[Federal Register Volume 72, Number 3 (Friday, January 5, 2007)]
[Notices]
[Pages 591-596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22605]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 27612; 813-356]


Opal Private Equity Fund, L.P. et al.; Notice of Application

December 27, 2006.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under sections 6(b) and 
6(e) of the Investment Company Act of 1940 (the ``Act'') granting an 
exemption from all provisions of the Act, except section 9 and sections 
36 through 53, and the rules and regulations under the Act. With 
respect to sections 17 and 30 of the Act, and the rules and regulations 
thereunder, and rule 38a-1 under the Act, the exemption is limited as 
set forth in the application.

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Summary of the Application: Applicants request an order to exempt 
certain investment funds formed for the benefit of eligible current and 
former employees of Schottenstein, Zox & Dunn Co., L.P.A., and its 
affiliates from certain provisions of the Act. Each fund will be an 
``employees' securities company'' as defined in section 2(a)(13) of the 
Act.

Applicants: Opal Private Equity Fund, LP (the ``Investment Fund'') and 
Schottenstein, Zox & Dunn Co., L.P.A. (together with any business 
organization that results from a reorganization of Schottenstein, Zox & 
Dunn Co., L.P.A., into a different type of business organization or 
into an entity organized under the laws of another jurisdiction, 
``SZD'').

Filing Dates: The application was filed on December 30, 2004 and 
amended on December 22, 2006.

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 January 22, 2007 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 St., 
NE., Washington, DC 20549-9303. Applicants, 250 West St., Columbus, 
Ohio 43215-5020.

FOR FURTHER INFORMATION CONTACT: Marilyn Mann, Senior Counsel, at (202) 
551-6813, or Mary Kay Frech, Branch Chief, at (202) 551-6821, (Division 
of Investment Management, Office of Investment Company Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained for a fee at the 
Commission's Public Reference Branch,

[[Page 592]]

