[Federal Register Volume 79, Number 247 (Wednesday, December 24, 2014)]
[Notices]
[Pages 77538-77542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-30129]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 31385; 812-14345]


Forum Funds II and Acuitas Investments, LLC; Notice of 
Application

December 18, 2014.
AGENCY: Securities and Exchange Commission (``Commission'').

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

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    Summary of Application: Applicants request an order that would 
permit them to enter into and materially amend sub-advisory agreements 
with Wholly-Owned Sub-Advisers (as defined below) and Non-Affiliated 
Sub-Advisers (as defined below) without shareholder approval and would 
grant relief from certain disclosure requirements.
    Applicants: Forum Funds II (``Trust'') and Acuitas Investments, LLC 
(``Adviser'').

DATES: Filing Dates: The application was filed August 12, 2014, and 
amended on September 19, 2014, November 18, 2014, November 21, 2014 and 
December 16, 2014.
    Hearing or Notification of Hearing: An order granting the requested 
relief 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 January 12, 2015, and should be accompanied by proof of 
service on applicants, in the form of an affidavit or, for lawyers, a 
certificate of service. Pursuant to rule 0-5 under the Act, hearing 
requests should state the nature of the writer's interest, any facts 
bearing upon the desirability of a hearing on the matter, 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: Secretary, U.S. Securities and Exchange Commission, 100 F 
Street

[[Page 77539]]

NE., Washington, DC 20549-1090. Applicants: Trust, Three Canal Plaza, 
Suite 600, Portland, ME 04101; Adviser, 520 Pike Street, Suite 1221, 
Seattle, Washington 98101.

FOR FURTHER INFORMATION CONTACT: Kaitlin C. Bottock, Attorney Adviser, 
at (202) 551-8658, or Daniele Marchesani, Branch Chief, at (202) 551-
6747 (Division of Investment Management, Chief Counsel's Office).

