Blackstone Alternative Investment Funds, et al.; Notice of Application, 15978-15982 [2013-05759]
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Federal Register / Vol. 78, No. 49 / Wednesday, March 13, 2013 / Notices
writing within 60 days of this
publication.
The Commission may not conduct or
sponsor a collection of information
unless it displays a currently valid OMB
control number. No person shall be
subject to any penalty for failing to
comply with a collection of information
subject to the PRA that does not display
a valid OMB control number.
Please direct your written comments
to: Thomas Bayer, Director/Chief
Information Officer, Securities and
Exchange Commission, c/o Remi PavlikSimon, 6432 General Green Way,
Alexandria, Virginia 22312 or send an
email to: PRA_Mailbox@sec.gov.
Dated: March 6, 2013.
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2013–05754 Filed 3–12–13; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
Submission for OMB Review Comment
Request
Upon Written Request, Copies Available
From: Securities and Exchange
Commission, Office of Investor
Education and Advocacy,
Washington, DC 20549–0213.
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Extension: Form N–14; OMB Control No.
3235–0336; SEC File No. 270–297.
Notice is hereby given that, pursuant
to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.) (‘‘Paperwork
Reduction Act’’), the Securities and
Exchange Commission (the
‘‘Commission’’) is soliciting comments
on the collection of information
summarized below. The Commission
plans to submit this existing collection
of information to the Office of
Management and Budget (‘‘OMB’’) for
extension and approval.
Form N–14 (17 CFR 239.23) is the
form for registration under the
Securities Act of 1933 (15 U.S.C. 77a et
seq.) (‘‘Securities Act’’) of securities
issued by management investment
companies registered under the
Investment Company Act of 1940 (15
U.S.C. 80a–1 et seq.) (‘‘Investment
Company Act’’) and business
development companies as defined by
Section 2(a)(48) of the Investment
Company Act in: (1) A transaction of the
type specified in rule 145(a) under the
Securities Act (17 CFR 230.145(a)); (2) a
merger in which a vote or consent of the
security holders of the company being
acquired is not required pursuant to
applicable state law; (3) an exchange
offer for securities of the issuer or
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another person; (4) a public reoffering or
resale of any securities acquired in an
offering registered on Form N–14; or (5)
two or more of the transactions listed in
(1) through (4) registered on one
registration statement. The principal
purpose of Form N–14 is to make
material information regarding
securities to be issued in connection
with business combination transactions
available to investors. The information
required to be filed with the
Commission permits verification of
compliance with securities law
requirements and assures the public
availability and dissemination of such
information. Without the registration
statement requirement, material
information may not necessarily be
available to investors.
We estimate that approximately 139
funds each file one new registration
statement on Form N–14 annually, and
that 58 funds each file one amendment
to a registration statement on Form N–
14 annually. Based on conversations
with fund representatives, we estimate
that the reporting burden is
approximately 620 hours per
respondent for a new Form N–14
registration statement and 300 hours per
respondent for amending the Form N–
14 registration statement. This time is
spent, for example, preparing and
reviewing the registration statements.
Accordingly, we calculate the total
estimated annual internal burden of
responding to Form N–14 to be
approximately 103,580 hours. In
addition to the burden hours, based on
conversations with fund representatives,
we estimate that the total cost burden of
compliance with the information
collection requirements of Form N–14 is
approximately $27,500 for preparing
and filing an initial registration
statement on Form N–14 and
approximately $16,000 for preparing
and filing an amendment to a
registration statement on Form N–14.
This includes, for example, the cost of
goods and services purchased to prepare
and update registration statements on
Form N–14, such as for the services of
outside counsel. Accordingly, we
calculate the total estimated annual cost
burden of responding to Form N–14 to
be approximately $4,750,500.
Estimates of average burden hours are
made solely for the purposes of the
Paperwork Reduction Act and are not
derived from a comprehensive or even
representative survey or study of the
costs of Commission rules and forms.
The collection of information under
Form N–14 is mandatory. The
information provided under Form N–14
will not be kept confidential. An agency
may not conduct or sponsor, and a
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person is not required to respond to, a
collection of information unless it
displays a currently valid OMB control
number.
