[Federal Register Volume 78, Number 213 (Monday, November 4, 2013)]
[Notices]
[Pages 66086-66094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-26272]


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

SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30770; 812-14004]


DBX ETF Trust, et al.; Notice of Application

October 29, 2013.
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, under sections 6(c) and 17(b) of the Act for an exemption from 
sections 17(a)(1) and (a)(2) of the Act, and under section 12(d)(1)(J) 
of the Act for an exemption from sections 12(d)(1)(A) and (B) of the 
Act.

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

Applicants: DBX ETF Trust and db-X Exchange Traded Funds, Inc. 
(collectively, the ``Trusts''); DBX Advisors LLC and DBX Strategic 
Advisors LLC (each, an ``Adviser,'' and collectively, the 
``Advisers''); and ALPS Distributors, Inc. (the ``Distributor'').

Summary of Application:  Applicants request an order that permits: (a) 
Actively-managed series of certain open-end management investment 
companies 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 
from 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

[[Page 66087]]

purchase and redemption of Creation Units; (e) certain registered 
management investment companies and unit investment trusts outside of 
the same group of investment companies as the series to acquire Shares; 
and (f) certain series to perform creations and redemptions of Creation 
Units in-kind in a master-feeder structure.

Filing Dates:  The application was filed on January 30, 2012, and 
amended on June 11, 2012, December 19, 2012, June 6, 2013, and October 
15, 2013.

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 25, 2013, 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: 
the Trusts and the Advisers, 60 Wall Street, New York, NY 10005; the 
Distributor, 1290 Broadway, Suite 1100, Denver, CO 80203.

FOR FURTHER INFORMATION CONTACT: Christine Y. Greenlees, Senior 
Counsel, at (202) 551-6879 or David P. Bartels, Branch Chief, at (202) 
551-6821 (Division of Investment Management, Exemptive Applications 
Office).

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 for 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 Trusts, which are organized as a Delaware statutory trust 
and a Maryland corporation, are registered under the Act as open-end 
management investment companies. Each Trust currently consists of 
multiple series. DBX ETF Trust will initially offer one series (the 
``Initial Fund'') that will rely on the order. The Initial Fund's 
investment objective is to seek current income consistent with total 
return.
    2. The Advisers are registered as investment advisers under the 
Investment Advisers Act of 1940 (``Advisers Act''). An Adviser will 
serve as investment adviser to each of the Funds (as defined below). 
The Advisers may enter into sub-advisory agreements with one or more 
affiliated or unaffiliated investment advisers, each of which will 
serve as sub-adviser to a Fund (each, a ``Sub-Adviser''). Any Sub-
Adviser will be registered under the Advisers Act. The Distributor is a 
registered broker-dealer (``Broker'') under the Securities Exchange Act 
of 1934 (``Exchange Act'') and will act as the distributor and 
principal underwriter of the Funds (as defined below).
    3. Applicants request that the order apply to the Initial Fund as 
well as to future series of the Trusts and any future open-end 
management investment companies or series thereof that would operate as 
actively-managed exchange-traded funds (``Future Funds''). Any Future 
Fund will (a) be advised by the Advisers or an entity controlling, 
controlled by, or under common control with the Advisers and (b) comply 
with the terms and conditions of the application.\1\ The Initial Fund 
and Future Funds together are the ``Funds.'' \2\ Each Fund will operate 
as an actively managed exchange-traded fund (``ETF''), and a Fund may 
operate as a feeder fund in a master-feeder structure (``Feeder 
Fund'').
---------------------------------------------------------------------------

    \1\ All entities that currently intend to rely on the order are 
named as applicants. Any other entity that relies on the order in 
the future will comply with the terms and conditions of the 
application.
    \2\ Applicants further request that the order apply to any 
future distributor of the Funds, which would be a registered broker-
dealer under the Exchange Act and would comply with the terms and 
conditions of the application (``Future Distributor''). Applicants 
state that the Distributor or Future Distributor of any Fund may be 
an affiliated person or a second-tier affiliate of that Fund's 
Adviser and/or Sub-Advisers.
---------------------------------------------------------------------------

    4. Applicants state that the Funds, or their respective Master 
Funds (as defined below), may invest in equity securities or fixed 
income securities (``Fixed Income Funds'') traded in the U.S. or non-
U.S. markets. Fixed Income Funds may also include Funds that invest in 
a combination of equity and fixed-income securities. Funds, or their 
respective Master Funds, that invest in foreign equity and/or fixed 
income securities, are ``Foreign Funds.'' Foreign Funds may also 
include Funds that invest in a combination of foreign and domestic 
equity and/or fixed income securities. Applicants state that the Funds 
may also invest in a broad variety of other instruments \3\ and that a 
Foreign Fund, either directly or through a Master Fund, may invest a 
significant portion of its assets in depositary receipts representing 
foreign securities in which they seek to invest (``Depositary 
Receipts'').\4\ Applicants further state that, in order to implement 
each Fund's investment strategy, the Adviser and/or Sub-Advisers of a 
Fund may review and change the securities, other assets and other 
positions held by the Fund or its respective Master Fund (``Portfolio 
Instruments'') daily.
---------------------------------------------------------------------------

