SEC Division of Investment Management staff letter: Kemper Total Return Fund

6 195 Our Ref. No. 94-615-CC
!.J f:! t'~~. ~~ tí :.~i

Kemper Total Return Fund, Kemper

Growth Fund, Kemper Small
P:. II~Ø ~t~! .~ . '. t." h: "c. ;;";'1' ~ ~.J""~ FEB .. . t'~'-'~ tA" ;,, V!7 ¡ '/g";1 r1 ¡:' .~~¡ h) .' ~~ ~. ~=1~.!:;~~~ .~ 2~L,.. Capitalization Equity Fund, OF Kemper Diversified Income Fund, RESPONSE OF THE OFFICE Kemper High Yield Fund CHIEF COUNSEL File Nos. 811-1236, 811-1365, DIVISION OF INVESTMNT

MAAGEMENT 811-1702. 811-2743. 811-2786

Your letters of September 21 and November 17, 1994, request

our assurance that we would not recommend that the Commission

take enforcement action if certain Kemper funds (the "Acquiring

Funds") that are acquiring the assets and assuming the

liabilities of certain other Kemper funds (the "Acquired Funds")

use the Acquired
Fund' s redemption credits under rule 24f-2 under

the Investment Company Act of 1940 (" 1940 Act") in calculating

the registration fee owed under the Securities Act of 1933 ("1933

Act") . i/
You state that on May 27, 1994, each of the five Acquired

Funds was reorganized into a corresponding Acquiring Fund with

substantially similar investment obj ectives and policies .é/ Each

of the Acquired Funds transferred all of its assets and

liabilities to an Acquiring Fund in exchange for Class B shares

of the Acquiring Fund, which were then distributed to the

Acquired Fund's shareholders. The Acquired Funds were then

terminated. You state that the purpose and effect of each

reorganization was to consolidate similar funds with different

distribution options into a single fund with multiple

distribution options.

Rule 24f-2 under the 1940 Act permits a mutual fund to

register an indefinite numer of securities under the 1933 Act.

The rule requires funds that elect to register an indefinite

numer of securities to file a notice every year setting forth

the amount of securities sold in the past fiscal year. If the

notice is filed within two months after the close of the fiscal

year, the fund pays a registration fee based on net sales -
i. e., the aggregate price of the shares sold by the fund during

~/ This letter confirms the advice given to you in a

telephone conversation between Barry Mendelson of this office and

David Sturms of Vedder, Price, Kaufman & Kamolz, counsel to the

Acquiring Funds, on November 21, 1994.

é/ The five Acquired Funds were all portfolios of Kemper Investment Portfolios. These five funds - - Growth Portfolio, Total Return portfolio, High Yield Portfolio, Diversified Income Portfolio, and Small Capitalization Equity Portfolio - - were reorganized, respectively, into Kemper Growth Fund, Kemper Total

Return Fund, Kemper High Yield Fund, Kemper Diversified Income

Fund, and Kemper Small Capitalization Equity Fund.

• 2
  the year, reduced by a "redemption credit" equal to the aggregate

price of the shares redeemed during the year. If the notice is

not filed within the two month period, the fee is based on gross

sales - - i. e., the aggregate price of the shares sold by the fund during the year, without deduction of the redemption credit.

In a series of no-action letters,~/ the staff has permitted

an acquiring fund to use the rule 24f -2 redemption credits of an

acquired fund upon adoption of the acquired fund's registration

statement pursuant to rule 414 under the 1933 Act .~/ You state

that rule 414 was not available for these reorganizations. In

addition, you acknowledge that the staff in 1981 declined to

grant relief under facts similar (but not identical) to those

presented here.2/ You urge us to re-examine our 1981 position

and permit the Acquiring Funds to use the redemption credits of

the Acquired Funds.

You represent that each pair of reorganized Kemper funds had

substantially similar investment objectives and policies and were

marketed and sold as being essentially the same investment

product, the primary difference being the different distribution

arrangements (front - end sales charge vs. contingent deferred sales charge with a rule 12b-1 fee). You note that all of the

funds were managed by Kemper Financial Services, Inc. and that

each pair of reorganized funds was managed using the same general procedures. At the time of the reorganizations, except for the acquisition of Kemper Investment Portfolios' Total Return

~/ See,~, Lowry Market Timing Fund, Inc. (pub. avail.

Feb. 8, 1985); Massachusetts Financial Development Fund, Inc.

