[Federal Register Volume 85, Number 222 (Tuesday, November 17, 2020)]
[Notices]
[Pages 73321-73322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25329]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 34092; File No. 812-15146]


AdvisorShares Trust, et al.

November 12, 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), and 22(d) of the Act and rule 22c-1 under the Act, 
and under sections 6(c) and 17(b) of the Act for an exemption from 
sections 17(a)(1) and 17(a)(2) of the Act.

Applicants: AdvisorShares Trust (the ``Trust''), AdvisorShares 
Investments, LLC (the ``Initial Adviser''), and Foreside Fund Services, 
LLC (the ``Distributor'').

Summary of Application: Applicants request an order (``Order'') that 
permits: (a) ActiveShares ETFs (as described in the Reference Order (as 
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; and (c) certain affiliated persons of an 
ActiveShares ETF to deposit securities into, and receive securities 
from, the ActiveShares ETF in connection with the purchase and 
redemption of creation units. The relief in the Order would incorporate 
by reference terms and conditions of the same relief of a previous 
order granting the same relief sought by applicants, as that order may 
be amended from time to time (``Reference Order'').\1\
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    \1\ Precidian ETFs Trust, et al., Investment Company Act Release 
Nos. 33440 (April 8, 2019) (notice) and 33477 (May 20, 2019) 
(order). Applicants are not seeking relief 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 ``Section 12(d)(1) Relief''), and relief 
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 relating to the Section 
12(d)(1) Relief, as granted in the Reference Order. Accordingly, to 
the extent the terms and conditions of the Reference Order relate to 
such relief, they are not incorporated by reference into the Order.

Filing Date: The application was filed on July 31, 2020 and amended on 
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November 3, 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 December 7, 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: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Jill Ehrlich, Senior Counsel, at (202) 
551-6819 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 established under the laws of 
Delaware and will consist of one or more series operating as 
ActiveShares ETFs. 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 two initial Funds (``Initial 
Funds''). The Funds will operate as ActiveShares ETFs as described in 
the Reference Order.\2\
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    \2\ To facilitate arbitrage, an ActiveShares ETF disseminates a 
``verified intraday indicative value'' or ``VIIV,'' reflecting the 
value of its portfolio holdings, calculated every second during the 
trading day. To protect the identity and weightings of its portfolio 
holdings, an ActiveShares ETF sells and redeems its Shares in 
creation units to authorized participants only through an 
unaffiliated broker-dealer acting on an agency basis.
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    2. The Initial Adviser, a Delaware limited liability company, will 
be the investment adviser to the Initial Funds. An Adviser (as defined 
below) will serve as investment adviser to each Fund. The Initial 
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 will be registered under the 
Advisers Act.
    3. The Distributor is a Delaware limited liability company 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), and 22(d) of the 
Act and rule 22c-1 under the Act, and under sections 6(c) and 17(b) of 
the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the 
Act. The requested Order would permit applicants to offer ActiveShares 
ETFs. Because the relief requested is the same as certain of the relief 
granted by the Commission under the Reference Order and because the 
Initial Adviser has entered into a license agreement with Precidian 
Investments LLC, or an affiliate thereof, in order to offer 
ActiveShares ETFs,\3\ the Order would incorporate by reference the 
terms and conditions of the same relief of the Reference Order.
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    \3\ Aspects of the Funds are covered by intellectual property 
rights, including but not limited to those which are described in 
one or more patent applications.
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    5. Applicants request that the Order apply to the Initial Funds and 
to any other existing or future registered open-end management 
investment company or series thereof that: (a) Is advised by

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the Initial Adviser or any entity controlling, controlled by, or under 
common control with the Initial Adviser (any such entity, along with 
the Initial Adviser, included in the term ``Adviser''); (b) operates as 
an ActiveShares ETF as described in the Reference Order; and (c) 
complies with the terms and conditions of the Order and the terms and 
conditions of the Reference Order that are incorporated by reference 
into the Order (each such company or series and each 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 the terms and conditions of the Reference Order that are 
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. Applicants submit that for the reasons stated in 
the Reference Order the requested relief meets the exemptive standards 
under sections 6(c) and 17(b) of the Act.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-25329 Filed 11-16-20; 8:45 am]
BILLING CODE 8011-01-P