[Federal Register Volume 61, Number 29 (Monday, February 12, 1996)]
[Notices]
[Pages 5415-5419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3043]



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SECURITIES AND EXCHANGE COMMISSION

[Rel No. IC-21736; Int'l Series Release No. 928; 812-9188]


The CountryBasket Index Fund, Inc., et al.; Notice of Application

February 6, 1996.
AGENCY: Securities and Exchange Commission (``SEC'').

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

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APPLICANTS: The CountryBasket Index Fund, Inc. (the ``Fund''), Deutsche 
Morgan Grenfell/C.J. Lawrence Inc. (the ``Adviser''), and ALPS Mutual 
Fund Services, Inc. (the ``Distributor'').

RELEVANT ACT SECTIONS: Order requested under section 6(c) of the Act 
for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of 
the Act and rule 22c-1 thereunder and under sections 6(c) and 17(b) of 
the Act for an exemption from section 17(a) of the Act.

SUMMARY OF APPLICATION: Applicants request an order permitting the Fund 
to issue securities of limited redeemability that are intended to trade 
on the New York Stock Exchange (``NYSE'') at negotiated prices. The 
order also would permit certain transactions between the Fund and 
affiliated persons and permit the Fund to make payment for redeemed 
securities more than seven days from the date such securities are 
tendered in certain circumstances.

FILING DATE: The application was filed on August 19, 1994 and amended 
on October 28, 1994, November 30, 1994, 

[[Page 5416]]
January 10, 1995, March 30, 1995, and June 30, 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 March 4, 1996, 
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 may request 
notification of a hearing by writing to the SEC's Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth Street, N.W., Washington, D.C. 
20549. Applicants, 31 West 52nd Street, New York, NY 10019.

FOR FURTHER INFORMATION CONTACT:
James M. Curtis, Senior Counsel, at (202) 942-0563, or Robert A. 
Robertson, 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 at the 
SEC's Public Reference Branch.

