[Federal Register Volume 59, Number 137 (Tuesday, July 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17519]


[[Page Unknown]]

[Federal Register: July 19, 1994]


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SECURITIES AND EXCHANGE COMMISSION
[Rel. No. IC-20403; 812-8954]

 

The PNC Fund, et al.; Notice of Application

July 13, 1994.
Agency: Securities and Exchange Commission (``SEC'').

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

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Applicants: The PNC Fund (``PNC''), PNC Institutional Management 
Corporation (``PIMC''), and Provident Distributors, Inc. (``PDI''), on 
behalf of themselves and other investment companies for which PIMC or 
PDI acts as investment adviser and distributor and which adhere to the 
representations and conditions set forth in the application 
(collectively, with PNC, the ``Funds'').\1\

    \1\Although PIMC and PDI act as investment adviser or 
distributor, respectively, to other investment companies not named 
as parties to the application, none of those companies currently 
intends to rely on the requested relief. Such companies may in the 
future rely on the requested exemption if they determine to issue 
multiple classes of shares and impose a contingent deferred sales 
charge in accordance with the representations and conditions in the 
application.
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Relevant Act Sections: Exemption requested under section 6(c) from 
sections 2(a)(32), 2(a)(35), 18(f), 18(g), 18(i), 22(c), and 22(d), and 
rule 22c-1.

Summary of Application: Applicants seek to amend an existing order that 
permits the portfolios of PNC to issue up to three classes of shares. 
The amended order will permit each Fund's existing and future 
investment portfolios to issue an unlimited number of classes of 
shares, add a conversion feature, and assess and, under certain 
circumstances, waive a contingent deferred sales charge (``CDSC'') upon 
certain redemptions of shares.

Filing Dates: The application was filed on April 28, 1994, and amended 
on July 1, 1994.

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 August 8, 1994, 
and should be accompanied by proof of service on applicants, 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 SEC's 
Secretary.

Addresses: Secretary, SEC, 450 5th Street NW., Washington, D.C. 20549. 
Applicants: PNC and PIMC, Bellevue Corporate Center, 103 Bellevue 
Parkway, Wilmington, Delaware 19809; PDI, 259 Radnor-Chester Road, 
Suite 120, Radnor, Pennsylvania 19087.

For Further Information Contact: James J. Dwyer, Staff Attorney, at 
(202) 942-0581, or C. David Messman, 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 few at the 
SEC's Public Reference Branch.

