[Federal Register Volume 62, Number 132 (Thursday, July 10, 1997)]
[Notices]
[Pages 37086-37088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17988]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 22733; 812-10654]


Qualivest Funds, et al.; Notice of Application

July 2, 1997.
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: Qualivest Funds on behalf of each of its investment 
portfolios (each portfolio, a ``Fund''), Qualivest Capital Management, 
Inc. (``Adviser''), and First Bank National Association (``New 
Adviser'').

RELEVANT ACT SECTIONS: Order requested under section 6(c) granting an 
exemption from section 15(a).

SUMMARY OF APPLICATION: Adviser's parent, U.S. Bancorp, will merge with 
and into New Adviser's parent, First Bank System, Inc. (``FBS''), which 
will result in the assignment, and thus the termination, of the Funds' 
existing advisory agreements with Adviser. Applicants request an order 
to permit the implementation, without shareholder approval, of interim 
advisory agreements between the Funds and New Adviser (``Interim 
Advisory Agreements'') for a period commencing on the date the merger 
is consummated (but in no event later than September 30, 1997) and 
continuing for a period of up to the earlier of 120 days or the date 
the Interim Advisory Agreements are approved or disapproved by 
shareholders of the Funds (``Interim Period''). The order also would 
permit New Adviser to receive, following shareholder approval of the 
related Interim Advisory Agreement, all fees earned during the Interim 
Period.

FILING DATES: The application was filed on May 12, 1997 and amended on 
June 12, 1997.

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 28, 1997 
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: Qualivest Funds, 3425 Stelzer Road, Columbus, OH 
43219-3035; Adviser, 111 S.W. Fifth Avenue, Suite T-15, Portland, OR 
97204; New Adviser, 601 Second Avenue South, Minneapolis, MN 55402.

FOR FURTHER INFORMATION CONTACT: Suzanne Krudys, Senior Counsel, at 
(202) 942-0641 or Mercer E. Bullard, 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.

Applicant's Representations

    1. Qualivest Funds, a business trust organized under the laws of 
the Commonwealth of Massachusetts, is registered as an open-end 
management investment company under the Act. It is organized as a 
series investment company and currently offers 15 separate Funds, of 
which 13 are currently offered for sale to the public. Adviser, a 
registered investment adviser under the Investment Advisers Act of 
1940, currently serves as investment adviser to the Funds. Adviser is a 
wholly-owned subsidiary of United States National Bank of Oregon, which 
is a wholly-owned subsidiary of U.S. Bancorp. New Adviser serves as the 
investment adviser and manager of the First American Family of Funds 
through its First Asset Management Group. New Adviser is a direct, 
wholly-owned subsidiary of FBS.
    2. On March 20, 1997, FBS and U.S. Bancorp jointly announced the 
signing of a definitive agreement for FBS to acquire U.S. Bancorp (the 
``Merger''). Under the merger agreement, U.S. Bancorp shareholders will 
receive 0.755 shares of FBS common stock for each share of U.S. Bancorp 
common stock. FBS will be the surviving corporation and will use the 
name U.S. Bancorp. Applicants expect the Merger to be consummated 
sometime before September 30, 1997, subject to the satisfaction of 
certain conditions, including receipt of certain regulatory approvals.
    3. At a meeting on May 8, 1997, the board of trustees of Qualivest 
Funds (``Board'') voted in the manner prescribed by section 15(c) of 
the Act to approve Interim Advisory Agreements and to recommend that 
shareholders of each Fund approve the related Interim Advisory 
Agreement during the 120-day period commencing on the earlier of the 
consummation of the Merger (``Effective Date'') or September 30, 1997. 
The Board determined to retain New Adviser rather than the current 
Adviser after considering the capabilities of New Adviser and 
determining that it was indeed well-qualified to manage each of the 
Funds, and the exigent circumstances with which the Board was faced. 
Applicants expect that at least six of the eleven Fund portfolio 
managers now employed by Adviser will leave the employ of the Adviser 
by or shortly after the Effective Date. As a result of these 
departures, at least four Funds will lose both their portfolio co-
managers; at least another three Funds will lose one of their two 
portfolio co-managers; and the committee which manages another four 
Funds will lose more than half its members. In light of these facts, 
the Board determined that doubt exists whether the remaining personnel 
of Adviser, acting alone,

