[Federal Register Volume 63, Number 230 (Tuesday, December 1, 1998)]
[Notices]
[Pages 66215-66219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31940]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-23571; 812-10868]


Baker, Fentress & Company, et al; Notice of Application

November 24, 1998.
AGENCY: Securities and Exchange Commission (the ``SEC'').

ACTION: Notice of application for an order under sections 6(c) and 
17(b) of the Investment Company Act of 1940 (the ``Act'') granting an 
exemption from section 17(a) of the Act; under section 6(c) granting an 
exemption from sections 18(d) and 23(a) and (b) of the Act, under 
section 23(c) of the Act granting an exemption from section 23(c) of 
the Act; and under section 17(d) of the Act and rule 17d-1 under the 
Act.

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

SUMMARY OF APPLICATION: Baker, Fentress & Company (``BKF'') and Levin 
Management Co., Inc. (``Levco,'' together with BKF, ``applicants'') 
request an order to permit applicants to adopt an equity-based employee 
compensation plan.

FILING DATES: The application was filed on November 12, 1997 and 
amended on September 28, 1998.


[[Page 66216]]


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 December 21, 
1998 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; Baker, Fentress & Co., Attn. James P. Gorter, Chairman, 200 West 
Madison Street, Suite 3510, Chicago, Illinois 60606; and Levin 
Management Co., Inc., Attn. John A. Levin, Chairman, One Rockefeller 
Center, 25th Floor, New York, New York 10020.

FOR FURTHER INFORMATION CONTACT:
Deepak T. Pai, Attorney Adviser, at (202) 942-0574, or Edward P. 
Macdonald, 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 is available for a fee from the 
SEC's Public Reference Branch, 450 Fifth Street, N.W., Washington, D.C. 
20549 (tel. 202-942-8090).

Applicants' Representations

    1. BKF is a non-diversified closed-end management investment 
company registered under the Act. BKF's common stock is traded on the 
New York Stock Exchange (``NYSE''). Levco, a Delaware corporation, is a 
wholly-owned subsidiary of BKF. John A. Levin & Co., Inc. 
(``Adviser''), a wholly-owned subsidiary of Levco, is an investment 
adviser registered under the Investment Advisers Act of 1940 and serves 
as BKF's investment adviser. The Adviser also provides investment 
advisory services to other clients and has two wholly-owned 
subsidiaries, one of which is a broker-dealer registered under the 
Securities Exchange Act of 1934 (``Exchange Act''), and the other is a 
commodity pool operator registered under the Commodity Exchange Act.
    2. As an internally managed investment company, BKF has 10 
employees. The Adviser and its subsidiaries have 70 employees. 
Applicants propose to implement an equity-based employee compensation 
plan (``Plan'') for officers, directors and employees of BKF and the 
Adviser (``Participants'').
    3. Applicants state that, in order for BKF and the Adviser to be 
successful, they must be able to offer their professional staff 
compensation packages that are comparable to those offered by other 
investment advisory firms. Applicants assert that top professionals in 
the investment management business have come to expect to receive 
equity-based compensation, and that asset management firms offer it 
generously. Applicants have been advised by an executive compensation 
consulting firm that BKF and the Adviser will suffer a competitive 
disadvantage if they are unable to provide equity-based compensation to 
key executives, portfolio managers, traders, analysts, marketing 
professionals and other personnel.
    4. The Plan has been approved by BKF's board of directors 
(``Board''), including a majority of the independent directors 
(``Independent Directors''). The Plan will be submitted to BKF's 
shareholders for their initial approval and subsequent reapproval five 
years after the Plan is adopted. The Plan will be administered by a 
committee of at least two Independent Directors (``Committee''). The 
Committee will consist exclusively of Independent Directors.
    5. Pursuant to the Plan, the Committee will have the discretion to 
grant both non-qualified and incentive stock options for BKF and Levco 
common stock,\1\ stock appreciation rights (``SARs''),\2\ as well as 
make various types of grants of BKF and Levco common stock 
(collectively, ``Awards''). The number of shares available for issuance 
under the Plan would be 10% of BKF's shares outstanding on the 
effective date of the Plan,\3\ and 20% of Levco's outstanding shares.
---------------------------------------------------------------------------

