
[Federal Register Volume 79, Number 174 (Tuesday, September 9, 2014)]
[Notices]
[Pages 53468-53471]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-21365]



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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 31239; File No. 812-14173]


Eagle Capital Appreciation Fund, et al.; Notice of Application

September 3, 2014.
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 
with Wholly-Owned Subadvisers (as defined below) and Non-Affiliated 
Subadvisers (as defined below) without shareholder approval and would 
grant relief from certain disclosure requirements. The requested order 
would supersede a prior order that granted relief solely with respect 
to Non-Affiliated Subadvisers.\1\
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    \1\ Heritage Capital Appreciation Trust, et al., Investment 
Company Act Release Nos. 25252 (November 2, 2001) (notice) and 25301 
(November 28, 2001) (order).
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    Applicants: Eagle Capital Appreciation Fund, Eagle Growth & Income 
Fund and Eagle Series Trust (each, a ``Trust'' and collectively, the 
``Trusts''), and Eagle Asset Management, Inc. (the ``Adviser'').

DATES:  Filing Dates: The application was filed on July 1, 2013, and 
amended on October 25, 2013, on April 4, 2014 and on July 31, 2014.
    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 September 29, 2014, 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, 880 Carillon 
Parkway, St. Petersburg, Florida 33716.

FOR FURTHER INFORMATION CONTACT: Kay-Mario Vobis, Senior Counsel, at 
(202) 551-6728, or Mary Kay Frech, Branch Chief, at (202) 551-6821 
(Division of Investment Management, Chief Counsel's Office).

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. Each Trust is organized as a Massachusetts business trust and is 
registered with the Commission as an open-end management investment 
company under the Act. Each Trust may offer one or more series of 
shares (each a ``Fund,'' and collectively the ``Funds''), each with its 
own distinct investment objectives, policies and restrictions. The 
Adviser is a Florida corporation registered with the Commission as an 
investment adviser under the Investment Advisers Act of 1940 (the 
``Advisers Act''), and serves as investment adviser to the Funds.
    2. Applicants request an order to permit the Adviser, subject to 
the approval of the board of trustees of each Trust (collectively, the 
``Board''),\2\ including a majority of the trustees who are not 
``interested persons'' of the Trusts or the Adviser, as defined in 
section 2(a)(19) of the Act (the ``Independent Trustees''), to, without 
obtaining shareholder approval: (i) Select certain wholly-owned and 
non-affiliated investment Subadvisers \3\ to manage all or a portion of 
the assets of one or more of the Funds pursuant to an investment 
subadvisory agreement with each Subadviser (each a ``Subadvisory 
Agreement'' and collectively, the ``Subadvisory Agreements''); and (ii) 
materially amend Subadvisory Agreements with the Subadvisers.\4\ 
Applicants request that the relief apply to the named applicants, as 
well as to any future Fund and any other existing or future registered 
open-end management investment company or series thereof that intends 
to rely on the requested order in the future and (i) is advised by the 
Adviser or its successors; \5\ (ii) uses the multi-manager structure 
described in the application; and (iii) complies with the terms and 
conditions set forth in the application (each, a ``Subadvised 
Fund'').\6\ The requested relief will not extend to any subadviser, 
other than a Wholly-Owned Subadviser, who is an affiliated person, as 
defined in section 2(a)(3) of the Act, of the Subadvised Fund or of the 
Adviser, other than by reason of serving as a subadviser to one or more 
of the Subadvised Funds (``Affiliated Subadviser'').
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    \2\ The term ``Board'' also includes the board of trustees or 
directors of a future Subadvised Fund (as defined below), if 
different from the board of trustees of the Trusts.
    \3\ A ``Subadviser'' for a Fund is a Subadviser that is (i) an 
indirect or direct ``wholly-owned subsidiary'' (as such term is 
defined in the Act) of the Adviser, or (ii) a sister company of the 
Adviser that is an indirect or direct ``wholly-owned subsidiary'' 
(as such term is defined in the Act) of the same company that, 
indirectly or directly, wholly owns the Adviser (each of (i) and 
(ii) a ``Wholly-Owned Subadviser'' and collectively, the ``Wholly-
Owned Subadvisers''), or (iii) not an ``affiliated person'' (as such 
term is defined in section 2(a)(3) of the Act) of a Fund or the 
Adviser, except to the extent that an affiliation arises solely 
because the Subadviser serves as a subadviser to one or more Funds 
(each a ``Non-Affiliated Subadviser'' and collectively, the ``Non-
Affiliated Subadvisers'').
    \4\ Shareholder approval will continue to be required for any 
other subadviser changes and material amendments to an existing 
subadvisory agreement with any subadviser other than a Non-
Affiliated Subadviser or a Wholly-Owned Subadviser (all such changes 
referred to herein as ``Ineligible Subadviser Changes''), except as 
otherwise permitted by rule or other action of the Commission or its 
staff.
    \5\ For the purposes of the requested order, ``successor'' is 
limited to an entity that results from a reorganization into another 
jurisdiction or a change in the type of business organization.
    \6\ All registered open-end investment companies that currently 
intend to rely on the requested order are named as applicants. Any 
entity that relies on the requested order will do so only in 
accordance with the terms and conditions contained in the 
application. If the name of any Subadvised Fund contains the name of 
a Subadviser, the name of the Adviser that serves as the primary 
adviser to the Subadvised Fund, or a trademark or trade name that is 
owned by or publicly used to identify that Adviser, will precede the 
name of the Subadviser.
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    3. The Adviser serves as the investment adviser to each Fund 
pursuant to an investment advisory agreement with the Fund (each an 
``Investment Advisory Agreement'' and, together, the ``Investment 
Advisory Agreements''). Any future Adviser also will be registered with 
the Commission as an investment adviser under the Advisers Act. Each 
Investment Advisory Agreement has been or will be approved by the 
Board, including a majority of the Independent Trustees, and by the 
shareholders of the relevant Fund in the manner required by sections 
15(a) and 15(c) of the Act and rule 18f-2 thereunder. The terms of the 
Investment Advisory Agreements comply or will comply with section 15(a) 
of the Act.
    4. Pursuant to the terms of each Investment Advisory Agreement, the 
Adviser, subject to the oversight of the Board, has agreed or will 
agree to

