[Federal Register Volume 59, Number 210 (Tuesday, November 1, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-27041] [[Page Unknown]] [Federal Register: November 1, 1994] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Rel. No 20660; 812-8586] The Galaxy Fund, et al.; Notice of Application October 26, 1994. AGENCY: Securities and Exchange Commission (``SEC''). ACTION: Notice of application for exemption under the Investment Company Act of 1940 (``Act''). ----------------------------------------------------------------------- APPLICANTS: The Galaxy Fund (the ``Trust''), Fleet Investment Advisors, Inc. (the ``Advisers''), and Fleet Securities, Inc. (``Fleet Securities''). RELEVANT ACT SECTIONS: Exemption requested under sections 6(c), 10(f), and 17(b) from sections 10(f) and 17(a). SUMMARY OF APPLICATION: Applicants seek an order to let the Trust's Rhode Island Municipal Bond Fund (the ``Portfolio'') purchase certain debt securities issued by the State of Rhode Island from Fleet Securities when such securities are underwritten solely by Fleet Securities or when Fleet Securities is a member of the underwriting syndicate. The order also would let the Portfolio purchase such securities from a syndicate manager of an underwriting syndicate of which Fleet Securities is a member when such securities are designated as group sales. FILING DATES: The application was filed on September 20, 1993, and amended on February 10, 1994, May 6, 1994, and June 30, 1994. 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 November 21, 1994, 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 such notification by writing to the SEC's Secretary. ADDRESSES: Secretary, SEC, 450 Fifth Street NW., Washington, DC 20549. The Trust, 440 Lincoln Street, Worcester, Massachusetts 01605-1959. The Adviser, 45 East Avenue, Rochester, New York 14604. Fleet Securities, 14 Wall Street, 27th Floor, New York, New York 10005. FOR FURTHER INFORMATION CONTACT: C. David Messman, 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 an open-end management investment company organized as a Massachusetts business trust. The Portfolio is a series of the Trust that has not yet commenced operations. The Adviser will act as investment adviser to the Portfolio. The Adviser is a wholly-owned subsidiary of Fleet Financial Group, Inc. (``Fleet Financial''), a multi-bank holding company. 2. The Portfolio's investment objective is to seek as high a level of current interest income exempt from federal income tax, and, to the extent possible, from Rhode Island personal income tax, as is consistent with relative stability of principal. To achieve this objective, the Portfolio's assets will be invested in debt securities of the State of Rhode Island, its political sub-divisions, authorities, agencies, instrumentalities, and corporations, the interest on which is exempt from Federal and Rhode Island personal income taxes (``Rhode Island Tax-Exempt Securities''), and in debt securities of other governmental issuers such as Puerto Rico, the interest on which is tax- exempt. 3. Fleet Securities, a whooly-owned subsidiary of Fleet Financial, is one of the top three underwriters in most types of Rhode Island Tax- Exempt Securities based on both dollar volume and number of new issues. From 1988 through 1993. Fleet Securities served as underwriter of approximately $5.1 billion in principal amount of Rhode Island Tax- Exempt Securities. This number represented approximately 57% of the total dollar amount, and approximately 76% of the total number, of new issues of Rhode Island Tax-Exempt Securities during those years. 4. Applicants assert that the supply of Rhode Island Tax-Exempt Securities in the secondary market historically has been limited, both as to the number of available issues and their size. Even when the amount available in the secondary market is relatively high, many of the issues available may be unsuitable for purchase by the Portfolio due to their credit quality or other characteristics. Consequently, applicants have an increased need to acquire Rhode Island Tax-Exempt Securities in underwritten offerings. 5. Applicants request relief from: (a) section 17(a) to permit the Portfolio to purchase Rhode Island Tax-Exempt Securities from Fleet Securities when such securities are underwritten solely by Fleet Securities; (b) sections 17(a) and 10(f) to permit the Portfolio to purchase Rhode Island Tax-Exempt Securities from Fleet Securities when Fleet Securities is a member of an underwriting syndicate; and (c) sections 17(a) and 10(f) to permit the Portfolio to purchase Rhode Island Tax-Exempt Securities from a syndicate manager when such securities are designated as group sales. The requested order would not permit principal transactions between Fleet Securities and the Portfolio in other securities or for Rhode Island Tax-Exempt Securities sold in the secondary market. 