Millington Securities, Inc. and Millington Unit Investment Trusts; Notice of Application, 9629-9631 [2010-4366]
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Federal Register / Vol. 75, No. 41 / Wednesday, March 3, 2010 / Notices
institutions with multiple affiliates. We
estimate that it will take a typical newly
registered unaffiliated institution
approximately 65 hours to review,
identify, and document their safeguard
policies and procedures, for a total of
29,250 hours for all newly registered
unaffiliated entities.
Therefore, we estimate that the total
annual hourly burden associated with
the safeguards rule is 87,460 hours. We
also estimate that all covered
institutions will be respondents each
year, for a total of 21,225 respondents.
These estimates of average burden
hours are made solely for the purposes
of the Paperwork Reduction Act. An
agency may not conduct or sponsor, and
a person is not required to respond to
a collection of information unless it
displays a currently valid control
number. The safeguard rule does not
require the reporting of any information
or the filing of any documents with the
Commission. The collection of
information required by the safeguard
rule is mandatory.
Written comments are invited on: (a)
Whether the proposed collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
(b) the accuracy of the agency’s estimate
of the burden of the collection of
information; (c) ways to enhance the
quality, utility, and clarity of the
information collected; and (d) ways to
minimize the burden of the collection of
information on respondents, including
through the use of automated collection
techniques or other forms of information
technology. Consideration will be given
to comments and suggestions submitted
in writing within 60 days of this
publication.
Please direct your written comments
to Charles Boucher, Director/CIO,
Securities and Exchange Commission,
C/O Shirley Martinson, 6432 General
Green Way, Alexandria, VA 22312; or
send an e-mail to:
PRA_Mailbox@sec.gov.
mstockstill on DSKH9S0YB1PROD with NOTICES
Dated: February 23, 2010.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010–4335 Filed 3–2–10; 8:45 am]
BILLING CODE 8011–01–P
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SECURITIES AND EXCHANGE
COMMISSION
[Investment Company Act Release No.
29160; 812–13595]
Millington Securities, Inc. and
Millington Unit Investment Trusts;
Notice of Application
February 25, 2010.
AGENCY: Securities and Exchange
Commission (‘‘Commission’’).
ACTION: Notice of an application under
(a) section 6(c) of the Investment
Company Act of 1940 (‘‘Act’’) for an
exemption from sections 2(a)(32),
2(a)(35), 14(a), 19(b), 22(d) and
26(a)(2)(C) of the Act and rules 19b–1
and rule 22c–1 thereunder and (b)
sections 11(a) and 11(c) of the Act for
approval of certain exchange and
rollover privileges.
APPLICANTS: Millington Securities, Inc.
(‘‘Millington’’) and Millington Unit
Investment Trusts (the ‘‘Millington
Trusts’’).1
SUMMARY OF APPLICATION: Applicants
request an order to permit certain unit
investment trusts to: (a) Impose sales
charges on a deferred basis and waive
the deferred sales charge in certain
cases; (b) offer unitholders certain
exchange and rollover options; (c)
publicly offer units without requiring
the Depositor to take for its own account
$100,000 worth of units; and (d)
distribute capital gains resulting from
the sale of portfolio securities within a
reasonable time after receipt.
FILING DATES: The application was filed
on October 27, 2008 and amended on
March 19, 2009, December 4, 2009,
February 24, 2010 and February 25,
2010.
HEARING OR NOTIFICATION OF HEARING: An
order granting the application 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 March 19, 2010, and
should be accompanied by proof of
service on the applicants, in the form of
an affidavit, or, for lawyers, a certificate
1 Applicants also request relief for future unit
investment trusts (collectively, with the Millington
Trusts, the ‘‘Trusts’’) and series of the Trusts
(‘‘Series’’) that are sponsored by Millington or any
entity controlling, controlled by or under common
control with Millington (together with Millington,
the ‘‘Depositors’’). Any future Trust and Series that
relies on the requested order will comply with the
terms and conditions of the application. All existing
entities that currently intend to rely on the
requested order are named as applicants.
