NETS Trust, et al.; Application

Federal Register: February 28, 2008 (Volume 73, Number 40)

Notices

Page 10828-10835

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr28fe08-107

SECURITIES AND EXCHANGE COMMISSION

Investment Company Act Release No. 28166; 812-13444

NETS Trust, et al.; Notice of Application

February 25, 2008.

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), 22(e), and 24(d) of the Act and rule 22c-1 under the Act, under section 12(d)(1)(J) 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 (a)(2) of the Act.

Summary of Application: Applicants request an order that would permit

(a) certain open-end management investment companies and their series, to issue shares (``NETS'') that can be redeemed only in large aggregations (``Creation Units''); (b) secondary market transactions in

NETS to occur at negotiated prices; (c) dealers to sell NETS to purchasers in the secondary market unaccompanied by a prospectus when prospectus delivery is not required by the Securities Act of 1933

(``Securities Act''); (d) certain series to pay redemption proceeds, under certain circumstances, more than seven days after the tender of

NETS for redemption; (e) 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 (f) certain registered management investment companies and unit investment trusts outside of the same group of investment companies as the series to acquire NETS.

Applicants: NETS Trust (``Trust''), Northern Trust Investments, N.A.

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(``Adviser'') and Foreside Fund Services, LLC (``Distributor'').

Filing Dates: The application was filed on November 1, 2007 and amended on February 13, 2008. Applicants have agreed to file an amendment during the notice period, the substance of which is reflected in this notice.

Hearing or Notification of Hearing: An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on March 14, 2008, and should be accompanied by proof of service on applicants, in the form of an affidavit, or for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street,

NE., Washington, DC 20549-1090; Applicants, c/o Peter K. Ewing,

Northern Trust Global Investments, 65 East 55th Street, 24th Floor, New

York, New York 10022.

FOR FURTHER INFORMATION CONTACT: Emerson S. Davis, Sr., Senior Counsel at (202) 551-6812, or Julia Kim Gilmer, Branch Chief, at (202) 551-6821

(Division of Investment Management, Office of Investment Company

Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the application. The complete application may be obtained for a fee at the

Public Reference Desk, U.S. Securities and Exchange Commission, 100 F

Street, NE., Washington DC 20549-0102, telephone (202) 551-5850.

Applicants' Representations 1. The Trust is registered as an open-end management investment company and is organized as a Delaware statutory trust that will offer multiple series. The Trust will initially offer NETS of twenty-three series (``Initial Funds''), each of which will track an equity securities index (``Underlying Index'').\1\ Applicants may offer additional investment companies in the future as well as additional series of the Trust and series of any existing or future open-end investment companies registered under the Act (``Future Funds'' and together with the Initial Funds, the ``Funds'').\2\

\1\ The Initial Funds are: NETS BEL 20 Index Fund (Belgium),

NETS Hang Seng China Enterprises Index Fund, NETS CAC40 Index Fund

(France), NETS DAX Index Fund (Germany), NETS Dow Jones Wilshire

Global ex-US Index Fund, NETS Dow Jones Wilshire Global Total Market

Index Fund, NETS Hang Seng Index Fund (Hong Kong), NETS ISEQ 20

Index Fund (Ireland), NETS TA-25 Index Fund (Israel), NETS TOPIX

Index Fund (Japan), NETS Tokyo Stock Exchange REIT Index Fund

(Japan), NETS FTSE Bursa Malaysia 100 Index Fund, NETS AEX-index

Fund (The Netherlands), NETS PSI 20 Index Fund (Portugal), NETS FTSE

Singapore Straits Times Index Fund, NETS FTSE/JSE Top 40 Index Fund

(South Africa), NETS TSEC Taiwan 50 Index Fund, NETS FTSE 100 Index

Fund (United Kingdom), NETS Dow Jones Wilshire 4500 Index Fund, NETS

S&P/ASX 200 Index Fund (Australia), NETS S&P/MIB Index Fund (Italy),

NETS RTS Index Fund (Russia) and NETS FTSE SET 30 Index Fund

(Thailand).

\2\ 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 application. Any Future Fund will be advised by the Adviser or an entity controlled by or under common control with the Adviser.

2. The Adviser is registered as an investment adviser under the

Investment Advisers Act of 1940, as amended (the ``Advisers Act'') and will serve as the investment adviser to each of the Initial Funds. In the future, the Adviser may enter into sub-advisory agreements with other investment advisers to act as sub-advisers to particular Funds

(``Sub-Advisers''). Each Sub-Adviser will be registered under the

Advisers Act. The Distributor is a broker-dealer registered under the

Securities Exchange Act of 1934 (the ``Exchange Act'') and will act as the principal underwriter and distributor for the Creation Units of

NETS. The Distributor is not affiliated with the Adviser or any Sub-

Adviser. 3. Each Fund will hold certain equity securities (``Portfolio

Securities'') selected to correspond, before fees and expenses, generally to the price and yield performance of an Underlying Index.

