[Federal Register Volume 64, Number 89 (Monday, May 10, 1999)]
[Notices]
[Pages 25089-25091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11691]



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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 23824; 812-11566]


Warburg Pincus Asset Management, Inc., et al.; Notice of 
Application

May 5, 1999.
AGENCY: Securities and Exchange Commission (``SEC'').

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

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SUMMARY OF APPLICATION: Applicants seek an order to permit the 
implementation, without prior shareholder approval, of certain advisory 
and sub-advisory agreements in connection with the acquisition 
(``Acquisition'') of Warburg Pincus Asset Management Holdings, Inc. 
(``Warburg Holdings'') by Credit Suisse Group (``Credit Suisse''). The 
order would cover a period of up to 150 days following the later of: 
(i) The date on which the Acquisition is consummated (the ``Acquisition 
Date''), or (ii) the date on which the requested order is issued (but 
in no event later than December 31, 1999). The order also would permit 
the payment of all fees earned under the new advisory agreements during 
this period following shareholder approval.

APPLICANTS: Warburg Pincus Asset Management, Inc. (``Warburg''), Credit 
Suisse Asset Management (``CSAM-U.S.''), Abbott Capital Management, LLC 
(``Abbott'') and Blackrock Institutional Management Corporation 
(``Blackrock'') (collectively, the ``Advisers'').

FILING DATES: The application was filed on April 7, 1999. Applicants 
have agreed to file an amendment to the application, the substance of 
which is reflected in this notice, 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 May 27, 1999, 
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 SEC's 
Secretary.

ADDRESSES: Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549-
0609. Warburg, 466 Lexington Avenue, New York, NY 10017. CSAM-U.S., One 
Citicorp Center, 153 East 53rd Street, New York, NY 10022. Abbott, 50 
Rowes Wharf, Suite 240, Boston, MA 02110-3328. Blackrock, 345 Park 
Avenue, New York, NY 10154.

FOR FURTHER INFORMATION CONTACT: Janet M. Grossnickle, Attorney-
Adviser, at (202) 942-0526, or Nadya B. Roytblat, Assistant Director, 
at (202) 942-0564 (Office of Investment Company Regulation, Division of 
Investment Management).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained for a fee at the 
SEC's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 
20549-0102 (tel. 202-942-8090).

