[Federal Register Volume 73, Number 15 (Wednesday, January 23, 2008)]
[Notices]
[Pages 4023-4027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1057]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 28119; 812-13424]


Northern Institutional Funds, et al.; Notice of Application

January 16, 2008.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of application for an order under section 12(d)(1)(J) of 
the Investment Company Act of 1940 (``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 section 17(a) of the Act.

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Summary of the Application: Applicants request an order that would 
permit certain registered open-end management investment companies to 
acquire shares of other registered open-end management investment 
companies and unit investment trusts that are within and outside the 
same group of investment companies.

Applicants: Northern Institutional Funds (``NIF''), Northern Funds 
(``NF,'' and together with NIF, the ``Trusts''), and Northern Trust 
Investments, N.A. (``Adviser'').

Filing Dates: The application was filed on September 12, 2007. 
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 February 11, 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, U.S. Securities and Exchange Commission, 100 F 
Street, NE., Washington, DC 20549-1090; Applicants, c/o Diana E. 
McCarthy, Drinker Biddle & Reath LLP, One Logan Square, 18th and Cherry 
Streets, Philadelphia, PA 19103-6996.

FOR FURTHER INFORMATION CONTACT: Emerson S. Davis, Sr., Senior Counsel, 
at (202) 551-6868, or Mary Kay Frech, Branch Chief, at (202) 551-6821 
(Office of Investment Company Regulation, Division of Investment 
Management).

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 (telephone (202) 551-5850).

Applicants' Representations

    1. The Trusts, organized as Delaware statutory trusts, are 
registered under the Act as open-end management investment companies 
and offer multiple series, each of which has its own distinct 
investment objectives and policies (``Funds''). The Balanced Portfolio, 
a series of NIF, is currently the only Fund that intends to rely on the 
requested relief. The Adviser, a wholly-owned subsidiary of The 
Northern Trust Company, is registered as an investment adviser under 
the Investment Advisers Act of 1940 and serves as investment adviser to 
the Funds.

[[Page 4024]]

    2. Applicants request relief to permit: (a) A Fund (a ``Fund of 
Funds'') to acquire shares of registered open-end management investment 
companies that are not part of the ``same group of investment 
companies'' (as defined in section 12(d)(1)(G)(ii) of the Act) as the 
Fund of Funds (the ``Unaffiliated Investment Companies'') and unit 
investment trusts (``UITs'') that are not part of the same group of 
investment companies as the Fund of Funds (``Unaffiliated Trusts,'' and 
together with Unaffiliated Investment Companies, the ``Unaffiliated 
Funds''); (b) the Unaffiliated Funds, their principal underwriter and 
any broker or dealer registered under the Securities Exchange Act of 
1934 (``Broker'') to sell their shares to the Fund of Funds; (c) the 
Fund of Funds to acquire shares of certain other Funds in the same 
group of investment companies as the Fund of Funds (the ``Affiliated 
Funds,'' and together with the Unaffiliated Funds, the ``Underlying 
Funds''); and (d) the Affiliated Funds, their principal underwriter and 
Brokers to sell their shares to the Fund of Funds.\1\ Certain of the 
Unaffiliated Funds may be registered under the Act as either UITs or 
open-end management investment companies and have received exemptive 
relief to permit their shares be listed and traded on a national 
securities exchange at negotiated prices (``ETFs'').\2\ Each Fund of 
Funds also may invest in government securities, domestic and foreign 
common and preferred stock, income-bearing securities, certain types of 
futures contracts and options thereon, and in other securities and 
investments that are not issued by registered investment companies and 
that are consistent with its investment objective, including money 
market instruments.
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    \1\ Applicants request that the order extend to any future 
Funds, and any other existing or future registered open-end 
management investment companies and their series that are part of 
the same group of investment companies, as defined in section 
12(d)(1)(G)(ii) of the Act, as the Trusts and are, or may in the 
future be, advised by the Adviser or any other investment adviser 
controlling, controlled by, or under common control with the Adviser 
(included in the term, ``Funds''). The Trusts are the only 
registered investment companies that currently intend to rely on the 
requested order. Any other entity that relies on the order in the 
future will comply with the terms and conditions of the application.
    \2\ Certain of the Affiliated Funds also may operate as ETFs; 
however, no Fund of Funds will be an ETF. See also infra note 5.
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Applicants' Legal Analysis