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9629
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: Secretary, Securities and
Exchange Commission, 100 F Street,
NE., Washington, DC 20549–1090;
Applicants, 222 S. Mill Street,
Naperville, Illinois 60540.
FOR FURTHER INFORMATION CONTACT:
Emerson S. Davis, Sr., Senior Counsel,
at (202) 551–6868, or Julia Kim Gilmer,
Branch Chief, at (202) 551–6821 (Office
of Investment Company Regulation,
Division of Investment Management).
SUPPLEMENTARY INFORMATION: The
following is a summary of the
application. The complete application
may be obtained via the Commission’s
Web site by searching for the file
number, or an applicant using the
Company name box, at https://
www.sec.gov/search/search.htm or by
calling (202) 551–8090.
Applicants’ Representations:
1. The Millington Trust is a unit
investment trust (‘‘UIT’’) that is
registered under the Act. Any future
Trust will be a registered UIT.
Millington, an Illinois corporation, is
registered under the Securities
Exchange Act of 1934 as a broker-dealer
and is the Depositor of the Millington
Trusts. Each Series will be created by a
trust indenture between the Depositor
and a banking institution or trust
company as trustee (‘‘Trustee’’).
2. The Depositor acquires a portfolio
of securities, which it deposits with the
Trustee in exchange for certificates
representing units of fractional
undivided interest in the Series’
portfolio (‘‘Units’’). The Units are offered
to the public through the Depositor and
dealers at a price which, during the
initial offering period, is based upon the
aggregate market value of the underlying
securities, or, the aggregate offering side
evaluation of the underlying securities if
the underlying securities are not listed
on a securities exchange, plus a frontend sales charge. The maximum sales
charge may be reduced in compliance
with rule 22d-1 under the Act in certain
circumstances, which are disclosed in
the Series’ prospectus.
3. The Depositor is not legally
obligated, and does not currently
intend, to maintain a secondary market
for Units of outstanding equity Series,
but may seek to do so in the future.
Other broker-dealers may or may not
maintain a secondary market for Units
of a Series. If a secondary market is
maintained, investors will be able to
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purchase Units on the secondary market
at the current public offering price plus
a front-end sales charge. If such a
market is not maintained at any time for
any Series, holders of the Units
(‘‘Unitholders’’) of that Series may
redeem their Units through the Trustee.
A. Deferred Sales Charge and Waiver of
Deferred Sales Charge Under Certain
Circumstances
1. Applicants request an order to the
extent necessary to permit one or more
Series to impose a sales charge on a
deferred basis (‘‘DSC’’). For each Series,
the Depositor would set a maximum
sales charge per Unit, a portion of which
may be collected ‘‘up front’’ (i.e., at the
time an investor purchases the Units).
The DSC would be collected
subsequently in installments
(‘‘Installment Payments’’) as described in
the application. The Depositor would
not add any amount for interest or any
similar or related charge to adjust for
such deferral.
2. When a Unitholder redeems or sells
Units, the Depositor intends to deduct
any unpaid DSC from the redemption or
sale proceeds. When calculating the
amount due, the Depositor will assume
that Units on which the DSC has been
paid in full are redeemed or sold first.
With respect to Units on which the DSC
has not been paid in full, the Depositor
will assume that the Units held for the
longest time are redeemed or sold first.
Applicants represent that the DSC
collected at the time of redemption or
sale, together with the Installment
Payments and any amount collected up
front, will not exceed the maximum
sales charge per Unit. Under certain
circumstances, the Depositor may waive
the collection of any unpaid DSC in
connection with redemptions or sales of
Units. These circumstances will be
disclosed in the prospectus for the
relevant Series and implemented in
accordance with rule 22d–1 under the
Act.
3. Each Series offering Units subject to
a DSC will state the maximum charge
per Unit in its prospectus. In addition,
the prospectus for such Series will
include the table required by Form N–
1A (modified as appropriate to reflect
the difference between UITs and openend management investment
companies) and a schedule setting forth
the number and date of each Installment
Payment, along with the duration of the
collection period. The prospectus also
will disclose that portfolio securities
may be sold to pay the DSC if
distribution income is insufficient and
that securities will be sold pro rata, if
practicable, otherwise a specific security
will be designated for sale.