Certain of the Underlying Indices are composed of equity securities of domestic issuers and non-domestic issuers meeting the requirements for trading in U.S. markets (``Domestic Indices''). Other Underlying

Indices are composed of foreign equity securities (``Foreign

Indices''). Funds which track Domestic Indices are referred to as

``Domestic Funds'' and Funds which track Foreign Indices are referred to as ``Foreign Funds.'' No entity that creates, compiles, sponsors or maintains an Underlying Index (``Index Provider'') is or will be an affiliated person, as defined in section 2(a)(3) of the Act, or an affiliated person of an affiliated person, of the Trust or a Fund, the

Adviser, any Sub-Adviser to or promoter of a Fund, or the Distributor. 4. The investment objective of each Fund will be to provide investment results that correspond, before fees and expenses, generally to the price and yield performance of its Underlying Index. Intra-day values of the Underlying Index will be disseminated every 15 seconds throughout the trading day. A Fund will utilize either a replication or representative sampling strategy which will be disclosed with regard to each Fund in its prospectus.\3\ A Fund using a replication strategy will invest in the Component Securities in its Underlying Index in approximately the same proportions as in the Underlying Index. In certain circumstances, such as when there are practical difficulties or substantial costs involved in holding every security in an Underlying

Index or when a Component Security is less liquid, illiquid or unavailable, a Fund may use a representative sampling strategy pursuant to which it will invest in some, but not all of the Component

Securities of its Underlying Index.\4\ Applicants anticipate that a

Fund that utilizes a representative sampling strategy will not track the performance of its Underlying Index with the same degree of accuracy as an investment vehicle that invests in every Component

Security of the Underlying Index with the same weighting as the

Underlying Index. Applicants expect that each Fund will have a tracking error relative to the performance of its Underlying Index of less than 5 percent.

\3\ Applicants represent that each Fund will invest at least 90% of its total assets in the component securities that comprise its

Underlying Index (``Component Securities'') or, in the case of

Foreign Funds, Component Securities and depositary receipts representing such securities. ``Depositary Receipts'' will typically be American Depositary Receipts, but may include Global Depositary

Receipts and Euro Depositary Receipts. Each Fund also may invest up to 10% of its assets in certain futures, options and swap contracts, cash and cash equivalents, as well as in stocks not included in its

Underlying Index, but which the Adviser or Sub-Adviser believes will help the Fund track its Underlying Index.

\4\ Under the representative sampling strategy, the Adviser will seek to construct a Fund's portfolio so that its market capitalization, industry weightings, fundamental investment characteristics (such as return variability, earnings valuation and yield) and liquidity measures perform like those of the Underlying

Index.

5. Creation Units are expected to range between 25,000 to 100,000

NETS as will be clearly stated in the relevant Fund's prospectus

(``Prospectus''). Applicants expect that the initial price of a

Creation Unit will fall in the range of $1,000,000 to $10,000,000. All orders to purchase Creation Units must be placed with the Distributor, by or

Page 10830

through a party that has entered into an agreement with the Distributor

(``Authorized Participant''). The Distributor will be responsible for transmitting the orders to the Funds. An Authorized Participant must be either: (a) A broker-dealer or other participant in the continuous net settlement system of the National Securities Clearing Corporation

(``NSCC''), a clearing agency registered with the Commission, or (b) a participant in the Depository Trust Company (``DTC'', and such participant, ``DTC Participant''). NETS of each Fund generally will be sold in Creation Units in exchange for an in-kind deposit by the purchaser of a portfolio of securities designated by the Adviser or

Sub-Adviser to correspond generally to the price and yield performance of the relevant Underlying Index (the ``Deposit Securities''), together with the deposit of a specified cash payment (``Balancing Amount'').