100 F St., NE., Washington, DC 20549-0102 (tel. 202-551-5850).

Applicants' Representations

    1. SZD is a law firm incorporated under the laws of the State of 
Ohio as a legal professional association. SZD and its ``affiliates,'' 
as defined in rule 12b-2 under the Securities Exchange Act of 1934 (the 
``Exchange Act''), are referred to collectively as the ``SZD Group'' 
and individually as a ``SZD entity.'' The shareholders of SZD are 
referred to as ``Principals.''
    2. The Investment Fund is a Delaware limited partnership. The 
applicants may in the future offer additional pooled investment 
vehicles identical in all material respects to the Investment Fund 
(other than investment objectives and strategies) (the ``Subsequent 
Funds'') (together, the Investment Fund and the Subsequent Funds are 
referred to as the ``Funds''). The applicants anticipate that each 
Subsequent Fund will also be structured as a limited partnership, 
although a Subsequent Fund could be structured as a limited liability 
company, corporation, trust or other business organization formed as an 
``employees' securities company'' within the meaning of section 
2(a)(13) of the Act. The Funds will operate as non-diversified, closed-
end management investment companies. The Funds will be established to 
enable the Principals and certain attorney employees of SZD Group to 
participate in certain investment opportunities that come to the 
attention of SZD Group. Participation as investors in the Funds will 
allow the Eligible Investors, as defined below, to diversify their 
investments and to have the opportunity to participate in investments 
that might not otherwise be available to them or that might be beyond 
their individual means.
    3. Opal Private Equity, Inc., a wholly-owned subsidiary of SZD, 
will serve as the general partner (the ``General Partner'') of each 
Fund. The Funds will have one or more investment committees 
(``Investment Committees''), each member of which shall be a Principal. 
The General Partner or SZD shall appoint the members of each Investment 
Committee. The General Partner or any person involved in the operation 
of the Funds will register as an investment adviser if required under 
the Investment Advisers Act of 1940, or the rules under that Act.
    4. Interests in the Funds (``Interests'') will be offered without 
registration in reliance on section 4(2) of the Securities Act of 1933 
(the ``Securities Act''), Regulation D under the Securities Act or rule 
701 under the Securities Act, or any successor rule, and will be sold 
solely to Eligible Investors. Eligible Investors consist of ``Eligible 
Employees,'' ``Qualified Investment Vehicles,'' each as defined below, 
and SZD entities. The term ``Fund Investors'' refers to Eligible 
Investors who invest in the Funds. Prior to offering Interests in a 
Fund to an individual, the General Partner must reasonably believe that 
the individual is a sophisticated investor capable of understanding and 
evaluating the risks of participating in the Fund without the benefit 
of regulatory safeguards. An ``Eligible Employee'' is a person who is, 
at the time of investment, a current Principal of SZD or lawyer 
employed by SZD who (a) meets the standards of an ``accredited 
investor'' set forth in rule 501(a)(5) or rule 501(a)(6) of Regulation 
D under the Securities Act, (b) is one of 35 or fewer lawyers employed 
by SZD who meets certain requirements (``Category 2 investors''), or 
(c) is a lawyer employed by SZD who purchases Interests pursuant to an 
offering under rule 701 under the Securities Act (``rule 701'') 
(``Category 3 investors'').
    5. Each Category 2 investor will be a lawyer employed by SZD, who 
meets the sophistication requirements set forth in rule 506(b)(2)(ii) 
of Regulation D under the Securities Act \1\ and who (a) has a minimum 
of 3 years of business and/or professional experience, has had 
compensation of at least $150,000 in the preceding 12 month period, and 
has a reasonable expectation of compensation of at least $150,000 in 