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provide a continuous investment program for each Fund, which includes 
determining the securities and other investments to be purchased, 
retained, sold or loaned by each Fund and the portion of such assets to 
be invested or held uninvested as cash. The Adviser will periodically 
review each Fund's investment policies and strategies and, based on the 
need of a particular Fund, may recommend changes to the investment 
policies and strategies of the Fund for consideration by the Board. For 
its services to each Fund, the Adviser receives or will receive an 
investment advisory fee from that Fund as specified in the applicable 
Investment Advisory Agreement. Consistent with the terms of each 
Subadvised Fund's Investment Advisory Agreement, the Adviser may, 
subject to the approval of the Board, including a majority of the 
Independent Trustees, and the shareholders of the applicable Subadvised 
Fund (if required), delegate portfolio management responsibilities of 
all or a portion of the assets of a Subadvised Fund to a Subadviser. 
The Adviser continues to have overall responsibility for the management 
and investment of the assets of each Subadvised Fund. These 
responsibilities include recommending the removal or replacement of 
Subadvisers, and determining the portion of that Subadvised Fund's 
assets to be managed by any given Subadviser and reallocating those 
assets as necessary from time to time.
    5. Pursuant to the authority under the Investment Advisory 
Agreement, the Adviser may enter into Subadvisory Agreements with 
various Subadvisers on behalf of the Funds. The Adviser has entered 
into a Subadvisory Agreement with Eagle Boston Investment Management, 
Inc., a wholly-owned subsidiary of the Adviser. The Adviser also may, 
in the future, enter into Subadvisory Agreements with other Subadvisers 
on behalf of the Funds. The Subadvisory Agreements were or will be 
approved by the Board, including a majority of the Independent 
Trustees, and the shareholders of the Subadvised Fund in accordance 
with sections 15(a) and 15(c) of the Act and rule 18f-2 thereunder. In 
addition, the terms of the Subadvisory Agreements comply or will comply 
fully with the requirements of section 15(a) of the Act. The 
Subadvisers, subject to the oversight of the Adviser and the Board, 
determine or will determine the securities and other instruments to be 
purchased, sold or entered into by a Subadvised Fund's portfolio or a 
portion thereof, and place orders with brokers or dealers that they 
select. The Adviser will compensate the Subadvisers out of the fee 
received by the Adviser from the applicable Subadvised Fund under the 
applicable Investment Advisory Agreement.
    6. Subadvised Funds will inform shareholders of the hiring of a new 
Subadviser pursuant to the following procedures (``Modified Notice and 
Access Procedures''): (a) Within 90 days after a new Subadviser is 
hired for any Subadvised Fund, that Subadvised Fund will send its 
shareholders either a Multi-manager Notice or a Multi-manager Notice 
and Multi-manager Information Statement; \7\ and (b) a Subadvised Fund 
will make the Multi-manager Information Statement available on the Web 
site identified in the Multi-manager Notice no later than when the 
Multi-manager Notice (or Multi-manager Notice and Multi-manager 
Information Statement) is first sent to shareholders, and will maintain 
it on that Web site for at least 90 days. Applicants state that, in the 
circumstances described in the application, a proxy solicitation to 
approve the appointment of new Subadvisers provides no more meaningful 
information to shareholders than the proposed Multi-manager Information 