The Balancing Amount is an amount equal to the difference between (a) the net asset value (``NAV'') (per Creation Unit) of a Fund and (b) the total aggregate market value (per Creation Unit) of the Deposit

Securities.\5\ Each Fund may permit a purchaser of Creation Units to substitute cash in lieu of depositing some or all of the Deposit

Securities if the Adviser or Sub-Adviser believes such method would reduce the Fund's transaction costs or enhance the Fund's operating efficiency.\6\

\5\ Each Fund will sell and redeem Creation Units only on a

``Business Day'' which is defined as any day that the New York Stock

Exchange, the Listing Exchange (defined below), and the custodian of a Fund are open for business, and includes any day that a Fund is required to be open under section 22(e) of the Act. Each Business

Day, prior to the opening of trading on the Listing Exchange

(defined below), the list of names and amount of each security constituting the current Deposit Securities and the Balancing Amount will be made available. Any national securities exchange (as defined in section 2(a)(26) of the Act) (``Exchange'') on which NETS are listed (``Listing Exchange'') will disseminate, every 15 seconds during its regular trading hours, through the facilities of the

Consolidated Tape Association, an amount per individual NETS representing the sum of the estimated Balancing Amount and the current value of the Deposit Securities.

\6\ Applicants state that in some circumstances or in certain countries, it may not be practicable or convenient, or permissible under the laws of certain countries or the regulations of certain foreign stock exchanges, for a Foreign Fund to operate exclusively on an ``in-kind'' basis. Applicants also note that when a substantial rebalancing of a Fund's portfolio is required, the

Adviser or Sub-Adviser might prefer to receive cash rather than stocks so that the Fund may avoid transaction costs involved in liquidating part of its portfolio to achieve the rebalancing.

6. An investor purchasing or redeeming a Creation Unit from a Fund will be charged a fee (``Transaction Fee'') to prevent the dilution of the interests of the remaining shareholders resulting from costs in connection with the purchase or redemption of Creation Units.\7\ The maximum Transaction Fees relevant to each Fund and the method of calculating such Transaction Fees will be fully disclosed in the

Prospectus of such Fund or statement of additional information

(``SAI''). The Distributor also will be responsible for delivering the

Fund's Prospectus to those persons purchasing 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 NETS.

\7\ Where a Fund permits a purchaser to substitute cash in lieu of depositing a portion of the requisite Deposit Securities, the purchaser may be assessed a higher Transaction Fee to cover the cost of purchasing such Deposit Securities, including operational processing and brokerage costs, and part or all of the spread between the expected bid and the offer side of the market relating to such Deposit Securities.

7. Purchasers of NETS in Creation Units may hold such NETS or may sell such NETS into the secondary market. NETS will be listed and traded on an Exchange. It is expected that one or more member firms of a Listing Exchange will be designated to act as a specialist

(``Specialist'') or a market maker (``Market Maker'') and maintain a market for NETS trading on the Listing Exchange. Prices of NETS trading on an Exchange will be based on the current bid/ask market. NETS sold in the secondary market will be subject to customary brokerage commissions and charges. 8. Applicants expect that purchasers of Creation Units will include institutional investors and arbitrageurs (which could include institutional investors). A Specialist or Market Maker, in providing a fair and orderly secondary market for the NETS, also may purchase

Creation Units for use in its market-making activities. Applicants expect that secondary market purchasers of NETS will include both institutional investors and retail investors.\8\ Applicants expect that the price at which NETS trade will be disciplined by arbitrage opportunities created by the option to continually purchase or redeem

Creation Units at their NAV, which should ensure that NETS will not trade at a material discount or premium in relation to their NAV.

\8\ NETS will be registered in book-entry form only. DTC or its nominee will be the registered owner of all outstanding NETS. DTC or

DTC Participants will maintain records reflecting beneficial owners of NETS.

9. NETS will not be individually redeemable, and owners of NETS may acquire those NETS from the Fund, or tender such NETS for redemption to the Fund, in Creation Units only. To redeem, an investor will have to accumulate enough NETS to constitute a Creation Unit. Redemption orders must be placed by or through an Authorized Participant. An investor redeeming a Creation Unit generally will receive (a) Portfolio

Securities designated to be delivered for Creation Unit redemptions

(``Fund Securities'') on the date that the request for redemption is submitted \9\ and (b) a ``Cash Redemption Payment,'' consisting of an amount calculated in the same manner as the Balancing Amount, although the actual amount of the Cash Redemption Payment may differ if the Fund

Securities are not identical to the Deposit Securities on that day. An investor may receive the cash equivalent of a Fund Security in certain circumstances, such as if the investor is constrained from effecting transactions in the security by regulation or policy.

\9\ As a general matter, the Deposit Securities and Fund

Securities will correspond pro rata to the Portfolio Securities held by each Fund, but Fund Securities received on redemption may not always be identical to Deposit Securities deposited in connection with the purchase of Creation Units for the same day. The Funds will comply with the federal securities laws in accepting Deposit

Securities and satisfying redemptions with Fund Securities, including that the Deposit Securities and Fund Securities are sold in transactions that would be exempt from registration under the

Securities Act.

