[Federal Register Volume 77, Number 215 (Tuesday, November 6, 2012)]
[Notices]
[Pages 66651-66658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27001]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30254; 812-13974]


Salient Advisors, L.P. and MarketShares ETF Trust; Notice of 
Application

October 31, 2012

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

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Applicants: Salient Advisors, L.P. (``Salient'') and MarketShares ETF 
Trust (the ``Trust'').

Summary of Application: Applicants request an order that permits: (a) 
Actively-managed series of the Trust to issue shares (``Shares'') 
redeemable in large aggregations only (``Creation Units''); (b) 
secondary market transactions in Shares to occur at negotiated market 
prices; (c) certain series to pay redemption proceeds, under certain 
circumstances, more than seven days after the tender of Shares for 
redemption; (d) certain affiliated persons of the series to deposit 
securities into, and receive securities from, the series in connection 
with the purchase and redemption of Creation Units; and (e) certain 
registered management investment companies and unit investment trusts 
outside of the same group of investment companies as the series to 
acquire Shares.

Filing Dates: The application was filed on November 14, 2011, and 
amended on

[[Page 66652]]

May 9, 2012, and October 19, 2012. 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 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 November 26, 2012, 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: Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange 
Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants, c/
o Stacy L. Fuller, Esq., K&L Gates LLP, 1601 K Street NW., Washington, 
DC 20006.

FOR FURTHER INFORMATION CONTACT: Mark N. Zaruba, Senior Counsel, at 
(202) 551-6878 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 via the 
Commission's Web site by searching for the file number, or an applicant 
using the Company name box, at http://www.sec.gov/search/search.htm or 
by calling (202) 551-8090.

Applicants' Representations

    1. The Trust will be registered as an open-end management 
investment company under the Act and is organized as a Delaware 
statutory trust. The Trust will initially offer one series, the Salient 
MLP and Energy Infrastructure ETF (the ``Initial Fund''). The 
investment objective of the Initial Fund will be to seek to provide a 
high level of total return with an emphasis on making quarterly cash 
distributions to shareholders. Salient, a Texas limited partnership, is 
registered as an investment adviser under the Investment Advisers Act 
of 1940 (``Advisers Act''), and will serve as investment adviser to the 
Initial Fund.
    2. Applicants request that the order apply to the Initial Fund and 
any future series of the Trust and to any other open-end investment 
company or series thereof that is an actively managed exchange-traded 
fund (``ETF'') and (a) is advised by Salient or an entity controlling, 
controlled by, or under common control with Salient (each such entity 
and any successor thereto included in the term ``Adviser'') \1\ and (b) 
complies with the terms and conditions of the application 
(collectively, ``Future Funds,'' and together with the Initial Fund, 
the ``Funds'').\2\ The Adviser may enter into subadvisory agreements 
with investment advisers to act as subadvisers with respect to the 
Funds (``Subadvisers''). Any Subadviser will be registered under the 
Advisers Act. A registered broker-dealer (``Broker) under the 
Securities Exchange Act of 1934 (``Exchange Act''), which may be an 
affiliate of the Adviser, will serve as the principal underwriter and 
distributor for each of the Funds (``Distributor'').
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    \1\ A successor is limited to an entity or entities that result 
from a reorganization into another jurisdiction or a change in the 
type of business organization. Any Adviser will be registered as an 
investment adviser under the Advisers Act.
    \2\ All entities that currently intend to rely on the order are 
named as applicants. Any entity that relies on the order in the 
future will comply with the terms and conditions of the application.
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    3. Each Fund will consist of a portfolio of securities (including 
fixed income securities and/or equity securities) and/or currencies 
traded in the U.S. or non-U.S. markets (``Portfolio Instruments''). To 
the extent consistent with other investment limitations, the Funds may 
invest all of their assets in mortgage- or asset-backed securities, 
including ``to-be-announced transactions'' or ``TBA Transactions,'' \3\ 
and may engage in forward commitment transactions.\4\ Funds may also 
invest in ``Depositary Receipts.'' \5\ Certain Funds may hold non-U.S. 
investments and are referred to as ``Global Funds.'' No Fund relying on 
the order will invest in options contracts, futures contracts or swap 
agreements.
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    \3\ A TBA Transaction is a method of trading mortgage-backed 
securities. In a TBA Transaction, the buyer and seller agree upon 
general trade parameters such as agency, settlement date, par amount 
and price. The actual pools delivered generally are determined two 
days prior to the settlement date.
    \4\ In a forward commitment transaction, the buyer/seller enters 
into a contract to purchase/sell, for example, specific securities 
for a fixed price at a future date beyond normal settlement time.
    \5\ Depositary Receipts are typically issued by a financial 
institution (a ``depositary'') and evidence ownership in a security 
or pool of securities that have been deposited with the depositary. 
A Fund will not invest in any Depositary Receipts that the Adviser 
deems to be illiquid or for which pricing information is not readily 
available. No affiliated persons of applicants will serve as the 
depositary bank for any Depositary Receipts held by a Fund.
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    4. Applicants also request that any exemption under section 
12(d)(1)(J) of the Act from sections 12(d)(1)(A) and (B) apply to: (1) 
Any Fund as well as any principal underwriter for such Fund and any 
Brokers selling Shares of such a Fund to an Investing Fund (as defined 
below); and (2) each management investment company or unit investment 
trust registered under the Act that is not part of the same ``group of 
investment companies,'' within the meaning of section 12(d)(1)(G)(ii) 
of the Act, as the Funds, and that enters into a FOF Participation 
Agreement (as defined below) with a Fund (such management investment 
companies, ``Investing Management Companies,'' such unit investment 
trusts, ``Investing Trusts,'' and Investing Management Companies and 
Investing Trusts together are ``Investing Funds''). Investing Funds do 
not include the Funds.\6\
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    \6\ An Investing Fund may rely on the order only to invest in a 
Fund and not in any other registered investment company.
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    5. Applicants anticipate that a Creation Unit will consist of at 
least 25,000 Shares and that the trading price of a Share will range 
from $10 to $25. All orders to purchase Creation Units must be placed 
with the Distributor by or through an ``Authorized Participant,'' which 
is either (a) a Broker or other participant in the Continuous Net 
Settlement System of the National Securities Clearing Corporation 
(``NSCC'', and such clearing process the ``NSCC Process''), or (b) a 
participant in the Depository Trust Company clearing process (``DTC,'' 
such participant ``DTC Participant,'' and such clearing process, the 
``DTC Process''), which, in either case, has executed an agreement with 
the Distributor with respect to the purchase and redemption of Creation 
Units.
    6. Shares will be purchased and redeemed in Creation Units and 
generally on an in-kind basis. Except where the purchase or redemption 
will include cash under the limited circumstances specified below, 
purchasers will be required to purchase Creation Units by making an in-
kind deposit of specified instruments (``Deposit Instruments''), and 
shareholders redeeming their Shares will receive an in-kind transfer of 
specified instruments (``Redemption Instruments'').\7\ On any given 
Business

