[Federal Register Volume 63, Number 242 (Thursday, December 17, 1998)]
[Notices]
[Pages 69694-69696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33364]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-23596; 812-10730]


Northern Institutional Funds, et al.; Notice of Application

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

ACTION: Notice of application for exemption under section 6(c) of the 
Investment Company Act of 1940 (``Act'') from section 15(a) of the Act 
and rule 18f-2 under the Act as well as certain disclosure 
requirements.

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SUMMARY OF APPLICATION: Applicants request an order to permit them to 
hire subadvisers and materially amend subadvisory agreements without 
shareholder approval, and grant relief from certain disclosure 
requirements.

APPLICANTS: Northern Institutional Funds (``NIF''), Northern Funds 
(``Northern Funds'') (collectively, the ``Trusts''), The Northern Trust 
Company (``Northern''), Northern Trust Quantitative Advisors, Inc. 
(``Quantitative''), and The Northern Trust Company of Connecticut 
(``Connecticut'') (collectively, the ``Advisers'').

FILING DATE: The application was filed on July 21, 1997, and amended on 
July 6, 1998, and December 7, 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 
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 January 4, 1999, 
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, 50 South LaSalle Street, Chicago, Illinois 60675.

FOR FURTHER INFORMATION CONTACT:
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 may be obtained for a fee at the 
SEC's Public Reference Branch, 450 Fifth Street, N.W. Washington, D.C. 
20549 (tel. 202-942-8090).

Applicant's Representations

    1. The Trusts are open-end management investment companies 
organized as Massachusetts business trusts and registered under the 
Act. NIF currently has 17 portfolios and Northern Funds currently has 
25 portfolios (collectively, the ``Portfolios''), each of which has its 
own investment objectives and policies.
    2. Northern, the investment adviser for thirty-five Portfolios, is 
an Illinois state-chartered bank and is exempt from registration under 
the Investment Advisers Act of 1940 (``Advisers Act''). Quantitative, 
the investment adviser to four NIF Portfolios and three Northern 
Portfolios, is registered under the Advisers Act. Connecticut, 
currently not an investment adviser to any of the Portfolios, is a 
state-chartered trust company exempt from registration under the 
Advisers Act. Connecticut specializes in evaluating and monitoring the 
qualifications and performance of investment advisers. Quantitative, 
Northern, and Connecticut are all under the common control of Northern 
Trust Corporation.
    3. Applicants propose to implement an Adviser/Subadviser structure 
for the Portfolios. Under Applicants' proposed structure, Northern and/
or Quantitative each would serve as a co-Adviser with Connecticut, who 
would offer its expertise in evaluating and monitoring

[[Page 69695]]

investment subadvisers (``Subadvisers''), to one or more Portfolios. 
The Advisers would have overall responsibility for the Portfolios and 
would recommend Subadvisers to the Trusts' boards of trustees 
(``Boards''). The Advisers would monitor each Subadviser's compliance 
with each Portfolio's investment objectives and policies, would review 
the performance of each Subadviser, and would periodically report each 
Subadviser's performance to the Board. As compensation for their 
services, the Advisers would receive a fee from the Portfolios.
    4. Under investment advisory agreements between the Advisers and 
the Subadvisers (``Subadvisory Agreements'') the specific investment 
decisions for each Portfolio would be made by each Subadviser subject 
to supervision by the Advisers and ultimately the Boards. The 
Subadvisers' fees would be paid by the Advisers out of the fee they 
receive from the Portfolios.
    5. Applicants request an exemption from section 15(a) of the Act 
and rule 18f-2 under the Act to permit Subadvisers approved by the 
Boards to serve as portfolio managers for the Portfolios without 
obtaining shareholder approval.\1\ Shareholder approval would continue 
to be required for any Subadviser that is an ``affiliated person,'' as 
defined in section 2(a)(3) of the Act, of the Portfolio or an Adviser 
other than by reason of serving as a Subadviser of the Portfolio (an 
``Affiliated Subadviser'').
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    \1\ Applicants request that the relief also apply to any 
registered open-end management investment company created in the 
future and each series for which Northern and Connecticut, or any 
entity controlling, controlled by, or under common control with 
Northern and Connecticut acts as investment adviser (``Future 
Funds''). All registered open-end management investment companies 
that currently intend to rely on the requested order are named as 
applicants and any Future Fund that relies on the order will do so 
only in accordance with the terms and conditions contained in the 
application.
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    6. Applicants also request an exemption from the various disclosure 
provisions described below that may require the Portfolios to disclose 
the fees paid by the Adviser to the Subadvisers. Each Portfolio will 
disclose the following (both as a dollar amount and as a percentage of 
a Portfolio's net assets): (1) aggregate fees paid to the Advisers and 
Affiliated Subadvisers; and (2) aggregate fees paid to Subadvisers 
other than Affiliated Subadvisers (``Aggregate Fee Disclosure''). For 
any Portfolio that employs an Affiliated Subadviser, the Portfolio will 
provide separate disclosure of any fees paid to such Affiliated 
Subadviser.

