[Federal Register Volume 60, Number 132 (Tuesday, July 11, 1995)]
[Notices]
[Pages 35777-35778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16929]



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

SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Rel. No. 21177; 812-9510]


Paine Webber Group Inc., et al.; Notice of Application

June 30, 1995.
AGENCY: Securities and Exchange Commission (the ``SEC'').

ACTION: Notice of Application for an Order under section 2(a)(9) of the 
Investment Company Act of 1940 (the ``Act'').

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

APPLICANTS: Paine Webber Group Inc. (``PWG''), PaineWebber Incorporated 
(``PWI''), Mitchell Hutchins Asset Management Inc. (``MHAM''), and 
Mitchell Hutchins Institutional Investors Inc. (``MHII'') 
(collectively, the ``Painewebber Companies'').

RELEVANT ACT SECTION: Declaratory order requested under section 
2(a)(9).

SUMMARY OF APPLICATION: General Electric Company (``GE'') acquired 
securities of Paine Webber Group Inc. (``PWG'') that, upon conversion 
of certain of such securities into common stock, would result in GE 
owning more than 25% of PWG's outstanding voting securities. The PWG 
securities owned by GE are subject to certain restrictions, 
obligations, and prohibitions as described in a stockholders agreement. 
Applicants request an order declaring that the presumption of control 
by a greater than 25% shareholder under section 2(a)(9) of the Act has 
been rebutted. The order would be effective for so long as the 
stockholders agreement remains in full force and effect without any 
amendment that would materially reduce the restrictions, obligations, 
and prohibitions with respect to GE's ownership of PWG's securities.

FILLING DATES: The application was filed on March 3, 1995 and amended 
on June 12, 1995.

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 July 26, 1995, 
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 such notification by writing to the 
SEC's Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth Street, N.W., Washington, D.C. 
20549. Applicants, c/o Mitchell Hutchins Asset Management Inc., 1285 
Avenue of the Americas, New York, New York 10019.

FOR FURTHER INFORMATION CONTACT:
Marc Duffy, Senior Attorney, at (202) 942-0565, or C. David Messman, 
Branch Chief, at (202) 942-0564 (Division of Investment Management, 
Office of Investment Company Regulation).

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

Applicant's Representations

    1. PWG is a publicly held financial services holding company. PWI, 
a wholly owned subsidiary of PWG, is a broker-dealer registered under 
the Securities Exchange Act of 1934 (``1934 Act'') and an investment 
adviser registered under the Investment Advisers Act of 1940 
(``Advisers Act''). MHAM, a wholly owned subsidiary of PWI, is a 
broker-dealer registered under the 1934 Act and an investment adviser 
registered under the Advisers Act. As of October 31, 1994, MHAM served 
as investment adviser or sub-adviser to thirty investment companies 
with fifty-six separate portfolios and aggregate assets of over $23.3 
billion. MHII, a wholly owned subsidiary of MHAM, is an investment 
adviser registered under the Advisers Act. As of October 31, 1994, MHII 
served as investment sub-adviser to eight separate portfolios of seven 
investment companies with aggregate assets of over $1.1 billion.
    2. On October 17, 1994, PWG entered into an asset purchase 
agreement with General Electric Company (``GE'') and Kidder, Peabody 
Group Inc. (``Kidder'') (the ``Asset Purchase Agreement''). Under the 
Asset Purchase Agreement, PWG agreed to purchase certain assets from 
Kidder, a wholly owned subsidiary of GE. As part of the consideration 
for the purchase of those assets, on December 16, 1994 (the 
``Closing''), PWG issued to GE shares of PWG Common Stock, Redeemable 
Preferred Stock, and Convertible Preferred Stock (collectively, the 
``Equity Securities'').
    3. At the Closing, GE received shares representing approximately 
21.6% of the shares of Common Stock outstanding as of February 28, 
1995. The Common Stock is the only class of securities of PWG 
outstanding that are generally entitled to vote for the election of 
directors.\1\ GE does not hold for its 

[[Page 35778]]
own account any shares of Common Stock other than through its interest 
in the Equity Securities.

    \1\ As a holder of Redeemable Preferred Stock and Convertible 
Preferred Stock, GE could, under certain limited circumstances, 
elect two additional directors to the Board of Directors of PWG. See 
footnote 2.
---------------------------------------------------------------------------

    4. GE also received at the Closing 2,500,000 shares of Redeemable 
Preferred Stock, which stock does not have voting rights generally and 
is not convertible into shares of Common Stock. As of February 28, 
1995, PWG has no other shares of Redeemable Preferred Stock 
outstanding.
    5. GE also received at the Closing 1,000,000 shares of Convertible 
Preferred Stock. Such stock does not generally have the right to vote 
for the election of directors, but may be converted into shares of 
Common Stock. As of February 28, 1995, PWG has no other shares of 
Convertible Preferred Stock outstanding. Assuming that the Convertible 
Preferred Stock was converted into shares of Common Stock, GE would 
hold in the aggregate approximately 25.8% of the outstanding shares of 
Common Stock as of February 28, 1995.\2\

    \2\ In a letter dated June 30, 1995, counsel for applicants 
stated that, as of the date of amendment 1 to the application, GE 
held in excess of 25% of PWG's outstanding voting securities on a 
fully diluted basis.
---------------------------------------------------------------------------