(pub. avail. Jan. 10, 1985); Colonial Option Income Fund, Inc.

(pub. avail. Mar. 21, 1983); Gradison Cash Reserves, Inc. (pub.

avail. Oct. 29, 1981).

~/ Under rule 414, when an issuer is merged into a shell

entity (the successor) for the purpose of changing the issuer's

state of incorporation or form of organization, the successor may

adopt its predecessor's registration statement as its own.

2/ In Scudder Managed Reserves. Inc. (pub. avail. May 15,

1981), the staff denied the no-action request of an acquiring

fund that sought to succeed to the redemption credits of an

acquired fund in the same fund family. The acquiring fund in

Scudder, as here, was not a shell company, but an operational

fund with its own registration statement that did not succeed to

the registration statement of the acquired fund. However, in

Scudder the acquired fund was reorganized into the pre-existing

class of the acquired fund's shares, whereas each of the Acquired

Funds here was reorganized into a newly created class of the

Acquiring Fund that had not been operational prior to the

reorganization.

• 3
  portfolio by the Kemper Total Return Fund (together, the "Total

Return Funds"), the sam individual managed both funds involved

in each reorganization. Finally, you represent that the

portfolios of each Acquiring Fund and its corresponding Acquired

Fund were very highly correlated, i. e., they contained

substantially the same securities in approximately the same

percentages, although the degree of correlation between the Total

Return Funds was somewhat lower. ~/
In light of these facts, and without necessarily agreeing

with your legal anaiysis, we would not recommend that the

Commission take enforcement action if the Acquiring Funds (other

than the Total Return Fund) use the redemption credits of the

Acquired Funds in calculating the registration fees owed under

the 1933 Act. Our position is based on the specific facts set

forth above, and in particuiar on the purpose of the

reorganizations and the fact that the each pair of reorganized

funds (other than the Total Return Funds) was maaged by the same

individuals and had substantially the same portfolios. Because

the Total Return Funds were managed by different individuals and

their portfolios were not as highly correlated as those of the

other reorganized funds, we cannot assure you that we would not

recommend enforcement action if the Total Return Fund uses the

redemption credits of the Total Return portfolio in calculating

its registration fees.

Because our position is based on the facts and

representations in your letter, you should note that any

different facts or circumstances might require a different

conclusion. Further, this response expresses the staff's

position on enforcement action only and does not express any

legal conclusions on the issues presented.2/

~/ Telephone conversation between Barry Mendeison and David

Sturms on November 16, 1994.

2/ In this regard, the Scudder letter, supra note 5,

continues to represent the staff's position on the use of rule

24f-2 redemption credits by the surviving fund in a

reorganization, except as narrowly modified herein.

40 Act/Rule 24f-2

V E DOE Ri P R I C Ei K AUF MAN & K A M MHO L Z A PARTNERSHIP INCLUDING VEDDER. PRICE, KAUFMAN a KAMMHOLZ. P.C. 222 NORTH LA SALLE STREET

CHICAGO, ILLINOIS 60601-1003
312-609-7500 VEDDER.PRICE,KAUFMAN, KAMMHDLZ & DAY FACSIMILE: 312-609-5005 919 18TH STREET. N.W.

WASHINGTON. D.C. 2006-5593

202-828-5020
DAVID A. STURMS 805 THIRD AVENUE
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212-407-7700
September 21, 1994 VEDDER,PRICE,KAUFMAN & KAMMHDLZ 615 LONGWOOD STREET

ROCKFORD, lL 61107-4264 VIA FEDERAL EXPRESS 815-962-9100

Chief Counsel

Division of Investment Management ACT :r-4O

Securities and Exchange Commission SECTION

450 Fift Street, N. W.
RULE ;;'if - ~ Washington, D.C. 20549 PUBLIC l:1 J I AVAILABILITY re'" ~ J 1'15

RE: Kemper Mutual Funds ,
Dear Mr. Murhy:
Certain of the Kemper mutual fuds have recently been reorganzed into certin other Kemper mutual fuds. The primar purose of each reorganzation was to combine separate fuds that were substatially similar except that they were created at different times with different distribution arangements. Each reorganization was, in effect, an "organzational" change; the type of which should not result in duplicative registration fees. Accordingly, in connection with these reorganzations, we respectfully request that the staff of the Division of Investment

Management assure that it will not recommend enforcement action to the Commission if the registration fees paid by the Kemper mutual fuds are computed as described below.
I. THE REORGANIZATIONS