A. Section 12(d)(1)

    1. Section 12(d)(1)(A) of the Act prohibits a registered investment 
company from acquiring shares of an investment company if the 
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 broker or dealer from selling the shares of the investment company 
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.
    2. 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 provision of section 
12(d)(1) if the exemption is consistent with the public interest and 
the protection of investors. Applicants seek an exemption under section 
12(d)(1)(J) of the Act to permit the Funds of Funds to acquire shares 
of the Underlying Funds in excess of the limits set forth in section 
12(d)(1)(A) of the Act and to permit the Underlying Funds, their 
principal underwriters and any Broker to sell shares to the Funds of 
Funds in excess of the limits set forth in section 12(d)(1)(B) of the 
Act.
    3. Applicants state that the proposed arrangement will not give 
rise to the policy concerns underlying sections 12(d)(1)(A) and (B), 
which include concerns about undue influence by a fund of funds or its 
affiliated persons over underlying funds, excessive layering of fees, 
and overly complex fund structures. Accordingly, applicants believe 
that the requested exemption is consistent with the public interest and 
the protection of investors.
    4. Applicants state that the proposed arrangement will not result 
in undue influence by a Fund of Funds or its affiliated persons over 
the Underlying Funds. The concern about undue influence does not arise 
in connection with a Fund of Funds' investment in the Affiliated Funds, 
since they are part of the same group of investment companies. To limit 
the control that a Fund of Funds or its affiliated persons may have 
over an Unaffiliated Fund, applicants propose condition 1 below, which 
prohibits: (a) The Adviser and any person controlling, controlled by or 
under common control with the Adviser, any investment company and any 
issuer that would be an investment company but for section 3(c)(1) or 
section 3(c)(7) of the Act advised or sponsored by the Adviser or any 
person controlling, controlled by or under common control with the 
Adviser (collectively, the ``Group''), and (b) any investment adviser 
within the meaning of section 2(a)(20)(B) of the Act to a Fund of Funds 
(``Sub-Adviser'') and any person controlling, controlled by or under 
common control with the Sub-Adviser, and any investment company or 
issuer that would be an investment company but for section 3(c)(1) or 
3(c)(7) of the Act (or portion of such investment company or issuer) 
advised by the Sub-Adviser or any person controlling, controlled by or 
under common control with the Sub-Adviser (collectively, the ``Sub-
Adviser Group'') from controlling (individually or in the aggregate) an 
Unaffiliated Fund within the meaning of section 2(a)(9) of the Act.
    5. Applicants further state that condition 2 below precludes a Fund 
of Funds or the Adviser, any Sub-Adviser, promoter or principal 
underwriter of a Fund of Funds, and any person controlling, controlled 
by, or under common control with any of those entities (each, a ``Fund 
Affiliate'') from taking advantage of an Unaffiliated Fund with respect 
to transactions between a Fund of Funds or a Fund Affiliate and the 
Unaffiliated Fund or its investment adviser(s), sponsor, promoter, and 
principal underwriter and any person controlling, controlled by or 
under common control with any of those entities (each, an 
``Unaffiliated Fund Affiliate''). No Fund of Funds or Fund Affiliate 
(except to the extent it is acting in its capacity as an investment 
adviser to an Unaffiliated Investment Company or sponsor to an 
Unaffiliated Trust) will cause an Unaffiliated Fund to purchase a 
security in an offering of securities during the existence of any 
underwriting or selling syndicate of which a principal underwriter is 
an officer, director, trustee, advisory board member, investment 
adviser, Sub-Adviser, or employee of the Fund of Funds, or a person of 
which any such officer, director, trustee, investment adviser, Sub-
Adviser, member of an advisory board, or employee is an affiliated 
person (each, an ``Underwriting Affiliate,'' except any person whose 
relationship to the Unaffiliated Fund is covered by section 10(f) of 
the Act is not an Underwriting Affiliate). An offering of securities 
during the existence of any underwriting or selling syndicate of which 
a principal underwriter is an Underwriting Affiliate is an ``Affiliated 
Underwriting.''
    6. To further assure that an Unaffiliated Investment Company

[[Page 4025]]

