[Federal Register Volume 85, Number 207 (Monday, October 26, 2020)]
[Notices]
[Pages 67791-67794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23550]


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

SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 34054; 812-15139]


Primark Private Equity Investments Fund and Primark Advisors LLC

October 20, 2020.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

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

    Notice of an application under section 6(c) of the Investment 
Company Act of 1940 (the ``Act'') for an exemption from sections 
18(a)(2), 18(c) and 18(i) of the Act, under sections 6(c) and 23(c) of 
the Act for an exemption from rule 23c-3 under the Act, and for an 
order pursuant to section 17(d) of the Act and rule 17d-1 under the 
Act.

Summary of Application:  Applicants request an order to permit certain 
registered closed-end management investment companies to issue multiple 
classes of shares and to impose early withdrawal charges and asset-
based distribution fees and/or service fees with respect to certain 
classes.

Applicants:  Primark Private Equity Investments Fund (the ``Initial 
Fund'') and Primark Advisors LLC (the ``Adviser'' and together with the 
Initial Fund, the ``Applicants'').

[[Page 67792]]


Filing Dates:  The application was filed on July 6, 2020, and amended 
on September 14, 2020 and October 6, 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 November 16, 2020 and should be 
accompanied by proof of service on the 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 to the Commission's Secretary at [email protected].

ADDRESSES: The Commission: [email protected]. Applicants: c/o 
Michael Bell, by email to [email protected], Gregory C. Davis, 
by email to [email protected] and Paulita A. Pike, by email 
to [email protected].

FOR FURTHER INFORMATION CONTACT: Marc Mehrespand, Senior Counsel; Trace 
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' Representations

    1. The Initial Fund is a Delaware statutory trust that is 
registered under the Act as a closed-end management investment company 
and operated as an interval fund pursuant to rule 23c-3 under the Act. 
The investment objective of the Initial Fund is to generate long-term 
capital appreciation. The Initial Fund pursues its investment objective 
primarily by investing in private equity investments.
    2. The Adviser is a Delaware limited liability company and is an 
investment adviser registered with the Commission under the Investment 
Advisers Act of 1940. The Adviser serves as investment adviser to the 
Initial Fund.
    3. Applicants seek an order to permit the Funds (as defined below) 
to issue multiple classes of shares, each having its own fee and 
expense structure and to impose early withdrawal charges (``EWCs'') and 
asset-based distribution and/or service fees with respect to certain 
classes.
    4. Applicants request that the order also apply to any 
continuously-offered registered closed-end management investment 
company that has been previously organized or that may be organized in 
the future for which the Adviser or any entity controlling, controlled 
by, or under common control with the Adviser, or any successor in 
interest to any such entity,\1\ acts as investment adviser and that 
operates as an interval fund pursuant to rule 23c-3 under the Act or 
provides periodic liquidity with respect to its shares pursuant to rule 
13e-4 under the Securities Exchange Act of 1934, as amended (the 
``Exchange Act'') (each, a ``Future Fund'' and together with the 
Initial Fund, the ``Funds'').\2\
---------------------------------------------------------------------------

    \1\ A successor in interest is limited to an entity that results 
from a reorganization into another jurisdiction or a change in the 
type of business organization.
    \2\ Applicants represent that any of the Funds relying on this 
relief in the future will do so in a manner consistent with the 
terms and conditions of the application. Applicants further 
represent that each entity presently intending to rely on the 
requested relief is listed as an Applicant.
---------------------------------------------------------------------------

