[Federal Register Volume 61, Number 208 (Friday, October 25, 1996)]
[Notices]
[Pages 55328-55330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27433]


=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Rel. No. IC-22291; 812-10218]


First Trust Special Situations Trust and Nike Securities L.P.; 
Notice of Application

October 21, 1996.
AGENCY: Securities and Exchange Commission (``SEC'').

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

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

APPLICANTS: First Trust Special Situations Trust and Nike Securities 
L.P.

RELEVANT ACT SECTIONS: Order requested under section 6(c) of the Act 
for an exemption from section 12(d)(1)(F)(ii) of the Act.

SUMMARY OF APPLICATION: Applicants request an order that would permit 
series of the Trust (each a ``Series'' or ``Trust Series''), to offer 
units to the public with a sales load that exceeds the 1.5% sales load 
limitation of section 12(d)(1)(F)(ii) of the Act.

FILING DATE: The application was filed on June 24, 1996 and amended on 
September 5, 1996.

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

[[Page 55329]]

copy of the request, personally or by mail. Hearing requests should be 
received by the SEC by 5:30 p.m. on November 15, 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 who wish to be notified of a 
hearing may request notification by writing to the SEC's Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth Street, N.W., Washington, D.C. 
20549. Applicants, 1001 Warrenville Road, Lisle, Illinois 60532.

FOR FURTHER INFORMATION CONTACT: Sarah A. Buescher, Staff Attorney, at 
(202) 942-0573, or Alison E. Baur, 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 Trust is a registered unit investment trust. Each Trust 
Series also will be a unit investment trust, and will be similar but 
separate and designated by a different Series number. Applicants 
request relief of behalf of the Trust and certain subsequent Trust 
Series. Nike Securities L.P. is the sponsor for each Trust Series (the 
``Sponsor''). Each Series will be created under state law pursuant to a 
trust agreement which will contain information specific to that Series 
and which will incorporate by reference a master trust agreement 
between the Sponsor and a financial institution that satisfies the 
criteria in section 26(a) of the Act (the ``Trustee''). The trust 
agreement and the master trust agreement are referred to collectively 
as the ``Trust Agreement.''
    2. Each Series will contain a portfolio of shares of investment 
companies or series thereof (the ``Funds'') that are not affiliated 
with any of the applicants. Each Series may invest either in only one 
type of investment company or in a combination of the various types of 
investment companies. The shares of the underlying Funds will be 
deposited in each Trust Series at net asset value, or if the Fund 
shares are listed on a national securities exchange or traded on the 
Nasdaq National Market System (``Nasdaq-NMS''), at ``market value.'' 
Market value will be determined by an evaluator, and generally will be 
based on the closing sale prices of the securities or, if unavailable, 
the closing asking prices of the securities.
    3. Each underlying Fund may be registered as an open-end investment 
company, a closed-end investment company, or a unit investment company, 
or a unit investment trust. In addition, an underlying Fund may be an 
``Exchange Fund.'' An exchange Fund may be registered as an open-end 
investment company or a unit investment trust, but it has received 
exemptive relief to sell its shares at ``negotiated prices'' on an 
exchange in the same manner as other equity securities.\1\
---------------------------------------------------------------------------

    \1\ See, e.g., Foreign Fund Inc., Investment Company Act Release 
Nos. 21737 (Feb. 6, 1996) (notice) and 21803 (Mar. 5, 1996) (order); 
and SPDR Trust, Investment Company Act Release Nos. 18959 (Sept. 17, 
1992) (notice) and 19055 (Oct. 26, 1992) (order).
---------------------------------------------------------------------------

    4. Simultaneously with the deposit of Fund shares into a Trust 
Series, the Trustee will deliver to the Sponsor registered certificates 
for units (``Units'') that represent ownership of the Trust Series. 
During the initial public offering, the Units will be offered at prices 
based on the aggregate underlying value of the securities deposited in 
a Trust Series, plus a sales charge. The sales charge (either a front 
end, deferred sales load, \2\ or a combination thereof) shall not, when 
aggregated with any sales charge or service fees paid by the Trust 
Series with respect to securities of the underlying Funds, exceed the 
limits set forth in Rule 2830(d) of the NASD's Conduct Rules. 
Applicants state that the Trust Series may incur customary brokerage 
commissions associated with purchasing securities on the secondary 
market. No Trust Series will invest in an underlying Fund with a rule 
12b-1 plan unless the Fund's rule 12b-1 fees do not exceed a maximum 
annual rate of .25% of the respective Fund's average daily net assets.
---------------------------------------------------------------------------

