[Federal Register Volume 61, Number 177 (Wednesday, September 11, 1996)]
[Notices]
[Pages 47990-47992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23121]


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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Rel. No. 22197; 812-10312]


Lincoln National International Fund, Inc., et al.; Notice of 
Application

September 4, 1996.
AGENCY: Securities and Exchange Commission (``SEC'').

ACTION: Notice of application for exemption under the Investment 
Company Act of 1940 (the ``Act'').

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APPLICANTS: Lincoln National International Fund, Inc. (the ``Fund''), 
Lincoln Investment Management, Inc. (the ``Adviser''), and Clay Finlay 
Inc. (``CF'').

RELEVANT ACT SECTIONS: Order requested under section 6(c) of the Act 
for an exemption from section 15(a) of the Act.

SUMMARY OF APPLICATION: The order would permit the implementation, 
without shareholder approval, of a new sub-advisory contract for a 
period of up to 120 days following the date of the change in control of 
CF, a sub-adviser to the Fund (but in no event later than December 31, 
1996). The order also would permit CF to receive from the Fund fees 
earned under the new sub-advisory contract following approval by the 
Fund's shareholders.

FILING DATE: The application was filed on August 22, 1996. Applicants 
have agreed to file and amendment during the notice period, the 
substance of which is included in this notice.

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 30, 
1996 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 of a hearing by 
writing to the SEC's Secretary.

ADDRESSES: Secretary, SEC, 450 5th Street, NW., Washington, DC 20549. 
Applicants: the Fund and the Adviser, 1300 South Clinton Street, Fort 
Wayne, Indiana 46803; and CF, 200 Park Avenue, New York, New York 
10166.

FOR FURTHER INFORMATION CONTACT:
Marianne H. Khawly, Staff Attorney, at (202) 942-0562, or Alison E. 
Baur, Branch Chief, at (202) 942-0564 (Division of Investment 
Management, Office of Investment Company Regulations).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application is available for a fee at the 
SEC's Public Reference Branch.

Applicants' Representations

    1. The Fund is an open-end, management investment company 
registered under the Act. The Adviser, a registered investment adviser 
under

[[Page 47991]]

the Investment Advisers Act of 1940 (the ``Advisers Act''), serves as 
the investment adviser to the Fund pursuant to an advisory agreement 
with the Fund. CF, also a registered investment adviser under the 
Advisers Act, provides sub-advisory services to the Fund pursuant to a 
sub-advisory agreement (the ``Existing Sub-Advisory Agreement'') among 
CF, the Adviser, and the Fund.
    2. On July 17, 1996, CF and United Asset Management (``UAM'') 
entered into an agreement pursuant to which a wholly-owned subsidiary 
of UAM will be merged with and into CF (the Merger''), with CF to be 
the survivor and a wholly-owned subsidiary of UAM. Pursuant to the 
Merger, shares of CF's common stock will be exchanged for shares of 
UAM's common stock.
    3. The parties to the Merger anticipate that the Merger will be 
consummated by August 29, 1996 (the ``Effective Date''). Upon 
consummation of the Merger, 100% of the outstanding voting securities 
of CF will be owned by UAM and CF will become a wholly-owned subsidiary 
of UAM. Thus, the Merger will result in a change of control of CF. 
Accordingly, the change of control will result in the assignment of the 
Existing Sub-Advisory Agreement and the termination of such agreement 
according to its terms.
    4. Applicants seek an exemption to permit the implementation, 
without shareholder approval, of a new sub-advisory agreement (the 
``New Sub-Advisory Agreement'') to be entered into by the Fund, the 
Adviser, and CF. The requested exemption would cover an interim period 
of not more than 120 days (the ``Interim Period'') beginning on the 
Effective Date and continuing through the date the new sub-advisory 
agreement is approved or disapproved by the Fund's shareholders (but in 
no event later than December 31, 1996). During the Interim period, that 
portion of the advisory fees paid by the Adviser to CF for sub-advisory 
services would be paid into an escrow account.
    5. The New Sub-Advisory Agreement is identical to the Existing Sub-
Advisory Agreement, except for the effective date and escrow 
provisions. The fee levels for sub-advisory services will remain the 
same as in the Existing Sub-Advisory Agreement.
    6. In accordance with section 15(c) of the Act,\1\ the board of 
directors (the ``Board'') of the Fund met on August 13, 1996 and 
determined that the New Sub-Advisory Agreement would be in the best 
interests of the Fund and its shareholders. At this meeting, the Board, 
including a majority of the disinterested directors (the ``Independent 
Directors''), voted to approve the New Sub-Advisory Agreement.
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    \1\ Section 15(c) provides, in relevant part, that it shall be 
unlawful for any registered investment company to enter into an 
investment advisory contract unless the terms of such contract have 
been approved by the vote of a majority of directors, who are not 
parties to such contract or interested persons of any such party, 
cast in person at a meeting called for the purpose of voting on such 
approval.
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    7. Applicants propose to enter into an escrow arrangement that 
would provide that: (a) the fees payable to CF during the Interim 
Period under the New Sub-Advisory Agreement would be paid into an 
interest-bearing escrow account maintained by an escrow agent; (b) the 
amounts in the escrow account (including interest earned on such paid 
fees) would be paid to CF only upon approval of the Fund's shareholders 
of the New Sub-Advisory Agreement or, in the absence of such approval, 
to the Fund; and (c) the escrow agent would release the monies to CF 
only upon approval of the New Sub-Advisory Agreement by the Fund's 
shareholders in accordance with section 15 of the Act or to the Fund if 
the Interim Period has ended and the New Sub-Advisory Agreement has not 
received the requisite shareholder approval. Before any such release is 
made, the Board would be notified.

