[Federal Register Volume 60, Number 114 (Wednesday, June 14, 1995)]
[Notices]
[Pages 31340-31343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14472]



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

SECURITIES AND EXCHANGE COMMISSION
[Release No. IC-21124; 813-138]


Merrill Lynch KECALP L.P. 1994 and KECALP Inc.; Notice of 
Application

June 8, 1995.
AGENCY: Securities and Exchange Commission (``SEC'').

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

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

APPLICANTS: Merrill Lynch KECALP L.P. 1994 (the ``1994 Partnership'') 
and KECALP Inc. (the ``General Partner'').

RELEVANT ACT SECTIONS: Order requested under sections 6(b) and 17(b) 
from section 17(a).

SUMMARY OF APPLICATION: Applicants request an order which would let the 
General Partner sell to future partnerships certain investments that 
were purchased and held by the General Partner on behalf of a future 
partnership prior to the closing of such partnership's initial 
offering. The order also would let the General Partner sell to the 1994 
Partnership four investments that the General Partner has purchased and 
is holding as nominee for the 1994 Partnership.

FILING DATES: The application was filed on November 10, 1994, and was 
amended on February 22, 1995, May 31, 1995, and June 7, 1995.

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 July 3, 1995 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 request, the reason 
for the request, and the issues contested. Persons may request 
notification of a hearing by writing to the SEC's Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth Street N.W., Washington, D.C. 
20549. Applicants, South Tower, World Financial Center, 225 Liberty 
Street, New York, New York 10080-6123.

FOR FURTHER INFORMATION CONTACT:
Sarah A. Wagman, Staff Attorney, at (202) 942-0654, 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 

[[Page 31341]]
may be obtained for a fee at the SEC's Public Reference Branch.

Applicant's Representations

    1. The 1994 Partnership is a Delaware limited partnership 
registered under the Act as a closed-end management investment company. 
The 1994 Partnership is an ``employees' securities company,'' as 
defined in section 2(a)(13) of the Act, and operates under the terms of 
an order issued in 1982 (the ``1982 Order'') that exempts under section 
6(b) of the Act the Merrill Lynch KECALP Ventures Limited Partnership 
1982, and future similar limited partnerships in which Merrill Lynch & 
Co., Inc. (``ML & Co.'') is a general partner, from certain provisions 
of the Act to the extent necessary to permit the partnerships to 
function as employees securities companies.\1\ Interests in the 1994 
Partnership were offered to certain employees of ML & Co. and its 
subsidiaries, and to non-employee directors of ML & Co. The General 
Partner may organize additional limited partnerships for employees of 
ML & Co. and its subsidiaries. Applicants request that the relief 
sought herein apply to these future KECALP partnerships, which will 
operate under the terms of the 1982 Order (each, a ``Future 
Partnership;'' together with the 1994 Partnership, the 
``Partnerships'').

    \1\Merrill Lynch KECALP Ventures Limited Partnership 1982, 
KECALP Inc., Investment Company Act Release Nos. 12290 (Mar. 11, 
1982) (notice) and 12363 (Apr. 8, 1982) (order).
---------------------------------------------------------------------------

    2. The General Partner is an indirect, wholly-owned subsidiary of 
ML & Co. The General Partner is registered as an investment adviser 
under the Investment Advisers Act of 1940. All investments and 
dispositions of investments by the Partnerships are approved by the 
board of directors of the General Partner.
    3. Applicants request an amendment to the 1982 Order to allow the 
General Partner, ML & Co., and direct or indirect wholly-owned 
subsidiaries of ML & Co. (together, ``ML'') to acquire and hold certain 
investments (``Warehoused Investments'') on behalf of a Future 
Partnership pending the closing of the Partnership's initial offering. 
An investment will only qualify as a Warehoused Investment where (a) ML 
acquires an investment on behalf of a Future Partnership with the 
intention of selling such investment to the Future Partnership 
following the completion of its initial offering, and (b) the board of 
directors of the General Partner approves such investment. ML may sell 
a Warehoused Investment to a Partnership only during the lesser of (a) 
one year from the time ML purchases the Warehoused Investment, or (b) 
30 days from the date of closing of a Partnership's initial offering.
    4. The purchase price to be paid by the Partnership to ML for a 
Warehoused Investment will be the lesser of (a) the fair value of the 
Warehoused Investment on the date it is acquired by the Partnership or 
(b) the cost to ML of purchasing the Warehoused Investment. ML may only 
charge the Partnership carrying costs to the extent the fair value of 
the Warehoused Investment exceeds the cost, and such costs will accrue 
from the date ML acquires the Warehoused Investment on behalf of the 
Partnership. Carrying costs will consist of interest charges computed 
at the lower of (a) the prime commercial lending rate charged by 
Citibank, N.A. during the period for which carrying costs are being 
paid or (b) the effective cost of borrowings by ML & Co. during such 
period. The effective cost of borrowings by ML & Co. is its actual 
``Average Cost of Funds,'' which it calculates on a monthly basis by 
dividing its consolidated financing expenses by the total amount of 
borrowings during the period.
    5. Applicants are subject to an order issued in 1991 (the ``1991 
Order'')2 that, in relevant part, allows ML to acquire ``Merrill 
Lynch Investments''3 on behalf of a KECALP partnership, and sell 
such investments to the partnership within 30 days of ML's acquisition 
of such investments. To the extent ML acquires on behalf of a KECALP 
partnership investments that are not Merrill Lynch investments, and 
that are not sold to the partnership within 30 days of ML's purchase, 
the partnership must obtain exemptive relief from the Commission prior 
to acquiring the Warehoused Investment.