Applicants' Representations

    1. Warburg, a Delaware corporation, is an investment adviser 
registered under the Investment Advisers Act of 1940 (``Advisers 
Act''). Abbott, a Delaware limited liability company, is an investment 
adviser registered under the Advisers Act. Blackrock, a Delaware 
corporation, is an investment adviser registered under the Advisers 
Act. Warburg is a wholly-owned subsidiary of Warburg Holdings.
    2. Warburg serves as the adviser or sub-adviser to various 
management investment companies registered under the Act 
(``Funds'').\1\ Abbott serves as sub-adviser to four of the Funds, 
Warburg, Pincus Global Post-Venture Capital Fund, Inc., Warburg, Pincus 
Post-Venture Capital Fund, Inc., and the Post-Venture Capital 
Portfolios of Warburg, Pincus Institutional Fund, Inc., and Warburg, 
Pincus Trust. Blackrock serves as a sub-adviser to four of the Funds, 
but is seeking relief only with respect to two Funds, Warburg, Pincus 
WorldPerks Money Market Fund, Inc. and Warburg, Pincus WorldPerks Tax 
Free Money Market Fund, Inc. The advisory and sub-advisory agreements 
currently in effect between the Advisers and the Funds are each 
referred to as an ``Existing Advisory Agreement'' and collectively, as 
the ``Existing Advisory Agreements.''
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    \1\ Warburg serves as the adviser to the following funds: 
Warburg, Pincus Balanced Fund, Inc., Warburg, Pincus Capital 
Appreciation Fund, Warburg, Pincus Cash Reserve Fund, Inc., Warburg, 
Pincus Emerging Growth Fund, Inc., Warburg, Pincus Emerging Markets 
Fund, Inc., Warburg, Pincus Fixed Income Fund, Warburg, Pincus 
Global Fixed Income Fund, Inc., Warburg, Pincus Global Post-Venture 
Capital Fund, Inc., Warburg, Pincus Growth & Income Fund, Inc., 
Warburg, Pincus Health Sciences Fund, Inc., Warburg, Pincus 
Institutional Fund, Inc., Warburg, Pincus Intermediate Maturity 
Government Fund, Inc., Warburg, Pincus International Equity Fund, 
Inc., Warburg, Pincus International Small Company Fund, Inc., 
Warburg, Pincus Japan Growth Fund, Inc., Warburg, Pincus Japan Small 
Company Fund, Inc. Warburg, Pincus Major Foreign Markets Fund, Inc., 
Warburg, Pincus New York Intermediate Municipal Bond Fund, Inc., 
Warburg, Pincus New York Tax Exempt Fund, Inc., Warburg, Pincus 
Post-Venture Capital Funds, Inc., Warburg, Pincus Small Company 
Growth Fund, Inc., Warburg, Pincus Small Company Value Fund, Inc., 
Warburg, Pincus Trust, Warburg, Pincus Trust II, Warburg, Pincus 
WorldPerks Money Market Fund, Inc., and Warburg, Pincus WorldPerks 
Tax Free Money Market Fund, Inc. Warburg serves as a sub-adviser to 
the Growth and Income Portfolio of the Variable Investors Series 
Trust, the International Growth Fund of WM Trust II, and the 
International Growth Fund of the WM Variable Trust.
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    3. On February 15, 1999, Warburg Holdings entered into an 
acquisition agreement with Credit Suisse, under which Warburg Holdings 
will be acquired by Credit Suisse. Credit Suisse, a Switzerland 
corporation, is a global financial services company. Applicants expect 
the Acquisition to be consummated in June 1999. Upon consummation of 
the Acquisition, Credit Suisse intends to combine Warburg with CSAM-
U.S. (the ``Reorganization''). Such combined businesses are expected to 
be conducted by CSAM-U.S. as a wholly-owned U.S. subsidiary of Credit 
Suisse (the ``New Adviser''). The Reorganization is expected to occur 
simultaneously with the Acquisition. CSAM-U.S. is registered as an 
investment adviser under the Advisers Act. New Adviser will succeed to 
CSAM-U.S.'s registration under the Advisers Act after the 
Reeorganization.
    4. Applicants state that the Acquisition will result in an 
assignment and thus the automatic termination of the Existing Advisory 
Agreements. Applicants also state that the Reorganization may be deemed 
an assignment of each Fund's Existing Advisory Agreements if it does 
not occur simultaneously with the Acquisition. Applicants requests an 
exemption to permit the implementation, without prior shareholder 
approval, of new advisory and sub-advisory agreements with respect to 
the Funds (``New Advisory Agreements''). The requested exemption will 
cover the period of not more than 150 days beginning on the later of 
the Acquisition Date or the date of the issuance of the requested order 
and continuing with respect to each Fund through the date on which each 
New Advisory Agreement is approved or disapproved by the Fund's 
shareholders, but in no event later than December 31, 1999 (``Interim 
Period''). Applicants represent that the New Advisory Agreements will 
contain