[[Page 66653]]

Day \8\ the names and quantities of the instruments that constitute the 
Deposit Instruments and the names and quantities of the instruments 
that constitute the Redemption Instruments will be identical, and these 
instruments may be referred to, in the case of either a purchase or a 
redemption, as the ``Creation Basket.'' In addition, the Creation 
Basket will correspond pro rata to the positions in a Fund's portfolio 
(including cash positions),\9\ except: (a) In the case of bonds, for 
minor differences when it is impossible to break up bonds beyond 
certain minimum sizes needed for transfer and settlement; (b) for minor 
differences when rounding is necessary to eliminate fractional shares 
or lots that are not tradeable round lots; \10\ or (c) TBA Transactions 
and other positions that cannot be transferred in kind \11\ will be 
excluded from the Creation Basket.\12\ If there is a difference between 
the net asset value (``NAV'') attributable to a Creation Unit and the 
aggregate market value of the Creation Basket exchanged for the 
Creation Unit, the party conveying instruments with the lower value 
will also pay to the other an amount in cash equal to that difference 
(the ``Cash Amount'').
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    \7\ The Funds must comply with the federal securities laws in 
accepting Deposit Instruments and satisfying redemptions with 
Redemption Instruments, including that the Deposit Instruments and 
Redemption Instruments are sold in transactions that would be exempt 
from registration under the Securities Act of 1933 (``Securities 
Act''). In accepting Deposit Instruments and satisfying redemptions 
with Redemption Instruments that are restricted securities eligible 
for resale pursuant to Rule 144A under the Securities Act, the Funds 
will comply with the conditions of Rule 144A.
    \8\ Each Fund will sell and redeem Creation Units on any day the 
Fund is open, including as required by section 22(e) of the Act 
(each, a ``Business Day'').
    \9\ The portfolio used for this purpose will be the same 
portfolio used to calculate the Fund's NAV for that Business Day.
    \10\ A tradeable round lot for a security will be the standard 
unit of trading in that particular type of security in its primary 
market.
    \11\ This includes instruments that can be transferred in kind 
only with the consent of the original counterparty to the extent the 
Fund does not intend to seek such consents.
    \12\ Because these instruments will be excluded from the 
Creation Basket, their value will be reflected in the determination 
of the Cash Amount (defined below).
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    7. Purchases and redemptions of Creation Units may be made in whole 
or in part on a cash basis, rather than in kind, solely under the 
following circumstances: (a) To the extent there is a Cash Amount, as 
described above; (b) if, on a given Business Day, a Fund announces 
before the open of trading that all purchases, all redemptions or all 
purchases and redemptions on that day will be made entirely in cash; 
(c) if, upon receiving a purchase or redemption order from an 
Authorized Participant, a Fund determines to require the purchase or 
redemption, as applicable, to be made entirely in cash; (d) if, on a 
given Business Day, a Fund requires all Authorized Participants 
purchasing or redeeming Shares on that day to deposit or receive (as 
applicable) cash in lieu of some or all of the Deposit Instruments or 
Redemption Instruments, respectively, solely because: (i) Such 
instruments are not eligible for transfer through either the NSCC 
Process or DTC Process; or (ii) in the case of Global Funds, such 
instruments are not eligible for trading due to local trading 
restrictions, local restrictions on securities transfers or other 
similar circumstances; or (e) if a Fund permits an Authorized 
Participant to deposit or receive (as applicable) cash in lieu of some 
or all of the Deposit Instruments or Redemption Instruments, 
respectively, solely because: (i) such instruments are, in the case of 
the purchase of a Creation Unit, not available in sufficient quantity; 
(ii) such instruments are not eligible for trading by an Authorized 
Participant or the investor on whose behalf the Authorized Participant 
is acting; or (iii) a holder of Shares of a Global Fund would be 
subject to unfavorable income tax treatment if the holder receives 
redemption proceeds in kind.\13\
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    \13\ A ``custom order'' is any purchase or redemption of Shares 
made in whole or in part on a cash basis in reliance on clause 
