80_FR_26193 80 FR 26106 - Syntax, LLC and Syntax ETF Trust; Notice of Application

80 FR 26106 - Syntax, LLC and Syntax ETF Trust; Notice of Application

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 80, Issue 87 (May 6, 2015)

Page Range26106-26114
FR Document2015-10586

Federal Register, Volume 80 Issue 87 (Wednesday, May 6, 2015)
[Federal Register Volume 80, Number 87 (Wednesday, May 6, 2015)]
[Notices]
[Pages 26106-26114]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-10586]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 31590; 812-14385]


Syntax, LLC and Syntax ETF Trust; Notice of Application

April 30, 2015.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 6(c) of the 
Investment Company Act of 1940 (the ``Act'') for an exemption from 
sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 
under the Act, under sections 6(c) and 17(b) of the Act for an 
exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under 
section 12(d)(1)(J) for an exemption from sections 12(d)(1)(A) and 
12(d)(1)(B) of the Act.

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    Summary of Application: Applicants request an order that would 
permit (a) series of certain open-end management investment companies 
to issue shares (``Shares'') redeemable in large aggregations only 
(``Creation Units''); (b) secondary market transactions in Shares to 
occur at negotiated market prices rather than at net asset value 
(``NAV''); (c) certain series to pay redemption proceeds, under certain 
circumstances, more than seven days after the tender of Shares for 
redemption; (d) certain affiliated persons of the series to deposit 
securities into, and receive securities from, the series in connection 
with the purchase and redemption of Creation Units; and (e) certain 
registered management investment companies and unit investment trusts 
outside of the same group of investment companies as the series to 
acquire Shares.
    Applicants: Syntax ETF Trust (the ``Trust'') and Syntax, LLC 
(``Current Adviser'').
    Filing Dates: The application was filed on November 6, 2014 and 
amended on April 1, 2015 and April 29, 2015.
    Hearing or Notification of Hearing: An order granting the requested 
relief 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 May 26, 2015, and should be accompanied by proof of 
service on applicants, in the form of an affidavit, or for lawyers, a 
certificate of service. Pursuant to rule 0-5 under the Act, hearing 
requests should state the nature of the writer's interest, any facts 
bearing upon the desirability of a hearing on the matter, 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, Securities and Exchange Commission, 100 F Street 
NE., Washington, DC 20549-1090; Applicants: 110 East 59th Street, 33rd 
Floor, New York, NY 10022.

FOR FURTHER INFORMATION CONTACT: Jaea F. Hahn, Senior Counsel, at (202) 
551-6870, or David P. Bartels, 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 for 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 is a Delaware statutory trust that will be registered 
with the Commission under the Act as an open-end management investment 
company. The Trust will be organized as a series trust with multiple 
series, each tracking a particular index and utilizing either a 
replication or representative sampling strategy. The initial series 
will be the following Self-Indexing Funds (defined below): Syntax 900, 
Syntax 500, Syntax 400, Syntax Financials Products & Services, Syntax 
Energy Products & Services, Syntax Industrial Products & Services, 
Syntax Information Tools, Syntax Information Products & Services, 
Syntax Consumer Products & Services, Syntax Food Products & Services, 
and Syntax Healthcare Products & Services (the ``Initial Funds'').
    2. The Current Adviser will be the investment adviser to the 
Initial Funds. The Current Adviser is, and any other Adviser (as 
defined below) will be, registered as an investment adviser under the 
Investment Advisers Act of 1940 (``Advisers Act''). An Adviser may 
enter into sub-advisory agreements with one or more investment advisers 
to act

[[Page 26107]]

as sub-advisers to particular Funds (each, a ``Sub-Adviser''). Any Sub-
Adviser will either be registered or not subject to registration under 
the Advisers Act.
    3. The principal underwriter and distributor for each of the Funds 
(``Distributor'') will be a broker-dealer registered under the 
Securities Exchange Act of 1934 (``Exchange Act''). The Distributor may 
be an affiliated person of an Adviser. The Distributor will not be an 
affiliate of any Exchange (defined below).
    4. Applicants request that the order apply to the Initial Funds and 
any future series of the Trust, and any other open-end management 
investment company or series thereof, that may be created in the future 
(``Future Funds'' and together with the Initial Funds, ``Funds''), each 
of which will operate as an ETF and will track a specified index 
comprised of domestic or foreign equity and/or fixed income securities 
(each, an ``Underlying Index''). Any Fund will (a) be advised by the 
Current Adviser or an entity controlling, controlled by, or under 
common control with the Current Adviser (each, an ``Adviser'') and (b) 
comply with the terms and conditions of the application.\1\
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    \1\ All existing entities that intend to rely on the requested 
order have been named as applicants. Any other existing or future 
entity that subsequently relies on the order will comply with the 
terms and conditions of the order. A Fund of Funds (as defined 
below) may rely on the order only to invest in Funds and not in any 
other registered investment company.
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    5. Each Fund will hold certain securities, assets or other 
positions (``Portfolio Holdings'') selected to correspond generally to 
the performance of its Underlying Index. Certain Funds will be based on 
Underlying Indexes comprised solely of equity and/or fixed income 
securities issued by one or more of the following categories of 
issuers: (i) Domestic issuers and (ii) non-domestic issuers meeting the 
requirements for trading in U.S. markets. Other Funds will be based on 
Underlying Indexes that will be comprised solely of foreign and 
domestic, or solely foreign, equity and/or fixed income securities 
(``Foreign Funds'').
    6. Applicants represent that each Fund will invest at least 80% of 
its assets (excluding securities lending collateral) in the component 
securities of its respective Underlying Index (``Component 
Securities''), or, in the case of Fixed Income Funds,\2\ in the 
Component Securities of its respective Underlying Index and TBA 
Transactions \3\ representing Component Securities and, in the case of 
Foreign Funds, Component Securities and Depositary Receipts \4\ 
representing Component Securities. Each Fund may also invest up to 20% 
of its assets in certain index futures, options, options on index 
futures, swap contracts or other derivatives, as related to its 
respective Underlying Index and its Component Securities, cash and cash 
equivalents, other investment companies, as well as in securities and 
other instruments not included in its Underlying Index but which the 
Adviser believes will help the Fund track its Underlying Index. A Fund 
may also engage in short sales in accordance with its investment 
objective.
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    \2\ ``Fixed-Income Funds'' track an Underlying Index comprised 
of domestic and/or foreign fixed income securities.
    \3\ A ``to-be-announced transaction'' or ``TBA Transaction'' is 
a method of trading mortgage-backed securities. In a TBA 
Transaction, the buyer and seller agree upon general trade 
parameters such as agency, settlement date, par amount and price. 
The actual pools delivered generally are determined two days prior 
to settlement date.
    \4\ Depositary receipts representing foreign securities 
(``Depositary Receipts'') include American Depositary Receipts and 
Global Depositary Receipts. The Funds may invest in Depositary 
Receipts representing foreign securities in which they seek to 
invest. Depositary Receipts are typically issued by a financial 
institution (a ``depositary bank'') and evidence ownership interests 
in a security or a pool of securities that have been deposited with 
the depositary bank. A Fund will not invest in any Depositary 
Receipts that the Adviser or any Sub-Adviser deems to be illiquid or 
for which pricing information is not readily available. No 
affiliated person of a Fund, the Adviser or any Sub-Adviser will 
serve as the depositary bank for any Depositary Receipts held by a 
Fund.
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    7. The Trust may issue Funds that seek to track Underlying Indexes 
constructed using 130/30 investment strategies (``130/30 Funds'') or 
other long/short investment strategies (``Long/Short Funds''). Each 
Long/Short Fund will establish (i) exposures equal to approximately 
100% of the long positions specified by the Long/Short Index \5\ and 
(ii) exposures equal to approximately 100% of the short positions 
specified by the Long/Short Index. Each 130/30 Fund will include 
strategies that: (i) Establish long positions in securities so that 
total long exposure represents approximately 130% of a Fund's net 
assets; and (ii) simultaneously establish short positions in other 
securities so that total short exposure represents approximately 30% of 
such Fund's net assets. Each Business Day (as defined below), for each 
Long/Short Fund and 130/30 Fund, the Adviser will provide full 
portfolio transparency on the Fund's publicly available Web site (``Web 
site'') by making available the Fund's Portfolio Holdings before the 
commencement of trading of Shares on the Listing Exchange (defined 
below).\6\ The information provided on the Web site will be formatted 
to be reader-friendly.
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    \5\ Underlying Indexes that include both long and short 
positions in securities are referred to as ``Long/Short Indexes.''
    \6\ Under accounting procedures followed by each Fund, trades 
made on the prior Business Day (``T'') will be booked and reflected 
in NAV on the current Business Day (T+1). Accordingly, the Funds 
will be able to disclose at the beginning of the Business Day the 
portfolio that will form the basis for the NAV calculation at the 
end of the Business Day.
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    8. A Fund will utilize either a replication or representative 
sampling strategy to track its Underlying Index. A Fund using a 
replication strategy will invest in the Component Securities of its 
Underlying Index in the same approximate proportions as in such 
Underlying Index. A Fund using a representative sampling strategy will 
hold some, but not necessarily all of the Component Securities of its 
Underlying Index. Applicants state that a Fund using a representative 
sampling strategy will not be expected to track the performance of its 
Underlying Index with the same degree of accuracy as would an 
investment vehicle that invested in every Component Security of the 
Underlying Index with the same weighting as the Underlying Index. 
Applicants expect that each Fund will have an annual tracking error 
relative to the performance of its Underlying Index of less than 5%.
    9. Each Fund will be entitled to use its Underlying Index pursuant 
to either a licensing agreement with the entity that compiles, creates, 
sponsors or maintains the Underlying Index (each, an ``Index 
Provider'') or a sub-licensing arrangement with the Adviser, which will 
have a licensing agreement with such Index Provider.\7\ A ``Self-
Indexing Fund'' is a Fund for which an affiliated person, as defined in 
section 2(a)(3) of the Act, or an affiliated person of such person, of 
the Trust or a Fund, of the Adviser, of any Sub-Adviser to or promoter 
of a Fund, or of the Distributor (each, an ``Affiliated Index 
Provider'') will serve as the Index Provider. In the case of Self-
Indexing Funds, an Affiliated Index Provider will create a proprietary, 
rules-based methodology to create Underlying Indexes (each an 
``Affiliated Index'').\8\ Except with

[[Page 26108]]

respect to the Self-Indexing Funds, no Index Provider is or will be an 
affiliated person, or an affiliated person of an affiliated person, of 
the Trust or a Fund, of the Adviser, of any Sub-Adviser to or promoter 
of a Fund, or of the Distributor.
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    \7\ The licenses for the Self-Indexing Funds will specifically 
state that the Affiliated Index Provider (as defined below), or in 
case of a sub-licensing agreement, the Adviser, must provide the use 
of the Affiliated Indexes (as defined below) and related 
intellectual property at no cost to the Trust and the Self-Indexing 
Funds.
    \8\ The Affiliated Indexes may be made available to registered 
investment companies, as well as separately managed accounts of 
institutional investors and privately offered funds that are not 
deemed to be ``investment companies'' in reliance on section 3(c)(1) 
or 3(c)(7) of the Act for which the Adviser acts as adviser or 
subadviser (``Affiliated Accounts'') as well as other such 
registered investment companies, separately managed accounts and 
privately offered funds for which it does not act either as adviser 
or subadviser (``Unaffiliated Accounts''). The Affiliated Accounts 
and the Unaffiliated Accounts, like the Funds, would seek to track 
the performance of one or more Underlying Index(es) by investing in 
the constituents of such Underlying Indexes or a representative 
sample of such constituents of the Underlying Index. Consistent with 
the relief requested from section 17(a), the Affiliated Accounts 
will not engage in Creation Unit transactions with a Fund.
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    10. Applicants recognize that Self-Indexing Funds could raise 
concerns regarding the ability of the Affiliated Index Provider to 
manipulate the Underlying Index to the benefit or detriment of the 
Self-Indexing Fund. Applicants further recognize the potential for 
conflicts that may arise with respect to the personal trading activity 
of personnel of the Affiliated Index Provider who have knowledge of 
changes to an Underlying Index prior to the time that information is 
publicly disseminated.
    11. Applicants propose that each day that the Trust, the NYSE and 
the national securities exchange (as defined in section 2(a)(26) of the 
Act) (an ``Exchange'') on which the Fund's Shares are primarily listed 
(``Listing Exchange'') are open for business, including any day that a 
Fund is required to be open under section 22(e) of the Act (a 
``Business Day''), each Self-Indexing Fund will post on its Web site, 
before commencement of trading of Shares on the Listing Exchange, the 
identities and quantities of the Portfolio Holdings held by the Fund 
that will form the basis for the Fund's calculation of its NAV at the 
end of the Business Day. Applicants believe that requiring Self-
Indexing Funds to maintain full portfolio transparency will also 
provide an additional mechanism for addressing any such potential 
conflicts of interest.
    12. In addition, applicants do not believe the potential for 
conflicts of interest raised by the Adviser's use of the Underlying 
Indexes in connection with the management of the Self-Indexing Funds 
and the Affiliated Accounts will be substantially different from the 
potential conflicts presented by an adviser managing two or more 
registered funds. Both the Act and the Advisers Act contain various 
protections to address conflicts of interest where an adviser is 
managing two or more registered funds and these protections will also 
help address these conflicts with respect to the Self-Indexing 
Funds.\9\
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    \9\ See, e.g., Rule 17j-1 under the Act and Section 204A under 
the Advisers Act and Rules 204A-1 and 206(4)-7 under the Advisers 
Act.
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    13. Each Adviser and any Sub-Adviser has adopted or will adopt, 
pursuant to Rule 206(4)-7 under the Advisers Act, written policies and 
procedures designed to prevent violations of the Advisers Act and the 
rules thereunder. These include policies and procedures designed to 
minimize potential conflicts of interest among the Self-Indexing Funds 
and the Affiliated Accounts, such as cross trading policies, as well as 
those designed to ensure the equitable allocation of portfolio 
transactions and brokerage commissions. In addition, the Current 
Adviser has adopted policies and procedures as required under section 
204A of the Advisers Act, which are reasonably designed in light of the 
nature of its business to prevent the misuse, in violation of the 
Advisers Act or the Exchange Act or the rules thereunder, of material 
non-public information by the Current Adviser or an associated person 
(``Inside Information Policy''). Any other Adviser or Sub-Adviser will 
be required to adopt and maintain a similar Inside Information Policy. 
In accordance with the Code of Ethics \10\ and Inside Information 
Policy of each Adviser and Sub-Adviser, personnel of those entities 
with knowledge about the composition of the Portfolio Deposit \11\ will 
be prohibited from disclosing such information to any other person, 
except as authorized in the course of their employment, until such 
information is made public. In addition, an Index Provider will not 
provide any information relating to changes to an Underlying Index's 
methodology for the inclusion of component securities, the inclusion or 
exclusion of specific component securities, or methodology for the 
calculation or the return of component securities, in advance of a 
public announcement of such changes by the Index Provider. The Adviser 
will also include under Item 10.C of Part 2 of its Form ADV a 
discussion of its relationship to any Affiliated Index Provider and any 
material conflicts of interest resulting therefrom, regardless of 
whether the Affiliated Index Provider is a type of affiliate specified 
in Item 10.
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    \10\ The Adviser has also adopted or will adopt a code of ethics 
pursuant to Rule 17j-1 under the Act and Rule 204A-1 under the 
Advisers Act, which contains provisions reasonably necessary to 
prevent Access Persons (as defined in Rule 17j-1) from engaging in 
any conduct prohibited in Rule 17j-1 (``Code of Ethics'').
    \11\ The instruments and cash that the purchaser is required to 
deliver in exchange for the Creation Units it is purchasing are 
referred to as the ``Portfolio Deposit.''
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    14. To the extent the Self-Indexing Funds transact with an 
affiliated person of the Adviser or Sub-Adviser, such transactions will 
comply with the Act, the rules thereunder and the terms and conditions 
of the requested order. In this regard, each Self-Indexing Fund's board 
of directors or trustees (``Board'') will periodically review the Self-
Indexing Fund's use of an Affiliated Index Provider. Subject to the 
approval of the Self-Indexing Fund's Board, an Adviser, affiliated 
persons of the Adviser (``Adviser Affiliates'') and affiliated persons 
of any Sub-Adviser (``Sub-Adviser Affiliates'') may be authorized to 
provide custody, fund accounting and administration and transfer agency 
services to the Self-Indexing Funds. Any services provided by the 
Adviser, Adviser Affiliates, Sub-Adviser and Sub-Adviser Affiliates 
will be performed in accordance with the provisions of the Act, the 
rules under the Act and any relevant guidelines from the staff of the 
Commission. Applications for prior orders granted to Self-Indexing 
Funds have received relief to operate such funds on the basis discussed 
above.\12\
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    \12\ See, e.g., Emerging Global Advisors, et al., Investment 
Company Act Release Nos. 30910 (Feb. 10, 2014) (notice) and 30975 
(Mar. 7, 2014) (order) and VTL Associates LLC, et al., Investment 
Company Act Release Nos. 30763 (Oct. 24, 2013) (notice) and 30789 
(Nov. 19, 2013) (order).
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    15. The Shares of each Fund will be purchased and redeemed in 
Creation Units and generally on an in-kind basis. Except where the 
purchase or redemption will include cash under the limited 
circumstances specified below, purchasers will be required to purchase 
Creation Units by making an in-kind deposit of specified instruments 
(``Deposit Instruments''), and shareholders redeeming their Shares will 
receive an in-kind transfer of specified instruments (``Redemption 
Instruments'').\13\ On any given Business Day, the names and quantities 
of the instruments that constitute the Deposit Instruments and the 
names and quantities of the instruments that

