[Federal Register: November 21, 2007 (Volume 72, Number 224)]
[Notices]
[Page 65630-65631]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21no07-103]
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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 28047; 813-367]
Kiewit Investment Fund LLLP; Notice of Application
November 15, 2007.
AGENCY: Securities and Exchange Commission (``Commission'').
ACTION: Notice of an application for an order under section 6(b) of the
Investment Company Act of 1940 (the ``Act'').
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Summary of the Application: Applicant requests an order that would
amend a prior order (``Prior Order'') \1\ to expand the class of
persons eligible to purchase and hold shares of an employees'
securities company to include certain specified immediate family
members and grandchildren of eligible employees. In addition, the order
would permit certain trusts and other investment vehicles formed for
the benefit of lineal descendants of eligible employees to purchase and
hold shares of the employees' securities company.
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\1\ Peter Kiewit Sons', Inc. and Kiewit Investment Fund LLLP,
Investment Company Act Release Nos. 27066 (Sept. 14, 2005) (notice)
and 27115 (Oct. 12, 2005) (order).
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Applicant: Kiewit Investment Fund LLLP (the ``Fund'').
Filing Dates: The application was filed on July 10, 2007, and
amended on November 13, 2007.
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 applicant with a copy of the request, personally
or by mail. Hearing requests should be received by the Commission by
5:30 p.m. on December 10, 2007, and should be accompanied by proof of
service on applicant, 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: Secretary, U.S. Securities and Exchange Commission, 100 F
Street, NE., Washington, DC 20549-1090. Applicant, Robert L. Giles,
Jr., Chief Executive Officer, Kiewit Investment Fund LLLP, 73 Tremont
Street, Boston, Massachusetts 02108.
FOR FURTHER INFORMATION CONTACT: Shannon Conaty, Senior Counsel, at
(202) 551-6827 or Janet M. Grossnickle, 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 for a fee at the
Commission's Public Reference Desk, 100 F Street, NE., Washington, DC
20549-0102 (tel. (202) 551-5850).
Applicant's Representations
1. The Fund, a Delaware limited liability limited partnership, is
registered under the Act as a non-diversified, closed-end management
investment company, and at all times operates as an ``employees'
securities company'' within the meaning of section 2(a)(13) of the Act.
The Fund is designed as a long-term investment vehicle for current and
former employees and their immediate family members of Peter Kiewit
Sons', Inc. (``Kiewit'') and its affiliated companies. Kiewit, a
Delaware corporation, is a large construction contractor operating
primarily in the North American market that provides construction
services to a broad range of public and private customers.
2. Pursuant to the Prior Order, units of limited partnership
interests of the Fund (``Units'') may be purchased only by Eligible
Holders. Eligible Holders consist of (i) current and former employees
or persons on retainer of the Kiewit Group,\2\ within the meaning of
section 2(a)(13) of the Act (``Eligible Employees''); (ii) board
directors retained by the Fund (``Directors''); (iii) immediate family
members, within the meaning of section 2(a)(13) of the Act, of such
Directors or Eligible Employees; or (iv) members of the Kiewit Group.
Units are offered pursuant to offerings registered under the Securities
Act of 1933, as amended (the ``Securities Act'').
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\2\ The term ``Kiewit Group'' refers to Kiewit and any
affiliated company of Kiewit of which Kiewit is an affiliated
company, as defined in section 2(a)(2) of the Act.