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B. Exchange Option and Rollover
Option
1. Applicants request an order to the
extent necessary to permit Unitholders
of a Series to exchange their Units for
Units of another Series (‘‘Exchange
Option’’) and Unitholders of a Series
that is terminating to exchange their
Units for Units of a new Series of the
same type (‘‘Rollover Option’’). The
Exchange Option and Rollover Option
would apply to all exchanges of Units
sold with a front-end sales charge or
DSC.
2. A Unitholder who purchases Units
under the Exchange Option or Rollover
Option would pay a lower sales charge
than that which would be paid for the
Units by a new investor. The reduced
sales charge will be reasonably related
to the expenses incurred in connection
with the administration of the DSC
program, which may include an amount
that will fairly and adequately
compensate the Depositor and
participating underwriters and brokers
for their services in providing the DSC
program.
Applicants’ Legal Analysis:
A. DSC and Waiver of DSC
1. Section 4(2) of the Act defines a
‘‘unit investment trust’’ as an investment
company that issues only redeemable
securities. Section 2(a)(32) of the Act
defines a ‘‘redeemable security’’ as a
security that, upon its presentation to
the issuer, entitles the holder to receive
approximately his or her proportionate
share of the issuer’s current net assets or
the cash equivalent of those assets. Rule
22c–1 under the Act requires that the
price of a redeemable security issued by
a registered investment company for
purposes of sale, redemption or
repurchase be based on the security’s
current net asset value (‘‘NAV’’). Because
the collection of any unpaid DSC may
cause a redeeming Unitholder to receive
an amount less than the NAV of the
redeemed Units, applicants request
relief from section 2(a)(32) and rule
22c–1.
2. Section 22(d) of the Act and rule
22d–1 under the Act require a registered
investment company and its principal
underwriter and dealers to sell
securities only at the current public
offering price described in the
investment company’s prospectus, with
the exception of sales of redeemable
securities at prices that reflect
scheduled variations in the sales load.
Section 2(a)(35) of the Act defines the
term ‘‘sales load’’ as the difference
between the sales price and the portion
of the proceeds invested by the
depositor or trustee. Applicants request
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relief from section 2(a)(35) and section
22(d) to permit waivers, deferrals or
other scheduled variations of the sales
load.
3. Under section 6(c) of the Act, the
Commission may exempt classes of
transactions, 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. Applicants state that their
proposal meets the standards of section
6(c). Applicants state that the provisions
of section 22(d) are intended to prevent
(a) riskless trading in investment
company securities due to backward
pricing, (b) disruption of orderly
distribution by dealers selling shares at
a discount, and (c) discrimination
among investors resulting from different
prices charged to different investors.
Applicants assert that the proposed DSC
program will present none of these
abuses. Applicants further state that all
scheduled variations in the sales load
will be disclosed in the prospectus of
each Series and applied uniformly to all
investors, and that applicants will
comply with all the conditions set forth
in rule 22d–1.
4. Section 26(a)(2)(C) of the Act, in
relevant part, prohibits a trustee or
custodian of a UIT from collecting from
the trust as an expense any payment to
the trust’s depositor or principal
underwriter. Because the Trustee’s
payment of the DSC to the Depositor
may be deemed to be an expense under
section 26(a)(2)(C), applicants request
relief under section 6(c) from section
26(a)(2)(C) to the extent necessary to
permit the Trustee to collect Installment
Payments and disburse them to the
Depositor. Applicants submit that the
relief is appropriate because the DSC is
more properly characterized as a sales
load.
B. Exchange Option and Rollover
Option
1. Sections 11(a) and 11(c) of the Act
prohibit any offer of exchange by a UIT
for the securities of another investment
company unless the terms of the offer
have been approved in advance by the
Commission. Applicants request an
order under sections 11(a) and 11(c) for
Commission approval of the Exchange
Option and the Rollover Option.
