[Federal Register Volume 87, Number 168 (Wednesday, August 31, 2022)]
[Notices]
[Pages 53533-53536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18760]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 34688; 812-15226]


Capital Southwest Corporation

August 25, 2022.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

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    Notice of an application under section 6(c) of the Investment 
Company Act of 1940 (the ``Act'') for an exemption from section 
12(d)(3) of the Act.

Summary of Application:  Applicant requests an order to permit a 
business development company (``BDC'') to organize, acquire, and 
wholly-own a portfolio company that intends to operate as an investment 
adviser registered under the Investment Advisers Act of 1940 (the 
``Advisers Act'').

Applicant:  Capital Southwest Corporation (the ``Company'' or 
``Applicant'').

Filing Dates:  The application was filed on April 30, 2021, and amended 
on September 1, 2021, February 28, 2022, and May 31, 2022.

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 emailing the Commission's 
Secretary at [email protected] and serving Applicant

[[Page 53534]]

with a copy of the request, by email. Hearing requests should be 
received by the Commission by 5:30 p.m. on September 19, 2022 and 
should be accompanied by proof of service on the applicant, 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 emailing the Commission's Secretary at [email protected].

Addresses:  The Commission: [email protected]. Applicant: 
Michael S. Sarner, Chief Financial Officer, Secretary and Treasurer, 
Capital Southwest Corporation at [email protected].

FOR FURTHER INFORMATION CONTACT: Kieran G. Brown, Senior Counsel, or 
Kaitlin C. Bottock, Branch Chief, at (202) 551-6825 (Division of 
Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION: For Applicants' representations, legal 
analysis, and conditions, please refer to Applicants' first amended and 
restated application, dated March 17, 2022, which may be obtained via 
the Commission's website by searching for the file number at the top of 
this document, or for an Applicant using the Company name search field, 
on the SEC's EDGAR system. The SEC's EDGAR system may be searched at 
https://www.sec.gov/edgar/searchedgar/legacy/companysearch.html. You 
may also call the SEC's Public Reference Room at (202) 551-8090.