each of the 2 immediately succeeding 12 month periods, or (b) is a 
``knowledgeable employee,'' as defined in rule 3c-5 under the Act, of 
the Fund (with the Fund treated as though it were a ``Covered Company'' 
for purposes of the rule). In addition, a Category 2 investor 
qualifying under (a) above will not be permitted to invest in any 
calendar or fiscal year (as determined by SZD) more than 10% of his or 
her income from all sources for the immediately preceding calendar or 
fiscal year in one or more Funds.
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    \1\ Some or all Category 2 investors may purchase their 
Interests in an offering under rule 701 rather than under Regulation 
D.
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    6. Each Category 3 investor will be a lawyer employed by SZD who 
reasonably expects to have compensation of at least $120,000 in the 
next 12 months and who has a reasonable expectation of compensation of 
at least $150,000 in each of the 2 immediately succeeding 12 month 
periods. In addition, any Category 3 investor who is not a Principal 
will not be permitted to invest in any calendar or fiscal year (as 
determined by SZD) more than 10% (or 5%, if he or she has been employed 
as a lawyer for less than 3 years) of his or her reasonably expected 
income from all sources for that year in one or more Funds. Category 3 
investors will purchase Interests pursuant to an offering under rule 
701. Prior to receiving a subscription agreement from any potential 
Fund Investor pursuant to an offering in reliance on rule 701, SZD will 
make available at no charge to potential Fund Investors the services of 
an independent third party (``Financial Consultant'') qualified to 
provide advice concerning the appropriateness of investing in a Fund.
    7. A Qualified Investment Vehicle is a trust or other entity the 
sole beneficiaries of which are Eligible Employees or their Immediate 
Family Members or the settlors and trustees of which consist of 
Eligible Employees or Eligible Employees together with Immediate Family 
Members.\2\ Immediate Family Members include any parent, child, spouse 
of a child, spouse, brother or sister, and includes any step and 
adoptive relationships. A Qualified Investment Vehicle must be either 
(a) an accredited investor as defined in rule 501(a) of Regulation D or 
(b) an entity for which an Eligible Employee is a settlor and principal 
investment decision-maker.\3\
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    \2\ A Qualified Investment Vehicle is not permitted to 
participate in a rule 701 offering. SZD or the General Partner may, 
however, in their discretion and in compliance with rule 701, permit 
an Eligible Employee who purchases Interests in the Fund in a rule 
701 offering to transfer some or all of those Interests to a 
Qualified Investment Vehicle.
    \3\ If a Qualified Investment Vehicle is an entity other than a 
trust, the reference to ``settlor'' shall be construed to mean a 
person who created the vehicle, alone or together with others, and 
who contributed funds or other assets to the vehicle.
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    8. Each Fund may issue its Interests in series (each, a ``Series' 
and collectively, the ``Series'') with new Series of Interests being 
offered from time to time. Each Series may be further divided into two 
or more separate classes (each, a ``Class''), having such terms and 
conditions as the General Partner may establish. Each Series will 
represent an interest in some or all of those Fund investments made by 
the Fund during a specified period of time (the ``Investment Period''). 
Following the end of a Series' Investment Period, no new investments 
will be made for that Series, although following a Series' Investment 
Period additional money may be contributed to an existing investment.
    9. In order to comply with the requirements of rule 701, at the 
beginning of each Investment Period,