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 organized as a Delaware statutory trust and is 
registered under the Act as an open-end management investment company. 
The Trust offers one or more series of shares (each, a ``Series''). 
Each Subadvised Series (as defined below) has its own investment 
objectives, policies and restrictions and may offer one or more classes 
of shares that are subject to different expenses.
    2. The Adviser, a limited liability company organized under the 
laws of the state of Washington, is registered as an investment adviser 
under the Investment Advisers Act of 1940 (``Advisers Act'').
    3. Applicants request an order to permit the Adviser, subject to 
the approval of the Board, including a majority of the members of the 
Board who are not ``interested persons,'' as defined in section 
2(a)(19) of the Act, of the Series or the Adviser (``Independent Board 
Members''), to, without obtaining shareholder approval: (i) Select Sub-
Advisers to manage all or a portion of the assets of a Series and enter 
into Sub-Advisory Agreements (as defined below) with the Sub-
Advisers,\1\ and (ii) materially amend Sub-Advisory Agreements with the 
Sub-Advisers.\2\ Applicants request that the relief apply to named 
applicants, as well as any future Series and any other existing or 
future registered open-end management investment company or series 
thereof that is advised by the Adviser, uses the multi-manager 
structure as described in the application, and complies with the terms 
and conditions of the application (``Subadvised Series'').\3\ The 
requested relief will not extend to any sub-adviser, other than a 
Wholly-Owned Sub-Adviser, who is an affiliated person, as defined in 
section 2(a)(3) of the Act, of the Subadvised Series or of the Adviser, 
other than by reason of serving as a sub-adviser to one or more of the 
Subadvised Series (``Affiliated Sub-Adviser'').
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    \1\ A ``Sub-Adviser'' is (a) an indirect or direct ``wholly 
owned subsidiary'' (as such term is defined in the Act) of the 
Adviser for that Series, or (b) a sister company of the Adviser for 
that Series that is an indirect or direct ``wholly-owned 
subsidiary'' (as such term is defined in the Act) of the same 
company that, indirectly or directly, wholly owns the Adviser (each 
of (a) and (b) a ``Wholly-Owned Sub-Adviser'' and collectively, the 
``Wholly-Owned Sub-Advisers''), or (c) an investment sub-adviser for 
that Series that is not an ``affiliated person'' (as such term is 
defined in section 2(a)(3) of the Act) of the Series or the Adviser, 
except to the extent that an affiliation arises solely because the 
sub-adviser serves as a sub-adviser to one or more Series (each, a 
``Non-Affiliated Sub-Adviser'' and collectively, the ``Non-
Affiliated Sub-Advisers''). Each Sub-Adviser will be registered with 
the Commission under the Advisers Act or not subject to such 
registration.
    \2\ Shareholder approval will continue to be required for any 
other sub-adviser changes and material amendments to an existing 
Sub-Advisory Agreement with any sub-adviser other than a Non-
Affiliated Sub-Adviser or a Wholly-Owned Sub-Adviser (all such 
changes referred to as ``Ineligible Sub-Adviser Changes'').
    \3\ For purposes of the requested order, ``successor'' is 
limited to an entity that results from a reorganization into another 
jurisdiction or a change in the type of business organization. All 
registered open-end investment companies that currently intend to 
rely on the requested order are named as applicants. Any entity that 
relies on the requested order will do so only in accordance with the 
terms and conditions contained in the application. If the name of 
any Subadvised Series contains the name of a sub-adviser, the name 
of the Adviser, or a trademark or trade name that is owned by or 
publicly used to identify that Adviser, will precede the name of the 
sub-adviser.
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    4. Each Subadvised Series has, or will have, as its investment 
adviser, the Adviser, its successors, or an entity controlling, 
controlled by or under common control with the Adviser or its 
successors (included in the term, ``Adviser''). The Adviser will serve 
as investment adviser to each Subadvised Series pursuant to an 
investment advisory agreement with the Trust (``Investment Management 
Agreement''). The Investment Management Agreement for each Series will 
be approved by the board of trustees of the Trust (``Board''),\4\ 
including a majority of the Independent Board Members, and by the 
shareholders of the relevant Series as required by sections 15(a) and 
15(c) of the Act and rule 18f-2 thereunder. The terms of the Investment 
Management Agreement comply with section 15(a) of the Act.
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    \4\ The term ``Board'' also includes the board of trustees or 
directors of a future Subadvised Series, if different.
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    5. Under the terms of the Investment Management Agreement, the 
Adviser, subject to the supervision of the Board, provides continuous 
investment management of the assets of each Series. The Adviser 
periodically reviews each Series' investment policies and strategies, 
and based on the need of a particular Series may recommend changes to 
the investment policies and strategies of the Series for consideration 
by the Board. For its services to each Series under the Investment 
Management Agreement, the Adviser receives an investment management fee 
from that Series. The Investment Management Agreement provides that the 
Adviser may, subject to the approval of the Board, including a majority 
of the Independent Board Members, and the shareholders of the 
applicable Subadvised Series (if required), delegate portfolio 
management responsibilities of all or a portion of the assets of a 
Subadvised Series to one or more Sub-Advisers.
    6. Pursuant to the Investment Management Agreement, the Adviser 
continues to have overall responsibility for the management and 
investment of the assets of each Subadvised Series. The Adviser's 
responsibilities include recommending the removal or replacement of 
Sub-Advisers, determining the portion of that Subadvised Series' assets 
to be managed by any given Sub-Adviser and reallocating those assets as 
necessary from time to time.
    7. The Adviser may enter into sub-advisory agreements with various 
Sub-Advisers (``Sub-Advisory Agreements'') to provide investment 
management services to the Subadvised Series. The terms of each Sub-
Advisory Agreement comply fully with the requirements of section 15(a) 
of the Act. Any Sub-Advisory Agreements in effect at the time the 
Subadvised Series commences their public offerings of securities will 
have been approved by the Board, including a majority of the 
Independent Board Members, and the initial shareholders of the 
applicable Subadvised Series in accordance with sections 15(a) and 
15(c) of the Act and rule 18f-2 thereunder. The Sub-Advisers, subject 
to the supervision of the Adviser and oversight of the Board, determine 
the securities and other investments to be purchased, sold or entered 
into by a Subadvised Series' portfolio or a portion thereof, and will 
place orders with brokers or dealers that they select. The Adviser 
compensates each Sub-Adviser out of the fee paid to the Adviser under 
the Investment Management Agreement.
    8. If the requested order is granted, the Subadvised Series will 
inform shareholders of the hiring of a new Sub-Adviser pursuant to the 
following procedures (``Modified Notice and Access Procedures''): (a) 
Within 90 days