Company and Adviser Sub

    1. The Company is a Texas corporation that operates as an 
internally managed, non-diversified, closed-end management investment 
company. The Company has elected to be regulated as a BDC under the 
Act. The Company's investment objective is to produce attractive risk-
adjusted returns by generating current income from its debt investments 
and capital appreciation from its equity and equity related 
investments. The Company's investment strategy is to partner with 
business owners, management teams and financial sponsors to provide 
flexible financing solutions to fund growth, changes of control, or 
other corporate events.
    2. Capital Southwest Asset Management LLC (``Adviser Sub'') was 
formed as a limited liability company under the laws of the State of 
Delaware and will be a direct or an indirect wholly owned portfolio 
company of the Company.\1\ As discussed below, the Adviser Sub intends 
to operate as an investment adviser registered with the Commission 
under the Advisers Act.\2\ The Company expects the Adviser Sub to 
receive fees in connection with its management of one or more 
privately-offered pooled investment vehicles, registered management 
investment companies, BDCs, and/or investment accounts (collectively, 
``Managed Accounts'') similar to those received by comparable 
investment advisers.
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    \1\ Adviser Sub will be a wholly owned portfolio company of the 
Company and will also fall within the definition of ``wholly owned 
subsidiary'' for purposes of section 2(a)(43) of the Act.
    \2\ Adviser Sub has been formed, but it does not intend to 
commence operations unless and until the relief requested in the 
application has been granted.
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    3. The Company is, and the Adviser Sub will be, directly or 
indirectly overseen by the Company's seven-member Board of Directors 
(the ``Board''), of whom six are not considered ``interested persons'' 
of the Company within the meaning of section 2(a)(19) of the Act. In 
its capacity as the Board of the Advisers Sub's parent company, the 
Board will indirectly oversee the Adviser Sub.
    4. The Company has elected to be treated for U.S. federal income 
tax purposes, and intends to qualify annually, as a regulated 
investment company (``RIC'') under Subchapter M of the Internal Revenue 
Code of 1986, as amended (the ``Code''). Applicant states that as a 
RIC, the Company generally will not pay corporate-level federal income 
taxes on any net ordinary income or capital gains that it distributes 
to its stockholders as dividends in accordance with the timing 
requirements of the Code. To maintain its RIC status, the Company must, 
among other things, meet specified source-of-income requirements. 
Applicant states that the Company will satisfy the source-of-income 
test for purposes of qualifying as a RIC if it derives in each taxable 
year at least 90% of its gross income from dividends, interest, 
payments with respect to certain securities loans, gains from the sale 
of stock or other securities or currencies, net income from certain 
``qualified publicly traded partnerships'' (as defined in the Code) or 
other income derived with respect to its business of investing in such 
stock, securities or currencies (income from such sources, ``Good RIC 
Income'').
    5. Applicant states that fee income received in connection with the 
provision of services to the Managed Accounts generally would not 
constitute Good RIC Income to the Company if it earned such income 
directly. Therefore, in order for the Company to maintain its RIC 
status while receiving the income from the provision of advisory 
services to the Managed Accounts, the Company believes that it is in 
the best interests of the Company and its shareholders for the Adviser 
Sub to provide advisory services to and to receive fees from the 
Managed Accounts instead of the Company providing such services and 
receiving such fees directly.
    6. Under the Advisers Act, an investment adviser is generally 
required to be registered if it has $100 million or more of regulatory 
assets under management.\3\ An investment adviser may also register 
under the Advisers Act in compliance with rule 203A-2(c)(1) of the 
Advisers Act if it expects to be eligible to register an as adviser 
within 120 days of registering. Applicant states that the Adviser Sub 
will register as an investment adviser under the Advisers Act in 
compliance with rule 203A-2(c)(1) of the Advisers Act after the relief 
requested in the application is granted to the Company because the 
Adviser Sub expects to have $100 million or more of regulatory assets 
under management within 120 days of such registration.
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    \3\ In addition, an investment adviser to an investment company 
registered under the Act or to a company that has elected to be a 
BDC with $25 million or more of regulatory assets under management 
would also be required to register under the Advisers Act. 
Applicants state that the Adviser Sub also may act as an investment 
adviser to an an investment company registered under the Act or to a 
company that has elected to be a BDC with $25 million or more of 
regulatory assets under management after the relief requested is 
granted.
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Applicable Law

    1. Section 12(d)(3) makes it unlawful for any registered investment 
company, and any company controlled by a registered investment company, 
to acquire any interest in the business of a person who is either an 
investment adviser of an investment company or an investment adviser 
registered under the Advisers Act, unless (a) such person is a 
corporation all the outstanding securities of which are owned by one or 
more registered investment companies; and (b) such person is primarily 
engaged in the business of underwriting and distributing securities 
issued by other persons, selling securities issued by other persons, 
selling securities to customers, or any one or more of such or related 
activities, and the gross income of such person normally is derived 
principally from such business or related activities. Section 60 of the 
Act states that section 12 shall apply to a BDC to the same extent as 
if it were

[[Page 53535]]

a registered closed-end investment company.
    2. Section 6(c) of the Act provides that the Commission may exempt 
any person or transaction from any provision of the Act if and to the 
extent that 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.