On May 27, 1994, certin of the Kemper mutual fuds were reorganzed into certin other Kemper mutul fuds pursuant to which: (a) the acquired fud transferred all its assets to the acquiring fud in exchange for shares of the acquiring fud and the acquiring fud assumed all the liabilities of the acquired fud; and (b) the acquiring fud distributed its shares to the shareholders of the acquired fud. The acquired fud will be terminated. The primar purose of each reorganzation was to combine, into one mutual fud, fuds with substantially similar investment objectives and policies that were originally created as separate funds with different. distribution arangements. In connection with the reorganzations, each acquiring fud applied for and received an order from the Commission permitting it to offer multiple classes of shares. See Kemper Technologv Fund. et aI., SEC release number IC-20322 (May 27, 1994). Shares of the acquiring fud historically had been sold subject to an initial sales

VEDDER,P,RICE,KAUFMAN & KAMMHDLZ

sales charge and a Rule l2b-l fee. Under the reorganization, shares of the acquired fud were exchanged for Class B Shares of the acquiring fud. The net effect of each reorganzation, therefore, was simply to consolidate like fuds with different distribution options into a single fund with multiple distribution options. F or a description of the funds that were paries to the reorganzations, please see Appendix A.
II. CALCULATION OF RULE 24F -2 FEES

"Fairness Notion" -- Rules Allow Funds to Net Redemptions Rule 24e-2(a) under the Investment Company Act of 1940 (the "1940 Act") provides that when the Securities Act of 1933 (the "1933 Act") registration statement of an open-end investment company is amended pursuant to Section 24( e)( 1) of the 1940 Act to register a definite number of additional shares, the fee to be paid at the time of fiing such amendment may be computed by reducing the maximum aggregate offering price of the securities of the same class redeemed or repurchased by the issuer in its previous fiscal year. Rule 24f-2(c) provides for a similar reduction in the case of issuers that elect to register an indefinite number of shares by means of a Rule 24f-2 declaration. Such reductions in registration fees are often referred to as "redemption credits." A declaration made pursuat to Rule 24f-2 is curently in effect for each of the various Kemper mutual fuds involved in the reorganzations. The ability to net redemptions under Rule 24e-2 and 24f-2 is based upon the notion of fairness. Because mutual fuds continuously offer their shares to the public and stad ready to redeem them upon request, it is common for a mutual fud to issue and redeem shares in any given year in an amount greatly in excess of any net new sales. A registration fee calculation method that does not allow netting "may result in inordinately high registration costs for open-end management companes and their shareholders and may unfairly burden the registration process." SEC release number IC-9677 (March 15, 1977) proposing Rule 24e-2. (See also SEC release number IC-9989 (November 3, 1977) adopting Rule 24f-2 based upon the same "fairness" concerns that prompted Rule 24e-2). "Fairness Notion" -- Extended to Series Companies The "fairness" notion of netting redemptions on a fund-by-fud basis has also been extended to series investment companes. In the February 25, 1994 Generic Comment Letter, the staff of the Commission stated that they have "not objected to an open-end management investment company aggregating sales and redemptions of all its series (sharing the same registration statement under VPKK-002/2S190.VS 09/21/94

( E D D E R, P R ICE, K AUF MAN & K A M MHO L Z

the 1933 Act) for the purose of calculating the filing fee owed the Commission under Rule 24f￾2(b) under the 1940 Act." "Fairness Notion" -- Extended to Rule 414 ReorJlanizations

The "fairness" notion has also been embodied in a series of no-action letters in which the staff has permitted successor mutual fuds to succeed to the redemption credits of various acquired mutual fuds upon adoption of an acquired mutual fud's registration statement pursuant to Rule 414 under the 1933 Act. Under Rule 414, a registration statement of an issuer that has been succeeded by an issuer having a. different state of incorporation is deemed to be a registration statement of the successor issuer if: (1) immediately prior to the succession the successor issuer had no more than nominal assets or liabilities; (2) the succession was effected by a statutory merger or similar succession under which the successor acquired all the assets and all the liabilities of the predecessor; (3) the succession was approved by the security holders of the predecessor at a meeting for which proxies had been solicited pursuant to Section l4(a) of the Securities Exchange Act of 1934 (the "1934 Act"); and (4) the successor has filed an amendment to the registration statement of the predecessor issuer which (a) expressly adopts such registration statement as its own for all puroses of the 1933 and 1934 Acts and (b) sets forth any additional information necessar to reflect aiy material changes made in connection with the succession or