[[Page 77540]]

after a new Sub-Adviser is hired for any Subadvised Series, that 
Subadvised Series will send its shareholders either a Multi-manager 
Notice or a Multi-manager Notice and Multi-manager Information 
Statement; \5\ and (b) the Subadvised Series will make the Multi-
manager Information Statement available on the Web site identified in 
the Multi-manager Notice no later than when the Multi-manager Notice 
(or Multi-manager Notice and Multi-manager Information Statement) is 
first sent to shareholders, and will maintain it on that Web site for 
at least 90 days. In the circumstances described in the application, a 
proxy solicitation to approve the appointment of new Sub-Advisers 
provides no more meaningful information to shareholders than the 
proposed Multi-manager Information Statement. Applicants state that the 
Board would comply with the requirements of sections 15(a) and 15(c) of 
the Act before entering into or amending Sub-Advisory Agreements.
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    \5\ A ``Multi-manager Notice'' will be modeled on a Notice of 
Internet Availability as defined in rule 14a-16 under the Securities 
Exchange Act of 1934 (``Exchange Act''), and specifically will, 
among other things: (a) Summarize the relevant information regarding 
the new Sub-Adviser (except as modified to permit Aggregate Fee 
Disclosure as defined below); (b) inform shareholders that the 
Multi-manager Information Statement is available on a Web site; (c) 
provide the Web site address; (d) state the time period during which 
the Multi-manager Information Statement will remain available on 
that Web site; (e) provide instructions for accessing and printing 
the Multi-manager Information Statement; and (f) instruct the 
shareholder that a paper or email copy of the Multi-manager 
Information Statement may be obtained, without charge, by contacting 
the Subadvised Series. A ``Multi-manager Information Statement'' 
will meet the requirements of Regulation 14C, Schedule 14C and Item 
22 of Schedule 14A under the Exchange Act for an information 
statement, except as modified by the order to permit Aggregate Fee 
Disclosure. Multi-manager Information Statements will be filed with 
the Commission via the EDGAR system.
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    9. Applicants also request an order exempting the Subadvised Series 
from certain disclosure obligations that may require each Subadvised 
Series to disclose fees paid by the Adviser to each Sub-Adviser. 
Applicants seek relief to permit each Subadvised Series to disclose (as 
a dollar amount and a percentage of the Subadvised Series' net assets): 
(a) The aggregate fees paid to the Adviser and any Wholly-Owned Sub-
Advisers, (b) the aggregate fees paid to Non-Affiliated Sub-Advisers, 
and (c) the fee paid to each Affiliated Sub-Adviser (collectively, the 
``Aggregate Fee Disclosure''). An exemption is requested to permit the 
Subadvised Series to include only the Aggregate Fee Disclosure. All 
other items required by section 6-07(2)(a), (b), and (c) of Regulation 
S-X will be disclosed.