Statement. Applicants also state that the Board would comply with the 
requirements of sections 15(a) and 15(c) of the Act before entering 
into or amending Subadvisory Agreements.
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    \7\ A ``Multi-manager Notice'' will be modeled on a Notice of 
Internet Availability as defined in rule 14a-16 under the Securities 
Exchange Act of 1934 (``Exchange Act''), and specifically will, 
among other things: (a) summarize the relevant information regarding 
the new Subadviser (except as modified to permit Aggregate Fee 
Disclosure, as defined below); (b) inform shareholders that the 
Multi-manager Information Statement is available on a Web site; (c) 
provide the Web site address; (d) state the time period during which 
the Multi-manager Information Statement will remain available on 
that Web site; (e) provide instructions for accessing and printing 
the Multi-manager Information Statement; and (f) instruct the 
shareholder that a paper or email copy of the Multi-manager 
Information Statement may be obtained, without charge, by contacting 
the Subadvised Fund.
    A ``Multi-manager Information Statement'' will meet the 
requirements of Regulation 14C, Schedule 14C and Item 22 of Schedule 
14A under the Exchange Act for an information statement, except as 
modified by the order to permit Aggregate Fee Disclosure. Multi-
manager Information Statements will be filed with the Commission via 
the EDGAR system.
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    7. Applicants also request an order under section 6(c) of the Act 
exempting the Subadvised Funds from certain disclosure obligations that 
may require each Subadvised Fund to disclose fees paid by the Adviser 
to each Subadviser. Applicants seek relief to permit each Subadvised 
Fund to disclose (as a dollar amount and a percentage of a Subadvised 
Fund's net assets) (a) the aggregate fees paid to the Adviser and any 
Wholly-Owned Subadvisers; (b) the aggregate fees paid to Non-Affiliated 
Subadvisers; and (c) the fee paid to each Affiliated Subadviser 
(collectively, the ``Aggregate Fee Disclosure''). An exemption is 
requested to permit a Subadvised Fund to include only the Aggregate Fee 
Disclosure. All other items required by Sections 6-07(2)(a), (b) and 
(c) of Regulation S-X will be disclosed.
    Applicants' Legal Analysis:
    1. Section 15(a) of the Act states, in 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, which 
contract, whether with such registered company or with an investment 
adviser of such registered company, has been approved by the vote of a 
majority of the outstanding voting securities of such registered 
company.'' 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 a registered 
investment company to disclose in its statement of additional 
information the method of computing the ``advisory fee payable'' by the 
investment company, including the total dollar amounts that the 
investment company ``paid to the adviser (aggregated with amounts paid 
to affiliated advisers, if any), and any advisers who are not 
affiliated persons of the adviser, under the investment advisory 
contract for the last three fiscal years.''
    3. Rule 20a-1 under the Act requires proxies solicited with respect 
to a registered investment company to comply with Schedule 14A under 
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 fee,'' 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. Regulation S-X sets forth the requirements for financial 
statements required to be included as part of a registered investment 
company's registration statement and shareholder reports filed with the 
Commission.