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 Commission’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 Thomas Bayer, Director/Chief
Information Officer, Securities and
Exchange Commission, c/o Remi PavlikSimon, 6432 General Green Way,
Alexandria, VA 22312; or send an email
to: PRA_Mailbox@sec.gov.
Dated: March 6, 2013.
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2013–05753 Filed 3–12–13; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Investment Company Act Release No.
30416; File No. 812–14076]
Blackstone Alternative Investment
Funds, et al.; Notice of Application
March 7, 2013.
Securities and Exchange
Commission (‘‘Commission’’).
ACTION: Notice of an application under
section 6(c) of the Investment Company
Act of 1940 (‘‘Act’’) for an exemption
from section 15(a) of the Act and rule
18f-2 under the Act, as well as from
certain disclosure requirements.
AGENCY:
Summary of Application: Applicants
request an order that would permit them
to enter into and materially amend
subadvisory agreements with WhollyOwned Sub-Advisors (as defined below)
and non-affiliated sub-advisors without
shareholder approval and would grant
relief from certain disclosure
requirements.
Applicants: Blackstone Alternative
Investment Funds (the ‘‘Trust’’) and
Blackstone Alternative Asset
Management L.P. (‘‘BAAM’’).
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Federal Register / Vol. 78, No. 49 / Wednesday, March 13, 2013 / Notices
Filing Dates: The application was
filed on September 12, 2012, and
amended on January 17, 2013.
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 April 1, 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, 345 Park Avenue, 28th
Floor, New York, NY 10154.
FOR FURTHER INFORMATION CONTACT:
Deepak T. Pai, Senior Counsel, at (202)
551–6876, or Mary Kay Frech, Branch
Chief, at (202) 551–6821 (Division of
Investment Management, Office of
Investment Company Regulation).
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.
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Applicants’ Representations
1. The Trust is organized as a
Massachusetts business trust and is
registered under the Act as an open-end
management investment company. The
Trust may offer one or more series of
shares (each, a ‘‘Series’’) with its own
distinct investment objectives, policies
and restrictions.1 Each Series has, or
will have, as its investment adviser,
BAAM, or another investment adviser
controlling, controlled by or under
common control with BAAM or its
successors (each, an ‘‘Advisor’’).2
BAAM, a Delaware limited partnership,
1 The Trust currently consists of a single Series,
the Blackstone Alternative Multi-Manager Fund.
2 Each Advisor is, or will be, registered as an
investment adviser under the Investment Advisers
Act of 1940 (‘‘Advisers Act’’). For purposes of the
requested order, ‘‘successor’’ is limited to an entity
that results from a reorganization into another
jurisdiction or a change in the type of business
organization.
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is an indirect, wholly-owned subsidiary
of The Blackstone Group L.P.
(‘‘Blackstone’’). Blackstone is an
alternative asset management and
financial services company that
specializes in private equity, real estate
and credit and marketable alternative
investment strategies, as well as
financial advisory services, such as
mergers and acquisitions, restructurings
and reorganizations, and private
placements.3
2. An Advisor will serve as the
investment adviser to each Series
pursuant to an investment advisory
agreement with the Trust (‘‘Investment
Management Agreement’’). The
Investment Management Agreement will
be approved by the board of trustees of
the Trust (‘‘Board’’),4 including a
majority of the members of the Board
who are not ‘‘interested persons,’’ as
defined in section 2(a)(19) of the Act, of
the Series or the Advisor (‘‘Independent
Board Members’’) and by the
shareholders of the relevant Series as
required by sections 15(a) and 15(c) of
the Act and rule 18f-2 thereunder. The
terms of these Investment Management
Agreements will comply with section
15(a) of the Act.
3. Under the terms of each Investment
Management Agreement, the Advisor,
subject to the supervision of the Board,
will provide continuous investment
management of the assets of each Series.