    \3\ If a Fund (or its respective Master Fund) invests in 
derivatives, then (a) the board of trustees (``Board'') of the Fund 
will periodically review and approve the Fund's (or, in the case of 
a Feeder Fund, its Master Fund's) use of derivatives and how the 
Adviser assesses and manages risk with respect to the Fund's (or, in 
the case of a Feeder Fund, its Master Fund's) use of derivatives and 
(b) the Fund's disclosure of its (or, in the case of a Feeder Fund, 
its Master Fund's) use of derivatives in its offering documents and 
periodic reports will be consistent with relevant Commission and 
staff guidance.
    \4\ 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 (or its respective Master Fund) will not invest in any 
Depositary Receipts that the Adviser or Sub-Adviser deems to be 
illiquid or for which pricing information is not readily available. 
No affiliated persons of applicants or any Sub-Adviser will serve as 
the depositary bank for any Depositary Receipts held by a Fund.
---------------------------------------------------------------------------

    5. With respect to Section 12(d)(1), Applicants are requesting 
relief (``Fund of Funds Relief'') to permit management investment 
companies and unit investment trusts (``UITs'') registered under the 
Act that are 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 
(such registered management investment companies are referred to as 
``Investing Management Companies,'' such UITs are referred to as 
``Investing Trusts,'' and Investing Management Companies and Investing 
Trusts are collectively referred to as ``Funds of Funds''), to acquire 
Shares beyond the limitations in Section 12(d)(1)(A) and to permit the 
Funds, and any principal underwriter for the Funds, and any Broker, to 
sell Shares beyond the limitations in Section 12(d)(l)(B) to Funds of 
Funds. Applicants request that any exemption under Section 12(d)(1)(J) 
from Sections 12(d)(1)(A) and (B) apply to: (1) Each Fund that is 
currently or subsequently part of the same ``group of investment 
companies'' as the Initial Fund within the meaning of Section 
12(d)(1)(G)(ii) of the Act, as well as any principal underwriter for 
the Funds and any Brokers selling Shares of a Fund to Funds of Funds; 
and (2) each Fund of Funds that enters into a participation

[[Page 66088]]

agreement (``FOF Participation Agreement'') with a Fund. ``Funds of 
Funds'' do not include the Funds. Each Investing Management Company's 
investment adviser within the meaning of Section 2(a)(20)(A) of the Act 
is the ``Fund of Funds Adviser.'' Similarly, each Investing Trust's 
sponsor is the ``Sponsor.'' Applicants represent that each Fund of 
Funds Adviser will be registered as an investment adviser under the 
Advisers Act and that no Fund of Funds Adviser or Sponsor will control, 
be controlled by, or be under common control with the Adviser.\5\
---------------------------------------------------------------------------

    \5\ A Fund of Funds may rely on the order only to invest in 
Funds and not in any other registered investment company.
---------------------------------------------------------------------------

    6. Applicants further request that the order permit a Fund to 
operate as a Feeder Fund (``Master-Feeder Relief''). Under the order, a 
Feeder Fund would be permitted to acquire shares of another registered 
investment company in the same group of investment companies having 
substantially the same investment objectives as the Feeder Fund 
(``Master Fund'') beyond the limitations in section 12(d)(1)(A) of the 
Act,\6\ and the Master Fund, and any principal underwriter for the 
Master Fund, would be permitted to sell shares of the Master Fund to 
the Feeder Fund beyond the limitations in section 12(d)(1)(B) of the 
Act. Applicants request that the Master-Feeder Relief apply to any 
Feeder Fund, any Master Fund and any principal underwriter for the 
Master Funds selling shares of a Master Fund to a Feeder Fund. 
Applicants state that creating an exchange-traded feeder fund may be 
preferable to creating entirely new series for several reasons, 
including avoiding additional overhead costs and economies of scale for 
the Feeder Funds.\7\ Applicants assert that, while certain costs may be 
higher in a master-feeder structure and there may possibly be lower tax 
efficiencies for the Feeder Funds, the Feeder Funds' Board will 
consider any such potential disadvantages against the benefits of 
economies of scale and other benefits of operating within a master-
feeder structure.
---------------------------------------------------------------------------

