[Federal Register Volume 64, Number 174 (Thursday, September 9, 1999)]
[Notices]
[Pages 49032-49034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23388]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 23987-812-11324]


The Galaxy Fund, et al.; Notice of Application

September 1, 1999.
AGENCY: Securities and Exchange Commission (``SEC'').

ACTION: Notice of application for an order under section 17(d) of the 
Investment Company Act of 1940 (the ``Act'') and rule 17d-1 under the 
Act.

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    Summary of Applicant: Applicants request an order to permit certain 
registered management investment companies and private accounts to 
deposit their uninvested cash and cash collateral from securities 
lending transactions in joint accounts that invest in short-term 
investments.
    Applicants: The Galaxy Fund (``Galaxy''), The Galaxy VIP Fund 
(``Galaxy VIP''), Galaxy Fund II (``Galaxy II'') (collectively the 
``Trusts''), Fleet Investment Advisors, Inc. (``Fleet'') and Columbia 
Management Co. (``Columbia'').
    Filing Dates: The application was filed on September 24, 1998, and 
amended on August 10, 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 
September 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. Applicants: Trusts, 4400 Computer Drive, Westboro, Massachusetts 
01581-5108; Fleet, 75 State Street, Boston, Massachusetts 02109-1810; 
Columbia, 1300 SW Sixth Avenue, P.O. Box 1350, Portland, Oregon 97207-
1350.

FOR FURTHER INFORMATION CONTACT: Bruce R. MacNeil, Staff Attorney, at 
(202) 942-0634, or Michael W. Mundt, 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 at the 
SEC's Public Reference Branch, 450 Fifth Street, NW, Washington, DC 
20549-0102 (tel. No. 202-942-8090).

Applicants' Representations

    1. The Trusts are open-end management investment companies 
registered under the Act. Each Trust is comprised of multiple series 
(each a ``Fund,'' collectively the ``Funds''). The assets of the Funds 
are held by The Chase Manhattan Bank as custodian (the ``Custodian''), 
which is not affiliated with Fleet or Columbia.
    2. Fleet, an investment adviser registered under the Investment 
Advisers Act of 1940 (``Advisers Act'') and an indirect wholly-owned 
subsidiary of Fleet Financial Group, Inc. (``FFG''), serves as 
investment adviser for each of the Funds of Galaxy and Galaxy II and 
certain Funds of Galaxy VIP. Fleet also serves as investment adviser or 
sub-adviser to individual, corporate, charitable and retirement 
accounts (``Private Accounts'').\1\ Columbia, an investment adviser 
registered under the Advisers Act and an indirect wholly-owned 
subsidiary of FFG, serves as investment adviser for certain Funds of 
Galaxy VIP. Fleet and Columbia are collectively referred to as the 
``Advisers.''
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    \1\ For purposes of the application, the term ``Fleet'' 
includes, in addition to Fleet Investment Advisers, Inc., any other 
person controlling, controlled by, or under common control with 
Fleet Investment Advisers, Inc. that acts in the future as an 
investment adviser to a registered management investment company or 
a Private Account.
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    3. Applicants request that any relief granted also apply to (i) all 
future series of the Trusts and each series of any other existing or 
future registered management investment company that is in the future 
advised or sub-advised by Fleet (``Future Funds,'' together with the 
Funds, the ``Portfolios'') \2\ and (ii) Private Accounts.\3\
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    \2\ The requested relief would apply to Future Funds that are 
sub-advised by Fleet to the extent that Fleet manages the Cash 
Balances (as defined below) of the Future Fund.
    \3\ All existing registered management investment companies that 
intend to rely on the requested order are named as applicants. Any 
Future Fund or Private Account that relies on the requested order 
will do so only in accordance with the terms and conditions 
contained in the application.
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    4. At the end of each trading day, the Portfolios and the Private 
Accounts (``Participants'') may have uninvested