necessar to keep the registration statement from being misleading in any material respect. Although Rule 414 was contemplated for use only in connection with a reorganzation that merely changes the State of incorporation of the registrant, the staff has granted "no-action" requests involving other "organzational" changes; some of which did not involve a change in domicile at all. (See American Business Shares. Inc. (available July 31, 1975) (change from a Delaware to a Marland corporation accompanied by a change of name and fudamental investment

objective and institution of automatic redemption of small accounts); Advance Investors Corporation (available September 29, 1976) (merger of Delaware corporation into a Marland subsidiar accompaned by a change from closed-end to open-end status and a change in some directors); Scudder Common Stock Fund, Inc. (available October 10, 1984) (reorganzation from a Massachusetts corporation to a Massachusetts business trust with change in investment objective and fudamental investment restrictions) and Commonwealth Funds (available June 14, 1989) (two separate open-end investment companies organzed as Massachusetts common laws trusts were reorganzed into a new series of a Massachusetts business trst. Both fuds were managed by the same investment personnel in accordance with the same investment objectives, policies and restrictions. The primar difference between the two fuds was that one fud was sold under a periodic payment plan and the other fud was sold "in the maner of a conventional mutual fund rather than in connection with periodic payment plans".) See also Putnam Convertible Funds. Inc. (available April 28, 1982), Colonial Option Fund for Governent Income. Inc. (available VPKK-002/25190.V5 09/21/94

VEDDER,P.RICE,KAUFMAN & KAMMHOLZ ,.' .

March 26, 1983), and Massachusetts Financial Development Funds. Inc. (available Januar 10,

1985), none of which required a change in domicile as a condition precedent to relief.)
III. LEGAL CONSIDERATIONS

Kemper Funds ref!istered shares pursuant to Rule 145 With respect to the Kemper fud reorganzations, Rule 414 arguably was not available since the acquiring fud had more than nominal assets (i.e., it was not a "shell corporation"). Pursuat to Rule 145 under the 1933 Act, the shares of the acquiring fuds issued to the shareholders of the acquired fuds in connection with the reorganzations were registered on Form N-14. Prior to the adoption of Rule 145, Rule 133 provided that mergers, consolidations, reclassifications or transfers of assets did not involve a sale or an offer to sell securities of the acquirig entity. The "no sale" theory embodied in Rule 133 was based upon the rationale that such reorganzations were corporate acts and that the volitional act on the par of the individual shareholder required for a "sale" was absent. In reversing the "no sale" theory and rescinding Rule 133, the

Commission stated that ~ule 133 overlooked the "substance of the transaction." In adopting Rule 145, the Commission's primar purose was to require registrants to provide full and fair disclosure by giving a shareholder who was offered a new security in a Rule 145 business combination the material facts about the tranaction so that the shareholder would be in a position to make an informed investment judgment. (See SEC release number 33-5316 (October 6, 1972) adopting Rule 145 and SEC release number 33-5463 (Februar 28, 1974) interpreting Rule 145). In Scudder Letter SEe Staff did not Extend "Fairness Notion" to Rule 145 Reorganizations In a similar non-Rule 414 business combination (See Scudder Managed Reserves. Inc. (available May 15, 1981) (the "Scudder" letter)) the staff denied a no-action request of an existing Scudder mutual fud that sought to succeed to the redemption credits of an acquired Scudder mutual fund. In denying the relief, the staff reasoned that the existing Scudder fud could not succeed to the acquired Scudder fud's registration statement since the existing Scudder fud was a fuctioning entity and, thus, did not satisfy the requirement of Rule 414 that an acquiring fud can succeed to an acquired fud's registration statement only if it is a corporate shelL. Since the acquiring fund could not succeed to the acquired fud's registration under the 1933 Act, the staff thought it inappropriate to treat the shares of the acquired fund exchanged for shares of the acquiring fud as "redeemed" under Rule 24f-2 for puroses of computing the registration fee. Scudder's counsel argued unsuccessfully that the Scudder reorganzation could have been accomplished within the framework of Rule 414. The result would have been the same. The process would simply have been more complicated and more expensive. Since it would have been more VPKK-002/25 i 90. V5 09/2194

\j E 0 D E R, PR ICE, K AUF MAN & K A M M H D L Z

complicated and more expensive, Scudder's counsel argued that it was not reasonable to require Scudder to fit precisely withn a fact pattern that had previously received no action treatment in letters such as those previously cited. It is difficult not to view the decision of the staff in Scudder as a triwnph of form over substance.