    \6\ A Feeder Fund managed in a master-feeder structure will not 
make direct investments in any security or other instrument other 
than the securities issued by its respective Master Fund.
    \7\ In a master-feeder structure, the Master Fund, rather than 
the Feeder Fund, would invest its portfolio in compliance with the 
order. There would be no ability by Fund shareholders to exchange 
shares of Feeder Funds for shares of another feeder series of the 
Master Fund.
---------------------------------------------------------------------------

    7. Each Fund will issue, on a continuous offering basis, its Shares 
in one or more groups of a fixed number of Shares (e.g., at least 
25,000 Shares). Applicants believe that a conventional trading range 
will be between $20-$100 per Share. All orders to purchase Creation 
Units must be placed with the Distributor by or through a party that 
has entered into a participant agreement with the Distributor and the 
transfer agent of the Fund (``Authorized Participant'') with respect to 
the creation and redemption of Creation Units. An Authorized 
Participant is either: (a) A Broker or other participant in the 
Continuous Net Settlement System of the National Securities Clearing 
Corporation (``NSCC''), a clearing agency registered with the 
Commission or (b) a participant in the DTC (such participant, ``DTC 
Participant'').
    8. In order to keep costs low and permit each Fund to be as fully 
invested as possible, Shares will be purchased and redeemed in Creation 
Units and generally on an in-kind basis.\8\ 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'').\9\ On any given Business Day \10\ 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 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),\11\ 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; \12\ or (c) TBA Transactions,\13\ short 
positions and other positions that cannot be transferred in kind \14\ 
will be excluded from the Creation Basket.\15\ If there is a difference 
between 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 ``Balancing Amount'').
---------------------------------------------------------------------------

    \8\ Feeder Funds will redeem shares from the appropriate Master 
Fund and then deliver to the redeeming shareholder the applicable 
redemption payment.
    \9\ 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. 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.
    \10\ Each Fund will sell and redeem Creation Units on any day 
the Trust is open, including as required by section 22(e) of the Act 
(each, a ``Business Day'').
    \11\ The portfolio used for this purpose will be the same 
portfolio used to calculate the Fund's net asset value (``NAV'') for 
that Business Day.
    \12\ A tradeable round lot for a security will be the standard 
unit of trading in that particular type of security in its primary 
market.
    \13\ A TBA Transaction is a method of trading mortgage-backed 
securities. In a TBA Transaction, the buyer and seller agree on 
general trade parameters such as agency, settlement date, par amount 
and price.
    \14\ 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.
    \15\ Because these instruments will be excluded from the 
Creation Basket, their value will be reflected in the determination 
of the Balancing Amount (defined below).
---------------------------------------------------------------------------

    9. 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 Balancing 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 or 
DTC; or (ii) in the case of Foreign 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

[[Page 66089]]

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 Foreign Fund would be 
subject to unfavorable income tax treatment if the holder receives 
redemption proceeds in kind.\16\
---------------------------------------------------------------------------

    \16\ 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).
---------------------------------------------------------------------------

    10. Each Business Day, before the open of trading on a national 
securities exchange, as defined in section 2(a)(26) of the Act 
(``Exchange''), on which Shares are listed, 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 Balancing 
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 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 Exchange.
    11. Transaction expenses, including operational processing and 
brokerage costs, may be incurred by a Fund when investors purchase or 
redeem Creation Units ``in-kind'' and such costs have the potential to 
dilute the interests of the Fund's existing Beneficial Owners. 
Accordingly, applicants state that each Fund may impose purchase or 
redemption transaction fees (``Transaction Fees'') in connection with 
effecting such purchases or redemptions.\17\ Applicants further state 
that, because the Transaction Fees are intended to defray the 
transaction expenses, as well as to prevent possible shareholder 
dilution resulting from the purchase or redemption of Creation Units, 
the Transaction Fees will be borne only by purchasers or redeemers of 
Creation Units and will be limited to amounts that have been determined 
appropriate by the Fund.\18\ The Distributor will be responsible for 
delivering a Fund's current prospectus (``Prospectus'') or Summary 
Prospectus, if applicable, to purchasers of Shares in Creation Units 
and for maintaining records of both the orders placed with it and the 
confirmations of acceptance furnished by it.
---------------------------------------------------------------------------

    \17\ Applicants are not requesting relief from section 18 of the 
Act. Accordingly, a Master Fund may require a Transaction Fee 
payment to cover expenses related to purchases or redemptions of the 
Master Fund's shares by a Feeder Fund only if it requires the same 
payment for equivalent purchases or redemptions by any other feeder 
fund. Thus, for example, a Master Fund may require payment of a 
Transaction Fee by a Feeder Fund for transactions for 20,000 or more 
shares so long as it requires payment of the same Transaction Fee by 
all feeder funds for transactions involving 20,000 or more shares.
    \18\ In those instances in which a Fund permits an ``in-kind'' 
purchaser to substitute cash in lieu of depositing one or more of 
the requisite Deposit Instruments or Redemption Securities, the 
purchaser or seller may be assessed a higher Transaction Fee on the 
``cash in lieu'' portion of its investment to cover the cost of 
purchasing the necessary securities, including operational 
processing and brokerage costs, and part or all of the spread 
between the expected bid and offer side of the market relating to 
such Deposit Instruments or Redemption Instruments. In all cases, 
such Transaction Fees will be limited in accordance with 
requirements of the Commission applicable to management investment 
companies offering redeemable securities.
---------------------------------------------------------------------------