    \1\ Under the Plan, the exercise price of the stock options 
would be equal to the fair market value (``FMV'') of BKF or Levco 
stock, as applicable, on the date of grant. The FMV of BKF stock 
will equal the closing price on the NYSE on the date of grant of the 
option. The FMV of Levco stock will be the value at which BKF 
carries the stock for purposes of calculating BKF's net asset value 
(``NAV'').
    \2\ Under the Plan, SARs would be granted based on the excess of 
the FMV of BKF or Levco stock, as relevant, on the date of exercise 
over the SAR's grant price. Stock issued when an SAR is settled (or, 
in the case of an SAR settled for cash, stock that would have been 
issued if the SAR were settled in stock) will be deducted from the 
number of shares available for issuance under the Plan.
    \3\ That number could be increased (or decreased) in proportion 
to the changes in the number of BKF's shares outstanding resulting 
from any stock split or reverse split, stock dividend, 
recapitalization or similar corporate event, or in connection with 
stock issuances other than those in connection with the Plan (i.e., 
dividend reinvestments or an acquisition that is paid for with BKF 
stock).
---------------------------------------------------------------------------

    6. Under the Plan, the Independent Directors would receive only 
automatic grants of options on BKF's stock. Automatic option grants 
will be made to each Independent Director (i) on the date of approval 
of the Plan by BKF's shareholders; (ii) on the effective date of any 
new Independent Director's initial election to the Board ((i) and (ii) 
collectively, ``Initial Option''); and (iii) annually on the date of 
final adjournment of each annual meeting of BKF's shareholders 
(``Annual Option''). Applicants state that this compensation method is 
designed to assure that director and shareholder interests are aligned.
    7. Pursuant to the Plan, options and SARs expire ten years from the 
date of grant and expire immediately upon termination of employment, 
unless the Committee determines otherwise. The Awards will be 
nontransferable except by gift or as permitted by the Committee for 
estate planning purposes.
    8. The Board will review the Plan at least annually. The Committee 
periodically, but in no event less frequently than annually, and prior 
to any decision to grant the Awards, will review the potential impact 
that the grant, exercise, or vesting of the Awards could have on BKF's 
and Levco's earnings and NAV per share. The Committee will be 
authorized to take appropriate steps to assure that the grant, exercise 
or vesting of the Awards would not have an effect contrary to the 
interests of BKF's shareholders. This authority will include the 
authority to prevent or limit the grant of additional Awards.
    9. Under the Plan, when a Participant exercises an option for Levco 
stock or otherwise receives Levco stock pursuant to an Award, the 
Participant may require BKF to repurchase the stock at its then FMV 
(``Repurchase Right''). The Committee may determine to pay the 
Participant with BKF's stock and/or cash. The Plan also provides that 
BKF may make loans to Participants in connection with the Awards, such 
as to enable a Participant to exercise an option or pay income taxes 
relating to an Award (``Participant Loans''). The Plan also permits a 
Participant to pay for an Award with a previous Award, for example, by 
paying the exercise price for an option on BKF stock with shares of 
Levco received as a previous Award.

