[Federal Register Volume 59, Number 15 (Monday, January 24, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-1530] [[Page Unknown]] [Federal Register: January 24, 1994] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 20018; 812-8580] NWNL Northstar Series Trust, et al.; Notice of Application January 14, 1994. AGENCY: Securities and Exchange Commission (``SEC'' or ``Commission''). ACTION: Notice of application for exemption under the Investment Company Act of 1940 (the ``Act''). ----------------------------------------------------------------------- APPLICANTS: NWNL Northstar Series Trust (the ``Trust''), NWNL Northstar Distributors, Inc. (the ``Distributor''), and Northstar Investment Management Corporation (the ``Adviser''). RELEVANT ACT SECTIONS: Conditional order requested under section 6(c) for exemption from the provisions of sections 2(a)(32), 2(a)(35), 18(f), 18(g), 18(i), 22(c) and 22(d),and rule 22c-1. SUMMARY OF APPLICATION: The Trust, on behalf of NWNL Northstar High Yield Bond Fund, NWNL Northstar Income and Growth Fund, NWNL Northstar Multi-Sector Bond Fund, and any other series of the Trust or any other open-end management investment companies that in the future may be in the same ``group of investment companies'' as defined in rule 11a-3 of the Act (the ``Funds''), the Distributor, the Adviser, and any entity controlling, under common control with or controlled by the Distributor or the Adviser that may in the future serve as, respectively, the Funds' distributor or investment adviser, seek a conditional order that would permit the Funds (a) to issue an unlimited number of classes of securities representing interests in the same portfolio, and (b) to assess a contingent deferred sales charge (``CDSC'') on redemptions of shares of some of the classes, and to waive the CDSC in certain cases.\1\ \1\All conditions and representations herein will apply equally to any entity controlling, under common control with, or controlled by the Adviser or the Distributor that may in the future serve as investment adviser or distributor of the Funds. --------------------------------------------------------------------------- FILING DATE: The application was filed on September 14, 1993, and amended on November 19, 1993 and January 7, 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 February 8, 1994, and should be accompanied by proof of service on 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 notification by writing to the SEC's Secretary. ADDRESSES: Secretary, SEC, 450 5th Street, NW., Washington, DC 20549. Applicants, Northstar Investment Management Corporation, Two Pickwick Plaza, Greenwich, Connecticut 06830, Attn: Lisa M. Hurley, Esq. FOR FURTHER INFORMATION CONTACT: Felicia H. Kung, Senior Attorney, at (202) 504-2803, or Elizabeth G. Osterman, 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 at the SEC's Public Reference Branch. Applicant's Representations 1. Each of the Funds is a series, and separate diversified portfolio of, the Trust, a registered open-end management investment company. The Trust is organized as a Massachusetts business trust. The Adviser, a majority-owned subsidiary of NWNL Companies, Inc., is a registered investment adviser that will provide investment advisory services to each of the Funds. The Distributor is a registered broker- dealer that will act as principal underwriter of the Funds' shares, and is an affiliated person of the Adviser. 2. Applicants propose to establish a multiple class distribution system (the ``Multi-Class Distribution System'') to enable each of the Funds to offer an unlimited number of classes of shares that would be subject to a front-end sales load, a CDSC, a rule 12b-1 plan providing for a distribution fee and service fee, a combination of the above, or none of the above. Classes of shares that do not have a front-end sales load, and are subject to a rule 12b-1 plan and a CDSC are referred to herein as ``Deferred Option'' classes. Applicants will comply with Article III, Section 26 of the NASD's Rules of Fair Practice, which limits the amount of asset-based distribution charges a Fund may assess. All Fund expenditures for distribution will be made in accordance with rule 12b-1. 3. Each Fund currently intends to offer only two classes of shares (``Class A'' and ``Class B''). Some or all of the Funds may not in fact create or issue additional classes of shares. 4. The Funds will offer Class A shares at net asset value plus a front-end sales load. The front-end sales loads generally would be subject to reductions for larger purchases and under a right of accumulation. Class A shares also will be subject to a rule 12b-1 plan providing for distribution and service fees at a combined annual rate of up to .30 percent of the average daily net asset value of that class. In addition, Class A shareholders who purchase shares at net asset value without the imposition of a front-end sales load may be subject to a low level CDSC (not to exceed 2 percent of net asset value) for a specified period, not to exceed two years, from the date of purchase when they redeem their Class A shares. The purpose of such a sales charge is to reimburse the Distributor for commissions paid to dealers at the time of sale from the Distributor's own resources. 