[Federal Register Volume 78, Number 44 (Wednesday, March 6, 2013)]
[Notices]
[Pages 14594-14597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05167]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30411; 812-14043]


Forward Funds, et al.; Notice of Application

February 28, 2013.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 12(d)(1)(J) 
of the Investment Company Act of 1940 (the ``Act'') for exemption from 
sections 12(d)(1)(A) and (B) of the Act and under sections 6(c) and 
17(b) of the Act for an exemption from section 17(a) of the Act.

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    Summary of the Application: The order would permit certain open-end 
management investment companies registered under the Act to acquire 
shares of certain open-end management investment companies registered 
under the Act that are outside of the same group of investment 
companies as the acquiring investment companies.
    Applicants: Forward Funds (the ``Trust''), Forward Management, LLC 
(the ``Adviser''), and Forward Securities, LLC (the ``Distributor'').
    Filing Dates: The application was filed on June 11, 2012, and 
amended on September 28, 2012, December 19, 2012, and February 6, 2013.
    Hearing or Notification of Hearing: An order granting the 
application will be issued unless the Commission orders a hearing. 
Interested persons may request a hearing by writing to the Commission's 
Secretary and serving applicants with a copy of the request, personally 
or by mail. Hearing requests should be received by the Commission by 
5:30 p.m. on March 25, 2013, 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 Commission's Secretary.

ADDRESSES: Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange 
Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants, 
101 California Street, 16th Floor, San Francisco, CA 94111.

FOR FURTHER INFORMATION CONTACT: Christine Y. Greenlees, Senior 
Counsel, at (202) 551-6879, or David P. Bartels, Branch Chief, at (202) 
551-6821 (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 via the 
Commission's Web site by searching for the file number, or for an 
applicant using the Company name box, at http://www.sec.gov/search/search.htm, or by calling (202) 551-8090.

Applicants' Representations

    1. The Trust is an open-end management investment company 
registered under the Act and organized as a Delaware statutory trust. 
The Trust is comprised of separate series (each a ``Fund'' and 
collectively, the ``Funds''). The Adviser is registered as an 
investment adviser under the Investment Advisers Act of 1940 
(``Advisers Act'') and serves as investment adviser for each of the 
Funds. The Distributor is registered as a broker dealer under the 
Securities Exchange Act of 1934 (the ``Exchange Act'') and serves as 
the Funds' distributor. Both the Adviser and the Distributor are 
Delaware limited liability companies.
    2. Applicants request an order to permit (a) registered open-end 
management investment companies (the ``Investing Funds'') that are not 
part of the same ``group of investment companies,'' within the meaning 
of section 12(d)(1)(G)(ii) of the Act, as the Trust, to acquire shares 
of the Funds in excess of the limits in section 12(d)(1)(A) of the Act, 
and (b) the Funds, any principal underwriter for a Fund, and any broker 
or dealer registered under the Exchange Act (``Broker'') to sell shares 
of the Funds to the Investing Funds in excess of the limits of section 
12(d)(1)(B) of the Act.\1\ Applicants also request an order under 
sections 6(c) and 17(b) of the Act to exempt applicants from section 
17(a) to the extent necessary to permit a Fund to sell its shares to 
and redeem its shares from an Investing Fund.\2\
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    \1\ All entities that currently intend to rely on the requested 
order are named as applicants. Any other entity that relies on the 
order in the future will comply with the terms and conditions of the 
application. Certain of the Funds created in the future may be 
registered under the Act as open-end management investment companies 
and may have received exemptive relief to permit their shares to be 
listed and traded on a national securities exchange at negotiated 
prices (``ETFs'').
    \2\ Applicants request that the relief apply to: (1) Each 
registered open-end management investment company or series thereof 
that currently or subsequently is part of the same ``group of 
investment companies,'' within the meaning of section 
12(d)(1)(G)(ii) of the Act, as the Trust and is advised by the 
Adviser (included in the term ``Funds''); (2) each Investing Fund 
that enters into a Participation Agreement (as defined below) with a 
Fund to purchase shares of the Fund; and (3) any principal 
underwriter to a Fund or Broker (as defined below) selling shares of 
a Fund.
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    3. Each Investing Fund will be advised by an ``investment 
adviser,'' within the meaning of section 2(a)(20)(A) of the Act, and 
such adviser will be registered as an investment adviser under the 
Advisers Act (each, an ``Investing Fund Adviser''). Some Investing 
Funds may also be advised by an investment adviser that meets the 
definition of section 2(a)(20)(B) of the Act (each, an ``Investing Fund 
Subadviser'').