[[Page 26109]]

constitute the Redemption Instruments will be identical, unless the 
Fund is Rebalancing (as defined below). In addition, the Deposit 
Instruments and the Redemption Instruments will each correspond pro 
rata to the positions in the Fund's portfolio (including cash 
positions) \14\ except: (a) In the case of bonds, for minor differences 
when it is impossible to break up bonds beyond certain minimum sizes 
needed for transfer and settlement; (b) for minor differences when 
rounding is necessary to eliminate fractional shares or lots that are 
not tradeable round lots; \15\ (c) TBA Transactions, short positions, 
derivatives and other positions that cannot be transferred in kind \16\ 
will be excluded from the Deposit Instruments and the Redemption 
Instruments; \17\ (d) to the extent the Fund determines, on a given 
Business Day, to use a representative sampling of the Fund's portfolio; 
\18\ or (e) for temporary periods, to effect changes in the Fund's 
portfolio as a result of the rebalancing of its Underlying Index (any 
such change, a ``Rebalancing''). If there is a difference between the 
NAV attributable to a Creation Unit and the aggregate market value of 
the Deposit Instruments or Redemption Instruments exchanged for the 
Creation Unit, the party conveying instruments with the lower value 
will also pay to the other an amount in cash equal to that difference 
(the ``Cash Amount'').
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    \13\ The Funds must comply with the federal securities laws in 
accepting Deposit Instruments and satisfying redemptions with 
Redemption Instruments, including that the Deposit Instruments and 
Redemption Instruments are sold in transactions that would be exempt 
from registration under the Securities Act of 1933 (``Securities 
Act''). In accepting Deposit Instruments and satisfying redemptions 
with Redemption Instruments that are restricted securities eligible 
for resale pursuant to rule 144A under the Securities Act, the Funds 
will comply with the conditions of rule 144A.
    \14\ The portfolio used for this purpose will be the same 
portfolio used to calculate the Fund's NAV for the Business Day.
    \15\ A tradeable round lot for a security will be the standard 
unit of trading in that particular type of security in its primary 
market.
    \16\ This includes instruments that can be transferred in kind 
only with the consent of the original counterparty to the extent the 
Fund does not intend to seek such consents.
    \17\ Because these instruments will be excluded from the Deposit 
Instruments and the Redemption Instruments, their value will be 
reflected in the determination of the Cash Amount (as defined 
below).
    \18\ A Fund may only use sampling for this purpose if the 
sample: (i) Is designed to generate performance that is highly 
correlated to the performance of the Fund's portfolio; (ii) consists 
entirely of instruments that are already included in the Fund's 
portfolio; and (iii) is the same for all Authorized Participants on 
a given Business Day.
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    16. Purchases and redemptions of Creation Units may be made in 
whole or in part on a cash basis, rather than in kind, solely under the 
following circumstances: (a) To the extent there is a Cash Amount; (b) 
if, on a given Business Day, the Fund announces before the open of 
trading that all purchases, all redemptions or all purchases and 
redemptions on that day will be made entirely in cash; (c) if, upon 
receiving a purchase or redemption order from an Authorized Participant 
(as defined below), the Fund determines to require the purchase or 
redemption, as applicable, to be made entirely in cash; \19\ (d) if, on 
a given Business Day, the Fund requires all Authorized Participants 
purchasing or redeeming Shares on that day to deposit or receive (as 
applicable) cash in lieu of some or all of the Deposit Instruments or 
Redemption Instruments, respectively, solely because: (i) Such 
instruments are not eligible for transfer through either the NSCC or 
DTC (defined below); or (ii) in the case of Foreign Funds holding non-
U.S. investments, such instruments are not eligible for trading due to 
local trading restrictions, local restrictions on securities transfers 
or other similar circumstances; or (e) if the Fund permits an 
Authorized Participant to deposit or receive (as applicable) cash in 
lieu of some or all of the Deposit Instruments or Redemption 
Instruments, respectively, solely because: (i) Such instruments are, in 
the case of the purchase of a Creation Unit, not available in 
sufficient quantity; (ii) such instruments are not eligible for trading 
by an Authorized Participant or the investor on whose behalf the 
Authorized Participant is acting; or (iii) a holder of Shares of a 
Foreign Fund holding non-U.S. investments would be subject to 
unfavorable income tax treatment if the holder receives redemption 
proceeds in kind.\20\
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    \19\ In determining whether a particular Fund will sell or 
redeem Creation Units entirely on a cash or in-kind basis (whether 
for a given day or a given order), the key consideration will be the 
benefit that would accrue to the Fund and its investors. For 
instance, in bond transactions, the Adviser may be able to obtain 
better execution than Share purchasers because of the Adviser's 
size, experience and potentially stronger relationships in the fixed 
income markets. Purchases of Creation Units either on an all cash 
basis or in-kind are expected to be neutral to the Funds from a tax 
perspective. In contrast, cash redemptions typically require selling 
portfolio holdings, which may result in adverse tax consequences for 
the remaining Fund shareholders that would not occur with an in-kind 
redemption. As a result, tax consideration may warrant in-kind 
redemptions.
    \20\ A ``custom order'' is any purchase or redemption of Shares 
made in whole or in part on a cash basis in reliance on clause 
(e)(i) or (e)(ii).
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    17. Creation Units will consist of specified large aggregations of 
Shares (e.g., 15,000 Shares), and it is expected that the initial 
trading price per individual Share will range from $15 to $100. All 
orders to purchase Creation Units must be placed with the Distributor 
by or through an ``Authorized Participant'' which is either (1) a 
``Participating Party,'' i.e., a broker-dealer (``Broker'') or other 
participant in the Continuous Net Settlement System of the NSCC, a 
clearing agency registered with the Commission, or (2) a participant in 
The Depository Trust Company (``DTC'') (``DTC Participant''), which, in 
either case, has signed a participant agreement with the Distributor. 
The Distributor will be responsible for transmitting the orders to the 
Funds and will furnish to those placing such orders confirmation that 
the orders have been accepted, but applicants state that the 
Distributor may reject any order which is not submitted in proper form.
    18. Each Business Day, before the open of trading on the Listing 
Exchange, each Fund will cause to be published through the NSCC the 
names and quantities of the instruments comprising the Deposit 
Instruments and the Redemption Instruments, as well as the estimated 
Cash Amount (if any), for that day. The list of Deposit Instruments and 
Redemption Instruments will apply until a new list is announced on the 
following Business Day, and there will be no intra-day changes to the 
list except to correct errors in the published list. Each Listing 
Exchange, or other major market data provider, will disseminate, every 
15 seconds during regular Exchange trading hours, through the 
facilities of the Consolidated Tape Association, or other widely 
disseminated means, an amount for each Fund stated on a per individual 
Share basis representing the sum of (i) the estimated Cash Amount and 
(ii) the current value of the Deposit Instruments.
    19. Transaction expenses, including operational processing and 
brokerage costs, will be incurred by a Fund when investors purchase or 
redeem Creation Units in-kind and such costs have the potential to 
dilute the interests of the Fund's existing shareholders. Each Fund 
will impose purchase or redemption transaction fees (``Transaction 
Fees'') in connection with effecting such purchases or redemptions of 
Creation Units. In all cases, such Transaction Fees will be limited in 
accordance with requirements of the Commission applicable to management 
investment companies offering redeemable securities. Since the 
Transaction Fees are intended to defray the transaction expenses as 
well as to prevent possible shareholder dilution resulting from the 
purchase or redemption of Creation Units, the Transaction Fees will be 
borne only by such purchasers or redeemers.\21\ The Distributor will be 
responsible for delivering the Fund's prospectus to

[[Page 26110]]

those persons acquiring Shares in Creation Units and for maintaining 
records of both the orders placed with it and the confirmations of 
acceptance furnished by it. In addition, the Distributor will maintain 
a record of the instructions given to the applicable Fund to implement 
the delivery of its Shares.
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    \21\ Where a Fund permits an in-kind purchaser to substitute 
cash-in-lieu of depositing one or more of the requisite Deposit 
Instruments, the purchaser may be assessed a higher Transaction Fee 
to cover the cost of purchasing such Deposit Instruments.
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    20. Shares of each Fund will be listed and traded individually on 
an Exchange. It is expected that one or more member firms of an 
Exchange will be designated to act as a market maker (each, a ``Market 
Maker'') and maintain a market for Shares trading on the Exchange. 
Prices of Shares trading on an Exchange will be based on the current 
bid/offer market. Transactions involving the sale of Shares on an 
Exchange will be subject to customary brokerage commissions and 
charges.
    21. Applicants expect that purchasers of Creation Units will 
include institutional investors and arbitrageurs. Market Makers, acting 
in their roles to provide a fair and orderly secondary market for the 
Shares, may from time to time find it appropriate to purchase or redeem 
Creation Units. Applicants expect that secondary market purchasers of 
Shares will include both institutional and retail investors.\22\ The 
price at which Shares trade will be disciplined by arbitrage 
opportunities created by the option continually to purchase or redeem 
Shares in Creation Units, which should help prevent Shares from trading 
at a material discount or premium in relation to their NAV.
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    \22\ Shares will be registered in book-entry form only. DTC or 
its nominee will be the record or registered owner of all 
outstanding Shares. Beneficial ownership of Shares will be shown on 
the records of DTC or the DTC Participants.
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    22. Shares will not be individually redeemable, and owners of 
Shares may acquire those Shares from the Fund, or tender such Shares 
for redemption to the Fund, in Creation Units only. To redeem, an 
investor must accumulate enough Shares to constitute a Creation Unit. 
Redemption requests must be placed through an Authorized Participant. A 
redeeming investor may pay a Transaction Fee, calculated in the same 
manner as a Transaction Fee payable in connection with purchases of 
Creation Units.
    23. Neither the Trust nor any Fund will be advertised or marketed 
or otherwise held out as a traditional open-end investment company or a 
``mutual fund.'' Instead, each such Fund will be marketed as an 
``ETF.'' All marketing materials that describe the features or method 
of obtaining, buying or selling Creation Units, or Shares traded on an 
Exchange, or refer to redeemability, will prominently disclose that 
Shares are not individually redeemable and will disclose that the 
owners of Shares may acquire those Shares from the Fund or tender such 
Shares for redemption to the Fund in Creation Units only. The Funds 
will provide copies of their annual and semi-annual shareholder reports 
to DTC Participants for distribution to beneficial owners of Shares.

Applicants' Legal Analysis

    1. Applicants request an order under section 6(c) of the Act for an 
exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act 
and rule 22c-1 under the Act, under section 12(d)(1)(J) of the Act for 
an exemption from sections 12(d)(1)(A) and (B) of the Act, and under 
sections 6(c) and 17(b) of the Act for an exemption from sections 
17(a)(1) and 17(a)(2) of the Act.
    2. Section 6(c) of the Act provides that the Commission may exempt 
any person, security or transaction, or any class of persons, 
securities or transactions, 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. 
Section 17(b) of the Act authorizes the Commission to exempt a proposed 
transaction from section 17(a) of the Act if evidence establishes that 
the terms of the transaction, including the consideration to be paid or 
received, are reasonable and fair and do not involve overreaching on 
the part of any person concerned, and the proposed transaction is 
consistent with the policies of the registered investment company and 
the general provisions of the Act. Section 12(d)(1)(J) 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 section 12(d)(1) if the exemption 
is consistent with the public interest and the protection of investors.

Sections 5(a)(1) and 2(a)(32) of the Act

    3. Section 5(a)(1) of the Act defines an ``open-end company'' as a 
management investment company that is offering for sale or has 
outstanding any redeemable security of which it is the issuer. Section 
2(a)(32) of the Act defines a redeemable security as any security, 
other than short-term paper, under the terms of which the owner, upon 
its presentation to the issuer, is entitled to receive approximately a 
proportionate share of the issuer's current net assets, or the cash 
equivalent. Because Shares will not be individually redeemable, 
applicants request an order that would permit the Funds to register as 
open-end management investment companies and issue Shares that are 
redeemable in Creation Units only. Applicants state that investors may 
purchase Shares in Creation Units and redeem Creation Units from each 
Fund. Applicants further state that because Creation Units may always 
be purchased and redeemed at NAV, the price of Shares on the secondary 
market should not vary materially from NAV.

Section 22(d) of the Act and Rule 22c-1 Under the Act

    4. Section 22(d) of the Act, among other things, prohibits a dealer 
from selling a redeemable security that is currently being offered to 
the public by or through an underwriter, except at a current public 
offering price described in the prospectus. Rule 22c-1 under the Act 
generally requires that a dealer selling, redeeming or repurchasing a 
redeemable security do so only at a price based on its NAV. Applicants 
state that secondary market trading in Shares will take place at 
negotiated prices, not at a current offering price described in a 
Fund's prospectus, and not at a price based on NAV. Thus, purchases and 
sales of Shares in the secondary market will not comply with section 
22(d) of the Act and rule 22c-1 under the Act. Applicants request an 
exemption under section 6(c) from these provisions.
    5. Applicants assert that the concerns sought to be addressed by 
section 22(d) of the Act and rule 22c-1 under the Act with respect to 
pricing are equally satisfied by the proposed method of pricing Shares. 
Applicants maintain that while there is little legislative history 
regarding section 22(d), its provisions, as well as those of rule 22c-
1, appear to have been designed to (a) prevent dilution caused by 
certain riskless-trading schemes by principal underwriters and contract 
dealers, (b) prevent unjust discrimination or preferential treatment 
among buyers, and (c) ensure an orderly distribution of investment 
company shares by eliminating price competition from dealers offering 
shares at less than the published sales price and repurchasing shares 
at more than the published redemption price.
    6. Applicants believe that none of these purposes will be thwarted 
by permitting Shares to trade in the secondary market at negotiated 
prices. Applicants state that (a) secondary market trading in Shares 
does not involve a Fund as a party and will not result in dilution of 
an investment in

[[Page 26111]]

Shares, and (b) to the extent different prices exist during a given 
trading day, or from day to day, such variances occur as a result of 
third-party market forces, such as supply and demand. Therefore, 
applicants assert that secondary market transactions in Shares will not 
lead to discrimination or preferential treatment among purchasers. 
Finally, applicants contend that the price at which Shares trade will 
be disciplined by arbitrage opportunities created by the option 
continually to purchase or redeem Shares in Creation Units, which 
should help prevent Shares from trading at a material discount or 
premium in relation to their NAV.

