[Federal Register Volume 63, Number 219 (Friday, November 13, 1998)]
[Notices]
[Pages 63515-63516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30406]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 23527; 812-11346]


Fundamental Funds, Inc., et al.; Notice of Application

November 6, 1998.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of application under section 6(c) of the Investment 
Company Act of 1940 (the ``Act'') for an exemption from section 15(a) 
of the Act.

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SUMMARY OF THE APPLICATION: The requested order would permit the 
implementation, without prior shareholder approval, of new investment 
advisory agreements (``Interim Agreements'') for a period beginning on 
the date the requested order is issued (``Order Date'') and continuing 
through the date the Interim Agreements are approved or disapproved by 
the shareholders of certain registered investment companies, but in no 
event longer than 120 days from the Order Date (``Interim Period''). 
The order also would permit the payment of all fees earned under the 
Interim Agreements following shareholder approval.

APPLICANTS: Fundamental Funds, Inc. (``Fundamental Funds''), 
Fundamental Fixed-Income Fund (``Fixed-Income Fund''), The California 
Muni Fund (``Muni Fund,'' together with Fundamental Funds and Fixed-
Income Fund, the ``Funds''), and Cornerstone Equity Advisors, Inc. 
(``Cornerstone'').

FILING DATES: The application was filed on October 8, 1998. Applicants 
have agreed to file an amendment during the notice period, the 
substance of which is reflected in this notice.

HEARING OR NOTIFICATION OF HEARING: An order granting the application 
will be issued unless the Commission orders a hearing. Interested 
persons may request a hearing by writing to the Commission's Secretary 
and serving applicants with a copy of the request, personally or by 
mail. Hearing requests should be received by the Commission by 5:30 
p.m. on November 27, 1998, 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 Commission's Secretary.

ADDRESSES: Secretary, Securities and Exchange Commission, 450 Fifth 
Street, N.W., Washington, D.C. 20549. Funds, 67 Wall Street, New York, 
NY 10005. Cornerstone, 67 Wall Street, New York, NY 10005.

FOR FURTHER INFORMATION CONTACT:
Kathleen L. Knisely, Staff Attorney, at (202) 942-0517, or Nadya B. 
Roytblat, Assistant Director, 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 fee at the 
Commission's Public Reference Branch, 450 Fifth Street, N.W., 
Washington, D.C. 20549 (tel. 202-942-8090).

Applicants' Representations

    1. The Funds are registered under the Act as open-end management 
investment companies. Fundamental Funds, a Maryland corporation, is 
organized as a series investment company and currently offers a single 
portfolio. Fixed-Income Fund, a Massachusetts business trust, is 
organized as a series company and currently offers three portfolios. 
Muni Fund, a Massachusetts business trust, offers a single portfolio. 
Cornerstone is registered as an investment adviser under the Investment 
Advisers Act of 1940.
    2. On May 31, 1998, the boards of directors of the Funds 
(``Boards''), including a majority of directors who are not 
``interested persons'' under section 2(a)(19) of the Act, decided not 
to renew the Funds' investment advisory agreement with Fundamental 
Portfolio Advisors, Inc. (``FPA Agreements''). Instead, the Boards 
entered into an interim investment advisory agreement with Tocqueville 
Asset Management L.P. (``Tocqueville'') in reliance upon rule 15a-4 
under the Act. Tocqueville's selection was made pending approval by the 
Funds' shareholders of an agreement and plan of reorganization 
(``Tocqueville Reorganization'') whereby assets of each of the Funds 
would be transferred to a separate newly-created series of The 
Tocqueville Trust. In August 1998, the Boards decided to abandon the 
plans for the Tocqueville Reorganization and pursue other investment 
management arrangements.
    3. On September 25, 1998, in accordance with section 15(c) of the 
Act, the Boards approved the Interim Agreements with Cornerstone 
pending its approval as successor adviser to the Funds and voted to 
recommend that the Interim Agreements be submitted to Funds' 
shareholders for approval.\1\ Applicants anticipate that the Funds will 
distribute the proxy materials to the Funds' sharholders in November, 
1998 and hold the shareholder meeting no later than January 26, 1999.
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    \1\ Each Board consisted solely of two disinterested director. 
Each Board currently consists of a single disinterested director.
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    4. Applicants request an exemption to permit: (1) the 
implementation prior to obtaining shareholder approval, of the Interim 
Agreements for a period beginning on the Order Date and continuing 
through the date the Interim

[[Page 63516]]