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cash comprised of cash attributable to shareholder or investment 
activity (``Uninvested Cash''). Currently, the Advisers must purchase 
short-term investments separately on behalf of each Portfolio as 
authorized by a Portfolio's investment policies and restrictions. 
Applicants assert that these separate purchases result in certain 
inefficiencies, limitations on the returns that some or all of the 
Participants could otherwise achieve, and higher costs.
    5. Several of the Portfolios are authorized to engage in securities 
lending transactions for which the Custodian or another person that may 
or may not be affiliated with the Advisers or the Portfolios may serve 
as lending agent (``Securities Lending Agent'').\4\ In connection with 
these transactions, the Portfolios could receive cash collateral 
(``Cash Collateral,'' and together with Uninvested Cash, ``Cash 
Balances'').
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    \4\ Applicants state that prior to the appointment of any 
affiliated person of the Advisers or Portfolios as Securities 
Lending Agent, applicants will seek appropriate exemptive relief 
from the SEC.
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    6. Applicants propose to deposit Cash Balances into one or more 
joint accounts (``Joint Accounts'') established at the Custodian. The 
daily balance in the Joint Accounts will be invested in one or more of 
the following: (i) repurchase agreements ``collateralized fully'' as 
defined in rule 2a-7 under the Act; \5\ (ii) interest bearing or 
discounted commercial paper, including United States dollar denominated 
commercial paper of foreign issuers; and (iii) any other short-term 
money market instruments that constitute ``eligible securities'' (as 
defined in rule 2a-7 under the Act) (collectively, ``Short-Term 
Investments'').
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    \5\ The Portfolios will enter into ``hold-in-custody'' 
repurchase agreements (i.e., repurchase agreements where the 
counterparty or one of its affiliated persons may have possession 
of, or control over, the collateral subject to the agreement) only 
where cash is received late in the business day and otherwise would 
be unavailable for investment.
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    7. Any repurchase agreements entered into through a Joint Account 
will comply with Investment Company Act Release No. 13005 (February 2, 
1983) and any other existing and future staff positions taken by the 
SEC and the staff by rule, release, letter or otherwise relating to 
repurchase agreement transactions. In the event that the SEC or the 
staff sets forth guidelines with respect to other Short-Term 
Investments, all such investments made through the Joint Accounts will 
comply with these guidelines. All purchases through the Joint Accounts 
will comply with all present and future SEC and staff positions 
relating to the investment of Cash Collateral in connection with 
securities lending activities.
    8. Participants will invest through a Joint Account only to the 
extent that, regardless of the Joint Accounts, they would desire to 
invest in Short-Term Investments that are consistent with their 
respective investment objectives, policies and restrictions. A 
Participant's decision to use a Joint Account will be based on the same 
factors as its decision to make any other Short-Term Investment.
    9. The Advisers will be responsible for investing Cash Balances 
(unless the authority to invest Cash Collateral in instruments pre-
approved by the Adviser rests with the Securities Lending Agent) held 
in the Joint Accounts, establishing accounting and control procedures, 
operating the Joint Accounts, and ensuring fair treatment of 
Participants. The Advisers will not participate monetarily in the Joint 
Accounts.