SEe Staff Should Reconsider Scudder -- Look at Substance over Form We respectfully request that, in analyzing the Kemper fuds reorganzations, the staff re-examine the analysis in Scudder, respect substace over form and extend the fairness notion of 24f-2 to the reorganzations. In connection with business combinations withn a series investment

company, it appears that the staff has already done so. In the Februar 25, 1994 Generic Comment Letter, the staff expressed its view that business combinations of registered investment companies should be treated as two simultaneous transactions: (1) the acquiring fud sells its shares to the acquired fud for securities and other assets of the acquired fud (in-kind); and (2) contemporaneously, the acquired fud redeems its shares in-kind, from its shareholders. The Generic Comment Letter concluded, "(T)hus, the shares sold by the acquiring fud should be included in its calculation of Rule 24f-2 fees for the fiscal year during which the combination occurs. The share redemptions by the (acquired) fud are available to offset the share sales during the (acquired) fud's fiscal year ending with or after the business combination. For series companies using the aggregation method of calculating Rule 24f-2 fees, any excess net redemptions from the (acquired fud's) combination with and into another fud may be included in the aggregation for that fiscal year. Of course, the net effect of a combination of two series in the same fud may not be material; however, the appropriate calculations should be made for verification. " Scudder letter produces anomalous result Similarly, notwithstading the result in Scudder, with respect to the various Kemper fud reorganizations, we believe it would be appropriate for the Kemper fuds to net the redemptions that occurred as a result of the reorganizations against the sales that occured as a result of the reorganizations. For example, for the KP-Growth Portfolio (the acquired fud), which was reorganzed into the Kemper Growt Fund (the acquiring fud), we believe that the registration fees paid by the Kemper Growth Fund should be calculated by including the sales of the Kemper Growth Fund shares issued in connection with the reorganization, offset by the redemptions of the KP-Growt Portfolio shares that were redeemed in connection with the reorganzation. (See
Appendix A for identification of the various fuds involved in the reorganzations.)
VPKK-002/25190. V5 09/21/94

VEDDER,PRICE,KAUFMAN & KAMMHOLZ ,'. .

As describ~d in the Scudder letter, the Kemper fud reorganzations theoretically could have been structued in a more complicated and expensive way so as to come withn the fact pattern of prior favorable no-action letters. Specifically, for example, rather than having the Kemper Growth Fund acquire the assets of the KP-Growth Portfolio, a new "shell" could have been created to acquire both the KP-Growt Portfolio and the Kemper Growt Fund. In fact, in the Commonwealth Funds letter cited above, the staff gave no-action relief to such a transaction, and permitted the acquiring fud to succeed to both acquired fuds' redemption credits. It was not practical, however, for the Kemper fuds to have followed the approach in the Commonwealth Funds letter. Such an approach would have entaled two shareholder votes rather than one, with the attendant costs, complexity and increased risk of not securng the requisite shareholder vote. Under curent staff positions, the "key" factor in allowing redemption credits to car over to a successor-entity is whether or not that successor entity is a "shell." We suggest that the "shell" analysis is a red-herring. Rather, the analysis should be focused upon the purose of the reorganization. In the Kemper fud reorganzations, the purose was "organzational." Like Commonwealth Funds, the Kemper fuds were simply consolidating separate, but like, fuds into a multi-class structue. Again, like Commonwealth Funds, the separate distribution strctues of

the Kemper fuds were a product of their place in time, rather than design; in that the Kemper fuds concept and distribution strctue was initiated beforc the prevalence of the multi-class structue. To take a position contrar to that requested herein would ru counter to the fairess notion

embodied in Rule 24f-2 and would simply reflect form over substace. The Kemper fud reorganizations were, in essence, no more than an organzational change, for the benefit of shareholders. By not allowing the netting of redemptions, shareholders of the Kemper fuds wil be charged duplicative and inordinately high registration fees. This is precisely the type of result that Rules 24e-2 and 24f-2 are intended to ameliorate. Furermore, to tae a position contrar

to that requested herein would encourage investment companes, in the futue, to reorganze in the more complicated and expensive maner of creating a "shell" company. Anomalously, shareholders voting on such "shell" types of reorganizations may receive less information about the securities being offered since the securities would not be registered on Form N-14 (ie; the shareholders would receive only a proxy statement, not a proxy statement/prospectus). The net effect of a denial of this no-action request would be to subject the Kemper Fund shareholders to duplicative registration costs based simply upon a form over substance analysis. Moreover, it would encourage investment companies, in the future, to effectuate reorganizations by creating a shell, which may increase the costs and complexity of such VPKK-002/25190.V5 09/21/94

