[Federal Register Volume 62, Number 30 (Thursday, February 13, 1997)]
[Notices]
[Pages 6814-6816]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3541]


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SECURITIES AND EXCHANGE COMMISSION

[Rel No. IC-22500; International Series Release No. 1050/812-7531].


The Emerging Germany Fund Inc.; Notice of Application

February 7, 1997.
AGENCY: Securities and Exchange Commission (the ``SEC'').

ACTION: Notice of application for exemption under the Investment 
Company Act of 1940 (the ``Act'').

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APPLICANTS: The Emerging Germany Fund Inc. (the ``Fund'') and each 
other registered investment company for which RCM Capital Management, 
L.L.C. (``RCM''), Dresdner Bank AG (``Dresdner Bank'') or any of 
Dresdner Bank's other subsidiaries or affiliates may in the future 
serve as investment adviser or manager (the ``Prospective Funds'').

RELEVANT ACT SECTIONS: Order requested under section 10(f) for an 
exemption from that section.

SUMMARY OF APPLICATION: Applicants seek an order to permit them to 
purchase securities in underwritten pubic offerings in the Federal 
Republic of Germany (``Germany'') in which Dresdner Bank or one of its 
affiliates acts as a principal underwriter.

FILING DATES: The application was filed on June 1, 1990, and amended on 
January 25, 1991 and November 13, 1996.

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 March 4, 1997, 
and should be accompanied by proof of service on applicants, in the 
form of an affidavit or, for lawyers, a certificate of service.

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Hearing requests should state the nature of the writer's interest, the 
reason for the request, and the issues contested. Persons may request 
notification of a hearing by writing to the SEC's Secretary.

ADDRESSES: Secretary, SEC, 450 5th Street, N.W., Washington, D.C. 
20549. Applicants, Four Embarcadero Center, Suite 3000, San Francisco, 
California 94111.

FOR FURTHER INFORMATION CONTACT: Joseph B. McDonald, Jr., Senior 
Counsel, at (202) 942-0533, or Mary Kay Frech, 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.

Applicants' Representation

    1. The Fund, organized as a Maryland Corporation, is a non-
diversified, closed-end management investment company registered under 
the Act. The investment objective of the Fund is to seek long-term 
capital appreciation through investment in equity and equity-linked 
securities of German companies. Under normal market conditions, the 
Fund will invest at least 65% of its total assets in such securities. 
The Fund also may invest up to 35% of its total assets in equity and 
equity-linked securities of companies other than German companies.
    2. The Fund's investment adviser and manager is RCM, a limited 
liability company organized under the laws of the state of Delaware. 
Dresdner Bank, a corporation organized under the laws of Germany, owns 
100% of the outstanding voting equity securities of RCM. Dresdner Bank 
is a member of all eight of the German stock exchanges and frequently 
acts as lead manager or co-manager for underwritten public offerings of 
both debt and equity securities.
    3. The Fund and the Prospective Funds wish to participate in 
underwritten public offerings of securities in Germany in which 
Dresdner Bank or an affiliate acts as a principal underwriter. RCM is 
an ``affiliated person'' of Dresdner Bank, and the investment adviser 
or manager of each Prospective Fund will be an ``affiliated person'' of 
Dresdner Bank, in each case as the term ``affiliated person'' is 
defined in section 2(a)(3) of the Act.