 Applicants' Legal Analysis

A. Section 12(d)(1)

    1. Section 12(d)(1)(A) of the Act, in relevant part, prohibits a 
registered investment company from acquiring shares of an investment 
company if the securities represent more than 3% of the total 
outstanding voting stock of the acquired company, more than 5% of the 
total assets of the acquiring company, or, together with the securities 
of any other investment companies, more than 10% of the total assets of 
the acquiring company. Section 12(d)(1)(B) of the Act prohibits a 
registered open-end investment company, its principal underwriter, and 
any Broker from knowingly selling the investment company's shares to 
another investment company if the sale will cause the acquiring company 
to own more than 3% of the acquired company's total outstanding voting 
stock, or if the sale will cause more than 10% of the acquired 
company's total outstanding voting stock to be owned by investment 
companies generally.
    2. Section 12(d)(1)(J) of the Act provides that the Commission may

[[Page 14595]]

exempt any person, security, or transaction, or any class or classes of 
persons, securities 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 seek an exemption under section 
12(d)(1)(J) of the Act to permit Investing Funds to acquire shares of 
the Funds in excess of the limits in section 12(d)(1)(A), and a Fund, 
any principal underwriter for a Fund and any Broker to sell shares of a 
Fund to an Investing Fund in excess of the limits in section 
12(d)(1)(B) of the Act.
    3. Applicants state that the proposed arrangement will not give 
rise to the policy concerns underlying sections 12(d)(1)(A) and (B), 
which include concerns about undue influence by a fund of funds over 
underlying funds, excessive layering of fees, and overly complex fund 
structures. Accordingly, applicants believe that the requested 
exemption is consistent with the public interest and the protection of 
investors.
    4. Applicants believe that the proposed arrangement will not result 
in the exercise of undue influence by an Investing Fund or an Investing 
Fund Affiliate over the Funds.\3\ To limit the control that an 
Investing Fund may have over a Fund, applicants propose a condition 
prohibiting the Investing Fund's Advisory Group from controlling 
(individually or in the aggregate) a Fund within the meaning of section 
2(a)(9) of the Act.\4\ The same prohibition would apply to any 
Investing Fund's Subadvisory Group.\5\ Applicants propose other 
conditions to limit the potential for undue influence over the Funds, 
including that no Investing Fund or Investing Fund Affiliate (except to 
the extent it is acting in its capacity as an investment adviser to a 
Fund) will cause a Fund to purchase a security in an offering of 
securities during the existence of any underwriting or selling 
syndicate of which a principal underwriter is an Underwriting Affiliate 
(``Affiliated Underwriting'').\6\
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    \3\ An ``Investing Fund Affiliate'' is the Investing Fund 
Adviser, any Investing Fund Subadviser, promoter or principal 
underwriter of an Investing Fund, as well as any person controlling, 
controlled by, or under common control with any of those entities. A 
``Fund Affiliate'' is an investment adviser, sponsor, promoter, or 
principal underwriter of a Fund, as well as any person controlling, 
controlled by, or under common control with any of those entities.
    \4\ An ``Investing Fund's Advisory Group'' is the Investing Fund 
Adviser, any person controlling, controlled by or under common 
control with the Investing Fund Adviser, and any investment company 
or issuer that would be an investment company but for section 
3(c)(1) or 3(c)(7) of the Act that is advised or sponsored by the 
Investing Fund Adviser or any person controlling, controlled by or 
under common control with the Investing Fund Adviser.
    \5\ An ``Investing Fund's Subadvisory Group'' is an Investing 
Fund Subadviser, any person controlling, controlled by or under 
common control with the Investing Fund Subadviser, and any 
investment company or issuer that would be an investment company but 
for section 3(c)(1) or 3(c)(7) of the Act (or portion of such 
investment company or issuer) advised or sponsored by the Investing 
Fund Subadviser or any person controlling, controlled by or under 
common control with the Investing Fund Subadviser.
    \6\ An ``Underwriting Affiliate'' is a principal underwriter in 
any underwriting or selling syndicate that is an officer, director, 
trustee, advisory board member, Investing Fund Adviser, Investing 
Fund Subadviser, or employee of the Investing Fund, or a person of 
which any such officer, director, trustee, advisory board member, 
Investing Fund Adviser, Investing Fund Subadviser, or employee is an 
affiliated person. An Underwriting Affiliate does not include any 
person whose relationship to the Fund is covered by section 10(f) of 
the Act.
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    5. To ensure that the Investing Funds comply with the terms and 
conditions of the requested relief, prior to an Investing Fund's 
investment in the shares of a Fund in excess of the limit in section 
12(d)(1)(A) of the Act, the Investing Fund and the Fund will execute an 
agreement stating, without limitation, that their Boards (as defined 
below) and their investment advisers understand the terms and 
conditions of the order and agree to fulfill their responsibilities 
under the order (``Participation Agreement'').\7\ Applicants note that 
each of the Funds (other than an ETF whose shares are purchased by an 
Investing Fund in the secondary market) will retain its right at all 
times to reject any investment by an Investing Fund.\8\
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    \7\ The board of directors or trustees, as applicable, of a 
specified entity is referred to herein as a ``Board.''
    \8\ A Fund, including an ETF, would retain its right to reject 
any initial investment by an Investing Fund in excess of the limit 
in section 12(d)(1)(A)(i) of the Act by declining to execute the 
Participation Agreement with the Investing Fund.
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    6. Applicants state that they do not believe that the proposed 
arrangement will involve excessive layering of fees. The Board of each 
Investing Fund, including a majority of the directors or trustees who 
are not ``interested persons'' (within the meaning of section 2(a)(19) 
of the Act) (``Disinterested Directors''), will find that the advisory 
fees charged under investment advisory contract(s) are based on 
services provided that will be in addition to, rather than duplicative 
of, the services provided under the advisory contract(s) of any Fund in 
which the Investing Fund may invest. In addition, the Investing Fund 
Adviser will waive fees otherwise payable to it by an Investing Fund in 
an amount at least equal to any compensation (including fees received 
pursuant to any plan adopted by a Fund under rule 12b-1 under the Act) 
received from a Fund by the Investing Fund Adviser, or an affiliated 
person of the Investing Fund Adviser, other than any advisory fees paid 
to the Investing Fund Adviser or its affiliated person by the Fund, in 
connection with the investment by the Investing Fund in the Fund. Any 
sales charges and/or service fees charged with respect to shares of an 
Investing Fund will not exceed the limits applicable to a fund of funds 
as set forth in Rule 2830 of the Conduct Rules of the NASD (``NASD 
Conduct Rule 2830'').\9\
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    \9\ Any references to NASD Conduct Rule 2830 include any 
successor or replacement FINRA rule to NASD Conduct Rule 2830.
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    7. Applicants submit that the proposed arrangement will not create 
an overly complex fund structure. Applicants note that no Fund will 
acquire securities of any investment company or company relying on 
section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained 
in section 12(d)(1)(A) of the Act, except in certain circumstances 
identified in condition 12 below.

