[Federal Register Volume 63, Number 179 (Wednesday, September 16, 1998)]
[Notices]
[Pages 49617-49619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24814]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 23431; 812-11054]


Equity Managers Trust, et al.; Notice of Application

September 10, 1998.
AGENCY: Securities and Exchange Commission (``SEC'').

ACTION: Notice of an application under sections 6(c) and 17(b) of the 
Investment Company Act of 1940 (the ``Act'') for an exemption from 
section 17(a) of the Act.

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SUMMARY OF THE APPLICATION: The order would permit a registered 
investment company advised by Neuberger&Berman Management Incorporated 
(``N&B Management'') to purchase certain securities of an investment 
account managed by N&B Management.

APPLICANTS: Equity Managers Trust, Retirement Benefit Accumulation Plan 
for Employees of PricewaterhouseCoopers, Savings Plan for Employees and 
Partners of PricewaterhouseCoopers, Savings Plan for Employees of 
PricewaterhouseCoopers, and Profit Sharing Plan for Partners of 
PricewaterhouseCoopers (``Plans'').

FILING DATES: The application was filed on March 3, 1998, and amended 
on September 8, 1998.

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 the 
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 October 5, 1998 
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 may request 
notification by writing to the SEC's Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth Street, N.W., Washington, D.C. 
20549. Applicants: Equity Managers Trust, 605 Third Avenue, New York, 
New York 10158; Plans, 3109 Martin Luther King, Jr. Blvd., Tampa, FL, 
33607.

FOR FURTHER INFORMATION CONTACT: Mary Kay Frech, Branch Chief, (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, 450 Fifth Street, N.W., Washington, 
D.C. 20549 (telephone (202) 942-8090).

Applicants' Representations

    1. Neuberger&Berman Genesis Portfolio (``Portfolio'') is a series 
of Equity Managers Trust. Equity Managers Trust is an open-end 
management investment company organized as a New York common law trust 
and registered under the Act. Neuberger&Berman Genesis Trust (``Fund'') 
is a series of Neuberger&Berman Equity Trust (``N&B Equity Trust''), an 
open-end management investment company

[[Page 49618]]

organized as a Delaware business trust and registered under the Act.
    2. The Portfolio is a ``master fund'' in a master/feeder fund 
structure. The Fund is a feeder fund that invests all of its assets in 
the Portfolio. Beneficial interests in the Portfolio are issued solely 
in private placement transactions to investment companies and other 
institutional investors. The Fund's shares are publicly offered.
    3. The Plans are employee benefit plans subject to the Employee 
Retirement Income Security Act of 1974 for the employees and/or 
partners of PricewaterhouseCoopers. Each Plan offers participants the 
option to invest in a managed account with investment objectives, 
policies and limitations substantially similar to those of the 
Portfolio (``Account''). \1\ The Plans invest jointly in the Account, 
which currently holds cash, shares of the Fund, and other securities. 
As of June 30, 1998, the Plans, through the Account, own 13.8% of the 
outstanding shares of the Fund, which amounts to 5.1% of the interests 
in the Portfolio.
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    \1\ The Account is an entry on the books of the Plans' custodian 
and has no separate legal existence.
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    4. N&B Management serves as investment adviser of the Portfolio, 
administrator of the Fund and distributor of the Fund's shares. 
Neuberger & Berman, LLC (``N&B'') serves as the Portfolio's sub-
adviser. The Portfolio's investment managers (``Portfolio Managers'') 
also manage the Account on behalf of the Plans.
    5. The Plans' trustees believe it would be in each Plan's best 
interests to liquidate the securities held in the Account. Applicants 
propose that the Portfolio be permitted to purchase the securities in 
the Account that the Portfolio Managers deem desirable for investment 
by the Portfolio, in exchange for cash (``Proposed Transaction'').\2\ 
The purchase price will be the securities' ``independent current market 
price'' on the date of the transaction, determined in accordance with 
rule 17a-7(b) under the Act. No brokerage commission, fee or other 
remuneration will be paid by any party in connection with the Proposed 
Transaction. Applicants state that the Proposed Transaction is 
consistent with the investment objectives, policies and limitations of 
the Portfolio, as recited in its registration statement and reports 
filed under the Act. All of the securities in the Account that the 
Portfolio proposes to purchase are listed on a national securities 
exchange or are traded on the Nasdaq stock market, and the Portfolio 
currently has positions in each of those securities.
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    \2\ The term ``Proposed Transaction'' refers to either a single 
purchase or a series of purchases.
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    6. The Plans presently intend to invest the cash proceeds from the 
Proposed Transaction in shares of the Fund. If the investment takes 
place as proposed, the Account will be dissolved and units in the 
Account will be exchanged for shares in the Fund most likely on a same-
day basis. Each Plan will have its own account on the books of the 
Fund's transfer agent and the Plans will no longer retain a custodian 
to hold their assets.
    7. On October 23, 1997, the board of trustees of Equity Manager 
Trust (``Board'') including all of the independent trustees, voted to 
approved the terms of the Proposed Transaction. The Board reviewed, 
among other factors, the securities to be purchased, the method by 
which they would be valued, the size of the Portfolio's current 
position in each stock under consideration, the size of the Portfolio's 
position in the stock (if the transaction were consummated), and 
information on the total market capitalization and average weekly 
trading volume of each stock. The Board concluded that the Proposed 
Transaction is in the best interests of the Portfolio and its interest 
holders.
    8. The Proposed Transaction also has been authorized by each Plan's 
trustees, who are independent of N&B and its affiliates, and the 
trustees have agreed in principal to invest the cash proceeds in shares 
of the Fund. N&B provided the Plans' trustees with a current prospectus 
of the Fund and a written statement disclosing the fees to be received 
by N&B Management, the terms of the Proposed Transaction, and other 
relevant factors.
    9. Applicants intend to structure the Proposed Transaction as an 
exchange of securities for cash, rather than having the Plan exchange 
the assets in the Account for shares of the Fund, because of the 
master-feeder structure of the Portfolio and the Fund. In addition, the 
Plans intend to rely on a Department of Labor exemption, which has been 
interpreted as providing exemptive relief only with respect to cash 
transactions.
    10. Applicants believe that the Proposed Transaction will benefit 
the Portfolio's interest holders and the Plans' participants. 
Applicants submit that an increase in the Portfolio's assets from the 
Proposed Transaction will enable the Portfolio to realize economies of 
scale that should reduce its operating expenses. The Proposed 
Transaction will also allow applicants to avoid the brokerage 
commissions that applicants otherwise would incur if the Plans sold the 
stocks in the Account on the open market and the Portfolio, as it 
received cash from the Plans' investment in the Fund, bought investment 
securities on the open market.