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Sections 6-07(2)(a), (b) and (c) of Regulation S-X require a registered 
investment company to include in its financial statement information 
about the investment advisory fees.
    5. 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.
    6. Applicants assert that the shareholders expect the Adviser, 
subject to the review and approval of the Board, to select a Subadviser 
who is in the best position to achieve the Subadvised Fund's investment 
objective. Applicants assert that, from the perspective of the 
shareholder, the role of the Subadvisers is substantially equivalent to 
the role of the individual portfolio managers employed by an investment 
adviser to a traditional investment company. Applicants believe that 
permitting the Adviser to perform the duties for which the shareholders 
of a Subadvised Fund are paying the Adviser--the selection, supervision 
and evaluation of the Subadviser--without incurring unnecessary delays 
or expenses is appropriate and in the interest of a Subadvised Fund's 
shareholders and will allow such Subadvised Fund to operate more 
efficiently. Applicants state that each Investment Advisory Agreement 
will continue to be fully subject to section 15(a) of the Act and rule 
18f-2 under the Act and approved by the relevant Board, including a 
majority of the Independent Trustees, in the manner required by 
sections 15(a) and 15(c) of the Act. Applicants are not seeking an 
exemption with respect to the Investment Advisory Agreements.
    7. Applicants assert that disclosure of the individual fees that 
the Adviser would pay to the Subadvisers does not serve any meaningful 
purpose. Applicants contend that the primary reasons for requiring 
disclosure of individual fees paid to Subadvisers are to inform 
shareholders of expenses to be charged by a particular Subadvised Fund 
and to enable shareholders to compare the fees to those of other 
comparable investment companies. Applicants believe that the requested 
relief satisfies these objectives because the advisory fee paid to the 
Adviser will be fully disclosed and, therefore, shareholders will know 
what a Subadvised Fund's fees and expenses are and will be able to 
compare the advisory fees a Subadvised Fund is charged to those of 
other investment companies. Applicants assert that the requested 
disclosure relief would benefit shareholders of the Subadvised Funds 
because it would improve the Adviser's ability to negotiate the fees 
paid to Subadvisers. Applicants state that the Adviser may be able to 
negotiate rates that are below a Subadviser's ``posted'' amounts if the 
Adviser is not required to disclose the Subadvisers' fees to the 
public. Applicants assert that the relief will also encourage 
Subadvisers to negotiate lower subadvisory fees with the Adviser if the 
lower fees are not required to be made public.
    8. Applicants submit that the requested relief meets the standards 
for relief under section 6(c) of the Act. Applicants state that the 
operation of a Subadvised Fund in the manner described in the 
application must be approved by shareholders of the Subadvised Fund 
before that Subadvised Fund may rely on the requested order. In 
addition, applicants state that any conflict of interest or economic 
incentive that may exist in connection with the Adviser selecting a 
Wholly-Owned Subadviser to manage all or a portion of the assets of a 
Subadvised Fund are addressed under the terms and conditions of the 
application and will be disclosed to shareholders and considered by the 
Board when it reviews the selection or termination of Subadvisers. 
Applicants also assert that conditions 6, 7, 10 and 11 are designed to 
provide the Board with sufficient independence and the resources and 
information it needs to monitor and address any conflicts of interest. 
Applicants state that, accordingly, they believe the requested relief 
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' Conditions:
    Applicants agree that any order granting the requested relief will 
be subject to the following conditions:
    1. Before a Subadvised Fund may rely on the order requested in the 
application, the operation of the Subadvised Fund in the manner 
described in the application, including the hiring of Wholly-Owned 
Subadvisers, will be, or has been, approved by a majority of the 
Subadvised Fund's outstanding voting securities as defined in the Act, 
or, in the case of a Subadvised Fund whose public shareholders purchase 
shares on the basis of a prospectus containing the disclosure 
contemplated by condition 2 below, by the initial shareholder before 
such Subadvised Fund's shares are offered to the public.
    2. The prospectus for each Subadvised Fund will disclose the 
existence, substance and effect of any order granted pursuant to the 
application. In addition, each Subadvised Fund will hold itself out to 
the public as employing the multi-manager 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 Subadvisers and recommend their hiring, termination, and 
replacement.
    3. The Adviser will provide general management services to each 
Subadvised Fund, including overall supervisory responsibility for the 
general management and investment of the Subadvised Fund's assets, and 
subject to review and approval of the Board, will (i) set the 
Subadvised Fund's overall investment strategies; (ii) evaluate, select, 
and recommend Subadvisers to manage all or a portion of the Subadvised 
Fund's assets; (iii) allocate and, when appropriate, reallocate the 
Subadvised Fund's assets among Subadvisers; (iv) monitor and evaluate 
the Subadvisers' performance; and (v) implement procedures reasonably 
designed to ensure that Subadvisers comply with the Subadvised Fund's 
investment objective, policies and restrictions.
    4. A Subadvised Fund will not make any Ineligible Subadviser 
Changes without the approval of the shareholders of the applicable 
Subadvised Fund.
    5. Subadvised Funds will inform shareholders of the hiring of a new 
Subadviser within 90 days after the hiring of the new Subadviser 
pursuant to the Modified Notice and Access Procedures.
    6. At all times, at least a majority of the Board will be 
Independent Trustees, and the selection and nomination of new or 
additional Independent Trustees will be placed within the discretion of 
the then-existing Independent Trustees.
    7. 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.
    8. The Adviser will provide the Board, no less frequently than 
quarterly, with information about the profitability of the Adviser on a 
per Subadvised Fund basis. The information will reflect

