[Federal Register Volume 71, Number 100 (Wednesday, May 24, 2006)]
[Notices]
[Pages 29991-29995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7913]


=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

Release No. IC-27323; 812-12354]


ProShares Trust, et al.; Notice of Application

May 18, 2006.
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 24(d) of the Act and rule 22c-1 
under 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.

-----------------------------------------------------------------------

    Applicants: ProShares Trust (``Trust''), ProShare Advisors LLC 
(``ProShare Advisors''), and SEI Investments Distribution Company 
(``Distributor'').
    Summary of Application: Applicants request an order that would 
permit: (a) Series of an open-end management investment company to 
issue shares of limited redeemability; (b) secondary market 
transactions in the shares of the

[[Page 29992]]

series to occur at negotiated prices on the American Stock Exchange LLC 
(``Amex''), or another national securities exchange as defined in 
section 2(a)(26) of the Act, or on The NASDAQ Stock Market LLC (each, 
an ``Exchange''); (c) dealers to sell shares of the series of the Trust 
to purchasers in the secondary market unaccompanied by a prospectus, 
when prospectus delivery is not required by the Securities Act of 1933 
(the ``Securities Act''); and (d) affiliated persons of a series to 
deposit securities into, and receive securities from, the series in 
connection with the purchase and redemption of aggregations of the 
series' shares.
    Filing Dates: The application was filed on December 5, 2000, and 
amended on January 7, 2005, June 22, 2005, July 6, 2005, and March 29, 
2006.
    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 June 12, 2006, 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: ProShares Trust and 
ProShare Advisors, 7501 Wisconsin Avenue, Suite 1000, Bethesda, MD 
20814; SEI Investments Distribution Company, One Freedom Valley Drive, 
Oaks, PA 19456.

FOR FURTHER INFORMATION CONTACT: John Yoder, Senior Counsel, at (202) 
551-6878, Julia Kim Gilmer, Branch Chief, at (202) 551-6871, or Michael 
W. Mundt, Senior Special Counsel, at (202) 551-6820 (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 
Commission's Public Reference Desk, 100 F Street, NE., Washington, DC 
20549-0102 (tel. 202-551-5850).

Applicants' Representations

    1. The Trust is an open-end management investment company 
registered under the Act and organized as a Delaware statutory trust. 
The Trust intends to offer multiple series (each series, a ``Fund'') 
with different types of investment objectives as further described 
below. ProShare Advisors is registered as an investment adviser under 
the Investment Advisers Act of 1940 (``Advisers Act''). Each Fund will 
be advised by ProShare Advisors or an entity controlled by or under 
common control with ProShare Advisors (each, an ``Adviser''). The 
Adviser may enter into subadvisory agreements with additional 
investment advisers to act as subadviser to the Trust and any of its 
series. Any subadviser to the Trust or a Fund will be registered under 
the Advisers Act. The Distributor is registered as a broker-dealer 
under the Securities Exchange Act of 1934 (``Exchange Act'') and will 
act as the distributor and principal underwriter for each Fund's shares 
(``ETS'').
    2. The Funds will seek daily investment results, before fees and 
expenses, that: (a) Correspond to the return of various equity 
securities indices (``Conventional Funds''); (b) provide 125%, 150% or 
200% of the return of equity securities indices (``Leveraged Funds''); 
or (c) move in the opposite direction of the performance of equity 
securities indices in multiples of 100%, 125%, 150% or 200% (``Inverse 
Funds''). Of the twelve initial Funds, four will be Leveraged Funds and 
eight will be Inverse Funds.\1\
---------------------------------------------------------------------------