Applicants' Legal Analysis

    1. Section 15(a) of the Act states, 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 
contract, whether with such registered company or with an investment 
adviser of such registered company, has been approved by the vote of a 
majority of the outstanding voting securities of such registered 
company.'' Rule 18f-2 under the Act provides that each series or class 
of stock in a series investment company affected by a matter must 
approve that matter if the Act requires shareholder approval.
    2. Form N-1A is the registration statement used by open-end 
investment companies. Item 19(a)(3) of Form N-1A requires a registered 
investment company to disclose in its statement of additional 
information the method of computing the ``advisory fee payable'' by the 
investment company, including the total dollar amounts that the 
investment company ``paid to the adviser (aggregated with amounts paid 
to affiliated advisers, if any), and any advisers who are not 
affiliated persons of the adviser, under the investment advisory 
contract for the last three fiscal years.''
    3. Rule 20a-1 under the Act requires proxies solicited with respect 
to a registered investment company to comply with Schedule 14A under 
the Exchange Act. Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 
22(c)(9) of Schedule 14A, 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,'' a 
description of the ``aggregate amount of the investment adviser's 
fee,'' 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.
    4. Regulation S-X sets forth the requirements for financial 
statements required to be included as part of a registered investment 
company's registration statement and shareholder reports filed with the 
Commission. Sections 6-07(2)(a), (b), and (c) of Regulation S-X require 
a registered investment company to include in its financial statement 
information about the investment advisory fees.
    5. Section 6(c) of the Act provides that the Commission by order 
upon application may conditionally or unconditionally exempt any 
person, security, or transaction or any class or classes of persons, 
securities, or transactions from any provisions of the Act, or from any 
rule thereunder, 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. 
Applicants state that their requested relief meets this standard for 
the reasons discussed below.
    6. Applicants assert that the shareholders expect the Adviser, 
subject to the review and approval of the Board, to select the Sub-
Advisers who are in the best position to achieve the Subadvised Series' 
investment objective. Applicants assert that, from the perspective of 
the shareholder, the role of the Sub-Adviser is substantially 
equivalent to the role of the individual portfolio managers employed by 
an investment adviser to a traditional investment company. Applicants 
believe that permitting the Adviser to perform the duties for which the 
shareholders of the Subadvised Series are paying the Adviser--the 
selection, supervision and evaluation of the Sub-Advisers--without 
incurring unnecessary delays or expenses is appropriate in the interest 
of the Subadvised Series' shareholders and will allow such Subadvised 
Series to operate more efficiently. Applicants state that the 
Investment Management Agreement will continue to be fully subject to 
section 15(a) of the Act and rule 18f-2 under the Act and approved by 
the Board, including a majority of the Independent Board Members, and 
by the shareholders of the relevant Series in the manner required by 
sections 15(a) and 15(c) of the Act. Applicants are not seeking an 
exemption with respect to the Investment Management Agreement.
    7. Applicants assert that disclosure of the individual fees that 
the Adviser would pay to the Sub-Advisers of Subadvised Series that 
operate under the multi-manager structure described in the application 
would not serve any meaningful purpose. Applicants contend that the 
primary reasons for requiring disclosure of individual fees paid to 
Sub-Advisers are to inform shareholders of expenses to be charged by a 
particular Subadvised Series and to enable shareholders to compare the 
fees to those of other comparable investment companies. Applicants 
believe that the requested relief satisfies these objectives because 
the advisory fee paid to the Adviser will be fully disclosed and 
therefore, shareholders will know what the Subadvised Series' fees and 
expenses are and will be able to compare the advisory fees a Subadvised 
Series is charged to those of other

[[Page 77541]]

investment companies. Applicants assert that the requested disclosure 
relief would benefit shareholders of the Subadvised Series because it 
would improve the Adviser's ability to negotiate the fees paid to Sub-
Advisers. Applicants state that the Adviser may be able to negotiate 
rates that are below a Sub-Adviser's ``posted'' amounts if the Adviser 
is not required to disclose the Sub-Advisers' fees to the public. 
Applicants submit that the relief requested to use Aggregate Fee 
Disclosure will encourage Sub-Advisers to negotiate lower sub-advisory 
fees with the Adviser if the lower fees are not required to be made 
public.
    8. For the reasons discussed above, applicants submit that the 
requested relief meets the standards for relief under section 6(c) of 
the Act. Applicants state that the operation of the Subadvised Series 
in the manner described in the application must be approved by 
shareholders of a Subadvised Series before that Subadvised Series may 
rely on the requested relief. In addition, applicants state that the 
proposed conditions to the requested relief are designed to address any 
potential conflicts of interest, including any posed by the use of 
Wholly-Owned Sub-Advisers, and provide that shareholders are informed 
when new Sub-Advisers are hired. Applicants assert that conditions 6, 
7, 10 and 11 are designed to provide the Board with sufficient 
independence and the resources and information it needs to monitor and 
address any conflicts of interest. Applicants state that, accordingly, 
they believe the requested relief 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' Conditions

