[Federal Register Volume 64, Number 190 (Friday, October 1, 1999)]
[Notices]
[Pages 53428-53430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25500]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 24054; 812-11476]


Endeavor Series Trust, et al.; Notice of Application

September 27, 1999.
agency: Securities and Exchange Commission (``SEC'').

action: Notice of application for an exemption under section 6(c) of 
the Investment Company Act of 1940 (``Act'') from section 15(a) of the 
Act and rule 18f-2 under the Act, as well as from certain disclosure 
requirements.

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Summary of Application: Endeavor Series Trust (the ``Trust'') and 
Endeavor Management Co. (the ``Adviser'') request an order that would 
permit applicants to enter into and materially amend sub-advisory 
agreements without shareholder approval and grant relief from certain 
disclosure requirements.

Applicants: The Trust and the Adviser.

Filing Date: The application was filed on January 20, 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 October 22, 
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 may request 
notification of a hearing by writing to the SEC's Secretary.

Addresses: Secretary, SEC, 450 Fifth Street, N.W., Washington, D.C. 
20549-0609. Applicants, 2101 East Coast Highway, Suite 300, Corona del 
Mar, CA 92625.

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 from 
the SEC's Public Reference Branch, 450 Fifth Street, N.W., Washington, 
D.C. 20549-0102 (tel. (202) 942-8090).

Applicants' Representations

    1. The Trust, a Massachusetts business trust, is registered under 
the Act as an open-end management investment company. The Trust is 
currently comprised of thirteen separate series (each a ``Fund,'' and 
together, the ``Funds''), each with its own investment objectives, 
policies, and restrictions.\1\ The Funds are currently offered for sale 
only to various separate accounts of a life insurance company and its 
affiliates to fund variable annuity contracts or variable life 
insurance policies. The Adviser, a California corporation, serves as 
the investment adviser to the Funds and is registered under the 
Investment Advisers Act of 1940 (``Advisers Act'').
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    \1\ Applicants also request relief with respect to future series 
of the Trust and all future registered open-end management 
investment companies that (a) are advised by the Adviser or any 
entity controlling, controlled by or under common control with the 
Adviser; (b) use the multi-manager structure described in the 
application; and (c) comply with the terms and conditions in the 
application (``Future Funds''). The Trust is the only existing 
investment company that currently intends to rely on the order.
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    2. The Adviser serves as investment adviser to the Funds pursuant 
to aninvestment advisory agreement between the Trust and the Adviser 
that was approved by the Trust's board of trustees (``Board''), 
including a majority of the trustees who are not ``interested persons'' 
as defined in section 2(a)(19) of the Act (``Independent Trustees''), 
and each Fund's shareholders (``Advisory Agreement''). In addition, 
each Fund currently is advised by a subadviser (``Subadviser'') 
pursuant to a separate investment advisory agreement (``Sub-Advisory 
Agreement''). Each Subadviser is an investment adviser registered under 
the Advisers Act. In the future, a Fund may be advised by more than one 
Subadviser. The Adviser selects each Subadviser, subject to approval by 
the Board, and compensates the Subadviser out of fees paid to the 
Adviser by the Fund.
    3. Applicants request relief to permit the Adviser to enter into 
and amend Sub-Advisory Agreements without shareholder approval. The 
requested relief will not extend to a Subadviser that is an affiliated 
person, as defined in section 2(a)(3) of the Act, of the Trust or the 
Adviser, other than by reason of serving as a Subadviser to one or more 
of the Funds (an ``Affiliated Subadviser'').
    4. Applicants also request an exemption from the various disclosure

[[Page 53429]]

provisions described below that may require the Funds to disclose the 
fees paid by the Adviser to the Subadvisers. The Trust will disclose 
for each Fund (both as a dollar amount and as a percentage of a Fund's 
net assets): (a) aggregate fees paid to the Adviser and Affiliated 
Subadvisers; and (b) aggregate fees paid to Subadvisers other than 
Affiliated Subadvisers (``Aggregate Fee Disclosure''). For any Fund 
that employs an Affiliated Subadviser, the Fund will provide separate 
disclosure of any fees paid to the Affiliated Subadviser.

