly, applicants submit 
that the proposed reorganization satisfies the standards for an order 
under rule 17d-1.

    For the SEC, by the Division of Investment Management, under 
delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-625 Filed 1-10-94; 8:45 am]
BILLING CODE 8010-01-M