10. No Fund will be marketed or otherwise held out as a traditional open-end investment company or a mutual fund. Instead, each Fund will be marketed as an ``ETF,'' an ``investment company,'' a ``fund,'' or a

``trust.'' All marketing materials that describe the features or method of obtaining, buying or selling Creation Units or NETS traded on an

Exchange, or refer to redeemability, will prominently disclose that

NETS are not individually redeemable and that the owners of NETS may purchase or redeem NETS from the Fund in Creation Units only. The same approach will be followed in the SAI, shareholder reports and investor educational materials issued or circulated in connection with the NETS.

The Funds will provide copies of their annual and semi-annual shareholder reports to DTC Participants for distribution to shareholders.

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),

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22(e), and 24(d) 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 his proportionate share of the issuer's current net assets, or the cash equivalent. Because NETS will not be individually redeemable, applicants request an order that would permit the Funds to register as open-end management investment companies and issue NETS that are redeemable in Creation Units only. Applicants state that investors may purchase NETS in Creation Units and redeem Creation Units from each

Fund. Applicants state that because Creation Units may always be purchased and redeemed at NAV, the market price of the NETS should not vary substantially from their 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, which is currently being offered to the public by or through a principal 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 NETS 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 NETS 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 NETS.

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 NETS to trade in the secondary market at negotiated prices. Applicants state that (a) secondary market trading in NETS does not involve a Fund as a party and will not result in dilution of an investment in NETS, 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 NETS will not lead to discrimination or preferential treatment among purchasers. Finally, applicants contend that the proposed distribution system will be orderly because competitive forces will ensure that the difference between the market price of NETS and their NAV remains narrow.

Section 24(d) of the Act 7. Section 24(d) of the Act provides, in relevant part, that the prospectus delivery exemption provided to dealer transactions by section 4(3) of the Securities Act does not apply to any transaction in a redeemable security issued by an open-end investment company.

Applicants seek relief from section 24(d) to permit dealers selling

NETS in the secondary markets to rely on the prospectus delivery exemption provided by section 4(3) of the Securities Act.\10\

\10\ Applicants state that they are not seeking relief from the prospectus delivery requirement for non-secondary market transactions, such as transactions in which an investor purchases

NETS from the Funds or an underwriter. Applicants further state that each Fund's Prospectus will caution broker-dealers and others that some activities on their part, depending on the circumstances, may result in their being deemed statutory underwriters and subject them to the prospectus delivery and liability provisions of the

Securities Act. For example, a broker-dealer firm and/or its client may be deemed a statutory underwriter if it purchases Creation Units from a Fund, breaks them down into the constituent individual NETS, and sells those NETS directly to customers, or if it chooses to couple the creation of a supply of new NETS with an active selling effort involving solicitation of secondary market demand for NETS.

Each Fund's Prospectus will state that whether a person is an underwriter depends upon all of the facts and circumstances pertaining to that person's activities. Each Fund's Prospectus will caution dealers who are not ``underwriters'' but are participating in a distribution (as contrasted to ordinary secondary market trading transactions), and thus dealing with NETS that are part of an ``unsold allotment'' within the meaning of section 4(3)(C) of the

Securities Act, that they would be unable to take advantage of the prospectus delivery exemption provided by section 4(3) of the

Securities Act.

8. Applicants state that NETS are bought and sold in the secondary market in the same manner as closed-end fund shares. Applicants note that transactions in closed-end fund shares are not subject to section 24(d), and thus closed-end fund shares are sold in the secondary market without a prospectus. Applicants contend that NETS likewise merit a reduction in the unnecessary compliance costs and regulatory burdens resulting from the imposition of the prospectus delivery obligations in the secondary market. Because NETS will be listed on an Exchange, prospective investors will have access to information about the product over and above what is normally available about an open-end security.

Applicants state that information regarding market price and volume will be continually available on a real time basis throughout the day on brokers' computer screens and other electronic services. The previous day's closing price and volume information for NETS will be published daily in the financial section of newspapers. In addition, a

Web site will

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be maintained that will include each Fund's Prospectus and SAI, the

Portfolio Securities and relevant Underlying Index for each Fund, and additional quantitative information that is updated on a daily basis, including the mid-point of the bid-ask spread at the time of the calculation of NAV (``Bid/Ask Price''),\11\ the NAV for each Fund, and information about the premiums and discounts at which the NETS have traded.

\11\ The Bid-Ask Price per individual NETS of a Fund is determined using the highest bid and the lowest offer on the Listing

Exchange.