understands the implications of an investment by a Fund of Funds under 
the requested order, prior to a Fund of Funds' investment in the shares 
of an Unaffiliated Investment Company in excess of the limit in section 
12(d)(1)(A)(i) of the Act, a Fund of Funds and the Unaffiliated 
Investment Company will execute an agreement stating, without 
limitation, that their boards of directors or trustees (``Boards'') and 
their investment advisers understand the terms and conditions of the 
order and agree to fulfill their responsibilities under the order 
(``Participation Agreement'').
    7. Applicants do not believe that the proposed arrangement will 
involve excessive layering of fees. The Board of each Fund of Funds, 
including a majority of the trustees who are not ``interested 
persons,'' as defined in section 2(a)(19) of the Act (``Independent 
Trustees''), will find that the advisory fees charged under the 
advisory contract are based on services provided that are in addition 
to, rather than duplicative of, services provided pursuant to any 
Underlying Fund's advisory contract(s). Applicants further state that 
the Adviser will waive fees otherwise payable to it by a Fund of Funds 
in an amount at least equal to any compensation (including fees 
received pursuant to any plan adopted by an Unaffiliated Investment 
Company pursuant to rule 12b-1 under the Act) received from an 
Unaffiliated Fund by the Adviser, or an affiliated person of the 
Adviser, other than any advisory fees paid to the Adviser or an 
affiliated person of the Adviser by the Unaffiliated Fund, in 
connection with the investment by the Fund of Funds in the Unaffiliated 
Fund.
    8. Applicants state that any sales charges and/or service fees 
charged with respect to shares of a Fund of Funds will not exceed the 
limits applicable to funds of funds set forth in Rule 2830 of the 
Conduct Rules of the NASD.
    9. Applicants state that the proposed arrangement will not create 
an overly complex fund structure. Applicants note that an Underlying 
Fund will be prohibited from acquiring securities of any investment 
company or company relying on section 3(c)(1) or 3(c)(7) of the Act in 
excess of the limits contained in section 12(d)(1)(A) of the Act, 
except in certain circumstances identified in condition 12 below. 
Applicants also represent that a Fund of Funds' prospectus and sales 
literature will contain concise, ``plain English'' disclosure designed 
to inform investors about the unique characteristics of the proposed 
arrangement, including, but not limited to, the expense structure and 
the additional expenses of investing in Underlying Funds.

B. Section 17(a)

    1. Section 17(a) of the Act generally prohibits sales or purchases 
of securities between a registered investment company and any 
affiliated persons of the company. Section 2(a)(3) of the Act defines 
an ``affiliated person'' of another person to include (a) any person 
directly or indirectly owning, controlling, or holding with power to 
vote, 5% or more of the outstanding voting securities of the other 
person; (b) any person 5% or more of whose outstanding voting 
securities are directly or indirectly owned, controlled, or held with 
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.
    2. Applicants state that the Funds of Funds and the Affiliated 
Funds may be deemed to be under common control of the Adviser and 
therefore affiliated persons of one another. Applicants also state that 
a Fund of Funds and the Underlying Funds may be deemed to be affiliated 
persons of each other if a Fund of Funds acquires 5% or more of an 
Underlying Fund's outstanding voting securities. In light of these 
possible affiliations, section 17(a) could prevent an Underlying Fund 
from selling shares to and redeeming shares from a Fund of Funds.\3\
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    \3\ Applicants acknowledge that receipt of any compensation by 
(a) an affiliated person of a Fund of Funds, or an affiliated person 
of such person, for the purchase by the Fund of Funds of shares of 
an Underlying Fund or (b) an affiliated person of an Underlying 
Fund, or an affiliated person of such person, for the sale by the 
Underlying Fund of its shares to a Fund of Funds may be prohibited 
by section 17(e)(1) of the Act. The Participation Agreement also 
will include this acknowledgement.
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    3. Section 17(b) of the Act authorizes the Commission to grant an 
order permitting a transaction otherwise prohibited by section 17(a) if 
it finds that (a) the terms of the proposed transaction are fair and 
reasonable and do not involve overreaching on the part of any person 
concerned; (b) the proposed transaction is consistent with the policies 
of each registered investment company involved; and (c) the proposed 
transaction is consistent with the general purposes of the Act. Section 
6(c) of the Act permits the Commission to exempt any person or 
transactions from any provision of the Act if such exemption is 
necessary or appropriate in the public interest and consistent with the 
protection of investors and the purposes fairly intended by the policy 
and provisions of the Act.
    4. Applicants submit that the proposed transactions satisfy the 
requirements for relief under sections 17(b) and 6(c) of the Act as the 
terms are fair and reasonable and do not involve overreaching. 
Applicants state that the terms upon which an Underlying Fund will sell 
its shares to or purchase its shares from a Fund of Funds will be based 
on the net asset value of each Underlying Fund.\4\ Applicants also 
state that the proposed transactions will be consistent with the 
policies of each Fund of Funds and Underlying Fund, and with the 
general purposes of the Act.
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    \4\ Applicants note that a Fund of Funds generally would 
purchase and sell shares of an Unaffiliated Fund that operates as an 
ETF through secondary market transactions at market prices rather 
than through principal transactions with the Unaffiliated Fund at 
net asset value. Applicants would not rely on the requested relief 
from section 17(a) for such secondary market transactions. A Fund of 
Funds could seek to transact in ``Creation Units'' directly with an 
ETF that is an Unaffiliated Fund pursuant to the requested section 
17(a) relief. Applicants are not requesting, and the Commission is 
not granting, any relief from section 17(a) to purchase and redeem 
Creation Units of any ETF that is an Affiliated Fund.
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Applicants' Conditions