Applicants' Representations

    1. The Fund is an open-end management investment company that 
initially will consist of nine series. Each series will invest in a 
portfolio of equity securities included in one of the component indexes 
of the Financial Times/Standard & Poor's Actuaries World Indices 
TM (``FT/S&P Indices'') concentrating in a specific country. The 
initial nine series will represent the FT/S&P Indices for Australia, 
France, Germany, Hong Kong, Italy, Japan, South Africa, the United 
Kingdom, and the United States.
    2. The Adviser will serve as adviser to the Fund. The Distributor 
will be the principal underwriter and distributor of the Fund's shares. 
State Street Bank and Trust Company is expected to provide custodian, 
transfer agency and fund accounting services for each series.
    3. There will be no sales charge for purchases of shares of any 
series. Applicants expect that pursuant to a plan adopted by the board 
of directors of the Fund for each series under rule 12b-1 under the 
Act, each series will pay the Distributor a distribution services fee 
and a fee for marketing and promotional services. The Adviser will 
receive an annual fee for its services. Additional fees also will be 
charged to compensate the providers of custodian, transfer agency, and 
fund accounting services.
    4. Each series of the Fund will issue only aggregations of a 
specified number of shares (``Creation Units'') that will be separable 
at the option of the holder into a specified number of identical 
components (each a ``CB TM Share''). The initial net asset value 
of the Creation Units are expected to range from approximately 
$2,000,000 to $5,000,000. The Creation Unit size of each series will be 
chosen to yield an initial per CB TM Share price, expected to be 
in the $30 to $50 range, equal to a designated percentage of the value 
of the relevant FT/S&P Index. Applicants intend to list CB TM 
Shares of each Fund series on the NYSE where the shares would traded in 
the secondary market as individual shares in the same manner as other 
equity securities.
    5. Creation Units will be sold continuously at net asset value 
principally in exchange for a portfolio of equity securities (the 
``Fund Basket''), substantially corresponding to the securities 
represented in the designated component of the FT/S&P Indices and an 
amount of cash (the ``Cash Component''), which together constitute the 
``Fund Deposit.'' Immediately before the opening of business on the 
NYSE on each Business Day, as defined below, the Distributor and the 
National Securities Clearing Corporation will announce the securities 
and the proportion of such securities that will constitute the Fund 
Basket for that particular Business Day. At the same time, the Adviser 
will determine, and the Distributor will announce, the amount of the 
Cash Component necessary to constitute the Fund Deposit. The Cash 
Component will be equal to the difference between the value of the Fund 
Basket on that day and the net asset value of the Creation Unit 
purchased.
    6. In order for payment of the Cash Component to be made on the 
same date as the shares are issued, it is necessary for the Fund's 
custodian to be open for business for purposes of receiving fund 
transfers. Consequently, for each series, other than the United States 
series, a Business Day is any day on which the NYSE, the Fund's 
custodian and subcustodians, and the relevant stock exchanges are open. 
For the United States series, a Business Day is any day on which the 
NYSE and the Fund's custodian are open.
    7. An investor making a Fund Deposit will be charged a cash 
transaction fee on the cash portion of the purchase to cover brokerage 
and other transaction costs. In addition, investors purchasing or 
redeeming shares in-kind will bear the costs of transferring the 
securities to or from the Fund.
    8. In the event that the Adviser determines, in its discretion, 
that a particular security is likely to be unavailable or available in 
insufficient quantity for delivery to the Fund as part of a Fund Basket 
on the date of purchase, the cash equivalent value of such security may 
be required or permitted to be included as part of the Cash Component 
in lieu of the particular security.
    9. To purchase Creation Units, an investor must be, or place its 
order through, a participant organization (a ``DTC Participant'') in 
the Depository Trust Company, a limited purpose trust company organized 
under the laws of the State of New York (the ``Depository''). All 
orders to purchase Creation Units from the Fund must be placed with the 
Distributor. The Distributor will be responsible for distributing 
prospectuses to purchasers of Creation Units.
    10. Broker-dealers and other persons will be cautioned in the 
prospectus and/or the Fund's statement of additional information 
(``SAI'') that some activities on their part may, depending on the 
circumstances, result in their being deemed statutory underwriters and 
subject them to the prospectus delivery and liability provisions of the 
Securities Act of 1933. For example, a broker-dealer firm may be deemed 
a statutory underwriter if it purchases Creation Units from the Fund, 
breaks them down into the constituent CBTM Shares, and sells the 
CBTM Shares directly to its customers; or if it chooses to couple 
the creation of a supply of new CBTM Shares with an active selling 
effort involving solicitation of a secondary market demand for 
CBTM Shares. The prospectus and/or the SAI will state that whether 
a person is an underwriter depends upon all the facts and circumstances 
pertaining to that person's and his client's activities. The prospectus 
and/or the SAI will explain that dealers who are not statutory 
underwriters, but are participating in a distribution (as contrasted to 
ordinary secondary trading transactions), and thus dealing with 
CBTM Shares that are part of an ``unsold allotment'' within the 
meaning of section 4(3) of the Securities Act of 1933, would be unable 
to take advantage of the prospectus-delivery exemption provided by 
section 4(3) of the Securities Act of 1933.
    11. Redemption requests will be accepted on each day that the NYSE 
is 

[[Page 5417]]
open. An investor redeeming a Creation Unit generally will receive a 
Fund Basket of securities and cash equal to the difference in value 
between such Fund Basket and the net asset value of the Creation Unit 
aggregation of shares next determined after receipt of the redemption 
request. A redeeming beneficial holder or DTC Participant acting on 
behalf of such beneficial holder must maintain appropriate securities 
broker-dealer, bank, or other custody arrangements in the jurisdiction 
in which the portfolio securities are customarily traded to which 
account such portfolio securities will be delivered. If neither the 
redeeming beneficial holder nor the DTC Participant has appropriate 
arrangements to take delivery of the portfolio securities in the 
applicable foreign jurisdiction, and it is not possible to make other 
such arrangements, or if it is not possible to effect deliveries of the 
portfolio securities in such jurisdiction, the Fund will redeem such 
shares in cash. In such circumstances, or if the Fund concludes that 
operating on an exclusively in-kind basis presents marketing or 
operational problems for a specific series, the Fund reserves the right 
to offer a cash option for sales and to make redemptions in cash in 
respect of any series. When investors redeem in cash, in whole or in 
part, the Fund will charge a cash redemption fee to cover brokerage and 
other transactions costs.
    12. Fund shares will be registered in book-entry form only; 
certificates will not be issued. The Depository or its nominee will be 
registered owner of all outstanding Fund shares. Records reflecting the 
beneficial owners of Fund shares will be maintained by the Depository 
or a DTC Participant.
    13. Owner of Creation Units may hold the units or sell them into 
the secondary market as CBTM Shares. The CBTM Shares are 
intended to be listed on the NYSE and trade in the secondary market in 
the same manner as other equity securities. The price of CBTM 
Shares on the NYSE will be based on a current bid/offer market. 
Transactions involving the sale of CBTM Shares will be subject to 
customary brokerage commissions and charges. Brokers will deliver a 
Fund prospectus to each investor in connection with the secondary 
market purchase by such investor of CBTM Shares on the NYSE. The 
Fund will provide copies of its annual and semi-annual shareholder 
reports to beneficial holders of CBTM Shares. Each individual 
CBTM Share will have one vote with respect to matters regarding 
the Fund or the respective series upon which a shareholder vote is 
required.
    14. In order to avoid confusion in the public's mind between the 
Fund and a conventional ``open-end investment company'' or ``mutual 
fund,'' the Fund will limit the designation of the Fund in all 
marketing materials, including the Fund's prospectus and SAI, to the 
term ``investment company,'' without reference to ``open-end fund'' or 
``mutual fund.'' The term ``mutual fund'' will not be used at any time. 
The term ``open-end investment company'' will be used in the prospectus 
only to the extent required by item 4 of Form N-1A.\1\ The cover page 
of the prospectus and the summary will include a distinct paragraph 
stating that the CBTM Shares will not be individually redeemable. 
The description of the Creation Units and the method of their purchase 
and redemption will follow such paragraph on the CBTM Shares. The 
SAI will include an explanation of the issuance and redemption 
procedures for Creation Units. All marketing materials that describe 
the method of obtaining, buying, or selling CBTM Shares, will 
state that the CBTM Shares are non-redeemable.