5. The Funds will offer Class B shares at net asset value subject to a CDSC, as described below. Class B shares also will be subject to a rule 12b-1 plan providing for combined distribution and service fees at an annual rate of up to 1 percent of the average daily net asset value of that class. 6. Investment income and unrealized and realized gains or losses will be allocated daily to each class of shares based on the percentage of net assets of the outstanding or dividend eligible shares, as appropriate, in each class of a Fund at the beginning of each day. Operating expenses, which are attributable to all classes, will be allocated daily to each class of shares based on the percentage of the Fund's net assets in each class at the beginning of the day. Expenses that have a greater cost for one class than another (i.e., rule 12b-1 fees and possibly transfer agent fees) will be charged separately to each class. Because of higher ongoing distribution fees and potentially higher transfer agency fees paid by holders of the Deferred Option shares, the net income attributable to and the dividends payable on Deferred Option shares would be lower than the net income attributable to and the dividends payable on Class A shares. 7. Class B shares may convert automatically to Class A shares after a specified period of years. In addition, for the purposes of conversion, shares purchased through the reinvestment of dividends and other distributions paid in respect of Class B shares are also Class B shares, except that they will be considered held in a separate sub- account. Each time a shareholder's Class B shares, other than those in the sub-account, convert to Class A, a pro rata portion of the Class B shares in the sub-account also will convert to Class A. 8. Applicants reserve the ability to convert shares of any class to shares of another, consistent with the standards, policies, conditions, and representations set forth in the application regarding the conversion of Class B shares to Class A shares. Such ability to convert shares will be subject to the terms fully disclosed in a Fund's registration statement current at the time of sale, and will be at the relative net asset values of each of the classes. 9. The conversion feature is subject to the availability of an opinion of counsel or Internal Revenue Service private letter ruling to the effect that such conversion of shares does not constitute a taxable event under federal income tax law, and may be suspended if such a ruling or opinion is not available. 10. Applicants anticipate that each class of shares may be exchanged for shares of the same class in another Fund to the extent that the shareholder would have been eligible to purchase the shares acquired in the exchange. The exchange privileges will comply with rule 11a-3 under the Act. 11. Applicants expect that the CDSC applicable to Class B shares will vary from 2 percent to 5 percent for redemptions made during the first year after purchase to 1 percent for redemptions made during the fourth year after purchase. The CDSC applicable to Class B shares will not be imposed on redemptions of shares purchased more than six years prior to their redemption. 12. The amount of the CDSC will be calculated as the lesser of the amount that represents a specified percentage of the net asset value of the shares at the time of purchase or at the time of redemption. The CDSC of any particular Fund or class thereof may be higher or lower than that described in the application. The CDSC will not be imposed on shares derived from the reinvestment of dividends or capital gains distributions. Furthermore, no CDSC will be imposed on an amount which represents an increase in the value of the shareholder's account resulting from capital appreciation above the amount paid for shares purchased during the CDSC period. 13. In determining the applicability and rate of any CDSC, it will be assumed that a redemption is made first of shares representing capital appreciation, next of shares derived from reinvestment of dividends and capital gains distributions, and finally of other shares held by the shareholder for the longest period of time. This will result in the charge, if any, being imposed at the lowest possible rate. 14. Applicants propose to waive the CDSC, in whole or in part, in connection with (a) redemptions made within one year following the death or disability, as defined in Section 72(m)(7) of the Internal Revenue Code of 1986, as amended (the ``Code''), of a shareholder; (b)(i) a lump sum or other distribution following retirement, or, in the case of an individual retirement account (``IRA''), Keogh Plan, or custodial account pursuant to section 403(b)(7) of the Code, after the shareholder has attained age 59\1/2\, or any redemption resulting from a tax-free return of an excess contribution pursuant to section 408(d) (4) or (5) of the Code, or from the death or disability of the employee, or (ii) in the alternative, in connection with a distribution following retirement under a tax-deferred retirement plan, or attaining age 70\1/2\ in the case of an IRA, Keogh Plan, or custodial account pursuant to section 403(b) of the Code, or resulting from the tax-free return of an excess contribution to an IRA; (c) redemptions of shares purchased by active or retired officers, directors or trustees, partners and employees of the Funds, the