[Federal Register Volume 62, Number 201 (Friday, October 17, 1997)] [Notices] [Pages 54145-54147] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 97-27594] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 22850; 812-10808] Security First Trust, et al.; Notice of Application October 10, 1997. AGENCY: Securities and Exchange Commission (``SEC''). ACTION: Notice of application for exemption under section 6(c) of the Investment Company Act of 1940 (the ``Act'') from section 15(a) of the Act. ----------------------------------------------------------------------- Summary of Application: Signet Banking Corporation (``Signet''), parent of Virtus Capital Management, Inc. (``Subadviser''), has entered into an agreement and plan of merger with First Union Corporation (``First Union''). The indirect change in control of the Subadviser will result in the assignment, and thus the termination, of the existing subadvisory contract between Security First Investment Management Corporation (``Adviser'') on behalf of Security First Trust (``Fund''), and the Subadviser. The order would permit the implementation, without shareholder approval, of a new investment subadvisory agreement for a period of up to 120 days following the date of the change in control of the Subadviser (but in no event later than April 30, 1998). The order also would permit the Subadviser to receive all fees earned under the new subadvisory agreement following shareholder approval. Applicants: Fund, Adviser, and the Subadviser. Filing Dates: The application was filed on October 7, 1997. Applicants have agreed to file an 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 [[Page 54146]] copy of the request, personally or by mail. Hearing requests should be received by the SEC by 5:30 p.m. on November 4, 1997, 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 by writing to the SEC's Secretary. ADDRESSES: Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549. Applicants, c/o Rosemary D. Van Antwerp, Esq., Evergreen Keystone Investment Services Inc., 200 Berkeley Street, Boston, Massachusetts 02116. FOR FURTHER INFORMATION CONTACT: John K. Forst, Attorney Advisor, at (202) 942-0569, or Mary Kay Frech, Branch Chief, at (202) 942-0564 (Office of Investment Company Regulation, Division of Investment Management). SUPPLEMENTARY INFORMATION: The following is a summary of the application. The complete application may be obtained for a fee at the SEC's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549 (tel. 202-942-8090). Applicants' Representations 1. The Fund is a Massachusetts business trust registered under the Act as an open-end management investment company. The Fund currently offers two series, the Virtus Equity Series and Virtus U.S. Government Income Series (the ``Portfolios''), to the public. The Adviser and the Subadviser, a wholly-owned subsidiary of Signet, are investment advisers registered under the Investment Advisers Act of 1940. The Fund and the Adviser have entered into a sub-advisory agreement for the Portfolios. 2. On July 18, 1997, First Union entered into an agreement and plan of merger with Signet, under which Signet would be merged with and into First Union in exchange for shares of common stock of First Union in exchange for shares of common stock of First Union (the ``Transaction''). As a result of the Transaction, Signet will become a wholly-owned subsidiary of First Union and the Subadviser will remain a wholly-owned subsidiary of Signet. Applicants expect consummation of the Transaction on November 13, 1997. 3. Applicants request an exemption to permit implementation, prior to obtaining shareholder approval, of a new investment subadvisory agreement between the Adviser and the Subadviser, on behalf of the Fund, (``New Agreement''). The requested exemption will cover an interim period of not more than 120 days beginning on the date the Transaction is consummated and continuing through the date on which the New Agreement is approved or disapproved by the shareholders of each Portfolio, but in no event later than April 30, 1998 (the ``Interim Period''). Applicants state that the New Agreement will be identical in substance to the existing investment subadvisory agreement (``Existing Agreement''). The contractual rates chargeable for subadvisory services under the New Agreement will remain the same as under the Existing Agreement. 4. On October 7, 1997, the Fund's board of trustees held an in- person meeting to evaluate whether the terms of the New Agreement are in the best interests of the Fund and its shareholders. At the meeting, a majority of the members of the board, including a majority of members who are not ``interested persons'' of the Fund, as that term is defined in section 2(a)(19) of the Act (the ``Independent Trustees''), voted in accordance with section 15(c) of the Act to approve the New Agreement and to submit the New Agreement to the shareholders of each of the Portfolios at meetings expected to be held in February, 1998 (the ``Meetings''). 5. Applicants expect that proxy materials for the Meetings will be mailed during January 1998. Applicants believe that the requested relief is necessary to permit continuity of investment management for the Fund during the Interim Period and to prevent disruption of the services for the Fund. 6. Applicants also request an exemption to permit the Subadviser to receive from the Fund, upon approval by its shareholders, all fees earned under the New Agreement during the Interim Period. Applicants state that the fees paid during the Interim Period will be unchanged from the fees paid under the Existing Agreement. 