[Federal Register Volume 61, Number 71 (Thursday, April 11, 1996)]
[Notices]
[Pages 16147-16149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9020]



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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 21874; 812-9878]


Qualivest Funds, et al.; Notice of Application

April 5, 1996.
AGENCY: Securities and Exchange Commission (``SEC'').

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

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APPLICANTS: Qualivest Funds (the ``Trust''); Qualivest Capital 
Management, Inc. (``QCM''); and BISYS Fund Services (``BISYS'').

RELEVANT ACT SECTIONS: Order requested under section 6(c) of the Act 
from section 12(d)(1) of the Act and under sections 6(c) and 17(b) of 
the Act from section 17(a) of the Act.

SUMMARY OF APPLICATION: The order would permit series of the Qualivest 
Funds to operate as ``funds of funds'' by

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investing substantially all of their assets in other series of 
Qualivest Funds.

FILING DATES: The application was filed on December 8, 1995 and amended 
on March 1, 1996. Applicants have agreed to file an amendment, the 
substance of which is incorporated herein, during the notice period.

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 April 30, 1996, 
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 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, 3435 Stelzer Road, Columbus, Ohio 43219.

FOR FURTHER INFORMATION CONTACT: David W. Grim, Staff Attorney, at 
(202) 942-0571, or David M. Goldenberg, 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 fee from 
the SEC's Public Reference Branch.

Applicants' Representations

    1. The Trust is a registered open-end management investment company 
organized as a Massachusetts business trust with several series. The 
Trust intends to establish four new series, which are referred to 
herein as the ``Parent Funds.'' The Trust currently has thirteen 
existing series. The existing series, along with each open-end 
management investment company or series thereof to be organized in the 
future and which is advised by, or to be advised in the future by, QCM, 
are referred to herein as the ``Underlying Funds.''
    2. QCM, the adviser to the Funds, is an Oregon corporation and is 
registered as an investment adviser under the Investment Advisers Act 
of 1940. QCM is an affiliate of United States National Bank of Oregon, 
which is a wholly owned subsidiary of U.S. Bancorp. BISYS is the 
administrator for each of the Funds, and also acts as the principal 
underwriter and distributor for the Funds.
    3. Each Underlying Fund offers multiple classes of shares. One of 
these classes of shares, Class Y shares, is sold to certain 
institutional investors and bank trust departments, is not subject to a 
sales load, and does not bear distribution or servicing expenses under 
a 12b-1 plan. Each Parent Fund will offer three separate classes of 
shares.
    4. The Parent Funds are designed to allow investors to diversify 
their investments among a number of mutual funds. Each Parent Fund, 
pursuant to its investment objective, will invest exclusively (except 
for short-term money market instruments) in Class Y shares of the 
Underlying Funds and will allocate its assets among such funds in 
accordance with predetermined percentage ranges. The permissible 
ranges, as well as the identity of the Underlying Funds, are non-
fundamental policies of each Parent Fund and may be changed by the 
Parent Fund's board of trustees. As new series of the Trust are 
established in the future, it is anticipated that the board of trustees 
of one or more of the Parent Funds will authorize investment in shares 
of such new Underlying Fund.
    5. The Parent Funds are structured so as to avoid unnecessary 
duplication or layering of fees and expenses. QCM will provide advisory 
services to each of the Parent Funds for an annual fee equal to 0.05% 
of each Parent Fund's average daily net assets. These advisory services 
will consist primarily of asset allocation services, and the fees 
charged will be for services that are provided in addition to, rather 
than in duplication of, the services provided to the Underlying Funds.