9. Applicants will arrange for broker-dealers selling NETS in the secondary market to provide purchasers with a product description

(``Product Description'') that describes, in plain English, the relevant Fund and the NETS it issues. Applicants state that a Product

Description is not intended to substitute for a full Prospectus.

Applicants state that the Product Description will be tailored to meet the information needs of investors purchasing NETS in the secondary market.

Section 22(e) 10. 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 the Foreign Funds is contingent not only on the settlement cycle of the United States market, but also on currently practicable delivery cycles in local markets for underlying foreign securities held by the Foreign Funds.

Applicants state that local market delivery cycles for transferring

Fund Securities to redeeming investors, coupled with local market holiday schedules, will, under certain circumstances, require a delivery process longer than seven calendar days for Foreign Funds.

Applicants request relief under section 6(c) of the Act from section 22(e) to allow the Foreign Funds to pay redemption proceeds up to 14 calendar days after the tender of any Creation Units for redemption.

Except as disclosed in the relevant Foreign Fund's Prospectus and/or

SAI, applicants expect that each Foreign Fund will be able to deliver redemption proceeds within seven days.\12\ With respect to future

Foreign Funds, applicants seek the same relief from section 22(e) only to the extent that circumstances similar to those described in the application exist.

\12\ Rule 15c6-1 under the Exchange Act requires that most securities transactions be settled within three business days of the trade. Applicants acknowledge that no relief obtained from the requirements of section 22(e) will affect any obligations applicants may have under rule 15c6-1.

11. Applicants state that section 22(e) was designed to prevent unreasonable, undisclosed and unforeseen delays in the payment of redemption proceeds. Applicants assert that the requested relief will not lead to the problems that section 22(e) was designed to prevent.

Applicants state that the SAI will disclose those local holidays (over the period of at least one year following the date of the SAI), if any, that are expected to prevent the delivery of redemption proceeds in seven calendar days, and the maximum number of days needed to deliver the proceeds for the relevant Foreign Fund. 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) 12. Section 12(d)(1)(A) of the Act, in relevant part, 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 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. 13. Applicants request an exemption to permit management investment companies (``Purchasing Management Companies'') and unit investment trusts (``Purchasing Trusts'') registered under the Act that are not sponsored or advised by the Adviser or any entity controlling, controlled by, or under common control with the Adviser and are not part of the same ``group of investment companies,'' as defined in section 12(d)(1)(G)(ii) of the Act, as the Trust (collectively,

``Purchasing Funds'') to acquire shares of a Fund beyond the limits of section 12(d)(1)(A). Purchasing Funds do not include the Funds. In addition, applicants seek relief to permit a Fund or broker-dealer

(``Broker'') that is registered under the Exchange Act to sell NETS to a Purchasing Fund in excess of the limits of section 12(d)(1)(B). 14. Each Purchasing Management Company will be advised by an investment adviser within the meaning of section 2(a)(20)(A) of the Act

(the ``Purchasing Fund Adviser'') and may be sub-advised by one or more investment advisers within the meaning of section 2(a)(20)(B) of the

Act (each a ``Purchasing Fund Sub-Adviser''). Any investment adviser to a Purchasing Fund will be registered under the Advisers Act or exempt from registration. Each Purchasing Trust will be sponsored by a sponsor

(``Sponsor''). 15. Applicants submit that the proposed conditions to the requested relief adequately address the concerns underlying the limits in section 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. 16. Applicants believe that neither the Purchasing Funds nor a

Purchasing Fund Affiliate would be able to exert undue influence over the Funds.\13\ To limit the control that a Purchasing Fund may have over a Fund, applicants propose a condition prohibiting a Purchasing

Fund Adviser or a Sponsor, any person controlling, controlled by, or under common control with a Purchasing Fund 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 Purchasing Fund Adviser or Sponsor, or any person controlling, controlled by, or under common control with a Purchasing

Fund Adviser or Sponsor (``Purchasing Fund 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 Purchasing Fund Sub-Adviser, any person controlling, controlled by or under common control with the Purchasing Fund Sub-Adviser, and any

Page 10833

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 Purchasing

Fund Sub-Adviser or any person controlling, controlled by or under common control with the Purchasing Fund Sub-Adviser (``Purchasing Fund

Sub-Advisory Group''). Applicants propose other conditions to limit the potential for undue influence over the Funds, including that no

Purchasing Fund or Purchasing Fund 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 offering of securities during the existence of any underwriting or selling syndicate of which a principal underwriter is an Underwriting Affiliate (``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, Purchasing Fund

Adviser, Purchasing Fund Sub-Adviser, employee or Sponsor of a

Purchasing Fund, or a person of which any such officer, director, member of an advisory board, Purchasing Fund Adviser, Purchasing Fund

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).