Applicant's Legal Analysis

    1. Applicant represents that the Company will own 100% of the 
equity interests in the Adviser Sub. However, Applicant states that it 
is not expected that the Adviser Sub would also be a broker-dealer that 
is primarily engaged in the business of underwriting and distributing 
securities issued by other persons. The ownership of the Adviser Sub, 
at such point as it becomes registered as an investment adviser, could 
thus cause the Company to be in violation of the provisions of section 
12(d)(3) unless the requested Order is issued.\4\ In addition, the 
Company expects that after the relief requested in the application is 
granted the Adviser Sub will act as an investment adviser to investment 
companies. To the extent it does so, relief from section 12(d)(3) is 
also required because the Adviser Sub acting as an investment adviser 
of an investment company would result in the Company acquiring a 
security of an investment adviser of an investment company. Therefore, 
Applicant requests the Order pursuant to section 6(c) of the Act 
granting an exemption from the provisions of section 12(d)(3) of the 
Act, to the extent necessary in order to permit the Company to 
organize, acquire, and wholly own the securities of the Adviser Sub.
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    \4\ Rule 12d3-1(a) and (b) under the Act each provides limited 
relief from the restrictions of section 12(d)(3) if the acquired 
company derives 15 percent or less of its gross revenues from 
securities related activities (as defined in the rule) or the 
acquiring company owns not more than five percent of the outstanding 
securities of that class of the acquired company's equity 
securities. The Company does not believe that it may rely on this 
relief with respect to its investment in Adviser Sub, since the 
Company expects that a significant portion of the Adviser Sub's 
gross revenues will be derived from securities related activities 
and the Company will own all of the outstanding securities of the 
Adviser Sub.
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    2. Applicant states that section 12(d)(3) was intended to: (a) 
limit the risk of a registered investment company's exposure to the 
entrepreneurial risks, or general liabilities, that are peculiar to 
securities-related businesses; and (b) prevent potential conflicts of 
interest and reciprocal practices between investment companies and 
securities-related businesses. Applicant submits that the Company's 
ownership and control of the Adviser Sub does not present the concerns 
against which section 12(d)(3) was intended to safeguard.
    3. Applicant states that much of the concern regarding 
entrepreneurial risks stemmed from the fact that when section 12(d)(3) 
was adopted, most securities-related businesses were organized as 
privately held general partnerships. As a result, an investment in such 
a company would expose an investment company to the unlimited 
liabilities of a general partner. Applicant notes that today's 
financial services industry is subject to a much more robust body of 
regulation, which contributes to a more conservative risk profile for 
those companies that comprise the industry. Moreover, Applicant states 
that the risks presented by the form of organization of a securities-
related business are no longer as germane as they were at the time of 
the adoption of section 12(d)(3) because many formerly closely-held 
securities-related businesses have reorganized into corporate forms 
that are characterized by limited liability. Applicant asserts in 
particular that the Company's shareholders are not exposed to the risk 
of unlimited liability associated with an interest in the Adviser Sub 
because they are insulated by a layer of liability protection between 
the Adviser Sub and the Company, as the Adviser Sub is a separate 
entity and is structured as a limited liability company, not a 
partnership.
    4. Applicant also submits that the Company will own 100% of the 
equity interests in the Adviser Sub and, as a result, will exercise 
total control over the strategic direction of the Adviser Sub, 
including the power to control the policies that affect the Company and 
to protect the Company from potential conflicts of interest and 
reciprocal practices. Moreover, as a wholly owned portfolio company and 
the sole shareholder of the Adviser Sub, the Adviser Sub and the 
Company will generally have aligned interests.
    5. Applicant states that the Company will adopt policies and 
procedures with respect to the Adviser Sub designed to ensure that the 
Company and the Adviser Sub are both being operated and managed in the 
best interests of the Company's shareholders and that the ownership by 
the Company of the Adviser Sub is consistent with the purposes fairly 
intended by the policy and provisions of the Act.\5\ Applicant states 
that the Company and the Adviser Sub will adopt policies and procedures 
to address potential conflicts of interest, including but not limited 
to policies and procedures that govern the allocation of expenses, 
personal securities trading, and insider trading and confidentiality of 
proprietary information.
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    \5\ Applicant represents that the Adviser Sub's borrowings, if 
any, would be used only for its own legitimate business purposes, 
and would not be used directly or indirectly by the Company for its 
business purposes unrelated to the Adviser Sub, and that the Company 
will adopt procedures to ensure Board oversight of compliance with 
this representation.
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    6. Applicant notes that the Company and the Managed Accounts may 
invest in the same securities or different securities of the same 
issuer to the extent consistent with applicable law, regulatory 
guidance, or any exemptive order obtained by the Company. The Company 
and the Adviser Sub will implement policies and procedures that will 
govern the allocation of investment opportunities when investment 
advisory personnel of the Company and/or Adviser Sub become aware of 
investment opportunities that may be appropriate for the Company and 
one or more Managed Accounts.
    7. Applicant states that the Company's proposal to enter into the 
advisory business through a wholly owned and controlled portfolio 
company will benefit the Company's shareholders by: (a) allowing them 
to share in the profits from the new advisory business; (b) allowing 
that advisory business to be more marketable than if the services were 
provided by the Company itself; and (c) limiting any potential 
liabilities arising from Adviser Sub's provision of advisory services. 
In addition, the growth in the Company's advisory business through the 
Adviser Sub will enable the Company to add advisory personnel that it 
could not on its own, such as additional portfolio managers and 
investment analysts, who will be available to provide advisory services 
both to the Company and to the Managed Accounts of the Adviser Sub and 
further enhance the experience and relationships of the Company's 
investment team. Without the growth of the Company's advisory business 
through the Adviser Sub, the Company would not have the ability to 
support such additional advisory personnel. Applicant also states that 
the Adviser Sub's organization as a wholly owned portfolio company of 
the Company and registration as an investment adviser would permit the 
Adviser Sub to operate the business of managing the Managed Accounts as 
a direct or an indirect wholly owned taxable portfolio company of the 
Company, thereby protecting the Company's RIC status.