B. Section 17(a)

    1. Section 17(a) of the Act generally prohibits sales or purchases 
of securities between a registered investment company and any 
affiliated person of the company. Section 2(a)(3) of the Act defines an 
``affiliated person'' of another person to include (a) any person 
directly or indirectly owning, controlling, or holding with power to 
vote, 5% or more of the outstanding voting securities of the 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 the other person; and (c) any person directly or 
indirectly controlling, controlled by, or under common control with the 
other person.
    2. Applicants state that an Investing Fund and a Fund might be 
deemed to be affiliated persons of one another if the Investing Fund 
acquires 5% or more of a Fund's outstanding voting securities. 
Accordingly, section 17(a) could prevent a Fund from selling shares to 
and redeeming shares from an Investing Fund.
    3. Section 17(b) of the Act authorizes the Commission to grant an 
order permitting a transaction otherwise prohibited by section 17(a) if 
it finds that (a) the terms of the proposed transaction are fair and 
reasonable and do not involve overreaching on the part of any person 
concerned; (b) the proposed transaction is consistent with the policies 
of each registered investment company involved; and (c)

[[Page 14596]]

the proposed transaction is consistent with the general purposes of the 
Act. Section 6(c) of the Act permits the Commission to exempt any 
persons or transactions 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.
    4. Applicants submit that the proposed transactions satisfy the 
standards for relief under sections 17(b) and 6(c) of the Act.\10\ 
Applicants state that the terms of the transactions are reasonable and 
fair and do not involve overreaching. Applicants state that the terms 
upon which a Fund will sell its shares to or purchase its shares from 
an Investing Fund will be based on the net asset value of the Fund.\11\ 
Applicants state that the proposed transactions will be consistent with 
the policies of each Investing Fund and each Fund and with the general 
purposes of the Act.
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    \10\ Applicants acknowledge that receipt of any compensation by 
(a) an affiliated person of an Investing Fund, or an affiliated 
person of such person, for the purchase by an Investing Fund of 
shares of a Fund or (b) an affiliated person of a Fund, or an 
affiliated person of such person, for the sale by the Fund of its 
shares to an Investing Fund may be prohibited by section 17(e)(1) of 
the Act. The Participation Agreement also will include this 
acknowledgement.
    \11\ Applicants note that an Investing Fund generally would 
purchase and sell shares of a Fund that operates as an ETF through 
secondary market transactions rather than through principal 
transactions with the Fund. The requested relief is intended to 
cover, however, transactions directly between Funds and Investing 
Funds. Applicants are not seeking relief from section 17(a) for, and 
the requested relief will not apply to, transactions where an ETF 
could be deemed an affiliated person, or an affiliated person of an 
affiliated person of an Investing Fund because an investment adviser 
to the ETF is also an investment adviser to the Investing Fund.
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Applicants' Conditions

    Applicants agree that the relief to permit Investing Funds to 
invest in Funds shall be subject to the following conditions:
    1. The members of an Investing Fund's Advisory Group will not 
control (individually or in the aggregate) a Fund within the meaning of 
section 2(a)(9) of the Act. The members of an Investing Fund's 
Subadvisory Group will not control (individually or in the aggregate) a 
Fund within the meaning of section 2(a)(9) of the Act. If, as a result 
of a decrease in the outstanding voting securities of a Fund, the 
Investing Fund's Advisory Group or the Investing Fund's Subadvisory 
Group, each in the aggregate, becomes a holder of more than 25 percent 
of the outstanding voting securities of a Fund, it will vote its shares 
of the Fund in the same proportion as the vote of all other holders of 
the Fund's shares. This condition does not apply to the Investing 
Fund's Subadvisory Group with respect to a Fund for which the Investing 
Fund Subadviser or a person controlling, controlled by, or under common 
control with the Investing Fund Subadviser acts as the investment 
adviser within the meaning of section 2(a)(20)(A) of the Act.