[[Page 66217]]

Applicants' Legal Analysis

    1. Applicants request an order exempting them from various 
provisions of the Act to implement the Plan. The requested order would 
supersede a prior order with respect to the incentive compensation 
plan.\4\
---------------------------------------------------------------------------

    \4\ Baker, Fentress & Company, Investment Company Act Release 
Nos. 21890 (Apr. 15, 1996) (notice) and 21949 (May 10, 1996) 
(order).
---------------------------------------------------------------------------

Sections 18(d) and 23(a) and (b) of the Act

    2. Section 18(d) of the Act generally prohibits a registered 
management investment company from issuing rights to purchase the 
company's shares.\5\ Applicants state that section 18(d) would prohibit 
the issuance of options and SARs for BKF's stock under the Plan.
---------------------------------------------------------------------------

    \5\ Section 18(d) permits a fund to issue only warrants or 
rights, ratably to a class of shareholders, that have an exercise 
period of no more than 120 days or in exchange for warrants in 
connection with a reorganization.
---------------------------------------------------------------------------

    3. Section 23(a) of the Act generally prohibits a registered 
closed-end investment company from issuing securities for services. 
Applicants state that this provision would prohibit the issuance of 
Awards for BKF's stock under the Plan as compensation for employees' 
services.
    4. Section 23(b) of the Act prohibits a registered closed-end 
investment company from selling common stock at below its current NAV. 
Applicants state that, since BKF's stock historically has traded at a 
discount to its NAV, and Awards under the Plan will be valued at the 
current market price of BKF's stock, section 23(b) would prohibit the 
issuance of the Awards.
    5. Section 6(c) of the Act provides, in part, that the SEC may, by 
order upon application, conditionally or unconditionally exempt any 
person, security, or transaction, or any class or classes thereof, from 
any provision of the Act, if and to the extent that the 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 request an exemption under 
section 6(c) from sections 18(d) and 23(a) and (b) of the Act to the 
extent necessary to implement the Plan.
    6. Applicants state that the concerns underlying those sections 
included (i) preferential treatment of investment company insiders and 
the use of options and other rights by insiders to obtain control of 
the investment company; (ii) complication of the investment company's 
structure that made it difficult to determine the value of the 
company's shares; and (iii) dilution of shareholders' equity in the 
investment company. Applicants state that the Plan does not raise the 
concern about preferential treatment of BKF's insiders because the Plan 
is a bona fide employee compensation plan of the type that is common 
among corporations generally. BKF also asserts that the Plan would not 
become a means for insiders to obtain control of BKF because the number 
of shares of BKF issuable under the Plan would be limited to 10% of 
BKF's outstanding shares. Moreover, as a condition to the requested 
order, no individual Participant could be issued more the 35% of shares 
reserved for issuance under the Plan.
    7. Applicants further state that the Plan will not unduly 
complicate BKF's structure because equity-based employee compensation 
arrangements are widely used among corporations and commonly known to 
investors. Applicants note that the Plan will be submitted to BKF's 
shareholders for their approval. Applicants represent that a concise, 
``plain English'' description of the Plan, including its potential 
dilutive effect, will be provided in the proxy materials that will be 
submitted to BKF's shareholders. Applicants also state that they will 
comply with the proxy disclosure requirements in Item 10 of Schedule 
14A under the Exchange Act. Applicants further note that the Plan will 
be disclosed to investors in accordance with the requirements of Form 
N-2 registration statement for closed-end investment companies, and 
pursuant to the standards and guidelines adopted by the Financial 
Accounting Standards Board for operating companies. In addition, as a 
condition to the requested order, BKF will comply with the disclosure 
requirements for executive compensation plans applicable to operating 
companies under the Exchange Act. BKF thus concludes that the Plan will 
be adequately disclosed to investors and appropriately reflected in the 
market value of BKF's shares.
    8. Applicants acknowledge that, while Awards granted under the Plan 
would have a dilutive effect on the shareholders' equity in BKF, that 
effect would be outweighed by the anticipated benefits of the Plan to 
BKF and its shareholders. Applicants assert that they need the 
flexibility to provide the requested equity-based employee compensation 
in order to be able to compete effectively with other financial 
services firms for talented professionals. These professionals, 
applicants suggest, in turn are likely to increase BKF's and the 
Adviser's performance and shareholder value. Applicants also assert 
that equity-based compensation would more closely align the interests 
of BKF's and the Adviser's employees with those of BKF's shareholders.
    9. In addition, applicants state that BKF's shareholders will be 
further protected by the conditions to the requested order that assure 
continuing oversight of the operation of the Plan by BKF's Board. Under 
these conditions, the Board will review the Plan at least annually. In 
addition, the Committee periodically will review the potential impact 
that the grant, exercise, or vesting of Awards could have on BKF's 
earnings and NAV per share, such review to take place prior to any 
decisions to grant stock options, but in no event less frequently than 
annually. Adequate procedures and records will be maintained to permit 
such review. The Committee will be authorized to take appropriate steps 
to ensure that neither the grant nor the exercise or vesting of Awards 
would have an effect contrary to the interests of BKF's shareholders. 
This authority will include the authority to prevent or limit the grant 
of additional Awards.