(e)(i) or (e)(ii).
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    8. Each Business Day, before the open of trading on a national 
securities exchange, as defined in section 2(a)(26) of the Act (``Stock 
Exchange''), on which Shares are listed and traded, each Fund will 
cause to be published through the NSCC the names and quantities of the 
instruments comprising the Creation Basket, as well as the estimated 
Cash Amount (if any), for that day. The published Creation Basket will 
apply until a new Creation Basket is announced on the following 
Business Day, and there will be no intra-day changes to the Creation 
Basket except to correct errors in the published Creation Basket. The 
Stock Exchange will disseminate every 15 seconds throughout the trading 
day an amount representing, on a per Share basis, the sum of the 
current value of the Portfolio Instruments that were publicly disclosed 
prior to the commencement of trading in Shares on the Stock Exchange.
    9. An investor purchasing or redeeming a Creation Unit from a Fund 
will be charged a fee (``Transaction Fee'') to prevent the dilution of 
the interests of the remaining shareholders resulting from costs in 
connection with the purchase or sale of Creation Units.\14\ All orders 
to purchase Creation Units must be placed with the Distributor by or 
through an Authorized Participant and the Distributor will transmit 
such orders to the Funds. The Distributor will be responsible for 
maintaining records of both the orders placed with it and the 
confirmations of acceptance furnished by it.
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    \14\ Cash purchases and redemptions of Shares may involve a 
higher Transaction Fee to cover the costs of purchasing and selling 
the applicable Deposit and Redemption Instruments. In all cases, the 
Transaction Fee will be limited in accordance with requirements of 
the Commission applicable to management investment companies 
offering redeemable securities.
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    10. Purchasers of Shares in Creation Units may hold such Shares or 
may sell such Shares into the secondary market. Shares will be listed 
and traded at negotiated prices on the Stock Exchange. Applicants 
expect that one or more the Stock Exchange specialists 
(``Specialists'') or market makers (``Market Makers''), will be 
assigned to the Shares.\15\ The price of Shares trading on the Stock 
Exchange will be based on a current bid-offer in the secondary market. 
Purchases and sales of Shares in the secondary market will not involve 
a Fund and will be subject to customary brokerage commissions and 
charges.
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    \15\ If Shares are listed on The NASDAQ Stock Market LLC 
(``Nasdaq''), no particular Market Maker would be contractually 
obligated to make a market in Shares. However, the listing 
requirements on Nasdaq stipulate that at least two Market Makers 
must be registered in Shares to maintain a listing. Registered 
Market Makers are required to make a continuous two-sided market or 
subject themselves to regulatory sanctions. No Market Maker will be 
an affiliated person, or an affiliated person of an affiliated 
person, of the Funds, except within the meaning of section 
2(a)(3)(A) or (C) of the Act due solely to ownership of shares.
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    11. Applicants expect that purchasers of Creation Units will 
include institutional investors and arbitrageurs. Specialists and 
Market Makers, in providing a fair and orderly secondary market for 
Shares, also may purchase Creation Units for use in their own market 
making activities. Applicants expect that secondary market purchasers 
of Shares will include both institutional and retail investors.\16\ 
Applicants believe that the structure and operation of the Funds will 
be designed to enable efficient arbitrage and, thereby, minimize the 
probability that Shares will trade at a material premium or discount to 
a Fund's NAV.
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    \16\ Shares will be registered in book-entry form only. DTC or 
its nominee will be the registered owner of all outstanding Shares. 
Beneficial ownership of Shares will be shown on the records of DTC 
or DTC Participants.
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    12. Shares will not be individually redeemable and owners of Shares 
may acquire those Shares from a Fund, or tender such shares for 
redemption to a Fund, in Creation Units only. To redeem, an investor 
must accumulate enough Shares to constitute a Creation Unit. Redemption 
requests must be

[[Page 66654]]