C. Net Worth Requirement
1. Section 14(a) of the Act requires
that a registered investment company
have $100,000 of net worth prior to
making a public offering. Applicants
state that each Series will comply with
this requirement because the Depositor
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mstockstill on DSKH9S0YB1PROD with NOTICES
will deposit more than $100,000 of
securities. Applicants assert, however,
that the Commission has interpreted
section 14(a) as requiring that the initial
capital investment in an investment
company be made without any intention
to dispose of the investment. Applicants
state that, under this interpretation, a
Series would not satisfy section 14(a)
because of the Depositor’s intention to
sell all the Units of the Series.
2. Rule 14a–3 under the Act exempts
UITs from section 14(a) if certain
conditions are met, one of which is that
the UIT invest only in ‘‘eligible trust
securities,’’ as defined in the rule.
Applicants state that they may not rely
on rule 14a–3 because certain Series
(collectively, ‘‘Equity Series’’) will invest
all or a portion of their assets in equity
securities or shares of registered
investment companies which do not
satisfy the definition of eligible trust
securities.
3. Applicants request an exemption
under section 6(c) of the Act to the
extent necessary to exempt the Equity
Series from the net worth requirement
in section 14(a). Applicants state that
the Series and the Depositor will
comply in all respects with the
requirements of rule 14a–3, except that
the Equity Series will not restrict their
portfolio investments to ‘‘eligible trust
securities.’’
D. Capital Gains Distribution
1. Section 19(b) of the Act and rule
19b–1 under the Act provide that,
except under limited circumstances, no
registered investment company may
distribute long-term gains more than
once every twelve months. Rule 19b–
1(c), under certain circumstances,
exempts a UIT investing in eligible trust
securities (as defined in rule 14a–3)
from the requirements of rule 19b–1.
Because the Equity Series do not limit
their investments to eligible trust
securities, however, the Equity Series
will not qualify for the exemption in
paragraph (c) of rule 19b–1. Applicants
therefore request an exemption under
section 6(c) from section 19(b) and rule
19b–1 to the extent necessary to permit
capital gains earned in connection with
the sale of portfolio securities to be
distributed to Unitholders along with
the Equity Series’ regular distributions.
In all other respects, applicants will
comply with section 19(b) and rule 19b–
1.
2. Applicants state that their proposal
meets the standards of section 6(c).
Applicants assert that any sale of
portfolio securities would be triggered
by the need to meet Trust expenses,
Installment Payments, or by redemption
requests, events over which the
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Depositor and the Equity Series do not
have control. Applicants further state
that, because principal distributions
must be clearly indicated in
accompanying reports to Unitholders as
a return of principal and will be
relatively small in comparison to
normal dividend distributions, there is
little danger of confusion from failure to
differentiate among distributions.
Applicants’ Conditions:
Applicants agree that any order
granting the requested relief will be
subject to the following conditions:
A. DSC Relief and Exchange and
Rollover Options
1. Whenever the Exchange Option or
the Rollover Option is to be terminated
or its terms are to be amended
materially, any holder of a security
subject to that privilege will be given
prominent notice of the impending
termination or amendment at least 60
days prior to the date of termination or
the effective date of the amendment,
provided that: (a) No such notice need
be given if the only material effect of an
amendment is to reduce or eliminate the
sales charge payable at the time of an
exchange, to add one or more new
Series eligible for the Exchange Option
or the Rollover Option, or to delete a
Series which has terminated; and (b) no
notice need be given if, under
extraordinary circumstances, either (i)
there is a suspension of the redemption
of Units of the Series under section
22(e) of the Act and the rules and
regulations promulgated thereunder, or
(ii) a Series temporarily delays or ceases
the sale of its Units because it is unable
to invest amounts effectively in
accordance with applicable investment
objectives, policies and restrictions.
2. An investor who purchases Units
under the Exchange Option or the
Rollover Option will pay a lower sales
charge than that which would be paid
for the Units by a new investor.
3. The prospectus of each Series
offering exchanges or rollovers and any
sales literature or advertising that
mentions the existence of the Exchange
Option or Rollover Option will disclose
that the Exchange Option and the
Rollover Option are subject to
modification, termination or suspension
without notice, except in certain limited
cases.