Applicants' Legal Analysis

    1. Section 17(a) of the Act generally prohibits an affiliated 
person of a registered investment company, or an affiliated person of 
such a person, acting as principal, from selling any security to, or 
purchasing any security from the company. Section 2(a)(3) of the Act 
defines an ``affiliated person'' of another person to include (a) any 
person that owns 5% or more of the outstanding voting securities of 
such other person, (b) any person 5% or more of whose outstanding 
voting securities are directly or indirectly owned, controlled, or held 
with power to vote by such other person, (c) any person directly or 
indirectly controlling, controlled by or under common control with, 
such other person, and (d) if such other person is an investment 
company, any investment adviser of the company.
    2. Applicants believe that the Portfolio and the Plans may be 
deemed to be affiliated persons because they share a common investment 
adviser. Applicants also believe that the Portfolio and the Plans may 
be deemed to be affiliated persons because the Plans (through the 
Account) own 13.8% of the outstanding shares of the Fund, which amounts 
to 5.1% of the interests in the Portfolio. As a result, applicants 
believe that the Portfolio's purchase of securities from the Plans is 
prohibited by section 17(a) of the Act.
    3. Rule 17a-7 exempts certain purchase and sale transactions 
otherwise prohibited by section 17(a) if an affiliation exists solely 
by reason of having a common investment adviser, common directors, and/
or common officers, provided that certain requirements are met. The 
relief provided by rule 17a-7 is not available for the Proposed 
Transaction because the Plans' ownership (through the Account and the 
Fund) of 5.1% of the Portfolio may create an affiliation ``not solely 
by reason of'' having a common investment adviser, common directors, 
and/or common officers.
    4. Section 17(b) of the Act provides that the SEC may exempt a 
transaction from the provisions of section 17(a) if the terms of the 
Proposed Transaction, including the consideration to be paid, are 
reasonable and fair and do not involve overreaching on the part of any 
person concerned, and the proposed transaction is consistent with the 
policy of each registered investment company

[[Page 49619]]

concerned and with the general purposes of the Act. Section 6(c) 
authorizes the Commission to exempt persons or transactions from the 
provisions of the Act to the extent that such exemptions are 
appropriate in the public interest and consistent with the protection 
of investors and the purposes fairly intended by the policies and 
provisions of the Act.
    5. Applicants submit, for the reasons discussed below, that their 
request satisfies these standards. Applicants believe that compliance 
with rule 17a-7(a)-(f) will ensure that the Proposed Transaction is 
effected on terms that are fair and reasonable and do not involve 
overreaching. Applicants believe that because the Proposed Transaction 
involves a purchase of readily marketable securities for cash and 
because the Proposed Transaction has been reviewed and approved by the 
Board, there is no danger that any affiliated person will benefit at 
the expense of the Portfolio and its interest holders.

Applicants' Condition

    Applicants agree that the order granting the requested relief will 
be subject to the following condition:
    The proposed Transaction will comply with the terms of rule 17a-
7(a) through (f).

    For the SEC, by the Division of Investment Management, under 
delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 98-24814 Filed 9-15-98; 8:45 am]
BILLING CODE 8010-01-M