    Applicants agree that any order granting the requested relief shall 
be subject to the following conditions:
    1. The members of the Group will not control (individually or in 
the aggregate) an Unaffiliated Fund within the meaning of section 
2(a)(9) of the Act. The members of a Sub-Adviser Group will not control 
(individually or in the aggregate) an Unaffiliated Fund within the 
meaning of section 2(a)(9) of the Act. If, as a result of a decrease in 
the outstanding voting securities of an Unaffiliated Fund, the Group or 
a Sub-Adviser Group, each in the aggregate, becomes a holder of more 
than 25% of the outstanding voting securities of the Unaffiliated Fund, 
then the Group or the Sub-Adviser Group will vote its shares of the 
Unaffiliated Fund in the same proportion as the vote of all other 
holders of the Unaffiliated Fund's shares. This condition will not 
apply to a Sub-Adviser Group with respect to an Unaffiliated Fund for 
which the Sub-Adviser or a person controlling, controlled by, or under 
common control with the Sub-Adviser acts as the investment adviser 
within the meaning of section 2(a)(20)(A) of the Act (in the case of an 
Unaffiliated Investment Company) or as the sponsor (in the case of an 
Unaffiliated Trust).
    2. No Fund of Funds or Fund Affiliate will cause any existing or 
potential investment by the Fund of Funds in an Unaffiliated Fund to 
influence the terms of any services or transactions between

[[Page 4026]]