    \1\ Item 4 of Form N-1A requires an investment company to state 
in its prospectus its classification and subclassification under 
sections 4 and 5 of the Act.
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    15. Applicants believe that purchasers of Creation Units will 
include institutional investors who desire a foreign index-based fund 
with the liquidity provided by exchange traded shares. In addition, 
arbitrageurs may purchase Creation Units to take advantage of a premium 
in the market price of CBTM Shares. Finally, the exchange 
specialist, acting in its role to provide a fair and orderly secondary 
market for the CBTM Shares, may find it appropriate at times to 
create CBTM Shares for use in its market-making activities on the 
exchange.
    16. Applicants believe that arbitrage activity will enhance the 
liquidity of the CBTM Shares in the secondary market and help 
ensure that CBTM Shares will not trade at a material discount or 
premium in relation to the Fund's net asset value.

Applicants' Legal Analysis

Section 6(c)

    1. Applicants request relief under section 6(c) of the Act from 
sections 2(a)(32), 5(a)(1), 17(a)(1), 17(a)(2), 22(d), and 22(e) and 
rule 22c-1 and under sections 6(c) and 17(b) from sections 17(a)(1) and 
17(a)(2). Section 6(c) permits the SEC to exempt any person or 
transaction from any provision of the Act, if such exemption is 
necessary or appropriate in the public interest and consistent with the 
protection of investors and the purposes fairly intended by the policy 
of the Act. Section 17(b) authorizes the SEC to exempt a transaction 
from section 17(a) if 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, the 
proposed transaction is consistent with the policy of each registered 
investment company concerned, and the proposed transaction is 
consistent with the general policy of the Act. Section 17(b) could be 
interpreted to exempt only a single transaction. However, the SEC, 
under section 6(c), may exempt a series of transactions that otherwise 
would be prohibited by section 17(a).

Sections 2(a)(32) and 5(a)(1)

    1. Section 5(a)(1) defines an ``open-end company'' as a 
``management company which is offering for sale or has outstanding any 
redeemable security of which it is the issuer.'' The term ``redeemable 
security'' is defined in section 2(a)(32) as a security which entitles 
the holder to receive, upon presentation of the security to the issuer, 
approximately his or her proportionate share of the issuer's current 
net assets.
    2. Because the Creation Units are separable into CBTM Shares 
that are not individually redeemable, a question arises as to whether 
the definition of a ``redeemable security'' or an ``open-end company'' 
under the Act would be met if such shares are viewed as non-redeemable 
securities. In light of this question, the Fund requests an order to 
permit it to maintain its registration as an open-end investment 
company and to issue shares that are redeemable only in Creation Units.
    3. Applicants note that owners of CBTM Shares wishing to 
redeem may purchase additional CBTM Shares and tender the 
resulting Creation Unit for redemption. Moreover, NYSE listing will 
afford shareholders the benefit of liquidity. Applicants believe that 
because Creation Units always may be purchased and redeemed at net 
asset value, arbitrage opportunities will ensure that the price of 
CBTM Shares on the secondary market will not vary substantially 
from the net asset value of Creation Units. Also, the investor has the 
ability to purchase or redeem Creation Unit aggregations of shares 
rather than trade in the secondary market.