Applicants' Legal Analysis

A. Section 12(d)(1)

    1. Section 12(d)(1)(A) provides that no registered investment 
company may acquire securities of another investment company if such 
securities represent more than 3% of the acquired company's outstanding 
voting stock, more than 5% of the acquiring company's total assets, or 
if such securities, together with the securities of any other acquired 
investment companies, represent more than 10% of the acquiring 
company's total assets. Section 12(d)(1)(B) provides that no registered 
open-end investment company may sell its securities to another 
investment company if the sale would cause the acquiring company to own 
more than 3% of the acquired company's voting stock, or if the sale 
would cause more than 10% of the acquired company's voting stock to be 
owned by investment companies.
    2. Section 6(c) provides that the SEC may exempt persons or 
transactions 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. Applicants request an order under section 6(c) 
exempting them from section 12(d)(1) to permit the Parent Funds to 
invest in the Underlying Funds in excess of the percentage limitations 
of section 12(d)(1).
    3. Section 12(d)(1) was intended to mitigate or eliminate actual or 
potential abuses that might arise when an investment company acquires 
shares of another investment company. These abuses include the 
acquiring fund imposing undue influence over the management of the 
acquired funds through the threat of large-scale redemptions, the 
acquisition by the acquiring company of voting control of the acquired 
company, the layering of sales charges, advisory fees, and 
administrative costs, and the creation of a complex pyramidal structure 
which may be confusing to investors.
    4. Applicants believe that none of these potential or actual abuses 
are present in their proposed fund of funds structure. Applicants state 
that there is no basis for the concern that the Parent Funds would 
exercise influence over the management of the Underlying Funds by the 
threat of redemptions. Because the Parent Funds will acquire only 
shares of Underlying Funds, a redemption from one Underlying Fund will 
simply lead to the placing of the proceeds into another Underlying 
Fund. Further, the concern that shareholder redemption requests may 
frequently require a larger scale redemption is minimal. The Parent 
Funds are designed for persons investing for retirement and other long-
term investment purposes. Also, the diversification of the Parent Funds 
lessens the need for investors to exchange between and among Qualivest 
Funds, which effectively decreases the rate of redemptions. Applicants 
also assert that the Parent Funds will pose no threat of excessive 
voting control over the Underlying Funds.
    5. Applicants state that the proposed fund of funds structure 
contains no layering of sales charges, advisory fees, or administrative 
costs. Class A and Class C shares of the Parent Funds will be sold 
subject, respectively, to a front-end sales load and a CDSC. However, 
layering of sales charges will be avoided because the Parent Funds will 
invest

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only in the Class Y shares of the Underlying Funds, which are not 
subject to a sales load. Similarly, both the Parent Funds and the 
Underlying Funds have adopted rule 12b-1 fees for Class A and Class C 
shares. Again, however, layering of distribution fees will be avoided 
because the Parent Funds will invest only in Class Y shares of the 
Underlying Funds, which do not bear any distribution expenses under the 
12b-1 plans.
    6. QCM will charge an annual advisory fee of 0.05% of each Parent 
Fund's average daily net assets. Applicants state that this advisory 
fee is based entirely on services that are provided in addition to, 
rather than duplicative of, the services provided pursuant to an 
Underlying Fund's advisory contract. Moreover, before approving any 
advisory contract under section 15 of the Act, the board of trustees of 
each Parent Fund, including a majority of the trustees who are not 
``interested persons,'' as defined in section 2(a)(19) (``Independent 
Trustees''), will have found that advisory fees charged under such 
contract are based on services provided that are in addition to, rather 
than duplicative of, services provided pursuant to any Underlying 
Fund's advisory contract. Applicants assert that layering of advisory 
fees will therefore be avoided.
    7. Applicants state that shareholder servicing costs, such as costs 
for transfer agency functions as well as printing and mailing 
prospectuses, shareholders reports, and proxies, will be borne by 
investors at the Parent Fund level. Layering will be avoided, however, 
because the shareholder servicing costs at the Underlying Fund level 
associated with the single account of a Parent Fund will be minimal. 
Certain non-shareholder servicing administrative expenses (e.g., 
custodial, accounting, auditing, legal, and trustee fees) will 
necessarily be incurred by both the Parent Funds and the Underlying 
Funds. BISYS, as administrator of each of the Parent Funds, will be 
responsible for providing these services, or arranging for these 
services to be provided, to the Parent Funds. These duplicative 
expenses are expected to be minimal, are expected to be substantially 
offset by the reduction in shareholder servicing costs for the 
Underlying Funds, and do not raise the same concerns as the fund or 
funds structures Congress sought to limit in enacting section 12(d)(1). 
Further, applicants have agreed that any sales charges or service fees 
charged with respect to the Parent Funds, including those paid by the 
Parent Fund with respect to securities of the Underlying Funds, will 
not exceed the limits set forth in the Rules of Fair Practice of the 
National Association of Securities Dealers, Inc. (``NASD'').

