[Federal Register Volume 85, Number 171 (Wednesday, September 2, 2020)]
[Notices]
[Pages 54598-54599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19427]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 33998, File No. 812-15123]


Spinnaker ETF Series, et al.

August 28, 2020.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

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    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 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 
12(d)(1)(B) of the Act.
    Applicants: Spinnaker ETF Series (the ``Trust''), OBP Capital LLC 
(the ``Adviser'') and Capital Investment Group, Inc. (the 
``Distributor'').
    Summary of Application: Applicants request an order (``Order'') 
that permits: (a) The Funds (defined below) to issue shares 
(``Shares'') redeemable in large aggregations only (``creation 
units''); (b) secondary market transactions in Shares to occur at 
negotiated market prices rather than at net asset value; (c) certain 
Funds to pay redemption proceeds, under certain circumstances, more 
than seven days after the tender of Shares for redemption; (d) certain 
affiliated persons of a Fund to deposit securities into, and receive 
securities from, the Fund 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 Funds to acquire Shares of the 
Funds. The Order would incorporate by reference terms and conditions of 
a previous order granting the same relief sought by applicants, as that 
order may

[[Page 54599]]

be amended from time to time (``Reference Order'').\1\
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    \1\ Natixis ETF Trust II, et al., Investment Company Act Rel. 
Nos. 33684 (November 14, 2019) (notice) and 33711 (December 10, 
2019) (order).
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    Filing Date: The application was filed on April 16, 2020 and 
amended on July 22, 2020.
    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 emailing the Commission's 
Secretary at [email protected] and serving applicants with a 
copy of the request by email. Hearing requests should be received by 
the Commission by 5:30 p.m. on September 22, 2020, and should be 
accompanied by proof of service on applicants, in the form of an 
affidavit or, for lawyers, a certificate of service. Pursuant to rule 
0-5 under the Act, hearing requests should state the nature of the 
writer's interest, any facts bearing upon the desirability of a hearing 
on the matter, the reason for the request, and the issues contested. 
Persons who wish to be notified of a hearing may request notification 
by emailing the Commission's Secretary at [email protected].

ADDRESSES: The Commission: [email protected]. Applicants: c/o 
Tracie Coop, Secretary, Spinnaker ETF Series, [email protected].

FOR FURTHER INFORMATION CONTACT: Laura J. Riegel, Senior Counsel, at 
(202) 551-3038 or Trace W. Rakestraw, Branch Chief, at (202) 551-6825 
(Division of Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained via the 
Commission's website 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

    1. The Trust is a statutory trust organized under the laws of 
Delaware and will consist of one or more series operating as a Fund. 
The Trust is registered as an open-end management investment company 
under the Act. Applicants seek relief with respect to Funds (as defined 
below), including an initial Fund (the ``Initial Fund''). The Funds 
will offer exchange-traded shares utilizing active management 
investment strategies as contemplated by the Reference Order.\2\
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    \2\ To facilitate arbitrage, among other things, each day a Fund 
will publish a basket of securities and cash that, while different 
from the Fund's portfolio, is designed to closely track its daily 
performance.
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    2. The Adviser, a North Carolina limited liability company, will be 
the investment adviser to the Initial Fund. Subject to approval by the 
Fund's board of trustees, the Adviser (as defined below) will serve as 
investment adviser to each Fund. The Adviser is, and any other Adviser 
will be, registered as an investment adviser under the Investment 
Advisers Act of 1940 (``Advisers Act''). The Adviser may enter into 
sub-advisory agreements with other investment advisers to act as sub-
advisers with respect to the Funds (each a ``Sub-Adviser''). Any Sub-
Adviser to a Fund will be registered under the Advisers Act.
    3. The Distributor is a North Carolina corporation and a broker-
dealer registered under the Securities Exchange Act of 1934, as 
amended, and will act as the principal underwriter of Shares of the 
Funds. Applicants request that the requested relief apply to any 
distributor of Shares, whether affiliated or unaffiliated with the 
Adviser and/or Sub-Adviser (included in the term ``Distributor''). Any 
Distributor will comply with the terms and conditions of the Order.

Applicants' Requested Exemptive Relief

    4. Applicants seek the requested 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 12(d)(1)(B) of the Act. The requested Order 
would permit applicants to offer Funds that utilize the NYSE Proxy 
Portfolio Methodology. Because the relief requested is the same as the 
relief granted by the Commission under the Reference Order and because 
the Adviser has entered into a licensing agreement with NYSE Group, 
Inc. in order to offer Funds that utilize the NYSE Proxy Portfolio 
Methodology,\3\ the Order would incorporate by reference the terms and 
conditions of the Reference Order.
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    \3\ The NYSE Proxy Portfolio Methodology (as defined in the 
Reference Order) is the intellectual property of the NYSE Group, 
Inc.
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    5. Applicants request that the Order apply to the Initial Fund and 
to any other existing or future registered open-end management 
investment company or series thereof that: (a) Is advised by the 
Adviser or any entity controlling, controlled by, or under common 
control with the Adviser (any such entity included in the term 
``Adviser''); (b) offers exchange-traded shares utilizing active 
management investment strategies as contemplated by the Reference 
Order; and (c) complies with the terms and conditions of the Order and 
of the Reference Order, which is incorporated by reference into the 
Order (each such company or series and the Initial Fund, a 
``Fund'').\4\
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    \4\ 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 Order 
and of the Reference Order, which is incorporated by reference into 
the Order.
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    6. 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 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 transaction is consistent 
with the policies of the registered investment company and the general 
purposes 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 of persons, securities or transactions, from any provision of 
section 12(d)(1) if the exemption is consistent with the public 
interest and the protection of investors. Applicants submit that for 
the reasons stated in the Reference Order the requested relief meets 
the exemptive standards under sections 6(c), 17(b) and 12(d)(1)(J) of 
the Act.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2020-19427 Filed 9-1-20; 8:45 am]
BILLING CODE 8011-01-P