7. Applicants propose to enter into an escrow arrangement with an unaffiliated financial institution. The fees payable to the Subadviser during the Interim Period under the New Agreement will be paid into an interest-bearing escrow account maintained by the escrow agent. The escrow agent will release the amounts held in the escrow account (including any interest earned): (a) To the Adviser only upon approval of the relevant New Agreement by the shareholders of the Portfolios; or (b) to the relevant Portfolio if the Interim Period has ended and its New Agreement has not received the requisite shareholder approval. Before any such release is made, the Independent Trustees of the Fund will be notified. Applicants' Legal Analysis 1. Section 15(a) of the Act provides, in pertinent part, that it is unlawful for any person to serve as an investment adviser to a registered investment company, except pursuant to a written contract that has been approved by the vote of a majority of the outstanding voting securities of the investment company. Section 15(a) further requires the written contract to provide for its 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. 2. Applicants state that, following the completion of the Transaction, Signet will become a wholly-owned subsidiary of First Union. Applicants believe, therefore, that the Transaction will result in an ``assignment'' of the Existing Agreement and that the Existing Agreement will terminate by its terms upon consummation of the Transaction. 3. Rule 15a-4 provides, in pertinent part, that if an investment advisory contract with an investment company is terminated by an assignment in which the adviser does not directly or indirectly receive a benefit, the adviser may continue to serve for 120 days under a written contract that has not been approved by the company's shareholders, provided that: (a) The new contract is approved by that company's board of directors (including a majority of the non- interested directors); (b) the compensation to be paid under the new contract does not exceed the compensation that would have been paid under the contract most recently approved by the company's shareholders; and (c) neither the adviser nor any controlling person of the adviser ``directly or indirectly receives money or other benefit'' in connection with the assignment. Applicants state that because of the benefits to Signet, the Subadviser's parent, arising from the Transaction, applicants may not rely on rule 15a-4. 4. Section 6(c) 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 the Act. Applicants [[Page 54147]] believe that the requested relief meets this standard. 5. Applicants note that the terms and timing of the Transaction were determined by First Union and Signet and arose primarily out of business considerations beyond the scope of the Act and unrelated to the Fund and the Subadviser, including the time needed to obtain federal and state banking approvals for the Transaction. Applicants submit that it is in the best interests of shareholders of the Fund to avoid any interruption in services to the Fund, to allow sufficient time for the consideration and return of proxies, and to hold a shareholders meeting. 6. Applicants submit that the scope and quality of services provided to the Fund during the Interim Period will not be diminished. During the Interim Period, the Subadviser would operate under the New Agreement, which would be substantively the same as the Existing Agreement, except for its effective date. Applicants submit that if the personnel providing material services pursuant to the New Agreement change materially, the Subadviser will apprise and consult with the Fund's board of trustees to assure that the board (including a majority of the Independent Trustees) is satisfied that the services provided by the Subadviser will not be diminished in scope or quality. Accordingly, the Fund should receive, during the Interim Period, the same subadvisory services, provided in the manner, at the same fee levels as the Fund received before the Transaction. 7. Applicants contend that the best interests of shareholders of the Fund would be served if the Subadviser receives fees for its services during the Interim Period. Applicants state that the fees are essential to maintaining the subadviser's ability to provide services to the Fund. In addition, the fees to be paid during the Interim Period will be unchanged from the fees paid under the Existing Agreements, which have been approved by the shareholders of each respective Portfolio. Applicants' Conditions Applicants agree as conditions to the issuance of the exemptive order requested by the application that: 1. The New Agreement will have substantially the same terms and conditions as the Existing Agreement, except for its effective date. 2. Fees earned by the Subadviser in respect of the New Agreement during the Interim Period will be maintained in an interest-bearing escrow account, and amounts in the account (including interest earned on such paid fees) will be paid (a) to the Subadviser in accordance with the New Agreement, after the requisite shareholder approvals are obtained, or (b) to the respective Portfolio, in the absence of shareholder approval with respect to such Portfolio. 3. The Fund will hold a meeting of shareholders to vote on approval of the New Agreement on or before the 120th day following the termination of the Existing Agreement (but in no event later than April 30, 1998). 4. Either First Union or the Subadviser will bear the costs of preparing and filing the application, and costs relating to the solicitation of shareholder approval of the Fund necessitated by the Transaction. 5. The Subadviser will take all appropriate steps so that the scope and quality of advisory and other services provided to the Fund during the Interim Period will be at least equivalent, in the judgment of the Independent Trustees, to the scope and quality of services previously provided. If personnel providing material services during the Interim Period change materially, the Subadviser will apprise and consult with the board to assure that the board, including a majority of the Independent Trustees of the Fund, are satisfied that the services provided will not be diminished in scope or quality. For the Commission, by the Division of Investment Management, pursuant to delegated authority. Margaret H. McFarland, Deputy Secretary. [FR Doc. 97-27594 Filed 10-16-97; 8:45 am] BILLING CODE 8010-01-M