    \1\ The Leveraged Funds will seek to return 200% of the return 
of the S&P 500 Index, the Nasdaq100 Index, the Dow Jones Industrial 
Average and the S&P MidCap400 Index. The Inverse Funds will seek to 
return the inverse, or 200% of the inverse, of the same indices. The 
Trust may offer additional Funds based on these indices and the 
following indices (collectively, the ``Underlying Indices''): 
Russell 2000 Index, S&P Small Cap 600 Index, Nasdaq Composite Index, 
S&P 500 BARRA Value Index, S&P 500 BARRA Growth Index, S&P MidCap400 
BARRA Value Index, S&P MidCap 400/BARRA Growth Index, S&P SmallCap 
600/Barra Value Index, S&P SmallCap 600/BARRA Growth Index, Dow 
Jones U.S. Airlines Index, Dow Jones U.S. Banks Index, Dow Jones 
U.S. Basic Materials Sector Index, Dow Jones U.S. Biotechnology 
Index, Dow Jones U.S. Composite Internet Index, Dow Jones U.S. 
Consumer Services Index, Dow Jones U.S. Consumer Goods Index, Dow 
Jones U.S. Oil & Gas Index, Dow Jones U.S. Financials Index, Dow 
Jones U.S. Health Care Index, Dow Jones U.S. Industrials Index, Dow 
Jones U.S. Leisure Goods Index, Dow Jones U.S. Oil Equipment, 
Services & Distribution Index, Dow Jones U.S. Pharmaceuticals Index, 
Dow Jones U.S. Precious Metals Index, Dow Jones U.S. Real Estate 
Index, Dow Jones U.S. Semiconductors Index, Dow Jones U.S. 
Technology Index, Dow Jones U.S. Telecommunications Index, Dow Jones 
U.S. Utilities Index, Dow Jones U.S. Mobile Communications Index. No 
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, a promoter, the Adviser, any sub-adviser to 
any Fund, or the Distributor.
---------------------------------------------------------------------------

    3. In addition to equity securities, the Funds may invest in short-
term debt instruments that meet the definition of ``Eligible Security'' 
in rule 2a-7 under the Act (``Money Market Instruments''), and in 
futures contracts, options, equity caps, collars and floors, swap 
agreements, forward contracts, and reverse repurchase agreements 
(collectively, ``Financial Instruments'') in order to meet their 
investment objectives. A Conventional Fund will invest 95% or more of 
its total assets in the equity securities contained in the relevant 
Underlying Index and may invest up to 5% of its total assets in 
Financial Instruments and Money Market Instruments. Leveraged Funds 
will invest 85% or more of their total assets in equity securities 
contained in the relevant Underlying Index and up to 15% of their total 
assets in Financial Instruments and Money Market Instruments. The 
Inverse Funds will only invest in Financial Instruments and Money 
Market Instruments; they will not invest in equity securities.
    4. The Adviser will seek to achieve the investment objectives of 
the Funds by using a mathematical model that takes into account a 
variety of specified criteria, the most important of which are: (a) The 
net assets in each Fund's portfolio at the end of each trading day; (b) 
the amount of required exposure to the Underlying Index; and (c) the 
positions in equity securities, Financial Instruments and Money Market 
Instruments at the beginning of each trading day. On each day that a 
Fund is open for business (``Business Day'') the full portfolio 
holdings of each Fund will be disclosed on the Web site of the Trust 
and/or the relevant Exchange. The portfolio holdings information 
disclosed each Business Day will form the basis for that Fund's net 
asset value (``NAV'') calculation as of 4 p.m. that day and will 
reflect portfolio trades made on the immediately preceding Business 
Day. Intra-day values of each Underlying Index will be disseminated 
every 15 seconds throughout the trading day.
    5. Applicants expect that each Conventional Fund will have an 
annual tracking error of less than 5% (excluding the impact of expenses 
and interest, if any) to the performance of its Underlying Index. For 
the Leveraged Fund and Inverse Funds, applicants expect a daily 
tracking error of less than 5% (excluding the impact of expenses and 
interest, if any) to the specified multiple or inverse multiple,