Section 22(d) and Rule 22c-1

    1. Section 22(d), among other things, prohibits a dealer from 
selling a 

[[Page 5418]]
redeemable security that is being currently offered to the public by or 
through an underwriter except at the current public offering price 
described in the prospectus. Rule 22c-1 generally requires that a 
dealer selling, redeeming, or repurchasing a redeemable security do so 
only at a price based on its net asset value. Secondary market 
transactions in CBTM Shares will take place at negotiated prices 
and not at a current offering price described in the prospectus or on 
the basis of net asset value. Thus, purchases and sales of CBTM 
Shares by dealers in the secondary market may not comply with section 
22(d) and rule 22c-1.
    2. While there is little legislative history regarding section 
22(d), its provisions, as well as those of rule 22c-1, appear to have 
been enacted (a) to prevent dilution caused by certain risk-free 
trading schemes by principal underwriters and contract dealers, (b) to 
prevent unjust discrimination or preferential treatment among buyers 
resulting from sales at different prices, and (c) to assure an orderly 
distribution of investment company shares by eliminating price 
competition from dealers offering shares at less than the published 
sales price and repurchasing shares at more than the published 
redemption price. Applicants believe that the concerns sought to be 
addressed by section 22(d) and rule 22c-1 with respect to pricing are 
equally satisfied by the proposed method of pricing CBTM Shares. 
First, secondary market trading in CBTM Shares, because it does 
not involve the Fund as a party, cannot result in dilution of a 
beneficial owner's investment. Second, to the extent different prices 
exist during a given trading day, or from day to day, such variances 
occur as a result of third-party market forces, such as supply and 
demand and interest rates, not as a result of unjust or discriminatory 
manipulation. Therefore, secondary market trading in CBTM Shares 
will not lead to discrimination or preferential treatment among 
purchasers. Finally, applicants contend that the proposed distribution 
system will be orderly because arbitrage activity will ensure that the 
difference between the market price of CBTM Shares and their net 
asset value remains narrow.

Section 22(e)

    1. Section 22(e) provides that an investment company may not 
postpone the date of payment or satisfaction upon the redemption of any 
redeemable security for more than seven calendar days following tender 
of such security for redemption. To the extent that Creation Units may 
be deemed to be redeemable securities, applicants request an exemption 
to permit the Japan series to redeem Creation Units within ten days, 
and the United Kingdom series to redeem Creation Units within twelve 
days at certain times during the calendar year. The custodian has 
advised the Fund that local holiday schedules combined with local 
settlement periods will require more than seven calendar days for 
delivery of redemption proceeds several times during the calendar year 
for these two series. Applicants expect, however, that these series 
will be able to deliver redemption proceeds within seven days at all 
other times. Applicants do not request an exemption from section 22(e) 
with respect to the other series.\2\

    \2\ Applicants acknowledge that no relief obtained from the 
requirements of section 22(e) will affect any obligations applicants 
may otherwise have under rule 15c6-1 under the Securities Exchange 
Act of 1934. Rule 15c6-1 requires that most securities transactions 
be settled within three business days of the trade date.
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    2. The Fund believes that Congress adopted section 22(e) to prevent 
unreasonable, undisclosed or unforeseen delays in the actual payment of 
redemption proceeds. The prospectus, SAI, and all relevant sales 
literature for the Japan and the United Kingdom series will disclose 
that redemption payments will be effected within the specified number 
of calendar days following the date on which a request for redemption 
is made. Applicants contend that the redemption mechanism described 
above will not lead to unreasonable, undisclosed, or unforeseen delays 
in the redemption process.
    3. Applicants believe that requiring the Fund to deliver securities 
upon redemption on a basis other than that utilized by all other 
investors trading portfolio securities in the particular local market 
(e.g., irrespective of whether a holiday occurs during the relevant 
settlement period), would be highly burdensome to the series and 
possibly unacceptable to local market participants. The same concerns 
are relevant to both redemptions in-kind and redemptions for cash. 
Since the Fund will be fully invested at almost all times, generally it 
will need to liquidate portfolio holdings in order to generate the cash 
needed to finance cash redemptions. It would be highly burdensome if 
the Fund were forced to do this outside of the settlement cycles of the 
local market for the reasons discussed above.
    4. Applicants believe that allowing redemption payments for 
Creation Units of a series to be made within the number of days 
indicated above would not be inconsistent with the spirit and intent of 
section 22(e).