Section 22(e)

    7. Section 22(e) of the Act generally prohibits a registered 
investment company from suspending the right of redemption or 
postponing the date of payment of redemption proceeds for more than 
seven days after the tender of a security for redemption. Applicants 
state that settlement of redemptions for Foreign Funds will be 
contingent not only on the settlement cycle of the United States 
market, but also on current delivery cycles in local markets for 
underlying foreign Portfolio Holdings held by a Foreign Fund. 
Applicants state that the delivery cycles currently practicable for 
transferring Redemption Instruments to redeeming investors, coupled 
with local market holiday schedules, may require a delivery process of 
up to fourteen (14) calendar days. Accordingly, with respect to Foreign 
Funds only, applicants hereby request relief under section 6(c) from 
the requirement imposed by section 22(e) to allow Foreign Funds to pay 
redemption proceeds within fourteen calendar days following the tender 
of Creation Units for redemption.\23\
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    \23\ Applicants acknowledge that no relief obtained from the 
requirements of section 22(e) will affect any obligations applicants 
may otherwise have under rule 15c6-1 under the Exchange Act 
requiring that most securities transactions be settled within three 
business days of the trade date.
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    8. Applicants believe that Congress adopted section 22(e) to 
prevent unreasonable, undisclosed or unforeseen delays in the actual 
payment of redemption proceeds. Applicants propose that allowing 
redemption payments for Creation Units of a Foreign Fund to be made 
within fourteen calendar days would not be inconsistent with the spirit 
and intent of section 22(e). Applicants suggest that a redemption 
payment occurring within fourteen calendar days following a redemption 
request would adequately afford investor protection.
    9. Applicants are not seeking relief from section 22(e) with 
respect to Foreign Funds that do not effect creations and redemptions 
of Creation Units in-kind.

Section 12(d)(1)

    10. Section 12(d)(1)(A) of the Act prohibits a registered 
investment company from acquiring securities of an investment company 
if such securities represent more than 3% of the total outstanding 
voting stock of the acquired company, more than 5% of the total assets 
of the acquiring company, or, together with the securities of any other 
investment companies, more than 10% of the total assets of the 
acquiring company. Section 12(d)(1)(B) of the Act prohibits a 
registered open-end investment company, its principal underwriter and 
any other broker-dealer from knowingly selling the investment company's 
shares to another investment company if the sale will cause the 
acquiring company to own more than 3% of the acquired company's voting 
stock, or if the sale will cause more than 10% of the acquired 
company's voting stock to be owned by investment companies generally.
    11. Applicants request an exemption to permit registered management 
investment companies and unit investment trusts (``UITs'') that are not 
advised or sponsored by the Adviser, and not part of the same ``group 
of investment companies,'' as defined in section 12(d)(1)(G)(ii) of the 
Act as the Funds (such management investment companies are referred to 
as ``Investing Management Companies,'' such UITs are referred to as 
``Investing Trusts,'' and Investing Management Companies and Investing 
Trusts are collectively referred to as ``Funds of Funds''), to acquire 
Shares beyond the limits of section 12(d)(1)(A) of the Act; and the 
Funds, and any principal underwriter for the Funds, and/or any Broker 
registered under the Exchange Act, to sell Shares to Funds of Funds 
beyond the limits of section 12(d)(1)(B) of the Act.
    12. Each Investing Management Company will be advised by an 
investment adviser within the meaning of section 2(a)(20)(A) of the Act 
(the ``Fund of Funds Adviser'') and may be sub-advised by investment 
advisers within the meaning of section 2(a)(20)(B) of the Act (each, a 
``Fund of Funds Sub-Adviser''). Any investment adviser to an Investing 
Management Company will be registered under the Advisers Act. Each 
Investing Trust will be sponsored by a sponsor (``Sponsor'').
    13. Applicants submit that the proposed conditions to the requested 
relief adequately address the concerns underlying the limits in 
sections 12(d)(1)(A) and (B), which include concerns about undue 
influence by a fund of funds over underlying funds, excessive layering 
of fees and overly complex fund structures. Applicants believe that the 
requested exemption is consistent with the public interest and the 
protection of investors.
    14. Applicants believe that neither a Fund of Funds nor a Fund of 
Funds Affiliate would be able to exert undue influence over a Fund.\24\ 
To limit the control that a Fund of Funds may have over a Fund, 
applicants propose a condition prohibiting a Fund of Funds Adviser or 
Sponsor, any person controlling, controlled by, or under common control 
with a Fund of Funds Adviser or Sponsor, and any investment company and 
any issuer that would be an investment company but for sections 3(c)(1) 
or 3(c)(7) of the Act that is advised or sponsored by a Fund of Funds 
Adviser or Sponsor, or any person controlling, controlled by, or under 
common control with a Fund of Funds Adviser or Sponsor (``Fund of Funds 
Advisory Group'') from controlling (individually or in the aggregate) a 
Fund within the meaning of section 2(a)(9) of the Act. The same 
prohibition would apply to any Fund of Funds Sub-Adviser, any person 
controlling, controlled by or under common control with the Fund of 
Funds Sub-Adviser, and any investment company or issuer that would be 
an investment company but for sections 3(c)(1) or 3(c)(7) of the Act 
(or portion of such investment company or issuer) advised or sponsored 
by the Fund of Funds Sub-Adviser or any person controlling, controlled 
by or under common control with the Fund of Funds Sub-Adviser (``Fund 
of Funds' Sub-Advisory Group'').
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    \24\ A ``Fund of Funds Affiliate'' is a Fund of Funds Adviser, 
Fund of Funds Sub-Adviser, Sponsor, promoter, and principal 
underwriter of a Fund of Funds, and any person controlling, 
controlled by, or under common control with any of those entities. A 
``Fund Affiliate'' is an investment adviser, promoter, or principal 
underwriter of a Fund and any person controlling, controlled by or 
under common control with any of these entities.
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    15. Applicants propose other conditions to limit the potential for 
undue influence over the Funds, including that no Fund of Funds or Fund 
of Funds Affiliate (except to the extent it is acting in its capacity 
as an investment adviser to a Fund) will cause a Fund to purchase a 
security in an offering of securities during the existence of an 
underwriting or selling syndicate of which a principal underwriter is 
an Underwriting Affiliate

[[Page 26112]]

(``Affiliated Underwriting''). An ``Underwriting Affiliate'' is a 
principal underwriter in any underwriting or selling syndicate that is 
an officer, director, member of an advisory board, Fund of Funds 
Adviser, Fund of Funds Sub-Adviser, employee or Sponsor of the Fund of 
Funds, or a person of which any such officer, director, member of an 
advisory board, Fund of Funds Adviser or Fund of Funds Sub-Adviser, 
employee or Sponsor is an affiliated person (except that any person 
whose relationship to the Fund is covered by section 10(f) of the Act 
is not an Underwriting Affiliate).
    16. Applicants do not believe that the proposed arrangement will 
involve excessive layering of fees. The board of directors or trustees 
of any Investing Management Company, including a majority of the 
directors or trustees who are not ``interested persons'' within the 
meaning of section 2(a)(19) of the Act (``disinterested directors or 
trustees''), will find that the advisory fees charged under the 
contract are based on services provided that will be in addition to, 
rather than duplicative of, services provided under the advisory 
contract of any Fund in which the Investing Management Company may 
invest. In addition, under condition B.5., a Fund of Funds Adviser, or 
a Fund of Funds' trustee or Sponsor, as applicable, will waive fees 
otherwise payable to it by the Fund of Funds in an amount at least 
equal to any compensation (including fees received pursuant to any plan 
adopted by a Fund under rule 12b-1 under the Act) received from a Fund 
by the Fund of Funds Adviser, trustee or Sponsor or an affiliated 
person of the Fund of Funds Adviser, trustee or Sponsor, other than any 
advisory fees paid to the Fund of Funds Adviser, trustee or Sponsor or 
its affiliated person by a Fund, in connection with the investment by 
the Fund of Funds in the Fund. Applicants state that any sales charges 
and/or service fees charged with respect to shares of a Fund of Funds 
will not exceed the limits applicable to a fund of funds as set forth 
in NASD Conduct Rule 2830.\25\
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    \25\ Any references to NASD Conduct Rule 2830 include any 
successor or replacement FINRA rule to NASD Conduct Rule 2830.
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    17. Applicants submit that the proposed arrangement will not create 
an overly complex fund structure. Applicants note that no Fund will 
acquire securities of any investment company or company relying on 
section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained 
in section 12(d)(1)(A) of the Act, except to the extent permitted by 
exemptive relief from the Commission permitting the Fund to purchase 
shares of other investment companies for short-term cash management 
purposes. To ensure a Fund of Funds is aware of the terms and 
conditions of the requested order, the Fund of Funds will enter into an 
agreement with the Fund (``FOF Participation Agreement''). The FOF 
Participation Agreement will include an acknowledgement from the Fund 
of Funds that it may rely on the order only to invest in the Funds and 
not in any other investment company.
    18. Applicants also note that a Fund may choose to reject a direct 
purchase of Shares in Creation Units by a Fund of Funds. To the extent 
that a Fund of Funds purchases Shares in the secondary market, a Fund 
would still retain its ability to reject any initial investment by a 
Fund of Funds in excess of the limits of section 12(d)(1)(A) by 
declining to enter into a FOF Participation Agreement with the Fund of 
Funds.

Sections 17(a)(1) and (2) of the Act

    19. Sections 17(a)(1) and (2) of the Act generally prohibit an 
affiliated person of a registered investment company, or an affiliated 
person of such a person, from selling any security to or purchasing any 
security from the company. Section 2(a)(3) of the Act defines 
``affiliated person'' of another person to include (a) any person 
directly or indirectly owning, controlling or holding with power to 
vote 5% or more of the outstanding voting securities of the other 
person, (b) any person 5% or more of whose outstanding voting 
securities are directly or indirectly owned, controlled or held with 
the power to vote by the other person, and (c) any person directly or 
indirectly controlling, controlled by or under common control with the 
other person. 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, and provides that a control relationship will be 
presumed where one person owns more than 25% of a company's voting 
securities. The Funds may be deemed to be controlled by the Adviser or 
an entity controlling, controlled by or under common control with the 
Adviser and hence affiliated persons of each other. In addition, the 
Funds may be deemed to be under common control with any other 
registered investment company (or series thereof) advised by an Adviser 
or an entity controlling, controlled by or under common control with an 
Adviser (an ``Affiliated Fund''). Any investor, including Market 
Makers, owning 5% or holding in excess of 25% of the Trust or such 
Funds, may be deemed affiliated persons of the Trust or such Funds. In 
addition, an investor could own 5% or more, or in excess of 25% of the 
outstanding shares of one or more Affiliated Funds making that investor 
an affiliated person of an affiliated person of the Funds.
    20. Applicants request an exemption from sections 17(a)(1) and 
17(a)(2) of the Act pursuant to sections 6(c) and 17(b) of the Act to 
permit persons that are affiliated persons of the Funds, or an 
affiliated person of such affiliated person of the Funds, solely by 
virtue of one or more of the following: (a) Holding 5% or more, or in 
excess of 25%, of the outstanding Shares of one or more Funds; (b) an 
affiliation with a person with an ownership interest described in (a); 
or (c) holding 5% or more, or more than 25%, of the shares of one or 
more Affiliated Funds, to effectuate purchases and redemptions ``in-
kind.''
    21. Applicants assert that no useful purpose would be served by 
prohibiting such affiliated persons from making ``in-kind'' purchases 
or ``in-kind'' redemptions of Shares of a Fund in Creation Units. Both 
the deposit procedures for ``in-kind'' purchases of Creation Units and 
the redemption procedures for ``in-kind'' redemptions of Creation Units 
will be effected in exactly the same manner for all purchases and 
redemptions, regardless of size or number. There will be no 
discrimination between purchasers or redeemers. Deposit Instruments and 
Redemption Instruments for each Fund will be valued in the identical 
manner as those Portfolio Holdings currently held by such Fund and the 
valuation of the Deposit Instruments and Redemption Instruments will be 
made in an identical manner regardless of the identity of the purchaser 
or redeemer. Applicants do not believe that ``in-kind'' purchases and 
redemptions will result in abusive self-dealing or overreaching, but 
rather assert that such procedures will be implemented consistently 
with each Fund's objectives and with the general purposes of the Act. 
Applicants believe that ``in-kind'' purchases and redemptions will be 
made on terms reasonable to Applicants and any affiliated persons 
because they will be valued pursuant to verifiable objective standards. 
The method of valuing Portfolio Holdings held by a Fund is identical to 
that used for calculating ``in-kind'' purchase or redemption values and 
therefore creates no opportunity for affiliated persons or affiliated 
persons of affiliated persons of applicants to effect a transaction 
detrimental to the other holders of

[[Page 26113]]

Shares of that Fund. Similarly, applicants submit that, by using the 
same standards for valuing Portfolio Holdings held by a Fund as are 
used for calculating ``in-kind'' redemptions or purchases, the Fund 
will ensure that its NAV will not be adversely affected by such 
securities transactions. Applicants also note that the ability to take 
deposits and make redemptions ``in-kind'' will help each Fund to track 
closely its Underlying Index and therefore aid in achieving the Fund's 
objectives.
    22. Applicants also seek relief under sections 6(c) and 17(b) from 
section 17(a) to permit a Fund that is an affiliated person, or an 
affiliated person of an affiliated person, of a Fund of Funds to sell 
its Shares to and redeem its Shares from a Fund of Funds, and to engage 
in the accompanying in-kind transactions with the Fund of Funds.\26\ 
Applicants state that the terms of the transactions are fair and 
reasonable and do not involve overreaching. Applicants note that any 
consideration paid by a Fund of Funds for the purchase or redemption of 
Shares directly from a Fund will be based on the NAV of the Fund.\27\ 
Applicants believe that any proposed transactions directly between the 
Funds and Funds of Funds will be consistent with the policies of each 
Fund of Funds. The purchase of Creation Units by a Fund of Funds 
directly from a Fund will be accomplished in accordance with the 
investment restrictions of any such Fund of Funds and will be 
consistent with the investment policies set forth in the Fund of Funds' 
registration statement. Applicants also state that the proposed 
transactions are consistent with the general purposes of the Act and 
are appropriate in the public interest.
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    \26\ Although applicants believe that most Funds of Funds will 
purchase Shares in the secondary market and will not purchase 
Creation Units directly from a Fund, a Fund of Funds might seek to 
transact in Creation Units directly with a Fund that is an 
affiliated person of a Fund of Funds. To the extent that purchases 
and sales of Shares occur in the secondary market and not through 
principal transactions directly between a Fund of Funds and a Fund, 
relief from section 17(a) would not be necessary. However, the 
requested relief would apply to direct sales of Shares in Creation 
Units by a Fund to a Fund of Funds and redemptions of those Shares. 
Applicants are not seeking relief from section 17(a) for, and the 
requested relief will not apply to, transactions where a Fund could 
be deemed an affiliated person, or an affiliated person of an 
affiliated person of a Fund of Funds because an Adviser or an entity 
controlling, controlled by or under common control with an Adviser 
provides investment advisory services to that Fund of Funds.
    \27\ Applicants acknowledge that the receipt of compensation by 
(a) an affiliated person of a Fund of Funds, or an affiliated person 
of such person, for the purchase by the Fund of Funds of Shares of a 
Fund or (b) an affiliated person of a Fund, or an affiliated person 
of such person, for the sale by the Fund of its Shares to a Fund of 
Funds, may be prohibited by section 17(e)(1) of the Act. The FOF 
Participation Agreement also will include this acknowledgment.
---------------------------------------------------------------------------

Applicants' Conditions

    Applicants agree that any order of the Commission granting the 
requested relief will be subject to the following conditions:

A. ETF Relief

    1. The requested relief to permit ETF operations will expire on the 
effective date of any Commission rule under the Act that provides 
relief permitting the operation of index-based ETFs.
    2. As long as a Fund operates in reliance on the requested order, 
the Shares of such Fund will be listed on an Exchange.
    3. Neither the Trust nor any Fund will be advertised or marketed as 
an open-end investment company or a mutual fund. Any advertising 
material that describes the purchase or sale of Creation Units or 
refers to redeemability will prominently disclose that Shares are not 
individually redeemable and that owners of Shares may acquire those 
Shares from the Fund and tender those Shares for redemption to a Fund 
in Creation Units only.
    4. The Web site, which is and will be publicly accessible at no 
charge, will contain, on a per Share basis for each Fund, the prior 
Business Day's NAV and the market closing price or the midpoint of the 
bid/ask spread at the time of the calculation of such NAV (``Bid/Ask 
Price''), and a calculation of the premium or discount of the market 
closing price or Bid/Ask Price against such NAV.
    5. Each Self-Indexing Fund, Long/Short Fund and 130/30 Fund will 
post on the Web site on each Business Day, before commencement of 
trading of Shares on the Exchange, the Fund's Portfolio Holdings.
    6. No Adviser or any Sub-Adviser to a Self-Indexing Fund, directly 
or indirectly, will cause any Authorized Participant (or any investor 
on whose behalf an Authorized Participant may transact with the Self-
Indexing Fund) to acquire any Deposit Instrument for the Self-Indexing 
Fund through a transaction in which the Self-Indexing Fund could not 
engage directly.