    5. The Initial Fund is currently offering its common shares of 
beneficial interest (``Initial Class Shares'') on a continuous basis. 
Applicants state that additional offerings by any Fund relying on the 
order may be on a private placement or public offering basis. Shares of 
the Funds will not be listed on any securities exchange, nor quoted on 
any quotation medium, and the Funds do not expect there to be a 
secondary trading market for their shares.
    6. If the requested relief is granted, the Initial Fund intends to 
continuously offer at least one additional class of shares (``New Class 
Shares''). Each of the Initial Class Shares and the New Class Shares 
will have its own fee and expense structure. Because of the different 
distribution and/or service fees, services, and any other class 
expenses that may be attributable to each class of shares, the net 
income attributable to, and the dividends payable on, each class of 
shares may differ from each other.
    7. Applicants state that, from time to time, the Funds may create 
additional classes of shares, the terms of which may differ from their 
other share classes in the following respects: (i) The amount of fees 
permitted by different distribution plans and/or different service fee 
arrangements; (ii) voting rights with respect to a distribution and/or 
service plan of a class; (iii) different class designations; (iv) the 
impact of any class expenses directly attributable to a particular 
class of shares allocated on a class basis as described in the 
application; (v) any differences in dividends and net asset value 
resulting from differences in fees under a distribution plan and/or 
service fee arrangement or in class expenses; (vi) any EWC or other 
sales load structure; and (vii) exchange or conversion privileges of 
the classes as permitted under the Act.
    8. Applicants state that the Initial Fund has adopted a fundamental 
policy to repurchase a specified percentage of its shares (no less than 
5% and no more than 25%) at net asset value on a periodic basis. Such 
repurchase offers will be conducted pursuant to rule 23c-3 under the 
Act. Each of the other Funds will likewise adopt fundamental investment 
policies and make periodic repurchase offers to its shareholders in 
compliance with rule 23c-3 or will provide periodic liquidity with 
respect to its shares pursuant to rule 13e-4 under the Exchange Act.\3\ 
Any repurchase offers made by the Funds will be made to all holders of 
shares of each such Fund as of the selected record date.
---------------------------------------------------------------------------

    \3\ Applicants submit that rule 23c-3 and Regulation M under the 
Exchange Act permit an interval fund to make repurchase offers to 
repurchase its shares while engaging in a continuous offering of its 
shares pursuant to Rule 415 under the Securities Act of 1933, as 
amended.
---------------------------------------------------------------------------

    9. Applicants represent that any asset-based service and/or 
distribution fees for each class of shares of the Funds will comply 
with the provisions of FINRA Rule 2341 (formerly NASD rule 2380(d)) 
(the ``FINRA Sales Charge Rule'').\4\ Applicants also represent that 
each Fund will include in its prospectus disclosure the fees, expenses 
and other characteristics of each class of shares offered for sale by 
the prospectus, as is required for open-end multi-class funds under 
Form N-1A.\5\ As is required for open-end funds, each Fund will 
disclose fund expenses borne by shareholders during the reporting 
period in shareholder reports, and describe in their prospectuses any 
arrangements that result in breakpoints in, or elimination of, sales 
loads.\6\ In

[[Page 67793]]

addition, applicants will comply with applicable enhanced fee 
disclosure requirements for fund of funds.\7\
---------------------------------------------------------------------------

    \4\ Any reference in the application to the FINRA Sales Charge 
Rule includes any successor or replacement to the FINRA Sales Charge 
Rule.
    \5\ In all respects other than class by class disclosure, each 
Fund will comply with the requirements of Form N-2.
    \6\ See Shareholder Reports and Quarterly Portfolio Disclosure 
of Registered Management Investment Companies, Investment Company 
Act Release No. 26372 (Feb. 27, 2004) (adopting release) (requiring 
open-end investment companies to disclose fund expenses in 
shareholder reports); and Disclosure of Breakpoint Discounts by 
Mutual Funds, Investment Company Act Release No. 26464 (June 7, 
2004) (adopting release) (requiring open-end investment companies to 
provide prospectus disclosure of certain sales load information).
    \7\ Fund of Funds Investments, Investment Company Act Rel. Nos. 
26198 (Oct. 1, 2003) (proposing release) and 27399 (Jun. 20, 2006) 
(adopting release). See also Rules 12d1-1, et seq. of the Act.
---------------------------------------------------------------------------