4. Any DSC imposed on a Series’
Units will comply with the
requirements of subparagraphs (1), (2)
and (3) of rule 6c–10(a) under the Act.
5. Each Series offering Units subject to
a DSC will include in its prospectus the
disclosure required by Form N–1A
relating to deferred sales charges
(modified as appropriate to reflect the
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9631
differences between UITs and open-end
management investment companies)
and a schedule setting forth the number
and date of each Installment Payment.
B. Net Worth Requirement
1. Applicants will comply in all
respects with the requirements of rule
14a–3 under the Act, except that the
Equity Series will not restrict their
portfolio investments to ‘‘eligible trust
securities.’’
For the Commission, by the Division of
Investment Management, under delegated
authority.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010–4366 Filed 3–2–10; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[File No. 500–1]
In the Matter of Primegen Energy
Corp.; Order of Suspension of Trading
March 1, 2010.
It appears to the Securities and
Exchange Commission that there is a
lack of current and accurate information
concerning the securities of PrimeGen
Energy Corporation (‘‘PrimeGen’’)
because of questions regarding the
accuracy of publicly disseminated
information concerning, among other
things, the company’s current financial
condition, management, and business
operations. PrimeGen is quoted on the
Pink Sheets under the symbol ‘‘PGNE.’’
The Commission is of the opinion that
the public interest and the protection of
investors require a suspension of trading
in the securities of the above-listed
company.
Therefore, it is ordered, pursuant to
Section 12(k) of the Securities Exchange
Act of 1934, that trading in securities of
the above-listed company is suspended
for the period from 9:30 a.m. EST, on
March 1, 2010, through 11:59 p.m. EST,
on March 12, 2010.
By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010–4502 Filed 3–1–10; 11:15 am]
BILLING CODE 8011–01–P
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Agencies
[Federal Register Volume 75, Number 41 (Wednesday, March 3, 2010)]
[Notices]
[Pages 9629-9631]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-4366]
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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 29160; 812-13595]
Millington Securities, Inc. and Millington Unit Investment
Trusts; Notice of Application
February 25, 2010.
AGENCY: Securities and Exchange Commission (``Commission'').
ACTION: Notice of an application under (a) section 6(c) of the
Investment Company Act of 1940 (``Act'') for an exemption from sections
2(a)(32), 2(a)(35), 14(a), 19(b), 22(d) and 26(a)(2)(C) of the Act and
rules 19b-1 and rule 22c-1 thereunder and (b) sections 11(a) and 11(c)
of the Act for approval of certain exchange and rollover privileges.
-----------------------------------------------------------------------
Applicants: Millington Securities, Inc. (``Millington'') and Millington
Unit Investment Trusts (the ``Millington Trusts'').\1\
---------------------------------------------------------------------------
\1\ Applicants also request relief for future unit investment
trusts (collectively, with the Millington Trusts, the ``Trusts'')
and series of the Trusts (``Series'') that are sponsored by
Millington or any entity controlling, controlled by or under common
control with Millington (together with Millington, the
``Depositors''). Any future Trust and Series that relies on the
requested order will comply with the terms and conditions of the
application. All existing entities that currently intend to rely on
the requested order are named as applicants.
Summary of Application: Applicants request an order to permit certain
unit investment trusts to: (a) Impose sales charges on a deferred basis
and waive the deferred sales charge in certain cases; (b) offer
unitholders certain exchange and rollover options; (c) publicly offer
units without requiring the Depositor to take for its own account
$100,000 worth of units; and (d) distribute capital gains resulting
from the sale of portfolio securities within a reasonable time after
---------------------------------------------------------------------------
receipt.
Filing Dates: The application was filed on October 27, 2008 and amended
on March 19, 2009, December 4, 2009, February 24, 2010 and February 25,
2010.
Hearing or Notification of Hearing: An order granting the application
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 March 19, 2010, and should be accompanied by proof of service
on the 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: Secretary, Securities and Exchange Commission, 100 F Street,
NE., Washington, DC 20549-1090; Applicants, 222 S. Mill Street,
Naperville, Illinois 60540.