placed by or through an Authorized Participant. As discussed above, 
redemptions of Creation Units will generally be made on an in-kind 
basis, subject to certain specified exceptions under which redemptions 
may be made in whole or in part on a cash basis, and will be subject to 
a Transaction Fee.\17\
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    \17\ See supra note 14.
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    13. Neither the Trust nor any Fund will be advertised or marketed 
or otherwise held out as a traditional open-end investment company or 
mutual fund. Instead, each Fund will be marketed as an ``actively-
managed exchange-traded fund.'' All marketing materials that describe 
the features or method of obtaining, buying, or selling Creation Units, 
or Shares traded on the Stock Exchange, or refer to redeemability, will 
prominently disclose that Shares are not individually redeemable and 
that the owners of Shares may acquire those Shares from a Fund or 
tender those Shares for redemption to the Fund in Creation Units only.
    14. The Funds' Web site (``Web site''), which will be publicly 
available prior to the public offering of Shares, will include each 
Fund's prospectus (``Prospectus''). The Web site will contain, on a per 
Share basis for each Fund, the prior Business Day's NAV and the market 
closing price or mid-point of the bid/ask spread at the time of 
calculation of such NAV (``Bid/Ask Price''), and a calculation of the 
premium or discount of the market closing price or the Bid/Ask Price 
against such NAV. On each Business Day, prior to the commencement of 
trading in Shares on the Stock Exchange, each Fund shall post on the 
Web site the identities and quantities of the Portfolio Instruments and 
other assets held by the Fund that will form the basis for the 
calculation of the Fund's calculation of NAV at the end of that 
Business Day.\18\
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    \18\ Under accounting procedures followed by the Funds, trades 
made on the prior Business Day (``T'') will be booked and reflected 
in NAV on the current Business Day (T+1). Accordingly, the Funds 
will be able to disclose at the beginning of the Business Day the 
portfolio that will form the basis for the NAV calculation at the 
end of the Business Day.
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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 22(e) 
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 (2) 
of the Act, and under section 12(d)(1)(J) for an exemption from 
sections 12(d)(1)(A) and (B) of the Act.
    2. Section 6(c) of the Act provides that the Commission may exempt 
any person, security or transaction, or any class of persons, 
securities or transactions, from any provision of the Act, if and to 
the extent that such exemption is necessary or appropriate in the 
public interest and consistent with the protection of investors and the 
purposes fairly intended by the policy and provisions of the Act. 
Section 17(b) of the Act authorizes the Commission to exempt a proposed 
transaction from section 17(a) of the Act if evidence establishes that 
the terms of the transaction, including the consideration to be paid or 
received, are reasonable and fair and do not involve overreaching on 
the part of any person concerned, and the proposed transaction is 
consistent with the policies of the registered investment company and 
the general provisions of the Act. Section 12(d)(1)(J) of the Act 
provides that the Commission may exempt any person, security, or 
transaction, or any class or classes of persons, securities or 
transactions, from any provision of section 12(d)(1) if the exemption 
is consistent with the public interest and the protection of investors.

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

    3. Section 5(a)(1) of the Act defines an ``open-end company'' as a 
management investment company that is offering for sale or has 
outstanding any redeemable security of which it is the issuer. Section 
2(a)(32) of the Act defines a redeemable security as any security, 
other than short-term paper, under the terms of which the holder, upon 
its presentation to the issuer, is entitled to receive approximately a 
proportionate share of the issuer's current net assets, or the cash 
equivalent. Because Shares will not be individually redeemable, 
applicants request an order that would permit the Trust and each Fund 
to redeem Shares in Creation Units only. Applicants state that 
investors may purchase Shares in Creation Units from each Fund and that 
Creation Units will always be redeemable in accordance with the 
provisions of the Act. Applicants further state that because the market 
price of Shares will be disciplined by arbitrage opportunities, 
investors should be able to sell Shares in the secondary market at 
prices that do not vary substantially from their NAV.

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

    4. Section 22(d) of the Act, among other things, prohibits a dealer 
from selling a redeemable security that 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 Shares will take 
place at negotiated prices, not at a current offering price described 
in the Prospectus, and not at a price based on NAV. Thus, purchases and 
sales of Shares in the secondary market will not comply with section 
22(d) of the Act and rule 22c-1 under the Act. Applicants request an 
exemption under section 6(c) from these provisions.
    5. Applicants assert that the concerns sought to be addressed by 
section 22(d) of the Act and rule 22c-1 under the Act with respect to 
pricing are equally satisfied by the proposed method of pricing Shares. 
Applicants maintain that, while there is little legislative history 
regarding section 22(d), its provisions, as well as those of rule 22c-
1, appear to have been designed to (a) prevent dilution caused by 
certain riskless-trading schemes by principal underwriters and contract 
dealers, (b) prevent unjust discrimination or preferential treatment 
among buyers resulting from sales at different prices, and (c) assure 
an orderly distribution of investment company shares by eliminating 
price competition from brokers offering shares at less than the 
published sales price and repurchasing shares at more than the 
published redemption price.
    6. Applicants believe that none of these purposes will be thwarted 
by permitting Shares to trade in the secondary market at negotiated 
prices. Applicants state that (a) secondary market trading in Shares 
does not involve the Funds as parties and cannot result in dilution of 
an investment in Shares, and (b) to the extent different prices exist 
during a given trading day, or from day to day, such variances occur as 
a result of third-party market forces, such as supply and demand. 
Therefore, applicants assert that secondary market transactions in 
Shares will not lead to discrimination or preferential treatment among 
purchasers. Finally, applicants contend that the proposed distribution 
system will be orderly because arbitrage activity will ensure that the 
difference between the market price of Shares and their NAV remains 
narrow.