[[Page 593]]

the Fund will accept capital contributions or irrevocable commitments 
for the relevant Series from those Eligible Investors investing 
pursuant to Regulation D (the ``Regulation D Investors''), and then 
prepare a balance sheet as required by rule 701. The Fund may then 
receive and accept subscription agreements, and thereafter accept 
capital contributions or commitments for that Series from those 
Eligible Investors investing pursuant to rule 701 (the ``Rule 701 
Investors''). The capital contributions and commitments of the Rule 701 
Investors, in the aggregate, will not exceed 15% of the total amount of 
capital contributions and irrevocable commitments received from the 
Regulation D Investors. Because the capital commitments of the Rule 701 
Investors may be funded, in whole or in part, through periodic payroll 
deductions, the Rule 701 Investors may from time to time contribute 
money prior to the time the Fund is able to invest that money. It 
currently is anticipated that any such amounts will be placed in a 
separate bank or escrow account, pending the delivery of the money to 
the Fund for investment or other authorized purposes. No more than 
approximately 13% (i.e., 15% of the total amount of capital 
contributions and irrevocable commitments received from the Regulation 
D Investors) of all Fund investments and other authorized expenditures 
for each Series will at any time be paid for out of money contributed 
to the Fund by Rule 701 Investors.
    10. The terms of a Fund will be fully disclosed in the private 
placement memorandum of the Fund, and each Eligible Investor will 
receive a private placement memorandum and the Fund's limited 
partnership agreement (or other organizational documents) prior to his 
or her investment in the Fund. Each Fund will send its Fund Investors 
annual reports, which will contain audited financial statements with 
respect to those Series in which the Fund Investor has Interests, as 
soon as practicable after the end of each fiscal year. In addition, as 
soon as practicable after the end of each fiscal year, the Funds will 
send a report to each Fund Investor setting forth such tax information 
as shall be necessary for the preparation by the Fund Investor of his 
or her federal and state tax returns.
    11. Fund Investors will be permitted to transfer their Interests 
only by operation of law, to a receiver or trustee in bankruptcy for 
that Fund Investor, to the Fund Investor's estate in the event of his 
or her death, or with the express consent of the General Partner. The 
General Partner does not anticipate giving such consent. No person may 
become a transferee or substitute Fund Investor unless that person is a 
member of one of the classes of persons listed in section 2(a)(13) of 
the Act, except that a legal representative or executor may hold an 
Interest in order to settle the estate of a decedent or bankrupt or for 
similar purposes. No fee of any kind will be charged in connection with 
the sale of Interests.
    12. A Fund Investor's Interests may be subject to repurchase or 
cancellation if: (a) The Fund Investor ceases to be an Eligible 
Investor; (b) the Fund Investor is no longer deemed to be able to bear 
the economic risk of investment in a Fund; (c) adverse tax consequences 
were to inure to the Fund were a particular Fund Investor to remain; or 
(d) the continued membership of the Fund Investor would violate 
applicable law or regulations. In addition, SZD reserves the right to 
impose vesting provisions on a Fund Investor's investments in a Fund. 
In an investment program that provides for vesting provisions, all or a 
portion of a Fund Investor's Interests will be treated as unvested, and 
vesting will occur through the passage of a specified period of time. 
To the extent a Fund Investor's Interests become ``vested,'' the 
termination of such Fund Investor's association or employment with SZD 
will not affect the Fund Investor's rights with respect to the vested 
Interests. If a Fund Investor's employment with SZD terminates because 
of (a) death, (b) total and permanent disability as defined by SZD's 
group insurance policy or (c) retirement from the practice of law upon 
or after such Fund Investor attaining the age of fifty-five (each a 
``Qualifying Termination''), then such Fund Investor shall be fully 
vested in his or her Interests in the Fund. If a Fund Investor's 
employment with SZD terminates for reasons other than a Qualifying 
Termination, then such Fund Investor's Interests that are unvested 
shall be subject to repurchase or cancellation. Upon any repurchase or 
cancellation of all or a portion of a Fund Investor's Interests, a Fund 
will at a minimum pay to the Fund Investor the lesser of (a) the amount 
actually paid by the Fund Investor to acquire the Interests less the 
amount of any distributions received by that Fund Investor from the 
Fund (plus interest at or above the prime rate, as determined by the 
General Partner) and (b) the fair market value of the Interests 
determined at the time of repurchase or cancellation, as determined in 
good faith by the General Partner. Any interest owed to a Fund Investor 
pursuant to (a) above will begin to accrue at the end of the Investment 
Period.
    13. With respect to any Interests that have vested, the terminated 
Fund Investor will have the right to elect (a) to continue as a Fund 
Investor, or (b) to have the fair market value, as determined in good 
faith by the General Partner, of such terminated Fund Investor's 
Interests determined as of the date of termination. If the election 
described in (b) of the preceding sentence is made, the value of the 
vested Interests of the terminated Fund Investor shall be deemed to 
have been repurchased by the relevant Series of the Fund and payment 
shall be made to the terminated Fund Investor in five consecutive 
annual payments, with interest at or above the prime rate, as 
determined by the General Partner, unless the General Partner 
determines to postpone payment until a liquidity event takes place 
allowing the Fund to make payment of the terminated Fund Investor. In 
no event will the terminated Fund Investor be paid later than the date 
that all Fund Investors in the Series receive their liquidating 
distribution. The General Partner may accelerate any payments due to a 
terminated Fund Investor. The General Partner has the right to amend 
the limited partnership agreement to allow for less restrictive vesting 
terms.
    14. SZD may be reimbursed by a Fund for reasonable and necessary 
out-of-pocket costs directly associated with the organization and 
operation of the Funds. There will be no allocation of any of SZD's 
operating expenses to a Fund. In addition, SZD may allocate to a Series 
any out-of-pocket expenses specifically attributable to the 
organization and operation of that Series. No separate management fee 
will be charged to a Fund by the General Partner, and no compensation 
will be paid by a Fund or by Fund Investors to the General Partner for 
its services.
    15. SZD may in its discretion advance funds to Eligible Investors 
for the purpose of making their capital contributions. SZD currently 
expects that no interest will be charged on such loans, but SZD 
reserves the right to charge interest on such loans in the future. The 
interest rate charged on such loans will not exceed the prime rate.
    16. The Funds may borrow from SZD Group, Principals, or a bank or 
other financial institution, provided that a Fund will not borrow from 
any person if the borrowing would cause any person not named in section 
2(a)(13) of the Act to own outstanding securities of the Fund (other 
than short-term paper).