[[Page 37087]]

would be able to provide an appropriate scope and quality of advisory 
services to the Funds during the Interim Period.
    4. In order to provide continuity of Fund management and to avoid 
harm to the Funds, applicants propose that the remaining Fund portfolio 
managers now employed by the Adviser become employees of the New 
Adviser on the Effective Date of the parent company Merger. These 
individuals, together with the investment professionals already 
employed by the New Adviser, then would assume management of the Funds 
on the Effective Date pursuant to a new advisory agreement between the 
New Adviser and the Funds.
    5. All investment advisory fees paid by the Funds to New Adviser 
during the Interim Period will be paid to an escrow agent (which will 
be an unaffiliated third party institution), and, with respect to each 
Fund, none of such fees held in escrow will be paid to New Adviser 
until the related shareholder approval has been obtained. If 
shareholders of any Fund fail to approve the Interim Advisory 
Agreement, the escrow agent will pay to the Fund the applicable escrow 
amounts (including interest earned). The escrow agent will release the 
escrow funds only upon receipt of a certificate from the officers of 
Qualivest Funds stating, if the escrow funds are to be delivered to New 
Adviser, that the Interim Advisory Agreement has received the requisite 
shareholder vote, or, if the escrow funds are to be delivered to any 
Fund, that the Interim Period has ended and the Interim Advisory 
Agreement has not received the requisite shareholder vote. Before any 
such certificate is sent, the members of the Board that are not 
interested persons as defined in section 2(a)(19) of the Act 
(``Independent Trustees'') of Qualivest Funds will be notified.
    6. Applicants request relief from section 15(a) to permit the Funds 
to implement Interim Advisory Agreements during the Interim Period. In 
the event the Effective Date is later than September 30, 1997, the 
Interim Period will commence on September 30, 1997. Each Interim 
Advisory Agreement will contain the same terms and conditions as the 
existing advisory agreement between the related Fund and Adviser (each, 
an ``Existing Advisory Agreement''), except for the effective and 
termination dates, escrow provisions, and the substitution of New 
Adviser in place of Adviser. Applicants also request an exemption to 
permit New Adviser to receive from each Fund, subject to shareholder 
approval of the related Interim Advisory Agreement and to the escrow 
arrangement described in the application, any and all fees earned 
during the Interim Period under such Interim Advisory Agreement. The 
fees to be paid during the Interim Period will be unchanged from the 
fees to be paid under the respective Existing Advisory Agreements.

Applicants' Legal Analysis

    1. Section 15(a) of the Act provides that it shall be unlawful for 
any person to serve as an investment adviser of a registered investment 
company except pursuant to a written contract that has been approved by 
the vote of a majority of the outstanding voting securities of such 
company. Section 15(a) further requires that such written contract 
provide for automatic termination in the event of its assignment. 
Section 2(a)(4) of the Act defines ``assignment'' to include any direct 
or indirect transfer of a contract by the assignor. Applicants state 
that, on the Effective Date, Adviser will become a wholly-owned 
subsidiary of the surviving corporation. Applicants therefore believe 
that the Merger will result in the ``assignment'' of the Existing 
Advisory Agreements.
    2. Rule 15a-4 under the Act provides that, if an investment 
advisory contract with an investment company is terminated by 
assignment, an investment adviser may act as such for the company 
during the 120 day period following such termination pursuant to a 
written contract that has not been approved by the company's 
shareholders, provided that (a) the new contract is approved by the 
company's board of directors, including a majority of the non-
interested directors, (b) the compensation to be paid under the new 
contract does not exceed the compensation that would have been paid 
under the contract most recently approved by company's shareholders, 
and (c) neither the adviser nor any controlling person of the adviser 
directly or indirectly receives money or other benefit in connection 
with the assignment. Applicants state that they may not be able to rely 
on rule 15a-4 because of the benefits U.S. Bancorp's shareholders will 
receive from the Merger.
    3. Applicants contend that, because the Funds did not have 
sufficient advance notice of the Merger, it will not be possible for 
them to obtain shareholder approval of the Interim Advisory Agreements 
in accordance with section 15(a) prior to the closing of the Merger. 
Applicants state that the terms and timing of the Merger were 
determined by FBS and U.S. Bancorp in response to a number of factors 
relating principally to their commercial banking and other similar 
business concerns.
    4. Applicants state that the Board determined that retention of New 
Adviser to provide advisory services to the Funds during the Interim 
Period and employment of the remaining Fund portfolio managers of 
Adviser by New Adviser would serve Fund shareholders better than any 
alternative, in that it would (a) provide that the Funds will, to the 
extent possible under the circumstances, continue to be managed by the 
same individuals; (b) ensure that, to the extent current Fund portfolio 
managers depart Adviser, the affected Funds will be managed during the 
Interim Period by a group of investment professionals which the Board 
has determined can provide the appropriate scope and quality of 
advisory services; and (c) avoid the need for the Board to consider on 
an emergency, ad hoc basis how to proceed if and to the extent 
additional current Fund portfolio managers decide to leave Adviser. 
With respect to the third point, the Board noted that if additional 
portfolio managers were to leave Adviser, the affected Funds could be 
left essentially unmanaged until the Board could be convened to 
terminate the Existing Advisory Agreements and select and retain a new 
investment adviser. The Board also noted that, following the Effective 
Date, both Adviser and New Adviser will be subsidiaries of the same 
corporate parent. Thus, applicants note, ultimate control over the 
entity which advised the Funds during the Interim Period will rest in 
the same place regardless of whether that entity is the current Adviser 
or New Adviser.
    5. Applicants anticipate that all but three of the Funds will be 
merged into corresponding funds of the First American Family of funds 
during or by the close of the Interim Period. Applicants maintain that 
the 120 day period will give the Funds sufficient time to allow a 
single proxy solicitation to be conducted for shareholder consideration 
of an overall, comprehensive plan for reorganizing the Funds, as well 
as for shareholder consideration of the Interim Advisory Agreements. 
Applicants contend that proceeding in this manner will allow 
shareholder approval to be obtained in a cost effective manner and will 
minimize any shareholder confusion that might arise in the 
circumstances.
    6. Applicants submit that each Fund will receive during the Interim 
Period substantially comparable investment advisory services, provided 
in substantially the same manner, as it received prior to the Effective 
Date. Applicants anticipate that New Adviser will employ certain of 
Adviser's key portfolio managers and advisory