The Advisor will periodically review a
Series’ investment policies and
strategies, and based on the need of a
particular Series may recommend
changes to the investment policies and
strategies of the Series for consideration
by the Board. For its services to each
Series under the applicable Investment
Management Agreement, the Advisor
will receive an investment management
fee from that Series based on either the
average net assets of that Series or that
Series’ investment performance over a
particular period compared to a
benchmark. Each Investment
3 Applicants request that the relief apply to
applicants, as well as to any future Series and any
other existing or future registered open-end
management investment company or series thereof
that is advised by an Advisor, uses the multimanager structure described in the application, and
complies with the terms and conditions of the
application (‘‘Subadvised Series’’). All registered
open-end investment companies that currently
intend to rely on the requested order are named as
applicants. Any entity that relies on the requested
order will do so only in accordance with the terms
and conditions contained in the application. If the
name of any Subadvised Series contains the name
of a Sub-Advisor (as defined below), the name of
the Advisor that serves as the primary adviser to the
Subadvised Series, or a trademark or trade name
that is owned by or publicly used to identify that
Advisor, will precede the name of the Sub-Advisor.
4 The term ‘‘Board’’ also includes the board of
trustees or directors of a future Subadvised Series.
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Management Agreement will provide
that the Advisor may, subject to the
approval of the Board, including a
majority of the Independent Board
Members, and the shareholders of the
applicable Subadvised Series (if
required), delegate portfolio
management responsibilities of all or a
portion of the assets of a Subadvised
Series to one or more Sub-Advisors.5
4. Applicants request an order to
permit the Advisor, subject to the
approval of the Board, including a
majority of the Independent Board
Members, to, without obtaining
shareholder approval: (i) Select SubAdvisors to manage all or a portion of
the assets of a Series and enter into SubAdvisory Agreements (as defined below)
with the Sub-Advisors, and (ii)
materially amend Sub-Advisory
Agreements with the Sub-Advisors.6
The requested relief will not extend to
any sub-advisor, other than a WhollyOwned Sub-Advisor, who is an
affiliated person, as defined in section
2(a)(3) of the Act, of the Subadvised
Series or of the Advisor, other than by
reason of serving as a sub-advisor to one
or more of the Subadvised Series
(‘‘Affiliated Sub-Advisor’’).
5. Pursuant to each Investment
Management Agreement, the Advisor
will have overall responsibility for the
management and investment of the
assets of each Subadvised Series. These
responsibilities will include
recommending the removal or
replacement of Sub-Advisors,
determining the portion of that
Subadvised Series’ assets to be managed
by any given Sub-Advisor and
reallocating those assets as necessary
from time to time.
6. The Advisor may enter into subadvisory agreements with various SubAdvisors (‘‘Sub-Advisory Agreements’’)
5 A ‘‘Sub-Advisor’’ is (a) an indirect or direct
‘‘wholly-owned subsidiary’’ (as such term is
defined in the Act) of the Advisor for that Series;
(b) a sister company of the Advisor for that Series
that is an indirect or direct ‘‘wholly-owned
subsidiary’’ (as such term is defined in the Act) of
the same company that, indirectly or directly,
wholly owns the Advisor (each of (a) and (b), a
‘‘Wholly-Owned Sub-Advisor’’ and collectively, the
‘‘Wholly-Owned Sub-Advisors’’), or (c) an
investment sub-advisor for that Series that is not an
‘‘affiliated person’’ (as such term is defined in
section 2(a)(3) of the Act) of the Series or the
Advisor, except to the extent that an affiliation
arises solely because the sub-advisor serves as a
sub-advisor to a Series (each, a ‘‘Non-Affiliated SubAdvisor’’).
6 Shareholder approval will continue to be
required for any other sub-advisor change (not
otherwise permitted by rule or other action of the
Commission or staff) and material amendments to
an existing Sub-Advisory Agreement with any subadvisor other than a Non-Affiliated Sub-Advisor or
a Wholly-Owned Sub-Advisor (all such changes
referred to as ‘‘Ineligible Sub-Advisor Changes’’).
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to provide investment management
services to the Subadvised Series. The
terms of each Sub-Advisory Agreement
will comply fully with the requirements
of section 15(a) of the Act and will be
approved by the Board, including a
majority of the Independent Board
Members and the shareholders of the
Subadvised Series, in accordance with
sections 15(a) and 15(c) of the Act and
rule 18f-2 thereunder. The SubAdvisors, subject to the supervision of
the Advisor and oversight of the Board,
will determine the securities and other
investments to be purchased or sold by
a Subadvised Series and place orders
with brokers or dealers that they select.
