
[Federal Register: March 12, 2010 (Volume 75, Number 48)]
[Notices]               
[Page 11949-11951]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr10-166]                         

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 29170; File No. 812-13732]

 
Lincoln Investment Advisors Corporation and Lincoln Variable 
Insurance Products Trust; Notice of Application

March 9, 2010.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application under section 6(c) of the Investment 
Company Act of 1940 (``Act'') for an exemption 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: Applicants request an order that would permit 
them to enter into and materially amend subadvisory agreements without 
shareholder approval and would grant relief from certain disclosure 
requirements.

Applicants: Lincoln Investment Advisors Corporation (``Adviser'') and 
Lincoln Variable Insurance Products Trust (the ``Trust'') (together, 
``Applicants'').

Filing Dates: The application was filed on December 22, 2009. 
Applicants have agreed to file an amendment during the notice period, 
the substance of which is contained in this notice.

Hearing or Notification of Hearing: An order granting the application 
will be issued unless the Commission orders a hearing. Interested 
persons may request a hearing by writing to the Commission's Secretary 
and serving applicants with a copy of the request, personally or by 
mail. Hearing requests should be received by the Commission by 5:30 
p.m. on March 30, 2010, 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 Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F 
Street, NE., Washington, DC 20549-1090. Applicants, Lincoln Investment 
Advisors Corporation, One Granite Place, Concord, NH 03301 and Lincoln 
Variable Insurance Products Trust, 1300 S. Clinton Street, Fort Wayne, 
IN 46802.

FOR FURTHER INFORMATION CONTACT: Jill Ehrlich, Attorney Adviser, at 
(202) 551-6819, or Mary Kay Frech, Branch Chief, at (202) 551-6821 
(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 via the 
Commission's Web site by searching for the file number, or an applicant 
using the Company name box, at http://www.sec.gov/search/search.htm or 
by calling (202) 551-8090.

Applicants' Representations

    1. The Trust, a Delaware statutory trust, is registered under the 
Act as an open-end management investment company and currently offers 
39 series, each with separate investment objectives, policies and 
restrictions (each, a ``Fund'' and collectively, the ``Funds'').\1\ The 
Adviser, an indirect, wholly owned subsidiary of Lincoln National 
Corporation, is registered as an investment adviser under the 
Investment Advisers Act of 1940 (``Advisers Act''). The Adviser serves 
as investment adviser to each Fund under an investment advisory 
agreement (each, an ``Advisory Agreement'') that

[[Page 11950]]

has been approved by the shareholders \2\ of each Fund and by the 
Trust's board of trustees (the ``Board''), including a majority of the 
trustees who are not ``interested persons,'' as defined in section 
2(a)(19) of the Act, of the Trust, the Adviser, or the Sub-Advisers 
(the ``Independent Trustees'').
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    \1\ Applicants request that any relief granted pursuant to the 
application also apply to any existing or future registered open-end 
management investment company or series thereof that: (i) Is advised 
by the Adviser or any entity controlling, controlled by, or under 
common control with the Adviser; (ii) uses the ``manager of 
managers'' structure described in the application; and (iii) 
complies with the terms and conditions of the application (included 
in the term ``Funds''). The Trust is the only existing investment 
company that currently intends to rely on the order. If the name of 
any Fund should, at any time, contain the name of a Sub-Adviser (as 
defined below), the name of the Adviser or a trademark or trade name 
owned by Lincoln Financial Group, such as ``Lincoln VIP'' or 
``LVIP,'' will precede the name of the Sub-Adviser. ``Lincoln 
Financial Group'' is the marketing name for Lincoln National 
Corporation, the ultimate parent company of the Adviser.
    \2\ The term ``shareholder'' includes variable life insurance 
policy and variable annuity contract owners that are unitholders of 
any separate account for which a Fund serves as a funding medium.
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    2. Under the terms of each Advisory Agreement, the Adviser is 
authorized to manage the investment and reinvestment of the assets of 
each Fund in conformity with the Fund's investment objectives, policies 
and restrictions. As compensation for its services, the Adviser 
receives a fee from the Trust, computed separately for each Fund. The 
fee for each Fund is stated as an annual percentage of the current 
value of the net assets of the Fund. Each Advisory Agreement 
specifically permits the Adviser to delegate its investment advisory 
responsibilities to one or more investment advisers (each, a ``Sub-
Adviser''), pursuant to investment sub-advisory agreements (each, a 
``Sub-Advisory Agreement''), subject to the approval of the Board. Each 
Sub-Adviser is, and any future Sub-Adviser will be, an investment 
adviser that is registered under the Advisers Act. The Adviser monitors 
and evaluates the Sub-Advisers and recommends to the Board their 
hiring, retention or termination. The Board, including a majority of 
the Independent Trustees, will approve each Sub-Advisory Agreement. 
Each Sub-Adviser will have discretionary investment authority with 
respect to the portion of the Fund's assets allocated to it by the 
Adviser, subject to supervision by the Adviser and the Board. The 
Adviser pays each Fund's Sub-Adviser(s), if any, out of the fee the 
Adviser receives from the Fund under the relevant Advisory Agreement.
    3. Applicants request relief to permit the Adviser, subject to 
Board approval, to enter into and materially amend Sub-Advisory 
Agreements without obtaining shareholder approval. The requested relief 
will not extend to any Sub-Adviser that is an affiliated person, as 
defined in section 2(a)(3) of the Act, of a Fund or the Adviser, other 
than by reason of serving as a Sub-Adviser to one or more of the Funds 
(``Affiliated Sub-Adviser'').
    4. Applicants also request an exemption from the various disclosure 
provisions described below that may require the Applicants to disclose 
fees paid by the Adviser to each Sub-Adviser. An exemption is requested 
to permit a Fund to disclose (as both a dollar amount and as a 
percentage of the Fund's net assets): (i) Aggregate fees paid to the 
Adviser and Affiliated Sub-Advisers; and (ii) aggregate fees paid to 
Sub-Advisers other than Affiliated Sub-Advisers (``Aggregate Fee 
Disclosure''). If a Fund employs an Affiliated Sub-Adviser, the Fund 
will provide separate disclosure of any fees paid to the Affiliated 
Sub-Adviser.

