Bear Creek Inc.; Notice of Application

AGENCY:

Securities and Exchange Commission (“SEC”).

ACTION:

Notice of application for exemption under the Investment Advisers Act of 1940 (“Advisers Act”)

Applicant: Bear Creek Inc.

Relevant Advisers Act Sections: Exemption requested under section 202(a)(11)(F) from section 202(a)(11).

SUMMARY OF APPLICATION:

Applicant requests an order declaring it to be a person not within the intent of section 202(a)(11), which defines the term “investment adviser”.

FILING DATES:

The application was filed on December 23, 1999 and amended on November 20, 2000 and March 8, 2001.

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 Applicant with a copy of the request, personally or by mail. Hearing requests should be received by the SEC by 5:30 p.m. on April 3, 2001 and should be accompanied by proof 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 may request notification of a hearing buy writing to the SEC's Secretary.

ADDRESSES:

Secretary, SEC, 5th Street, NW., Washington, DC 20549. Applicant, Bear Creek Inc., P.O. Box 4742, 125 Pearl Street, Suite 22, Jackson, Wyoming 83001.

FOR FURTHER INFORMATION CONTACT:

Marticha L. Cary, Attorney, or Jennifer L. Sawin, Assistant Director, at (202) 942-0716 (Division of Investment Management, Office of Investment Adviser 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.

Applicant's Representations

1. Applicant was organized as a Wyoming corporation in 1998 to serve as the trustee of trusts then in existence, as well as of those formed in the future, created by and for the sole benefit of Charles C. Gates and Hazel G. Rates, their lineal descendants, and the spouses of such descendants (the “Trusts”) (Charles C. Gates and Hazel R. Gates with their lineal descendants and the spouses of such descendants, collectively, the “Gates family”).

2. Applicant is an investment adviser registered under section 203 of the Adviser Act.

3. Applicant represents that the services it provides to the Trusts include acting as trustee, custodian and executor of the Trusts and performing such other fiduciary services and financial, investment, tax and accounting, and other agency and advisory services for the Trusts as may deemed appropriate by its board of directors in accordance with applicable law.

4. Applicant represents that the investment-related services that it provides to the Trusts are limited to trust administration, selection of third party sub-advisers, and preparation of quarterly reports. Applicant represents that investment advisory services using its own staff make up only a small portion of its overall activities. Applicant further represents that the investments of the Trusts are managed primarily by third party sub-advisers selected by Applicant's investment committee.

5. Applicant represents that the payments that it receives from the Trust are, in large part, compensation for the administrative services that it provides. Applicant represents that only a small portion of the payments that it receives from the Trusts is compensation for furnishing investment advice. Applicant further represents that, after payments to third-party sub-advisers, the total income that it receives from the Trusts that is attributable to investment advisory services is likely to be less than 20%.

6. Applicant represents that it does not hold itself out to the public as an investment adviser. Applicant represents that it does not engage in any advertising, attend any investment-related conferences as a vendor, or conduct any marketing activities whatsoever; nor is Applicant listed in any phone book or other directory as an investment adviser.

7. Applicant represents that it has no retail clients and has no plans, now or in the future, to solicit clients from the retail public. Applicant further represents that, at no time, will it seek or accept the business of persons other than the Trusts, members of the Gates family, and any companies wholly-owned by the Gates family.

Applicant's Legal Analysis

1. Section 202(a)(11) of the Advisers Act defines the term “investment adviser” to mean “any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as a part of a regular business, issues or promulgates analyses or reports concerning securities * * *.” Section 202(a)(11)(F) of the Advisers Act authorizes the SEC to exclude from the definition of “investment adviser” persons that are not within the intent of section 202(a)(11).

2. Section 203(a) of the Advisers Act requires investment advisers to register with the SEC. Section 203(b) of the Advisers Act provides exemptions from this registration requirement. Applicant asserts that it does not qualify for any of the exemptions provided by section 203(b). Applicant also asserts that it is not prohibited from registering with the SEC under section 203A of the Advisers Act because its principal office and place of business is located in Wyoming.

3. Applicant requests that the SEC declare it to be a person not within the intent of section 202(a)(11). Applicant states that there is no public interest in requiring that it be registered under the Advisers Act because it offers its services only to members of the Gates family, its investment activities make up only a small portion of the overall services that it provides, most of the compensation that it receives is for services other than the rendering of investment advice, and it does not and will not hold itself out to the public as an investment adviser.