Distributor or affiliated companies, by members of the immediate families of such persons, by dealers having a sales agreement with the Distributor, by any state, county, or city, or any instrumentality, department, authority, or agency thereof and by trust companies and bank trust departments which hold shares in a fiduciary capacity; (d) redemptions of shares made pursuant to a shareholder's participation in any systematic withdrawal plan adopted by a Fund; (e) redemptions by shareholders holding shares of a Fund worth over $1 million immediately prior to redemption; (f) redemptions effected by advisory accounts managed by the Adviser; (g) redemptions by tax-exempt employee benefit plans resulting from the adoption or promulgation of any law or regulation; and (h) redemptions effected by registered investment companies in connection with the combination of an investment company with a Fund by merger, acquisition of assets, or by any other transaction. 15. If the Funds waive or reduce the CDSC, such waiver or reduction will be applied uniformly to all offerees in the specified class. If the Trustees of a Fund determine to discontinue the waiver or reduction of the CDSC, the disclosure in the Fund's prospectus will be appropriately revised. Any shares purchased prior to the termination or reduction of such waiver will be able to have the CDSC waived or reduced as provided in the Fund's prospectus at the time of the purchase of such shares. 16. The Funds may provide a pro rata credit, to be paid for by the Distributor, for any CDSC paid in connection with a redemption of shares followed by a reinvestment effected within 365 days, or a shorter period, of the redemption. Applicants' Legal Analysis 1. Applicants request an exemptive order to the extent that the proposed Multi-Class Distribution System might be deemed: (a) to result in the issuance of a ``senior security'' within the meaning of section 18(g), and thus prohibited by section 18(f)(1), and (b) to violate the equal voting provisions of section 18(i). Applicants also seek an exemption from sections 2(a)(32), 2(a)(35), 22(c) and 22(d), and rule 22c-1 to the extent necessary to permit the imposition and waiver of a CDSC on redemptions of Fund shares. 2. Applicants believe that the proposal will permit the Funds to facilitate both the distribution of their securities and provide investors with a broader choice as to the method of purchasing shares without assuming excessive accounting and bookkeeping costs or unnecessary investment risks. Applicants assert that, under the proposed Multi-Class Distribution System, the Funds will save the organizational and other continuing costs that would be incurred if the Funds were required to establish new separate investment portfolios. 3. Applicants believe that the Multi-Class Distribution System does not raise any of the concerns that prompted the SEC to recommend the adoption of section 18, i.e., excessive borrowing, inadequate assets or reserves, and increased speculative character of junior securities. Applicants state that the proposal does not involve borrowings and does not affect the Funds' existing assets or reserves. In addition, applicants state that the proposed arrangement will not increase the speculative character of the shares of the Funds, since all such shares will participate pro rata in all of a Fund's appreciation, income and expenses, with the exception of the different distribution fees and any different transfer agency costs payable by each class. Applicants contend that mutuality of risk will be preserved with respect to each class of shares in a Fund. 4. Applicants assert that the proposed capital structures of the Funds will not induce any group of shareholders to invest in risky securities to the detriment of any other group of shareholders because the investment risks of each Fund will be borne equally by all of its shareholders. Moreover, applicants further assert that the proposed capital structures will not enable insiders to manipulate the expenses and profits among the various classes of shares because the Funds are not organized in a pyramid fashion, all expenses and profits of a Fund, other than the different class expenses, will be borne pro rata by all shares of the Fund, and all shareholders will have equal voting rights, except concerning matters relating to each class' rule 12b-1 plan. Applicants' Conditions Applicants agree that any order granting the requested relief shall be subject to the following: 1. Each class of shares will represent interests in the same portfolio of investments of a Fund and be identical in all respects, except as set forth below. The only differences among the classes of shares of the same Fund will relate solely to: (a) The impact of the respective rule 12b-1 plan payments made by each of the classes of shares of a Fund, any higher incremental transfer agency costs attributable solely to the Deferred Option shares of a Fund, and any other incremental expenses subsequently identified that should be properly allocated to one class which shall be approved by the SEC pursuant to an amended order; (b) the fact that the classes will vote separately with respect to a Fund's rule 12b-1 distribution plan, except as provided in condition 4 below; (c) the different exchange privileges of each class of