Applicants' Legal Analysis

    1. Section 15(a) of the Act provides, in relevant part, that it is 
unlawful for any person to act as investment adviser to a registered 
investment company except pursuant to a written contract that has been 
approved by a majority of the investment company's outstanding voting 
securities. Rule 18f-2 under the Act provides that each series or class 
of stock in a series company affected by a matter must approve such 
matter if the Act requires shareholder approval.
    2. Form N-1A is the registration statementused by open-end 
investment companies. Item 15(a)(3) requires disclosure of the method 
and amount of the investment adviser's compensation.
    3. Rule 20a-1 under the Act requires proxies solicited with respect 
to an investment company to comply with Schedule 14A under the 
Securities Exchange Act of 1934 (the ``Exchange Act''). Items 
22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8), and 22(c)(9) of Schedule 14A, 
taken together, require a proxy statement for a shareholder meeting at 
which the advisory contract will be voted upon to include the ``rate of 
compensation of the investment adviser,'' the ``aggregate amount of the 
investment adviser's fees,'' a description of ``the terms of the 
contract to be acted upon,'' and, if a change in the advisory fee is 
proposed, the existing and proposed fees and the difference between the 
two fees.
    4. Form N-SAR is the semi-annual report filed with the SEC by 
registered investment companies. Item 48 of Form N-SAR requires 
investment companies to disclose the rate schedule for fees paid to 
their investment advisers, including the Subadvisers.
    5. Regulation S-X sets forth requirements for financial statements 
required to be included as part of investment company registration 
statements and shareholder reports filed with the SEC. Sections 6-07(2) 
(a), (b), and (c) of Regulation S-X require that investment companies 
include in their financial statements information about investment 
advisory fees.
    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, an exemption is necessary or appropriate in the 
public interest and consistent with the protection of investors and the 
purposes fairly intended by the policies and provisions of the Act. 
Applicants believe that their requested relief meets this standard for 
the reasons discussed below.
    7. Applicants assert that the Funds' investors rely on the Adviser 
to select Subadvisers best suited to achieve a Fund's investment 
objectives. Therefore, applicants assert that, from the perspective of 
the investor, the role of the Subadvisers is comparable to that of 
individual portfolio managers employed by other investment advisory 
firms. Applicants note that the Advisory Agreement will remain subject 
to sections 15(a) and 15(c) of the Act and rule 18f-2 under the Act.
    8. Applicants further assert that some Subadvisers use a ``posted'' 
rate schedule to set their fees. Applicants believe that some 
organizations may be unwilling to serve as Subadvisers at any fee rate 
other than their ``posted'' fee rates, unless the rates negotiated for 
the Funds are not publicly disclosed. Applicants believe that requiring 
disclosure of Subadvisers' fees may deprive the Adviser of its 
bargaining power to negotiate lower rates.