Applicants' Legal Analysis

    1. Section 10(f) of the Act provides, in part, that no registered 
investment company shall knowingly purchase or otherwise acquire, 
during the existence of any underwriting or selling syndicate, any 
security a principal underwriter of which is an investment adviser of 
such registered company, or is a person of which any such investment 
adviser is an affiliated person. Because applicants' investment 
advisers and managers are affiliated with Dresdner Bank, applicants are 
prohibited from purchasing securities from an underwriting syndicate in 
which Dresdner Bank or any of its affiliates participates as a 
principal underwriter.
    2. Notwithstanding the section 10(f) prohibition, the section 
provides that the SEC may exempt conditionally or unconditionally any 
transaction or classes of transactions from any of the provisions of 
section 10(f) if and to the extent that the exemption is consistent 
with the protection of investors. Applicants believe that the granting 
of the requested exemption is consistent with the protection of 
investors.
    3. Rule 10f-3 under the Act provides that purchases of securities 
by a registered investment company otherwise prohibited by section 
10(f) are exempt from such section if certain specified conditions are 
met. Subparagraph (a)(1) of rule 10f-3 requires that the securities 
purchased be part of an issue registered under the Securities Act of 
1933 (the ``Securities Act''). Applicants intend to invest in equity 
and equity-linked securities of German companies that are not required 
to be registered under the Securities Act. Accordingly, applicants 
cannot meet the above condition. Applicants, however, represent that 
they will satisfy all other conditions of rule 10f-3 with regard to 
purchases from public offerings in Germany. In addition, applicants 
submit that all securities purchased in Germany under circumstances 
subject to section 10(f) will be purchased in public offerings 
conducted in accordance with the laws of Germany and the rules and 
regulations of the German stock exchanges, and all subject German 
issuers will have available to prospective purchasers financial 
statements, audited in accordance with the standards of Germany, for 
the two years prior to purchase.
    4. Public offerings in Germany take the form of public 
subscription, in which the underwriters invite the public or their 
customers to make offers to subscribe to the new securities, or of 
outright sale, where the underwriters acquire and resell the securities 
allotted to and subscribed to by them.\1\ With respect to subsequent 
issuances of equity or equity-linked securities of German stock 
corporations, existing shareholders generally have statutory preemptive 
rights to these securities. Subscription rights that are not exercised 
by the existing shareholders are sold on the open market.
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    \1\ Beginning in 1994, many public offerings, particularly those 
with a foreign tranche, have been conducted in accordance with the 
Anglo-American system of ``book-building,'' in which the shares are 
allocated among underwriters according to an order book established 
on the basis of a share price range announced at the commencement of 
the offering. The book building process may be used for both firm 
commitment underwritings and underwritings conducted on a ``best 
efforts'' basis.
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    5. The public offering price of a security is fixed at the time of 
initial issuance and is published in the offering prospectus. However, 
applicants represent that, theoretically, securities may be offered to 
and purchased by affiliates of issuers and underwriters as part of a 
public offering on terms more favorable than those available to 
unaffiliated offerees and subscribers in the offering. Applicants 
contend that this is unlikely to happen in practice because it makes 
the new stock less attractive to potential investors. Applicants 
represent that the German Stock Exchange Admission Regulation 
(promulgated under the German Exchange Act) and the Securities Sales 
Prospectuses Act require such a variance between the offering terms to 
affiliates and non-affiliates to be disclosed in the offering 
prospectus. Consequently, applicants will not purchase securities in 
any offering in which the offering prospectus discloses that any 
portion of the securities being sold in the offering may be sold to any 
other investor at a price more favorable than the price available to 
applicants.
    6. Applicants state that the number of subscribers participating in 
a public offering in Germany will vary significantly depending on the 
means of distribution selected in a particular offering and the nature 
of the existing trading market for an issuer's securities. Accordingly, 
securities that are admitted for trading on the official market of a 
German stock exchange may have a greater number of subscribers than 
securities admitted for trading on the regulated unlisted market due to 
the comparatively greater size of the official market. Applicants 
assert that regardless of whether the securities are admitted for 
trading on the official market or the regulated unlisted market, and 
regardless of whether the securities are purchased by public 
subscription or outright sale, a public offering is not