shares; (d) the fact that only certain classes will have a conversion feature; and (e) the designation of each class of shares of a Fund. 2. The Trustees of each of the Funds, including a majority of the Independent Trustees, shall have approved the Multi-Class Distribution System, prior to the implementation of the Multi-Class Distribution System by a particular Fund. The minutes of the meetings of the Trustees of each of the Funds regarding the deliberations of the Trustees with respect to the approvals necessary to implement the Multi-Class Distribution System will reflect in detail the reasons for determining that the proposed Multi-Class Distribution System is in the best interests of both the Funds and their respective shareholders and such minutes will be available for inspection by the SEC staff. 3. On an ongoing basis, the Trustees of the Funds, pursuant to their fiduciary responsibilities under the Act and otherwise, will monitor each Fund for the existence of any material conflicts between or among the interests of the classes of shares offered. The Trustees, including a majority of the Independent Trustees, shall take such action as is reasonably necessary to eliminate any such conflicts that may develop. The Adviser and the Distributor will be responsible for reporting any potential or existing conflicts to the Trustees. If a conflict arises, the Adviser and the Distributor at their own costs will remedy such conflict up to and including establishing a new registered management investment company. 4. If a Fund implements any amendment to its rule 12b-1 plan (or, if presented to shareholders, adopts or implements any amendment of a non-rule 12b-1 shareholder services plan) that would increase materially the amount that may be borne by a class of shares (the ``Target Class'') under the plan, existing shares of a class of shares that converts into the Target Class shares after a period of time (the ``Purchase Class'') will stop converting into the Target Class unless the Purchase Class shareholders, voting separately as a class, approve the proposal. The Trustees shall take such action as is necessary to ensure that existing Purchase Class shares are exchanged or converted into a new class of shares (the ``New Target Class''), identical in all material respects to the Target Class as it existed prior to implementation of the proposal, no later than such shares previously were scheduled to convert into the Target Class. If deemed advisable by the Trustees to implement the foregoing, such action may include the exchange of all existing Purchase Class shares for a new class (the ``New Purchase Class''), identical to existing Purchase Class shares in all material respects except that the New Purchase Class will convert into the New Target Class. The New Target Class or the New Purchase Class may be formed without further exemptive relief. Exchanges or conversions described in this condition shall be effected in a manner that the Trustees reasonably believe will not be subject to federal taxation. In accordance with condition 3, any additional cost associated with the creation, exchange, or conversion of the New Target Class or the New Purchase Class shall be borne solely by the Adviser and the Distributor. The Purchase Class shares sold after the implementation of the proposal may convert into the Target Class shares subject to the higher maximum payment, provided that the material features of the Target Class plan and the relationship of such plan to the Purchase Class shares are disclosed in an effective registration statement. 5. The Trustees of the Funds will receive quarterly and annual statements concerning distribution and shareholder servicing expenditures complying with paragraph (b)(3)(ii) of rule 12b-1, as it may be amended from time to time. In the statements, only expenditures properly attributable to the sale or servicing of a particular class of shares will be used to justify any distribution or servicing fee charged to that class. Expenditures not related to the sale or servicing of a particular class will not be presented to the Trustees to justify any fee attributable to that class. The statements, including the allocations upon which they are based, will be subject to the review and approval of the Independent Trustees in the exercise of their fiduciary duties. 6. Dividends paid by a Fund with respect to each class of shares, to the extent any dividends are paid, will be calculated in the same manner, at the same time, on the same day and will be in the same amount, except that fee payments made under rule 12b-1 plans relating to each respective class of shares will be borne exclusively by that class and any incremental transfer agency costs relating a particular class of shares will be borne exclusively by such class. 