Applicants' Legal Analysis

    1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
an affiliated person of a registered investment company, or an 
affiliated person of such a person, acting as principal, from 
participating in any joint enterprise or arrangement in which that 
investment company is a participant, unless the SEC has issued an order 
authorizing the arrangement. In passing on these applications, the SEC 
considers whether the participation of the registered investment 
company in the proposed joint arrangement is consistent with the 
provisions, policies, and purposes of the Act and the extent to which 
the participation is on a basis different from or less advantageous 
than that of other participants.
    2. Section 2(a)(3)(C) of the Act defines an ``affiliated person'' 
of another person to include any person directly or indirectly 
controlling, controlled by, or under common control with, the other 
person. Applicants state that the Participants may be considered 
``affiliated persons'' because they may be deemed to be under the 
common control of the Advisers. Applicants state that the Participants, 
by participating in the Joint Accounts, and the Advisers, by managing 
the Joint Accounts, could be deemed to be ``joint participants'' in a 
transaction within the meaning of section 17(d). In addition, 
applicants state that each Joint Account could be deemed to be a 
``joint enterprise or other joint arrangement'' within the meaning of 
rule 17d-1.
    3. Applicants submit that the proposed Joint Accounts meet the 
criteria of rule 17d-1 for issuance of an order. Applicants assert that 
no Portfolio would be in a less favorable position than any other 
Participant as a result of participating in the Joint Accounts. Each 
Participant's liability on any Short-Term Investment will be limited to 
its interest in the Short-Term Investment. Applicants also assert that 
the proposed operation of the Joint Accounts will not result in any 
conflicts of interest among any of the Participants or Advisers.
    4. Applicants state that the operation of the Joint Accounts could 
result in certain benefits to the Participants. The Participants may 
earn a higher rate of return on investments through the Joint Accounts 
relative to the returns they could earn individually. Under most market 
conditions, applicants assert, it is possible to negotiate a rate of 
return on larger investments that is higher than the rate available on 
smaller investments. In addition, applicants state that the enhanced 
purchasing power available through a Joint Account may increase the 
number of dealers willing to enter into Short-Term Investments with the 
Participants and may reduce the possibility that a Participant's Cash 
Balances would remain uninvested. Finally, the Joint Accounts may 
result in certain administrative efficiencies and lessen the potential 
for error by reducing the number of trade tickets and cash wires that 
counterparties, the Custodian and the Advisers must process.

Applicants' Conditions

    Applicants agree that the order granting the requested relief will 
be subject to the following conditions:
    1. The Joint Accounts will not be distinguishable from any other 
accounts maintained by Participants at the Custodian except that Cash 
Balances from Participants will be deposited in the Joint Accounts on a 
commingled basis. The Joint Accounts will not have a separate existence 
and will not have indicia of a separate legal entity. The sole function 
of the Joint Accounts will be to provide a convenient way of 
aggregating individual transactions which would otherwise require daily 
management by the Advisers of Cash Balances.
    2. Cash Balances in the Joint Accounts will be invested in Short-
Term Investments as directed by the Advisers (or, in the case of Cash 
Collateral, by a Securities Lending Agent, if the authority to invest 
Cash Collateral in instruments pre-approved by the Adviser rests with 
the Securities Lending Agent). Short-Term Investments that are 
repurchase agreements would have a remaining maturity of seven (7) days 
or less and other Short-Term Investments would