\13\ A ``Purchasing Fund Affiliate'' is a Purchasing Fund

Adviser, Purchasing Fund Sub-Adviser, Sponsor, promoter, and principal underwriter of a Purchasing Fund, 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.

17. Applicants assert that the proposed conditions address any concerns regarding excessive layering of fees. The board of directors or trustees of any Purchasing 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 to the

Purchasing Management Company are based on services provided that will be in addition to, rather than duplicative of, services provided under the advisory contract(s) of any Fund in which the Purchasing Management

Company may invest. In addition, except as provided in condition 12, a

Purchasing Fund Adviser or a trustee (``Trustee'') or Sponsor of a

Purchasing Trust will, as applicable, waive fees otherwise payable to it by the Purchasing Fund 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 by the Purchasing Fund

Adviser or Trustee or Sponsor or an affiliated person of the Purchasing

Fund Adviser, Trustee or Sponsor, from the Funds in connection with the investment by the Purchasing Fund in the Fund. Applicants state that any sales loads or service fees charged with respect to shares of a

Purchasing Fund will not exceed the limits applicable to a fund of funds set forth in Conduct Rule 2830 of the National Association of

Securities Dealers (``NASD''). 18. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that no Fund may acquire securities of any investment company or company relying on sections 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. To ensure that Purchasing

Funds comply with the terms and conditions of the requested relief from section 12(d)(1), any Purchasing Fund that intends to invest in a Fund in reliance on the requested order will enter into a Purchasing Fund

Agreement between the Fund and the Purchasing Fund requiring the

Purchasing Fund to adhere to the terms and conditions of the requested order. The Purchasing Fund Agreement also will include an acknowledgement from the Purchasing Fund that it may rely on the requested order only to invest in the Funds and not in any other investment company. The Purchasing Fund Agreement will further require any Purchasing Fund that exceeds the 5% or 10% limitations in section 12(d)(1)(A)(ii) and (iii) to disclose in its prospectus that it may invest in the Funds, and to disclose, in ``plain English,'' in its prospectus the unique characteristics of the Purchasing Funds investing in the Funds, including but not limited to the expense structure and any additional expenses of investing in the Funds. 19. Applicants also note that a Fund may choose to reject a direct purchase of NETS in Creation Units by a Purchasing Fund. To the extent that a Purchasing Fund purchases NETS in the secondary market, a Fund would still retain its ability to reject initial purchases of NETS made in reliance on the requested order by declining to enter into the

Purchasing Fund Agreement prior to any investment by a Purchasing Fund in excess of the limits of section 12(d)(1)(A).

Sections 17(a)(1) and (2) of the Act 20. Section 17(a) of the Act generally prohibits an affiliated person of a registered investment company, or an affiliated person of such a person (``Second-Tier Affiliate''), from selling any security to or purchasing any security from the company. Section 2(a)(3) of the Act defines ``affiliated 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 provides that a control relationship will be presumed where one person owns more than 25% of another person's voting securities. 21. Applicants request an exemption from section 17(a) of the Act pursuant to sections 17(b) and 6(c) of the Act to permit persons to effectuate in-kind purchases and redemptions with a Fund when they are affiliated persons of the Fund or Second-Tier Affiliates solely by virtue of one or more of the following: (a) Holding 5% or more, or in excess of 25%, of the outstanding NETS of one or more Funds; (b) having 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 other registered investment companies (or series thereof) advised by the Adviser. 22. Applicants assert that no useful purpose would be served by prohibiting these types of affiliated persons from purchasing or redeeming Creation Units through ``in-kind'' transactions. The deposit procedures for both in-kind purchases and in-kind redemptions of

Creation Units will be the same for all purchases and redemptions.

Deposit Securities and Fund Securities will be valued in the same manner as Portfolio Securities. Therefore, applicants state that in- kind purchases and redemptions will afford no opportunity for the specified affiliated persons, or Second-Tier Affiliates, of a Fund to effect a transaction detrimental to other holders of NETS. Applicants also believe that in-kind purchases and redemptions will not result in self-dealing or overreaching of the Fund. 23. Applicants also seek relief from section 17(a) to permit a Fund that is an affiliated person of a Purchasing Fund because the

Purchasing Fund holds 5% or more of the NETS of the Fund to sell its

NETS to and redeem its NETS from a Purchasing Fund, and to engage in the accompanying in-kind transactions with