Applicants' Representations

    1. PNC is a Massachusetts business trust registered under the Act 
as an open-end management investment company. PNC currently is 
authorized to offer shares in twenty-five portfolios, and may create 
new portfolios in the future. PIMC serves as PNC's investment adviser. 
PDI serves as PNC's distributor.
    2. On March 14, 1994, the SEC issued an order (the ``Existing 
Order'')\2\ permitting each portfolio of PNC to offer up to three 
classes of shares--Investor Shares, Service Shares, and Institutional 
Shares. Applicants seek to amend the Existing Order to permit each 
Fund's existing and future portfolios to issue an unlimited number of 
classes of shares, add a conversion feature, and assess, and under 
certain circumstances, waive a CDSC upon certain redemptions of shares. 
The requested relief will supersede the Existing Order in its entirety. 
Investor Shares, Service Shares, and Institutional Shares will be 
offered as described in the application for the Existing Order.
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    \2\The PNC Fund, Investment Company Act Release Nos. 20081 (Feb. 
17, 1994) (notice) and 20133 (Mar. 15, 1994) (order).
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    3. Under the requested order, applicants may offer classes of 
shares subject to rule 12b-1 plans or shareholder services plans (each 
a ``Plan''), certain class expenses described in condition 1 below that 
are attributable only to certain of the classes, certain conversion 
features as further described below, and/or the imposition of various 
front-end sales loads and/or CDSCs. The services provided under a Plan 
will augment or replace, but not duplicate, services otherwise provided 
by a Fund's investment adviser, transfer agent, and administrator. When 
a class of shares is subject to a rule 12b-1 Plan and a shareholder 
services Plan, the services provided under one Plan will augment (and 
not be duplicative of) the services provided under the other Plan.
    4. All shares of a portfolio will bear Fund and portfolio expenses 
allocated pro rata to each class on the basis of the relative net asset 
value of the respective class. Expenses specific to a class will be 
allocated to that class. A Fund's investment adviser or other service 
contractor may reimburse or waive class expenses on certain classes on 
a voluntary, temporary basis, and the amount waived or reimbursed may 
vary from time to time.
    5. Because of class expenses and payments made under a Plan that 
may be borne by each class of shares, the per share net income of, and 
dividends to, each class may differ from the net income of, and 
dividends to, the other classes of shares of a portfolio. In addition, 
except for portfolios that seek to maintain a stable net asset value 
and declare dividends daily, the net asset value attributable to each 
class of shares of a portfolio may differ.
    6. Shares of a class of one portfolio will be exchangeable for 
shares of another portfolio that have similar characteristics. In 
addition, shares of an equity or fixed income portfolio will be 
exchangeable for shares of a money market portfolio, and vice-versa, 
and shares of one class of a portfolio will be exchangeable for shares 
of another class of the same portfolio. Exchanges will be effected in 
accordance with the provisions of rule 11a-3 under the Act.
    7. Shares of certain of the classes may be subject to the 
imposition of a CDSC if they are redeemed within a prescribed time 
after their purchase.The amount of the CDSC will be calculated as the 
lesser of a specified percentage of the net asset value at the time of 
purchase or at the time of redemption.
    8. No CDSC will be imposed on amounts representing increases in the 
value of shares due to capital appreciation, redemptions of shares 
acquired through reinvestment of dividends or capital gain 
distributions, or redemptions of shares held for longer than the CDSC 
period. In addition, no charge will be imposed on any shares purchased 
prior to the effective date of the requested order or prior to the 
disclosure of such CDSC in the prospectus of the applicable portfolio. 
In determining whether the CDSC is payable, it will be assumed that 
shares not subject to the CDSC are redeemed first and that other shares 
then are redeemed in the order purchased.
    9. If a shareholder pays a CDSC upon redemption and a reinvestment 
occurs within a specified time period stated in the prospectus at the 
time the shares were sold, the shareholder may receive a credit, paid 
by the distributor, for any CDSC paid.
    10. Any change in the specified terms of a CDSC arrangement will be 
reflected in the prospectus of the applicable portfolio. Such change 
will not affect shares that already have been issued, unless the change 
would result in terms more favorable to the shareholder.
    11. Applicants request the ability to waive the CDSC on 
redemptions: (a) in connection with required (or, in some cases, 
discretionary) distributions to participants or beneficiaries of an 
employee pension, profit-sharing, or other trust or qualified 
retirement plan or Keogh plan, individual retirement account, or 
custodial account maintained pursuant to section 403(b)(7) of the 
Internal Revenue Code (the ``Code''); (b) in connection with required 
(or, in some cases, discretionary) distributions to participants in 
qualified retirement or Keogh plans, individual retirement accounts, or 
custodial accounts maintained pursuant to section 403(b)(7) of the Code 
due to death, disability, or the attainment of age 59\1/2\; (c) in 
whole or in part, by shareholders whose accounts exceed $50,000, with 
additional reductions of the CDSC occurring in connection with 
redemptions of shares by shareholders whose accounts exceed certain 
higher breakpoints; (d) effected pursuant to a portfolio's right to 
liquidate a shareholder's account if the aggregate net asset value of 
shares held in the account is less than the minimum account size; (e) 
in connection with the combination of the portfolio with any other 
investment company registered under the Act by merger, acquisition of 
assets, or by any other transaction; (f) of shares that qualify for 
rights of accumulation, privileges under a letter of intent, or 
quantity discount; (g) resulting from a tax-free return of an excess 
contribution pursuant to section 408(d)(4) or (5) of the Code; (h) made 
in connection with a systematic withdrawal plan; (i) of shares held by 
current and/or former board members, officers, and employees (and their 
families) of applicants and current and/or former registered 
representatives or employees (and their families) of banks or broker/
dealers that have entered into selling agreements with applicants; (j) 
by a state, county, or city, or any instrumentality thereof, and/or by 
trust companies and bank trust departments; (k) effected by advisory 
accounts managed by PIMC, PDI, or other firms registered (or exempt 
from registration) under the Investment Advisers Act of 1940; or ; (1) 
pursuant to a qualified domestic relations order, as defined in section 
414(p) of the Code.
    12. Shares of some classes subject to a CDSC (``Convertible CDSC 
Shares'') could automatically convert into shares of other classes not 
subject to a CDSC (``Non-CDSC Shares'') after a prescribed period 
following the purchase of Convertible CDSC Shares without the 
imposition of any sales charges. Shares acquired through the 
reinvestment of dividends and other distributions paid with respect to 
Convertible CDSC Shares will also be Convertible CDSC Shares, but will 
convert to Non-CDSC Shares on the earlier of a prescribed period 
following the date of such reinvestment or the conversion date of the 
most recently purchased Convertible CDSC Shares not acquired through 
the reinvestment of dividends or other distributions.
    13. Applicants in all cases will comply with article III, section 
26(d) of the Rules of Fair Practice of the National Association of 
Securities Dealers, Inc., as it relates to the maximum amount of asset-
based sales charges that may be imposed by an investment company, when 
and in the form (as amended from time to time) the provisions of such 
rules relating to such charges become effective, and for as long as 
they remain in effect.