[[Page 594]]

Any borrowings by a Fund will be non-recourse other than to SZD or an 
SZD entity. If SZD or an SZD entity or a Principal makes a loan to the 
Funds, the interest rate on the loan will be no less favorable to the 
Funds than the rate that could be obtained on an arm's length basis.
    17. No Fund will acquire any security issued by a registered 
investment company if immediately after the acquisition the Fund would 
own more than 3% of the outstanding voting stock of the registered 
investment company.

Applicants' Legal Analysis

    1. Section 6(b) of the Act provides, in part, that the Commission 
will exempt employees' securities companies from the provisions of the 
Act to the extent that the exemption is consistent with the protection 
of investors. Section 6(b) provides that the Commission will consider, 
in determining the provisions of the Act from which the company should 
be exempt, the company's form of organization and capital structure, 
the persons owning and controlling its securities, the price of the 
company's securities and the amount of any sales load, how the 
company's funds are invested, and the relationship between the company 
and the issuers of the securities in which it invests. Section 2(a)(13) 
defines an employees' securities company as any investment company all 
of whose securities (other than short-term paper) are beneficially 
owned (a) by current or former employees, or persons on retainer, of 
one or more affiliated employers, (b) by immediate family members of 
such persons, or (c) by such employer or employers together with any of 
the persons in (a) or (b).
    2. Section 7 of the Act generally prohibits investment companies 
that are not registered under section 8 of the Act from selling or 
redeeming their securities. Section 6(e) provides that, in connection 
with any order exempting an investment company from any provision of 
section 7, certain provisions of the Act, as specified by the 
Commission, will be applicable to the company and other persons dealing 
with the company as though the company were registered under the Act. 
Applicants request an order under sections 6(b) and 6(e) of the Act 
exempting the Funds from all provisions of the Act, except section 9 
and sections 36 through 53, and the rules and regulations under the 
Act. With respect to sections 17 and 30 of the Act, and the rules and 
regulations thereunder, and rule 38a-1 under the Act, the exemption is 
limited as set forth in the application.
    3. Section 17(a) generally prohibits any affiliated person of a 
registered investment company, or any affiliated person of an 
affiliated person, acting as principal, from knowingly selling or 
purchasing any security or other property to or from the company. 
Applicants request an exemption from section 17(a) to permit a Fund to: 
(a) Purchase, from SZD or any affiliated person thereof, securities or 
interests in properties previously acquired for the account of SZD or 
any affiliated person thereof; (b) sell, to SZD or any affiliated 
person thereof, securities or interests in properties previously 
acquired by the Funds; and (c) purchase interests in any company or 
other investment vehicle (i) in which SZD owns 5% or more of the voting 
securities, or (ii) that otherwise is an affiliated person of the Fund 
(or an affiliated person of such a person) or an affiliated person of 
SZD.
    4. Applicants state that an exemption from section 17(a) is 
consistent with the protection of investors and the purposes of the 
Act. Applicants state that the Fund Investors will be informed in the 
Fund's private placement memorandum of the possible extent of the 
Fund's dealings with SZD or any affiliated person thereof. Applicants 
also state that, as financially sophisticated professionals, Fund 
Investors will be able to evaluate the attendant risks. Applicants 
assert that the community of interest among the Fund Investors and SZD 
will provide the best protection against any risk of abuse.
    5. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
any affiliated person or principal underwriter of a registered 
investment company, or any affiliated person of an affiliated person or 
principal underwriter, acting as principal, from participating in any 
joint arrangement with the company unless authorized by the Commission. 
Applicants request relief to permit affiliated persons of each Fund, or 
affiliated persons of any of these persons, to participate in any joint 
arrangement in which the Fund is a participant. Joint transactions in 
which a Fund may participate could include the following: (a) an 
investment by one or more Funds in a security in which SZD or its 
affiliated person, or another Fund, is a participant, or with respect 
to which SZD or an affiliated person is entitled to receive fees 
(including, but not limited to, legal fees, placement fees, investment 
banking fees, brokerage commissions, or other economic benefits or 
interests); and (b) an investment by one or more Funds in a security in 
which an affiliate is or may become a participant.
    6. Applicants state that strict compliance with section 17(d) would 
cause the Funds to forego investment opportunities simply because a 
Fund Investor, SZD or other affiliates of the Fund also had made or 
contemplated making a similar investment. In addition, because 
investment opportunities of the types considered by the Funds often 
require that each participant make available funds in an amount that 
may be substantially greater than that available to the investor alone, 
there may be certain attractive opportunities of which a Fund may be 
unable to take advantage except as a co-participant with other persons, 
including affiliates. Applicants note that, in light of SZD's purpose 
of establishing the Funds so as to reward Eligible Investors and to 
attract highly qualified personnel to SZD, the possibility is minimal 
that an affiliated party investor will enter into a transaction with a 
Fund with the intent of disadvantaging the Fund. Finally, applicants 
contend that the possibility that a Fund may be disadvantaged by the 
participation of an affiliate in a transaction will be minimized by 
compliance with the lockstep procedures described in condition 4 below. 
Applicants assert that the flexibility to structure co-investments and 
joint investments will not involve abuses of the type section 17(d) and 
rule 17d-1 were designed to prevent.
    7. Section 17(f) of the Act designates the entities that may act as 
investment company custodians, and rule 17f-2 allows an investment 
company to act as self-custodian, subject to certain requirements. 
Applicants request an exemption from section 17(f) and rule 17f-2 to 
permit the following exceptions from the requirements of rule 17f-2: 
(a) A Fund's investments may be kept in the locked files of SZD or of a 
Principal; (b) for purposes of paragraph (d) of the rule, (i) employees 
of SZD will be deemed employees of the Funds, (ii) officers of the 
General Partner and the General Partner of a Fund will be deemed to be 
officers of the Fund, and (iii) the General Partner of a Fund will be 
deemed to be the board of directors of the Fund; and (c) in place of 
the verification procedure under paragraph (f) of the rule, 
verification will be effected quarterly by two employees of SZD. 
Applicants assert that the securities held by the Funds are most 
suitably kept in SZD's files, where they can be referred to as 
necessary.
    8. Section 17(g) and rule 17g-1 generally require the bonding of 
officers and employees of a registered investment company who have 
access to its securities or funds. Rule 17g-1 requires that a majority 
of directors who are not interested persons (``disinterested 
directors'') take certain