the Fund of Funds or a Fund Affiliate and the Unaffiliated Fund or an 
Unaffiliated Fund Affiliate.
    3. The Board of each Fund of Funds, including a majority of the 
Independent Trustees, will adopt procedures reasonably designed to 
assure that its Adviser and any Sub-Adviser to the Fund of Funds are 
conducting the investment program of the Fund of Funds without taking 
into account any consideration received by the Fund of Funds or Fund 
Affiliate from an Unaffiliated Fund or an Unaffiliated Fund Affiliate 
in connection with any services or transactions.
    4. Once an investment by a Fund of Funds in the securities of an 
Unaffiliated Investment Company exceeds the limit of section 
12(d)(1)(A)(i) of the Act, the Board of the Unaffiliated Investment 
Company, including a majority of the Independent Trustees, will 
determine that any consideration paid by the Unaffiliated Investment 
Company to a Fund of Funds or a 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 
Unaffiliated Investment Company; (b) is within the range of 
consideration that the Unaffiliated Investment Company 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 an Unaffiliated 
Investment Company and its investment adviser(s), or any person 
controlling, controlled by, or under common control with such 
investment adviser(s).
    5. No Fund of Funds or Fund Affiliate (except to the extent it is 
acting in its capacity as an investment adviser to an Unaffiliated 
Investment Company or sponsor to an Unaffiliated Trust) will cause an 
Unaffiliated Fund to purchase a security in any Affiliated 
Underwriting.
    6. The Board of an Unaffiliated Investment Company, including a 
majority of the Independent Trustees, will adopt procedures reasonably 
designed to monitor any purchases of securities by the Unaffiliated 
Investment Company in an Affiliated Underwriting once an investment by 
a Fund of Funds in the securities of the Unaffiliated Investment 
Company exceeds the limit of section 12(d)(1)(A)(i) of the Act, 
including any purchases made directly from an Underwriting Affiliate. 
The Board of the Unaffiliated Investment Company will review these 
procedures periodically, but no less frequently than annually, to 
determine whether the purchases were influenced by the investment by 
the Fund of Funds in the Unaffiliated Investment Company. The Board of 
the Unaffiliated Investment Company will consider, among other things: 
(a) Whether the purchases were consistent with the investment 
objectives and policies of the Unaffiliated Investment Company; (b) how 
the performance of securities purchased in an Affiliated Underwriting 
compares to the performance of comparable securities purchased during a 
comparable period of time in underwritings other than Affiliated 
Underwritings or to a benchmark such as a comparable market index; and 
(c) whether the amount of securities purchased by the Unaffiliated 
Investment Company in Affiliated Underwritings and the amount purchased 
directly from an Underwriting Affiliate have changed significantly from 
prior years. The Board of an Unaffiliated Investment Company 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.
    7. Each Unaffiliated Investment Company will maintain and preserve 
permanently in an easily accessible place a written copy of the 
procedures described in the preceding condition, and any modifications 
to such procedures, and will maintain and preserve for a period of not 
less than six years from the end of the fiscal year in which any 
purchase from an Affiliated Underwriting occurred, the first two years 
in an easily accessible place, a written record of each purchase of 
securities in an Affiliated Underwriting once an investment by a Fund 
of Funds in the securities of an Unaffiliated Investment Company 
exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting forth 
the (a) party from whom the securities were acquired, (b) identity of 
the underwriting syndicate's members, (c) terms of the purchase, and 
(d) information or materials upon which the determinations of the Board 
of the Unaffiliated Investment Company were made.
    8. Prior to its investment in shares of an Unaffiliated Investment 
Company in excess of the limit in section 12(d)(1)(A)(i) of the Act, 
the Fund of Funds and the Unaffiliated Investment Company will execute 
a Participation Agreement stating, without limitation, that their 
Boards and their investment advisers understand the terms and 
conditions of the order and agree to fulfill their responsibilities 
under the order. At the time of its investment in shares of an 
Unaffiliated Investment Company in excess of the limit in section 
12(d)(1)(A)(i), a Fund of Funds will notify the Unaffiliated Investment 
Company of the investment. At such time, the Fund of Funds will also 
transmit to the Unaffiliated Investment Company a list of the names of 
each Fund of Funds Affiliate and Underwriting Affiliate. The Fund of 
Funds will notify the Unaffiliated Investment Company of any changes to 
the list as soon as reasonably practicable after a change occurs. The 
Unaffiliated Investment Company and the Fund of Funds will maintain and 
preserve a copy of the order, the Participation Agreement, and the list 
with any updated information for the duration of the investment and for 
a period of not less than six years thereafter, the first two years in 
an easily accessible place.
    9. Before approving any advisory contract under section 15 of the 
Act, the Board of each Fund of Funds, including a majority of the 
Independent Trustees, shall find that the advisory fees charged under 
the advisory contract are based on services provided that are in 
addition to, rather than duplicative of, services provided under the 
advisory contract(s) of any Underlying Fund in which the Fund of Funds 
may invest. Such finding, and the basis upon which the finding was 
made, will be recorded fully in the minute books of the appropriate 
Fund of Funds.
    10. The Adviser will waive fees otherwise payable to it by a Fund 
of Funds in an amount at least equal to any compensation (including 
fees received pursuant to any plan adopted by an Unaffiliated 
Investment Company pursuant to rule 12b-1 under the Act) received from 
an Unaffiliated Fund by the Adviser, or an affiliated person of the 
Adviser, other than any advisory fees paid to the Adviser or its 
affiliated person by the Unaffiliated Fund, in connection with the 
investment by the Fund of Funds in the Unaffiliated Fund. Any Sub-
Adviser will waive fees otherwise payable to the Sub-Adviser, directly 
or indirectly, by the Fund of Funds in an amount at least equal to any 
compensation received by the Sub-Adviser, or an affiliated person of 
the Sub-Adviser, from an Unaffiliated Fund, other than any advisory 
fees paid to the Sub-Adviser or its affiliated person by the 
Unaffiliated Investment Company, in connection with the investment by 
the Fund of Funds in the Unaffiliated Investment Company made at the 
direction of the Sub-Adviser. In the event that the Sub-Adviser waives 
fees,

[[Page 4027]]

the benefit of the waiver will be passed through to the Fund of Funds.
    11. Any sales charges and/or service fees charged with respect to 
shares of a Fund of Funds will not exceed the limits applicable to 
funds of funds set forth in NASD Conduct Rule 2830.
    12. No Underlying Fund will acquire securities of any other 
investment company or company relying on section 3(c)(1) or 3(c)(7) of 
the Act, in excess of the limits contained in section 12(d)(1)(A) of 
the Act, except to the extent that such Underlying Fund: (a) Receives 
securities of another investment company as a dividend or as a result 
of a plan of reorganization of a company (other than a plan devised for 
the purpose of evading section 12(d)(1) of the Act); or (b) acquires 
(or is deemed to have acquired) securities of another investment 
company pursuant to exemptive relief from the Commission permitting 
such Underlying Fund to: (i) Acquire securities of one or more 
affiliated investment companies for short-term cash management 
purposes, or (ii) engage in interfund borrowing and lending 
transactions.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E8-1057 Filed 1-22-08; 8:45 am]
BILLING CODE 8011-01-P