6. A ``group order'' is an order submitted to an underwriting syndicate which benefits all members of the syndicate according to their percentage participation in the syndicate. A group order may be distinguished from a ``designated order,'' in which the investor designates two or more members of the syndicate to retain that portion of the commission not retained by the syndicate manger(s), and from a ``member order,'' in which an investor places an order directly with a member of the syndicate that retains that portion of the commission not retained by the manager. Group orders may be filled ``net'' (the syndicate retains the entire commission) or ``less the concession'' (a dealer who is not a member of the syndicate receives part of the commission). An investor who places a ``group net order'' has no power to designate particular members of the syndicate to receive that portion of the commission not retained by the syndicate manager(s). If an offering is oversubscribed, ``group net orders'' are the first orders to be filled. Applicants believe that a significant portion of all orders submitted for oversubscribed new issues of Rhode Island Tax- Exempt Securities are submitted as group net orders. Consequently, the Portfolio must be able to place group net orders to obtain its proper share of oversubscribed new issues. ``Group sales'' result from group orders. 7. Although the terms and conditions of a new issue of tax-exempt securities may be negotiated between the issuer and the underwriters, the market for Rhode Island Tax-Exempt Securities is very competitive and the yield and price of the securities must be satisfactory to the issuer as well as to potential purchasers to consummate an offering. The issuer and the underwriters have access to current information about comparable yields and prices commanded by contemporary new issues of similar quality and maturity in Rhode Island and throughout the country, and to information about yields and market prices of outstanding Rhode Island Tax-Exempt Securities. Because the pricing of each new issue is governed by the disciplines of yield and price that exist in a competitive market, applicants believe that the pricing of securities purchased in reliance on the requested order will be fair notwithstanding the dominant position of Fleet Securities in the market for Rhode Island Tax-Exempt Securities. 8. All the transactions conducted under the requested order will comply with the provisions of rule 10f-3, other than paragraph (f). In addition, the Adviser, Fleet Securities, Fleet Financial and any affiliated persons thereof, and all other entities for which investment decisions are made by the Adviser, Fleet Securities, Fleet Financial, and/or affiliated persons thereof (``Related Purchasers'') will not in the aggregate purchase more than the greater of 4% or $500,000, but in no event more than 10%, of any class of an issue of Rhode Island Tax- Exempt Securities purchased pursuant to the requested order. As a result, any new issue of Rhode Island Tax-Exempt Securities will have to be made on such terms and conditions, including the price, as are acceptable in the new issue market. Applicants' Legal Analysis 1. Section 2(a)(3) defines the term ``affiliated person of another person'' to include, in relevant part, (a) any person directly or indirectly controlling, controlled by, or under common control with such other person; and (b) if such other person is an investment company, any investment adviser thereof. Because Fleet Securities and the Adviser are under the common control of Fleet Financial, they are affiliated persons of each other within the meaning of section 2(a)(3). 2. Section 10(f), in relevant part, prohibits an investment company from purchasing securities from an underwriting syndicate in which an affiliate of the investment company's investment adviser acts as a principal underwriter. Under section 10(f), the SEC may exempt any transaction or class of transactions from the prohibitions of section 10(f) if such exemption is consistent with the protection of investors. Rule 10f-3 permits purchases otherwise prohibited by section 10(f) under certain conditions, including that the investment company does not purchase the securities being offered directly from its affiliated persons, and that as to municipal securities, purchases from a syndicate manager are not designated as group sales or otherwise allocated to the account of an affiliated person. 3. Section 17(a) provides, in relevant part, that it is unlawful for any affiliated person of a registered investment company, or any affiliated person of such person, acting as principal, knowingly to sell any securities or other property to such registered investment company. Section 17(b) provides that, notwithstanding section 17(a), any person may file an application for an order exempting a proposed transaction from the prohibitions of section 17(a). The SEC will grant exemptive relief under section 17(b) if evidence establishes that the terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned and that the proposed transaction is consistent with the policy of each registered investment company concerned and the general policies and purposes of the Act. 4. Under section 6(c), the SEC may exempt any person or transaction from any provision of the Act or any rule thereunder 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. 5. Applicants believe that the order will benefit the shareholders of the Portfolio by providing the Portfolio with access to the new issue market for Rhode Island Tax-Exempt Securities needed to insure the availability of suitable portfolio securities. Applicants believe that absent the requested relief, the Portfolio will not be able to offer its shares to the public due to the limited availability of suitable Rhode island Tax-Exempt Securities in the secondary market and the substantial portion of new issues of Rhode Island Tax-Exempt Securities which Fleet Securities alone underwrites or with respect to which Fleet Securities participates as a member of the underwriting syndicate. 