B. Fund of Funds Relief

    1. The members of a Fund of Funds' Advisory Group will not control 
(individually or in the aggregate) a Fund within the meaning of section 
2(a)(9) of the Act. The members of a Fund of Funds' Sub-Advisory Group 
will not control (individually or in the aggregate) a Fund within the 
meaning of section 2(a)(9) of the Act. If, as a result of a decrease in 
the outstanding voting securities of a Fund, the Fund of Funds' 
Advisory Group or the Fund of Funds' Sub-Advisory Group, each in the 
aggregate, becomes a holder of more than 25 percent of the outstanding 
voting securities of a Fund, it will vote its Shares of the Fund in the 
same proportion as the vote of all other holders of the Fund's Shares. 
This condition does not apply to the Fund of Funds' Sub-Advisory Group 
with respect to a Fund for which the Fund of Funds' Sub-Adviser or a 
person controlling, controlled by or under common control with the Fund 
of Funds' Sub-Adviser acts as the investment adviser within the meaning 
of section 2(a)(20)(A) of the Act.
    2. No Fund of Funds or Fund of Funds Affiliate will cause any 
existing or potential investment by the Fund of Funds in a Fund to 
influence the terms of any services or transactions between the Fund of 
Funds or Fund of Funds Affiliate and the Fund or a Fund Affiliate.
    3. The board of directors or trustees of an Investing Management 
Company, including a majority of the disinterested directors or 
trustees, will adopt procedures reasonably designed to ensure that the 
Fund of Funds Adviser and Fund of Funds Sub-Adviser are conducting the 
investment program of the Investing Management Company without taking 
into account any consideration received by the Investing Management 
Company or a Fund of Funds Affiliate from a Fund or Fund Affiliate in 
connection with any services or transactions.
    4. Once an investment by a Fund of Funds in the securities of a 
Fund exceeds the limits in section 12(d)(1)(A)(i) of the Act, the Board 
of the Fund, including a majority of the directors or trustees who are 
not ``interested persons'' within the meaning of section 2(a)(19) of 
the Act (``non-interested Board members''), will determine that any 
consideration paid by the Fund to the Fund of Funds or a Fund of Funds 
Affiliate in connection with any services or transactions: (i) Is fair 
and reasonable in relation to the nature and quality of the services 
and benefits received by the Fund; (ii) is within the range of 
consideration that the Fund would be required to pay to another 
unaffiliated entity in connection with the same services or 
transactions; and (iii) does not involve overreaching on the part of 
any person concerned. This condition does not apply with respect to any 
services or transactions between a Fund and its investment adviser(s), 
or any person controlling,

[[Page 26114]]

controlled by or under common control with such investment adviser(s).
    5. The Fund of Funds Adviser, or trustee or Sponsor of an Investing 
Trust, as applicable, will waive fees otherwise payable to it by the 
Fund of Funds in an amount at least equal to any compensation 
(including fees received pursuant to any plan adopted by a Fund under 
rule 12b-l under the Act) received from a Fund by the Fund of Funds 
Adviser, or trustee or Sponsor of the Investing Trust, or an affiliated 
person of the Fund of Funds Adviser, or trustee or Sponsor of the 
Investing Trust, other than any advisory fees paid to the Fund of Funds 
Adviser, or trustee or Sponsor of an Investing Trust, or its affiliated 
person by the Fund, in connection with the investment by the Fund of 
Funds in the Fund. Any Fund of Funds Sub-Adviser will waive fees 
otherwise payable to the Fund of Funds Sub-Adviser, directly or 
indirectly, by the Investing Management Company in an amount at least 
equal to any compensation received from a Fund by the Fund of Funds 
Sub-Adviser, or an affiliated person of the Fund of Funds Sub-Adviser, 
other than any advisory fees paid to the Fund of Funds Sub-Adviser or 
its affiliated person by the Fund, in connection with the investment by 
the Investing Management Company in the Fund made at the direction of 
the Fund of Funds Sub-Adviser. In the event that the Fund of Funds Sub-
Adviser waives fees, the benefit of the waiver will be passed through 
to the Investing Management Company.
    6. No Fund of Funds or Fund of Funds Affiliate (except to the 
extent it is acting in its capacity as an investment adviser to a Fund) 
will cause a Fund to purchase a security in any Affiliated 
Underwriting.
    7. The Board of a Fund, including a majority of the non-interested 
Board members, will adopt procedures reasonably designed to monitor any 
purchases of securities by the Fund in an Affiliated Underwriting, once 
an investment by a Fund of Funds in the securities of the Fund exceeds 
the limit of section 12(d)(1)(A)(i) of the Act, including any purchases 
made directly from an Underwriting Affiliate. The Board will review 
these purchases periodically, but no less frequently than annually, to 
determine whether the purchases were influenced by the investment by 
the Fund of Funds in the Fund. The Board will consider, among other 
things: (i) Whether the purchases were consistent with the investment 
objectives and policies of the Fund; (ii) how the performance of 
securities purchased in an Affiliated Underwriting compares to the 
performance of comparable securities purchased during a comparable 
period of time in underwritings other than Affiliated Underwritings or 
to a benchmark such as a comparable market index; and (iii) whether the 
amount of securities purchased by the Fund in Affiliated Underwritings 
and the amount purchased directly from an Underwriting Affiliate have 
changed significantly from prior years. The Board will take any 
appropriate actions based on its review, including, if appropriate, the 
institution of procedures designed to ensure that purchases of 
securities in Affiliated Underwritings are in the best interest of 
shareholders of the Fund.
    8. Each Fund will maintain and preserve permanently in an easily 
accessible place a written copy of the procedures described in the 
preceding condition, and any modifications to such procedures, and will 
maintain and preserve for a period of not less than six years from the 
end of the fiscal year in which any purchase in an Affiliated 
Underwriting occurred, the first two years in an easily accessible 
place, a written record of each purchase of securities in Affiliated 
Underwritings once an investment by a Fund of Funds in the securities 
of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, 
setting forth from whom the securities were acquired, the identity of 
the underwriting syndicate's members, the terms of the purchase, and 
the information or materials upon which the Board's determinations were 
made.
    9. Before investing in a Fund in excess of the limit in section 
12(d)(1)(A), a Fund of Funds and the Trust will execute a FOF 
Participation Agreement stating, without limitation, that their 
respective boards of directors or trustees and their investment 
advisers, or trustee and Sponsor, as applicable, understand the terms 
and conditions of the order, and agree to fulfill their 
responsibilities under the order. At the time of its investment in 
Shares of a Fund in excess of the limit in section 12(d)(1)(A)(i), a 
Fund of Funds will notify the Fund of the investment. At such time, the 
Fund of Funds will also transmit to the Fund a list of the names of 
each Fund of Funds Affiliate and Underwriting Affiliate. The Fund of 
Funds will notify the Fund of any changes to the list of the names as 
soon as reasonably practicable after a change occurs. The Fund and the 
Fund of Funds will maintain and preserve a copy of the order, the FOF 
Participation Agreement, and the list with any updated information for 
the duration of the investment and for a period of not less than six 
years thereafter, the first two years in an easily accessible place.
    10. Before approving any advisory contract under section 15 of the 
Act, the board of directors or trustees of each Investing Management 
Company including a majority of the disinterested directors or 
trustees, will find that the advisory fees charged under such contract 
are based on services provided that will be in addition to, rather than 
duplicative of, the services provided under the advisory contract(s) of 
any Fund in which the Investing Management Company may invest. These 
findings and their basis will be fully recorded in the minute books of 
the appropriate Investing Management Company.
    11. Any sales charges and/or service fees charged with respect to 
shares of a Fund of Funds will not exceed the limits applicable to a 
fund of funds as set forth in NASD Conduct Rule 2830.
    12. No Fund will acquire securities of an investment company or 
company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of 
the limits contained in section 12(d)(1)(A) of the Act, except to the 
extent the Fund acquires securities of another investment company 
pursuant to exemptive relief from the Commission permitting the Fund to 
acquire securities of one or more investment companies for short-term 
cash management purposes.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Brent J. Fields,
Secretary.
[FR Doc. 2015-10586 Filed 5-5-15; 8:45 am]
 BILLING CODE 8011-01-P



                                              26106                         Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / Notices

                                              global change impacts and                               www.globalchange.gov/notices. For                     Commission’s Secretary and serving
                                              vulnerabilities. The recent Third NCA                   more information about the NCA and                    applicants with a copy of the request,
                                              process and resulting 2014 Report                       access to previous NCA reports and                    personally or by mail. Hearing requests
                                              (http://nca2014.globalchange.gov/)                      activities, please see http://                        should be received by the Commission
                                              provide a foundation for subsequent                     assessment.globalchange.gov.                          by 5:30 p.m. on May 26, 2015, and
                                              activities and reports under the                                                                              should be accompanied by proof of
                                                                                                      Ted Wackler,
                                              sustained assessment process. More                                                                            service on applicants, in the form of an
                                              broadly, climate assessments                            Deputy Chief of Staff and Assistant Director.         affidavit, or for lawyers, a certificate of
                                              increasingly involve participation and                  [FR Doc. 2015–10352 Filed 5–5–15; 8:45 am]            service. Pursuant to rule 0–5 under the
                                              leadership by state, local, and tribal                  BILLING CODE 3270–F5–P                                Act, hearing requests should state the
                                              governments as well as the private                                                                            nature of the writer’s interest, any facts
                                              sector. Noting these developments in                                                                          bearing upon the desirability of a
                                              the climate assessment landscape,                       SECURITIES AND EXCHANGE                               hearing on the matter, the reason for the
                                              USGCRP seeks ideas about (1) what                       COMMISSION                                            request, and the issues contested.
                                              scientific information on climate                                                                             Persons who wish to be notified of a
                                                                                                      [Investment Company Act Release No.
                                              change, impacts, and responses would                    31590; 812–14385]                                     hearing may request notification by
                                              be of most value to inform future                                                                             writing to the Commission’s Secretary.
                                              assessment activities; (2) how to                       Syntax, LLC and Syntax ETF Trust;                     ADDRESSES: Secretary, Securities and
                                              effectively communicate climate change                  Notice of Application                                 Exchange Commission, 100 F Street NE.,
                                              assessment information; and (3) what                                                                          Washington, DC 20549–1090;
                                              mechanisms could be used to more                        April 30, 2015.
                                                                                                                                                            Applicants: 110 East 59th Street, 33rd
                                              effectively connect to other assessment-                AGENCY:    Securities and Exchange
                                                                                                                                                            Floor, New York, NY 10022.
                                              related efforts. Public responses to these              Commission (‘‘Commission’’).
                                                                                                                                                            FOR FURTHER INFORMATION CONTACT: Jaea
                                              questions will be evaluated and, if                     ACTION: Notice of an application for an
                                                                                                                                                            F. Hahn, Senior Counsel, at (202) 551–
                                              appropriate, used to inform the                         order under section 6(c) of the
                                                                                                                                                            6870, or David P. Bartels, Branch Chief,
                                              structure and content of USGCRP’s                       Investment Company Act of 1940 (the
                                                                                                                                                            at (202) 551–6821 (Division of
                                              sustained National Climate Assessment                   ‘‘Act’’) for an exemption from sections
                                                                                                                                                            Investment Management, Chief
                                              process. Updates on the sustained                       2(a)(32), 5(a)(1), 22(d), and 22(e) of the
                                              assessment will be posted on the NCA                                                                          Counsel’s Office).
                                                                                                      Act and rule 22c–1 under the Act, under
                                              Web site (http://                                       sections 6(c) and 17(b) of the Act for an             SUPPLEMENTARY INFORMATION: The
                                              assessment.globalchange.gov) as they                    exemption from sections 17(a)(1) and                  following is a summary of the
                                              are available.                                          17(a)(2) of the Act, and under section                application. The complete application
                                              DATES: Comments will be accepted                        12(d)(1)(J) for an exemption from                     may be obtained via the Commission’s
                                              through June 15, 2015.                                  sections 12(d)(1)(A) and 12(d)(1)(B) of               Web site by searching for the file
                                                                                                      the Act.                                              number, or for an applicant using the
                                              ADDRESSES: Comments from the public
                                                                                                                                                            Company name box, at http://
                                              will be accepted electronically at
                                                                                                         Summary of Application: Applicants                 www.sec.gov/search/search.htm or by
                                              http://www.globalchange.gov/notices.
                                                                                                      request an order that would permit (a)                calling (202) 551–8090.
                                              Instructions for submitting are on the
                                                                                                      series of certain open-end management
                                              Web site. Submitters may enter text                                                                           Applicants’ Representations
                                                                                                      investment companies to issue shares
                                              and/or upload files in response to the                                                                           1. The Trust is a Delaware statutory
                                                                                                      (‘‘Shares’’) redeemable in large
                                              three questions listed above.                                                                                 trust that will be registered with the
                                                 If you are unable to submit comments                 aggregations only (‘‘Creation Units’’); (b)
                                                                                                      secondary market transactions in Shares               Commission under the Act as an open-
                                              electronically, you may submit                                                                                end management investment company.
                                              comments by mail to: Attn: Emily                        to occur at negotiated market prices
                                                                                                      rather than at net asset value (‘‘NAV’’);             The Trust will be organized as a series
                                              Cloyd, U.S. Global Change Research                                                                            trust with multiple series, each tracking
                                              Program, 1717 Pennsylvania Ave. NW.,                    (c) certain series to pay redemption
                                                                                                      proceeds, under certain circumstances,                a particular index and utilizing either a
                                              Suite 250, Washington, DC 20006.                                                                              replication or representative sampling
                                                 Instructions: Response to this RFI is                more than seven days after the tender of
                                                                                                      Shares for redemption; (d) certain                    strategy. The initial series will be the
                                              voluntary. Respondents need not reply
                                                                                                      affiliated persons of the series to deposit           following Self-Indexing Funds (defined
                                              to all questions. Responses to this RFI
                                                                                                      securities into, and receive securities               below): Syntax 900, Syntax 500, Syntax
                                              may be used by the government for
                                                                                                      from, the series in connection with the               400, Syntax Financials Products &
                                              program planning on a non-attribution
                                                                                                      purchase and redemption of Creation                   Services, Syntax Energy Products &
                                              basis. OSTP therefore requests that no
                                                                                                      Units; and (e) certain registered                     Services, Syntax Industrial Products &
                                              business proprietary information or
                                                                                                      management investment companies and                   Services, Syntax Information Tools,
                                              copyrighted information be submitted in
                                                                                                      unit investment trusts outside of the                 Syntax Information Products & Services,
                                              response to this RFI. Please note that the
                                                                                                      same group of investment companies as                 Syntax Consumer Products & Services,
                                              U.S. Government will not pay for
                                                                                                      the series to acquire Shares.                         Syntax Food Products & Services, and
                                              response preparation, or for the use of
                                                                                                         Applicants: Syntax ETF Trust (the                  Syntax Healthcare Products & Services
                                              any information contained in the
                                                                                                      ‘‘Trust’’) and Syntax, LLC (‘‘Current                 (the ‘‘Initial Funds’’).
                                              response.                                                                                                        2. The Current Adviser will be the
                                                                                                      Adviser’’).
                                              FOR FURTHER INFORMATION CONTACT:                           Filing Dates: The application was                  investment adviser to the Initial Funds.
tkelley on DSK3SPTVN1PROD with NOTICES




