[Federal Register Volume 64, Number 134 (Wednesday, July 14, 1999)]
[Notices]
[Pages 38056-38058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17932]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 23898; 812-11482]


Wayne Hummer Investment Trust, et al.; Notice of Application

July 8, 1999.
AGENCY: Securities and Exchange Commission (``SEC'').

ACTION: Notice of an application under section 12(d)(1)(J) of the 
Investment Company Act of 1940 (the ``Act'') for an exemption from 
sections 12(d)(1)(A) and (B) of the Act, under sections 6(c) and 17(b) 
of the Act for an exemption from section 17(a) of the Act, and under 
section 17(d) of the Act and rule 17d-1 under the Act to permit certain 
joint transactions.

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Summary of Application: Applicants request an order that would permit 
certain registered open-end management investment companies to use 
uninvested cash to purchase shares of affiliated money market funds.

Applicants: Wayne Hummer Investment Trust (``Trust''), all existing and 
future series thereof, and any other registered open-end management 
investment company and its series that are currently or in the future 
advised by Wayne Hummer Management Company (the ``Adviser'') or any 
entity controlling, controlled by, or under common control with the 
Adviser (collectively, the ``Funds''), the Adviser, and Wayne Hummer 
Investments L.L.C. (``WHILLC'').

FILING DATES: The application was filed on January 27, 1999, and 
amended on May 18, 1999. Applicants have agreed to file another 
amendment during the notice period, the substance of which is reflected 
in this notice.

Hearing or Notification of Hearing: An order granting the requested 
relief 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 July 29, 
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, NW., Washington, DC 20549-

[[Page 38057]]

0609. Applicants, 300 South Wacker Drive, Suite 1500, Chicago, Illinois 
60606.

FOR FURTHER INFORMATION CONTACT: Susan K. Pascocello, Senior Counsel, 
at (202) 942-0674, or Michael W. Mundt, Branch Chief, at (202) 942-0564 
(Office of Investment Company Regulation, Division of Investment 
Management).

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, NW., Washington, DC 
20549-0102 (tel. 202-942-8090).

Applicants' Representations

    1. The Trust is organized as a Massachusetts business trust and is 
an open-end management investment company registered under the Act. The 
Wayne Hummer Investment Trust currently consists of two series, a 
growth fund and an income fund (together with any future Funds that are 
not money market funds, the ``Non-Money Market Funds'') and as of July 
31, 1999 will add two more series, one of which will be a money market 
fund (together with any future Funds that are money market funds, the 
``Money Market Funds'').\1\ The Adviser, an Illinois corporation, 
serves as investment adviser to each Fund and is registered as an 
investment adviser under the Investment Advisers Act of 1940. WHILLC, a 
Delaware limited liability company, acts as the distributor for each of 
the existing Funds.
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    \1\ All existing investment companies that currently intend to 
rely on the order have been named as applicants, and any other 
existing or future registered management investment companies that 
subsequently rely on the order will comply with the terms and 
conditions in the application.
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    2. Each Non-Money Market Fund has, or may be expected to have, 
uninvested cash (``Uninvested Cash'') held by its custodian. Uninvested 
Cash may result from a variety of sources, including dividends or 
interest received from portfolio securities, unsettled securities 
transactions, strategic reserves, matured investments, proceeds from 
the liquidation of investment securities, and new investor capital.
    3. Applicants request an order to permit a Non-Money Market Fund to 
use its Uninvested Cash to purchase shares of a Money Market Fund, and 
the Money Market Fund to sell shares to and redeem from the Non-Money 
Market Fund, provided that the Non-Money Market Fund's aggregate 
investment in Money Market Funds does not exceed 25% of the Non-Money 
Market Fund's total assets at any time. Applicants believe that the 
ability to invest Uninvested Cash in Money Market Funds will benefit 
the Non-Money Market Funds by providing high rates of return, ready 
liquidity, and increased diversification.