Section 17(a) of the Act

    10. Section 17(a)(1) of the Act generally prohibits an affiliated 
person of a registered investment company, or an affiliated person of 
that person (``second-tier affiliate''), acting as principal, from 
selling any security to the company. Section 2(a)(3) of the Act, in 
relevant part, defines an affiliated person of another person to 
include any officer, director or employee of that person and, in the 
case of an investment company, the investment adviser.
    11. Applicants state that officers, directors and employees of BKF 
are deemed affiliated persons of BKF, and officers, directors and 
employees of the Adviser are deemed second-tier affiliates of BKF. Thus 
section 17(a)(1) would prohibit the Repurchase Rights under the Plan 
(i.e., prohibit BKF from purchasing from a Participant Levco stock 
received as an Award under the Plan).
    12. Section 17(a)(2) of the Act generally prohibits an affiliated 
person or second-tier affiliate of a registered investment company, 
acting as principal, from purchasing any security from the company. 
Applicants state that this provision would prohibit transactions 
contemplated under the Plan that would enable a Participant to pay for 
an Award with a prior Award, such as paying the exercise price for an 
option for BKF's stock with Levco stock received as a prior Award.

[[Page 66218]]

    13. Section 17(a)(3) of the Act prohibits an affiliated person or 
second-tier affiliate of a registered investment company from borrowing 
money or other property from the company. Applicants state that this 
provision would prohibit Participant Loans.
    14. Section 17(b) of the Act provides that the SEC may, by order 
upon application, exempt a proposed transaction from section 17(a). 
Section 17(b) further provides that the SEC shall grant the exemption 
if evidence establishes that (a) 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; (b) the proposed transaction is consistent with the policy 
of the registered investment company concerned, as recited in its 
registration statement and reports filed under the Act; and (c) the 
proposed transaction is consistent with the general purposes of the 
Act. Applicants request an order under sections 6(c) and 17(b) of the 
Act permitting transactions incident to the Plan described above.
    15. Applicants state that valuation of the Awards for purposes of 
the Repurchase Right and to permit a Participant to pay for an Award 
with a previous Award will be fair and reasonable and will not involve 
overreaching on the part of any person concerned because BKF's shares 
will be valued in accordance with the Act and Levco stock will be 
valued in the same manner as it is valued for purposes of calculating 
BKF's NAV. Applicants also state that these transactions will be 
consistent with BKF's policies and with general purposes of the Act.
    16. With regard to Participant Loans, applicants state that the 
terms of the Loans will be fair to BKF because the Loans will be 
recourse loans that must be secured by collateral acceptable to the 
Committee, will bear a rate at least equal to the ``applicable federal 
rate'' as defined by the Internal Revenue Code of 1986, as amended 
(``IRC''), and will have a maturity of less than five years. Applicants 
also state that, because BKF's fundamental investment restrictions 
might prohibit Participant Loans, BKF will seek shareholder approval to 
amend that investment restriction to specifically permit Participant 
Loans. Applicants also state that the Participant Loans, Repurchase 
Rights, and the ability to pay for an Award with a previous Award are 
typical transactions incident to corporate equity-based compensation 
plans.