Applicants' Legal Analysis

    1. Applicants request an exemptive order to the extent that the 
proposed issuance and sale of any of the classes of shares might be 
deemed to result in a ``senior security'' within the meaning of section 
18(g) and prohibited by section 18(f)(1) and to violate the equal 
voting provisions of section 18(i).
    2. Applicants believe that the ability to offer various classes of 
shares in each portfolio with different levels of service will better 
enable the Funds to meet the competitive demands of today's financial 
services industry. The proposed arrangement will permit the Funds both 
to facilitate the distribution of its securities and expand the depth 
and scope of its services without assuming excessive operational costs 
or unnecessary investment risks. In addition, the Funds would be able, 
under the proposed arrangement, to match more precisely its 
distribution costs, administrative support, and other expenses with 
those investors on whose behalf such costs and expenses are incurred.
    3. Applicants assert that the proposed allocation of expenses and 
voting rights in the manner described is equitable and would not 
discriminate against any group of shareholders. Moreover, since the 
rights and privileges of all classes of shares of a portfolio would be 
substantially identical, the possibility that their interests would 
conflict would be remote.
    4. Applicants also request an exemption under section 6(c) from 
sections 2(a)(32), 2(a)(35), 22(c), and 22(d) of the Act and rule 22c-1 
thereunder to assess and, under certain circumstances, waive a CDSC on 
redemptions of shares. Applicants believe that their request to permit 
the CDSC arrangement would permit shareholders the option of having 
more investment dollars working for them from the time of their share 
purchases than if they chose a class with a front-end sales load.