    \2\ The Trust received exemptive relief to assess a deferred 
sales load. See Nike Securities L.P., et al., Investment Company Act 
Release Nos. 21008 (Apr. 14, 1995) (notice) and 21059 (May 10, 1995) 
(order).
---------------------------------------------------------------------------

Applicant's Legal Analysis

    1. Section 12(d)(1)(A) of the Act provides that no registered 
investment company may acquire securities issued by another investment 
company if such securities represent more than 3% of the total 
outstanding voting stock of the acquired company, more than 5% of the 
value of the total assets of the acquiring company, or if securities 
issued by the acquired company and all other investment companies have 
an aggregate value in excess of 10% of the value of the total assets of 
the acquiring company.
    2. Section 12(d)(1)(F) provides that section 12(d)(1) shall not 
apply to securities purchased or otherwise acquired by a registered 
investment company if immediately after the purchase or acquisition not 
more than 3% of the total outstanding stock of the acquired company is 
owned by the acquiring company and the acquiring company does not offer 
or sell any security issued by it which includes a sales load of more 
than 1.5%. In addition, no issuer of any security purchased or acquired 
by the acquiring company shall be obligated to redeem such security in 
an amount exceeding 1% of such issuer's total outstanding securities 
during any period of less than 30 days. Applicants request relief under 
section 6(c) of the Act from the 1.5% sales load limitation of section 
12(d)(1)(F)(ii) so that a Trust Series can offer Units subject to a 
sales load of greater than 1.5% of the public offering price.
    3. Section 6(c) provides that the SEC may 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 
and provisions of the Act. Applicants believe that the requested order 
satisfies this standard.
    4. Applicants argue that section 12(d)(1) is intended to mitigate 
or eliminate abuses that might arise when one investment company 
acquires shares of another investment company. These abuses include: 
(a) the layering of sales charges, advisory fees, and administrative 
costs; (b) the imposition of undue influence by the acquiring fund over 
the acquired funds through the threat of large scale redemptions; (c) 
the acquisition by the acquiring fund of voting control of the acquired 
company; and (d) the creation of a complex pyramidal structure that may 
be confusing to investors. Applicants do not believe that these abuses 
are present in their proposed trust of funds structure.
    5. Applicants state that the structure of the Trust Series will not 
result in excessive fees. Each Trust Series, as a unit investment 
trust, has an unmanaged portfolio and, therefore, does not assess 
advisory fees. Unitholders would bear their portion of advisory fees 
changed by the underlying Funds for services rendered by each Fund's 
respective investment adviser. Applicants contend that there will be no 
overlapping of sales charges or distribution fees. While each Trust 
Series will charge a sales load, the Sponsor will deposit the Fund 
shares in

[[Page 55330]]

