[Federal Register Volume 59, Number 163 (Wednesday, August 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20774]


[[Page Unknown]]

[Federal Register: August 24, 1994]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Rel. No. 20489; 812-8912]

 

Alex. Brown Cash Reserve Fund, Inc., et al.; Notice of 
Application

August 18, 1994.
AGENCY: Securities and Exchange Commission (``SEC'').

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

-----------------------------------------------------------------------

APPLICANTS: Investment Company Capital Corp. (``ICC''); and Alex. Brown 
Cash Reserve Fund, Inc.; Flag Investors Telephone Income Fund, Inc.; 
Flag Investors International Fund, Inc.; Flag Investors Emerging Growth 
Fund, Inc.; Total Return U.S. Treasury Fund, Inc.; Flag Investors 
Quality Growth Fund, Inc.; Managed Municipal Fund, Inc.; Flag Investors 
Intermediate-Term Income Fund, Inc.; Flag Investors Value Builder Fund, 
Inc.; North American Government Bond Fund, Inc.; and Flag Investors 
Maryland Intermediate Tax-Free Income Fund, Inc. (the ``Funds'').

RELEVANT ACT SECTIONS: Order requested under section 6(c) for an 
exemption from sections 13(a)(2), 13(a)(3), 17(a)(1), 18(f)(1), 22(f), 
and 22(g) and rule 2a-7 thereunder, and under section 17(d) and rule 
17d-1 thereunder.

SUMMARY OF APPLICATION: Applicants request an order to permit the Funds 
to enter into deferred compensation arrangements with their independent 
directors.

FILING DATE: The application was filed on March 25, 1994, and amended 
on May 20, 1994 and August 3, 1994. Applicants have agreed to file an 
amendment during the notice period, the substance of which is 
incorporated herein.

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 September 12, 
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 issues contested. Persons who wish to 
be notified of a hearing may request such notification by writing to 
the SEC's Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549. 
Applicants, 135 East Baltimore Street, Baltimore, Maryland 21202.

FOR FURTHER INFORMATION CONTACT:
Marc Duffy, Senior Attorney, (202) 942-0565, or Robert A. Robertson, 
Branch Chief, (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 from 
the SEC's Public Reference Branch.

Applicants' Representations

    1. The Funds are open-end management investment companies organized 
as Maryland corporations. ICC is registered as an investment adviser 
under the Investment Advisers Act of 1940. ICC currently serves as the 
investment adviser for each of the Funds other than Total Return U.S. 
Treasury Fund, Inc., Managed Municipal Fund, Inc., and North American 
Government Bond Fund, Inc., for which it serves as administrator. 
Applicants request that the relief granted hereby also apply to all 
subsequently registered investment companies that in the future are 
advised by ICC or an entity controlling, controlled by, or under common 
control (within the meaning of section 2(a)(9) of the Act) with ICC.\1\
---------------------------------------------------------------------------

    \1\Although certain investment companies currently advised by 
ICC do not presently intent to rely on the requested order, any such 
company would be covered by the order if it enters into deferred 
compensation arrangements with its Eligible Directors, as described 
in the application.
---------------------------------------------------------------------------