[[Page 53536]]

    8. Applicant represents that the Company's Board, including a 
majority of the disinterested directors, found that the Company 
organizing, acquiring, and wholly owning 100% of the equity interest in 
the Adviser Sub subsequent to its registration as an investment adviser 
is in the best interests of the Company and its shareholders. Applicant 
agrees that the Board will review at least annually the investment 
advisory business of the Adviser Sub to determine whether such business 
should be continued and whether the benefits derived by the Company 
from the Adviser Sub's business warrant the continued ownership of the 
Adviser Sub. Applicant states that shareholders of the Company will be 
provided with notice, in advance of, or concurrent with, the Adviser 
Sub's start of investment advisory activities.
    9. Accordingly, Applicant represents that the requested relief is 
both necessary and 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.

Applicant's Conditions

    Applicant agrees that the Order of the Commission granting the 
requested relief shall be subject to the following conditions:
    1. The determination to enter into the advisory business through 
the Adviser Sub has been made by a vote of at least a majority of the 
Board who are not ``interested persons'' of the Company as defined in 
section 2(a)(19).
    2. The Company will wholly own and control the Adviser Sub. The 
Company will not have an investment adviser within the meaning of 
section 2(a)(20). Only persons acting in their capacities as directors, 
officers or employees of the Company will provide advisory services to 
the Company.
    3. In each of its annual reports to shareholders and in future 
registration statements, the Company will discuss the existence of the 
Adviser Sub and the provision by the Adviser Sub of outside advisory 
services as well as include an assessment of whatever risks, if any, 
are associated with the existence of the Adviser Sub and its provision 
of such services.
    4. The Adviser Sub will not make any proprietary investment that 
the Company would be prohibited from making directly under the 
Company's investment objectives, policies and restrictions or under any 
applicable law.
    5. In assessing compliance with the asset coverage requirements 
under section 18 of the Act, the Company will deem the assets, 
liabilities, and indebtedness of the Adviser Sub as its own.
    6. The Board will review at least annually the investment advisory 
business of the Adviser Sub to determine whether such business should 
be continued and whether the benefits derived by the Company from the 
Adviser Sub's business warrant the continued ownership of the Adviser 
Sub and, if appropriate, approve (by a vote of at least a majority of 
its directors who are not ``interested persons'' as defined in the Act) 
at least annually such continuation. In determining whether the 
investment advisory business of the Adviser Sub should be continued and 
whether the benefits derived by the Company from the Adviser Sub's 
business warrant the continued ownership of the Adviser Sub, the Board 
will take into consideration, among other things, the following: (a) 
the compensation of the officers of the Company and of the Adviser Sub; 
(b) all investments by and investment opportunities considered for the 
Company that relate to any investments by or investment opportunities 
considered for a client of the Adviser Sub; and (c) the allocation of 
expenses associated with the provision of advisory services between the 
Company and the Adviser Sub.\6\
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    \6\ Such expenses may include: administration and operating 
expenses; investment research expenses; sales and marketing 
expenses; office space and general expenses; and direct expenses, 
including legal and audit fees, directors' fees and taxes.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-18760 Filed 8-30-22; 8:45 am]
BILLING CODE 8011-01-P