    12. Shares will be listed and traded at negotiated prices on an 
Exchange and traded in the secondary market. When NYSE Arca, Inc. is 
the principal secondary market on which the Shares are listed and 
traded (the ``Primary Listing Exchange''), it is expected that one or 
more Exchange member firms will be designated by the Exchange to act as 
a market maker (a ``Market Maker'').\19\ The price of Shares trading on 
the Exchange will be based on a current bid/offer in the secondary 
market. Transactions involving the purchases and sales of Shares on the 
Exchange will be subject to customary brokerage commissions and 
charges.
---------------------------------------------------------------------------

    \19\ If Shares are listed on The NASDAQ Stock Market LLC 
(``Nasdaq'') or a similar electronic Exchange (including NYSE Arca), 
one or more member firms of that Exchange will act as Market Maker 
and maintain a market for Shares trading on that Exchange. On 
Nasdaq, no particular Market Maker would be contractually obligated 
to make a market in Shares. However, the listing requirements on 
Nasdaq, for example, stipulate that at least two Market Makers must 
be registered in Shares to maintain a listing. In addition, on 
Nasdaq and NYSE Arca, 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 a 
second-tier affiliate, of the Funds, except within Section 
2(a)(3)(A) or (C) of the Act due solely to ownership of Shares as 
discussed below.
---------------------------------------------------------------------------

    13. Applicants expect that purchasers of Creation Units will 
include institutional investors and arbitrageurs. Market Makers, acting 
in their role to provide 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.\20\ 
Applicants expect that arbitrage opportunities created by the ability 
to continually purchase or redeem Creation Units should ensure that the 
Shares will not trade at a material discount or premium in relation to 
their NAV.
---------------------------------------------------------------------------

    \20\ Shares will be registered in book-entry form only. DTC or 
its nominee will be the record or registered owner of all 
outstanding Shares. Beneficial ownership of Shares will be shown on 
the records of DTC or DTC Participants.
---------------------------------------------------------------------------

    14. Shares will not be individually redeemable, and only Shares 
combined into Creation Units of a specified size will be redeemable. 
Redemption requests must be placed by or through an Authorized 
Participant.
    15. Neither the Trust nor any Fund will be marketed or otherwise 
held out as a ``mutual fund.'' Instead, each Fund will be marketed as 
an ``actively-managed exchange-traded fund.'' In any advertising 
material where features of obtaining, buying or selling Shares traded 
on the Exchange are described there will be an appropriate statement to 
the effect that Shares are not individually redeemable.
    16. On each Business Day, before the commencement of trading in 
Shares on the Fund's Primary Listing Exchange, the Fund will disclose 
on the Trust's Web site (``Web site'') the identities and quantities of 
the Portfolio Instruments and other assets held by the Fund (or its 
respective Master Fund) \21\ that will form the basis of the Fund's 
calculation of NAV at the end of the Business Day, the Fund's per Share 
NAV and the market closing price or the midpoint of the bid/ask spread 
at the time of the calculation of such NAV (``Bid/Ask Price''), and a 
calculation of the premium or discount of the market closing price or 
Bid/Ask Price against such NAV, all as of the prior Business Day.\22\
---------------------------------------------------------------------------

    \21\ Feeder Funds will disclose information about the securities 
and other assets held by the Master Fund.
    \22\ 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.
---------------------------------------------------------------------------

Applicants' Legal Analysis

    1. Applicants request an order under section 6(c) of the Act for an 
exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act 
and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act 
for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and 
under section 12(d)(1)(J) of the Act 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 provisions of the

[[Page 66090]]

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 to permit the Trusts to register 
as open-end management investment companies and issue Shares that are 
redeemable in Creation Units only.\23\ Applicants state that investors 
may purchase Shares in Creation Units from each Fund and redeem 
Creation Units from each Fund. Applicants further state that, because 
of the arbitrage possibilities created by the redeemability of Creation 
Units, they expect that the market price of individual Shares will not 
deviate materially from NAV.
---------------------------------------------------------------------------

    \23\ The Master Funds will not require relief from sections 
2(a)(32) and 5(a)(1) because the Master Funds will issue 
individually redeemable securities.
---------------------------------------------------------------------------