    2. Each of the Funds has a board of directors (a ``Board''), the 
majority of which are not ``interested persons'' of the Fund within the 
meaning of section 2(a)(19) of the Act. Each of the directors who is 
not an interested person of the Funds receives annual fees from one or 
more of the Funds. Directors who are interested persons of any of the 
Funds do not receive any remuneration from the Funds.
    3. Under the deferred fee arrangement (the ``Deferred Fee 
Arrangement''), the directors who receive directors' fees from one or 
more of the Funds (the ``Eligible Directors'') will be entitled to 
defer the receipt of 50% or more of such fees. The Deferred Fee 
Arrangement will be implemented by means of an agreement entered into 
between an Eligible Director and the appropriate Fund (the 
``Agreement''). The purpose of the Agreement would be to permit an 
Eligible Director to elect to defer receipt of his or her director's 
fees, in order to enable him or her to defer payment of income taxes on 
such fees, or for other reasons. Applicants believe that the 
availability of the Deferred Fee Arrangement will enhance the ability 
of the Funds to attract and retain directors of the same high caliber 
as those who now serve on their Boards.
    4. Under each Agreement, the deferred fees payable by a Fund with 
respect to an Eligible Director will be credited to a book reserve 
account established by such Fund (the ``Deferred Fee Account''). Each 
Eligible Director may elect to have his or her deferred fees treated as 
if they had been invested and reinvested in shares of one or more of 
the Funds or in a selection of the Funds as may be determined by the 
Boards of the Funds (such shares are referred to as the ``Underlying 
Securities'').
    5. Any money market series of the Funds that values its assets 
using the amortized cost method will buy and hold the Underlying 
Securities that determine the performance of the Deferred Fee Account 
to achieve an exact match between such series' liability to pay 
deferred fees and the assets that offset that liability. Furthermore, 
as a matter of prudent risk management, applicants intend that the 
participating Funds will purchase and hold shares of the Underlying 
Securities in amounts equal to the deemed investment in the Deferred 
Fee Accounts of its Eligible Directors. The balance sheet for each Fund 
will show either liability and asset entries for deferred fees or 
include a footnote explaining the offset of the liability for deferred 
fees with an equal amount of assets.
    6. Each Agreement provides that the obligations of each Fund to 
make payments from the Deferred Fee Account will be general obligations 
of each such Fund and payments made pursuant to the Agreement will be 
made from such Fund's general assets and property. With respect to the 
obligations created under an Agreement, the relationship of the 
Eligible Directors to the applicable Funds will be only that of general 
unsecured creditors. Each Agreement also provides that the Funds will 
be under no obligation to purchase, hold, or dispose of any investments 
under the Agreement, but, if one or more of the Funds choose to 
purchase investments to cover their obligations under such Agreement, 
then any and all such investments will continue to be a part of the 
general assets and property of the Funds.
    7. Under each Agreement, deferred fees (including accrued interest) 
will become payable in cash upon an Eligible Director's retirement or 
disability in generally equal, quarterly installments over a period of 
five years (unless the participating Fund has agreed to a longer 
payment period) beginning on the date payment of retirement benefits 
commence to such Eligible Director under the ``Flag Investors/ISI Funds 
Retirement Plan for Eligible Directors.'' In the event of an Eligible 
Director's death, remaining amounts payable to him or her under the 
Agreement will be paid to his or her designated beneficiary. In all 
other events, the right to receive payments will be nontransferable.
    8. An Agreement will not obligate any Fund to retain a director, 
nor will it obligate any Fund to pay any (or any particular level of) 
director's fees to any director.