Section 17(d) of the Act

    17. Section 17(d) of the Act and rule 17d-1 under the Act generally 
prohibit an affiliated person of a registered investment company or 
second-tier affiliate from participating in a joint enterprise, joint 
arrangement or profit-sharing plan in which the company is a 
participant, unless the SEC by order approves the transactions. Rule 
17d-1(c) defines a joint enterprise to include any stock option or 
stock purchase plan. Rule 17d-1(b) provides that, in considering relief 
pursuant to the rule, the SEC will consider (i) whether the 
participation of the registered investment company in a joint 
enterprise is consistent with the Act's policies and purposes and (ii) 
the extent to which that participation is on a basis different from or 
less advantageous than that of other participants.
    18. Applicants request an order pursuant to section 17(d) and rule 
17d-1 to permit the Plan. Applicants state that the Plan, although 
benefiting the Participants and BKF in different ways, is in the 
interests of BKF's shareholders because the Plan will help BKF attract 
and retain talented professionals, help align the interests of BKF's 
employees with those of its shareholders, and in turn help produce a 
better return to BKF's shareholders. Thus, applicants assert that the 
Plan is consistent with the policies and purposes of the Act and that 
BKF's participation in the Plan will be on a basis no less advantageous 
than that of other participants.

Section 23(c) of the Act

    19. Section 23(c) of the Act prohibits a registered closed-end 
investment company from purchasing any securities of which it is the 
issuer except in the open market, pursuant to tender offers, or under 
other circumstances as the SEC may permit to insure that the purchase 
is made on a basis which does not unfairly discriminate against any 
holders of the class or classes of securities to be purchased.
    20. Applicants state that a purchase by BKF of BKF stock from a 
Participant in connection with an Award might be prohibited by section 
23(c) and request an order under section 23(c) to permit these 
purchases. Applicants state that these purchases will be made on a 
basis which does not unfairly discriminate against BKF shareholders 
because BKF will purchase its shares from the Participants at their 
market price on the date of the repurchase, the same price at which all 
other shareholders of BKF could sell their shares on the NYSE.

Applicant's Conditions

    Applicants agree that the order granting the requested relief will 
be subject to the following conditions:
    1. BKF will not dispose of the capital stock of Levco or the 
Adviser if as a result thereof, BKF would own, directly or indirectly, 
50% or less of the outstanding capital stock of each of Levco and the 
Adviser, unless BKF disposes of 100% of its interest in the Adviser.
    2. The Board will maintain Audit, Compensation, and Nominating 
Committees, none of the members of which will be ``interested persons'' 
of BKF as defined in the Act and as modified by the Prior Order. The 
Committee will administer the Plan and will be composed of two or more 
directors of BKF who are not interested persons of BKF or Levco and who 
are (i) non-employee directors within the meaning of rule 16b-3 under 
the Exchange Act, and (ii) outside directors as defined under section 
162(m) of the IRC.
    3. The Board will review at least annually the investment 
management business of BKF and the Adviser to determine whether the 
benefits derived by BKF warrant the continuation of such business and 
BKF's ownership, directly or indirectly, of the Adviser and, if 
appropriate, approve at least annually such continuation.
    4. The cash incentive plan covered by the Prior Order will be 
approved and administered by the Compensation Committee of the Board. 
No new cash incentive awards will be made under that plan after 
approval of the Plan by BKF's shareholders.
    5. The Plan will not be implemented unless the Plan has been 
approved by the holders of a majority of BKF's outstanding common stock 
present at a meeting called to consider the Plan. Any amendment to the 
Plan will be subject to the approval of BKF's stockholders to the 
extent such approval is required by law or the Board otherwise 
determines. Unless terminated or amended, during the fifth year of the 
Plan (and each fifth year thereafter), the Plan shall be resubmitted 
for reapproval to BKF's stockholders and the SEC and all Awards made 
during that year shall be contingent upon stockholder reapproval and 
receipt of an SEC exemptive order. BKF will not implement the Plan 
until stockholders have approved a new investment advisory agreement 
that describes the possible indirect compensation that the Adviser may 
receive if its officers, director and employees receive Awards.