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.\24\
---------------------------------------------------------------------------

    \24\ The Master Funds will not require relief from section 22(d) 
or rule 22c-1 because shares of the Master Funds will not trade at 
negotiated prices in the secondary market.
---------------------------------------------------------------------------

    5. Applicants state 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) to prevent dilution caused by 
certain riskless-trading schemes by principal underwriters and contract 
dealers, (b) to prevent unjust discrimination or preferential treatment 
among buyers and (c) to ensure an orderly distribution system of shares 
by contract dealers by eliminating price competition from non-contract 
dealers who could offer investors shares at less than the published 
sales price and who could pay investors a little more than the 
published redemption price.
    6. Applicants assert that the protections intended to be afforded 
by Section 22(d) and rule 22c-1 are adequately addressed by the 
proposed methods for creating, redeeming and pricing Creation Units and 
pricing and trading Shares. 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 but do 
not occur as a result of unjust or discriminatory manipulation. 
Finally, applicants assert that competitive forces in the marketplace 
should ensure that the margin between NAV and the price for the Shares 
in the secondary market remains narrow.

Section 22(e) of the Act

    7. Section 22(e) of the Act generally prohibits a registered 
investment company from suspending the right of redemption or 
postponing the date of payment of redemption proceeds for more than 
seven days after the tender of a security for redemption. Applicants 
observe that settlement of redemptions for Foreign 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 in which those 
Funds invest. Applicants have been advised that the delivery cycles for 
transferring Redemption Instruments to redeeming investors, coupled 
with local market holiday schedules, will require a delivery process 
longer than seven calendar days. Applicants therefore request relief 
from the requirement imposed by Section 22(e) to provide payment or 
satisfaction of redemptions within seven (7) calendar days following 
the tender of a Creation Unit of such Funds.\25\
---------------------------------------------------------------------------

    \25\ Applicants acknowledge that no relief obtained from the 
requirements of section 22(e) will affect any obligations that it 
may otherwise have under rule 15c6-1 under the Exchange Act. Rule 
15c6-1 requires that most securities transactions be settled within 
three business days of the trade date.
---------------------------------------------------------------------------

    8. Applicants state that section 22(e) was designed to prevent 
unreasonable, undisclosed and unforeseen delays in the actual payment 
of redemption proceeds. Applicants assert that the protections intended 
to be afforded by Section 22(e) are adequately addressed by the 
proposed method and securities delivery cycles for redeeming Creation 
Units. Applicants state that allowing redemption payments for Creation 
Units of a Fund to be made within a maximum of fifteen (15) calendar 
days \26\ would not be inconsistent with the spirit and intent of 
section 22(e).\27\ Applicants represent that each Fund's prospectus 
and/or statement of additional information will identify those 
instances in a given year where, due to local holidays, more than seven 
calendar days, up to a maximum of fifteen (15) calendar days, will be 
needed to deliver redemption proceeds and will list such holidays. 
Applicants are not seeking relief from section 22(e) with respect to 
Foreign Funds that do not effect redemptions in-kind.
---------------------------------------------------------------------------

    \26\ Certain countries in which a Fund may invest have 
historically had settlement periods of up to 15 calendar days.
    \27\ Other feeder funds invested in any Master Fund are not 
seeking, and will not rely on, the section 22(e) relief requested 
herein.
---------------------------------------------------------------------------

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

[[Page 66091]]

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 Funds of 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 Funds of Funds in excess of the limits in section 12(d)(l)(B) 
of the Act. 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.
    11. Applicants submit that certain of their proposed conditions 
address concerns about potential for undue influence. To limit the 
control that a Fund of Funds may have over a Fund, applicants propose a 
condition prohibiting the Fund of Funds Adviser, Sponsor, any person 
controlling, controlled by, or under common control with the Fund of 
Funds 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 Fund of Funds Adviser, the 
Sponsor, or any person controlling, controlled by, or under common 
control with the Fund of Funds Adviser or Sponsor (``Fund of Funds 
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 sub-adviser to an Investing Management 
Company (``Fund of Funds Sub-Adviser''), any person controlling, 
controlled by or under common control with the Fund of Funds Sub-
Adviser, 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 Fund of Funds Sub-Adviser or any person controlling, controlled by 
or under common control with the Fund of Funds Sub-Adviser (``Fund of 
Funds Sub-Advisory Group'').
    12. Applicants propose a condition to ensure that no Fund of Funds 
or Fund of Funds Affiliate \28\ (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'').\29\
---------------------------------------------------------------------------