[[Page 595]]

actions and give certain approvals relating to fidelity bonding. 
Paragraph (g) of rule 17g-1 sets forth certain materials relating to 
the fidelity bond that must be filed with the Commission and certain 
notices relating to the fidelity bond that must be given to each member 
of the investment company's board of directors. Paragraph (h) of rule 
17g-1 provides that an investment company must designate one of its 
officers to make the filings and give the notices required by paragraph 
(g). Paragraph (j) of rule 17g-1 exempts a joint insured bond provided 
and maintained by an investment company and one or more other parties 
from section 17(d) of the Act and the rules thereunder. Rule 17g-
1(j)(3) requires that the board of directors of an investment company 
satisfy the fund governance standards defined in rule 0-1(a)(7). 
Applicants request an exemption from section 17(g) and rule 17g-1 to 
the extent necessary to permit each Fund to comply with rule 17g-1 
without the necessity of having a majority of the disinterested 
directors take such action and make such approvals as are set forth in 
the rule. Specifically, each Fund will comply with rule 17g-1 by having 
the General Partner take such actions and make such approvals as are 
set forth in rule 17g-1. Applicants state that, because the General 
Partner will be an interested person of the Fund, a Fund could not 
comply with rule 17g-1 without the requested relief. Applicants also 
request an exemption from the requirements of rule 17g-1(g) and (h) 
relating to the filing of copies of fidelity bonds and related 
information with the Commission and the provision of notices to the 
board of directors and from the requirements of rule 17g-1(j)(3). 
Applicants believe the filing requirements are burdensome and 
unnecessary as applied to the Funds. The General Partner will maintain 
the materials otherwise required to be filed with the Commission by 
rule 17g-1(g) and agree that all such material will be subject to 
examination by the Commission and its staff. The General Partner will 
designate a person to maintain the records otherwise required to be 
filed with the Commission under paragraph (g) of the rule. Applicants 
also state that the notices otherwise required to be given to the board 
of directors would be unnecessary as the Funds will not have boards of 
directors. The Funds will comply with all other requirements of rule 
17g-1.
    9. Section 17(j) and paragraph (b) of rule 17j-1 make it unlawful 
for certain enumerated persons to engage in fraudulent or deceptive 
practices in connection with the purchase or sale of a security held or 
to be acquired by a registered investment company. Rule 17j-1 also 
requires that every registered investment company adopt a written code 
of ethics and that every access person of a registered investment 
company report personal securities transactions. Applicants request an 
exemption from the requirements of rule 17j-1, except for the anti-
fraud provisions of paragraph (b), because they are unnecessarily 
burdensome as applied to the Funds.
    10. Applicants request an exemption from the requirements in 
sections 30(a), 30(b) and 30(e), and the rules under those sections, 
that registered investment companies prepare and file with the 
Commission and mail to their shareholders certain periodic reports and 
financial statements. Applicants contend that the forms prescribed by 
the Commission for periodic reports have little relevance to the Funds 
and would entail administrative and legal costs that outweigh any 
benefit to the Fund Investors. Applicants request exemptive relief to 
the extent necessary to permit each Fund to report annually to its Fund 
Investors. Applicants also request an exemption from section 30(h) to 
the extent necessary to exempt the General Partner of each Fund and any 
other persons who may be deemed members of an advisory board of a Fund 
from filing Forms 3, 4 and 5 under section 16 of the Exchange Act with 
respect to their ownership of Interests in the Fund. Applicants assert 
that, because there will be no trading market and the transfers of 
Interests will be severely restricted, these filings are unnecessary 
for the protection of investors and burdensome to those required to 
make them.
    11. Rule 38a-1 requires investment companies to adopt, implement 
and periodically review written policies and procedures reasonably 
designed to prevent violation of the federal securities laws and to 
appoint a chief compliance officer. The Funds will comply with rule 
38a-1(a), (c) and (d), except that (a) since the Funds do not have 
boards of directors, the board of directors of the General Partner will 
fulfill the responsibilities assigned to a Fund's board of directors 
under the rule, and (b) since the board of directors of the General 
Partner does not have any disinterested members, approval by a majority 
of the disinterested board members required by rule 38a-1 will not be 
obtained.