Applicants' Legal Analysis

Shareholder Voting

    1. Section 15(a) of the Act provides, in relevant part, that it is 
unlawful for any person to act as an investment adviser to a registered 
investment company except pursuant to a written contract which has been 
approved by the vote of a majority of the outstanding voting securities 
of the registered investment company. Rule 18f-2 under the Act provides 
that each series of stock in a series investment company effected by a 
manner must approve that matter if the Act requires shareholder 
approval.
    2. Section 6(c) authorizes the SEC to exempt persons or 
transactions from the provisions of the Act to the extent that such 
exemptions are appropriation in the public interest and consistent with 
the protection of investors and the purposes fairly intended by the 
policies and provisions of the Act.
    3. Applicants request an order under section 6(c) of the Act from 
section 15(a) of the Act and rule 18f-2 under the Act to permit them to 
enter into and materially amend Subadvisory Agreements without 
shareholder approval. Applicants assert that when the Portfolios 
implement the Adviser/Subadviser structure, a Portfolio's investors 
will rely on the Advisers to select Subadvisers best suited to achieve 
the Portfolio's investment objectives. Applicants assert that 
Connecticut, which will serve as co-Adviser to the Portfolios, has over 
fifteen years of experience evaluating investment advisory firms. In 
evaluating investment advisers, Connecticut considers, among other 
factors, the adviser's level of expertise, relative performance, 
consistency of performance compared with investment discipline and 
philosophy, investment personnel, financial strength, and quality of 
service. Applicants state that, in addition to selecting and monitoring 
Subadvisers, the Advisers will supervise the Portfolios' overall 
investment programs.
    4. Applicants state that, from the perspective of an investor, the 
role of the Subadvisers will be similar to that of individual portfolio 
managers employed by traditional investment advisory firms. Applicants 
assert that the requested relief would allow the Portfolios to operate 
the proposed Adviser/Subadviser structure more efficiently. Applicants 
also note that each Portfolio's investment advisory agreement with the 
Advisers will remain subject to the shareholder approval requirements 
of section 15 of the Act and rule 18f-2 under the Act.

Fee Disclosure

    Applicants also request relief under section 6(c) of the Act from 
certain disclosure requirements to provide Aggregate Fee Disclosure.
    5. Form N-1A is the registration statement used by open-end 
investment companies. Items 3, 6(a)(i), and 15(a)(3) of Form N-1A 
require disclosure of the method and amount of an investment adviser's 
compensation.
    6. Form N-14 is the registration form for business combinations 
involving open-end investment companies. Item 3 of Form N-14 requires 
the inclusion of a ``table showing the current fees for the registrant 
and the company being acquired and pro forma fees, if different, for 
the registrant after giving effect to the transaction.''
    7. Rule 20a-1 under the Act requires proxies solicited with respect 
to an investment company to comply with Schedule 14A under the 
Securities Exchange Act of 1934 (``Exchange Act''). Item 22(a)(3)(iv) 
of Schedule 14A requires a proxy statement for a shareholder meeting at 
which a new fee will be established or an existing fee will be 
increased to include a table of the current and pro forma fees. Items 
22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8), and 22(c)(9), taken together, 
require a proxy statement for a shareholder meeting at which the 
advisory contract will be voted upon to include the ``rate of 
compensation of the investment adviser,'' the ``aggregate amount of the 
investment adviser's fees,'' a description of ``the terms of the 
contract to be acted upon,'' and, if a change in the advisory fee is 
proposed, the existing and proposed fees and the difference between the 
two fees.
    8. Form N-SAR is the semi-annual report filed with the SEC by 
registered investment companies. Item 48 of Form N-SAR requires 
investment companies to disclose the rate schedule for fees paid to 
their investment advisers, including the Subadvisers.
    9. Regulation S-X sets forth the requirements for financial 
statements required to be included as part of investment company 
registration statements and shareholder reports filed with the SEC. 
Sections 6-07(2)(a), (b), and (c) of Regulation S-X require that 
investment companies include in their financial statements information 
about investment advisory fees.
    10. Applicants assert that the information provided in the 
Aggregate Fee Disclosure would give investors adequate information to 
compare the

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advisory fees of the Portfolios with those of other funds. Applicants 
also assert that some Subadvisers use a ``posted'' rate schedule to set 
their fees, particularly at lower asset levels. Based upon the 
Advisers' discussions with prospective Subadvisers, applicants believe 
that some organizations may be unwilling to serve as Subadvisers at any 
fee rate other than their ``posted'' fee rates, unless the rate 
negotiated for the Portfolios is not publicly disclosed. Applicants 
state that requiring disclosure of each Subadviser's fees may deprive 
the Advisers of their bargaining power while producing no benefit to 
shareholders, since the total advisory fee the shareholders pay would 
not be affected.