    \28\ A ``Fund of Funds Affiliate'' is any Fund of Funds Adviser, 
Fund of Funds Sub-Adviser, Sponsor, promoter or principal 
underwriter of a Fund of Funds, and any person controlling, 
controlled by or under common control with any of these entities. A 
``Fund Affiliate'' is the Adviser, Sub-Adviser, promoter, or 
principal underwriter of a Fund or any person controlling, 
controlled by or under common control with any of these entities.
    \29\ An ``Underwriting Affiliate'' is a principal underwriter in 
any underwriting or selling syndicate that is an officer, director, 
member of an advisory board, Fund of Funds Adviser, Fund of Funds 
Sub-Adviser, employee or Sponsor of the Fund of Funds, or a person 
of which any such officer, director, member of an advisory board, 
Fund of Funds Adviser, Fund of Funds Sub-Adviser, 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).
---------------------------------------------------------------------------

    13. Applicants propose several conditions to address the potential 
for layering of fees. Applicants note that the board of directors or 
trustees 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 (``independent Board members''), 
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. Applicants also 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 a fund of funds as set forth in NASD Conduct 
Rule 2830.\30\
---------------------------------------------------------------------------

    \30\ Any reference to NASD Conduct Rule 2830 includes any 
successor or replacement rule that may be adopted by the Financial 
Industry Regulatory Authority.
---------------------------------------------------------------------------

    14. In order to address concerns about complexity, applicants 
propose condition B.12, which will prohibit Funds 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 a Fund to purchase 
shares of other investment companies for short-term cash management 
purposes.
    15. Finally, each Fund of Funds must enter into an FOF 
Participation Agreement with the respective Funds, which will include 
an acknowledgement from the Fund of Funds that it may rely on the order 
only to invest in a Fund and not in any other investment company.
    16. Applicants also are seeking relief from Sections 12(d)(1)(A) 
and 12(d)(1)(B) to the extent necessary to permit the Feeder Funds to 
perform creations and redemptions of Shares in-kind in a master-feeder 
structure. Applicants assert that this structure is substantially 
identical to traditional master-feeder structures permitted pursuant to 
the exception provided in section 12(d)(1)(E) of the Act. Section 
12(d)(1)(E) provides that the percentage limitations of sections 
12(d)(1)(A) and (B) will not apply to a security issued by an 
investment company (in this case, the shares of the applicable Master 
Fund) if, among other things, that security is the only investment 
security held in the investing fund's portfolio (in this case, the 
Feeder Fund's portfolio). Applicants believe the proposed master-feeder 
structure complies with section 12(d)(1)(E) because each Feeder Fund 
will hold only investment securities issued by its corresponding Master 
Fund; however, the Feeder Funds may receive securities other than 
securities of its corresponding Master Fund if a Feeder Fund accepts an 
in-kind creation. To the extent that a Feeder Fund may be deemed to be 
holding both shares of the Master Fund and other securities, applicants 
request relief from sections 12(d)(1)(A) and (B). The Feeder Funds 
would operate in compliance with all other provisions of section 
12(d)(1)(E).

Sections 17(a)(1) and (2) 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 a person (``second tier affiliate''), from selling any security to 
or purchasing any security from the company. Section 2(a)(3) of the Act 
defines ``affiliated person'' to include 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 
defines ``control'' as the power to exercise a controlling influence 
over the management or policies of a company and provides that a 
control relationship will be presumed where one person owns more than 
25% of another

[[Page 66092]]

person's voting securities. Each Fund may be deemed to be controlled by 
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 (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 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 in 
excess of 25% of the outstanding Shares 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.\31\ Applicants also request an 
exemption in order to permit a Fund to sell its Shares to and redeem 
its Shares from, and engage in the in-kind transactions that would 
accompany such sales and redemptions with, certain Funds of Funds of 
which the Funds are affiliated persons or second-tier affiliates.\32\
---------------------------------------------------------------------------

    \31\ 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 a Fund of Funds because the Adviser, or 
an entity controlling, controlled by or under common control with 
the Adviser is also an investment adviser to the Fund of Funds.
    \32\ To the extent that purchases and sales of Shares occur in 
the secondary market (and not through principal transactions 
directly between a Fund of Funds and a Fund), relief from section 
17(a) would not be necessary. The requested relief is intended to 
cover, however, transactions directly between Funds and Funds of 
Funds.
---------------------------------------------------------------------------