                                              Emily Therese Cloyd, (202) 223–6262,                    filed on November 6, 2014 and amended                 The Current Adviser is, and any other
                                              ecloyd@usgcrp.gov, U.S. Global Change                   on April 1, 2015 and April 29, 2015.                  Adviser (as defined below) will be,
                                              Research Program.                                          Hearing or Notification of Hearing: An             registered as an investment adviser
                                              SUPPLEMENTARY INFORMATION:                              order granting the requested relief will              under the Investment Advisers Act of
                                              Background information, additional                      be issued unless the Commission orders                1940 (‘‘Advisers Act’’). An Adviser may
                                              details, and instructions for submitting                a hearing. Interested persons may                     enter into sub-advisory agreements with
                                              comments can be found at                                request a hearing by writing to the                   one or more investment advisers to act


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                                                                             Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / Notices                                                      26107

                                              as sub-advisers to particular Funds                     Transactions 3 representing Component                  Holdings before the commencement of
                                              (each, a ‘‘Sub-Adviser’’). Any Sub-                     Securities and, in the case of Foreign                 trading of Shares on the Listing
                                              Adviser will either be registered or not                Funds, Component Securities and                        Exchange (defined below).6 The
                                              subject to registration under the                       Depositary Receipts 4 representing                     information provided on the Web site
                                              Advisers Act.                                           Component Securities. Each Fund may                    will be formatted to be reader-friendly.
                                                 3. The principal underwriter and                     also invest up to 20% of its assets in                    8. A Fund will utilize either a
                                              distributor for each of the Funds                       certain index futures, options, options                replication or representative sampling
                                              (‘‘Distributor’’) will be a broker-dealer               on index futures, swap contracts or                    strategy to track its Underlying Index. A
                                              registered under the Securities                         other derivatives, as related to its                   Fund using a replication strategy will
                                              Exchange Act of 1934 (‘‘Exchange Act’’).                respective Underlying Index and its                    invest in the Component Securities of
                                              The Distributor may be an affiliated                    Component Securities, cash and cash                    its Underlying Index in the same
                                              person of an Adviser. The Distributor                   equivalents, other investment                          approximate proportions as in such
                                              will not be an affiliate of any Exchange                companies, as well as in securities and                Underlying Index. A Fund using a
                                              (defined below).                                        other instruments not included in its                  representative sampling strategy will
                                                 4. Applicants request that the order                 Underlying Index but which the Adviser                 hold some, but not necessarily all of the
                                              apply to the Initial Funds and any                      believes will help the Fund track its                  Component Securities of its Underlying
                                              future series of the Trust, and any other               Underlying Index. A Fund may also                      Index. Applicants state that a Fund
                                              open-end management investment                          engage in short sales in accordance with               using a representative sampling strategy
                                              company or series thereof, that may be                  its investment objective.                              will not be expected to track the
                                              created in the future (‘‘Future Funds’’                    7. The Trust may issue Funds that                   performance of its Underlying Index
                                              and together with the Initial Funds,                    seek to track Underlying Indexes                       with the same degree of accuracy as
                                              ‘‘Funds’’), each of which will operate as               constructed using 130/30 investment                    would an investment vehicle that
                                              an ETF and will track a specified index                 strategies (‘‘130/30 Funds’’) or other                 invested in every Component Security
                                              comprised of domestic or foreign equity                 long/short investment strategies (‘‘Long/              of the Underlying Index with the same
                                              and/or fixed income securities (each, an                Short Funds’’). Each Long/Short Fund                   weighting as the Underlying Index.
                                              ‘‘Underlying Index’’). Any Fund will (a)                will establish (i) exposures equal to                  Applicants expect that each Fund will
                                              be advised by the Current Adviser or an                 approximately 100% of the long                         have an annual tracking error relative to
                                              entity controlling, controlled by, or                   positions specified by the Long/Short                  the performance of its Underlying Index
                                              under common control with the Current                   Index 5 and (ii) exposures equal to                    of less than 5%.
                                              Adviser (each, an ‘‘Adviser’’) and (b)                  approximately 100% of the short                           9. Each Fund will be entitled to use
                                              comply with the terms and conditions                    positions specified by the Long/Short                  its Underlying Index pursuant to either
                                              of the application.1                                    Index. Each 130/30 Fund will include                   a licensing agreement with the entity
                                                 5. Each Fund will hold certain                       strategies that: (i) Establish long                    that compiles, creates, sponsors or
                                              securities, assets or other positions                   positions in securities so that total long             maintains the Underlying Index (each,
                                              (‘‘Portfolio Holdings’’) selected to                    exposure represents approximately                      an ‘‘Index Provider’’) or a sub-licensing
                                              correspond generally to the performance                 130% of a Fund’s net assets; and (ii)                  arrangement with the Adviser, which
                                              of its Underlying Index. Certain Funds                  simultaneously establish short positions               will have a licensing agreement with
                                              will be based on Underlying Indexes                     in other securities so that total short                such Index Provider.7 A ‘‘Self-Indexing
                                              comprised solely of equity and/or fixed                 exposure represents approximately 30%                  Fund’’ is a Fund for which an affiliated
                                                                                                      of such Fund’s net assets. Each Business               person, as defined in section 2(a)(3) of
                                              income securities issued by one or more
                                                                                                      Day (as defined below), for each Long/                 the Act, or an affiliated person of such
                                              of the following categories of issuers: (i)
                                                                                                      Short Fund and 130/30 Fund, the                        person, of the Trust or a Fund, of the
                                              Domestic issuers and (ii) non-domestic
                                                                                                      Adviser will provide full portfolio                    Adviser, of any Sub-Adviser to or
                                              issuers meeting the requirements for
                                                                                                      transparency on the Fund’s publicly                    promoter of a Fund, or of the Distributor
                                              trading in U.S. markets. Other Funds
                                                                                                      available Web site (‘‘Web site’’) by                   (each, an ‘‘Affiliated Index Provider’’)
                                              will be based on Underlying Indexes
                                                                                                      making available the Fund’s Portfolio                  will serve as the Index Provider. In the
                                              that will be comprised solely of foreign
                                              and domestic, or solely foreign, equity                    3 A ‘‘to-be-announced transaction’’ or ‘‘TBA
                                                                                                                                                             case of Self-Indexing Funds, an
                                              and/or fixed income securities (‘‘Foreign               Transaction’’ is a method of trading mortgage-         Affiliated Index Provider will create a
                                              Funds’’).                                               backed securities. In a TBA Transaction, the buyer     proprietary, rules-based methodology to
                                                 6. Applicants represent that each                    and seller agree upon general trade parameters such    create Underlying Indexes (each an
                                                                                                      as agency, settlement date, par amount and price.      ‘‘Affiliated Index’’).8 Except with
                                              Fund will invest at least 80% of its                    The actual pools delivered generally are determined
                                              assets (excluding securities lending                    two days prior to settlement date.
                                                                                                                                                               6 Under accounting procedures followed by each
                                              collateral) in the component securities                    4 Depositary receipts representing foreign

                                                                                                      securities (‘‘Depositary Receipts’’) include           Fund, trades made on the prior Business Day (‘‘T’’)
                                              of its respective Underlying Index                                                                             will be booked and reflected in NAV on the current
                                                                                                      American Depositary Receipts and Global
                                              (‘‘Component Securities’’), or, in the                  Depositary Receipts. The Funds may invest in           Business Day (T+1). Accordingly, the Funds will be
                                              case of Fixed Income Funds,2 in the                     Depositary Receipts representing foreign securities    able to disclose at the beginning of the Business Day
                                              Component Securities of its respective                  in which they seek to invest. Depositary Receipts      the portfolio that will form the basis for the NAV
                                                                                                      are typically issued by a financial institution (a     calculation at the end of the Business Day.
                                              Underlying Index and TBA                                                                                         7 The licenses for the Self-Indexing Funds will
                                                                                                      ‘‘depositary bank’’) and evidence ownership
                                                                                                      interests in a security or a pool of securities that   specifically state that the Affiliated Index Provider
                                                1 All existing entities that intend to rely on the                                                           (as defined below), or in case of a sub-licensing
                                                                                                      have been deposited with the depositary bank. A
                                              requested order have been named as applicants.          Fund will not invest in any Depositary Receipts that   agreement, the Adviser, must provide the use of the
                                              Any other existing or future entity that                the Adviser or any Sub-Adviser deems to be illiquid    Affiliated Indexes (as defined below) and related
tkelley on DSK3SPTVN1PROD with NOTICES




                                              subsequently relies on the order will comply with       or for which pricing information is not readily        intellectual property at no cost to the Trust and the
                                              the terms and conditions of the order. A Fund of        available. No affiliated person of a Fund, the         Self-Indexing Funds.
                                              Funds (as defined below) may rely on the order          Adviser or any Sub-Adviser will serve as the             8 The Affiliated Indexes may be made available to
                                              only to invest in Funds and not in any other            depositary bank for any Depositary Receipts held by    registered investment companies, as well as
                                              registered investment company.                          a Fund.                                                separately managed accounts of institutional
                                                2 ‘‘Fixed-Income Funds’’ track an Underlying             5 Underlying Indexes that include both long and     investors and privately offered funds that are not
                                              Index comprised of domestic and/or foreign fixed        short positions in securities are referred to as       deemed to be ‘‘investment companies’’ in reliance
                                              income securities.                                      ‘‘Long/Short Indexes.’’                                                                           Continued




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                                              26108                           Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / Notices

                                              respect to the Self-Indexing Funds, no                   interest where an adviser is managing                  relationship to any Affiliated Index
                                              Index Provider is or will be an affiliated               two or more registered funds and these                 Provider and any material conflicts of
                                              person, or an affiliated person of an                    protections will also help address these               interest resulting therefrom, regardless
                                              affiliated person, of the Trust or a Fund,               conflicts with respect to the Self-                    of whether the Affiliated Index Provider
                                              of the Adviser, of any Sub-Adviser to or                 Indexing Funds.9                                       is a type of affiliate specified in Item 10.
                                              promoter of a Fund, or of the                               13. Each Adviser and any Sub-                          14. To the extent the Self-Indexing
                                              Distributor.                                             Adviser has adopted or will adopt,                     Funds transact with an affiliated person
                                                 10. Applicants recognize that Self-                   pursuant to Rule 206(4)–7 under the                    of the Adviser or Sub-Adviser, such
                                              Indexing Funds could raise concerns                      Advisers Act, written policies and                     transactions will comply with the Act,
                                              regarding the ability of the Affiliated                  procedures designed to prevent                         the rules thereunder and the terms and
                                              Index Provider to manipulate the                         violations of the Advisers Act and the                 conditions of the requested order. In
                                              Underlying Index to the benefit or                       rules thereunder. These include policies               this regard, each Self-Indexing Fund’s
                                              detriment of the Self-Indexing Fund.                     and procedures designed to minimize                    board of directors or trustees (‘‘Board’’)
                                              Applicants further recognize the                         potential conflicts of interest among the              will periodically review the Self-
                                              potential for conflicts that may arise                   Self-Indexing Funds and the Affiliated                 Indexing Fund’s use of an Affiliated
                                              with respect to the personal trading                     Accounts, such as cross trading policies,              Index Provider. Subject to the approval
                                              activity of personnel of the Affiliated                  as well as those designed to ensure the                of the Self-Indexing Fund’s Board, an
                                              Index Provider who have knowledge of                     equitable allocation of portfolio                      Adviser, affiliated persons of the
                                              changes to an Underlying Index prior to                  transactions and brokerage                             Adviser (‘‘Adviser Affiliates’’) and
                                              the time that information is publicly                    commissions. In addition, the Current                  affiliated persons of any Sub-Adviser
                                              disseminated.                                            Adviser has adopted policies and                       (‘‘Sub-Adviser Affiliates’’) may be
                                                 11. Applicants propose that each day                  procedures as required under section                   authorized to provide custody, fund
                                              that the Trust, the NYSE and the                         204A of the Advisers Act, which are                    accounting and administration and
                                              national securities exchange (as defined                 reasonably designed in light of the                    transfer agency services to the Self-
                                              in section 2(a)(26) of the Act) (an                      nature of its business to prevent the                  Indexing Funds. Any services provided
                                              ‘‘Exchange’’) on which the Fund’s                        misuse, in violation of the Advisers Act               by the Adviser, Adviser Affiliates, Sub-
                                              Shares are primarily listed (‘‘Listing                   or the Exchange Act or the rules                       Adviser and Sub-Adviser Affiliates will
                                              Exchange’’) are open for business,                       thereunder, of material non-public                     be performed in accordance with the
                                              including any day that a Fund is                         information by the Current Adviser or                  provisions of the Act, the rules under
                                              required to be open under section 22(e)                  an associated person (‘‘Inside                         the Act and any relevant guidelines
                                              of the Act (a ‘‘Business Day’’), each Self-              Information Policy’’). Any other Adviser               from the staff of the Commission.
                                              Indexing Fund will post on its Web site,                 or Sub-Adviser will be required to adopt               Applications for prior orders granted to
                                              before commencement of trading of                        and maintain a similar Inside                          Self-Indexing Funds have received relief
                                              Shares on the Listing Exchange, the                      Information Policy. In accordance with                 to operate such funds on the basis
                                              identities and quantities of the Portfolio               the Code of Ethics 10 and Inside                       discussed above.12
                                              Holdings held by the Fund that will                      Information Policy of each Adviser and                    15. The Shares of each Fund will be
                                              form the basis for the Fund’s calculation                Sub-Adviser, personnel of those entities               purchased and redeemed in Creation
                                              of its NAV at the end of the Business                    with knowledge about the composition                   Units and generally on an in-kind basis.
                                              Day. Applicants believe that requiring                   of the Portfolio Deposit 11 will be                    Except where the purchase or
                                              Self-Indexing Funds to maintain full                     prohibited from disclosing such                        redemption will include cash under the
                                              portfolio transparency will also provide                 information to any other person, except                limited circumstances specified below,
                                              an additional mechanism for addressing                   as authorized in the course of their                   purchasers will be required to purchase
                                              any such potential conflicts of interest.                employment, until such information is                  Creation Units by making an in-kind
                                                 12. In addition, applicants do not                    made public. In addition, an Index                     deposit of specified instruments
                                              believe the potential for conflicts of                   Provider will not provide any                          (‘‘Deposit Instruments’’), and
                                              interest raised by the Adviser’s use of                  information relating to changes to an                  shareholders redeeming their Shares
                                              the Underlying Indexes in connection                     Underlying Index’s methodology for the                 will receive an in-kind transfer of
                                              with the management of the Self-                         inclusion of component securities, the                 specified instruments (‘‘Redemption
                                              Indexing Funds and the Affiliated                        inclusion or exclusion of specific                     Instruments’’).13 On any given Business
                                              Accounts will be substantially different                 component securities, or methodology                   Day, the names and quantities of the
                                              from the potential conflicts presented by                for the calculation or the return of                   instruments that constitute the Deposit
                                              an adviser managing two or more                          component securities, in advance of a                  Instruments and the names and
                                              registered funds. Both the Act and the                   public announcement of such changes                    quantities of the instruments that
                                              Advisers Act contain various                             by the Index Provider. The Adviser will
                                              protections to address conflicts of                      also include under Item 10.C of Part 2                    12 See, e.g., Emerging Global Advisors, et al.,

                                                                                                                                                              Investment Company Act Release Nos. 30910 (Feb.
                                                                                                       of its Form ADV a discussion of its                    10, 2014) (notice) and 30975 (Mar. 7, 2014) (order)
                                              on section 3(c)(1) or 3(c)(7) of the Act for which the
                                              Adviser acts as adviser or subadviser (‘‘Affiliated                                                             and VTL Associates LLC, et al., Investment
                                                                                                          9 See, e.g., Rule 17j–1 under the Act and Section
                                              Accounts’’) as well as other such registered                                                                    Company Act Release Nos. 30763 (Oct. 24, 2013)
                                              investment companies, separately managed                 204A under the Advisers Act and Rules 204A–1           (notice) and 30789 (Nov. 19, 2013) (order).
                                              accounts and privately offered funds for which it        and 206(4)–7 under the Advisers Act.                      13 The Funds must comply with the federal
                                                                                                          10 The Adviser has also adopted or will adopt a
                                              does not act either as adviser or subadviser                                                                    securities laws in accepting Deposit Instruments
                                              (‘‘Unaffiliated Accounts’’). The Affiliated Accounts     code of ethics pursuant to Rule 17j–1 under the Act    and satisfying redemptions with Redemption
                                              and the Unaffiliated Accounts, like the Funds,           and Rule 204A–1 under the Advisers Act, which          Instruments, including that the Deposit Instruments
tkelley on DSK3SPTVN1PROD with NOTICES




                                              would seek to track the performance of one or more       contains provisions reasonably necessary to prevent    and Redemption Instruments are sold in
                                              Underlying Index(es) by investing in the                 Access Persons (as defined in Rule 17j–1) from         transactions that would be exempt from registration
                                              constituents of such Underlying Indexes or a             engaging in any conduct prohibited in Rule 17j–1       under the Securities Act of 1933 (‘‘Securities Act’’).
                                              representative sample of such constituents of the        (‘‘Code of Ethics’’).                                  In accepting Deposit Instruments and satisfying
                                              Underlying Index. Consistent with the relief                11 The instruments and cash that the purchaser is   redemptions with Redemption Instruments that are
                                              requested from section 17(a), the Affiliated             required to deliver in exchange for the Creation       restricted securities eligible for resale pursuant to
                                              Accounts will not engage in Creation Unit                Units it is purchasing are referred to as the          rule 144A under the Securities Act, the Funds will
                                              transactions with a Fund.                                ‘‘Portfolio Deposit.’’                                 comply with the conditions of rule 144A.