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limited to a few participants. Applicants will not participate in 
offerings in which the securities are not widely disseminated. 
Applicants state that securities purchased pursuant to the relief 
granted will be admitted for trading on the official market or the 
regulated unlisted market on one or more of the German stock exchanges, 
or have been approved for admission to the official or the regulated 
unlisted market but are not yet admitted or listed.
    7. For a security to be officially listed on the German stock 
exchanges, the German Exchange Act requires publication of a prospectus 
which contains all information considered material to an evaluation of 
the securities to be listed. Applicants applying for official listing 
on the exchanges must provide complete details of the issue, including 
the latest audited financial statements, and have available audited 
financial statements for the last three consecutive years. Applications 
for admission to trading in the regulated unlisted market must contain 
essentially similar information as that required for official listing, 
but in a condensed form.
    8. Applicants represent that German public offerings may be 
conducted under three principal forms: the purchase contract, the 
commission agreement, and the agency contract. With respect to initial 
public offerings conducted on a ``purchase contract'' basis, the 
underwriting banks commit to purchase all of the securities at a fixed 
price and hold them either individually or as joint owners. With 
respect to subsequent issuances of securities of existing corporations, 
such offerings conducted on a purchase contract basis also will commit 
the underwriting bank to purchase all the securities issued, including 
those subject to preemptive rights, at a fixed price. Accordingly, the 
underwriting banks fully assume the risk of not finding sufficient 
third party purchasers for the securities subscribed under a purchase 
agreement. Under a ``commission agreement,'' the banks are commission 
agents and sell the issue to investors in their name, but for the 
account of the issuer, whereas with an ``agency contract,'' the banks 
sell the securities as representatives of the issuer in the name and 
for the account of the issuer. In either a ``commission agreement'' or 
an ``agency contract,'' the marketing risk generally remains with the 
issuer. Because clause (3) of paragraph (a) of rule 10f-3 requires the 
underwriters to purchase all the securities being offered (except those 
purchased by others pursuant to a rights offering), applicants 
undertake not to purchase securities in any offering in which the 
offering prospectus discloses that the securities are subject to a 
``commission agreement'' or ``agency contract'' rather than a 
``purchase contract.''
    9. The only condition of rule 10f-3 that applicants cannot satisfy 
is that the securities will be registered under the Securities Act. 
Applicants assert that this registration requirement is largely a by-
product of the requirement that the investment company purchase the 
securities at the public offering price (which ordinarily would not 
exist absent registration). In addition, registration tends to indicate 
that the securities were issued more or less in the ``ordinary course'' 
of business. Applicants note that the registration requirement appears 
in the same subparagraph as the requirements that a registered 
investment company purchase the securities in a firm commitment 
underwriting, on the first day of the public offering, and for no more 
than the public offering price, indicating that registration is closely 
related to these requirements. Applicants believe that purchasing the 
securities at issue pursuant to a public offering conducted in 
accordance with German law, together with a requirement that audited 
financial statements for the previous two years be available to all 
prospective purchasers, provides an adequate substitute for the 
registration requirement. The availability of such financial 
statements, as well as other disclosure required of issuers under 
German law, provide RCM with sufficient information to make informed 
investment decisions. Taken together with the requirement that 
securities subject to section 10(f) be purchased in public offerings 
conducted in accordance with German law, investors can be assured that 
the securities are issued in the ``ordinary course'' of business. In 
light of these requirements, as well as the protection afforded by the 
other provisions of rule 10f-3, applicants believe that such purchases 
will not raise any of the concerns addressed by section 10(f) and that 
applicants' shareholders will be adequately protected.
    10. In light of the foregoing, applicants request that an order be 
entered, pursuant to section 10(f), exempting applicants on the 
conditions set forth below to permit purchases of securities in public 
offerings in Germany in which Dresdner Bank or any of its affiliates 
participates as a principal underwriter.

Applicants' Conditions

    Applicants agree that the order granting the requested relief shall 
be subject to the following conditions:
    1. With the exception of paragraph (a)(1) of rule 10f-3, all other 
conditions set forth in rule 10f-3 will be satisfied.
    2. The foreign securities subject to section 10(f) will be 
purchased in a public offering conducted in accordance with the laws of 
Germany and the rules and regulations of the German stock exchanges.
    3. All subject German issuers will have available to prospective 
purchasers financial statements, audited in accordance with the 
standards of Germany, for the two years prior to the purchase.
    4. The securities purchased are admitted for trading on the 
official market or the regulated unlisted market on one or more of the 
German stock exchanges, or have been approved for admission to the 
official or the regulated unlisted market but are not yet admitted or 
listed.

    For the SEC, by the Division of Investment Management, under 
delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 97-3541 Filed 2-12-97; 8:45 am]
BILLING CODE 8010-01-M