    10. Each Fund will comply with any requirements that the Commission 
or FINRA may adopt regarding disclosure at the point of sale and in 
transaction confirmations about the costs and conflicts of interest 
arising out of the distribution of open-end investment company shares, 
and regarding prospectus disclosure of sales loads and revenue sharing 
arrangements, as if those requirements applied to each Fund. In 
addition, each Fund will contractually require that any distributor of 
the Fund's shares comply with such requirements in connection with the 
distribution of such Fund's shares.
    11. Each Fund will allocate all expenses incurred by it among the 
various classes of shares based on the net assets of that Fund 
attributable to each such class, except that the net asset value and 
expenses of each class will reflect the expenses associated with the 
distribution and/or service plan of that class (if any), service fees 
attributable to that class (if any), including transfer agency fees, 
and any other incremental expenses of that class. Expenses of a Fund 
allocated to a particular class of shares will be borne on a pro rata 
basis by each outstanding share of that class. Applicants state that 
each Fund will comply with the provisions of rule 18f-3 under the Act 
as if it were an open-end investment company.
    12. Applicants state that each Fund may impose an EWC on shares 
submitted for repurchase that have been held less than a specified 
period and may grant waivers of the EWCs on repurchases in connection 
with certain categories of shareholders or transactions established 
from time to time. Applicants state that each Fund will apply the EWC 
(and any waivers, scheduled variations or eliminations of the EWC) 
uniformly to all shareholders in a given class and consistently with 
the requirements of rule 22d-1 under the Act as if the Funds were open-
end investment companies.
    13. Each Fund that operates or will operate as an interval fund 
pursuant to rule 23c-3 under the Act may offer its shareholders an 
exchange feature under which the shareholders of the Fund may, in 
connection with such Fund's periodic repurchase offers, exchange their 
shares of the Fund for shares of the same class of (i) registered open-
end investment companies or (ii) other registered closed-end investment 
companies that comply with rule 23c-3 under the Act and continuously 
offer their shares at net asset value, that are in the Fund's group of 
investment companies (collectively, the ``Other Funds''). Shares of a 
Fund operating pursuant to rule 23c-3 that are exchanged for shares of 
Other Funds will be included as part of the amount of the repurchase 
offer amount for such Fund as specified in rule 23c-3 under the Act. 
Any exchange option will comply with rule 11a-3 under the Act, as if 
the Fund were an open-end investment company subject to rule 11a-3. In 
complying with rule 11a-3, each Fund will treat an EWC as if it were a 
contingent deferred sales load (``CDSL'').

Applicants' Legal Analysis

Multiple Classes of Shares

    1. Section 18(a)(2) of the Act provides that a closed-end 
investment company may not issue or sell a senior security that is a 
stock unless certain requirements are met. Applicants acknowledge that 
the creation of multiple classes of shares of the Funds may violate 
section 18(a)(2) because the Funds may not meet such requirements with 
respect to a class of shares that may be a senior security.
    2. Section 18(c) of the Act provides, in relevant part, that a 
closed-end investment company may not issue or sell any senior security 
if, immediately thereafter, the company has outstanding more than one 
class of senior security. Applicants acknowledge that the creation of 
multiple classes of shares of the Funds may be prohibited by section 
18(c), as a class may have priority over another class as to payment of 
dividends because shareholders of different classes would pay different 
fees and expenses.
    3. Section 18(i) of the Act provides that each share of stock 
issued by a registered management investment company will be a voting 
stock and have equal voting rights with every other outstanding voting 
stock. Applicants acknowledge that multiple classes of shares of the 
Funds may violate section 18(i) of the Act because each class would be 
entitled to exclusive voting rights with respect to matters solely 
related to that class.
    4. Section 6(c) 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 the Act, or from any 
rule or regulation under the Act, if and to the extent 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. Applicants request an exemption under 
section 6(c) from sections 18(a)(2), 18(c) and 18(i) to permit the 
Funds to issue multiple classes of shares.
    5. Applicants submit that the proposed allocation of expenses 
relating to distribution and/or services and voting rights is equitable 
and will not discriminate against any group or class of shareholders. 
Applicants submit that the proposed arrangements would permit a Fund to 
facilitate the distribution of its securities and provide investors 
with a broader choice of shareholder services. Applicants assert that 
the proposed closed-end investment company multiple class structure 
does not raise concerns underlying section 18 of the Act to any greater 
degree than open-end investment companies' multiple class structures. 
Applicants state that each Fund will comply with the provisions of rule 
18f-3 as if it were an open-end investment company.

Early Withdrawal Charges

    1. Section 23(c) of the Act provides, in relevant part, that no 
registered closed-end investment company shall purchase securities of 
which it is the issuer, except: (a) On a securities exchange or other 
open market; (b) pursuant to tenders, after reasonable opportunity to 
submit tenders given to all holders of securities of the class to be 
purchased; or (c) under other circumstances as the Commission may 
permit by rules and regulations or orders for the protection of 
investors.
    2. Rule 23c-3 under the Act permits a registered closed-end 
investment company (an ``interval fund'') to make repurchase offers of 
between five and twenty-five percent of its outstanding shares at net 
asset value at periodic intervals pursuant to a fundamental policy of 
the interval fund. Rule 23c-3(b)(1) under the Act permits an interval 
fund to deduct from repurchase proceeds only a repurchase fee, not to 
exceed two percent of the proceeds, that is paid to the interval fund 
and is reasonably intended to compensate the