    19. Applicants assert that no useful purpose would be served by 
prohibiting such affiliated persons from making in-kind purchases or 
in-kind redemptions of Shares of a Fund in Creation Units. 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 Redemption Instruments will be 
valued in the same manner as those Portfolio Instruments currently held 
by the relevant Funds, and the valuation of the Deposit Instruments and 
Redemption Instruments will be made in the same manner and on the same 
terms for all, regardless of the identity of the purchaser or redeemer. 
Applicants do not believe that in-kind purchases and redemptions will 
result in abusive self-dealing or overreaching of the Fund.
    20. Applicants also submit that the sale of Shares to and 
redemption of Shares from a Fund of Funds meets 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 Shares 
directly from a Fund will be based on the NAV of the Fund in accordance 
with policies and procedures set forth in the Fund's registration 
statement.\33\ The FOF Participation Agreement will require any Fund of 
Funds that purchases Creation Units directly from a Fund to represent 
that the purchase of Creation Units from a Fund by a Fund of Funds will 
be accomplished in compliance with the investment restrictions of the 
Fund of Funds and will be consistent with the investment policies set 
forth in the Fund of Fund's registration statement.
---------------------------------------------------------------------------

    \33\ Applicants acknowledge that the receipt of 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 
the 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 a 
Fund of Funds, may be prohibited by section 17(e)(1) of the Act. The 
FOF Participation Agreement also will include this acknowledgment.
---------------------------------------------------------------------------

    21. In addition, to the extent that a Fund operates in a master-
feeder structure, applicants also request relief permitting the Feeder 
Funds to engage in in-kind creations and redemptions with the 
applicable Master Fund. Applicants state that the request for relief 
described above would not be sufficient to permit such transactions 
because the Feeder Funds and the applicable Master Fund could also be 
affiliated by virtue of having the same investment adviser. However, 
applicants believe that in-kind creations and redemptions between a 
Feeder Fund and a Master Fund advised by the same investment adviser do 
not involve ``overreaching'' by an affiliated person. Applicants 
represent that such transactions will occur only at the Feeder Fund's 
proportionate share of the Master Fund's net assets, and the 
distributed securities will be valued in the same manner as they are 
valued for the purposes of calculating the applicable Master Fund's 
NAV. Further, all such transactions will be effected with respect to 
pre-determined securities and on the same terms with respect to all 
investors. Finally, such transaction would only occur as a result of, 
and to effectuate, a creation or redemption transaction between the 
Feeder Fund and a third-party investor. Applicants state that, in 
effect, the Feeder Fund will serve as a conduit through which creation 
and redemption orders by Authorized Participants will be effected.
    22. Applicants believe that: (a) With respect to the relief 
requested pursuant to section 17(b), the proposed transactions are fair 
and reasonable, and do not involve overreaching on the part of any 
person concerned, the proposed transactions are consistent with the 
policy of each Fund, and the proposed transactions are consistent with 
the general purposes of the Act; and (b) with respect to the relief 
requested pursuant to section 6(c), the requested exemption for the 
proposed transactions is 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.

Applicants' Conditions

    Applicants agree that any order of the Commission granting the 
requested relief will be subject to the following conditions:

A. ETF Relief

    1. 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, other than 
the Master-Feeder Relief.
    2. As long as a Fund operates in reliance on the requested order, 
the Shares of the Fund will be listed on an Exchange.
    3. Neither the Trusts nor any Fund will be advertised or marketed 
as open-end investment companies or mutual funds. Any advertising 
material that describes the purchase or sale of Creation Units or 
refers to redeemability will prominently disclose that the Shares are 
not individually redeemable and that owners of the Shares may acquire 
Shares from the Fund and tender Shares for redemption to the Fund in 
Creation Units only.
    4. The Web site, which is and will be publicly accessible at no 
charge, will contain, on a per Share basis for the Fund, the prior 
Business Day's NAV and the market closing price or Bid/Ask Price of the 
Shares, and a calculation of the premium or discount of the market 
closing price or Bid/Ask Price against such NAV.
    5. No Adviser or Sub-Adviser, directly or indirectly, will 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. On each Business Day, before the commencement of trading in 
Shares on

[[Page 66093]]

the Fund's Primary Listing Exchange, the Fund will disclose on the Web 
site the identities and quantities of the Portfolio Instruments and 
other assets held by the Fund (or its respective Master Fund) that will 
form the basis of the Fund's calculation of NAV at the end of the 
Business Day.