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substantially the same terms and conditions as the Existing Advisory 
Agreements, except in each case for the effective and the termination 
dates. Applicants further represent that each Fund will receive, during 
the Interim Period, the same scope and quality of investment advisory 
services, provided in the same manner by substantially the same 
personnel, at the same fee levels as it received prior to the 
Acquisition.
    5. Applicants state that the board of directors of each Fund (the 
``Board'') will meet prior to the Acquisition Date to consider approval 
of the New Advisory Agreements and submission of the New Advisory 
Agreements to the shareholders for their approval, in accordance with 
section 15(c) of the Act.\2\ Applicants state that the Board will 
evaluate whether the terms of the New Advisory Agreements are in the 
best interests of the Funds and their shareholders.
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    \2\ Applicants acknowledge that, to the extent that the Board of 
any Fund cannot meet to approve a New Advisory Agreement prior to 
the Acquisition Date, such Fund may not rely on the exemptive relief 
requested in this application.
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    6. Applicants submit that it will not be possible to obtain 
shareholder approval of the New Advisory Agreements in accordance with 
section 15(a) of the Act prior to the Acquisition Date. Applicants 
state that each Fund will promptly schedule a meeting of shareholders 
to vote on the approval of the New Advisory Agreements to be held 
during the Interim Period.
    7. Applicants also request an exemption to permit the Advisers to 
receive from each Fund all fees earned under the New Advisory 
Agreements during the Interim Period, if and to the extent the New 
Advisory Agreements are approved by the shareholders of each Fund.\3\ 
Applicants propose to enter into an escrow arrangement with an 
unaffiliated financial institution (the ``Escrow Agent''). Advisory 
fees payable by the Funds to the Advisers under the New Advisory 
Agreements during the Interim Period will be paid into an interest-
bearing escrow account maintained by the Escrow Agent. The amounts in 
the Escrow account (including interest earned on such paid fees) will 
be paid to the Advisers only after the New Advisory Agreements are 
approved by the shareholders of the relevant Fund in accordance with 
section 15(a) of the Act. If shareholder approval is not obtained and 
the Interim Period has ended, the Escrow Agent will return the escrow 
amounts to the appropriate Fund. Before the release of any such escrow 
amounts, the Boards will be notified.
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    \3\ Applicants state that if the Acquisition Date precedes 
issuance of the requested order, the Advisers will continue to serve 
as Advisers after the Acquisition Date (and prior to the issuance of 
the order) in a manner consistent with their fiduciary duty to 
continue to provide advisory services to the Funds even though 
approval of the New Advisory Agreements has not yet been secured 
from the Funds' shareholders. Applicants also state that the Funds 
may be required to pay, with respect to the period until receipt of 
the order, no more than the actual out-of-pocket costs to the 
Advisers for providing advisory services.
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Applicant's 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 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 registered investment 
company. Section 15(a) of the Act further requires that such written 
contract provide for its 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 an investment advisory or 
investment sub-advisory contract by the assignor or of a controlling 
block of the assignor's outstanding voting securities by a security 
holder of the assignor.
    2. Applicants state that the Acquisition will result in an 
assignment of the Existing Advisory Agreements and the Existing 
Advisory Agreements will terminate by their own terms. Applicants 
further state that if the Reorganization occurs after the Acquisition, 
the then-existing advisory agreements will be transferred to the New 
Adviser, which could be deemed to constitute an assignment of those 
agreements.
    3. Rule 15a-4 under the Act provides, in pertinent part, that if an 
investment advisory contract with a registered investment company is 
terminated by an 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: (a) The new contract is approved 
by that 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 the 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 cannot 
rely on rule 15a-4 because of the benefits to Warburg arising from the 
Acquisition.
    4. 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 requested relief meets this standard.
    5. Applicants note that the terms and timing of the Acquisition 
were determined in response to a number of factors beyond the scope of 
the Act and substantially unrelated to the Funds. Applicants state that 
it may not be possible for the Funds to obtain shareholder approval of 
the New Advisory Agreements prior to the Acquisition Date. Applicants 
submit that the Boards will meet to approve the New Advisory Agreements 
prior to the Acquisition Date, in accordance with section 15(c) under 
the Act.
    6. Applicants submit that the Advisers will take all appropriate 
actions to ensure that the scope and quality of advisory and other 
services provided to the Funds during the Interim Period will be at 
least equivalent to the scope and quality of services previously 
provided. During the Interim Period, the Advisers will operated under 
the New Advisory Agreements, which will be substantially the same as 
the respective Existing Advisory Agreements, except for the effective 
and the termination dates. Applicants state that the fees to be paid 
during the Interim Period will not be greater than the fees currently 
paid by the Funds. Applicants also assert that allowing the 
implementation of the New Advisory Agreements will ensure that there 
will be no disruption to the investment program and the delivery of 
related services to the Funds.

Applicant's Conditions

    Applicants agree as conditions to the issuance of the exemptive 
order requested by the application that:
    1. The New Advisory Agreements will contain substantially the same 
terms and conditions as the Existing Advisory Agreements, except for 
the dates of execution and termination.
    2. The portion of the advisory fees earned by the Advisers during 
the Interim Period will be maintained in an interest-bearing escrow 
account (including interest earned on such amounts), and amounts in the 
account will be paid: (a) To the applicable Adviser after the requisite 
approval of each New Advisory Agreement by the relevant Fund's 
shareholders is obtained; or (b) in the absence of such

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approval by the end of the Interim Period, to the Fund.
    3. Each Fund will promptly schedule a meeting of shareholders to 
vote on the approval of the New Advisory Agreements to be held during 
the Interim Period.
    4. Warburg will pay the costs of preparing and filing the 
application, and Warburg and Credit Suisse will pay the costs relating 
to the solicitation and approval of the Funds' shareholders of the New 
Advisory Agreements.
    5. The Advisers will take all appropriate actions to ensure that 
the scope and quality of advisory and other services provided to the 
Funds by the Advisers during the Interim Period will be at least 
equivalent, in the judgment of the respective Boards, including a 
majority of the directors who are not ``interested persons'' of the 
Funds, as defined in section 2(a)(19) of the Act (``Disinterested 
Directors''), to the scope and quality of services currently provided 
under the Existing Advisory Agreements. In the event of any material 
change in the personnel providing services pursuant to the New Advisory 
Agreements, the Advisers will apprise and consult with the relevant 
Fund's Board to ensure that the Boards, including a majority of the 
Disinterested Directors, are satisfied that the services provided will 
not be diminished in scope or quality.

    For the SEC, by the Division of Investment Management, pursuant 
to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-11691 Filed 5-7-99; 8:45 am]
BILLING CODE 8010-01-M