    Applicants agree that any order granting the requested relief will 
be subject to the following conditions: \6\
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    \6\ Applicants will comply with conditions 7, 8, 9 and 12 only 
if they rely on the relief that would allow them to provide 
Aggregate Fee Disclosure.
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    1. Before a Subadvised Series may rely on the order requested in 
the Application, the operation of the Subadvised Series in the manner 
described in this Application, including the hiring of Wholly-Owned 
Sub-Advisers, will be, or has been, approved by a majority of the 
Subadvised Series' outstanding voting securities as defined in the Act, 
or, in the case of a new Subadvised Series whose public shareholders 
purchase shares on the basis of a prospectus containing the disclosure 
contemplated by condition 2 below, by the sole initial shareholder 
before offering the Subadvised Series' shares to the public.
    2. The prospectus for each Subadvised Series will disclose the 
existence, substance, and effect of any order granted pursuant to this 
Application. Each Subadvised Series will hold itself out to the public 
as employing the multi-manager structure described in this Application. 
Each prospectus will prominently disclose that the Adviser has the 
ultimate responsibility, subject to oversight by the Board, to oversee 
the Sub-Advisers and recommend their hiring, termination and 
replacement.
    3. The Adviser will provide general management services to a 
Subadvised Series, including overall supervisory responsibility for the 
general management and investment of the Subadvised Series' assets. 
Subject to review and approval of the Board, the Adviser will (a) set a 
Subadvised Series' overall investment strategies, (b) evaluate, select, 
and recommend Sub-Advisers to manage all or a portion of a Subadvised 
Series' assets, and (c) implement procedures reasonably designed to 
ensure that Sub-Advisers comply with a Subadvised Series' investment 
objective, policies and restrictions. Subject to review by the Board, 
the Adviser will (a) when appropriate, allocate and reallocate a 
Subadvised Series' assets among multiple Sub-Advisers; and (b) monitor 
and evaluate the performance of Sub-Advisers.
    4. A Subadvised Series will not make any Ineligible Sub-Adviser 
Changes without such agreement, including the compensation to be paid 
thereunder, being approved by the shareholders of the applicable 
Subadvised Series.
    5. Subadvised Series will inform shareholders of the hiring of a 
new Sub-Adviser within 90 days after the hiring of the new Sub-Adviser 
pursuant to the Modified Notice and Access Procedures.
    6. At all times, at least a majority of the Board will be 
Independent Board Members, and the selection and nomination of new or 
additional Independent Board Members will be placed within the 
discretion of the then-existing Independent Board Members.
    7. Independent Legal Counsel, as defined in rule 0-1(a)(6) under 
the Act, will be engaged to represent the Independent Board Members. 
The selection of such counsel will be within the discretion of the 
then-existing Independent Board Members.
    8. The Adviser will provide the Board, no less frequently than 
quarterly, with information about the profitability of the Adviser on a 
per Subadvised Series basis. The information will reflect the impact on 
profitability of the hiring or termination of any sub-adviser during 
the applicable quarter.
    9. Whenever a sub-adviser is hired or terminated, the Adviser will 
provide the Board with information showing the expected impact on the 
profitability of the Adviser.
    10. Whenever a sub-adviser change is proposed for an Affiliated 
Sub-Adviser or Wholly-Owned Sub-Adviser to a Subadvised Series, the 
Board, including a majority of the Independent Board Members, will make 
a separate finding, reflected in the Board minutes, that such change is 
in the best interests of the Subadvised Series and its shareholders, 
and does not involve a conflict of interest from which the Adviser or 
the Affiliated Sub-Adviser or the Wholly-Owned Sub-Adviser derives an 
inappropriate advantage.
    11. No Board Member or officer of a Subadvised Series, or partner, 
director, manager, or officer of the Adviser, will own directly or 
indirectly (other than through a pooled investment vehicle that is not 
controlled by such person), any interest in a Sub-Adviser, except for 
(i) ownership of interests in the Adviser or any entity, other than a 
Wholly-Owned Sub-Adviser, that controls, is controlled by, or is under 
common control with the Adviser; or (ii) 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 Sub-Adviser or an entity that 
controls, is controlled by or is under common control with a Sub-
Adviser.
    12. Each Subadvised Series will disclose the Aggregate Fee 
Disclosure in its registration statement.
    13. In the event the Commission adopts a rule under the Act 
providing substantially similar relief to that requested in the 
Application, the requested order will expire on the effective date of 
that rule.
    14. Any new Sub-Advisory Agreement or any amendment to a Subadvised 
Series' existing Investment Management Agreement or Sub-Advisory 
Agreement that directly or indirectly results in an increase in the 
aggregate advisory fee rate payable by the Subadvised Series will be 
submitted to the Subadvised Series' shareholders for approval.


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    For the Commission, by the Division of Investment Management, 
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-30129 Filed 12-23-14; 8:45 am]
BILLING CODE 8011-01-P