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3. Under the terms of the Prior Order, the Fund has in the past
limited investment to those individuals who constitute immediate family
members, within the meaning of section 2(a)(13) of the Act, of Eligible
Employees and Directors of the Fund. Applicant proposes to amend the
Prior Order solely to the extent necessary to expand the class of
immediate family members of Eligible Employees and Directors who may
invest in the Fund to include any parent, spouse of a parent, child,
spouse of a child, spouse, brother, sister or grandchild of such
Eligible Employee or Director (including step and adoptive
relationships), regardless of whether such person currently resides
with or is a dependent of such Eligible Employee or Director
(``Eligible Family Members''). In addition, Applicant seeks to amend
the Prior Order solely to the extent necessary to permit Units to be
offered and sold to (i) certain trusts and other investment vehicles
(including self-directed retirement plan vehicles such as individual
retirement accounts) of which the trustees and/or grantors are Eligible
Employees or Directors or that were established solely for the benefit
of Eligible Employees or Directors or their Eligible Family Members, or
for the benefit of other more distant lineal descendants, including
great-grandchildren, of Eligible Employees or Directors (including, in
each case, step and adoptive relationships), and (ii) partnerships,
corporations or other entities of which at least a majority of the
voting power is controlled by Eligible Employees or Directors
(collectively clauses (i) and (ii), ``Qualified Investment Vehicles'').
Such Qualified Investment Vehicles also shall constitute Eligible
Holders to which Units may be transferred with the prior written
consent of the Fund, provided that, as a result of such transfer, the
Fund would not cease to be an
[[Page 65631]]
employees' securities company under the Act.\3\
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\3\ The inclusion of entities controlled by an Eligible Employee
or Director in the definition of Eligible Holder is intended to
enable Eligible Employees and Directors and their Eligible Family
Members to make investments in the Fund through private investment
vehicles for the purpose of personal and family investment and
estate planning objectives. Eligible Employees and Directors will
exercise investment discretion and control over these investment
vehicles, thereby creating a close nexus between Kiewit and these
investment vehicles.
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Applicant's Legal Analysis
1. Section 6(b) of the Act provides, in part, that the Commission
will exempt employees' securities companies from the provisions of the
Act to the extent that the exemption is consistent with the protection
of investors. Section 2(a)(13) defines an employees' securities company
as any investment company all of whose securities (other than short-
term paper) are beneficially owned (a) by current or former employees,
or persons on retainer, of one or more affiliated employers, (b) by
immediate family members of such persons, or (c) by such employer or
employers together with any of the persons in (a) or (b).
2. Applicant requests an order under section 6(b) of the Act to
amend the Prior Order solely to the extent necessary to permit the Fund
to expand the class of persons eligible to purchase and hold Units of
the Fund, an employees' securities company, to include any individual
that is covered by the term ``member of the immediate family'' in
section 2(a)(19) of the Act, as well as grandchildren, of Eligible
Employees and Directors. In addition, the amended order would permit
certain trusts and other investment vehicles formed for the benefit of
lineal descendants of Eligible Employees and Directors to purchase and
hold Units of the Fund. For the reasons discussed below, applicant
believes that the requested exemption pursuant to section 6(b) is
consistent with the protection of investors and the purposes of the
Act.
3. Applicant states that an employees' securities company is a
labor-related entity that exists primarily to promote the economic
welfare of its employee-investors. Applicant states that the requested
relief would permit Eligible Employees and Directors to achieve certain
tax and economic goals through the effective use of estate planning and
retirement tools. Applicant states that the requested relief is
consistent with the protection of investors because permitting Eligible
Family Members of Eligible Employees and Directors to invest in the
Fund, and Qualified Investment Vehicles to purchase and hold Units,
would preserve the status of the Fund as an entity designed primarily
to promote the economic welfare of Eligible Employees and Directors.
Applicant further states that the permitting the Fund to directly offer
and sell Units to Qualified Investment Vehicles eases the burden of
administering the Fund and provides a means for certain such vehicles
to hold Units. The participation of Qualified Investment Vehicles
generally will result in cost savings and tax efficiencies for Eligible
Employees, Directors and their Eligible Family Members. Moreover,
Applicant notes that the Fund is registered under the Act, operates in
compliance with all applicable provisions of the Act (other than
section 15(a) to the extent it received relief in the Prior Order) and
offers and sells its Units pursuant to offerings registered under the
Securities Act.
For the Commission, by the Division of Investment Management,
pursuant to delegated authority.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-22736 Filed 11-20-07; 8:45 am]
BILLING CODE 8011-01-P