Agreements are approved or disapproved by the shareholders of the 
Funds, but in no event longer than 120 days from the Order Date; and 
(ii) Cornerstone to receive, upon approval of the Interim Agreements by 
the Funds' shareholders, any and all fees earned under the Interim 
Agreements during the Interim Period. Applicants state that the Interim 
Agreements will be the same as the FPA Agreements that had been 
approved by the Funds' shareholders, except with respect to the 
parties, the effective and termination dates, and the inclusion of 
escrow arrangements described below.
    5. Fees earned under the Interim Agreements during the Interim 
Period will be maintained in an interest-bearing escrow account with an 
unaffiliated bank acting as escrow agent. The escrow agent will release 
the amounts held in the escrow account (including any interest earned): 
(i) to Cornerstone, only upon approval of the Interim Agreements by the 
shareholders of the relevant Fund; or (ii) to the relevant Fund, in the 
absence of approval by its shareholders. Before amounts are released 
from the escrow account, the Boards will be notified.

Applicants' Legal Analysis

    1. Section 15(a) of the Act provides, in pertinent part, that it 
shall be unlawful for any person to serve or act as 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 the registered investment company. 
Applicants state that, as a result of the timing of Cornerstone's 
selection as the new investment adviser, the Funds were unable to 
solicit shareholder approval of the Interim Agreements.
    2. Rule 15a-4 under the Act provides, in pertinent part, that if an 
investment advisor contract with a registered investment company is 
terminated by assignment, the adviser may continue to serve for 120 
days under a written contract that has not been approved by the 
company's shareholders, provided that: (i) the new contract is approved 
by that company's board of directors (including a majority of non-
interested directors); and (i) 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 the company's shareholders. 
Applicants state that they already have relied on rule 15a-4 for a 120 
day period and therefore require a Commission order for the Interim 
Period.
    3. Section 6(c) of the Act provides that the Commission 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 states that the requested relief meets this standard.
    4. Applicants represent that the Interim Agreements will have the 
same terms and conditions as the FPA Agreements, except for the 
parties, dates of commencement and termination and the inclusion of 
escrow arrangements. Applicants also assert that each Fund will 
receive, during the Interim Period, the same investment advisory 
services, provided in substantially the same manner and at the same fee 
levels, and by personnel having substantially equivalent 
Qualifications, as it received under the FPA Agreements. Applicants 
state that, in the event there is any material change in the personnel 
providing material services, Cornerstone will apprise and consult the 
Boards to assure that the Boards are satisfied that the services 
provided by Cornerstone will not be diminished in scope or quality.
    5. Applicants also state that the Boards diligently discharged 
their responsibilities by closely examining and reviewing numerous 
possibilities for management of the Funds during the period that the 
Funds relied on rule 15a-4. In light of various business 
considerations, operational issues, and due diligence issues, the 
selection of a new interim investment adviser was time-consuming. 
Applicants state, however, that the Boards conducted this search in a 
timely and efficient manner.
    6. Applicants contend that to deprive Cornerstone of its fees for 
the Interim Period would be an unduly harsh and unreasonable penalty. 
Applicants note that the fees payable to Cornerstone under the Interim 
Agreements will not be released to Cornerstone by the escrow agent 
without the approval of the Funds' shareholders.

Applicants' Conditions

    Applicants agree that the order granting the requested relief will 
be subject to the following conditions:
    1. The Interim Agreements will have substantially identical terms 
and conditions as the FPA Agreements except for the parties, dates of 
commencement and termination and escrow provisions.
    2. Fees earned by Cornerstone in respect of the Interim Agreements 
during the Interim Period will be paid into an interest-bearing escrow 
account with an unaffiliated escrow agent, and amounts in the account 
(including interest earned on such paid fees) will be paid (a) to 
Cornerstone only upon approval of the related Fund shareholder, or (b) 
to the Funds, in the absence of such approval by the shareholders of 
the Funds.
    3. Each Fund will hold a meeting of shareholders to vote on 
approval of the Interim Agreements on or before the 120th day following 
the Order Date.
    4. Cornerstone will pay the cost of soliciting shareholder approval 
of the Interim Agreements.
    5. Cornerstone will take all appropriate steps so that the scope 
and quality of advisory and other services provided to the Funds under 
the Interim Agreements will be at least equivalent, in the judgment of 
the Boards, to the scope and quality of services that were provided 
under the FPA Agreements. If personnel providing material services 
during the Interim Period change materially. Cornerstone will apprise 
and consult the Boards to assure that the Boards are satisfied that the 
services provided will not be diminished in scope or quality.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 98-30406 Filed 11-2-98; 8:45 am]
BILLING CODE 8010-01-M