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                                                                             Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / Notices                                                         26109

                                              constitute the Redemption Instruments                    Participant (as defined below), the Fund                 Commission, or (2) a participant in The
                                              will be identical, unless the Fund is                    determines to require the purchase or                    Depository Trust Company (‘‘DTC’’)
                                              Rebalancing (as defined below). In                       redemption, as applicable, to be made                    (‘‘DTC Participant’’), which, in either
                                              addition, the Deposit Instruments and                    entirely in cash; 19 (d) if, on a given                  case, has signed a participant agreement
                                              the Redemption Instruments will each                     Business Day, the Fund requires all                      with the Distributor. The Distributor
                                              correspond pro rata to the positions in                  Authorized Participants purchasing or                    will be responsible for transmitting the
                                              the Fund’s portfolio (including cash                     redeeming Shares on that day to deposit                  orders to the Funds and will furnish to
                                              positions) 14 except: (a) In the case of                 or receive (as applicable) cash in lieu of               those placing such orders confirmation
                                              bonds, for minor differences when it is                  some or all of the Deposit Instruments                   that the orders have been accepted, but
                                              impossible to break up bonds beyond                      or Redemption Instruments,                               applicants state that the Distributor may
                                              certain minimum sizes needed for                         respectively, solely because: (i) Such                   reject any order which is not submitted
                                              transfer and settlement; (b) for minor                   instruments are not eligible for transfer                in proper form.
                                              differences when rounding is necessary                   through either the NSCC or DTC                              18. Each Business Day, before the
                                              to eliminate fractional shares or lots that              (defined below); or (ii) in the case of                  open of trading on the Listing Exchange,
                                              are not tradeable round lots; 15 (c) TBA                 Foreign Funds holding non-U.S.                           each Fund will cause to be published
                                              Transactions, short positions,                           investments, such instruments are not                    through the NSCC the names and
                                              derivatives and other positions that                     eligible for trading due to local trading                quantities of the instruments comprising
                                              cannot be transferred in kind 16 will be                 restrictions, local restrictions on                      the Deposit Instruments and the
                                              excluded from the Deposit Instruments                    securities transfers or other similar                    Redemption Instruments, as well as the
                                              and the Redemption Instruments; 17 (d)                   circumstances; or (e) if the Fund permits                estimated Cash Amount (if any), for that
                                              to the extent the Fund determines, on a                  an Authorized Participant to deposit or                  day. The list of Deposit Instruments and
                                              given Business Day, to use a                             receive (as applicable) cash in lieu of                  Redemption Instruments will apply
                                              representative sampling of the Fund’s                    some or all of the Deposit Instruments                   until a new list is announced on the
                                              portfolio; 18 or (e) for temporary periods,              or Redemption Instruments,                               following Business Day, and there will
                                              to effect changes in the Fund’s portfolio                respectively, solely because: (i) Such                   be no intra-day changes to the list
                                              as a result of the rebalancing of its                    instruments are, in the case of the                      except to correct errors in the published
                                              Underlying Index (any such change, a                     purchase of a Creation Unit, not                         list. Each Listing Exchange, or other
                                              ‘‘Rebalancing’’). If there is a difference               available in sufficient quantity; (ii) such              major market data provider, will
                                              between the NAV attributable to a                        instruments are not eligible for trading                 disseminate, every 15 seconds during
                                              Creation Unit and the aggregate market                   by an Authorized Participant or the                      regular Exchange trading hours, through
                                              value of the Deposit Instruments or                      investor on whose behalf the                             the facilities of the Consolidated Tape
                                              Redemption Instruments exchanged for                     Authorized Participant is acting; or (iii)               Association, or other widely
                                              the Creation Unit, the party conveying                   a holder of Shares of a Foreign Fund                     disseminated means, an amount for
                                              instruments with the lower value will                    holding non-U.S. investments would be                    each Fund stated on a per individual
                                              also pay to the other an amount in cash                  subject to unfavorable income tax                        Share basis representing the sum of (i)
                                              equal to that difference (the ‘‘Cash                     treatment if the holder receives                         the estimated Cash Amount and (ii) the
                                              Amount’’).                                               redemption proceeds in kind.20                           current value of the Deposit
                                                 16. Purchases and redemptions of                         17. Creation Units will consist of                    Instruments.
                                              Creation Units may be made in whole or                   specified large aggregations of Shares                      19. Transaction expenses, including
                                              in part on a cash basis, rather than in                  (e.g., 15,000 Shares), and it is expected                operational processing and brokerage
                                              kind, solely under the following                         that the initial trading price per                       costs, will be incurred by a Fund when
                                              circumstances: (a) To the extent there is                individual Share will range from $15 to                  investors purchase or redeem Creation
                                              a Cash Amount; (b) if, on a given                        $100. All orders to purchase Creation                    Units in-kind and such costs have the
                                              Business Day, the Fund announces                         Units must be placed with the                            potential to dilute the interests of the
                                              before the open of trading that all                      Distributor by or through an                             Fund’s existing shareholders. Each
                                              purchases, all redemptions or all                        ‘‘Authorized Participant’’ which is                      Fund will impose purchase or
                                              purchases and redemptions on that day                    either (1) a ‘‘Participating Party,’’ i.e., a            redemption transaction fees
                                              will be made entirely in cash; (c) if,                   broker-dealer (‘‘Broker’’) or other                      (‘‘Transaction Fees’’) in connection with
                                              upon receiving a purchase or                             participant in the Continuous Net                        effecting such purchases or redemptions
                                              redemption order from an Authorized                      Settlement System of the NSCC, a                         of Creation Units. In all cases, such
                                                                                                       clearing agency registered with the                      Transaction Fees will be limited in
                                                 14 The portfolio used for this purpose will be the                                                             accordance with requirements of the
                                              same portfolio used to calculate the Fund’s NAV for        19 In determining whether a particular Fund will       Commission applicable to management
                                              the Business Day.                                        sell or redeem Creation Units entirely on a cash or
                                                 15 A tradeable round lot for a security will be the
                                                                                                                                                                investment companies offering
                                                                                                       in-kind basis (whether for a given day or a given
                                              standard unit of trading in that particular type of      order), the key consideration will be the benefit that
                                                                                                                                                                redeemable securities. Since the
                                              security in its primary market.                          would accrue to the Fund and its investors. For          Transaction Fees are intended to defray
                                                 16 This includes instruments that can be              instance, in bond transactions, the Adviser may be       the transaction expenses as well as to
                                              transferred in kind only with the consent of the         able to obtain better execution than Share               prevent possible shareholder dilution
                                              original counterparty to the extent the Fund does        purchasers because of the Adviser’s size, experience
                                              not intend to seek such consents.                        and potentially stronger relationships in the fixed      resulting from the purchase or
                                                 17 Because these instruments will be excluded         income markets. Purchases of Creation Units either       redemption of Creation Units, the
                                              from the Deposit Instruments and the Redemption          on an all cash basis or in-kind are expected to be       Transaction Fees will be borne only by
                                              Instruments, their value will be reflected in the        neutral to the Funds from a tax perspective. In          such purchasers or redeemers.21 The
                                              determination of the Cash Amount (as defined             contrast, cash redemptions typically require selling
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                                              below).                                                  portfolio holdings, which may result in adverse tax      Distributor will be responsible for
                                                 18 A Fund may only use sampling for this purpose      consequences for the remaining Fund shareholders         delivering the Fund’s prospectus to
                                              if the sample: (i) Is designed to generate               that would not occur with an in-kind redemption.
                                              performance that is highly correlated to the             As a result, tax consideration may warrant in-kind         21 Where a Fund permits an in-kind purchaser to

                                              performance of the Fund’s portfolio; (ii) consists       redemptions.                                             substitute cash-in-lieu of depositing one or more of
                                              entirely of instruments that are already included in       20 A ‘‘custom order’’ is any purchase or               the requisite Deposit Instruments, the purchaser
                                              the Fund’s portfolio; and (iii) is the same for all      redemption of Shares made in whole or in part on         may be assessed a higher Transaction Fee to cover
                                              Authorized Participants on a given Business Day.         a cash basis in reliance on clause (e)(i) or (e)(ii).    the cost of purchasing such Deposit Instruments.



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                                              26110                         Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / Notices

                                              those persons acquiring Shares in                        Exchange, or refer to redeemability, will             or the cash equivalent. Because Shares
                                              Creation Units and for maintaining                       prominently disclose that Shares are not              will not be individually redeemable,
                                              records of both the orders placed with                   individually redeemable and will                      applicants request an order that would
                                              it and the confirmations of acceptance                   disclose that the owners of Shares may                permit the Funds to register as open-end
                                              furnished by it. In addition, the                        acquire those Shares from the Fund or                 management investment companies and
                                              Distributor will maintain a record of the                tender such Shares for redemption to                  issue Shares that are redeemable in
                                              instructions given to the applicable                     the Fund in Creation Units only. The                  Creation Units only. Applicants state
                                              Fund to implement the delivery of its                    Funds will provide copies of their                    that investors may purchase Shares in
                                              Shares.                                                  annual and semi-annual shareholder                    Creation Units and redeem Creation
                                                 20. Shares of each Fund will be listed                reports to DTC Participants for                       Units from each Fund. Applicants
                                              and traded individually on an                            distribution to beneficial owners of                  further state that because Creation Units
                                              Exchange. It is expected that one or                     Shares.                                               may always be purchased and redeemed
                                              more member firms of an Exchange will                                                                          at NAV, the price of Shares on the
                                              be designated to act as a market maker                   Applicants’ Legal Analysis
                                                                                                                                                             secondary market should not vary
                                              (each, a ‘‘Market Maker’’) and maintain                     1. Applicants request an order under               materially from NAV.
                                              a market for Shares trading on the                       section 6(c) of the Act for an exemption
                                              Exchange. Prices of Shares trading on an                 from sections 2(a)(32), 5(a)(1), 22(d), and           Section 22(d) of the Act and Rule 22c–
                                              Exchange will be based on the current                    22(e) of the Act and rule 22c–1 under                 1 Under the Act
                                              bid/offer market. Transactions involving                 the Act, under section 12(d)(1)(J) of the                4. Section 22(d) of the Act, among
                                              the sale of Shares on an Exchange will                   Act for an exemption from sections                    other things, prohibits a dealer from
                                              be subject to customary brokerage                        12(d)(1)(A) and (B) of the Act, and                   selling a redeemable security that is
                                              commissions and charges.                                 under sections 6(c) and 17(b) of the Act              currently being offered to the public by
                                                 21. Applicants expect that purchasers                 for an exemption from sections 17(a)(1)               or through an underwriter, except at a
                                              of Creation Units will include                           and 17(a)(2) of the Act.                              current public offering price described
                                              institutional investors and arbitrageurs.                   2. Section 6(c) of the Act provides that           in the prospectus. Rule 22c–1 under the
                                              Market Makers, acting in their roles to                  the Commission may exempt any                         Act generally requires that a dealer
                                              provide a fair and orderly secondary                     person, security or transaction, or any               selling, redeeming or repurchasing a
                                              market for the Shares, may from time to                  class of persons, securities or                       redeemable security do so only at a
                                              time find it appropriate to purchase or                  transactions, from any provision of the               price based on its NAV. Applicants state
                                              redeem Creation Units. Applicants                        Act, if and to the extent that such                   that secondary market trading in Shares
                                              expect that secondary market                             exemption is necessary or appropriate                 will take place at negotiated prices, not
                                              purchasers of Shares will include both                   in the public interest and consistent                 at a current offering price described in
                                              institutional and retail investors.22 The                with the protection of investors and the              a Fund’s prospectus, and not at a price
                                              price at which Shares trade will be                      purposes fairly intended by the policy                based on NAV. Thus, purchases and
                                              disciplined by arbitrage opportunities                   and provisions of the Act. Section 17(b)              sales of Shares in the secondary market
                                              created by the option continually to                     of the Act authorizes the Commission to               will not comply with section 22(d) of
                                              purchase or redeem Shares in Creation                    exempt a proposed transaction from                    the Act and rule 22c–1 under the Act.
                                              Units, which should help prevent                         section 17(a) of the Act if evidence                  Applicants request an exemption under
                                              Shares from trading at a material                        establishes that the terms of the                     section 6(c) from these provisions.
                                              discount or premium in relation to their                 transaction, including the consideration                 5. Applicants assert that the concerns
                                              NAV.                                                     to be paid or received, are reasonable                sought to be addressed by section 22(d)
                                                 22. Shares will not be individually                   and fair and do not involve                           of the Act and rule 22c–1 under the Act
                                              redeemable, and owners of Shares may                     overreaching on the part of any person                with respect to pricing are equally
                                              acquire those Shares from the Fund, or                   concerned, and the proposed                           satisfied by the proposed method of
                                              tender such Shares for redemption to                     transaction is consistent with the                    pricing Shares. Applicants maintain that
                                              the Fund, in Creation Units only. To                     policies of the registered investment                 while there is little legislative history
                                              redeem, an investor must accumulate                      company and the general provisions of                 regarding section 22(d), its provisions,
                                              enough Shares to constitute a Creation                   the Act. Section 12(d)(1)(J) of the Act               as well as those of rule 22c–1, appear to
                                              Unit. Redemption requests must be                        provides that the Commission may                      have been designed to (a) prevent
                                              placed through an Authorized                             exempt any person, security, or                       dilution caused by certain riskless-
                                              Participant. A redeeming investor may                    transaction, or any class or classes of               trading schemes by principal
                                              pay a Transaction Fee, calculated in the                 persons, securities or transactions, from             underwriters and contract dealers, (b)
                                              same manner as a Transaction Fee                         any provisions of section 12(d)(1) if the             prevent unjust discrimination or
                                              payable in connection with purchases of                  exemption is consistent with the public               preferential treatment among buyers,
                                              Creation Units.                                          interest and the protection of investors.             and (c) ensure an orderly distribution of
                                                 23. Neither the Trust nor any Fund                                                                          investment company shares by
                                              will be advertised or marketed or                        Sections 5(a)(1) and 2(a)(32) of the Act              eliminating price competition from
                                              otherwise held out as a traditional open-                   3. Section 5(a)(1) of the Act defines an           dealers offering shares at less than the
                                              end investment company or a ‘‘mutual                     ‘‘open-end company’’ as a management                  published sales price and repurchasing
                                              fund.’’ Instead, each such Fund will be                  investment company that is offering for               shares at more than the published
                                              marketed as an ‘‘ETF.’’ All marketing                    sale or has outstanding any redeemable                redemption price.
                                              materials that describe the features or                  security of which it is the issuer.                      6. Applicants believe that none of
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                                              method of obtaining, buying or selling                   Section 2(a)(32) of the Act defines a                 these purposes will be thwarted by
                                              Creation Units, or Shares traded on an                   redeemable security as any security,                  permitting Shares to trade in the
                                                                                                       other than short-term paper, under the                secondary market at negotiated prices.
                                                22 Shares will be registered in book-entry form
                                                                                                       terms of which the owner, upon its                    Applicants state that (a) secondary
                                              only. DTC or its nominee will be the record or
                                              registered owner of all outstanding Shares.
                                                                                                       presentation to the issuer, is entitled to            market trading in Shares does not
                                              Beneficial ownership of Shares will be shown on          receive approximately a proportionate                 involve a Fund as a party and will not
                                              the records of DTC or the DTC Participants.              share of the issuer’s current net assets,             result in dilution of an investment in