Applicants' Conditions

    Applicants agree that any order of the Commission granting the 
requested relief shall be subject to the following conditions:
    1. Each class of shares representing interests in the same 
portfolio of a Fund will be identical in all respects, except as set 
forth below. The only differences between the classes of shares of the 
same portfolio will relate solely to: (a) the impact of (i) expenses 
assessed to a class pursuant to a Plan, (ii) other class expenses which 
would be limited to (A) transfer agency fees identified by the transfer 
agent as being attributable to a specific class of shares, (B) fees and 
expenses of a Fund's administrator that are identified and approved by 
the Fund's board as being attributable to a specific class of shares, 
(C) printing and postage expenses related to preparing and distributing 
materials such as shareholder reports, prospectuses, and proxies to 
current shareholder of a class, (D) blue sky registration fees incurred 
by a class of shares, (E) SEC registration fees incurred by a class of 
shares, (F) the expense of administrative personnel and services as 
required to support the shareholders of a specific class, (G) 
litigation or other legal expenses or audit or other accounting 
expenses relating solely to one class of shares, and (H) trustees' fees 
incurred as a result of issues relating to one class of shares, and 
(iii) any other incremental expenses subsequently identified that 
should be properly allocated to one class and which are approved by the 
SEC pursuant to an amended order; (b) the fact that the classes will 
vote separately with respect to a portfolio's Plans and any matter 
submitted to shareholders relating to class expenses, except as 
provided in condition 17 below; (c) the different exchange privileges 
of the classes of shares; (d) the designation of each class of shares 
of a portfolio; and (e) certain conversion features offered by some of 
the classes.
    2. The board of trustees\3\ of a Fund, including a majority of the 
independent trustees, will approve the offering of different classes of 
shares under the multi-class distribution system. The minutes of the 
meetings of the trustees regarding the deliberations of the trustees 
with respect to the approvals necessary to implement a multi-class 
system will reflect in detail the reasons for the trustees' 
determination that the proposed multi-class system is in the best 
interests of both the Fund involved and its shareholders.
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    \3\Any reference to ``trustees'' includes directors of a Fund 
that is organized as a corporation.
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    3. The initial determination of the class expenses that will be 
allocated to a particular class and any subsequent changes thereto will 
be reviewed and approved by a vote of the board of trustees of a Fund, 
including a majority of the trustees who are not interested persons of 
the Fund. Any person authorized to direct the allocation and 
disposition of monies paid or payable by a Fund to meet class expenses 
shall provide to the board of trustees, and the trustees shall review, 
at least quarterly, a written report of the amounts so expended and the 
purposes for which such expenditures were made.
    4. On an ongoing basis, the trustees of a Fund, pursuant to their 
fiduciary responsibilities under the Act and otherwise, will monitor 
each portfolio having a multi-class system for the existence of any 
material conflicts among the interests of the various classes of each 
portfolio. The trustees, including a majority of the independent 
trustees, shall take such action as is reasonably necessary to 
eliminate any such conflicts that may develop. A portfolio's investment 
adviser and distributor will be responsible for reporting any potential 
or existing conflicts to the trustees. If a conflict arises, a 
portfolio's investment adviser and/or distributor at their own cost 
will remedy such conflict up to and including establishing a new 
registered management investment company.
    5. Any shareholder services Plan will be adopted and operated in 
accordance with the procedures set forth in rule 12b-1 (b) through (f) 
as if the expenditures made thereunder were subject to rule 12b-1, 
except that shareholders need not enjoy the voting rights specified in 
rule 12b-1.
    6. The trustees of a Fund will receive quarterly and annual 
statements concerning distribution and shareholder servicing 
expenditures complying with paragraph (b)(3)(ii) of rule 12b-1, as it 
may be amended from time to time. In the statements, only expenditures 
properly attributable to the sale or servicing of a particular class of 
shares will be used to justify any distribution or servicing 
expenditure charged to that class. Expenditures not related to the sale 
or servicing of a particular class will not be presented to the 
trustees to justify any fee attributable to that class. The statements, 
including the allocations upon which they are based, will be subject to 
the review and approval of the independent trustees in the exercise of 
their fiduciary duties.
    7. Dividends paid by a portfolio with respect to each class of its 
shares, to the extent any dividends are paid, will be calculated in the 
same manner, at the same time, on the same day, and will be in the same 
amount, except that payments made under a Plan relating to each 
respective class of shares and the class expenses relating to each 
class of shares will be borne exclusively by that class.
    8. The methodology and procedures for calculating the net asset 
value and dividends and distributions of the various classes in any 
portfolio having a multi-class distribution system and the proper 
allocation of expenses among the various classes in each such portfolio 
have been reviewed by an expert (the ``Expert'') who has rendered a 
report to the Fund involved, which report has been provided to the 
staff of the SEC, that such methodology and procedures are adequate to 
ensure that such calculations and allocations will be made in an 
appropriate manner. On an ongoing basis, the Expert, or an appropriate 
substitute Expert, will monitor the manner in which the calculations 
and allocations are being made and, based upon such review, will render 
at least annually a report to the Fund involved that the calculations 
and allocations are being made properly. The reports of the Expert 
shall be filed as part of the periodic reports filed with the SEC 
pursuant to sections 30(a) and 30(b)(1) of the Act. The work papers of 
the Expert with respect to such reports, following request by the Fund 
involved (which the Fund agrees to provide), will be available for 
inspection by the SEC staff upon the written request to the Fund for 
such work papers by a senior member of the Division of Investment 
Management or a regional office of the SEC. Authorized staff members 
would be limited to the Director, an Associate Director, the Chief 