[[Page 37088]]

personnel that managed the Funds prior to the announcement of the 
Merger. In the event there is any material change in personnel 
providing advisory services under the Interim Advisory Agreements 
during the Interim Period, applicants state that New Adviser will 
apprise and consult the Board to ensure that such Board, including a 
majority of the Independent Trustees, is satisfied that the services 
provided by New Adviser will not be diminished in scope and quality. 
Applicants state that the Board's approval of the Interim Advisory 
Agreements signifies its independent determination that implementing 
the Agreements prior to shareholder approval was necessary to protect 
the Funds and their shareholders.
    7. Applicants submit that to deprive New Adviser of its customary 
fees during the Interim Period for no reason, other than the fact that 
the Merger may be deemed to result in an assignment of the Existing 
Advisory Agreements, would be unduly harsh and unreasonable penalty to 
impose upon an investment adviser. New Adviser submits that, in good 
faith and consistent with the Act and the spirit of rule 15a-4, it 
seeks to promote the interests of the Funds and their shareholders by 
undertaking the fee and other arrangements described in the 
application. Applicants state that the fees payable to New Adviser 
under the Interim Advisory Agreements have been approved by the Board, 
including a majority of the Independent Trustees, in accordance with 
their fiduciary and other obligations under the Act, and that such fees 
will not be released by the escrow agent without the approval of the 
respective Fund's shareholders.
    8. Section 6(c) provides that the SEC may exempt any person, 
security, or transaction from any provision of the Act, 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 believe that the relief requested satisfies this standard.

Applicants' Conditions

    Applicants agree as conditions to the issuance of the exemptive 
order requested by the application that:
    1. Each Interim Advisory Agreement will have the same terms and 
conditions as the respective Existing Advisory Agreement, except for 
the effective and termination dates, escrow provisions, and the 
substitution of New Adviser in place of Adviser.
    2. Fees earned by New Adviser and paid by a Fund during the Interim 
Period in accordance with the Interim Advisory Agreement will be 
maintained with as unaffiliated financial institution in an interest-
bearing escrow account, and amounts in the such account (including 
interest earned on such amounts) will be paid to New Adviser only upon 
approval of the shareholders of the related Fund or, in the absence of 
approval by such shareholders, to the Fund.
    3. The Qualivest Funds will hold meetings of shareholders to vote 
on approval of the Interim Advisory Agreements for the Funds on or 
before the 120th day following the earlier of the termination of the 
Existing Advisory Agreements on the Effective Date or September 30, 
1997.
    4. New Adviser will pay the costs of preparing and filing the 
application. New Adviser will pay the costs relating to the 
solicitation of approval of Fund shareholders, to the extent such costs 
relate to shareholder approval of the Interim Advisory Agreements 
necessitated by the Merger.
    5. New Adviser will take all appropriate actions to ensure that the 
scope and quality of advisory and other services provided to the Funds 
under the Interim Advisory Agreements will be at least equivalent, in 
the judgment of the Board, including a majority of the Independent 
Trustees, to the scope and quality of services provided under the 
Existing Advisory Agreements. In the event of any material change in 
personnel providing services pursuant to the Interim Advisory 
Agreements, New Adviser will apprise and consult the Board to assure 
that the Board, including a majority of the Independent Trustees, is 
satisfied that the services provided by New Adviser will not be 
diminished in scope or quality.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Jonathan G. Katz,
Secretary.
[FR Doc. 97-17988 Filed 7-9-97; 8:45 am]
BILLING CODE 8010-01-M