    2. No Investing Fund or Investing Fund Affiliate will cause any 
existing or potential investment by the Investing Fund in shares of a 
Fund to influence the terms of any services or transactions between the 
Investing Fund or an Investing Fund Affiliate and the Fund or a Fund 
Affiliate.
    3. The Board of an Investing Fund, including a majority of the 
Disinterested Directors, will adopt procedures reasonably designed to 
ensure that the Investing Fund Adviser and any Investing Fund 
Subadviser(s) are conducting the investment program of the Investing 
Fund without taking into account any consideration received by the 
Investing Fund or an Investing Fund Affiliate from a Fund or a Fund 
Affiliate in connection with any services or transactions.
    4. Once an investment by an Investing Fund in the securities of a 
Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, the Board 
of the Fund, including a majority of the Disinterested Directors, will 
determine that any consideration paid by the Fund to the Investing Fund 
or an Investing Fund Affiliate in connection with any services or 
transactions: (a) Is fair and reasonable in relation to the nature and 
quality of the services and benefits received by the Fund; (b) is 
within the range of consideration that the Fund would be required to 
pay to another unaffiliated entity in connection with the same services 
or transactions; and (c) does not involve overreaching on the part of 
any person concerned. This condition does not apply with respect to any 
services or transactions between a Fund and its investment adviser(s) 
or any person controlling, controlled by, or under common control with 
such investment adviser(s).
    5. No Investing Fund or Investing Fund Affiliate (except to the 
extent it is acting in its capacity as an investment adviser to a Fund) 
will cause a Fund to purchase a security in any Affiliated 
Underwriting.
    6. The Board of a Fund, including a majority of the Disinterested 
Directors, will adopt procedures reasonably designed to monitor any 
purchases of securities by the Fund in an Affiliated Underwriting once 
an investment by an Investing Fund in the securities of the Fund 
exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any 
purchases made directly from an Underwriting Affiliate. The Board of 
the Fund will review these purchases periodically, but no less 
frequently than annually, to determine whether the purchases were 
influenced by the investment by the Investing Fund in shares of the 
Fund. The Board will consider, among other things, (i) whether the 
purchases were consistent with the investment objectives and policies 
of the Fund; (ii) how the performance of securities purchased in an 
Affiliated Underwriting compares to the performance of comparable 
securities purchased during a comparable period of time in 
underwritings other than Affiliated Underwritings or to a benchmark 
such as a comparable market index; and (iii) whether the amount of 
securities purchased by the Fund in Affiliated Underwritings and the 
amount purchased directly from an Underwriting Affiliate have changed 
significantly from prior years. The Board will take any appropriate 
actions based on its review, including, if appropriate, the institution 
of procedures designed to ensure that purchases of securities in 
Affiliated Underwritings are in the best interest of shareholders.
    7. Each Fund will maintain and preserve permanently in an easily 
accessible place a written copy of the procedures described in the 
preceding condition, and any modifications to such procedures, and will 
maintain and preserve for a period of not less than six years from the 
end of the fiscal year in which any purchase in an Affiliated 
Underwriting occurred, the first two years in an easily accessible 
place, a written record of each purchase of securities in Affiliated 
Underwritings once an investment by an Investing Fund in the securities 
of a Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, 
setting forth from whom the securities were acquired, the identity of 
the underwriting syndicate's members, the terms of the purchase, and 
the information or materials upon which the Board's determinations were 
made.
    8. Before investing in shares of a Fund in excess of the limits in 
section 12(d)(1)(A), each Investing Fund and Fund will execute a 
Participation Agreement stating, without limitation, that their Boards 
and their investment advisers understand the terms and conditions of 
the order and agree to fulfill their responsibilities under the order. 
At the time of its investment in