Section 22(e) of the Act

    7. Section 22(e) generally prohibits a registered investment 
company from

[[Page 66655]]

suspending the right of redemption or postponing the date of payment of 
redemption proceeds for more than seven days after the tender of a 
security for redemption. Applicants observe that the settlement of 
redemptions of Creation Units of the Global Funds is contingent not 
only on the settlement cycle of the U.S. securities markets but also on 
the delivery cycles present in foreign markets for underlying foreign 
Portfolio Instruments in which those Funds invest. Applicants have been 
advised that, under certain circumstances, the delivery cycles for 
transferring Portfolio Instruments to redeeming investors, coupled with 
local market holiday schedules, will require a delivery process of up 
to fourteen (14) calendar days. Applicants therefore request relief 
from section 22(e) in order to provide payment or satisfaction of 
redemptions within a longer number of calendar days as required for 
such payment or satisfaction in the principal local markets where 
transactions in the Portfolio Instruments of each Global Fund 
customarily clear and settle, but in all cases no later than fourteen 
(14) days following the tender of a Creation Unit. With respect to 
Future Funds that are Global Funds, applicants seek the same relief 
from section 22(e) only to the extent that circumstances exist similar 
to those described in the application. Except as disclosed in the SAI 
for a Fund, deliveries of redemption proceeds for Global Funds are 
expected to be made within seven days.\19\
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    \19\ Rule 15c6-1 under the Exchange Act requires that most 
securities transactions be settled within three business days of the 
trade. Applicants acknowledge that no relief obtained from the 
requirements of section 22(e) will affect any obligations applicants 
may have under rule 15c6-1.
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    8. Applicants state that section 22(e) was designed to prevent 
unreasonable, undisclosed or unforeseen delays in the actual payment of 
redemption proceeds. Applicants assert that allowing redemption 
payments for Creation Units of a Fund to be made within a maximum of 
fourteen (14) calendar days would not be inconsistent with the spirit 
and intent of section 22(e). Applicants state that the Prospectus and/
or SAI will identify those instances in a given year where, due to 
local holidays, more than seven calendar days, up to a maximum of 
fourteen (14) calendar days, will be needed to deliver redemption 
proceeds and will list such holidays. Applicants are not seeking relief 
from section 22(e) for Global Funds that do not effect redemptions of 
Creation Units in-kind.

Section 12(d)(1) of the Act

    9. 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, or 
any other broker or dealer from selling its shares to another 
investment company if the sale will cause the acquiring company to own 
more than 3% of the acquired company's voting stock, or if the sale 
will cause more than 10% of the acquired company's voting stock to be 
owned by investment companies generally.
    10. Applicants request relief to permit Investing Funds to acquire 
Shares in excess of the limits in section 12(d)(1)(A) of the Act and to 
permit the Funds, their principal underwriters and any Broker to sell 
Shares to Investing Funds in excess of the limits in section 
12(d)(l)(B) of the Act.
    11. Applicants assert that the proposed transactions will not lead 
to any of the abuses that section 12(d)(1) was designed to prevent. 
Applicants submit that the proposed conditions to the requested relief 
address the concerns underlying the limits in section 12(d)(1), which 
include concerns about undue influence, excessive layering of fees and 
overly complex structures.
    12. Applicants submit that their proposed conditions address any 
concerns regarding the potential for undue influence. To limit the 
control that an Investing Fund may have over a Fund, applicants propose 
a condition prohibiting the adviser of an Investing Management Company 
(``Investing Fund Adviser''), sponsor of an Investing Trust 
(``Sponsor''), any person controlling, controlled by, or under common 
control with the Investing Fund Adviser or Sponsor, and any investment 
company or issuer that would be an investment company but for sections 
3(c)(1) or 3(c)(7) of the Act that is advised or sponsored by the 
Investing Fund Adviser, the Sponsor, or any person controlling, 
controlled by, or under common control with the Investing Fund Adviser 
or Sponsor (``Investing Fund's Advisory Group'') from controlling 
(individually or in the aggregate) a Fund within the meaning of section 
2(a)(9) of the Act. The same prohibition would apply to any subadviser 
to an Investing Fund (``Investing Fund Subadviser''), any person 
controlling, controlled by or under common control with the Investing 
Fund Subadviser, and any investment company or issuer that would be an 
investment company but for sections 3(c)(1) or 3(c)(7) of the Act (or 
portion of such investment company or issuer) advised or sponsored by 
the Investing Fund Subadviser or any person controlling, controlled by 
or under common control with the Investing Fund Subadviser (``Investing 
Fund's Subadvisory Group'').
    13. Applicants propose a condition to ensure that no Investing Fund 
or Investing Fund Affiliate \20\ (except to the extent it is acting in 
its capacity as an investment adviser to a Fund) will cause a Fund to 
purchase a security in an offering of securities during the existence 
of an underwriting or selling syndicate of which a principal 
underwriter is an Underwriting Affiliate (``Affiliated Underwriting''). 
An ``Underwriting Affiliate'' is a principal underwriter in any 
underwriting or selling syndicate that is an officer, director, member 
of an advisory board, Investing Fund Adviser, Investing Fund 
Subadviser, employee or Sponsor of the Investing Fund, or a person of 
which any such officer, director, member of an advisory board, 
Investing Fund Adviser, Investing Fund Subadviser, employee or Sponsor 
is an affiliated person (except any person whose relationship to the 
Fund is covered by section 10(f) of the Act is not an Underwriting 
Affiliate).
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    \20\ An ``Investing Fund Affiliate'' is any Investing Fund 
Adviser, Investing Fund Subadviser, Sponsor, promoter and principal 
underwriter of an Investing Fund, and any person controlling, 
controlled by or under common control with any of these entities. 
``Fund Affiliate'' is an investment adviser, promoter, or principal 
underwriter of a Fund or any person controlling, controlled by or 
under common control with any of these entities.
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    14. Applicants propose several conditions to address the potential 
for layering of fees. Applicants note that the board of directors or 
trustees (for any entity, the ``Board'') of any Investing Management 
Company, including a majority of the directors or trustees who are not 
``interested persons'' within the meaning of section 2(a)(19) of the 
Act (for any Board, ``disinterested directors or trustees''), will be 
required to find that the advisory fees charged under the contract are 
based on services provided that will be in addition to, rather than 
duplicative of, services provided under the advisory contract of any 
Fund in which the Investing Management Company may invest. In addition, 
an