FOR FURTHER INFORMATION CONTACT: Emerson S. Davis, Sr., Senior Counsel,
at (202) 551-6868, or Julia Kim Gilmer, Branch Chief, at (202) 551-6821
(Office of Investment Company Regulation, Division of Investment
Management).
SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained via the
Commission's Web site by searching for the file number, or an applicant
using the Company name box, at https://www.sec.gov/search/search.htm or
by calling (202) 551-8090.
Applicants' Representations:
1. The Millington Trust is a unit investment trust (``UIT'') that
is registered under the Act. Any future Trust will be a registered UIT.
Millington, an Illinois corporation, is registered under the Securities
Exchange Act of 1934 as a broker-dealer and is the Depositor of the
Millington Trusts. Each Series will be created by a trust indenture
between the Depositor and a banking institution or trust company as
trustee (``Trustee'').
2. The Depositor acquires a portfolio of securities, which it
deposits with the Trustee in exchange for certificates representing
units of fractional undivided interest in the Series' portfolio
(``Units''). The Units are offered to the public through the Depositor
and dealers at a price which, during the initial offering period, is
based upon the aggregate market value of the underlying securities, or,
the aggregate offering side evaluation of the underlying securities if
the underlying securities are not listed on a securities exchange, plus
a front-end sales charge. The maximum sales charge may be reduced in
compliance with rule 22d-1 under the Act in certain circumstances,
which are disclosed in the Series' prospectus.
3. The Depositor is not legally obligated, and does not currently
intend, to maintain a secondary market for Units of outstanding equity
Series, but may seek to do so in the future. Other broker-dealers may
or may not maintain a secondary market for Units of a Series. If a
secondary market is maintained, investors will be able to
[[Page 9630]]
purchase Units on the secondary market at the current public offering
price plus a front-end sales charge. If such a market is not maintained
at any time for any Series, holders of the Units (``Unitholders'') of
that Series may redeem their Units through the Trustee.
A. Deferred Sales Charge and Waiver of Deferred Sales Charge Under
Certain Circumstances
1. Applicants request an order to the extent necessary to permit
one or more Series to impose a sales charge on a deferred basis
(``DSC''). For each Series, the Depositor would set a maximum sales
charge per Unit, a portion of which may be collected ``up front''
(i.e., at the time an investor purchases the Units). The DSC would be
collected subsequently in installments (``Installment Payments'') as
described in the application. The Depositor would not add any amount
for interest or any similar or related charge to adjust for such
deferral.
2. When a Unitholder redeems or sells Units, the Depositor intends
to deduct any unpaid DSC from the redemption or sale proceeds. When
calculating the amount due, the Depositor will assume that Units on
which the DSC has been paid in full are redeemed or sold first. With
respect to Units on which the DSC has not been paid in full, the
Depositor will assume that the Units held for the longest time are
redeemed or sold first. Applicants represent that the DSC collected at
the time of redemption or sale, together with the Installment Payments
and any amount collected up front, will not exceed the maximum sales
charge per Unit. Under certain circumstances, the Depositor may waive
the collection of any unpaid DSC in connection with redemptions or
sales of Units. These circumstances will be disclosed in the prospectus
for the relevant Series and implemented in accordance with rule 22d-1
under the Act.
3. Each Series offering Units subject to a DSC will state the
maximum charge per Unit in its prospectus. In addition, the prospectus
for such Series will include the table required by Form N-1A (modified
as appropriate to reflect the difference between UITs and open-end
management investment companies) and a schedule setting forth the
number and date of each Installment Payment, along with the duration of
the collection period. The prospectus also will disclose that portfolio
securities may be sold to pay the DSC if distribution income is
insufficient and that securities will be sold pro rata, if practicable,
otherwise a specific security will be designated for sale.
B. Exchange Option and Rollover Option
1. Applicants request an order to the extent necessary to permit
Unitholders of a Series to exchange their Units for Units of another
Series (``Exchange Option'') and Unitholders of a Series that is
terminating to exchange their Units for Units of a new Series of the
same type (``Rollover Option''). The Exchange Option and Rollover
Option would apply to all exchanges of Units sold with a front-end
sales charge or DSC.