[[Page 29993]]

respectively, of the performance of the relevant Underlying Index.
    6. Each Fund will issue ETS in aggregations of 25,000 to 50,000 ETS 
(each, a ``Creation Unit''). Applicants expect the price of a Creation 
Unit to be a minimum of $1 million. Creation Units may be purchased 
only by or through the Distributor or a party that has entered into a 
participant agreement with the Distributor (an ``Authorized 
Participant''). 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, a clearing agency that is 
registered with the Commission, or (b) a participant in the Depository 
Trust Company (``DTC'') system.
    7. Creation Units of Conventional and Leveraged Funds generally 
will be purchased and redeemed in exchange for an ``in-kind'' transfer 
of securities and cash (``In-Kind Payment''). Inverse Funds will 
generally be purchased and redeemed entirely for cash because of the 
limited transferability of Financial Instruments.\2\ An investor making 
an In-Kind Payment will be required to transfer to the Trust a 
``Deposit Basket'' consisting of: (a) A basket of equity securities 
consisting of some or all of the securities in the relevant Underlying 
Index or equivalent equity securities selected by the Adviser to 
correspond to the performance of the Underlying Index (the ``Deposit 
List''); and (b) a cash amount equal to the differential, if any, 
between the market value of the equity securities in the Deposit Basket 
and the NAV per Creation Unit (``Balancing Amount'').\3\ An investor 
purchasing 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 the Fund incurring costs in 
connection with the purchase of the Creation Units.\4\ The maximum 
Transaction Fee and any variations or waivers of the Transaction Fee 
will be disclosed in the prospectus for ETS (``Prospectus'') and the 
method of determining the Transaction Fees will be disclosed in the 
Prospectus and/or statement of additional information (``SAI'').
    8. All orders to purchase Creation Units must be placed on a 
Business Day with the Distributor. The Distributor also will be 
responsible for delivering the Prospectus to those persons purchasing 
Creation Units and for maintaining records of the orders and 
acknowledgements of acceptance for orders.
---------------------------------------------------------------------------

    \2\ The Trust may also accept and deliver all-cash payments for 
the purchase and redemption of Creation Units of any Fund in certain 
limited circumstances.
    \3\ On each Business Day, prior to the opening of trading on the 
New York Stock Exchange, the Trust's index receipt agent will make 
available the list of the names and the required number of shares of 
each equity security included in the current Deposit Basket and the 
Balancing Amount for each Fund. Such Deposit Basket will apply to 
all purchases of Creation Units until a new Deposit Basket for a 
Fund is announced. The Amex will disseminate every 15 seconds during 
regular Amex trading hours, through the facilities of the 
Consolidated Tape Association, an amount representing on a per share 
basis the sum of the current value of the securities on the Deposit 
List, and the estimated amount of cash and Money Market Instruments 
held in the portfolio of a Conventional or Leveraged Fund. If such 
funds hold Financial Instruments, the amount would also include, on 
a per share basis, the marked-to-market gains or losses of the 
Financial Instruments held by the Fund. For Inverse Funds, the Amex 
will disseminate an amount representing, on a per share basis, the 
estimated amount of cash and Money Market Instruments, and the 
marked-to-market gains or losses of the Fund's Financial 
Instruments.
    \4\ A purchaser permitted to substitute cash for certain 
securities on the Deposit List may be assessed a higher transaction 
Fee to cover the cost of purchasing such securities, including 
operational processing and brokerage costs, and part or all of the 
spread between the expected bid and offer side of the market 
relating to such securities.
---------------------------------------------------------------------------

    9. Persons purchasing Creation Units from a Fund may hold the ETS 
or sell some or all of them in the secondary market. Shares of the 
Funds will be listed on an Exchange and trade in the secondary market 
in the same manner as other exchange-traded funds. It is expected that 
one or more Exchange members will act as a specialist or market maker 
and maintain a market on the listing Exchange for ETS.\5\ The price of 
ETS traded on an Exchange will be based on a current bid/offer market. 
The initial trading price for each ETS of each Fund will fall in the 
range of $50 to $250. Transactions involving the sale of ETS in the 
secondary market will be subject to customary brokerage commissions and 
charges.
---------------------------------------------------------------------------