Applicants' Conditions

    The applicants agree that any order granting the requested relief 
will be subject to the following conditions:

Fund Operations

    1. Each proposed transaction to which a Fund is a party otherwise 
prohibited by section 17(a) or section 17(d) and rule 17d-1 (each, a 
``Section 17 Transaction'') will be effected only if the General 
Partner determines that: (a) The terms of the Section 17 Transaction, 
including the consideration to be paid or received, are fair and 
reasonable to the Fund Investors of the participating Fund and do not 
involve overreaching of the Fund or its Fund Investors on the part of 
any person concerned; and (b) the Section 17 Transaction is consistent 
with the interests of the Fund Investors of the participating Fund, the 
Fund's organizational documents and the Fund's reports to its Fund 
Investors.
    In addition, the General Partner will record and preserve a 
description of such Section 17 Transactions, its findings, the 
information or materials upon which its findings are based and the 
basis therefor. All such records will be maintained for the life of a 
Fund and at least five years thereafter, and will be subject to 
examination by the Commission and its staff. All such records will be 
maintained in an easily accessible place for at least the first two 
years.
    2. If purchases or sales are made by a Fund from or to an entity 
affiliated with the Fund by reason of a Principal or employee of the 
SZD Group (a) serving as an officer, director, general partner or 
investment adviser of the entity, or (b) having a 5% or more investment 
in the entity, such individual will not participate in the Fund's 
determination of whether or not to effect the purchase or sale.
    3. The General Partner will adopt, and periodically review and 
update, procedures designed to ensure that reasonable inquiry is made, 
prior to the consummation of any Section 17 Transaction, with respect 
to the possible involvement in the transaction of any affiliated person 
or promoter of or principal underwriter for the Funds, or any 
affiliated person of such a person, promoter, or principal underwriter.
    4. The General Partner will not make on behalf of a Fund any 
investment in which a Co-Investor, as defined below, has or proposes to 
acquire the same class of securities of the same issuer, where the 
investment involves a joint enterprise or other joint arrangement 
within the meaning of rule 17d-1 in which the Fund and the Co-Investor 
are

[[Page 596]]

participants, unless any such Co-Investor, prior to disposing of all or 
part of its investment, (a) gives the General Partner sufficient, but 
not less than one day's, notice of its intent to dispose of its 
investment, and (b) refrains from disposing of its investment unless 
the participating Fund holding such investment has the opportunity to 
dispose of its investment prior to or concurrently with, on the same 
terms as, and on a pro rata basis with the Co-Investor. The term ``Co-
Investor'' with respect to any Fund means any person who is (a) an 
``affiliated person'' (as defined in section 2(a)(3) of the Act) of the 
Fund; (b) the SZD Group; (c) a Principal, lawyer, or employee of the 
SZD Group; (d) an investment vehicle offered, sponsored, or managed by 
SZD or an affiliated person of SZD; or (e) an entity in which an SZD 
entity acts as a general partner or has a similar capacity to control 
the sale or other disposition of the entity's securities.
    The restrictions contained in this condition, however, shall not be 
deemed to limit or prevent the disposition of an investment by a Co-
Investor: (a) To its direct or indirect wholly-owned subsidiary, to any 
company (a ``parent'') of which the Co-Investor is a direct or indirect 
wholly-owned subsidiary, or to a direct or indirect wholly-owned 
subsidiary of its parent; (b) to Immediate Family Members of the Co-
Investor or a trust established for any such Immediate Family Member; 
(c) when the investment is comprised of securities that are listed on a 
national securities exchange registered under section 6 of the Exchange 
Act; or (d) when the investment is comprised of securities that are 
national market system securities pursuant to section 11A(a)(2) of the 
Exchange Act and rule 11Aa2-1 thereunder.
    5. The General Partner of each Fund will send to each person who 
was a Fund Investor in such Fund at any time during the fiscal year 
then ended audited financial statements with respect to those Series in 
which the Fund Investor held Interests. At the end of each fiscal year, 
the General Partner will make a valuation or have a valuation made of 
all of the assets of the Fund as of the fiscal year end in a manner 
consistent with customary practice with respect to the valuation of 
assets of the kind held by the Fund. In addition, as soon as 
practicable after the end of each fiscal year of each Fund, the General 
Partner of the Fund shall send a report to each person who was a Fund 
Investor at any time during the fiscal year then ended, setting forth 
such tax information as shall be necessary for the preparation by the 
Fund Investor of his or her federal and state income tax returns and a 
report of the investment activities of such Fund during such year.
    6. Each Fund and the General Partner will maintain and preserve, 
for the life of each Series of that Fund and at least five years 
thereafter, such accounts, books, and other documents as constitute the 
record forming the basis for the audited financial statements and 
annual reports of such Series to be provided to its Fund Investors, and 
agree that all such records will be subject to examination by the 
Commission and its staff. All such records will be maintained in an 
easily accessible place for at least the first two years.