[[Page 66656]]

Investing Fund Advisor, trustee of an Investing Trust (``Trustee'') or 
Sponsor, as applicable, will waive fees otherwise payable to it by the 
Investing Fund in an amount at least equal to any compensation 
(including fees received pursuant to any plan adopted by a Fund under 
rule 12b-1 under the Act) received from a Fund by the Investing Fund 
Advisor, Trustee or Sponsor or an affiliated person of the Investing 
Fund Advisor, Trustee or Sponsor, other than any advisory fees paid to 
the Investing Fund Advisor, Trustee or Sponsor or its affiliated person 
by a Fund, in connection with the investment by the Investing Fund in 
the Fund. Applicants also state that any sales charges and/or service 
fees charged with respect to shares of an Investing Fund will not 
exceed the limits applicable to a fund of funds as set forth in NASD 
Conduct Rule 2830.\21\
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    \21\ Any reference to NASD Conduct Rule 2830 includes any 
successor or replacement rule that may be adopted by the Financial 
Industry Regulatory Authority.
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    15. Applicants submit that the proposed arrangement will not create 
an overly complex fund structure. Applicants note that a 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 to the 
extent permitted by exemptive relief from the Commission permitting the 
Fund to purchase shares of other investment companies for short-term 
cash management purposes.
    16. To ensure that an Investing Fund is aware of the terms and 
conditions of the requested order, the Investing Funds must enter into 
an agreement with the respective Funds (``FOF Participation 
Agreement''). The FOF Participation Agreement will include an 
acknowledgement from the Investing Fund that it may rely on the order 
only to invest in a Fund and not in any other investment company.

Section 17(a) of the Act

    17. Section 17(a) of the Act generally prohibits an affiliated 
person of a registered investment company, or an affiliated person of 
such person (``Second Tier Affiliates''), 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 more than 25% of another person's voting securities. The Funds may 
be deemed to be controlled by the Adviser or an entity controlling, 
controlled by or under common control with the Adviser and hence 
affiliated persons of each other. In addition, the Funds may be deemed 
to be under common control with any other registered investment company 
(or series thereof) advised by the Adviser or an entity controlling, 
controlled by or under common control with the Adviser (an ``Affiliated 
Fund'').
    18. Applicants request an exemption under sections 6(c) and 17(b) 
of the Act from sections 17(a)(1) and 17(a)(2) of the Act to permit in-
kind purchases and redemptions of Creation Units from the Funds by 
persons that are affiliated persons or Second Tier Affiliates of the 
Funds solely by virtue of one or more of the following: (a) holding 5% 
or more, or more than 25%, of the Shares of the Trust of one or more 
Funds; (b) having an affiliation with a person with an ownership 
interest described in (a); or (c) holding 5% or more, or more than 25%, 
of the shares of one or more Affiliated Funds. Applicants also request 
an exemption in order to permit each Fund to sell Shares to and redeem 
Shares from, and engage in the transactions that would accompany such 
sales and redemptions with, any Investing Fund of which the Fund is an 
affiliated person or Second-Tier Affiliate.\22\
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    \22\ Applicants anticipate that most Investing Funds will 
purchase Shares in the secondary market and will not purchase or 
redeem Creation Units directly from a Fund. Relief from section 
17(a) is not required when an Investing Fund that is an affiliate or 
Second Tier Affiliate of a Fund purchases or sells Shares in the 
secondary market as such transactions are not principal transactions 
with the Fund. However, the requested relief would apply to direct 
sales of Shares in Creation Units by a Fund to an Investing Fund and 
redemptions of those Shares in Creation Units. The requested relief 
is intended to cover transactions that would accompany such sales 
and redemptions. Applicants are not seeking relief from section 
17(a) for, and the requested relief will not apply to, transactions 
where a Fund could be deemed an affiliated person, or an affiliated 
person of an affiliated person, of an Investing Fund because the 
Adviser is also an investment adviser to that Investing Fund.
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    19. Applicants contend that no useful purpose would be served by 
prohibiting such affiliated persons or Second Tier Affiliates from 
acquiring or redeeming Creation Units through in-kind transactions. 
Both the deposit procedures for in-kind purchases of Creation Units and 
the redemption procedures for in-kind redemptions will be the same for 
all purchases and redemptions. Deposit Instruments and Redemptions 
Instruments will be valued in the same manner as the Portfolio 
Instruments held by the relevant Fund. Applicants thus believe that in-
kind purchases and redemptions will not result in self-dealing or 
overreaching of the Fund.
    20. Applicants also submit that the sale of Shares to and 
redemption of Shares from an Investing Fund satisfies the standards for 
relief under sections 17(b) and 6(c) of the Act. Applicants note that 
any consideration paid for the purchase or redemption of Creation Units 
directly from a Fund will be based on the NAV of the Fund.\23\ The FOF 
Participation Agreement will require any Investing Fund that purchases 
Creation Units directly from a Fund to represent that the purchase will 
be in compliance with its investment restrictions and consistent with 
the investment policies set forth in its registration statement. 
Applicants also state that the proposed transactions are consistent 
with the general purposes of the Act and appropriate in the public 
interest.
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    \23\ Applicants acknowledge that the receipt of compensation by 
(a) an affiliated person of an Investing Fund, or an affiliated 
person of such person, for the purchase by the Investing Fund of 
Shares of a Fund or (b) an affiliated person of a Fund, or an 
affiliated person of such person, for the sale by the Fund of its 
Shares to an Investing Fund, may be prohibited by section 17(e)(1) 
of the Act. The FOF Participation Agreement also will include this 
acknowledgment.
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Applicants' Conditions