Applicants' Legal Analysis

    1. In connection with the adoption and implementation of the 
Deferred Fee Arrangement, applicants request an order under section 
6(c) of the Act exempting them from sections 13(a)(2), 13(a)(3), 
17(a)(1), 18(f)(1), 22(f), and 22(g) of the Act and rule 2a-7 
thereunder, and under section 17(d) of the Act and rule 17d-1 
thereunder. Section 6(c) authorizes the SEC to exempt any person, 
security, or transaction from any provision of the Act if 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. Applicants believe 
that the Deferred Fee Arrangement meets the appropriate statutory 
standards.
    2. Section 18(f)(1) generally prohibits a registered open-end 
investment company from issuing senior securities. Section 13(a)(2) 
requires that a registered investment company obtain shareholder 
authorization before issuing any senior securities not contemplated by 
the recitals of policy in its registration statement. Applicants 
contend that the Agreement possesses none of the characteristics of 
senior securities that led Congress to enact these sections. The Funds 
will not be ``borrowing'' from their Eligible Directors in the sense 
that concerned Congress. All liabilities created by credits to the 
Deferred Fee Account under an Agreement would be offset by essentially 
equal amounts of assets. The Agreements will not induce speculative 
investments by any Fund or provide opportunity for manipulative 
allocation of the expenses and profits of any Fund; control of each 
Fund will not be affected; and, given the common existence of similar 
deferred compensation agreements, the Agreements will not confuse 
investors or convey a false impression of safety.
    3. Section 22(f) prohibits undisclosed restrictions on 
transferability or negotiability of redeemable securities issued by a 
registered open-end investment company. The restrictions on 
transferability of the Eligible Directors' benefits under the 
Agreements would be clearly set forth in the Agreements.
    4. Sections 22(g) prohibits a registered open-end investment 
company from issuing any of its securities for services or for property 
other than cash or securities. Section 22(g) is primarily concerned 
with the dilutive effective on the equity and voting power that can 
result when securities are issued for consideration that is not readily 
valued. Amounts payable under the Agreements are based on the deferral 
of compensation otherwise due to be paid to the Eligible Directors. The 
Agreements merely provide for the deferral of such fees and thus should 
be viewed as being ``issued'' not in return for services, but in return 
for the Funds not being required to pay such fees on a current basis.
    5. Section 13(a)(3) prohibits a registered investment company from, 
among other things, deviating without a shareholder vote from any 
investment policy that is changeable only if authorized by shareholder 
vote. Several of the Funds have investment policies prohibiting the 
purchase of investment company shares without shareholder approval. 
This policy would prevent these Funds from purchasing shares of any 
other of the Funds without shareholder approval. Applicants believe 
that it is appropriate to grant an exemption from section 13(a)(3) to 
enable the Funds to invest in Underlying Securities without a 
shareholder vote. The value of the Underlying Securities will be de 
minimis in relation to the total net assets of the Funds, and will at 
all times equal the value of the corresponding Fund's obligations to 
pay deferred fees. Changes in the value of the Underlying Securities 
will not affect the value of shareholders' investments in the Funds. 
Thus, permitting the Funds to invest in Underlying Securities without 
obtaining shareholder approval required by section 13(a)(3) would 
result in no harm to the Funds or their shareholders.
    6. Rule 2a-7 requires a registered investment company to limit its 
portfolio to securities meeting certain standards of maturity, quality, 
and diversification as a condition to adopting the term ``money 
market'' as part of its name or holding itself out to investors as a 
money market fund. Rule 2a-7 also contains a number of conditions 
designed to reduce the likelihood that the net asset value of a money 
market fund as determined by the amortized cost method will deviate 
materially from its net asset value as determined by the mark-to-market 
method. Applicants request an exemption from rule 2a-7 to the extent 
necessary to permit the Funds that are money market funds to invest in 
Underlying Securities and to exclude Underlying Securities in 
calculating their dollar-weighted average maturities. Applicants 
believe that, under these circumstances, the underlying concerns that 
led the SEC strictly to prescribe the permissible characteristics of a 
money market fund's portfolio securities are not present.
    7. Section 17(a)(1) prohibits, except in limited circumstances, the 
sale of any security by an affiliated person of a registered investment 
company to such company. The Funds that are advised by the same entity 
may be ``affiliated persons'' under section 2(a)(3)(C) of the Act. 
Applicants believe that the sale of securities issued by the Funds 
pursuant to the Agreements does not implicate the concerns of Congress 
in enacting this section, but would merely facilitate the matching of 
each Fund's liability for deferred fees with the Underlying Securities 
that would determine the amount of such liability.
    8. Section 17(d) and rule 17d-1 thereunder prohibit an affiliated 
person of a registered investment company, acting as principal, from 
participating in, or effecting any transaction in connection with, any 
joint enterprise or other joint arrangement or profit-sharing plan in 
which such registered company is a participant, without prior receipt 
of an order of the SEC. Deferral of an Eligible Director's fees in 
accordance with an Agreement essentially will maintain the parties, 
viewed both separately and in their relationship to one another, in the 
same position as if the fees were paid on a current basis.

Applicants' Conditions

    Applicants agree that the order granting the requested relief shall 
be subject to the following conditions:
    1. Each Fund will vote shares of any affiliated Fund held pursuant 
to the Deferred Fee Arrangement in proportion to the votes of all other 
holders of shares of such affiliated Fund.
    2. Any money market series of the Funds that values its assets in 
accordance with a method prescribed in rule 2a-7 will buy and hold the 
Underlying Securities that determine the performance of the Deferred 
Fee Account to achieve an exact match between such series' liability to 
pay deferred fees and the assets that offset that liability.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-20774 Filed 8-23-94; 8:45 am]
BILLING CODE 8010-01-M