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have a remaining maturity of 90 days or less, calculated in accordance 
with rule 2a-7 under the Act. Cash Collateral in a Joint Account would 
be invested in Short-Term Investments that have a remaining maturity of 
397 days or less, calculated in accordance with rule 2a-7 under the 
Act.
    3. All assets held in the Joint Accounts will be valued on an 
amortized cost basis to the extent permitted by applicable SEC 
releases, rules or orders.
    4. Each Participant that is a registered investment company valuing 
its net assets in reliance on rule 2a-7 under the Act will use the 
average maturity of the instruments in the Joint Account in which such 
Participant has an interest (determined on a dollar-weighted basis) for 
the purpose of computing its average portfolio maturity with respect to 
its portion of the assets held in a Joint Account on that day.
    5. In order to ensure that there will be no opportunity for any 
Participant to use any part of a balance of a Joint Account credited to 
another Participant, no Participant will be allowed to create a 
negative balance in any Joint Account for any reason, although each 
Participant will be permitted to draw down its entire balance at any 
time, provided that the Advisers determine that such draw-down would 
have no significant adverse impact on any other Participant in that 
Joint Account. Each Participant's decision to invest in a Joint Account 
would be solely at its option, and no Participant will be obligated to 
invest in a Joint Account or to maintain any minimum balance in a Joint 
Account. In addition, each Participant will retain the sole rights of 
ownership to any of its assets invested in the Joint Accounts, 
including interest payable on such assets invested in the Joint 
Accounts.
    6. The Advisers will administer the investment of Cash Balances in, 
and the operation of, the Joint Accounts as part of their general 
duties under their advisory agreements with the Trusts and will not 
collect any additional or separate fees for advising any Joint Account.
    7. The administration of the Joint Accounts will be within the 
fidelity bond coverage required by section 17(g) of the Act and rule 
17g-1 thereunder.
    8. The boards of trustees or directors (``Boards'') of each Trust 
will adopt procedures pursuant to which the Joint Accounts will 
operate, which will be reasonably designed to provide that the 
requirements of this application will be met. The Boards will make and 
approve such changes as they deem necessary to ensure that such 
procedures are followed. In addition, the Boards will determine, no 
less frequently than annually, that the Joint Accounts have been 
operated in accordance with the adopted procedures and will only permit 
a Portfolio to continue to participate in the Joint Accounts if the 
Board determines that there is a reasonable likelihood that the 
Portfolio and its shareholders will benefit from the Portfolio's 
continued participation.
    9. Any Short-Term Investment made through the Joint Accounts will 
satisfy the investment policies and guidelines of all Participants 
participating in that Short-Term Investment.
    10. The Advisers, each Participant, and the Custodian will maintain 
records documenting, for any given day, each Participant's aggregate 
investment in a Joint Account and each Participant's pro rata share of 
each Short-Term Investment made through such Joint Account. The records 
maintained for each Participant shall be maintained in conformity with 
Section 31 of the Act and the rules and regulations thereunder. A 
Private Account and any investment adviser not registered under the 
Advisers Act that advises a Private Account will make available to the 
SEC, upon request, such books and records with respect to the Private 
Account's participation in the Joint Accounts.
    11. Short-Term Investments held in a Joint Account generally will 
not be sold prior to maturity, except if: (i) the Advisers believe the 
investment no longer presents minimal credit risks; (ii) the investment 
no longer satisfies the investment criteria of all Participants in the 
investment because of a downgrading or otherwise; or (iii) in the case 
of a repurchase agreement, the counterparty defaults. The Advisers may, 
however, sell any Short-Term Investment (or any fractional portion 
thereof) on behalf of some or all of the Participants prior to the 
maturity of the investment if the cost of such transactions will be 
borne solely by the selling Participants and the transaction will not 
adversely affect other Participants participating in that Joint 
Account. In no case would an early termination by less than all 
Participants be permitted if it would reduce the principal amount or 
yield received by other Participants in the Joint Account or otherwise 
adversely affect the other Participants. Each Participant participating 
in a Joint Account will be deemed to have consented to such sale and 
partition of the investments in the Joint Account.
    12. Short-Term Investments held through a Joint Account with a 
remaining maturity of more than seven days, calculated pursuant to rule 
2a-7 under the Act, will be considered illiquid and, for any 
Participant that is an open-end management investment company 
registered under the Act, subject to the restrictions that the 
Portfolio may not invest more than 10%, in the case of a money market 
fund, or 15%, in the case of a non-money market fund (or such other 
percentage as set forth by the SEC from time to time) of its net assets 
in illiquid securities, and any similar restriction set forth in the 
Portfolio's investment restrictions and policies, if the Advisers 
cannot sell the instrument, or the Portfolio's fractional interest in 
such instrument, pursuant to the preceding condition.
    13. Every Participant in the Joint Accounts will not necessarily 
have its Cash Balances invested in every Short-Term Investment. 
However, to the extent that a Participant's Cash Balances are applied 
to a particular Short-Term Investment, the Participant will participate 
in and own its proportionate share of such Short-Term Investment, and 
any income earned or accrued thereon, based upon the percentage of such 
investment purchased with Cash Balances contributed by the Participant.
    14. The Joint Accounts will be established as one or more separate 
cash accounts on behalf of the Participants at the Custodian. Each 
Participant may deposit daily all or a portion of its Cash Balances 
into the Joint Accounts. Each Participant whose regular custodian is a 
custodian other than the Custodian and that wishes to participate in a 
Joint Account, would appoint the Custodian as a sub-custodian for the 
limited purposes of: (i) receiving and disbursing Cash Balances; (ii) 
holding any Short-Term Investments; and (iii) holding any collateral 
received from a transaction effected through a Joint Account. All 
Portfolios that so appoint the Custodian will have taken all necessary 
actions to authorize such bank as its legal custodian, including all 
actions required under the Act.

    For the SEC, by the Division of Investment management, pursuant 
to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-23388 Filed 9-8-99; 8:45 am]
BILLING CODE 8010-01-M