the Trust Series at net asset value, or if shares of the Funds are 
traded on an exchange or Nasdaq-NMS, at their market value. In 
addition, each Trust Series, as a unit investment trust, does not 
charge a rule 12b-1 fee, and no Trust Series would invest in a Fund 
with a rule 12b-1 plan unless the Fund limits its rule 12b-1 fee to a 
maximum annual rate of .25% of the Fund's average daily net assets. 
Applicants also have agreed as a condition to relief that any sales 
charge assessed with respect to the Units of a Trust Series, when 
aggregated with any sales charges and service fees paid by the Trust 
Series with respect to securities of the underlying Funds, shall not 
exceed the limits set forth in Rules 2830(d) of the Conduct Rules of 
the NASD. As a result, the aggregate sales charges will not exceed the 
limit that otherwise lawfully could be charged at any single level.
    6. Administrative fees may be charged at both the Trust Series and 
underlying Fund levels. However, applicants believe that certain Trust 
expenses may be reduced under the proposed arrangement. When the Trust 
Series invest in shares of open-end investment companies, applicants 
anticipate that the evaluator would charge a lower fee, if any at all. 
A Trust Series may incur a customary brokerage commission in connection 
with Fund shares purchased on an exchange or Nasdaq-NMS, but applicants 
represent that the Sponsor will purchase the Fund shares in the 
secondary market, thereby avoiding the payment of any underwriting 
spreads common during an initial offering.
    7. Applicants argue that the concerns of large-scale redemptions is 
not applicable with regard to underlying closed-end Funds because they 
do not issue redeemable securities. For redeemable securities, section 
12(d)(1)(F) provides that an underlying Fund will not be obligated to 
redeem its securities in an amount exceeding 1% of the issuer's total 
outstanding securities during any period of less than 30 days, and 
applicants will comply with this provision. Applicants also believe 
that the unmanaged nature of the Trust limits large scale redemptions 
because each Trust Series is limited as to when it may sell portfolio 
securities.
    8. Applicants believe that the concern of pyramiding of voting 
control by a Trust Series over the underlying Funds does not arise in 
its proposal because section 12(d)(1)(F) requires the Trust Series to 
exercise the voting rights with respect to any securities acquired in 
the manner prescribed by section 12(d)(1)(E). Section 12(d)(1)(E) 
requires the acquiring investment company either to seek instructions 
from its security holders with regard to the voting of all proxies with 
respect to such security and to vote such proxies only in accordance 
with such instructions, or to vote the shares held by it in the same 
proportion as the vote of all other holders of the security.
    9. Applicants believe that the concern about undue complexity in 
its arrangement is addressed by its condition that each Trust Series 
will not invest in an underlying Fund that, at the time of acquisition, 
owns securities of any other investment company in excess of the limits 
in section 12(d)(1)(A). If subsequent to a Trust Series' acquisition of 
Fund shares, the Fund acquires securities of other investment companies 
in excess of section 12(d)(1)'s limits, the Trust Series will not be 
required to divest itself of its holdings. Applicants argue that 
because the underlying Funds are not affiliated with the Trust, a Trust 
Series cannot bind or control the Funds.
    10. Applicants also believe that the proposed trust of funds 
structure will be adequately disclosed and explained to investors in 
each Series' prospectus. Applicants represent that they will disclose 
all loads, fees, expenses, and charges incurred with an investment in 
the respective Trust Series in the prospectus. The prospectus also will 
include disclosure that investors will pay indirectly a portion of the 
expenses of the underlying Funds. In addition, each Series will include 
the table required by item 2 of Form N-1A (modified as appropriate to 
reflect the differences between unit investment trusts and open-end 
investment companies) to set forth the Series' operating expenses and 
Unitholders' transaction costs.
    11. Applicants believe that it is appropriate to apply the NASD's 
rules to the proposed arrangement instead of the sales load limitation 
in section 12(d)(1)(F)(ii). Applicants argue that the NASD's specific 
sales charge rules, which were recently amended to limit asset-based 
sales charges and service fees, more accurately reflect the current 
methods used by funds to finance sales expenses, while section 
12(d)(1)(F), adopted more than 25 years ago, does not reflect the 
changes in the industry's pricing practices.
    12. Applicants believe that, given the number and variety of funds 
now available for investment, a Trust Series provides a simple means 
through which investors can obtain a professionally selected and 
maintained mix of investment company shares for a relatively small 
initial investment. Applicants also believe that the Trust Series 
provides investors an opportunity to participate in a diversified 
portfolio of investment company shares in one package and at one sales 
load.

Applicants' Conditions

    Applicants agree that the order granting the requested relief shall 
be subject to the following conditions:
    1. Each Trust Series will comply with section 12(d)(1)(F) in all 
respects except for the sales load limitation of section 
12(d)(1)(F)(ii).
    2. Any sales charges or service fees charged with respect to Units 
of a Trust Series, when aggregated with any sales charges or service 
fees paid by the Trust Series with respect to securities of the 
underlying Funds, shall not exceed the limits set forth in Rule 2830(d) 
of the NASD's Conduct Rules.
    3. No Trust Series will acquire securities of an underlying Fund 
which, at the time of acquisition, owns securities of any other 
investment company in excess of the limits contained in section 
12(d)(1)(A) of the Act.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-27433 Filed 10-24-96; 8:45 am]
BILLING CODE 8010-01-M