    2Merrill Lynch KECALP Growth Investments Limited 
Partnership 1983, Investment Company Act Release Nos. 18082 (Apr. 8, 
1991) (notice) and 18137 (May 7, 1991) (order).
    3``Merrill Lynch Investments'' consist of equity and 
equity-related transactions in (a) companies that are the subject of 
transactions commonly referred to as ``leveraged'' or ``management'' 
buyouts (``Buyouts'') structured by ML & Co. or an affiliate, or 
Buyouts with respect to which ML & Co. or an affiliate assisted in 
the transaction and/or (b) companies that are the subject of other 
transactions structured by ML & Co.'s investment banking group. In 
either case, ML & Co. or an affiliate must hold a long-term equity 
or equity-related investment as part of the transaction.
---------------------------------------------------------------------------

    6. Applicants also request an order under section 17(b) of the Act 
exempting them from section 17(a) in order to permit the General 
Partner to sell to the 1994 Partnership four investments that the 
General Partner has purchased and is holding as nominee for the 1994 
Partnership. Applicants also request that the General Partner be 
permitted to recover carrying costs related to such investments, to the 
extent that the fair value of a Warehoused Investment on the date it is 
acquired by the 1994 Partnership exceeds the cost to the General 
Partner of purchasing and holding such investment. Each of the four 
Warehoused Investments was acquired by the General Partner, and upon 
receipt of the requested order, will be acquired by the 1994 
Partnership, in accordance with the conditions to the requested order, 
as described below.

A. ZML Partners Limited Partnership III (``Zell III'')

    1. Zell III is a limited partnership formed to act as the managing 
general partner of Zell/Merrill Lynch Real Estate Opportunity Partners 
Limited Partnership III (the ``Zell Fund''). The Zell Fund is a limited 
partnership formed to acquire a high quality, geographically 
diversified portfolio of real estate assets. Zell III has committed to 
invest up to $25 million in the Zell Fund. The Zell Fund closed its 
initial offering in March 1994 with aggregate capital commitments of 
approximately $680 million. On March 10, 1994, the General Partner 
funded $600,000 of its $2.0 million commitment in return for an 8% 
limited partnership interest in Zell III, held on behalf of the 1994 
Partnership, pending the closing of the 1994 Partnership's initial 
offering and receipt of the requested order. Upon its acquisition of 
the investment in Zell III, the 1994 Partnership will be allocated 
generally its proportional share of all items of income, loss and gain, 
and its proportional share of distributions, received by Zell III from 
its investment in the Zell Fund.
    2. The proposed investment in Zell III involves a joint transaction 
under section 17(d) of the Act, and rule 17d-1 thereunder, that is 
permitted by the 1982 Order. Because the 1982 Order does not provide 
relief to allow the General Partner to sell Warehoused Investments to 
the Partnerships, and because the investment in Zell III is not a 
Merrill Lynch Investment within the meaning of the 1991 Order, 
applicants seek an exemption from section 17(a) to allow the General 
Partner to sell the Warehoused Investment to the 1994 Partnership.