    \5\ The listing requirements established by The NASDAQ Stock 
Market LLC require that at least two market makers be registered in 
ETS in order for the ETS to maintain a listing. Registered market 
makers must make a continuous two-sided market in a listing or face 
regulatory sanctions.
---------------------------------------------------------------------------

    10. Applicants expect that purchasers of Creation Units will 
include institutional and retail investors, arbitrageurs, traders, 
financial advisors, portfolio managers and other market 
participants.\6\ An Exchange specialist or market maker, in providing 
for a fair and orderly secondary market for ETS, also may purchase or 
redeem Creation Units for use in its market-making activities. 
Applicants expect that the market price of ETS will be disciplined by 
arbitrage opportunities created by the ability to purchase or redeem 
Creation Units at their NAV, which should ensure that the market price 
of ETS at or close to 4 p.m. stays close to the NAV on that Business 
Day.
---------------------------------------------------------------------------

    \6\ ETS will be registered in book-entry form only. DTC or its 
nominee will be the record or registered owner of all outstanding 
ETS. DTC or its participants will maintain records reflecting the 
beneficial owners of ETS.
---------------------------------------------------------------------------

    11. ETS will not be individually redeemable. ETS will only be 
redeemable in Creation Units through the Distributor, which will act as 
the Trust's agent for redemption. To redeem, an investor must 
accumulate enough ETS to constitute a Creation Unit. An investor 
redeeming a Creation Unit of a Conventional or Leveraged Fund generally 
will receive an ``in-kind'' payment comprised of equity securities 
published by the Trust's index receipt agent (the ``Redemption List'') 
plus a Balancing Amount equal to the difference between the market 
value of the equity securities on the Redemption List and the NAV of 
the ETS being redeemed. Redemptions of Creation Units for Inverse Funds 
will occur entirely in cash. A redeeming investor will pay a 
Transaction Fee to offset the transactional expenses associated with 
redeeming Creation Units.
    12. Applicants state that neither the Trust nor any Fund will be 
advertised, marketed or otherwise held out as a ``mutual fund.'' The 
term ``mutual fund'' will not be used in the Prospectus except to 
compare and contrast the Trust or a Fund with conventional mutual 
funds. In all marketing materials where the features or methods of 
obtaining, buying, or selling Creation Units are described or where 
there is reference to redeemability, applicants will include a 
prominent statement to the effect that individual ETS are not 
redeemable except in Creation Units. The same approach will be followed 
in connection with reports and other communications to shareholders, as 
well as any other investor education materials issued or circulated in 
connection with ETS. The Trust will provide copies of its annual and 
semi-annual shareholder reports to DTC participants for distribution to 
beneficial holders of ETS.

Applicants' Legal Analysis

    1. Applicants request an order under section 6(c) of the Act 
granting an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 24(d) 
of the Act and rule 22c-1 under the Act, and under sections 6(c) and 
17(b) of the Act granting 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

[[Page 29994]]

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.

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 holder, 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 ETS will not be individually redeemable, applicants 
request an order that would permit the Trust to register as an open-end 
management investment company and issue ETS of Funds that are 
redeemable in Creation Units only. Applicants state that investors may 
always redeem ETS in Creation Units from the Trust. Applicants further 
state that because the market price of ETS will be disciplined by 
arbitrage opportunities, investors should be able to sell ETS in the 
secondary market at or close to 4 p.m. on a Business Day at prices that 
do not vary substantially from the NAV on that Business Day.