6. The procedures to be followed with respect to the proposed transactions are structured in such a way as to insure that the transactions in all instances will be reasonable and fair and will not involve overreaching on the part of any person concerned and that the requested exemption is 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 Applicant's Conditions Applicants agree to the following as conditions to the requested order: 1. Principal transactions effected pursuant to the order will be effected in accordance with all of the provisions of rule 10f-3 (other than paragraph (f) thereof). Related Purchasers will not in the aggregate purchase more than the greater of 4% or $500,000, but in no event more than 10%, of any class of an issue of Rhode Island Tax- Exempt Securities purchased pursuant to the requested order. If the aggregate number of securities the Related Purchasers wish to acquire exceeds this limit, the securities acquired will be allocated to each Related Purchaser in the proportion that the number of securities that such Related Purchaser wishes to acquire bears to the total number of securities that all Related Purchasers wish to acquire. 2. Principal transactions may be effected only in Rhode-Island Tax- Exempt Securities which at the time of purchase have one of the following investment grade ratings from at least one nationally recognized rating agency: (a) one of the two highest investment grade ratings in the case of securities with remaining maturities of one year or less; and (b) one of the top three investment grade ratings in the case of securities with remaining maturities greater than one year. 3. Principal transactions effected pursuant to the order will be limited so that no such transaction will be effected if, as a result, the value of securities held by the Portfolio acquired pursuant to the order would exceed 50% of the total net assets of the Portfolio. 4. Principal transactions will be effected pursuant to the order only when the Rhode Island Tax-Exempt Securities acquired are otherwise unavailable for purchase. If Fleet Securities is the sole underwriter of the securities, this condition is automatically fulfilled because there is no other potential seller. When Fleet Securities is a member of an underwriting syndicate, the Adviser will observe the following procedures to determine when the securities are unavailable from other members of the syndicate. Initially, the Adviser will determine the aggregate number of securities which the Related Purchasers wish to acquire. Next, the Adviser will attempt to purchase as much of this number as possible from members of the syndicate other than Fleet Securities. After acquiring as many securities as possible from such other members, the Adviser will attempt to purchase from Fleet Securities the number of securities which the Related Purchasers wish to acquire and have been unable to obtain from such other members. The securities acquired from such other members will be allocated first to the Portfolio to the extent of the number of securities it wishes to acquire, or the number of securities it is entitled to acquire based upon the relative needs of the Related Purchasers and the total number of securities purchased from such other members and from Fleet Securities, whichever is less. 5. When the Portfolio purchases Rhode Island Tax-Exempt Securities from a syndicate manager of an underwriting syndicate of which Fleet Securities is a member, the Portfolio will not (a) submit designated orders to a syndicate manager which are allocated to Fleet Securities, (b) submit group orders to a syndicate manager which designate Fleet Securities to receive any portion of the commission, or (c) otherwise allocate orders to Fleet Securities. 6. The personnel of Fleet Financial will not have any involvement with respect to proposed transactions between the Portfolio and Fleet Securities and will not attempt to influence or control in any way the Adviser's placement of orders with Fleet Securities. 7. The exemption will be valid only so long as the Adviser and Fleet Securities operate as separate entities within the holding company framework of Fleet Financial with their own separate officers and employees, separate capitalizations and separate books and records. 8. The legal departments of Fleet Securities and the Adviser will prepare guidelines for personnel of Fleet Securities and the Adviser to make certain that transactions conducted pursuant to the order comply with the conditions set forth in the application and that the parties generally maintain arm's length relationships. The legal departments will periodically monitor the activities of Fleet Securities and the Adviser to make certain that such guidelines and the conditions set forth in the application are adhered to. 9. The trustees, including a majority of the independent trustees of the Trust who are not ``interested persons'' of the Trust and have no direct or indirect financial interest in the transaction, will review no less frequently than quarterly each transaction conducted pursuant to the order since the last review and will determine that the terms of such transaction were reasonable and fair to the shareholders of the Portfolio and did not involve overreaching of the Portfolio of its shareholders on the part of any person concerned. In considering whether the price paid for the security was reasonable and fair, the price of the security will be analyzed with respect to comparable transactions involving similar securities being purchased or sold during a comparable period of time. By the Commission. Jonathan G. Katz, Secretary. [FR Doc. 94-27041 Filed 10-31-94; 8:45 am] BILLING CODE 8010-01-M