The Advisor will compensate each SubAdvisor out of the fee paid to the
Advisor under the relevant Investment
Management Agreement.
7. Subadvised Series will inform
shareholders of the hiring of a new SubAdvisor pursuant to the following
procedures (‘‘Modified Notice and
Access Procedures’’): (a) Within 90 days
after a new Sub-Advisor is hired for any
Subadvised Series, that Subadvised
Series will send its shareholders either
a Multi-manager Notice or a Multimanager Notice and Multi-manager
Information Statement;) 7 and (b) the
Subadvised Series will make the Multimanager Information Statement
available on the website identified in
the Multi-manager Notice no later than
when the Multi-manager Notice (or
Multi-manager Notice and Multimanager Information Statement) is first
sent to shareholders, and will maintain
it on that website for at least 90 days.
In the circumstances described in the
application, a proxy solicitation to
approve the appointment of new SubAdvisors provides no more meaningful
information to shareholders than the
7 A ‘‘Multi-manager Notice’’ will be modeled on
a Notice of Internet Availability as defined in rule
14a-16 under the Securities Exchange Act of 1934
(‘‘Exchange Act’’), and specifically will, among
other things: (a) Summarize the relevant
information regarding the new Sub-Advisor (except
as modified to permit Aggregate Fee Disclosure (as
defined below); (b) inform shareholders that the
Multi-manager Information Statement is available
on a website; (c) provide the website address; (d)
state the time period during which the Multimanager Information Statement will remain
available on that website; (e) provide instructions
for accessing and printing the Multi-manager
Information Statement; and (f) instruct the
shareholder that a paper or email copy of the Multimanager Information Statement may be obtained,
without charge, by contacting the Subadvised
Series.
A ‘‘Multi-manager Information Statement’’ will
meet the requirements of Regulation 14C, Schedule
14C and Item 22 of Schedule 14A under the
Exchange Act for an information statement, except
as modified by the order to permit Aggregate Fee
Disclosure. Multi-manager Information Statements
will be filed with the Commission via the EDGAR
system.
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proposed Multi-manager Information
Statement. Applicants state that each
Board would comply with the
requirements of sections 15(a) and 15(c)
of the Act before entering into or
amending Sub-Advisory Agreements.
8. Applicants also request an order
exempting the Subadvised Series from
certain disclosure obligations that may
require each Subadvised Series to
disclose fees paid by the Advisor to
each Sub-Advisor. Applicants seek
relief to permit each Subadvised Series
to disclose (as a dollar amount and a
percentage of the Subadvised Series’ net
assets): (a) The aggregate fees paid to the
Advisor and any Wholly-Owned SubAdvisors; (b) the aggregate fees paid to
Non-Affiliated Sub-Advisors; and (c) the
fee paid to each Affiliated Sub-Advisor
(collectively, the ‘‘Aggregate Fee
Disclosure’’).
Applicants’ Legal Analysis
1. Section 15(a) of the Act states, in
part, that it is unlawful for any person
to act as an investment adviser to a
registered investment company ‘‘except
pursuant to a written contract, which
contract, whether with such registered
company or with an investment adviser
of such registered company, has been
approved by the vote of a majority of the
outstanding voting securities of such
registered company.’’ Rule 18f-2 under
the Act provides that each series or class
of stock in a series investment company
affected by a matter must approve that
matter if the Act requires shareholder
approval.
2. Form N–1A is the registration
statement used by open-end investment
companies. Item 19(a)(3) of Form N–1A
requires a registered investment
company to disclose in its statement of
additional information the method of
computing the ‘‘advisory fee payable’’
by the investment company, including
the total dollar amounts that the
investment company ‘‘paid to the
adviser (aggregated with amounts paid
to affiliated advisers, if any), and any
advisers who are not affiliated persons
of the adviser, under the investment
advisory contract for the last three fiscal
years.’’