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 ETS will take 
place at negotiated prices, not at a current offering price described 
in the Prospectus as required by section 22(d) of the Act, and not at a 
price based on NAV as required by 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 ETS. 
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 intended 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 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 ETS to trade in the secondary market at negotiated 
prices. Applicants state that (a) secondary market trading in ETS does 
not involve the Trust's assets and cannot result in dilution of an 
investment in ETS, 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, not as 
a result of unjust or discriminatory manipulation. Therefore, 
applicants assert that secondary market transactions in ETS will not 
lead to discrimination or preferential treatment among purchasers. 
Finally, applicants contend that the proposed distribution system will 
be orderly because competitive forces in the marketplace will ensure 
that the difference between the market price of ETS 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 request an exemption from section 24(d) to permit dealers 
selling ETS to rely on the prospectus delivery exemption provided by 
section 4(3) of the Securities Act.\7\
---------------------------------------------------------------------------

    \7\Applicants do not seek relief from the prospectus delivery 
requirement for non-secondary market transactions, such as 
transactions in which an investor purchases ETS in Creations Units 
from the Issuer or an underwriter. Applicants state that persons 
purchasing Creation Units will be cautioned in the Prospectus that 
some activities on their part may, depending on the circumstances, 
result in their being deemed statutory underwriters and subject them 
to the prospectus delivery and liability provisions on the 
Securities Act. The Prospectus will state that whether a person is 
an underwriter depends upon all the facts and circumstances 
pertaining to that person's activities. For example, a broker-dealer 
firm and/or its client may be deemed a statutory underwriter if it 
takes Creation Units after placing an order with the Distributor, 
breaks them down into the constituent ETS, and sells ETS directly to 
its customers, or if it chooses to couple the purchase of a supply 
of new ETS with an active selling effort involving solicitation of 
secondary market demand for ETS. The Prospectus also will state that 
dealers who are not ``underwriters'' but are participating in a 
distribution (as contrasted to ordinary secondary market trading 
transactions), and thus dealing with ETS that are part of an 
``unsold allotment'' within the meaning of section 4(3)(C) of the 
Securities Act, would be unable to take advantage of the prospectus 
delivery exemption provided by section 4(3) of the Securities Act.
---------------------------------------------------------------------------

    8. Applicants state that secondary market investors will regard ETS 
in a manner similar to other securities, including closed-end fund 
shares that are listed, bought and sold on an Exchange. Applicants note 
that shares of closed-end fund investment companies are sold in the 
secondary market unaccompanied by a prospectus.
    9. Applicants contend that ETS, as a listed security, merit a 
reduction in the compliance costs and regulatory burdens resulting from 
the imposition of prospectus delivery obligations in the secondary 
market. Because ETS will be exchange-listed, prospective investors will 
have access to several types of market information about ETS. 
Applicants state that information regarding market price and volume 
will be continually available on a real-time basis throughout the day 
from the relevant Exchange, automated quotation systems, published or 
other public sources or on-line information services. Applicants expect 
that the previous day's closing price and volume information for ETS 
also will be published daily in the financial section of newspapers. In 
addition, the Trust expects to maintain a We bsite that includes 
quantitative information updated on a daily basis, including, for each 
Fund, daily trading volume, the NAV and the reported closing price. The 
Web site will also include, for each Fund, a calculation of the premium 
or discount of the reported closing price against NAV, and data in 
chart format displaying the frequency distribution of discounts and 
premiums of the reported closing price against the NAV, within 
appropriate ranges, for each of the four previous calendar quarters.
    10. Investors also will receive a product description (``Product 
Description'') describing the Trust, the Funds and the ETS. Applicants 
state that, while not intended as a substitute for a Prospectus, the 
Product Description will contain information about ETS that is tailored 
to meet the needs of investors purchasing ETS in the secondary market.