Applicant's Legal Analysis

    1. Applicants request an order pursuant to section 6(c), exempting 
them from section 15(a) of the Act, to the extent necessary (i) to 
permit the implementation during the Interim Period, without prior 
shareholder approval, of the New Sub-Advisory Agreement and (ii) to 
permit CF to receive from the Adviser upon approval by the Fund's 
shareholders any and all fees earned under the New Sub-Advisory 
Agreement implemented during the Interim Period.
    2. Section 15(a) of the Act prohibits an investment adviser from 
providing investment advisory services to an investment company except 
under a written contract that has been approved by a majority of the 
securities of the investment company. Section 15(a) further requires 
that the written contract provide for automatic termination in the 
event of its assignment. Section 2(a)(4) of the Act defines 
``assignment'' to include any direct or indirect transfer of a contract 
by the assignor or of a controlling block of the assignor's outstanding 
voting securities by a security holder of the assignor. Section 2(a)(9) 
of the Act defines ``control'' as the power to exercise a controlling 
influence over the management or policies of a company. Upon 
consummation of the Merger, CF will become a wholly-owned subsidiary of 
UAM. Applicants state that the Merger therefore will result in an 
``assignment'' of the Existing Sub-Advisory Agreement within the 
meaning of section 2(a)(4), terminating such agreement according to its 
terms.
    3. Rule 15a-4 provides, in relevant part, that if an investment 
adviser's investment advisory contract with an investment company is 
terminated by assignment, the adviser may continue to act as such for 
120 days at the previous compensation rate if a new contract is 
approved by the board of directors of the investment company and if 
neither the investment adviser nor a controlling person thereof 
directly or indirectly receives money or other benefit in connection 
with the assignment. Applicants cannot rely on rule 15a-4 because of 
the benefits to the CF shareholders arising from the Merger.
    4. Applicants state that a proxy solicitation to the shareholders 
of the Fund is a complicated and time consuming task. The task will 
include the preparation, clearance, and mailing of proxy materials, and 
the solicitation efforts required to obtain the requisite votes. 
Because of the complexity of the proxy solicitation and the imposition 
of the confidentiality requirement that prevented CF from contacting 
the Fund and the Adviser in advance of the Merger, applicants state 
that it was not possible for the Fund to obtain shareholder approval of 
the New-Sub Advisory Agreement in accordance with section 15(a) of the 
Act prior to the Effective Date.
    5. Applicants submit that the requested relief would permit CF to 
provide continuity of investment management to the Portfolio during the 
Interim Period without a disruption of advisory services. In addition, 
the requested relief would also preserve the profitability of CF during 
the Interim Period by ensuring that investment advisory fees will 
continue to accrue to it from the Portfolio, subject to shareholder 
approval. These fees are an important part of CF's total revenue and 
are important to maintaining its ability to provide services to the 
Portfolios.
    6. Section 6(c) of the Act provides that the SEC may exempt any 
person, security, or transaction from any provision of the Act, if and 
to the extent that such exemption is necessary or appropriate in the 
public interest and consistent with the protection of investors and the 
purposes fairly intended by the policy and provisions of

[[Page 47992]]

the Act. For the reasons stated above, applicants believe that the 
requested relief meets this standard.

Applicants' Conditions

    Applicants agree as conditions to the issuance of the exemptive 
order requested by this application that:
    1. The New Sub-Advisory Agreement will have the same terms and 
conditions as the Existing Sub-Advisory Agreement, except for the 
effective and termination dates.
    2. Fees earned by CF and paid by the Fund during the Interim Period 
in accordance with the New Sub-Advisory Agreement will be maintained in 
an interest-bearing escrow account, and amounts in the account 
(including interest earned on such amounts) will be paid to CF only 
after the requisite shareholder approval is obtained, or in the event 
such approval is not obtained, to the Fund.
    3. The Fund will hold a meeting of its shareholders to vote on the 
approval of the New Sub-Advisory Agreement on or before the 120th day 
following the termination of the Existing Sub-Advisory Agreement on the 
Effective Date (but in no event later than December 31, 1996).
    4. CF and/or UAM will pay the costs of preparing and filing this 
application. CF and/or UAM will pay the costs relating to the 
solicitation of the Fund shareholder approval, to the extent such costs 
relate to approval of the New Sub-Advisory Agreement necessitated by 
the Merger.
    5. CF will take all appropriate actions to ensure that the scope 
and quality of advisory and other services provided to the Fund under 
the New Sub-Advisory Agreement will be at least equivalent, in the 
judgment of the Fund's Board, including a majority of the Independent 
Directors, to the scope and quality of services previously provided. In 
the event of any material change in personnel providing services 
pursuant to the New Sub-Advisory Agreement caused by the Merger, CF 
will apprise and consult with the Board of the Fund to assure that the 
Board, including a majority of the Independent Directors members, is 
satisfied that the services provided by CF will not be diminished in 
scope or quality.

    For the SEC, by the Division of Investment Management, under 
delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-23121 Filed 9-10-96; 8:45 am]
BILLING CODE 8010-01-M