[[Page 14597]]

shares of a Fund in excess of the limit in section 12(d)(1)(A)(i), an 
Investing Fund will notify the Fund of the investment. At such time, 
the Investing Fund will also transmit to the Fund a list of the names 
of each Investing Fund Affiliate and Underwriting Affiliate. The 
Investing Fund will notify the Fund of any changes to the list of the 
names as soon as reasonably practicable after a change occurs. The Fund 
and the Investing Fund will maintain and preserve a copy of the order, 
the Participation Agreement, and the list with any updated information 
for the duration of the investment and for a period of not less than 
six years thereafter, the first two years in an easily accessible 
place.
    9. Prior to approving any advisory contract under section 15 of the 
Act, the Board of each Investing Fund, including a majority of the 
Disinterested Directors, will find that the advisory fees charged under 
such advisory contracts are based on services provided that will be in 
addition to, rather than duplicative of, the services provided under 
the advisory contract(s) of any Fund in which the Investing Fund may 
invest. These findings and their basis will be recorded fully in the 
minute books of the appropriate Investing Fund.
    10. An Investing Fund Adviser will waive fees otherwise payable to 
it by the Investing Fund in an amount at least equal to any 
compensation (including fees received pursuant to a plan adopted by a 
Fund under Rule 12b-1 under the Act) received from a Fund by the 
Investing Fund Adviser, or an affiliated person of the Investing Fund 
Adviser, other than any advisory fees paid to the Investing Fund 
Adviser or its affiliated person by the Fund, in connection with the 
investment by the Investing Fund in the Fund. Any Investing Fund 
Subadviser will waive fees otherwise payable to the Investing Fund 
Subadviser, directly or indirectly, by the Investing Fund in an amount 
at least equal to any compensation received from a Fund by the 
Investing Fund Subadviser, or an affiliated person of the Investing 
Fund Subadviser, other than any advisory fees paid to the Investing 
Fund Subadviser or its affiliated person by the Fund, in connection 
with the investment by the Investing Fund in the Fund made at the 
direction of the Investing Fund Subadviser. In the event that the 
Investing Fund Subadviser waives fees, the benefit of the waiver will 
be passed through to the Investing Fund.
    11. Any sales charges and/or service fees charged with respect to 
shares of an Investing Fund will not exceed the limits applicable to a 
fund of funds as set forth in NASD Conduct Rule 2830.
    12. No Fund will acquire securities of any investment company or 
company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of 
the limits contained in section 12(d)(1)(A) of the Act, except to the 
extent permitted by exemptive relief from the Commission permitting the 
Fund to purchase shares of other investment companies for short-term 
cash management purposes.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Kevin O'Neill,
Deputy Secretary.
[FR Doc. 2013-05167 Filed 3-5-13; 8:45 am]
BILLING CODE 8011-01-P