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the Purchasing Fund.\14\ 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 Purchasing Fund for the purchase of redemption of NETS directly from a Fund will be based on the NAV of the Fund.\15\ Applicants believe that any proposed transactions directly between the Funds and Purchasing Funds will be consistent with the policies of each Purchasing Fund. The purchase of

Creation Units by a Purchasing Fund directly from a Fund will be accomplished in accordance with the investment restrictions of any such

Purchasing Fund and will be consistent with the investment policies set forth in the Purchasing Fund's registration statement. The Purchasing

Fund Agreement will require any Purchasing Fund that purchases Creation

Units directly from a Fund to represent that the purchase of Creation

Units from a Fund by a Purchasing Fund will be accomplished in compliance with the investment restrictions of the Purchasing Fund and will be consistent with the investment policies set forth in the

Purchasing Fund's registration statement.

\14\ Applicants acknowledge that receipt of compensation by (a) an affiliated person of a Purchasing Fund, or an affiliated person of such person, for the purchase by the Purchasing Fund of NETS 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 NETS to a Purchasing

Fund may be prohibited by section 17(e)(1) of the Act. The

Purchasing Fund Agreement also will include this acknowledgment.

\15\ Applicants believe that a Purchasing Fund will purchase

NETS in the secondary market and will not purchase or redeem

Creation Units directly from a Fund. Nonetheless, a Purchasing Fund that owns 5% or more of a Fund could seek to transact in Creation

Units directly with a Fund pursuant to the section 17(a) relief requested.

Applicants' Conditions

Applicants agree that any order of granting the requested relief will be subject to the following conditions: 1. As long as the Funds operate in reliance on the requested order, the NETS will be listed on an Exchange. 2. Neither the Trust nor any Fund will be advertised or marketed as an open-end investment company or a mutual fund. Each Fund's Prospectus will prominently disclose that NETS are not individually redeemable shares and will disclose that the owners of NETS may acquire those NETS from the Fund and tender those NETS for redemption to the Fund in

Creation Units only. Any advertising material that describes the purchase or sale of Creation Units or refers to redeemability will prominently disclose that NETS are not individually redeemable, and that owners of NETS may acquire those NETS from the Fund and tender those NETS for redemption to the Fund in Creation Units only. 3. The Web site maintained for each Fund, which will be publicly accessible at no charge, will contain the following information, on a per individual NETS basis, for each Fund: (a) The prior Business Day's

NAV and the Bid/Ask Price, and a calculation of the premium or discount of the Bid/Ask Price at the time of calculation of the NAV against such

NAV; and (b) data in chart format displaying the frequency distribution of discounts and premiums of the daily Bid/Ask Price against the NAV, within appropriate ranges, for each of the four previous calendar quarters. In addition, the Product Description for each Fund will state that the Web site for the Fund has information about the premiums and discounts at which the NETS have traded. 4. The Prospectus and annual report for each Fund also will include: (a) The information listed in condition 3(b), (i) in the case of the Fund's Prospectus, for the most recently completed year (and the most recently completed quarter or quarters, as applicable) and (ii) in the case of the annual report, for the immediately preceding five years, as applicable; and (b) the following data, calculated on a per individual NETS basis for one, five and ten year periods (or life of the Fund): (i) The cumulative total return and the average annual total return based on NAV and Bid/Ask Price, and (ii) the cumulative total return of the relevant Underlying Index. 5. Before a Fund may rely on the order, the Commission will have approved, pursuant to rule 19b-4 under the Exchange Act, an Exchange rule requiring Exchange members and member organizations effecting transactions in NETS to deliver a Product Description to purchasers of

NETS. 6. Each Fund's Prospectus and Product Description will clearly disclose that, for purposes of the Act, NETS are issued by the Fund, which is a registered investment company, and that the acquisition of

NETS by investment companies is subject to the restrictions of section 12(d)(1) of the Act, except as permitted by an exemptive order that permits registered investment companies to invest in a Fund beyond the limits in section 12(d)(1), subject to certain terms and conditions, including that the registered investment company enter into a

Purchasing Fund Agreement with the Fund regarding the terms of the investment. 7. The members of a Purchasing Fund's 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 Purchasing Fund's 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 NETS of a Fund, a Purchasing Fund's

Advisory Group or a Purchasing Fund's Sub-Advisory Group, each in the aggregate, becomes a holder of more than 25% of the outstanding NETS of a Fund, it will vote its NETS in the same proportion as the vote of all other holders of the NETS. This condition does not apply to the