Accountant, the Chief Financial Analyst, an Assistant Director, and any 
Regional Administrators or Associate and Assistant Administrators. The 
initial report of the Expert will be a ``report on policies and 
procedures placed in operation'' and the ongoing reports will be 
``reports on policies and procedures placed in operation and tests of 
operating effectiveness'' as defined and described in Statement of 
Auditing Standards No. 70 of the American Institute of Certified Public 
Accountants (``AICPA''), as it may be amended from time to time, or in 
similar auditing standards as may be adopted by the AICPA from time to 
time.
    9. Applicants have adequate facilities in place to ensure 
implementation of the methodology and procedures for calculating the 
net asset value and dividends and distributions of the various classes 
of shares and the proper allocation of expenses among the various 
classes of shares and this representation will be concurred with by the 
Expert in the initial report referred to in condition 8 above and will 
be concurred with by the Expert, or an appropriate substitute Expert, 
on an ongoing basis at least annually in the ongoing reports referred 
to in condition 8 above. Applicants will take immediate corrective 
measures if this representation is not concurred with by the Expert or 
appropriate substitute Expert.
    10. The prospectus of each portfolio having a multi-class system 
will contain a statement to the effect that a salesperson and any other 
person entitled to receive compensation for selling or servicing shares 
in a portfolio may receive different compensation with respect to one 
particular class of shares over another in the same portfolio.
    11. The distributor for a Fund having a multi-class system will 
adopt compliance standards for any portfolio which has a multi-class 
system, which standards will relate to when each class of shares may 
appropriately be sold to particular investors. Applicants will require 
all persons selling shares of a portfolio having a multi-class system 
to conform to such applicable standards.
    12. The conditions pursuant to which the exemptive order is granted 
and the duties and responsibilities of the trustees with respect to the 
multi-class system will be set forth in guidelines which will be 
furnished to the trustees of a Fund having a multi-class system.
    13. Each portfolio having a multi-class system will disclose the 
respective expenses, performance data, distribution arrangements, 
services, fees, front-end sales loads, CDSCs, conversion features, and 
exchange privileges applicable to each class of shares in a portfolio 
in every prospectus relating to such portfolio, regardless of whether 
all classes of shares are offered through each prospectus. Each such 
portfolio will disclose the respective expenses and performance data 
applicable to all classes of shares in a portfolio in every shareholder 
report relating to such portfolio to the extent required by SEC rule or 
interpretation. The shareholder reports will contain, in the statement 
of assets and liabilities and statement of operations, information 
related to the portfolio as a whole generally and not on a per class 
basis (each portfolio's per share data, however, will be prepared on a 
per class basis with respect to all classes of shares of such 
portfolio). To the extent any advertisement or sales literature 
describes the expenses or performance data applicable to any class of 
shares, it will also disclose the respective expenses and/or 
performance data applicable to all classes of shares. The information 
provided by applicants for publication in any newspaper or similar 
listing of any portfolio's net asset value and public offering price 
will present each class of shares separately.
    14. Applicants acknowledge that the grant of the amended order 
requested by the application will not imply SEC approval, 
authorization, or acquiescence in any particular level of payments that 
the portfolios may make pursuant to a Plan in reliance on the exemptive 
order.
    15. If a CDSC arrangement is implemented with respect to shares of 
a portfolio, applicants agree to comply with the provisions of proposed 
rule 6c-10 under the Act, Investment Company Act Release No. 16619 
(Nov. 2, 1988), as such rule is currently proposed and as it may be 
reproposed, adopted or amended.
    16. Any class of shares with a conversion feature will convert into 
another class of shares on the basis of the relative net asset values 
of the two classes, without the imposition of any sales load, fee, or 
other charge. After conversion, the converted shares will be subject to 
an asset-based sales charge and/or service fee (as those terms are 
defined in article III, section 26 of the NASD's Rules of Fair 
Practice), if any, that in the aggregate are lower than the asset-based 
sales charge and service fee to which they were subject prior to the 
conversion.
    17. If a Fund implements any amendment to its 12b-1 Plan(s) (or, if 
presented to shareholders, adopts or implements any amendment to a 
shareholder services Plan or Plans) that would increase materially the 
amount that may be borne by the Non-CDSC Shares under the Plan, 
existing Convertible CDSC Shares will stop converting into the Non-CDSC 
Shares unless the Convertible CDSC Shares, voting separately as a 
class, approve the proposal. The trustees shall take such action as is 
necessary to ensure that existing Convertible CDSC Shares are exchanged 
or converted into a new class of shares (``New Non-CDSC Shares''), 
identical in all material respects to the Non-CDSC Shares as they 
existed prior to implementation of the proposal, no later than the date 
such shares previously were scheduled to convert into Non-CDSC Shares. 
If deemed advisable by the trustees to implement the foregoing, such 
action may include the exchange of all existing Convertible CDSC Shares 
for a new class (``New Convertible CDSC Shares''), identical to the 
existing Convertible CDSC Shares in all material respects except that 
the New Convertible CDSC Shares will convert into New Non-CDSC Shares. 
New Non-CDSC Shares or New Convertible CDSC Shares may be formed 
without further exemptive relief. Exchanges or conversions described in 
this condition shall be effected in a manner that the trustees 
reasonably believe will not be subject to federal taxation. In 
accordance with condition 4, any additional cost associated with the 
creation, exchange, or conversion of New Non-CDSC Shares or New 
Convertible CDSC Shares shall be borne solely by the adviser and the 
distributor. Convertible CDSC Shares sold after the implementation of 
the proposal may convert into Non-CDSC Shares subject to the higher 
maximum payment, provided that the material features of the Non-CDSC 
Share plan and the relationship of such plan to the Convertible CDSC 
Shares are disclosed in an effective registration statement.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-17519 Filed 7-18-94; 8:45 am]
BILLING CODE 8010-01-M