B. Section 17(a)

    1. Section 17(a) makes it unlawful for an affiliated person of a 
registered investment company, or any affiliated person of such person, 
to sell securities to, or purchase securities from, the company. The 
Parent Funds and the Underlying Funds may be considered affiliated 
persons because they are each advised by QCM. An Underlying Fund's 
issuance of its shares to a Parent Fund may be considered a sale 
prohibited by section 17(a).
    2. Section 17(b) provides that the SEC shall exempt a proposed 
transaction from section 17(a) if evidence establishes that: (a) the 
terms of the proposed transaction are reasonable and fair and do not 
involve overreaching; (b) the proposed transaction is consistent with 
the policies of the registered investment company involved; and (c) the 
proposed transaction is consistent with the general provisions of the 
Act. Applicants request an exemption under sections 6(c) and 17(b) to 
permit the Underlying Funds to sell their shares to the Parent 
Funds.\1\ Applicants believe that the proposed transactions meet the 
standards of sections 6(c) and 17(b).

    \1\ Section 17(b) applies to specific proposed transactions, 
rather than an ongoing series of future transactions. See Keystone 
Custodian Funds, 21 S.E.C. 295, 298-99 (1945). Section 6(c) 
frequently is used to grant relief from section 17(a) to permit an 
ongoing series of future transactions.
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Applicants' Conditions
    Applicants agree that the order granting the requested relief shall 
be subject to the following conditions:
    1. The Parent Funds and each Underlying Fund will be part of the 
same ``group of investment companies'' as defined in rule 11a-3 under 
the Act.
    2. No Underlying Fund shall acquire securities of any other 
investment company in excess of the limits contained in section 
12(d)(1)(A) of the Act.
    3. A majority of the trustees of each Parent Fund will be 
Independent Trustees.
    4. Before approving any advisory contract under section 15 of the 
Act, the board of trustees of each Parent Fund, including the 
Independent Trustees, shall find advisory fees charged under such 
contract are based on services provided that are in addition to, rather 
than duplicative of, services provided pursuant to any Underlying 
Fund's advisory contract. Such finding, and the basis upon which the 
finding was made, will be recorded fully in the minute books of the 
Parent Fund.
    5. Any sales charges or service fees charged with respect to 
securities of any Parent Fund, when aggregated with any sales charges 
or service fees paid by the Parent Fund with respect to shares of the 
Underlying Funds, shall not exceed the limits set forth in Article III, 
section 26, of the Rules of Fair Practice of the NASD.
    6. The applicants agree to provide the following information, in 
electronic format, to the Chief Financial Analyst of the SEC's Division 
of Investment Management: monthly average total assets of each Parent 
Fund and each of its Underlying Funds; monthly purchases and 
redemptions (other than by exchange) for each Parent Fund and each of 
its Underlying Funds; monthly exchanges into and out of each Parent 
Fund and each of its Underlying Funds; month-end allocations of each 
Parent Fund's assets among its Underlying Funds; annual expense ratios 
for each Parent Fund and each of its Underlying Funds; and a 
description of any vote taken by the shareholders of any Underlying 
Fund, including a statement of the percentage of votes cast for and 
against the proposal by the Parent Funds and by the other shareholders 
of the Underlying Funds. Such information will be provided as soon as 
reasonably practicable following each fiscal year-end of the Parent 
Funds (unless the Chief Financial Analyst shall notify applicants in 
writing that such information need no longer be submitted).

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-9020 Filed 4-10-96; 8:45 am]
BILLING CODE 8010-01-M