2. A Unitholder who purchases Units under the Exchange Option or
Rollover Option would pay a lower sales charge than that which would be
paid for the Units by a new investor. The reduced sales charge will be
reasonably related to the expenses incurred in connection with the
administration of the DSC program, which may include an amount that
will fairly and adequately compensate the Depositor and participating
underwriters and brokers for their services in providing the DSC
program.
Applicants' Legal Analysis:
A. DSC and Waiver of DSC
1. Section 4(2) of the Act defines a ``unit investment trust'' as
an investment company that issues only redeemable securities. Section
2(a)(32) of the Act defines a ``redeemable security'' as a security
that, upon its presentation to the issuer, entitles the holder to
receive approximately his or her proportionate share of the issuer's
current net assets or the cash equivalent of those assets. Rule 22c-1
under the Act requires that the price of a redeemable security issued
by a registered investment company for purposes of sale, redemption or
repurchase be based on the security's current net asset value
(``NAV''). Because the collection of any unpaid DSC may cause a
redeeming Unitholder to receive an amount less than the NAV of the
redeemed Units, applicants request relief from section 2(a)(32) and
rule 22c-1.
2. Section 22(d) of the Act and rule 22d-1 under the Act require a
registered investment company and its principal underwriter and dealers
to sell securities only at the current public offering price described
in the investment company's prospectus, with the exception of sales of
redeemable securities at prices that reflect scheduled variations in
the sales load. Section 2(a)(35) of the Act defines the term ``sales
load'' as the difference between the sales price and the portion of the
proceeds invested by the depositor or trustee. Applicants request
relief from section 2(a)(35) and section 22(d) to permit waivers,
deferrals or other scheduled variations of the sales load.
3. Under section 6(c) of the Act, the Commission may exempt classes
of transactions, 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. Applicants state that their proposal meets
the standards of section 6(c). Applicants state that the provisions of
section 22(d) are intended to prevent (a) riskless trading in
investment company securities due to backward pricing, (b) disruption
of orderly distribution by dealers selling shares at a discount, and
(c) discrimination among investors resulting from different prices
charged to different investors. Applicants assert that the proposed DSC
program will present none of these abuses. Applicants further state
that all scheduled variations in the sales load will be disclosed in
the prospectus of each Series and applied uniformly to all investors,
and that applicants will comply with all the conditions set forth in
rule 22d-1.
4. Section 26(a)(2)(C) of the Act, in relevant part, prohibits a
trustee or custodian of a UIT from collecting from the trust as an
expense any payment to the trust's depositor or principal underwriter.
Because the Trustee's payment of the DSC to the Depositor may be deemed
to be an expense under section 26(a)(2)(C), applicants request relief
under section 6(c) from section 26(a)(2)(C) to the extent necessary to
permit the Trustee to collect Installment Payments and disburse them to
the Depositor. Applicants submit that the relief is appropriate because
the DSC is more properly characterized as a sales load.
B. Exchange Option and Rollover Option
1. Sections 11(a) and 11(c) of the Act prohibit any offer of
exchange by a UIT for the securities of another investment company
unless the terms of the offer have been approved in advance by the
Commission. Applicants request an order under sections 11(a) and 11(c)
for Commission approval of the Exchange Option and the Rollover Option.
C. Net Worth Requirement
1. Section 14(a) of the Act requires that a registered investment
company have $100,000 of net worth prior to making a public offering.
Applicants state that each Series will comply with this requirement
because the Depositor
[[Page 9631]]
will deposit more than $100,000 of securities. Applicants assert,
however, that the Commission has interpreted section 14(a) as requiring
that the initial capital investment in an investment company be made
without any intention to dispose of the investment. Applicants state
that, under this interpretation, a Series would not satisfy section
14(a) because of the Depositor's intention to sell all the Units of the
Series.