[[Page 66219]]

    6. Awards are not transferable or assignable, except as the 
Committee shall specifically approve to facilitate estate planning or 
to a beneficiary upon a Participant's death or by will or the laws of 
descent and distribution.
    7. The existence and nature of the Awards granted will be disclosed 
in accordance with standards or guidelines adopted by the Financial 
Accounting Standards Board for operating companies and the requirements 
of the SEC under Item 402 of Regulation S-K, Item 8 of Schedule 14A 
under the Exchange Act and Item 18 of
Form N-2.
    8. The maximum number of shares of BKF stock available for delivery 
in connection with Awards under the Plan shall be (i) 10% of BKF stock 
outstanding on the effective date of the Plan, plus (ii) 10% of the 
number of shares of BKF stock issued or delivered by BKF (other than 
pursuant to compensation plans) during the term of the Plan, subject to 
adjustment for corporate transactions. The maximum number of shares of 
Levco stock available for delivery in connection with Awards under the 
Plan shall be (i) 2,498, plus (ii) 19.99% of the number of shares of 
the Levco stock issued or delivered by Levco (other than pursuant to 
compensation plans) during the term of the Plan. The total amount of 
shares of BKF stock and Levco stock with respect to which incentive 
stock options may be granted shall not exceed three million and two 
thousand respectively.
    9. The Board will review the Plan at least annually. In addition, 
the Committee periodically will review the potential impact that the 
grant, exercise, or vesting of Awards could have on BKF's and Levco's 
earnings and NAV per share, such review to take place prior to any 
decisions to grant Awards, but in no event less frequently than 
annually. Adequate procedures and records will be maintained to permit 
such review, and the Committee will be authorized to take appropriate 
steps to ensure that neither the grant nor the exercise or vesting of 
Awards would have any effect contrary to the interests of BKF's 
investors. This authority will include the authority to prevent or 
limit the grant of additional Awards. All records maintained pursuant 
to this condition will be subject to examination by the SEC and its 
staff.
    10. Awards are issuable only to BKF's directors, officers and 
employees and the officers and employees of certain of its 
subsidiaries. No one person shall be granted Awards relating to more 
than 35% of the shares reserved for issuance under the Plan. In any 
fiscal year, no person may be granted Awards related to more than one 
million shares of BKF stock and 1,000 shares of Levco stock, which 
amounts may be adjusted by the Committee as it deems equitable to 
reflect certain corporate transactions or events that affect the stock 
of BKF and/or Levco.
    11. The maximum amount of BKF stock subject to each Independent 
Director Initial Option is 1,000, and the maximum number of shares of 
BKF stock subject to each Independent Director Annual Option is 250, 
subject to adjustments for corporate transactions. The exercise price 
per share of BKF stock purchasable upon exercise of a director option 
will be equal to 100% of the FMV of a share of BKF stock on the date of 
grant of such option. A director option will expire at the earlier of 
(i) ten years from the date of grant or (ii) three months after the 
date the Independent Director ceases to serve as director of BKF for 
any reason.
    12. Any loan made pursuant to the Plan will be required to be made 
with recourse against the borrower and be secured by the BKF stock and/
or Levco stock to be acquired or other acceptable collateral. 
Furthermore, no loan may have a maturity of more than five years or 
bear interest at a rate below the ``applicable federal rate'' as 
defined in section 1274(d) of the IRC.

    By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 98-31940 Filed 11-30-98; 8:45 am]
BILLING CODE 8010-01-M