Applicants' Legal Analysis

    1. Section 15(a) of the Act provides, in relevant part, that it is 
unlawful for any person to act as an investment adviser to a registered 
investment company except pursuant to a written contract that has been 
approved by a vote of a majority of the company's outstanding voting 
securities. Rule 18f-2 under the Act provides that each series or class 
of stock in a series investment company affected by a matter must 
approve that matter if the Act requires shareholder approval.
    2. Form N-1A is the registration statement used by open-end 
investment companies. Item 19(a)(3) of Form N-1A requires disclosure of 
the method and amount of the investment adviser's compensation.\3\
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    \3\ Form N-1A was recently amended by the Commission, effective 
March 31, 2009, and, with respect to any Fund that has not yet begun 
using the revised form, references in the application to Item 
19(a)(3) should be read to refer to Item 14(a)(3).
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    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 (``1934 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 Commission 
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 Sub-Advisers.
    5. Regulation S-X sets forth the requirements for financial 
statements required to be included as part of investment company 
registration statements and shareholder reports filed with the 
Commission. Sections 6-07(2)(a), (b), and (c) of Regulation S-X require 
that registered investment companies include in their financial 
statements information about investment advisory fees.
    6. Section 6(c) of the Act provides that the Commission may exempt 
any person, security, or transaction or any class or classes of 
persons, securities, or transactions from any provisions of the Act, or 
from any rule thereunder, if 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 state that their requested relief meets this standard 
for the reasons discussed below.
    7. Applicants assert that shareholders will rely on the Adviser's 
expertise to select one or more Sub-Advisers best suited to achieve a 
Fund's investment objectives. Applicants assert that, from the 
perspective of the shareholder, the role of the Sub-Advisers with 
respect to a Fund will be substantially equivalent to the role of the 
individual portfolio managers employed by traditional investment 
company advisory firms. Applicants contend that requiring shareholder 
approval of Sub-Advisory Agreements would impose unnecessary costs and 
delays on the Funds and may preclude the prompt replacement of a Sub-
Adviser when considered advisable by the Board and the Adviser. 
Applicants note that each Advisory Agreement and any Sub-Advisory 
Agreement with an Affiliated Sub-Adviser will remain subject to the 
shareholder voting requirements of section 15(a) of the Act and rule 
18f-2 under the Act.
    8. Applicants assert that some Sub-Advisers use a ``posted'' fee 
schedule to set their fees. Applicants state that while Sub-Advisers 
are willing to negotiate fees that are lower than those posted on the 
schedule, they are reluctant to do so where the fees are disclosed to 
other prospective and existing customers. Applicants submit that the 
requested relief will better enable the Adviser to negotiate lower 
advisory fees with the Sub-Advisers, the benefits of which would likely 
be passed on to the shareholders of the Funds.