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                                                                             Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / Notices                                                     26111

                                              Shares, and (b) to the extent different                     9. Applicants are not seeking relief              relief adequately address the concerns
                                              prices exist during a given trading day,                 from section 22(e) with respect to                   underlying the limits in sections
                                              or from day to day, such variances occur                 Foreign Funds that do not effect                     12(d)(1)(A) and (B), which include
                                              as a result of third-party market forces,                creations and redemptions of Creation                concerns about undue influence by a
                                              such as supply and demand. Therefore,                    Units in-kind.                                       fund of funds over underlying funds,
                                              applicants assert that secondary market                                                                       excessive layering of fees and overly
                                                                                                       Section 12(d)(1)
                                              transactions in Shares will not lead to                                                                       complex fund structures. Applicants
                                              discrimination or preferential treatment                    10. Section 12(d)(1)(A) of the Act                believe that the requested exemption is
                                              among purchasers. Finally, applicants                    prohibits a registered investment                    consistent with the public interest and
                                              contend that the price at which Shares                   company from acquiring securities of an              the protection of investors.
                                              trade will be disciplined by arbitrage                   investment company if such securities                  14. Applicants believe that neither a
                                              opportunities created by the option                      represent more than 3% of the total                  Fund of Funds nor a Fund of Funds
                                              continually to purchase or redeem                        outstanding voting stock of the acquired             Affiliate would be able to exert undue
                                              Shares in Creation Units, which should                   company, more than 5% of the total                   influence over a Fund.24 To limit the
                                              help prevent Shares from trading at a                    assets of the acquiring company, or,                 control that a Fund of Funds may have
                                              material discount or premium in                          together with the securities of any other            over a Fund, applicants propose a
                                              relation to their NAV.                                   investment companies, more than 10%                  condition prohibiting a Fund of Funds
                                                                                                       of the total assets of the acquiring                 Adviser or Sponsor, any person
                                              Section 22(e)                                            company. Section 12(d)(1)(B) of the Act              controlling, controlled by, or under
                                                 7. Section 22(e) of the Act generally                 prohibits a registered open-end                      common control with a Fund of Funds
                                              prohibits a registered investment                        investment company, its principal                    Adviser or Sponsor, and any investment
                                              company from suspending the right of                     underwriter and any other broker-dealer              company and any issuer that would be
                                              redemption or postponing the date of                     from knowingly selling the investment                an investment company but for sections
                                              payment of redemption proceeds for                       company’s shares to another investment               3(c)(1) or 3(c)(7) of the Act that is
                                              more than seven days after the tender of                 company if the sale will cause the                   advised or sponsored by a Fund of
                                              a security for redemption. Applicants                    acquiring company to own more than                   Funds Adviser or Sponsor, or any
                                              state that settlement of redemptions for                 3% of the acquired company’s voting                  person controlling, controlled by, or
                                              Foreign Funds will be contingent not                     stock, or if the sale will cause more than           under common control with a Fund of
                                              only on the settlement cycle of the                      10% of the acquired company’s voting                 Funds Adviser or Sponsor (‘‘Fund of
                                              United States market, but also on                        stock to be owned by investment                      Funds Advisory Group’’) from
                                              current delivery cycles in local markets                 companies generally.                                 controlling (individually or in the
                                              for underlying foreign Portfolio                            11. Applicants request an exemption
                                                                                                                                                            aggregate) a Fund within the meaning of
                                              Holdings held by a Foreign Fund.                         to permit registered management
                                                                                                                                                            section 2(a)(9) of the Act. The same
                                              Applicants state that the delivery cycles                investment companies and unit
                                                                                                                                                            prohibition would apply to any Fund of
                                              currently practicable for transferring                   investment trusts (‘‘UITs’’) that are not
                                                                                                                                                            Funds Sub-Adviser, any person
                                              Redemption Instruments to redeeming                      advised or sponsored by the Adviser,
                                                                                                                                                            controlling, controlled by or under
                                              investors, coupled with local market                     and not part of the same ‘‘group of
                                                                                                                                                            common control with the Fund of
                                              holiday schedules, may require a                         investment companies,’’ as defined in
                                                                                                                                                            Funds Sub-Adviser, and any investment
                                              delivery process of up to fourteen (14)                  section 12(d)(1)(G)(ii) of the Act as the
                                                                                                                                                            company or issuer that would be an
                                              calendar days. Accordingly, with                         Funds (such management investment
                                                                                                       companies are referred to as ‘‘Investing             investment company but for sections
                                              respect to Foreign Funds only,
                                                                                                       Management Companies,’’ such UITs                    3(c)(1) or 3(c)(7) of the Act (or portion
                                              applicants hereby request relief under
                                                                                                       are referred to as ‘‘Investing Trusts,’’             of such investment company or issuer)
                                              section 6(c) from the requirement
                                                                                                       and Investing Management Companies                   advised or sponsored by the Fund of
                                              imposed by section 22(e) to allow
                                                                                                       and Investing Trusts are collectively                Funds Sub-Adviser or any person
                                              Foreign Funds to pay redemption
                                                                                                       referred to as ‘‘Funds of Funds’’), to               controlling, controlled by or under
                                              proceeds within fourteen calendar days
                                                                                                       acquire Shares beyond the limits of                  common control with the Fund of
                                              following the tender of Creation Units
                                              for redemption.23                                        section 12(d)(1)(A) of the Act; and the              Funds Sub-Adviser (‘‘Fund of Funds’
                                                 8. Applicants believe that Congress                   Funds, and any principal underwriter                 Sub-Advisory Group’’).
                                              adopted section 22(e) to prevent                                                                                15. Applicants propose other
                                                                                                       for the Funds, and/or any Broker
                                              unreasonable, undisclosed or                                                                                  conditions to limit the potential for
                                                                                                       registered under the Exchange Act, to
                                              unforeseen delays in the actual payment                                                                       undue influence over the Funds,
                                                                                                       sell Shares to Funds of Funds beyond
                                              of redemption proceeds. Applicants                                                                            including that no Fund of Funds or
                                                                                                       the limits of section 12(d)(1)(B) of the
                                              propose that allowing redemption                                                                              Fund of Funds Affiliate (except to the
                                                                                                       Act.
                                              payments for Creation Units of a Foreign                    12. Each Investing Management                     extent it is acting in its capacity as an
                                              Fund to be made within fourteen                          Company will be advised by an                        investment adviser to a Fund) will cause
                                              calendar days would not be inconsistent                  investment adviser within the meaning                a Fund to purchase a security in an
                                              with the spirit and intent of section                    of section 2(a)(20)(A) of the Act (the               offering of securities during the
                                              22(e). Applicants suggest that a                         ‘‘Fund of Funds Adviser’’) and may be                existence of an underwriting or selling
                                              redemption payment occurring within                      sub-advised by investment advisers                   syndicate of which a principal
                                              fourteen calendar days following a                       within the meaning of section                        underwriter is an Underwriting Affiliate
                                              redemption request would adequately                      2(a)(20)(B) of the Act (each, a ‘‘Fund of              24 A ‘‘Fund of Funds Affiliate’’ is a Fund of Funds
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                                              afford investor protection.                              Funds Sub-Adviser’’). Any investment                 Adviser, Fund of Funds Sub-Adviser, Sponsor,
                                                                                                       adviser to an Investing Management                   promoter, and principal underwriter of a Fund of
                                                 23 Applicants acknowledge that no relief obtained
                                                                                                       Company will be registered under the                 Funds, and any person controlling, controlled by,
                                              from the requirements of section 22(e) will affect       Advisers Act. Each Investing Trust will              or under common control with any of those entities.
                                              any obligations applicants may otherwise have                                                                 A ‘‘Fund Affiliate’’ is an investment adviser,
                                              under rule 15c6–1 under the Exchange Act                 be sponsored by a sponsor (‘‘Sponsor’’).             promoter, or principal underwriter of a Fund and
                                              requiring that most securities transactions be settled      13. Applicants submit that the                    any person controlling, controlled by or under
                                              within three business days of the trade date.            proposed conditions to the requested                 common control with any of these entities.



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                                              26112                         Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / Notices

                                              (‘‘Affiliated Underwriting’’). An                       from the Commission permitting the                    such Funds, may be deemed affiliated
                                              ‘‘Underwriting Affiliate’’ is a principal               Fund to purchase shares of other                      persons of the Trust or such Funds. In
                                              underwriter in any underwriting or                      investment companies for short-term                   addition, an investor could own 5% or
                                              selling syndicate that is an officer,                   cash management purposes. To ensure a                 more, or in excess of 25% of the
                                              director, member of an advisory board,                  Fund of Funds is aware of the terms and               outstanding shares of one or more
                                              Fund of Funds Adviser, Fund of Funds                    conditions of the requested order, the                Affiliated Funds making that investor an
                                              Sub-Adviser, employee or Sponsor of                     Fund of Funds will enter into an                      affiliated person of an affiliated person
                                              the Fund of Funds, or a person of which                 agreement with the Fund (‘‘FOF                        of the Funds.
                                              any such officer, director, member of an                Participation Agreement’’). The FOF                      20. Applicants request an exemption
                                              advisory board, Fund of Funds Adviser                   Participation Agreement will include an               from sections 17(a)(1) and 17(a)(2) of the
                                              or Fund of Funds Sub-Adviser,                           acknowledgement from the Fund of                      Act pursuant to sections 6(c) and 17(b)
                                              employee or Sponsor is an affiliated                    Funds that it may rely on the order only              of the Act to permit persons that are
                                              person (except that any person whose                    to invest in the Funds and not in any                 affiliated persons of the Funds, or an
                                              relationship to the Fund is covered by                  other investment company.                             affiliated person of such affiliated
                                              section 10(f) of the Act is not an                        18. Applicants also note that a Fund                person of the Funds, solely by virtue of
                                              Underwriting Affiliate).                                may choose to reject a direct purchase                one or more of the following: (a)
                                                 16. Applicants do not believe that the               of Shares in Creation Units by a Fund                 Holding 5% or more, or in excess of
                                              proposed arrangement will involve                       of Funds. To the extent that a Fund of                25%, of the outstanding Shares of one
                                              excessive layering of fees. The board of                Funds purchases Shares in the                         or more Funds; (b) an affiliation with a
                                              directors or trustees of any Investing                  secondary market, a Fund would still                  person with an ownership interest
                                              Management Company, including a                         retain its ability to reject any initial              described in (a); or (c) holding 5% or
                                              majority of the directors or trustees who               investment by a Fund of Funds in                      more, or more than 25%, of the shares
                                              are not ‘‘interested persons’’ within the               excess of the limits of section                       of one or more Affiliated Funds, to
                                              meaning of section 2(a)(19) of the Act                  12(d)(1)(A) by declining to enter into a              effectuate purchases and redemptions
                                              (‘‘disinterested directors or trustees’’),              FOF Participation Agreement with the                  ‘‘in-kind.’’
                                              will find that the advisory fees charged                Fund of Funds.                                           21. Applicants assert that no useful
                                              under the contract are based on services                                                                      purpose would be served by prohibiting
                                                                                                      Sections 17(a)(1) and (2) of the Act                  such affiliated persons from making ‘‘in-
                                              provided that will be in addition to,
                                              rather than duplicative of, services                       19. Sections 17(a)(1) and (2) of the Act           kind’’ purchases or ‘‘in-kind’’
                                              provided under the advisory contract of                 generally prohibit an affiliated person of            redemptions of Shares of a Fund in
                                              any Fund in which the Investing                         a registered investment company, or an                Creation Units. Both the deposit
                                              Management Company may invest. In                       affiliated person of such a person, from              procedures for ‘‘in-kind’’ purchases of
                                              addition, under condition B.5., a Fund                  selling any security to or purchasing any             Creation Units and the redemption
                                              of Funds Adviser, or a Fund of Funds’                   security from the company. Section                    procedures for ‘‘in-kind’’ redemptions of
                                              trustee or Sponsor, as applicable, will                 2(a)(3) of the Act defines ‘‘affiliated               Creation Units will be effected in
                                              waive fees otherwise payable to it by the               person’’ of another person to include (a)             exactly the same manner for all
                                              Fund of Funds in an amount at least                     any person directly or indirectly                     purchases and redemptions, regardless
                                              equal to any compensation (including                    owning, controlling or holding with                   of size or number. There will be no
                                              fees received pursuant to any plan                      power to vote 5% or more of the                       discrimination between purchasers or
                                              adopted by a Fund under rule 12b–1                      outstanding voting securities of the                  redeemers. Deposit Instruments and
                                              under the Act) received from a Fund by                  other person, (b) any person 5% or more               Redemption Instruments for each Fund
                                              the Fund of Funds Adviser, trustee or                   of whose outstanding voting securities                will be valued in the identical manner
                                              Sponsor or an affiliated person of the                  are directly or indirectly owned,                     as those Portfolio Holdings currently
                                              Fund of Funds Adviser, trustee or                       controlled or held with the power to                  held by such Fund and the valuation of
                                              Sponsor, other than any advisory fees                   vote by the other person, and (c) any                 the Deposit Instruments and
                                              paid to the Fund of Funds Adviser,                      person directly or indirectly controlling,            Redemption Instruments will be made
                                              trustee or Sponsor or its affiliated                    controlled by or under common control                 in an identical manner regardless of the
                                              person by a Fund, in connection with                    with the other person. Section 2(a)(9) of             identity of the purchaser or redeemer.
                                              the investment by the Fund of Funds in                  the Act defines ‘‘control’’ as the power              Applicants do not believe that ‘‘in-kind’’
                                                                                                      to exercise a controlling influence over              purchases and redemptions will result
                                              the Fund. Applicants state that any sales
                                                                                                      the management or policies of a                       in abusive self-dealing or overreaching,
                                              charges and/or service fees charged with
                                                                                                      company, and provides that a control                  but rather assert that such procedures
                                              respect to shares of a Fund of Funds
                                                                                                      relationship will be presumed where                   will be implemented consistently with
                                              will not exceed the limits applicable to
                                                                                                      one person owns more than 25% of a                    each Fund’s objectives and with the
                                              a fund of funds as set forth in NASD
                                                                                                      company’s voting securities. The Funds                general purposes of the Act. Applicants
                                              Conduct Rule 2830.25
                                                 17. Applicants submit that the                       may be deemed to be controlled by the                 believe that ‘‘in-kind’’ purchases and
                                                                                                      Adviser or an entity controlling,                     redemptions will be made on terms
                                              proposed arrangement will not create an
                                                                                                      controlled by or under common control                 reasonable to Applicants and any
                                              overly complex fund structure.
                                                                                                      with the Adviser and hence affiliated                 affiliated persons because they will be
                                              Applicants note that no Fund will
                                                                                                      persons of each other. In addition, the               valued pursuant to verifiable objective
                                              acquire securities of any investment
                                                                                                      Funds may be deemed to be under                       standards. The method of valuing
                                              company or company relying on section
                                                                                                      common control with any other                         Portfolio Holdings held by a Fund is
                                              3(c)(1) or 3(c)(7) of the Act in excess of
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                                                                                                      registered investment company (or                     identical to that used for calculating
                                              the limits contained in section
                                                                                                      series thereof) advised by an Adviser or              ‘‘in-kind’’ purchase or redemption
                                              12(d)(1)(A) of the Act, except to the
                                                                                                      an entity controlling, controlled by or               values and therefore creates no
                                              extent permitted by exemptive relief
                                                                                                      under common control with an Adviser                  opportunity for affiliated persons or
                                                25 Any references to NASD Conduct Rule 2830           (an ‘‘Affiliated Fund’’). Any investor,               affiliated persons of affiliated persons of
                                              include any successor or replacement FINRA rule         including Market Makers, owning 5% or                 applicants to effect a transaction
                                              to NASD Conduct Rule 2830.                              holding in excess of 25% of the Trust or              detrimental to the other holders of