Applicants' Conditions

    Applicants agree that the order granting the requested relief will 
be subject to the following conditions:
    1. The Trust will disclose in its registration statement the 
Aggregate Fee Disclosure.
    2. The Trust will not enter into a Sub-Advisory Agreement, on 
behalf of a Fund, with an Affiliated Subadviser without the Sub-
Advisory Agreement, including the compensation to be paid thereunder, 
being approved by the shareholders of the applicable Fund (or, if the 
Fund serves as a funding medium for any sub-account of a registered 
separate account, pursuant to voting instructions provided by the 
unitholders of the sub-account).
    3. At all times, a majority of the Board will be Independent 
Trustees, and the nomination of new or additional Independent Trustees 
will be placed within the discretion of the then-existing Independent 
Trustees.
    4. Independent counsel knowledgeable about the Act and the duties 
of Independent Trustees will be engaged to represent the Independent 
Trustees. The selection of such counsel will be within the discretion 
of the Independent Trustees.
    5. The Adviser will provide the Board, no less often than 
quarterly, information about the Adviser's profitability for each Fund 
relying on the relief requested in the application. This information 
will reflect the impact on profitability of the hiring or termination 
of any Subadviser during the applicable quarter.
    6. Whenever a Subadviser is hired or terminated, the Adviser will 
provide the Board information showing the expected impact on the 
Adviser's profitability.
    7. When a change of Subadviser is proposed for a Fund with an 
Affiliated Subadviser, the Board, including a majority of the 
Independent Trustees, will make a separate finding, reflected in the 
minutes of meetings of the Board, that the change of Subadviser is in 
the best interests of the Fund and its shareholders (or, if the Fund 
serves as a funding medium for any sub-account of a registered separate 
account, in the best interests of the Fund and the unitholders of any 
sub-account), and does not involve a conflict of interest from which 
the Adviser or the Affiliated Subadviser derives an inappropriate 
advantage.
    8. Before an existing Fund may rely on the order requested in the 
application, the operation of the Fund in a manner described in the 
application will be approved by a majority of its outstanding voting 
securities of the Fund, (or, if the Fund serves as a funding medium for 
any sub-account of a registered separate account, pursuant to voting 
instructions provided by the unitholders of the sub-account) as defined 
in the Act, or in the case of a Future Fund whose shareholders 
purchased shares on the basis of a prospectus containing the disclosure 
contemplated by condition 10 below, by the sole initial shareholder(s) 
before offering shares of the Future Fund to the public (or the 
variable contract owners through a separate account).
    9. The Adviser will provide management and administrative services 
to each Fund relying on the requested order and, subject to the review 
and approval of the Board, will: (a) Set the Funds' overall investment 
strategies; (b) recommend Subadvisers; (c) allocate, and when 
appropriate, reallocate a Fund's assets among Subadvisers; (d) monitor 
and evaluate the investment performance of the Subadvisers; and (e) 
implement procedures reasonably designed to ensure that the Subadvisers 
comply

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with the Fund's investment objectives, policies, and restrictions.
    10. The Trust will disclose in its prospectus the existence, 
substance, and effect of any order granted pursuant to the application. 
In addition, each Fund relying on the requested order will hold itself 
out to the public as employing the management structure described in 
the application. The prospectus will prominently disclose that the 
adviser has ultimate responsibility (subject to oversight by the Board) 
to oversee the Subadvisers and recommend their hiring, termination, and 
replacement.
    11. Within 60 days of the hiring of any Subadviser, the affected 
Fund will furnish its shareholders (or, if the Fund serves as a funding 
medium for any sub-account of a registered separate account, the 
unitholders of the Sub-account) with all information about the new 
Subadviser that would be included in a proxy statement, except as 
modified to permit Aggregate Fee Disclosure. This information will 
include Aggregate Fee Disclosure and any change in such disclosure 
caused by the addition of a new Subadviser. The Adviser will meet this 
condition by providing shareholders (or, if the Fund serves as a 
funding medium for any sub-account of a registered separate account, 
unitholders of the sub-account) with an information statement meeting 
the requirements of Regulation 14C, Schedule 14C and Item 22 of 
Schedule 14A under the Exchange Act, exempt as modified by the order to 
permit Aggregate Fee Disclosure.
    12. No trustee or officer of the Trust or director or officer of 
the Adviser will own directly or indirectly (other than through a 
pooled investment vehicle that is not controlled by such person) any 
interest in a Subadviser, except for: (a) Ownership of interests in the 
Subadviser or any entity that controls, is controlled by, or is under 
common control with the Adviser; or (b) ownership of less than 1% of 
the outstanding securities of any class of equity or debt of any 
publicly-traded company that is either a Subadviser or controls, is 
controlled by, or is under common control with a Subadviser.

    For the SEC, by the Division of Investment Management, pursuant 
to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-25500 Filed 9-30-99; 8:45 am]
BILLING CODE 8010-01-M