Applicants' Legal Analysis

    1. Section 12(d)(1)(A) of the Act provides that no registered 
investment company may acquire securities of another investment company 
if such securities represent more than 3% of the acquired company's 
outstanding voting stock, more than 5% of the acquiring company's total 
assets, or if such securities, together with the securities of other 
acquired investment companies, represent more than 10% of the acquiring 
company's total assets. Section 12(d)(1)(B) of the Act provides that no 
registered open-end investment company may sell its securities to 
another investment company if the sale will cause the acquiring company 
to own more than 3% of the acquired company's voting stock, or if the 
sale will cause more than 10% of the acquired company's voting stock to 
be owned by investment companies.
    2. Section 12(d)(1)(J) of the Act provides that the SEC may exempt 
any persons or transactions from any provision of section 12(d)(1) if 
the exemption is consistent with the public interest and the protection 
of investors. Applicants request relief under section 12(d)(1)(J) to 
permit the Non-Money Market Funds to use Uninvested Cash to purchase 
shares of the Money Market Funds and the Money Market Funds to sell the 
shares in excess of the limitations in sections 12(d)(1) (A) and (B), 
provided that no Non-Money Market Fund will invest more than an 
aggregate of 25% of its total assets in all Money Market Funds at any 
time.
    3. Applicants submit that the proposed transactions do not 
implicate the abuses that sections 12(d)(1) (A) and (B) were intended 
to prevent, which include the exercise of undue influence by an 
acquiring fund over an acquired fund and layering of fees. Applicants 
state that each of the Money Market Funds will be managed specifically 
to maintain a highly liquid portfolio and will not be susceptible to 
undue control due to the threat of large-scale redemptions. Applicants 
also submit that there will be no layering of fees because no sales 
load, redemption fee, asset-based distribution fee or service fee will 
be charged in connection with the purchase and sale of shares of the 
Money Market Funds. Applicants state that the Adviser currently intends 
to credit to the Non-Money Market Fund, or waive, the investment 
advisory fees that it earns as a result of the investment in the Money 
Market Funds.
    4. Section 17(a) of the Act makes it unlawful for any affiliated 
person of a registered investment company, acting as principal, to sell 
or purchase any security to or from the company. Section 2(a)(3) of the 
Act defines an affiliated person of an investment company to include 
any investment adviser of the investment company and any person 
directly or indirectly controlling, controlled by, or under common 
control with the investment company. Applicants state that because the 
Funds are advised by the Adviser and share a common board of trustees, 
the Funds may be deemed to be under common control and affiliated 
persons of one another. As a result, section 17(a) would prohibit the 
sale of shares of a Money Market Fund to a Non-Money Market Fund and 
the redemption of the shares by the Non-Money Market Fund.
    5. Section 17(b) of the Act provides that the SEC may 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, and the proposed transaction is consistent with the 
policy of each registered investment company concerned and the general 
purposes of the Act.
    6. Section 6(c) of the Act permits the SEC to exempt any person, 
security, or transaction 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.
    7. Applicants submit that the request for relief satisfies the 
standards of sections 17(b) and 6(c). Applicants state that the 
proposed transactions are reasonable and fair and would not involve 
overreaching because shares of the Money Market Fund will be purchased 
and redeemed by the Non-Money Market Funds at net asset value. 
Applicants also note that Non-Money Market Funds will retain their 
ability to invest their Uninvested Cash directly in money market 
instruments in accordance with their investment objectives and policies 
if a higher return can be obtained or for any other reason. Applicants 
assert that each Money Market Fund may discontinue selling its shares 
to any of the Non-Money Market Funds if the board of trustees of the 
Money Market Fund determines that the sale would adversely affect the 
Money Market Fund's portfolio management and operations.

[[Page 38058]]

    8. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
an affiliated person of a registered investment company, acting as 
principal, from participating in any joint arrangement with the 
investment company. Applicants assert that the Non-Money Market Funds, 
by purchasing shares of the Money Market Funds, the Money Market Funds, 
by selling shares to Non-Money Market Funds, and the Adviser, by 
managing the proposed transactions, could be deemed to be participants 
in a joint arrangement.
    9. Rule 17d-1 under the Act permits the SEC to approve a joint 
transaction covered by the terms of section 17(d). In determining 
whether to approve a transaction, the SEC considers whether the 
investment company's participation in the joint enterprise is 
consistent with the provisions, policies, and purposes of the Act, and 
the extent to which the participation is on a basis different from, or 
less advantageous than, that of other participants. Applicants assert 
that the Funds will participate in the proposed transactions on a basis 
not different from or less advantageous than that of other participants 
and that the transactions will be consistent with the purposes of the 
Act.

Applicants' Conditions

    Applicants agree that the order granting the requested relief will 
be subject to the following conditions:
    1. Shares of the Money Market Funds sold to and redeemed from the 
Non-Money Market Funds will not be subject to a sales load, redemption 
fee, distribution fee under a plan adopted in accordance with rule 12b-
1 under the Act, or service fee (as defined in rule 2830(b)(9) of the 
NASD Rules of Conduct).
    2. If the Adviser collects a fee from a Money Market Fund for 
acting as its investment adviser with respect to assets invested by a 
Non-Money Market Fund, before the next meeting of the board of trustees 
of a Non-Money Market Fund that invests in the Money Market Funds 
(``Board'') is held for the purpose of voting on an advisory contract 
for the Non-Money Market Fund under section 15 of the Act, the Adviser 
will provide the Board with specific information regarding the 
approximate cost to the Adviser for, or portion of the advisory fee 
under the existing advisory contract attributable to, managing the 
assets of the Non-Money Market Fund that can be expected to be invested 
in such Money Market Funds. Before approving any advisory contract 
under section 15, the Board, including a majority of the trustees who 
are not ``interested persons,'' as defined in section 2(a)(19) of the 
Act, shall consider to what extent, if any, the advisory fees charged 
to the Non-Money Market Fund by the Adviser should be reduced to 
account for the fee indirectly paid by the Non-Money Market Fund 
because of the advisory fee paid by the Money Market Fund to the 
Adviser. The minute books of the Non-Money Market Fund will record 
fully the Board's considerations in approving the advisory contract, 
including the considerations relating to fees referred to above.
    3. Each of the Non-Money Market Funds will invest Uninvested Cash 
in, and hold shares of, the Money Market Funds only to the extent that 
the Non-Money Market Fund's aggregate investment in the Money Market 
Funds does not exceed 25% of the Non-Money Market Fund's total assets. 
For purposes of this limitation, each Non-Money Market Fund or series 
thereof will be treated as a separate investment company.
    4. Investment in shares of the Money Market Funds will be in 
accordance with each Non-Money Market Fund's respective investment 
restrictions and policies set forth in its prospectus and statement of 
additional information.
    5. No Money Market Fund shall acquire securities of any other 
investment company in excess of the limits contained in section 
12(d)(1)(A) of the Act.
    6. Each Non-Money Market Fund, Money Market Fund, and any future 
Fund that may rely on the requested order will be advised by the 
Adviser or an entity controlling, controlled by, or under common 
control with the Adviser.

    For the SEC, by the Division of Investment Management, under 
delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-17932 Filed 7-13-99; 8:45 am]
BILLING CODE 8010-01-M