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                                                                             Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / Notices                                             26113

                                              Shares of that Fund. Similarly,                         with the general purposes of the Act and              decrease in the outstanding voting
                                              applicants submit that, by using the                    are appropriate in the public interest.               securities of a Fund, the Fund of Funds’
                                              same standards for valuing Portfolio                                                                          Advisory Group or the Fund of Funds’
                                                                                                      Applicants’ Conditions
                                              Holdings held by a Fund as are used for                                                                       Sub-Advisory Group, each in the
                                              calculating ‘‘in-kind’’ redemptions or                    Applicants agree that any order of the              aggregate, becomes a holder of more
                                              purchases, the Fund will ensure that its                Commission granting the requested                     than 25 percent of the outstanding
                                              NAV will not be adversely affected by                   relief will be subject to the following               voting securities of a Fund, it will vote
                                              such securities transactions. Applicants                conditions:                                           its Shares of the Fund in the same
                                              also note that the ability to take deposits             A. ETF Relief                                         proportion as the vote of all other
                                              and make redemptions ‘‘in-kind’’ will                                                                         holders of the Fund’s Shares. This
                                              help each Fund to track closely its                        1. The requested relief to permit ETF              condition does not apply to the Fund of
                                              Underlying Index and therefore aid in                   operations will expire on the effective               Funds’ Sub-Advisory Group with
                                              achieving the Fund’s objectives.                        date of any Commission rule under the                 respect to a Fund for which the Fund of
                                                 22. Applicants also seek relief under                Act that provides relief permitting the               Funds’ Sub-Adviser or a person
                                              sections 6(c) and 17(b) from section                    operation of index-based ETFs.                        controlling, controlled by or under
                                              17(a) to permit a Fund that is an                          2. As long as a Fund operates in                   common control with the Fund of
                                              affiliated person, or an affiliated person              reliance on the requested order, the                  Funds’ Sub-Adviser acts as the
                                              of an affiliated person, of a Fund of                   Shares of such Fund will be listed on an              investment adviser within the meaning
                                              Funds to sell its Shares to and redeem                  Exchange.                                             of section 2(a)(20)(A) of the Act.
                                              its Shares from a Fund of Funds, and to                    3. Neither the Trust nor any Fund will
                                                                                                                                                               2. No Fund of Funds or Fund of
                                              engage in the accompanying in-kind                      be advertised or marketed as an open-
                                                                                                                                                            Funds Affiliate will cause any existing
                                              transactions with the Fund of Funds.26                  end investment company or a mutual
                                                                                                                                                            or potential investment by the Fund of
                                              Applicants state that the terms of the                  fund. Any advertising material that
                                                                                                                                                            Funds in a Fund to influence the terms
                                              transactions are fair and reasonable and                describes the purchase or sale of
                                                                                                                                                            of any services or transactions between
                                              do not involve overreaching. Applicants                 Creation Units or refers to redeemability
                                                                                                                                                            the Fund of Funds or Fund of Funds
                                              note that any consideration paid by a                   will prominently disclose that Shares
                                                                                                                                                            Affiliate and the Fund or a Fund
                                              Fund of Funds for the purchase or                       are not individually redeemable and
                                                                                                                                                            Affiliate.
                                              redemption of Shares directly from a                    that owners of Shares may acquire those
                                                                                                      Shares from the Fund and tender those                    3. The board of directors or trustees of
                                              Fund will be based on the NAV of the
                                                                                                      Shares for redemption to a Fund in                    an Investing Management Company,
                                              Fund.27 Applicants believe that any
                                                                                                      Creation Units only.                                  including a majority of the disinterested
                                              proposed transactions directly between
                                                                                                         4. The Web site, which is and will be              directors or trustees, will adopt
                                              the Funds and Funds of Funds will be
                                                                                                      publicly accessible at no charge, will                procedures reasonably designed to
                                              consistent with the policies of each
                                                                                                      contain, on a per Share basis for each                ensure that the Fund of Funds Adviser
                                              Fund of Funds. The purchase of
                                                                                                      Fund, the prior Business Day’s NAV and                and Fund of Funds Sub-Adviser are
                                              Creation Units by a Fund of Funds
                                              directly from a Fund will be                            the market closing price or the midpoint              conducting the investment program of
                                              accomplished in accordance with the                     of the bid/ask spread at the time of the              the Investing Management Company
                                              investment restrictions of any such                     calculation of such NAV (‘‘Bid/Ask                    without taking into account any
                                              Fund of Funds and will be consistent                    Price’’), and a calculation of the                    consideration received by the Investing
                                              with the investment policies set forth in               premium or discount of the market                     Management Company or a Fund of
                                              the Fund of Funds’ registration                         closing price or Bid/Ask Price against                Funds Affiliate from a Fund or Fund
                                              statement. Applicants also state that the               such NAV.                                             Affiliate in connection with any services
                                              proposed transactions are consistent                       5. Each Self-Indexing Fund, Long/                  or transactions.
                                                                                                      Short Fund and 130/30 Fund will post                     4. Once an investment by a Fund of
                                                 26 Although applicants believe that most Funds of    on the Web site on each Business Day,                 Funds in the securities of a Fund
                                              Funds will purchase Shares in the secondary             before commencement of trading of                     exceeds the limits in section
                                              market and will not purchase Creation Units                                                                   12(d)(1)(A)(i) of the Act, the Board of
                                              directly from a Fund, a Fund of Funds might seek
                                                                                                      Shares on the Exchange, the Fund’s
                                              to transact in Creation Units directly with a Fund      Portfolio Holdings.                                   the Fund, including a majority of the
                                              that is an affiliated person of a Fund of Funds. To        6. No Adviser or any Sub-Adviser to                directors or trustees who are not
                                              the extent that purchases and sales of Shares occur     a Self-Indexing Fund, directly or                     ‘‘interested persons’’ within the
                                              in the secondary market and not through principal                                                             meaning of section 2(a)(19) of the Act
                                              transactions directly between a Fund of Funds and
                                                                                                      indirectly, will cause any Authorized
                                              a Fund, relief from section 17(a) would not be          Participant (or any investor on whose                 (‘‘non-interested Board members’’), will
                                              necessary. However, the requested relief would          behalf an Authorized Participant may                  determine that any consideration paid
                                              apply to direct sales of Shares in Creation Units by    transact with the Self-Indexing Fund) to              by the Fund to the Fund of Funds or a
                                              a Fund to a Fund of Funds and redemptions of                                                                  Fund of Funds Affiliate in connection
                                              those Shares. Applicants are not seeking relief from    acquire any Deposit Instrument for the
                                              section 17(a) for, and the requested relief will not    Self-Indexing Fund through a                          with any services or transactions: (i) Is
                                              apply to, transactions where a Fund could be            transaction in which the Self-Indexing                fair and reasonable in relation to the
                                              deemed an affiliated person, or an affiliated person    Fund could not engage directly.                       nature and quality of the services and
                                              of an affiliated person of a Fund of Funds because
                                              an Adviser or an entity controlling, controlled by
                                                                                                                                                            benefits received by the Fund; (ii) is
                                                                                                      B. Fund of Funds Relief                               within the range of consideration that
                                              or under common control with an Adviser provides
                                              investment advisory services to that Fund of Funds.        1. The members of a Fund of Funds’                 the Fund would be required to pay to
                                                 27 Applicants acknowledge that the receipt of
                                                                                                      Advisory Group will not control                       another unaffiliated entity in connection
                                              compensation by (a) an affiliated person of a Fund
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                                                                                                      (individually or in the aggregate) a Fund             with the same services or transactions;
                                              of Funds, or an affiliated person of such person, for
                                              the purchase by the Fund of Funds of Shares of a        within the meaning of section 2(a)(9) of              and (iii) does not involve overreaching
                                              Fund or (b) an affiliated person of a Fund, or an       the Act. The members of a Fund of                     on the part of any person concerned.
                                              affiliated person of such person, for the sale by the   Funds’ Sub-Advisory Group will not                    This condition does not apply with
                                              Fund of its Shares to a Fund of Funds, may be
                                              prohibited by section 17(e)(1) of the Act. The FOF
                                                                                                      control (individually or in the aggregate)            respect to any services or transactions
                                              Participation Agreement also will include this          a Fund within the meaning of section                  between a Fund and its investment
                                              acknowledgment.                                         2(a)(9) of the Act. If, as a result of a              adviser(s), or any person controlling,


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                                              26114                         Federal Register / Vol. 80, No. 87 / Wednesday, May 6, 2015 / Notices

                                              controlled by or under common control                   compares to the performance of                        less than six years thereafter, the first
                                              with such investment adviser(s).                        comparable securities purchased during                two years in an easily accessible place.
                                                 5. The Fund of Funds Adviser, or                     a comparable period of time in                           10. Before approving any advisory
                                              trustee or Sponsor of an Investing Trust,               underwritings other than Affiliated                   contract under section 15 of the Act, the
                                              as applicable, will waive fees otherwise                Underwritings or to a benchmark such                  board of directors or trustees of each
                                              payable to it by the Fund of Funds in                   as a comparable market index; and (iii)               Investing Management Company
                                              an amount at least equal to any                         whether the amount of securities                      including a majority of the disinterested
                                              compensation (including fees received                   purchased by the Fund in Affiliated                   directors or trustees, will find that the
                                              pursuant to any plan adopted by a Fund                  Underwritings and the amount                          advisory fees charged under such
                                              under rule 12b–l under the Act)                         purchased directly from an                            contract are based on services provided
                                              received from a Fund by the Fund of                     Underwriting Affiliate have changed                   that will be in addition to, rather than
                                              Funds Adviser, or trustee or Sponsor of                 significantly from prior years. The                   duplicative of, the services provided
                                              the Investing Trust, or an affiliated                   Board will take any appropriate actions               under the advisory contract(s) of any
                                              person of the Fund of Funds Adviser, or                 based on its review, including, if                    Fund in which the Investing
                                              trustee or Sponsor of the Investing                     appropriate, the institution of                       Management Company may invest.
                                              Trust, other than any advisory fees paid                procedures designed to ensure that                    These findings and their basis will be
                                              to the Fund of Funds Adviser, or trustee                purchases of securities in Affiliated                 fully recorded in the minute books of
                                              or Sponsor of an Investing Trust, or its                Underwritings are in the best interest of             the appropriate Investing Management
                                              affiliated person by the Fund, in                       shareholders of the Fund.                             Company.
                                              connection with the investment by the                      8. Each Fund will maintain and                        11. Any sales charges and/or service
                                              Fund of Funds in the Fund. Any Fund                     preserve permanently in an easily                     fees charged with respect to shares of a
                                              of Funds Sub-Adviser will waive fees                    accessible place a written copy of the                Fund of Funds will not exceed the
                                              otherwise payable to the Fund of Funds                  procedures described in the preceding                 limits applicable to a fund of funds as
                                              Sub-Adviser, directly or indirectly, by                 condition, and any modifications to                   set forth in NASD Conduct Rule 2830.
                                              the Investing Management Company in                     such procedures, and will maintain and                   12. No Fund will acquire securities of
                                              an amount at least equal to any                         preserve for a period of not less than six            an investment company or company
                                              compensation received from a Fund by                    years from the end of the fiscal year in              relying on section 3(c)(1) or 3(c)(7) of
                                              the Fund of Funds Sub-Adviser, or an                    which any purchase in an Affiliated                   the Act in excess of the limits contained
                                              affiliated person of the Fund of Funds                  Underwriting occurred, the first two                  in section 12(d)(1)(A) of the Act, except
                                              Sub-Adviser, other than any advisory                    years in an easily accessible place, a                to the extent the Fund acquires
                                              fees paid to the Fund of Funds Sub-                     written record of each purchase of                    securities of another investment
                                              Adviser or its affiliated person by the                 securities in Affiliated Underwritings                company pursuant to exemptive relief
                                              Fund, in connection with the                            once an investment by a Fund of Funds                 from the Commission permitting the
                                              investment by the Investing                             in the securities of the Fund exceeds the             Fund to acquire securities of one or
                                              Management Company in the Fund                          limit of section 12(d)(1)(A)(i) of the Act,           more investment companies for short-
                                              made at the direction of the Fund of                    setting forth from whom the securities                term cash management purposes.
                                              Funds Sub-Adviser. In the event that the                were acquired, the identity of the
                                              Fund of Funds Sub-Adviser waives fees,                  underwriting syndicate’s members, the                   For the Commission, by the Division of
                                              the benefit of the waiver will be passed                terms of the purchase, and the                        Investment Management, under delegated
                                                                                                                                                            authority.
                                              through to the Investing Management                     information or materials upon which
                                              Company.                                                the Board’s determinations were made.                 Brent J. Fields,
                                                 6. No Fund of Funds or Fund of                          9. Before investing in a Fund in                   Secretary.
                                              Funds Affiliate (except to the extent it                excess of the limit in section                        [FR Doc. 2015–10586 Filed 5–5–15; 8:45 am]
                                              is acting in its capacity as an investment              12(d)(1)(A), a Fund of Funds and the                  BILLING CODE 8011–01–P
                                              adviser to a Fund) will cause a Fund to                 Trust will execute a FOF Participation
                                              purchase a security in any Affiliated                   Agreement stating, without limitation,
                                              Underwriting.                                           that their respective boards of directors             SECURITIES AND EXCHANGE
                                                 7. The Board of a Fund, including a                  or trustees and their investment                      COMMISSION
                                              majority of the non-interested Board                    advisers, or trustee and Sponsor, as                  [Release No. IC–31589; File No. 812–14382]
                                              members, will adopt procedures                          applicable, understand the terms and
                                              reasonably designed to monitor any                      conditions of the order, and agree to                 TCW Direct Lending LLC, et al.; Notice
                                              purchases of securities by the Fund in                  fulfill their responsibilities under the              of Application
                                              an Affiliated Underwriting, once an                     order. At the time of its investment in
                                              investment by a Fund of Funds in the                    Shares of a Fund in excess of the limit               April 30, 2015.
                                              securities of the Fund exceeds the limit                in section 12(d)(1)(A)(i), a Fund of                  AGENCY:  Securities and Exchange
                                              of section 12(d)(1)(A)(i) of the Act,                   Funds will notify the Fund of the                     Commission (‘‘Commission’’).
                                              including any purchases made directly                   investment. At such time, the Fund of                 ACTION: Notice of application for an
                                              from an Underwriting Affiliate. The                     Funds will also transmit to the Fund a                order under sections 17(d) and 57(i) of
                                              Board will review these purchases                       list of the names of each Fund of Funds               the Investment Company Act of 1940
                                              periodically, but no less frequently than               Affiliate and Underwriting Affiliate. The             (the ‘‘Act’’) and rule 17d–1 under the
                                              annually, to determine whether the                      Fund of Funds will notify the Fund of                 Act permitting certain joint transactions
                                              purchases were influenced by the                        any changes to the list of the names as               otherwise prohibited by sections 17(d)
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                                              investment by the Fund of Funds in the                  soon as reasonably practicable after a                and 57(a)(4) of the Act and under rule
                                              Fund. The Board will consider, among                    change occurs. The Fund and the Fund                  17d–1 under the Act.
                                              other things: (i) Whether the purchases                 of Funds will maintain and preserve a
                                              were consistent with the investment                     copy of the order, the FOF Participation                Summary of Application: Applicants
                                              objectives and policies of the Fund; (ii)               Agreement, and the list with any                      request an order to permit a business
                                              how the performance of securities                       updated information for the duration of               development company (‘‘BDC’’) and
                                              purchased in an Affiliated Underwriting                 the investment and for a period of not                certain closed end investment


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Document Created: 2015-12-16 07:41:40
Document Modified: 2015-12-16 07:41:40
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the ``Act'') for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) for an exemption from sections 12(d)(1)(A) and 12(d)(1)(B) of the Act.
DatesThe application was filed on November 6, 2014 and amended on April 1, 2015 and April 29, 2015.
ContactJaea F. Hahn, Senior Counsel, at (202) 551-6870, or David P. Bartels, Branch Chief, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
FR Citation80 FR 26106 

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