[[Page 67794]]

fund for expenses directly related to the repurchase.
    3. Section 23(c)(3) provides that the Commission may issue an order 
that would permit a closed-end investment company to repurchase its 
shares in circumstances in which the repurchase is made in a manner or 
on a basis that does not unfairly discriminate against any holders of 
the class or classes of securities to be purchased. Applicants state 
that the Initial Fund currently charges, and Future Funds may charge, a 
repurchase fee at a rate of no greater than 2 percent of the aggregate 
net asset value of a shareholder's shares repurchased by the Fund (an 
``Early Repurchase Fee'') if the interval between the date of purchase 
of the shares and the valuation date with respect to the repurchase of 
those shares is less than one year. Applicants represent that any Early 
Repurchase Fee imposed by a Fund will apply equally to all New Class 
Shares and to all classes of shares of such Fund, consistent with 
section 18 of the Act and rule 18f-3 thereunder.
    4. Applicants request relief under section 6(c), discussed above, 
and section 23(c)(3) from rule 23c-3 to the extent necessary for the 
Funds to impose EWCs on shares of the Funds submitted for repurchase 
that have been held for less than a specified period.
    5. Applicants state that the EWCs they intend to impose are 
functionally similar to CDSLs imposed by open-end investment companies 
under rule 6c-10 under the Act. Rule 6c-10 permits open-end investment 
companies to impose CDSLs, subject to certain conditions. Applicants 
note that rule 6c-10 is grounded in policy considerations supporting 
the employment of CDSLs where there are adequate safeguards for the 
investor, and state that the same policy considerations support 
imposition of EWCs in the interval fund context. In addition, 
applicants state that EWCs may be necessary for the distributor to 
recover distribution costs. Applicants represent that any EWC imposed 
by the Funds will comply with rule 6c-10 under the Act as if the rule 
were applicable to closed-end funds. Applicants further represent that 
each Fund will disclose EWCs in accordance with the requirements of 
Form N-1A concerning CDSLs as if the Fund were an open-end investment 
company.

Asset-Based Distribution and/or Service Fees

    1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
an affiliated person of a registered investment company, or an 
affiliated person of such person, acting as principal, from 
participating in or effecting any transaction in connection with any 
joint enterprise or joint arrangement in which the investment company 
participates unless the Commission issues an order permitting the 
transaction. In reviewing applications submitted under section 17(d) 
and rule 17d-1, the Commission considers whether the participation of 
the investment company in a joint enterprise or joint arrangement is 
consistent with the provisions, policies and purposes of the Act, and 
the extent to which the participation is on a basis different from or 
less advantageous than that of other participants.
    2. Rule 17d-3 under the Act provides an exemption from section 
17(d) and rule 17d-1 to permit open-end investment companies to enter 
into distribution arrangements pursuant to rule 12b-1 under the Act. 
Applicants request an order under section 17(d) and rule 17d-1 under 
the Act to the extent necessary to permit the Funds to impose asset-
based distribution and/or service fees. Applicants represent that the 
Funds will comply with rules 12b-1 and 17d-3 as if those rules applied 
to closed-end investment companies.
    3. For the reasons stated above, applicants submit that the 
exemptions requested are necessary and appropriate in the public 
interest and are consistent with the protection of investors and the 
purposes fairly intended by the policy and provisions of the Act. 
Applicants further submit that the relief requested pursuant to section 
23(c)(3) will be consistent with the protection of investors and will 
insure that applicants do not unfairly discriminate against any holders 
of the class of securities to be purchased. Finally, applicants state 
that the Funds' imposition of asset-based distribution and/or service 
fees is consistent with the provisions, policies and purposes of the 
Act and does not involve participation on a basis different from or 
less advantageous than that of other participants.

Applicants' Condition

    Applicants agree that any order granting the requested relief will 
be subject to the following condition:
    Each Fund relying on the order will comply with the provisions of 
rules 6c-10, 12b-1, 17d-3, 18f-3, 22d-1, and, where applicable, 11a-3 
under the Act, as amended from time to time or replaced, as if those 
rules applied to closed-end management investment companies, and will 
comply with the FINRA Sales Charge Rule, as amended from time to time, 
as if that rule applied to all closed-end management investment 
companies.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-23550 Filed 10-23-20; 8:45 am]
BILLING CODE 8011-01-P