Applicants' Conditions

    Applicants agree that any order granting the requested relief will 
be subject to the following conditions:
    1. Before a Fund may rely on the order requested in the 
application, the operation of the Fund in the manner described in the 
application will be approved by a majority of the Fund's

[[Page 11951]]

outstanding voting securities, as defined in the Act, or in the case of 
a Fund whose public shareholders purchase shares on the basis of a 
prospectus containing the disclosure contemplated by condition 2 below, 
by the sole initial shareholder before offering the Fund's shares to 
the public.
    2. The prospectus for each Fund will disclose the existence, 
substance, and effect of any order granted pursuant to the application. 
In addition, each Fund will hold itself out to the public as employing 
the manager of managers structure described in the application. The 
prospectus will prominently disclose that the Adviser has the ultimate 
responsibility (subject to oversight by the Board) to oversee the Sub-
Advisers and to recommend their hiring, termination and replacement.
    3. At all times, at least 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. The Adviser will not enter into a Sub-Advisory Agreement with 
any Affiliated Sub-Adviser without that agreement, including the 
compensation to be paid thereunder, being approved by the shareholders 
of the applicable Fund.
    5. When a change of Sub-Adviser is proposed for a Fund with an 
Affiliated Sub-Adviser, the Board, including a majority of the 
Independent Trustees, will make a separate finding, reflected in the 
Board minutes, that the change is in the best interests of the Fund and 
its shareholders and does not involve a conflict of interest from which 
the Adviser or the Affiliated Sub-Adviser derives an inappropriate 
advantage.
    6. Within 90 days of hiring any new Sub-Adviser, the affected 
Fund's shareholders will be furnished all information about the new 
Sub-Adviser that would be contained 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 the new Sub-Adviser. To meet this obligation, 
the Fund will provide shareholders within 90 days of the hiring of a 
new Sub-Adviser with an information statement meeting the requirements 
of Regulation 14C, Schedule 14C, and Item 22 of Schedule 14A under the 
1934 Act, except as modified by the order to permit Aggregate Fee 
Disclosure.
    7. The Adviser will provide general investment advisory services to 
the Funds, including overall supervisory responsibility for the general 
management and investment of each Fund's assets, and, subject to review 
and approval by the Board, the Adviser will (i) set each Fund's overall 
investment strategies; (ii) evaluate, select and recommend Sub-Advisers 
to manage all or part of each Fund's assets; (iii) when appropriate, 
allocate and reallocate each applicable Fund's assets among multiple 
Sub-Advisers; (iv) monitor and evaluate the performance of the Sub-
Advisers, and (v) implement procedures reasonably designed to ensure 
that the Sub-Advisers comply with each Fund's investment objective, 
policies and restrictions.
    8. No trustee or officer of a 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 Sub-Adviser, except for: (i) Ownership of interests in the Adviser 
or any entity that controls, is controlled by, or is under common 
control with the Adviser; or (ii) ownership of less than 1% of the 
outstanding securities of any class of equity or debt of a publicly 
traded company that is either a Sub-Adviser or an entity that controls, 
is controlled by, or is under common control with a Sub-Adviser.
    9. Independent legal counsel, as defined in rule 0-1(a)(6) under 
the Act, will be engaged to represent the Independent Trustees. The 
selection of such counsel will be within the discretion of the then 
existing Independent Trustees.
    10. Each Fund will disclose in its registration statement the 
Aggregate Fee Disclosure.
    11. Whenever a Sub-Adviser is hired or terminated, the Adviser will 
provide the Board with information showing the expected impact on the 
Adviser's profitability.
    12. The Adviser will provide the Board, no less frequently than 
quarterly, with information about the Adviser's profitability, on a 
per-Fund basis. The information will reflect the impact on 
profitability of the hiring or termination of any Sub-Adviser during 
the applicable quarter.
    13. In the event that the Commission adopts a rule under the Act 
providing substantially similar relief to that in the order requested 
in the application, the requested order will expire on the effective 
date of that rule.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-5446 Filed 3-11-10; 8:45 am]
BILLING CODE 8011-01-P

