Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / Notices 2801

7 15 U.S.C. 78s(b)(2) (1982).

8 17 CFR 200.30–3(a)(12) (1993).

The Commission also notes that

before the NYSE’s pilot program can be

extended or approved on a permanent

basis, the Exchange must provide the

Commission with a report on the

operation of its pilot program since its

inception by January 31, 1995.

Specifically, the Exchange must provide

the Commission details on (1) the

frequency with which the exemptions

have been used; (2) the types of

investors using the exemptions; (3) the

size of the positions established

pursuant to the pilot program; (4) what

types of convertible securities are being

used to hedge positions and how

frequently the convertible securities

have been used to hedge; (5) whether

the Exchange has received any

compliants on the operation of the pilot

program; (6) whether the Exchange has

taken any disciplinary action against, or

commenced any violation of any term or

condition of the pilot program; (7) the

market impact, if any of the pilot

program; and (8) how the Exchange has

implemented surveillance procedures to

ensure compliance with the terms and

conditions of the pilot program. In

addition, the Commission expects the

Exchange to inform the Commission of

the results of any surveillance

investigations undertaken for apparent

violations of the provisions of its

position limit hedge exemption rules.

The Commission finds good cause for

approving the extension of the pilot

programs prior to the thirtieth day after

the date of publication of notice of filing

thereof in the Federal Register in order

to permit the continuation of the pilot

program. The Commission notes that the

Exchange has not experienced any

significant problems with the pilot

program since its inception and that the

Exchange will continue to monitor the

pilot program to ensure that no

problems arise. Finally, no adverse

comments have been received by the

Exchange or the Commission

concerning the pilot program. Based on

the above, the Commission believes

good cause exists to approve the

extension of the pilot program through

May 17, 1995, on an accelerated basis.

Therefore, the Commission believes that

granting accelerated approval of the

proposal is appropriate and consistent

with Sections 6 and 19(b)(2) of the Act.

IV. Solicitation of Comments

Interested persons are invited to

submit written data, views and

arguments concerning the foregoing.

Persons making written submissions

should file six copies thereof with the

Secretary, Securities and Exchange

Commission, 450 Fifth Street, N.W.,

Washington, D.C. 20549. Copies of the

submission, all subsequent

amendments, all written statements

with respect to the proposed rule

change that are filed with the

Commission, and all written

communications relating to the

proposed rule change between the

Commission and any person, other than

those that may be withheld from the

public in accordance with the

provisions of 5 U.S.C. 522, will be

available for inspection and copying at

the Commission’s Public Reference

Section, 450 Fifth Street, N.W.,

Washington, D.C. Copies of such filing

will also be available for inspection and

copying at the principal office of the

above-mentioned self-regulatory

organization. All submissions should

refer to the file number in the caption

above and should be submitted by

February 1, 1995.

It Is Therefore Ordered, pursuant to

Section 19(b)(2) of the Act,7 that the

proposed rule change (SR–NYSE–94–

47) relating to an extension of the hedge

exemption pilot program until May 17,

1995, is approved.

For the Commission, by the Division of

Market Regulation, pursuant to delegated

authority.8

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 95–658 Filed 1–10–95; 8:45 am]

BILLING CODE 8010–01–M

[File No. 1–9453]

Issuer Delisting; Notice of Application

to Withdraw From Listing and

Registration; (Ark Restaurants Corp.,

Common Stock, $.01 Par Value)

January 5, 1995.

Ark Restaurants Corp. (‘‘company’’)

has filed an application with the

Securities and Exchange Commission

(‘‘Commission’’), pursuant to Section

12(d) of the Securities Exchange Act of

1934 (‘‘Act’’) and Rule 12d2–2(d)

promulgated thereunder, to withdraw

the above specified security (‘‘Security’’)

from listing and registration on the

American Stock Exchange, Inc.

(‘‘Amex’’).

The reasons alleged in the application

for withdrawing the Security from

listing and registration include the

following:

According to the Company, the

Security commenced trading on the

National Association of Securities

Dealers Automated Quotations/National

Market Systems (‘‘NASDAQ/NMS’’) at

the opening of business on December 1,

1994 and concurrently therewith such

stock was suspended from trading on

the Amex.

The Company believes that the

NASDAQ/NMS multiple market maker

approach will provide the Company

with higher visability within the

financial community, thereby enhancing

investor awareness of the Company’s

activities;

In addition, the Company believes

NASDAQ/NMS will provide brokers

and others with immediate access to the

bid and ask prices, plus other

information about the Security

throughout the trading day, will result

in increased visibility and sponsorship

of the Security, and will offer

shareholders greater liquidity than

presently offered on the Amex.