V.EDDER,PRICE,KAUFMAN & KAMMHOLZ

reorganizations and provide less disclosure to the shareholder voting on such reorganizations.
IV. CONCLUSION

In light of the foregoing, we respectfully request the staff to confirm to us that in connection with the reorganzations described above, each acquiring Kemper fud would be able to use the redemption credits of each respective acquired fud for puroses of calculating the registration fees owed under Rule 24f-2. Certain of the acquirng Kemper fuds that paricipated in the reorganzations have fiscal years ending September 30, 1994; so that their Rule 24f-2 calculations wil be due no later than November 29, 1994. Accordingly, it is requested that you respond to this letter at your earliest convenience. Pursuant to the Commission's procedures applicable to requests for no-action letters, enclosed are seven additional copies of this no-action request (SEC release number 33-6269 (December 5, 1980)).

If you have any questions with respect to ths letter or need any additional information, please call the undersigned (David A. Stus) at 312/609-7589 or Cathy G. O'Kelly at 312/609-7657. ,t/L't i David A. Stus DAS:ak Enclosures VPKK-002/25190.V5 09/21/94

VEDDER,PRICE,KAUFMAN & KAMMHDLZ
APPENDIX A
On May 27, 1994, various Kemper mutual funds were reorganized into certain other Kemper mutual funds. Specifically, the'reorganzations were as follows:
Kemper Investment Portfolios
Growt Portfolio into Kemper Growt Fund
Kemper Investment Portfolios
Total Retu Portfolio into Kemper Total Retu Fund Kemper Investment Portfolios High Yield Portfolio into Kemper High Yield Fund Kemper Investment Portfolios Diversified Income Portfolio into Kemper Diversified Income Fund Kemper Investment Portfolios Small Capitaization Equity Portfolio into Kemper Small Capitalization Equity Fund Kemper Investment Portfolios (which changed its name to Kemper Portfolios on May 31, 1994) ("KP"), Kemper Growt Fund, Kemper Total Retu Fund, Kemper High Yield Fund, Kemper

Diversified Income Fund and Kemper Small Capitalization Equity Fund (each a "Fund") are all open-end management investment companes, organized as separate business trsts under the laws of the commonwealth of Massachusetts. Each Fund may issue an unimited number of shares of beneficial interest in one or more series, Except for KP, each Fund has only authorized one series of shares. KP, prior to the reorganzations, authorized and had outstading, nine series of shares: Small Capitalization Equity Portfolio; Growth Portfolio; Total Retu Portfolio; High Yield Portfolio; Diversified Income Portfolio; Governent Income Portfolio; Governent Portfolio; Short-Term Global Income Portfolio; Short-Intermediate Governent Portfolio; and Money Market Portfolio. A copy of the proxy statement/prospectus for each of the above reorganzations is enclosed for the stafr s convenience.

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November 17, 1994 212.407 7700
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8IS-962' 9100 Mr. Jack W. Murphy

Chief Counsel

Division of Investment Management

Securities and Exchange Commission

450 Fifth Street, N. W.

Washington, D. C. 20549
Re: Kemper Mutual Funds

Dear Mr. Murphy:

This letter responds to certin questions asked by telephone by Mr. Barry A. Mendelson of your office concernng the Kemper Mutual Funds' letter dated September 21, 1994 (a copy of which is enclosed for your reference). That letter requests the assurance of the staff of the Division of Investment Management that it wil not recommend enforcement action to the Commission if the registration fees paid by the Kemper funds are computed as described in the letter (ie; that in connection with reorganizations of the Kemper funds, each acquiring Kemper fund be able to use the redemption credits of each respective acquired Kemper fund for purposes of calculating the registration fees owed under Rule 24f-2). Mr. Mendc1son asked us to confirm that the comparable separate Kemper funds were cn:aled and sold as one invesiment product with the primary difference being the different distribution arrangements. As we noted for Mr. Mendelson in our various telephone conversations, that was the intention of the parties. For example, in the case of the KP-High Yield Portfolio (an acquired fund) and the Kemper High Yield Fund (an acquiring fund), the two funds were marketed and sold as being essentially the same investment product; the primary difference being the different distribution arrangements: the Kemper High Yield Fund was offered with a front end sales charge while the KP-High Yield Portfolio was offered with no front end sales charge, but instead with a 12b-l fee and a contingent deferred sales charge.