Purchasing Fund's Sub-Advisory Group with respect to a Fund for which the Purchasing Fund's Sub-Adviser or a person controlling, controlled by, or under common control with the Purchasing Fund Sub-Adviser acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act. 8. No Purchasing Fund or Purchasing Fund Affiliate will cause any existing or potential investment by the Purchasing Fund in a Fund to influence the terms of any services or transactions between the

Purchasing Fund or Purchasing Fund Affiliate and the Fund or a Fund

Affiliate. 9. The board of directors or trustees of a Purchasing Management

Company, including a majority of the disinterested directors or trustees, will adopt procedures reasonably designed to ensure that the

Purchasing Fund Adviser and Purchasing Fund Sub-Adviser are conducting the investment program of the Purchasing Management Company without taking into account any consideration received by the Purchasing

Management Company or a Purchasing Fund Affiliate from a Fund or a Fund

Affiliate in connection with any services or transactions. 10. No Purchasing Fund or Purchasing Fund 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. 11. Before investing in the NETS of a Fund in excess of the limits in section 12(d)(1)(A), each Purchasing Fund and the Fund will execute a Purchasing Fund Agreement stating, without limitation, that their boards of directors or trustees and their investment advisers or

Sponsors or Trustees, 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 NETS of a Fund in excess of the limit in section

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12(d)(1)(A)(i), a Purchasing Fund will notify such Fund of the investment. At such time, the Purchasing Fund will also transmit to the

Fund a list of names of each Purchasing Fund Affiliate and Underwriting

Affiliate. The Purchasing Fund will notify the Fund of any changes to the list of names as soon as reasonably practicable after a change occurs. The relevant Fund and the Purchasing Fund will maintain and preserve a copy of the order, the Purchasing Fund 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. 12. The Purchasing Fund Adviser, Trustee or Sponsor, as applicable, will waive fees otherwise payable to it by the Purchasing Fund in an amount at least equal to any compensation (including fees received under any plan adopted by a Fund under rule 12b-1 under the Act) received from a Fund by the Purchasing Fund Adviser, Trustee or

Sponsor, or an affiliated person of the Purchasing Fund Adviser,

Trustee or Sponsor, other than any advisory fees paid to the Purchasing

Fund Adviser, Trustee or Sponsor, or its affiliated person by a Fund, in connection with the investment by the Purchasing Fund in the Fund.

Any Purchasing Fund Sub-Adviser will waive fees otherwise payable to the Purchasing Fund Sub-Adviser, directly or indirectly, by the

Purchasing Management Company in an amount at least equal to any compensation received from a Fund by the Purchasing Fund Sub-Adviser, or an affiliated person of the Purchasing Fund Sub-Adviser, other than any advisory fees paid to the Purchasing Fund Sub-Adviser or its affiliated person by the Fund, in connection with any investment by the

Purchasing Management Company in a Fund made at the direction of the

Purchasing Fund Sub-Adviser. In the event that the Purchasing Fund Sub-

Adviser waives fees, the benefit of the waiver will be passed through to the Purchasing Management Company. 13. Any sales charges and/or service fees charged with respect to shares of a Purchasing Fund will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830. 14. Once an investment by a Purchasing Fund in the securities of a

Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, the board of directors or trustees of a Fund (``Board''), including a majority of the directors or trustees that are not ``interested persons'' within the meaning of section 2(a)(19) of the Act (``disinterested Board members''), will determine that any consideration paid by the Fund to a

Purchasing Fund or Purchasing Fund Affiliate in connection with any services or transactions: (a) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Fund;

(b) 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 (c) 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, controlled by, or under common control with such investment adviser(s). 15. The Board, including a majority of the disinterested Board members, will adopt procedures reasonably designed to monitor any purchases of securities by a Fund in an Affiliated Underwriting once an investment by the Purchasing Fund 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 Purchasing Fund in a Fund. The Board will consider, among other things: (a) Whether the purchases were consistent with the investment objectives and policies of the Fund; (b) how the performance of securities purchased in an Affiliated Underwriting compares to the performances 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 (c) whether the amount of securities purchased by a 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 assure that purchases of securities in Affiliated Underwritings are in the best interests of shareholders of the Fund. 16. 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 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 Purchasing Fund in the NETS 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. 17. Before approving any advisory contract under section 15 of the

Act, the board of directors or trustees of each Purchasing 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 Purchasing Management Company may invest. These findings and their basis will be recorded fully in the minute books of the appropriate Purchasing Management Company. 18. No Fund will acquire securities of any investment company or companies relying on sections 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.

For the Commission, by the Division of Investment Management, under delegated authority.

Florence E. Harmon,

Deputy Secretary.

FR Doc. E8-3781 Filed 2-27-08; 8:45 am

BILLING CODE 8011-01-P