    Applicants agree that any order of the Commission granting the 
requested relief will be subject to the following conditions:
A. Actively Managed Exchange-Traded Fund Relief
    1. As long as a Fund operates in reliance on the requested order, 
the Shares of the Fund will be listed on a Stock Exchange.
    2. Neither the Trust nor any Fund will be advertised or marketed as 
an open-end investment company or a mutual fund. Any advertising 
material that describes the purchase or sale of Creation Units or 
refers to redeemability will prominently disclose that Shares are not 
individually redeemable and that owners of the Shares may acquire those 
Shares from the Fund and tender those Shares for redemption to the Fund 
in Creation Units only.
    3. The Web site, which is and will be publicly accessible at no 
charge, will contain, on a per Share basis, for each Fund the prior 
Business Day's NAV and the market closing price or Bid/Ask Price, and a 
calculation of the premium

[[Page 66657]]

or discount of the market closing price or Bid/Ask Price against such 
NAV.
    4. On each Business Day, before commencement of trading in Shares 
on the Stock Exchange, the Fund will disclose on its Web site the 
identities and quantities of the Portfolio Instruments and other assets 
held by the Fund that will form the basis for the Fund's calculation of 
NAV at the end of the Business Day.
    5. The Adviser or any Subadviser, directly or indirectly, will not 
cause any Authorized Participant (or any investor on whose behalf an 
Authorized Participant may transact with the Fund) to acquire any 
Deposit Instrument for the Fund through a transaction in which the Fund 
could not engage directly.
    6. The requested relief to permit ETF operations will expire on the 
effective date of any Commission rule under the Act that provides 
relief permitting the operation of actively managed ETFs.
B. Section 12(d)(1) Relief
    1. The members of the Investing Fund's Advisory Group will not 
control (individually or in the aggregate) a Fund within the meaning of 
section 2(a)(9) of the Act. The members of the Investing Fund's 
Subadvisory Group will not control (individually or in the aggregate) a 
Fund within the meaning of section 2(a)(9) of the Act. If, as a result 
of a decrease in the outstanding voting securities of a Fund, the 
Investing Fund's Advisory Group or the Investing Fund's Subadvisory 
Group, each in the aggregate, becomes a holder of more than 25 percent 
of the outstanding voting securities of a Fund, it will vote its Shares 
of the Fund in the same proportion as the vote of all other holders of 
the Fund's Shares. This condition does not apply to the Investing 
Fund's Subadvisory Group with respect to a Fund for which the Investing 
Fund Subadviser or a person controlling, controlled by or under common 
control with the Investing Fund Subadviser acts as the investment 
adviser within the meaning of section 2(a)(20)(A) of the Act.
    2. No Investing Fund or Investing Fund Affiliate will cause any 
existing or potential investment by the Investing Fund in a Fund to 
influence the terms of any services or transactions between the 
Investing Fund or an Investing Fund Affiliate and the Fund or a Fund 
Affiliate.
    3. The Board of an Investing Management Company, including a 
majority of the disinterested directors or trustees, will adopt 
procedures reasonably designed to ensure that the Investing Fund 
Adviser and any Investing Fund Subadviser are conducting the investment 
program of the Investing Management Company without taking into account 
any consideration received by the Investing Management Company or an 
Investing Fund Affiliate from a Fund or a Fund Affiliate in connection 
with any services or transactions.
    4. Once an investment by an Investing Fund in the Shares of a Fund 
exceeds the limit in section l2(d)(1)(A)(i) of the Act, the Board of a 
Fund, including a majority of the disinterested Board members, will 
determine that any consideration paid by the Fund to the Investing Fund 
or an Investing Fund Affiliate in connection with any services or 
transactions: (i) Is fair and reasonable in relation to the nature and 
quality of the services and benefits received by the Fund; (ii) is 
within the range of consideration that the Fund would be required to 
pay to another unaffiliated entity in connection with the same services 
or transactions; and (iii) does not involve overreaching on the part of 
any person concerned. This condition does not apply with respect to any 
services or transactions between a Fund and its investment adviser(s), 
or any person controlling, controlled by or under common control with 
such investment adviser(s).
    5. The Investing Fund Adviser, or Trustee or Sponsor, as 
applicable, will waive fees otherwise payable to it by the Investing 
Fund in an amount at least equal to any compensation (including fees 
received pursuant to any plan adopted by a Fund under rule 12b-l under 
the Act) received from a Fund by the Investing Fund Adviser, or Trustee 
or Sponsor, or an affiliated person of the Investing Fund Adviser, or 
Trustee or Sponsor, other than any advisory fees paid to the Investing 
Fund Adviser, or Trustee or Sponsor, or its affiliated person by the 
Fund, in connection with the investment by the Investing Fund in the 
Fund. Any Investing Fund Subadviser will waive fees otherwise payable 
to the Investing Fund Subadviser, directly or indirectly, by the 
Investing Management Company in an amount at least equal to any 
compensation received from a Fund by the Investing Fund Subadviser, or 
an affiliated person of the Investing Fund Subadviser, other than any 
advisory fees paid to the Investing Fund Subadviser or its affiliated 
person by the Fund, in connection with the investment by the Investing 
Management Company in the Fund made at the direction of the Investing 
Fund Subadviser. In the event that the Investing Fund Subadviser waives 
fees, the benefit of the waiver will be passed through to the Investing 
Management Company.
    6. No Investing Fund or Investing Fund Affiliate (except to the 
extent it is acting in its capacity as an investment adviser to a Fund) 
will cause a Fund to purchase a security in an Affiliated Underwriting.
    7. The Board of a Fund, including a majority of the disinterested 
Board members, will adopt procedures reasonably designed to monitor any 
purchases of securities by the Fund in an Affiliated Underwriting, once 
an investment by an Investing Fund in the securities of the Fund 
exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any 
purchases made directly from an Underwriting Affiliate. The Board will 
review these purchases periodically, but no less frequently than 
annually, to determine whether the purchases were influenced by the 
investment by the Investing Fund in the Fund. The Board will consider, 
among other things: (i) Whether the purchases were consistent with the 
investment objectives and policies of the Fund; (ii) how the 
performance of securities purchased in an Affiliated Underwriting 
compares to the performance of comparable securities purchased during a 
comparable period of time in underwritings other than Affiliated 
Underwritings or to a benchmark such as a comparable market index; and 
(iii) whether the amount of securities purchased by the Fund in 
Affiliated Underwritings and the amount purchased directly from an 
Underwriting Affiliate have changed significantly from prior years. The 
Board will take any appropriate actions based on its review, including, 
if appropriate, the institution of procedures designed to ensure that 
purchases of securities in Affiliated Underwritings are in the best 
interest of shareholders.
    8. Each Fund will maintain and preserve permanently in an easily 
accessible place a written copy of the procedures described in the 
preceding condition, and any modifications to such procedures, and will 
maintain and preserve for a period of not less than six years from the 
end of the fiscal year in which any purchase in an Affiliated 
Underwriting occurred, the first two years in an easily accessible 
place, a written record of each purchase of securities in Affiliated 
Underwritings once an investment by an Investing Fund in the securities 
of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, 
setting forth from whom the securities were acquired, the identity of 
the underwriting syndicate's members, the terms of the purchase, and 
the