    6. The Equity Securities issued by PWG to GE are subject to the 
terms of a stockholders agreement, dated as of the date of Closing, 
that creates material restrictions, obligations, and prohibitions with 
respect to GE's ownership of the Equity Securities (the ``Stockholders 
Agreement''). Under the Stockholders Agreement, GE is prohibited from 
acquiring additional voting securities of PWG, except in certain 
limited circumstances, and is prohibited from seeking to control or 
influence the management, business, operations, or affairs of PWG, 
other than through its single representative on the Board of Directors 
of PWG (the ``Board of Directors''). GE may not seek, submit, or give 
to any third party any proxy or consent for any matter subject to 
shareholder action, not may it propose any matter to be considered or 
voted upon by PWG's shareholders, nor may it seek to call a shareholder 
meeting for any purpose. GE may not propose any designee of GE to be 
elected to the Board of Directors of PWG other than the single 
representative (out of a total of 15 directors) contemplated by the 
Stockholders Agreement.\3\

    \3\ If PWG does not pay in full six quarterly dividends (whether 
or not consecutive) or fails to make a mandatory redemption payment 
with respect to the Redeemable Preferred Stock or the Convertible 
Preferred Stock, the Board of Directors would be increased by two 
and GE would have the right to elect the two additional directors 
for so long as such arrearage continues and for a one-year period 
thereafter. In such event, GE nevertheless would continue to have 
minority representation on the Board of Directors.
---------------------------------------------------------------------------

    7. Under the Stockholders Agreement, GE also may not propose any 
business combination with PWG. GE may not deposit its voting securities 
in any voting trust and must present all of its shares at each 
shareholder meeting either in person or by proxy, for purposes of 
establishing a quorum. GE must vote all its shares for or against any 
matter as directed by the Board of Directors or, in certain limited 
circumstances, if requested by the Board of Directors, as all other 
shares of Common Stock are voted. GE may sell its Common Stock only 
pursuant to an underwritten offering, or pursuant to certain 
registration rights, or pursuant to a tender offer that is not opposed 
by the Board of Directors. Subject to these restrictions, all shares of 
Common Stock and Convertible Preferred Stock proposed to be transferred 
by GE to a third party are subject to a right of first refusal in favor 
of PWG. GE's shares of Common Stock and Convertible Preferred Stock 
also are subject to a right of repurchase in favor of PWG that may be 
exercised at any time at the discretion of PWG.
    8. The Stockholders Agreement has a scheduled term of 15 years. The 
Stockholders Agreement may be terminated earlier upon the written 
agreement of PWG, Kidder, and GE; upon the third anniversary of the 
date upon which GE and its affiliates no longer beneficially own any 
voting securities of PWG; or in the event that the obligations of PWG 
under the Stockholders Agreement (relating to nominating and electing a 
member to the Board of Directors) are not observed and performed.
Applicants' Legal Analysis

    1. Section 2(a)(9) of the Act provides, in relevant part, that any 
person who owns beneficially more than 25% of the voting securities of 
a company shall be presumed to control such company. Applicants request 
an order declaring that the presumption of control by a greater than 
25% shareholder under section 2(a)(9) has been rebutted by evidence 
presented in the application.
    2. Section 2(a)(4) defines an ``assignment'' to include any 
transfer of a controlling block of the assignor's outstanding voting 
securities by a security holder of the assignor. Section 15(a)(4) 
provides that a registered investment company's investment advisory 
contracts automatically terminate in the event of their assignment. If 
GE's acquisition of the Equity Securities is deemed to result in a 
change of control of PWG, then all of the existing investment advisory 
contracts to which MHAM or PWI is a party automatically would be 
terminated. If such contracts are terminated, new investment advisory 
contracts must be approved by the funds' Board of Directors and 
shareholders in accordance with section 15(a).
    3. For the reasons set forth below, applicants believe that the 
evidence presented in the application rebuts the presumption under 
section 2(a)(9) that GE controls PWG as a result of its acquisition of 
the Equity Securities. There is not currently, nor has there ever been, 
any historical or traditional relationship between PWG and GE that 
would indicate any prospective intention or latent ability of GE, in 
fact, to control PWG. GE is entitled to a single representative to 
serve on the Board of Directors of 15 people, and only for so long as 
it owns 10% of the outstanding voting securities of PWG. Other than its 
single representative to the Board of Directors, GE is expressly 
prohibited from influencing or seeking any third party to influence any 
of the business, operations, management, or policies of PWG. In 
addition, GE has no right, privilege, or power to be consulted with 
respect to any material corporate actions by PWG and has no veto power 
over any extraordinary corporate action.
    4. Applicants believe that the beneficial ownership by GE of 
approximately 25.8% of PWG Common Stock would not result in a change of 
control of PWG because there would be no transfer of actual control to 
GE. The Stockholders Agreement reflects the business agreement between 
the parties that PWG maintain its independence and that GE's ownership 
interest be a passive investment.
    5. The order would remain in effect for so long as the Stockholders 
Agreement remains in full force and effect, without any amendment that 
would materially reduce the restrictions, obligations, and prohibitions 
with respect to GE's ownership, communication, voting, and transfer 
rights with respect to the Equity Securities contained therein.

    For the SEC, by the Division of Investment Management, under 
delegated authority.
Jonathan G. Katz,
Secretary.
[FR Doc. 95-16929 Filed 7-10-95; 8:45 am]
BILLING CODE 8010-01-M