B. Gemini Holdings, Inc. (``Gemini'')

    1. PCA Holding Corporation (``Holding'') is an acquisition vehicle 
created to acquire PC Accessories, Inc. (``PCA''), a distributor of 
computer accessory products. On July 28, 1994, the General Partner 
acquired 119,000 shares of Holding's common stock at 

[[Page 31342]]
$10 per share for an aggregate of $1.19 million on behalf of the 1994 
Partnership, pending the closing of the 1994 Partnership's initial 
offering and the receipt of the requested order. At the same time, 
Merrill Lynch KECALP L.P. 1991 (``KECALP 1991'') also acquired 119,000 
shares of Holding's common stock at $10 per share for an aggregate of 
$1.19 million.
    2. PCA was subsequently merged into Gemini, a producer and marketer 
of accessories for home electronic and entertainment systems. As a 
result of the merger, shares of PCA held by the General Partner on 
behalf of the 1994 Partnership were converted into 52,479 shares of 
Gemini's cumulative convertible preferred stock. At such time, KECALP 
1991's shares of Holding were likewise converted into 52,479 shares of 
Gemini's cumulative convertible preferred stock.
    3. The proposed investment in Holding involves a joint transaction 
under section 17(d) of the Act, and rule 17d-1 thereunder, that is 
permitted by the 1991 Order. Applicants seek an exemption from section 
17(a) to allow the General Partner to sell the Warehoused Investment to 
the 1994 Partnership. The 1991 Order does not provide the necessary 
relief from section 17(a) because the 1994 Partnership will acquire the 
Warehoused Investment more than 30 days after its purchase by the 
General Partner.

C. Mail-Well Holdings, Inc. (``Mail-Well'')

    1. Mail-Well is a manufacturer of customized envelopes and related 
packaging products. In February 1994, the General Partner acquired 
84,112 shares of Mail-Well's common stock at a cost of $10.70 per share 
for an aggregate of $899,998 on behalf of the 1994 Partnership, pending 
the closing of the 1994 Partnership's initial offering and the receipt 
of the requested order. At the same time, KECALP 1991 likewise acquired 
84,112 shares of Mail-Well's common stock at a cost of $10.70 per share 
for an aggregate of $899,998.
    2. The proposed investment in Mail-Well involves a joint 
transaction under section 17(d) of the Act, and rule 17d-1 thereunder, 
that is permitted by the 1991 Order. Applicants seek an exemption from 
section 17(a) to allow the General Partner to sell the Warehoused 
Investment to the 1994 Partnership. The 1991 Order does not provide the 
necessary relief from section 17(a) because the 1994 Partnership will 
acquire the Warehoused Investment more than 30 days after its purchase 
by the General Partner.
D. Westlink Holdings, Inc. (``Westlink'')

    1. Westlink is a telephone paging company formed in 1994 to acquire 
the Westlink Company. In July, 1994, the General Partner acquired 
200,000 shares of Westlink's common stock for $10 per share for an 
aggregate of $2.0 million on behalf of the 1994 Partnership, pending 
the closing of the 1994 Partnership's initial offering and the receipt 
of the requested order. At the same time, KECALP 1991 acquired 100,000 
shares of Westlink's common stock for $10 per share for an aggregate of 
$1.0 million.
    2. The proposed investment in Westlink under section 17(d) involves 
a joint transaction under section 17(d) of the Act, and rule 17d-1 
thereunder, that is permitted by the 1991 Order. Applicants seek an 
exemption from section 17(a) to allow the General Partner to sell the 
Warehoused Investment to the 1994 Partnership. The 1991 Order does not 
provide the necessary relief from section 17(a) because the 1994 
Partnership will acquire the Warehoused Investment more than 30 days 
after its purchase by the General Partner.