3. Rule 20a–1 under the Act requires
proxies solicited with respect to a
registered investment company to
comply with Schedule 14A under the
Exchange Act. Items 22(c)(1)(ii),
22(c)(1)(iii), 22(c)(8) and 22(c)(9) of
Schedule 14A, taken together, require a
proxy statement for a shareholder
meeting at which the advisory contract
will be voted upon to include the ‘‘rate
of compensation of the investment
adviser,’’ the ‘‘aggregate amount of the
investment adviser’s fee,’’ a description
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of the ‘‘terms of the contract to be acted
upon,’’ and, if a change in the advisory
fee is proposed, the existing and
proposed fees and the difference
between the two fees.
4. Regulation S–X sets forth the
requirements for financial statements
required to be included as part of a
registered investment company’s
registration statement and shareholder
reports filed with the Commission.
Sections 6–07(2)(a), (b), and (c) of
Regulation S–X require a registered
investment company to include in its
financial statement information about
the investment advisory fees.
5. Section 6(c) of the Act provides that
the Commission by order upon
application may conditionally or
unconditionally exempt any person,
security, or transaction or any class or
classes of persons, securities, or
transactions from any provisions of the
Act, or from any rule thereunder, if 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 requested relief meets
this standard for the reasons discussed
below.
6. Applicants assert that the
shareholders expect the Advisor, subject
to the review and approval of the Board,
to select the Sub-Advisors who are in
the best position to achieve the
Subadvised Series’ investment
objective. Applicants assert that, from
the perspective of the shareholder, the
role of the Sub-Advisors is substantially
equivalent to the role of the individual
portfolio managers employed by an
investment adviser to a traditional
investment company. Applicants
believe that permitting the Advisor to
perform the duties for which the
shareholders of the Subadvised Series
are paying the Advisor—the selection,
supervision and evaluation of the SubAdvisors—without incurring
unnecessary delays or expenses is
appropriate in the interest of the
Subadvised Series’ shareholders and
will allow such Subadvised Series to
operate more efficiently. Applicants
state that each Investment Management
Agreement will continue to be fully
subject to section 15(a) of the Act and
rule 18f–2 under the Act and approved
by the Board, including a majority of the
Independent Board Members, in the
manner required by sections 15(a) and
15(c) of the Act. Applicants are not
seeking an exemption with respect to
the Investment Management
Agreements.
7. Applicants assert that disclosure of
the individual fees that the Advisor
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would pay to the Sub-Advisors of
Subadvised Series that operate under
the multi-manager structure described
in the application would not serve any
meaningful purpose. Applicants
contend that the primary reasons for
requiring disclosure of individual fees
paid to Sub-Advisors are to inform
shareholders of expenses to be charged
by a particular Subadvised Series and to
enable shareholders to compare the fees
to those of other comparable investment
companies. Applicants believe that the
requested relief satisfies these objectives
because the advisory fee paid to the
Advisor will be fully disclosed and,
therefore, shareholders will know what
the Subadvised Series’ fees and
expenses are and will be able to
compare the advisory fees a Subadvised
Series is charged to those of other
investment companies. Applicants
assert that the requested disclosure
relief would benefit shareholders of the
Subadvised Series because it would
improve the Advisor’s ability to
negotiate the fees paid to Sub-Advisors.
Applicants state that the Advisor may
be able to negotiate rates that are below
a Sub-Advisor’s ‘‘posted’’ amounts if the
Advisor is not required to disclose the
Sub-Advisors’ fees to the public.
Applicants submit that the relief
requested to use Aggregate Fee
Disclosure will encourage Sub-Advisors
to negotiate lower subadvisory fees with
the Advisor if the lower fees are not
required to be made public.
8. For the reasons discussed above,
applicants submit that the requested
relief meets the standards for relief
under section 6(c) of the Act. Applicants
state that the operation of the
Subadvised Series in the manner
described in the application must be
approved by shareholders of a
Subadvised Series before that
Subadvised Series may rely on the
requested relief. In addition, applicants
state that the proposed conditions to the
requested relief are designed to address
any potential conflicts of interest,
including any posed by the use of
Wholly-owned Sub-Advisors, and
provide that shareholders are informed
when new Sub-Advisors are hired.