Any interested person may, on or

before January 27, 1995 submit by letter

to the Secretary of the Securities and

Exchange Commission, 450 Fifth Street,

N.W., Washington, D.C. 20549, facts

bearing upon whether the application

has been made in accordance with the

rules of the exchange and what terms,

if any, should be imposed by the

Commission for the protection of

investors. The Commission, based on

the information submitted to it, will

issue an order granting the application

after the date mentioned above, unless

the Commission determines to order a

hearing on the matter.

For the Commission, by the Division of

Market Regulation, pursuant to delegated

authority.

Jonathan G. Katz,

Secretary.

[FR Doc. 95–659 Filed 1–10–95; 8:45 am]

BILLING CODE 8010–01–M

[Rel. No. IC—20817; 812–9016]

AVESTA Trust, et al.; Notice of

Application

January 4, 1995.

AGENCY: Securities and Exchange

Commission (‘‘SEC’’).

ACTION: Notice of application for

Exemption Under the Investment

Company Act of 1940 (the ‘‘Act’’).

APPLICANTS: AVESTA Trust

(‘‘AVESTA’’), including all existing and

future series thereof, and any future

management investment companies and

series thereof that are advised by Texas

Commerce Bank, N.A. (‘‘TCB’’) or any

entity controlling, controlled by, or

under common control (as defined in

section 2(a)(9) of the Act) with TCB (the

‘‘Portfolios’’); and TCB and any entity

controlling, controlled by, or under

common control (as defined in section
2802 Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / Notices

2(a)(9) with TCB that serves as

investment adviser to any of the

Portfolios (the ‘‘Advisers’’).

RELEVANT ACT SECTION: Order requested

under section 17(d) of the Act and rule

17d–1 thereunder.

SUMMARY OF APPLICATION: Applicants

request a conditional order permitting

the Portfolios to pool uninvested cash

balances and deposit the balances into

one or more joint accounts (the

‘‘Accounts’’). Cash balances in the

Accounts would be invested in shortterm repurchase agreements.

FILING DATES: The application was filed

on May 25, 1994, and amended on

September 19, 1994, and December 23,

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

January 30, 1995, 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 5th

Street, NW, Washington, DC 20549.

Applicants, 712 Main Street, Houston,

Texas 77002.

FOR FURTHER INFORMATION CONTACT:

Bradley W. Paulson, Staff Attorney, at

(202) 942–0147 or 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 is

available for a fee from the SEC’s Public

Reference Branch.

Applicants’ Representations

1. The Trust is a registered open-end

management investment company and

is organized as a business trust under

the laws of Texas. TCB provides or

arranges for investment advisory,

administrative, custodial, and

accounting services for all fifteen series

of the Trust.

2. Each Portfolio may be expected to

have uninvested cash balances held by

its custodian or sub-custodian bank (the

‘‘Custodian’’) at the end of the trading

day. To provide liquidity and earn

additional income, the Adviser

ordinarily would invest this cash in

short-term investments authorized

under the Portfolio’s investment

policies.

3. Applicants propose to establish one

or more Accounts that would be used

exclusively to pool excess cash of the

Portfolios to purchase one or more

repurchase agreements. Under the

proposed arrangement, the Adviser

would enter into repurchase agreements

by calling a previously approved

counterparty, indicating the size and

duration of the transaction, and

negotiating the rate of interest. Master

repurchase agreements establish

minimum collateral levels, securities

eligible to be held as collateral, and the

maximum term of a transaction. The

Custodian would be able to enter into

third-party arrangements with qualified

banks for custody of assets and

collateral securities to facilitate

repurchase transactions and obtain more

attractive rates.

4. After the Adviser and a

counterparty reach agreement on the

size of a repurchase transaction, the

Custodian would be notified and would

be required to verify, before releasing

the funds, that eligible collateral

securities of sufficient value have been

received. These securities would be

either wired to the account of the

Custodian (or a third-party custodian) at

the appropriate Federal Reserve Bank or

physically transferred to a segregated

account of the Custodian (or third-party

custodian).

5. Transactions in the Account would

be reported to the Portfolios’ Custodian

through a trade authorization that

would authorize the Custodian to settle

the transaction on a joint basis. The

trade authorization would state each

Portfolio’s portion of the investment.

The Custodian would reconcile the

Account with the trade authorizations

on a daily basis. At least monthly, assets

held in the Account would be

reconciled with the Custodian’s

securities movement and control

records, and the Custodian would

reconcile each Portfolio’s securities

movement and control records with

each Portfolio’s security ownership

records.