Section 17(a)

    1. Applicants request an exemption under sections 6(c) and 17(b) 
from section 17(a) of the Act to permit affiliated persons of the Fund 
to purchase and redeem Creation Units. Section 17(a) generally 
prohibits an affiliated person of a registered investment company from 
purchasing from or selling to such company any security or other 
property. Because purchases and redemptions will be in-kind rather than 
cash transactions, section 17(a) may prohibit affiliated persons of the 
Fund from purchasing or redeeming Creation Units. Moreover, because the 
definition of affiliated person includes anyone owning 5% or more of an 
issuer's outstanding voting stock, at least one purchaser of a Creation 
Unit will be affiliated with the Fund so long as there are twenty or 
fewer holders of Creation Units.
    2. Applicants contend that no useful purpose would be served by 
prohibiting affiliated persons from making in-kind purchases or 
redemptions of Creation Units. In-kind purchases and redemptions will 
be valued pursuant to verifiable objective standards. The securities to 
be used for the in-kind purchase or redemption will be those in the 
Fund Basket, which is based on the FT/S&P Indices. The FT/S&P Indices 
are widely publicized and not subject to manipulation by the Fund or 
its affiliates. Thus, in-kind purchases and redemptions will afford no 
opportunity for affiliated persons to effect a transaction detrimental 
to the other shareholders. Applicants believe that in-kind purchases 
and redemptions will not result in abusive self-dealing or overreaching 
by affiliated persons of the Fund. Accordingly, applicants believe that 
the requested relief meets the section 6(c) and section 17(b) standards 
for relief.

Applicants' Arguments

    1. Applicants assert that CBTM Shares will allow investors to 
have a beneficial interest in a standardized portfolio of foreign 
equity securities based on a major market index. Applicants believe 
that the Fund should be able to track the FT/S&P Indices more closely 
than other basket products that must allocate a portion of their assets 
for cash redemptions. Even though a series may in some instances redeem 
in cash, applicants believe that they can still keep their assets fully 
invested; they expect there will be fewer redemptions than would be the 
case for a conventional mutual fund in view of the 

[[Page 5419]]
need to accumulate a Creation Unit to tender for redemption. In 
addition, applicants believe that CBTM shares will provide a 
relatively low-cost market-basket security that, unlike open-end index 
funds, can be treated at negotiated prices throughout the business day. 
Finally, CBTM shares will broaden the trading, investing and 
hedging opportunities available to investors with respect to a 
significant segment of the international and domestic securities 
markets.
    2. Applicants state that they will take such steps as may be 
necessary to avoid confusion in the public's eye between the Fund and a 
conventional ``open-end investment company'' or ``mutual fund.'' In 
addition, applicants state that brokers will deliver a prospectus to 
each investor in connection with the secondary market purchasers by 
investors of CBTM Shares on the NYSE. Thus, applicants believe 
that the requested relief meets the section 6(c) standards.

Applicants' Conditions

    Applicants agree that any order granting the requested relief will 
be subject to the following conditions:
    1. The Fund will not be advertised or marketed as an open-end 
investment company, i.e., as a mutual fund, which offers redeemable 
securities. The Fund prospectus will prominently disclose that the 
CBTM Shares are not redeemable units of shares and will disclose 
that the owners of the CBTM Shares may acquire and tender those 
shares for redemption to the Fund in Creation Unit aggregations only. 
Any advertising material where features of obtaining, buying, or 
selling Creation Units are described or where there is reference to 
redeemability will prominently disclose that owners of CBTM Shares 
may acquire and tender those shares for redemption to the Fund in 
Creation Unit aggregations only.
    2. The Fund will provide copies of its annual and semiannual 
shareholder reports to beneficial owners of the CBTM Shares.
    3. Applicants will not seek to have the Fund's registration 
statement declared effective until the SEC has approved such proposed 
rule change pursuant to rule 19b-4 under the Securities Exchange Act of 
1934 as may be necessary to enable a national securities exchange to 
list the CBTM Shares.
    4. In addition, as long as the Fund operates in reliance on the 
requested order, the CBTM Shares will be listed on a national 
securities exchange.

    By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-3043 Filed 2-9-96; 8:45 am]
BILLING CODE 8010-01-M