DOE R, P R ICE, K AUF MAN & K A M MHO L Z
Mr. Jack W. 'Murphy

,November 17, 1994
With respect to the Kemper funds involved in each reorganization, in addition to each fund having substantially similar investment objectives and policies, each fund was managed by substantially similar investment personnel and had substantially similar investment portfolios with a high degree of asset composition correlation. As noted in the registration statements fied with the Commission for each of the acquired funds, in the case of (i) KP-Growth Portfolio and Kemper Growth Fund, (ii) KP- Total Return Portfolio and Kemper Total Return Fund, and (ii) KP-Small Capitalization Equity Portfolio and Kemper Small Capitalization Equity Fund, Kemper Financial Services, Inc. ("KFS") (the investment manager for each fund) has an Equity Investment Committee that determines overall investment strategy for the funds. The Equity Investment Committee is comprised of a team of investment personnel including the individual portfolio managers for each fund. The portfolio managers work together as a team with the Equity Investment Committee and various equity analysts and equity traders to manage each fund's investments. Equity analysts -- through research, analysis and evaluation -- work to develop investment ideas appropriate for each fund. These ideas are studied and debated by the Equity Investment Committee and, if approved, are added to a list of eligible investments. The portfolio managers use the list of eligible investments to help them structure each fund's portfolio in a manner consistent with the fund's objective. In the case of (i) KP-High Yield Portfolio and Kemper High Yield Fund and (ii) KP-Diversified Income Portfolio and Kemper Diversified Income Fund, KFS has a Fixed Income Investment Committee that determines over￾all investment strategy for the funds. The Fixed Income Investment Committee is comprised of a team of investment personnel including the individual portfolio managers for each fund. The portfolio managers work together as a team with the Fixed Income Investment Committee and various fixed income analysts and traders to manage each fund. Analysts provide market, economic and financial research and analysis that is used by the Fixed Income Investment Committee to establish broad parameters for the funds, including duration and cash levels. In addition, credit research by analysts is used by portfolio managers in selecting securities appropriate for the fund's policies. In response to Mr. Mendelson's request to identify the individual portfolio managers, they were, at the time of the reorganizations, as follows: C. Beth Cotner for KP-Growth Portfolio and Kemper Growth Fund; C. Beth Cotner for KP-Total Return Portfolio and Gordon P. Wilson for Kemper Total Return Fund; C. Beth Cotner for KP-Small Capitalization Equity Portfolio and Kemper Small Capitalization Equity Fund; Michael A. McNamara and Harr E. Reiss, Jr. as co-managers for both KP-High Yield Portfolio and Kemper High Yield Fund; and Michael A. McNamara and Harry E. Reiss, Jr.
as co-managers for both KP-Diversified Income Portfolio and Kemper Diversified Income Fund. As we. discussed with Mr. Mendelson, notwithstanding the fact that the "named" portfolio managers were different for KP-Total Return Portfolio and Kemper Total Return Fund (together, the "Total Return Funds"), the overall VPKK-OOl/48557.V3

DDER,PRICE,KAUFMAN & KAMMHOLZ
Mr. Jack W. Murphy

November 17, 1994

investment strategy for each of the Total Return Funds was determined, as noted above, by the Equity Investment Committee, and the portfolio managers used the same list of eligible investments. Mr. Mendelson also asked whether the plan of reorganization provided that the acquiring fund would succeed to all the liabilties of the acquired fund, including liabilties under and relating to the acquired fund's registration statement under the Securities Act of 1933. The plan of reorganiation does not refer specifically to particular liabilities, including any under and relating to the acquired fund's registration statement, but simply states that the acquiring fud wil assume all of the liabilties of the acquired fund. This broadly inclusive language aside, we believe that any obligations of the acquired fund under and relating to the acquired fund's registration statement under the 1933 Act were assumed by and are obligations of the acquiring fund. If you have any additional questions relating to the Kemper funds request for no-action position, please call me at (312) 609-7589. ¡;ßf David A. Sturms

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Enclosure

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