[[Page 66658]]

information or materials upon which the Board's determinations were 
made.
    9. Before investing in a Fund in excess of the limits in section 
12(d)(1)(A), an Investing Fund will execute a FOF Participation 
Agreement with the Fund stating that their respective boards of 
directors or trustees and their investment advisers, or Trustee and 
Sponsor, as applicable, understand the terms and conditions of the 
order, and agree to fulfill their responsibilities under the order. At 
the time of its investment in shares of a Fund in excess of the limit 
in section 12(d)(1)(A)(i), an Investing Fund will notify the Fund of 
the investment. At such time, the Investing Fund will also transmit to 
the Fund a list of the names of each Investing Fund Affiliate and 
Underwriting Affiliate. The Investing Fund will notify the Fund of any 
changes to the list as soon as reasonably practicable after a change 
occurs. The Fund and the Investing Fund will maintain and preserve a 
copy of the order, the FOF Participation Agreement, and the list with 
any updated information for the duration of the investment and for a 
period of not less than six years thereafter, the first two years in an 
easily accessible place.
    10. Before approving any advisory contract under section 15 of the 
Act, the Board of each Investing Management Company, including a 
majority of the disinterested directors or trustees, will find that the 
advisory fees charged under such contract are based on services 
provided that will be in addition to, rather than duplicative of, the 
services provided under the advisory contract(s) of any Fund in which 
the Investing Management Company may invest. These findings and their 
basis will be recorded fully in the minute books of the appropriate 
Investing Management Company.
    11. Any sales charges and/or service fees charged with respect to 
shares of an Investing Fund will not exceed the limits applicable to a 
fund of funds as set forth in NASD Conduct Rule 2830.
    12. No Fund relying on the section 12(d)(1) relief will acquire 
securities of any investment company or company relying on section 
3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in 
section 12(d)(1)(A) of the Act, except to the extent permitted by 
exemptive relief from the Commission permitting the Fund to purchase 
shares of other investment companies for short-term cash management 
purposes.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-27001 Filed 11-5-12; 8:45 am]
BILLING CODE 8011-01-P