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the impact on profitability of the hiring or termination of any 
Subadviser during the applicable quarter.
    9. Whenever a Subadviser is hired or terminated, the Adviser will 
provide the Board with information showing the expected impact on the 
profitability of the Adviser.
    10. Whenever a Subadviser change is proposed for a Subadvised Fund 
with an Affiliated Subadviser or a Wholly-Owned Subadviser, 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 Subadvised Fund and its shareholders and does not 
involve a conflict of interest from which the Adviser or the Affiliated 
Subadviser or Wholly-Owned Subadviser derives an inappropriate 
advantage.
    11. No Trustee or officer of a Subadvised Fund 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 (i) ownership of 
interests in the Adviser or any entity, other than a Wholly-Owned 
Subadviser, 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 Subadviser or an entity, that controls, is controlled 
by or is under common control with a Subadviser.
    12. Each Subadvised Fund will disclose in its registration 
statement the Aggregate Fee Disclosure.
    13. In the event that the Commission adopts a rule under the Act 
providing substantially similar relief to that requested in the 
application, the requested order will expire on the effective date of 
that rule.
    14. Any new Subadvisory Agreement or any amendment to a Subadvised 
Fund's existing investment advisory agreement or Subadvisory Agreement 
that directly or indirectly results in an increase in the aggregate 
advisory fee rate payable by the Subadvised Fund will be submitted to 
the Subadvised Fund's shareholders for approval.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-21365 Filed 9-8-14; 8:45 am]
BILLING CODE 8011-01-P