Compliance With Rule 701

    7. Prior to receiving a subscription agreement from any potential 
Fund Investor pursuant to an offering in reliance on rule 701, SZD will 
make available at no charge to potential Fund Investors the services of 
a Financial Consultant qualified to provide advice concerning the 
appropriateness of investing in a Fund. Specifically, the Financial 
Consultant will hold one or more group meetings with potential Fund 
Investors at which the Financial Consultant will discuss the risks and 
other considerations relevant to determining whether to invest in a 
Fund. The Financial Consultant also will be available to the group of 
potential Fund Investors to answer general questions regarding an 
investment in the Fund. In addition, potential Fund Investors will be 
given the opportunity to submit relevant questions and issues to the 
Financial Consultant in advance of the group meetings, so that the 
Financial Consultant can address those questions and issues at the 
meetings. SZD will not need to reveal the specific investments made by 
any Fund to the Financial Consultant, as long as the investment 
objectives, risk characteristics and other material information about 
the Fund of the type that would be disclosed in the offering documents 
for the Fund is made available to the Financial Consultant.
    8. SZD will at all times control each Fund, within the meaning of 
rule 405 under the Securities Act. In this regard, SZD will, either 
directly or through a wholly-owned subsidiary, be the General Partner 
of the Fund, own at least 95% of the voting Interests of the Fund, and 
make all investment and other operational decisions for the Fund.
    9. SZD or a wholly-owned subsidiary will own not less than 5% of 
the economic Interests issued each year by the Fund, and (as discussed 
above) at least 95% of the voting Interests of the Fund. In addition, 
SZD and its Principals, directly or through Qualified Investment 
Vehicles, together will own at least 80% of the economic Interests of 
each Series.
    10. SZD prepares its financial statements on a modified cash basis, 
and does not consolidate the Fund's financial statements with its own. 
If, however, SZD prepared its financial statements in accordance with 
GAAP, it would consolidate the Fund's financial statements with its 
own.
    11. SZD, when offering Interests pursuant to rule 701 under the 
Securities Act, will issue Interests in each Series in compliance with 
rule 701(d)(2),\4\ and will comply with all applicable requirements of 
rule 701(e).\5\
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    \4\ If SZD relies on rule 701(d)(2)(ii), it will not sell 
pursuant to rule 701, during any consecutive 12-month period, 
Interests in the Fund if the sales price of those Interests exceeds 
15% of the total assets of the Fund.
    \5\ In order to comply with the requirements of rule 701, at the 
beginning of each Investment Period the Fund will accept capital 
contributions or irrevocable commitments from Regulation D Investors 
for the relevant Series, and then prepare a balance sheet as 
required by rule 701. The Fund may then receive and accept 
subscription agreements, and thereafter accept capital contributions 
or commitments, from Rule 701 Investors for that Series, which in 
the aggregate will not exceed 15% of the total amount of capital 
contributions and irrevocable commitments received from Regulation D 
Investors.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. E6-22605 Filed 1-4-07; 8:45 am]
BILLING CODE 8011-01-P