6. The Portfolios will not enter into

repurchase agreements with their

custodian, except where cash is

received very late in the business day

and otherwise would be unavailable for

investment at all.

7. Applicants believe the proposed

Account would have the following

benefits for the Portfolios: (a) The

Portfolios would save significant fees

and expenses by reducing the number of

transactions in which they engage; (b)

the Portfolios would enjoy a higher rate

of return on uninvested cash balances

because higher rates of return are

usually available for larger repurchase

agreements; (c) the number of trade

tickets written by each party to a

repurchase transaction would be

reduced, which would simplify the

transaction and decrease the

opportunity for errors.

Applicants’ Legal Analysis

1. Section 17(d) of the Act makes it

unlawful for an affiliated person of a

registered investment company or an

affiliated person of such person, acting

as principal, to effect any transaction in

which the registered investment

company is a joint or a joint and several

participant with such person in

contravention of rules and regulations

prescribed by the SEC. Rule 17d–1(a)

under the Act provides that an affiliated

person of a registered investment

company or an affiliated person of such

person, acting as principal, shall not

participate in, or effect any transaction

in connection with, any joint enterprise

or other joint arrangement in which the

registered investment company is a

participant unless the SEC has issued an

order approving the arrangement.

2. Each Portfolio, by participating in

the proposed Account, and the Adviser

by managing the proposed Account,

could be deemed to be joint participants

in a transaction within the meaning of

section 17(d), and the proposed Account

could be deemed to constitute a joint

enterprise or other type of joint

arrangement within the meaning of rule

17d-1. Furthermore, under the

definition of ‘‘affiliated person’’ set forth

in section 2(a)(3) of the Act, each

applicant could be deemed an affiliated

person of each other applicant.

3. Applicants believe that the

proposed method of operating the

Account would not result in conflicts of

interest among any of the Portfolios or

between a Portfolio and its Adviser.

Although the Adviser would gain some

benefit through administrative

convenience and possible reduction in

clerical costs, the primary beneficiaries

would be the Portfolios and their

shareholders. The Account would

provide the Portfolios and their

shareholders with a more efficient and

productive way of administering daily

investment transactions.

4. Applicants believe that it would be

desirable to permit future Portfolios to

participate in the Account without the

necessity of applying for an amendment

to the requested order. Future Portfolios

would be required to participate on the
Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / Notices 2803

same terms and conditions as the

existing Portfolios.

Applicants’ Conditions

Applicants agree that any order

granting the requested relief will be

subject to the following conditions:

1. The Account will be established as

one or more separate cash accounts on

behalf of the Portfolios with the

Custodian. The Portfolios may deposit

daily all or a portion of their uninvested

net cash balances into the Account. The

Account will not be distinguishable

from any other accounts maintained by

a Portfolio with the Custodian except

that monies from the various Portfolios

will be deposited in the Account on a

commingled basis. The Account will not

have any separate existence with indicia

of a separate legal entity. The sole

function of the account will be to

provide a convenient way of aggregating

individual transactions that would

otherwise require management by each

Portfolio of its cash balances.

2. Cash in the Account will be

invested solely in repurchase

agreements, ‘‘collateralized fully’’ as

defined in rule 2a–7 under the Act and

satisfying the uniform standards set by

the Portfolios for such investments.

3. All repurchase agreements entered

into by the Portfolios through the

Account will be valued on an amortized

cost basis. Each Portfolio relying upon

rule 2a–7 for valuation of its net assets

on the basis of amortized cost will use

the average maturity of the repurchase

agreements purchased by the Portfolios

participating in the account for the

purpose of computing the Portfolio’s

average portfolio maturity with respect

to the portion of its assets held in the

account on that day.

4. In order to assure that there will be

no opportunity for one Portfolio to use

any part of the balance of the Account

credited to another Portfolio, no

Portfolio will be allowed to create a

negative balance in the Account for any

reason, although each Portfolio will be

permitted to draw down its pro rata

share of the entire balance at any time.

Each Portfolio’s decision to invest

through the Account will be solely at

the Portfolio’s option, and no Portfolio

will be obligated to invest through, or to

maintain a minimum balance in, the

Account. In addition, each Portfolio will

retain the sole rights of ownership of

any of its assets invested in the

Account, including interest payable on

the assets. Each Portfolio’s investment

in the account will be documented daily

on the books of the Portfolio as well as

on the Custodian’s books.