Applicants assert that conditions 6, 7,
10 and 11 are designed to provide the
Board with sufficient independence and
the resources and information it needs
to monitor and address any conflicts of
interest with affiliated persons of the
Advisor, including Wholly-Owned SubAdvisors. Applicants state that,
accordingly, they believe the requested
relief is necessary or appropriate in the
public interest and consistent with the
protection of investors and the purposes
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fairly intended by the policy and
provisions of the Act.
Applicants’ Conditions
Applicants agree that any order
granting the requested relief will be
subject to the following conditions:
1. Before a Subadvised Series may
rely on the order requested in the
application, the operation of the
Subadvised Series in the manner
described in the application, including
the hiring of Wholly-Owned SubAdvisors, will be, or has been, approved
by a majority of the Subadvised Series’
outstanding voting securities as defined
in the Act, or, in the case of a new
Subadvised Series whose public
shareholders purchase shares on the
basis of a prospectus containing the
disclosure contemplated by condition 2
below, by the sole initial shareholder
before offering the Subadvised Series’
shares to the public.
2. The prospectus for each
Subadvised Series will disclose the
existence, substance, and effect of any
order granted pursuant to the
application. Each Subadvised Series
will hold itself out to the public as
employing the multi-manager structure
described in the application. Each
prospectus will prominently disclose
that the Advisor has the ultimate
responsibility, subject to oversight by
the Board, to oversee the Sub-Advisors
and recommend their hiring,
termination and replacement.
3. The Advisor will provide general
management services to a Subadvised
Series, including overall supervisory
responsibility for the general
management and investment of the
Subadvised Series’ assets. Subject to
review and approval of the Board, the
Advisor will (a) set a Subadvised Series’
overall investment strategies, (b)
evaluate, select, and recommend SubAdvisors to manage all or a portion of
a Subadvised Series’ assets, and (c)
implement procedures reasonably
designed to ensure that Sub-Advisors
comply with a Subadvised Series’
investment objective, policies and
restrictions. Subject to review by the
Board, the Advisor will (a) when
appropriate, allocate and reallocate a
Subadvised Series’ assets among
multiple Sub-Advisors; and (b) monitor
and evaluate the performance of SubAdvisors.
4. A Subadvised Series will not make
any Ineligible Sub-Advisor Changes
without the approval of the
shareholders of the applicable
Subadvised Series.
5. Subadvised Series will inform
shareholders of the hiring of a new SubAdvisor within 90 days after the hiring
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of the new Sub-Advisor pursuant to the
Modified Notice and Access Procedures.
6. At all times, at least a majority of
the Board will be Independent Board
Members, and the selection and
nomination of new or additional
Independent Board Members will be
placed within the discretion of the thenexisting Independent Board Members.
7. Independent Legal Counsel, as
defined in rule 0–1(a)(6) under the Act,
will be engaged to represent the
Independent Board Members. The
selection of such counsel will be within
the discretion of the then-existing
Independent Board Members.
8. The Advisor will provide the
Board, no less frequently than quarterly,
with information about the profitability
of the Advisor on a per Subadvised
Series basis. The information will reflect
the impact on profitability of the hiring
or termination of any sub-advisor during
the applicable quarter.
9. Whenever a sub-advisor is hired or
terminated, the Advisor will provide the
Board with information showing the
expected impact on the profitability of
the Advisor.
10. Whenever a sub-advisor change is
proposed for a Subadvised Series with
an Affiliated Sub-Advisor or a WhollyOwned Sub-Advisor, the Board,
including a majority of the Independent
Board Members, will make a separate
finding, reflected in the Board minutes,
that such change is in the best interests
of the Subadvised Series and its
shareholders, and does not involve a
conflict of interest from which the
Advisor or the Affiliated Sub-Advisor or
Wholly-Owned Sub-Advisor derives an
inappropriate advantage.
11. No Board member or officer of a
Subadvised Series, or director, manager,
or officer of the Advisor, will own
directly or indirectly (other than
through a pooled investment vehicle
that is not controlled by such person),
any interest in a sub-advisor, except for
ownership of interests in the Advisor or
any entity, other than a Wholly-Owned
Sub-Advisor, that controls, is controlled
by, or is under common control with the
Advisor.