B. Section 12(d)(1) Relief

    1. The members of the Fund of Funds Advisory Group will not control 
(individually or in the aggregate) a Fund (or its respective Master 
Fund) within the meaning of section 2(a)(9) of the Act. The members of 
the Fund of Funds Sub-Advisory Group will not control (individually or 
in the aggregate) a Fund (or its respective Master 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 Fund of Funds Advisory 
Group or the Fund of Funds Sub-Advisory 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 Fund of Funds Sub-Advisory Group with 
respect to a Fund (or its respective Master Fund) for which the Fund of 
Funds Sub-Adviser or a person controlling, controlled by or under 
common control with the Fund of Funds Sub-Adviser acts as the 
investment adviser within the meaning of section 2(a)(20)(A) of the 
Act.
    2. No Fund of Funds or Fund of Funds Affiliate will cause any 
existing or potential investment by the Fund of Funds in a Fund to 
influence the terms of any services or transactions between the Fund of 
Funds or a Fund of Funds Affiliate and the Fund (or its respective 
Master Fund) or a Fund Affiliate.
    3. The board of directors or trustees of an Investing Management 
Company, including a majority of the independent directors or trustees, 
will adopt procedures reasonably designed to ensure that the Fund of 
Funds Adviser and any Fund of Funds Sub-Adviser are conducting the 
investment program of the Investing Management Company without taking 
into account any consideration received by the Investing Management 
Company or a Fund of Funds Affiliate from a Fund (or its respective 
Master Fund) or a Fund Affiliate in connection with any services or 
transactions.
    4. Once an investment by a Fund of Funds in the Shares of a Fund 
exceeds the limit in section 12(d)(1)(A)(i) of the Act, the Board of 
the Fund (or its respective Master Fund), including a majority of the 
independent Board members, will determine that any consideration paid 
by the Fund (or its respective Master Fund) to the Fund of Funds or a 
Fund of Funds 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 (or its 
respective Master Fund); (ii) is within the range of consideration that 
the Fund (or its respective Master 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 (or its respective Master Fund) 
and its investment adviser(s), or any person controlling, controlled by 
or under common control with such investment adviser(s).
    5. The Fund of Funds Adviser, or trustee or Sponsor of an Investing 
Trust, as applicable, will waive fees otherwise payable to it by the 
Fund of Funds in an amount at least equal to any compensation 
(including fees received pursuant to any plan adopted by a Fund (or its 
respective Master Fund) pursuant to rule 12b-1 under the Act) received 
from a Fund (or its respective Master Fund) by the Fund of Funds' 
Adviser, or trustee or Sponsor of the Investing Trust, or an affiliated 
person of the Fund of Funds' Adviser, or trustee or Sponsor of the 
Investing Trust, other than any advisory fees paid to the Fund of 
Funds' Adviser, or trustee, or Sponsor of an Investing Trust, or its 
affiliated person by the Fund (or its respective Master Fund), in 
connection with the investment by the Fund of Funds in the Fund. Any 
Fund of Funds Sub-Adviser will waive fees otherwise payable to the Fund 
of Funds Sub-Adviser, directly or indirectly, by the Investing 
Management Company in an amount at least equal to any compensation 
received from a Fund (or its respective Master Fund) by the Fund of 
Funds Sub-Adviser, or an affiliated person of the Fund of Funds Sub-
Adviser, other than any advisory fees paid to the Fund of Funds Sub-
Adviser or its affiliated person by the Fund (or its respective Master 
Fund), in connection with the investment by the Investing Management 
Company in the Fund made at the direction of the Fund of Funds Sub-
Adviser. In the event that the Fund of Funds Sub-Adviser waives fees, 
the benefit of the waiver will be passed through to the Investing 
Management Company.
    6. No Fund of Funds or Fund of Funds Affiliate (except to the 
extent it is acting in its capacity as an investment adviser to a Fund 
(or its respective Master Fund)) will cause a Fund (or its respective 
Master Fund) to purchase a security in an Affiliated Underwriting.
    7. The Board of the Fund (or its respective Master Fund), including 
a majority of the independent Board members, will adopt procedures 
reasonably designed to monitor any purchases of securities by the Fund 
(or its respective Master Fund) in an Affiliated Underwriting, once an 
investment by a Fund of Funds 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 Fund of Funds 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 (or its respective Master 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 (or its respective Master 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 
beneficial owners of the Fund.
    8. Each Fund (or its respective Master 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 a Fund of Funds 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

[[Page 66094]]

terms of the purchase, and the 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), a Fund of Funds 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), a Fund of Funds will notify the Fund of the investment. 
At such time, the Fund of Funds will also transmit to the Fund a list 
of the names of each Fund of Funds Affiliate and Underwriting 
Affiliate. The Fund of Funds will notify the Fund of any changes to the 
list as soon as reasonably practicable after a change occurs. The Fund 
and the Fund of Funds 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 directors or trustees of each Investing Management 
Company, including a majority of the independent 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 (or its respective Master 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 a Fund of Funds will not exceed the limits applicable to a 
fund of funds as set forth in NASD Conduct Rule 2830.
    12. No Fund (or its respective Master Fund) will acquire securities 
of an 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 (i) the Fund (or its 
respective Master Fund) acquires securities of another investment 
company pursuant to exemptive relief from the Commission permitting the 
Fund (or its respective Master Fund) to acquire securities of one or 
more investment companies for short-term cash management purposes, or 
(ii) the Fund acquires securities of the Master Fund pursuant to the 
Master-Feeder Relief.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-26272 Filed 11-1-13; 8:45 am]
BILLING CODE 8011-01-P