5. Each Portfolio will participate in

the income earned or accrued in the

Account, including all investments held

by the Account, on the basis of the

percentage of the total amount in the

Account on any day represented by its

share of the Account.

6. The Adviser will administer,

manage, and invest the cash balance in

the Account in accordance with and as

part of its duties under the existing or

any future investment advisory

contracts with each Portfolio. The

Adviser will not collect any additional

or separate fee for the administration of

the Account.

7. The Portfolios and the Adviser will

enter into an agreement to govern the

arrangements in accordance with the

foregoing representations.

8. The administration of the Account

will be within the fidelity bond

coverage required by section 17(g) of the

Act and rule 17g–1 thereunder.

9. The Board of Directors of each

Portfolio participating in the Account

will evaluate the Account arrangements

annually and will authorize the

continued participation in the Account

only if it determines that there is a

reasonable likelihood that such

continued participation would benefit

the Portfolio and its shareholders.

10. Substantially all repurchase

transactions will have an overnight,

over-the-weekend or over-a-holiday

maturity, and in no event would a

transaction have a maturity of more than

seven days.

11. All joint repurchase transactions

will be effected in accordance with

Investment Company Act Release No.

13005 (Feb. 2, 1983) and with other

existing and future positions taken by

the SEC or its staff by rule, interpretive

release, no-action letter, any release

adopting any new rule, or any release

adopting any amendments to any

existing rule.

12. Any investment made through the

Account will satisfy the investment

policies or criteria of all Portfolios

participating in that investment.

For the SEC, by the Division of Investment

Management, pursuant to delegated

authority.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 95–605 Filed 1–10–95; 8:45 am]

BILLING CODE 8010–01–M

[Investment Company Act Rel. No. 20818;

812–9412]

Kidder, Peabody Investment Trust, et

al.; Notice of Application

January 4, 1995.

AGENCY: Securities and Exchange

Commission (‘‘SEC’’).

ACTION: Notice of application for

Exemption under the Investment

Company Act of 1940 (the ‘‘Act’’).

APPLICANTS: Kidder, Peabody

Investment Trust (‘‘KPIT’’); Kidder,

Peabody Investment Trust II (‘‘KPIT II’’);

Kidder, Peabody Investment Trust III

(‘‘KPIT III’’); Kidder, Peabody Municipal

Money Market Series; Kidder, Peabody

California Tax Exempt Money Fund;

Kidder, Peabody Premium Account

Fund; Kidder, Peabody Equity Income

Fund, Inc.; Kidder, Peabody

Government Income Fund, Inc.; Kidder,

Peabody Government Money Fund, Inc.;

Kidder, Peabody Cash Reserve Fund,

Inc.; Kidder, Peabody Tax Exempt

Money Fund, Inc.; Institutional Series

Trust; and Liquid Institutional Reserves

(the ‘‘Funds’’); Kidder, Peabody Asset

Management, Inc. (‘‘KPAM’’); Emerging

Markets Management (‘‘EMM’’); GE

Investment Management Incorporated

(‘‘GEIM’’); George D. Bjurman &

Associates (‘‘GDB&A’’); and Strategic

Fixed Income, L.P. (‘‘SFI’’) (EMM,

GEIM, GDB&A, and SFI together, the

‘‘Subadvisers’’); PaineWebber

Incorporated (‘‘PWI’’); Mitchell

Hutchins Asset Management Inc.

(‘‘MHAM’’); and Mitchell Hutchins

Institutional Investors Inc. (‘‘MHII,’’ and

together with MHAM, ‘‘Mitchell

Hutchins’’) (Mitchell Hutchins, together

with PWI, KPAM and the Subadvisers

are collectively referred to herein as the

‘‘Advisers’’).

RELEVANT ACT SECTIONS: Order requested

under section 6(c) for an exemption

from section 15(a).

SUMMARY OF APPLICATION: Paine Webber

Group Inc. (‘‘PaineWebber’’) has agreed

to purchase the investment advisory

business of Kidder, Peabody Group Inc.

The transaction will result in the

assignment, and thus the termination, of

existing investment advisory and

subadvisory contracts of the applicant

investment companies. Applicants seek

an order to permit the implementation,

without shareholder approval, of

interim investment advisory and

subadvisory contracts, during a period

of up to 120 days following the closing

of the transaction. The order also will

permit the applicant investment

advisers to receive from the applicant

investment companies fees earned

under the interim investment advisory

contracts following approval by the

investment companies’ shareholders.

FILING DATE: The application was filed

on January 4, 1995.

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