Applicants' Conditions

    Applicants agree that any order of the SEC granting the requested 
relief will be subject to the following conditions:
    1. The Advisers will provide general investment management services 
to the Portfolios, including overall supervisory responsibility for the 
general management and investment of the Portfolios' securities, and, 
subject to review and approval by each Board with respect to its 
respective Portfolios, will: (a) set the Portfolios' overall investment 
strategies; (b) recommend and select Subadvisers; (c) allocate and 
reallocate the Portfolio's assets among Subadvisers in those cases 
where a Portfolio has more than one Subadviser; (d) monitor and 
evaluate Subadviser performance; and (e) implement procedures to ensure 
that the Subadvisers comply with the relevant Portfolio's investment 
objective, policies, and restrictions.
    2. Before a Portfolio may rely on the requested order, the 
operation of the Portfolio as described in the application will be 
approved by a majority of the Portfolio's outstanding voting 
securities, as defined in the Act, or, in the case of a new Portfolio 
whose public shareholders purchase shares on the basis of a prospectus 
containing the disclosure addressed in condition 3 below, by the sole 
shareholder before offering shares of such Portfolio to the public.
    3. Each Portfolio relying on the requested order will disclose in 
its prospectus the existence, substance, and effect of the order 
granted pursuant to this application. In addition, each Portfolio will 
hold itself out to the public as employing the Adviser/Subadviser 
structure described in the application. The prospectus will prominently 
disclose that the Advisers have ultimate responsibility to oversee 
Subadvisers and to recommend their hiring, termination, and 
replacement.
    4. Within ninety (90) days of the hiring of any new Subadviser, the 
affected Portfolio will furnish its shareholders all information about 
the new Subadviser. The information will include any change in the 
disclosure caused by the addition of a new Subadviser of the Portfolio. 
The Portfolios will meet this obligation by providing shareholders 
within 90 days of the hiring of a new Subadviser an information 
statement meeting the requirements of Regulation 14C, Schedule 14C, and 
Item 22 of Schedule 14A under the Exchange Act, except as modified by 
Aggregate Fee Disclosure.
    5. No Trustee, director, or officer of a Trust or the Advisers will 
own direct or indirectly (other than through a pooled investment 
vehicle over which such person does not have control) any interest in 
any Subadviser except for (a) ownership of interests in the Advisers or 
any entity that controls, is controlled by or is under common control 
with the Advisers; or (b) ownership of less than 1% of the outstanding 
securities of any class of equity or debt of a publicly-traded company 
that is either a Subadviser or an entity that controls, is controlled 
by or is under common control with a Subadviser.
    6. The Advisers will not enter into a Subadvisory Agreement with 
any Affiliated Subadviser without such agreement, including the 
compensation to be paid thereunder, being approved by the shareholders 
of the applicable Portfolio.
    7. At all times, a majority of the members of each Board, including 
a majority of the trustees will be persons who are not ``interested 
persons'' of the Trusts as defined in section 2(a)(19) of the Act 
(``Independent Trustees''), and the nomination of new or additional 
Independent Trustees will be placed within the discretion of the then 
existing Independent Trustees.
    8. When a Subadviser change is proposed for a Portfolio with an 
Affiliated Subadviser the Board, including a majority of the 
Independent Trustees, will make a separate finding, reflected in the 
Board's minutes, that such change is in the best interests of the 
Portfolio and its shareholders and does not involve a conflict of 
interest from which the Advisers or the Affiliated Subadviser derives 
an inappropriate advantage.
    9. Each Portfolio will disclose in its registration statement the 
respective Aggregate Fee Disclosure.
    10. At all times, independent counsel knowledgeable about the Act 
and the duties of Independent Trustees will be engaged to represent the 
Independent Trustees of the Trust involved. The selection of such 
counsel will be placed within the discretion of the Independent 
Trustees.
    11. The Advisers will provide the Board of each Trust, no less 
frequently than quarterly, with information about the Advisers' 
profitability for each Portfolio using an Adviser/Subadviser structure. 
Such information will reflect the impact on profitability of the hiring 
or termination of Subadvisers during the quarter.
    12. Whenever a Subadviser to a particular Portfolio is hired or 
terminated, the Advisers will provide the Board with information 
showing the expected impact on the Advisers' profitability.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 98-33364 Filed 12-16-98; 8:45 am]
BILLING CODE 8010-01-M