2. Rule 14a-3 under the Act exempts UITs from section 14(a) if
certain conditions are met, one of which is that the UIT invest only in
``eligible trust securities,'' as defined in the rule. Applicants state
that they may not rely on rule 14a-3 because certain Series
(collectively, ``Equity Series'') will invest all or a portion of their
assets in equity securities or shares of registered investment
companies which do not satisfy the definition of eligible trust
securities.
3. Applicants request an exemption under section 6(c) of the Act to
the extent necessary to exempt the Equity Series from the net worth
requirement in section 14(a). Applicants state that the Series and the
Depositor will comply in all respects with the requirements of rule
14a-3, except that the Equity Series will not restrict their portfolio
investments to ``eligible trust securities.''
D. Capital Gains Distribution
1. Section 19(b) of the Act and rule 19b-1 under the Act provide
that, except under limited circumstances, no registered investment
company may distribute long-term gains more than once every twelve
months. Rule 19b-1(c), under certain circumstances, exempts a UIT
investing in eligible trust securities (as defined in rule 14a-3) from
the requirements of rule 19b-1. Because the Equity Series do not limit
their investments to eligible trust securities, however, the Equity
Series will not qualify for the exemption in paragraph (c) of rule 19b-
1. Applicants therefore request an exemption under section 6(c) from
section 19(b) and rule 19b-1 to the extent necessary to permit capital
gains earned in connection with the sale of portfolio securities to be
distributed to Unitholders along with the Equity Series' regular
distributions. In all other respects, applicants will comply with
section 19(b) and rule 19b-1.
2. Applicants state that their proposal meets the standards of
section 6(c). Applicants assert that any sale of portfolio securities
would be triggered by the need to meet Trust expenses, Installment
Payments, or by redemption requests, events over which the Depositor
and the Equity Series do not have control. Applicants further state
that, because principal distributions must be clearly indicated in
accompanying reports to Unitholders as a return of principal and will
be relatively small in comparison to normal dividend distributions,
there is little danger of confusion from failure to differentiate among
distributions.
Applicants' Conditions:
Applicants agree that any order granting the requested relief will
be subject to the following conditions:
A. DSC Relief and Exchange and Rollover Options
1. Whenever the Exchange Option or the Rollover Option is to be
terminated or its terms are to be amended materially, any holder of a
security subject to that privilege will be given prominent notice of
the impending termination or amendment at least 60 days prior to the
date of termination or the effective date of the amendment, provided
that: (a) No such notice need be given if the only material effect of
an amendment is to reduce or eliminate the sales charge payable at the
time of an exchange, to add one or more new Series eligible for the
Exchange Option or the Rollover Option, or to delete a Series which has
terminated; and (b) no notice need be given if, under extraordinary
circumstances, either (i) there is a suspension of the redemption of
Units of the Series under section 22(e) of the Act and the rules and
regulations promulgated thereunder, or (ii) a Series temporarily delays
or ceases the sale of its Units because it is unable to invest amounts
effectively in accordance with applicable investment objectives,
policies and restrictions.
2. An investor who purchases Units under the Exchange Option or the
Rollover Option will pay a lower sales charge than that which would be
paid for the Units by a new investor.
3. The prospectus of each Series offering exchanges or rollovers
and any sales literature or advertising that mentions the existence of
the Exchange Option or Rollover Option will disclose that the Exchange
Option and the Rollover Option are subject to modification, termination
or suspension without notice, except in certain limited cases.
4. Any DSC imposed on a Series' Units will comply with the
requirements of subparagraphs (1), (2) and (3) of rule 6c-10(a) under
the Act.
5. Each Series offering Units subject to a DSC will include in its
prospectus the disclosure required by Form N-1A relating to deferred
sales charges (modified as appropriate to reflect the differences
between UITs and open-end management investment companies) and a
schedule setting forth the number and date of each Installment Payment.
B. Net Worth Requirement
1. Applicants will comply in all respects with the requirements of
rule 14a-3 under the Act, except that the Equity Series will not
restrict their portfolio investments to ``eligible trust securities.''
For the Commission, by the Division of Investment Management,
under delegated authority.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-4366 Filed 3-2-10; 8:45 am]
BILLING CODE 8011-01-P