[[Page 29995]]

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

    11. Section 17(a) of the Act generally prohibits 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'' to include 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 and 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 25% 
or more of another person's voting securities. Applicants state that 
one or more holders of Creation Units could own more than 5% of a Fund, 
or in excess of 25% of that Fund, and could be deemed affiliated with 
the Trust or such Fund under section 2(a)(3)(A) or 2(a)(3)(C) of the 
Act. Also, an Exchange specialist or market maker for ETS of any Fund 
might accumulate, from time to time, more than 5% or in excess of 25% 
of that Fund's ETS. Applicants request an exemption from section 17(a) 
of the Act under sections 6(c) and 17(b) of the Act, to permit persons 
that are affiliated persons of the Funds solely by virtue of a 5% or 
25% ownership interest (or affiliated persons of such affiliated 
persons that are not otherwise affiliated with the Fund) to purchase 
and redeem Creation Units through ``in-kind'' transactions.
    12. 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. Applicants 
contend that no useful purpose would be served by prohibiting the 
affiliated persons of a Fund described above from purchasing or 
redeeming Creation Units through ``in-kind'' transactions. The deposit 
and redemption procedures for ``in-kind'' purchases and redemptions of 
Creations Units will be effected in exactly the same manner for all 
purchases and redemptions. The securities contained in the ``in-kind'' 
transactions will be valued in the same manner and according to the 
same standards as the securities held by the relevant Fund. Therefore, 
applicants state that ``in-kind'' purchases and redemptions will afford 
no opportunity for the affiliated persons described above to effect a 
transaction detrimental to the other holders of its ETS. Applicants 
also believe that ``in-kind'' purchases and redemptions will not result 
in abusive self-dealing or overreaching by affiliated persons of the 
Funds.

Applicants' Conditions

    Applicants agree that any order granting the requested relief will 
be subject to the following conditions:
    1. Applicants will not register a series of the Trust not 
identified herein, by means of filing a post-effective amendment to the 
Trust's registration statement or by any other means, unless applicants 
have requested and received with respect to such series, either (a) 
exemptive relief from the Commission, or (b) a no-action letter from 
the Division of Investment Management of the Commission.
    2. The Prospectus and the Product Description will clearly disclose 
that, for purposes of the Act, ETS are issued by the Funds and that the 
acquisition of ETS 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 an agreement with the Fund regarding the terms of the 
investment.
    3. As long as the Trust operates in reliance on the requested 
order, the ETS will be listed on an Exchange.
    4. Neither the Trust nor any Fund will be advertised or marketed as 
an open-end fund or a mutual fund. The Prospectus will prominently 
disclose that ETS are not individually redeemable shares and will 
disclose that the owners of the ETS may acquire those ETS from the 
Trust and tender those ETS for redemption to the Trust in Creation 
Units only. Any advertising material that describes the purchase or 
sale of Creation Units or refers to redeemability will prominently 
disclose that ETS are not individually redeemable and that owners of 
ETS may acquire those ETS from the Trust and tender those ETS for 
redemption to the Trust in Creation Units only.
    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 or an amendment thereto, requiring Exchange members and member 
organizations effecting transactions in ETS to deliver a Product 
Description to purchasers of ETS.
    6. The Web site for the Trust, which will be publicly accessible at 
no charge, will contain the following information, on a per ETS basis, 
for each Fund: (a) The prior Business Day's NAV and the reported 
closing price, and a calculation of the premium or discount of such 
price against such NAV; and (b) data in chart format displaying the 
frequency distribution of discounts and premiums of the daily closing 
price against the NAV, within appropriate ranges, for each of the four 
previous calendar quarters (or the life of the Fund, if shorter). In 
addition, the Product Description for each Fund will state that the 
Trust's Web site has information about the premiums and discounts at 
which the ETS have traded.
    7. The Prospectus and annual report for each Fund will also 
include: (a) The information listed in condition 6(b), (i) in the case 
of the 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 (or 
the life of the Fund, if shorter); and (b) the following data, 
calculated on a per ETS basis for one, five and ten year periods (or 
life of the Fund, if shorter), (i) the cumulative total return and the 
average annual total return based on NAV and closing price, and (ii) 
the cumulative total return of the relevant Underlying Index.

    By the Commission.
J. Lynn Taylor,
Assistant Secretary.
 [FR Doc. E6-7913 Filed 5-23-06; 8:45 am]
BILLING CODE 8010-01-P