Applicant's Legal Analysis

    1. Section 6(b) authorizes the Commission, upon application, to 
exempt an employees' securities company from provisions of the Act if, 
and to the extent that, the exemption is consistent with the protection 
of investors. Section 17(a) makes it unlawful for an affiliated person 
of a registered investment company to sell securities to, or purchase 
securities, from the company.
    2. The General Partner is an indirect, wholly-owned subsidiary of 
ML & Co. Thus, ML & Co. and each of its direct or indirect wholly-owned 
subsidiaries is an ``affiliated person'' of the General Partner, within 
meaning of section 2(a)(3)(C). In addition, the General Partner is an 
``affiliated person'' of the Partnerships, within the meaning of 
section 2(a)(3)(D). As a result of these affiliations, ML is prohibited 
from selling securities to the Partnerships, and the Partnerships are 
prohibited from buying such securities, unless applicants obtain an 
exemptive order.
    3. Applicants believe that the terms of the requested order are 
consistent with the standards set forth in sections 6(b) and 17(b). 
Applicants submit that the conditions to the requested order are 
designed to insure that sales of Warehoused Investments by ML to the 
Partnerships are consistent with the protection of the Partnerships' 
limited partners. Applicants are aware of the policies underlying 
section 17(a), and the potential conflicts that could arise in 
connection with the Partnerships' purchase of Warehoused Investments 
from ML. Applicants submit that the conditions to the requested order 
effectively address these concerns.
Applicant's Conditions
    Applicants agree that the terms of relief are subject to the 
following conditions:
    1. In order for an investment to qualify as a Warehoused Investment 
to be purchased pursuant to the requested relief, (a) the board of 
directors of the General Partner must approve such investment for the 
Future Partnership in the same manner in which the board would approve 
an investment for such Partnership prior to the time the investment is 
acquired by ML and (b) such investment must be acquired by ML with the 
intention of acquiring the Warehoused Investment for the Future 
Partnership and selling it to such Partnership after the completion of 
its initial offering. The General Partner will maintain at the 
Partnerships' office written records stating the General Partner's 
intention in acquiring such security, and stating the factors 
considered by the General Partner's board of directors in approving the 
investment.
    2. Once the limited partners have contributed their capital to a 
Partnership, prior to the acquisition of a Warehoused Investment by the 
Partnership, (a) the board of directors must make the following 
findings: (i) The terms of the Warehoused Investment, including the 
consideration to be paid, are reasonable and fair and do not involve 
overreaching of the Partnership or its Partners on the part of any 
person concerned, (ii) the proposed transaction is consistent with the 
policy of the Partnership as indicated in its filings under the 
Securities Act of 1933 and its reports to Partners, and (iii) 
participation by the Partnership in the proposed transaction is in the 
best interest of the Partners of the Partnership; and (b) with respect 
to any Warehoused Investment that is part of a co-investment with an 
affiliate, the board of directors must approve the investment in 
accordance with the terms of any orders issued by the Commission that 
are applicable to such co-investment, including the required findings 
by the board of directors of the General Partner. The General Partner 
will maintain at the Partnerships' office written records of the 
factors considered in any decision regarding a Warehoused Investment.
    3. The purchase price to be paid by the Partnership for a 
Warehoused

[[Page 31343]]

Investment shall be the lesser of (a) the fair value of the securities 
on the date acquired by the Partnership as determined by the General 
Partner or (b) the cost to ML of purchasing the Warehoused Investment 
(``Cost''). Carrying costs may be paid by the Partnership to ML to the 
extent such fair value exceeds Cost. To the extent the value of the 
securities is determined to be less than Cost, ML may determine not to 
sell the Warehoused Investment to the Partnership. The General Partner 
will maintain at the Partnerships' office written records of the 
factors considered in any determination regarding the value of a 
Warehoused Investment.

    4. Carrying costs shall be calculated from the date ML acquired the 
proposed investment on behalf of the Partnership to the date of the 
acquisition of the proposed investment by the Partnership from ML, and 
shall consist of interest charges computed at the lower of (a) the 
prime commercial lending rate charged by Citibank, N.A., during the 
period for which carrying costs are permitted to be paid until the 
Partnership acquires the securities or (b) the effective cost of 
borrowings by ML & Co. during such period. The effective cost of 
borrowings by ML & Co. is its actual ``Average Cost of Funds,'' which 
it calculates on a monthly basis by dividing its consolidated financing 
expenses by the total amount of borrowings during this period.

    5. The Partnership may only acquire a Warehoused Investment from ML 
during the lesser of (a) one year from the time ML purchases the 
Warehoused Investment or (b) 30 days from the date of closing of the 
Partnership's initial offering.

    6. The General Partner will maintain the records required by 
section 57(f)(3) of the Act and will comply with the provisions of 
section 57(h) of the Act as if each Partnership were a business 
development company. All records referred to or required under these 
conditions will be available for inspection by the limited partners of 
each Partnership and the Commission.

    For the Commission, by the Division of Investment Management, 
under delegated authority.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 95-14472 Filed 6-13-95; 8:45 am]

BILLING CODE 8010-01-M