7. The methodology and procedures for calculating the net asset value and dividends and distributions of the classes and the proper allocation of income and expenses between the classes has been reviewed by an expert (the ``Independent Examiner'') who has rendered a report to applicants, which has been provided to the staff of the SEC, stating that such methodology and procedures are adequate to ensure that such calculations and allocations will be made in an appropriate manner. On an ongoing basis, the Independent Examiner, or an appropriate substitute Independent Examiner, will monitor the manner in which the calculations and allocations are being made and, based upon such review, will render at least annually a report to the Funds that the calculations and allocations are being made properly. The reports of the Independent Examiner shall be filed as part of the periodic reports filed with the SEC pursuant to sections 30(a) and 30(b)(1) of the Act. The work papers of the Independent Examiner with respect to such reports, following request by the Funds which the Funds agree to make, will be available for inspection by the SEC staff upon the written request for such work papers by a senior member of the Division of Investment Management or of a Regional Office of the Commission, limited to the Director, an Associate Director, the Chief Accountant, the Chief Financial Analyst, an Assistant Director, and any Regional Administrators or Associate and Assistant Administrators. The initial report of the Independent Examiner is a ``report on policies and procedures placed in operation'' and the ongoing reports will be ``reports on policies and procedures placed in operation and tests of operating effectiveness'' as defined and described in SAS No. 70 of the AICPA, as it may be amended from time to time, or in similar auditing standards as may be adopted by the AICPA from time to time. 8. The applicants have adequate facilities in place to ensure implementation of the methodology and procedures for calculating the net asset value and dividends and distributions of the classes of shares and the proper allocation of expenses between such classes of shares, and this representation has been concurred with by the Independent Examiner in the initial report referred to in condition 7 above and will be concurred with by the Independent Examiner, or an appropriate substitute Independent Examiner, on an ongoing basis at least annually in the ongoing reports referred to in condition 7 above. Applicants will take immediate corrective action if this representation is not concurred in by the Independent Examiner, or appropriate substitute Independent Examiner. 9. The prospectuses of the Funds will contain a statement to the effect that a salesperson and any other person entitled to receive compensation for selling Fund shares may receive different levels of compensation for selling or servicing one particular class of shares over another in a Fund. 10. The Distributor will adopt compliance standards as to when each class of shares may appropriately be sold to particular investors. Applicants will require all persons selling shares of the Funds to agree to conform to such standards. 11. The conditions pursuant to which the exemptive order is granted and the duties and responsibilities of the Trustees of the Funds with respect to the Multi-Class Distribution System will be set forth in guidelines which will be furnished to the Trustees. 12. Each Fund will disclose the respective expenses, performance data, distribution arrangements, service, fees, sales loads, deferred sales loads, and exchange privileges applicable to each class of shares in every prospectus, regardless of whether all classes of shares are offered through each prospectus. Each Fund will disclose the expenses and performance data applicable to all classes of shares in every shareholder report. The shareholder reports will contain, in the statement of assets and liabilities and statement of operations, information related to the Fund as a whole generally and not on a per class basis. Each Fund's per share data, however, will be prepared on a per class basis with respect to the classes of shares of such Fund. To the extent any advertisement or sales literature describes the expenses or performance data applicable to any class of shares, it will disclose the expenses and/or performance data applicable to all classes of shares. The information provided by applicants for publication in any newspaper or similar listing of the Funds' net asset values and public offering prices will present each class of shares separately. 13. Applicants acknowledge that the grant of the exemptive order requested by the application will not imply SEC approval, authorization or acquiescence in any particular level of payments that the Funds may make pursuant to rule 12b-1 plans in reliance on the exemptive order. 14. The conversion of one class of shares to another class of shares will be done on the basis of the relative net asset value of the two classes, without the imposition of any sales load, fee, or other charge. After conversion, the converted shares will be subject to an asset-based sales charge and/or service fee (as those terms are defined in Article III, Section 26 of the NASD's Rules of Fair Practice), if any, that in the aggregate are lower than the asset-based sales charge and service fee to which they were subject prior to the conversion. 15. Applicants will comply with the provisions of proposed rule 6c- 10 under the Act, Investment Company Act Release No. 16619 (Nov. 2, 1988), as such rule is currently proposed and as it may be reproposed, adopted, or amended. For the SEC, by the Division of Investment Management, under delegated authority. Margaret H. McFarland, Deputy Secretary. [FR Doc. 94-1530 Filed 1-21-94; 10:00 am] BILLING CODE 8010-01-M