12. Each Subadvised Series will
disclose the Aggregate Fee Disclosure in
its registration statement.
13. In the event the Commission
adopts a rule under the Act providing
substantially similar relief to that
requested in the application, the
requested order will expire on the
effective date of that rule.
E:\FR\FM\13MRN1.SGM
13MRN1
15982
Federal Register / Vol. 78, No. 49 / Wednesday, March 13, 2013 / Notices
For the Commission, by the Division of
Investment Management, under delegated
authority.
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2013–05759 Filed 3–12–13; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Investment Company Act Release No.
30415; 812–13969]
Exchange Traded Concepts Trust, et
al.; Notice of Application
March 7, 2013.
Securities and Exchange
Commission (the ‘‘Commission’’).
ACTION: Notice of an application for an
order under section 6(c) of the
Investment Company Act of 1940 (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, and
under sections 6(c) and 17(b) of the Act
for an exemption from sections 17(a)(1)
and (2) of the Act, and under section
12(d)(1)(J) for an exemption from
sections 12(d)(1)(A) and (B) of the Act.
AGENCY:
Exchange Traded Concepts
Trust, Exchange Traded Concepts Trust
II, ETF Series Solutions (each a ‘‘Trust’’
and collectively referred to as the
‘‘Trusts’’), Exchange Traded Concepts
LLC (‘‘ETC LLC’’) and SEI Investments
Distribution Company (‘‘SEI’’), Quasar
Distributors, LLC (‘‘Quasar’’) and
Foreside Fund Services, LLC
(‘‘Foreside’’ and each of SEI, Quasar and
Foreside are referred to as a
‘‘Distributor’’).
SUMMARY OF APPLICATION: Applicants
request an order that permits: (a)
Actively-managed series of the Trusts 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 after 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
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 series to acquire Shares.
DATES: Filing Dates: The application was
filed on October 18, 2011, and amended
mstockstill on DSK4VPTVN1PROD with NOTICES
APPLICANTS:
VerDate Mar<15>2010
17:11 Mar 12, 2013
Jkt 229001
on July 24, 2012, December 21, 2012,
and March 6, 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 April 1, 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. Applicants, c/o
W. John McGuire, Esq. and Christopher
D. Menconi, Esq., Bingham McCutchen
LLP, 2020 K Street NW., Washington,
DC 20006.
FOR FURTHER INFORMATION CONTACT:
Mark N. Zaruba, Senior Counsel, at
(202) 551–6878 or Mary Kay Frech,
Branch Chief, at (202) 551–6821
(Division of Investment Management,
Office of Investment Company
Regulation).
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.
discretionary investment authority with
respect to the Fund or discrete portions
of a Fund that includes the ability to
appoint sub-advisers (each a ‘‘SubAdviser’’) to a Fund. Any Sub-Adviser
will be registered or not subject to
registration under the Advisers Act. SEI
is a Pennsylvania corporation and
Quasar and Foreside are each Delaware
limited liability companies. SEI, Quasar
and Foreside are each registered as a
broker-dealer (‘‘Broker) under the
Securities Exchange Act of 1934 (the
‘‘Exchange Act’’).1 A Distributor will
serve as the principal underwriter and
distributor for each of the Funds.
3. Applicants request that the order
apply to future series of the Trusts or to
any other open-end investment
company or series thereof that may be
created in the future that, in each case,
(a) is an actively managed exchangetraded fund (‘‘ETF’’), (b) is advised by
ETC LLC or an entity controlling,
controlled by, or under common control
with ETC LLC (each such entity or any
successor entity thereto, an ‘‘Adviser’’) 2
and (c) complies with the terms and
conditions of the application
(individually a ‘‘Fund,’’ and
collectively, the ‘‘Funds’’).3 The Funds
may invest in equity securities or fixed
income securities traded in the U.S. or
non-U.S. markets. Funds that invest in
equity securities or fixed income
securities traded in the U.S. or non-U.S.
markets are ‘‘Global Funds.’’ Funds that
invest solely in foreign equity securities
or foreign fixed income securities are
‘‘Foreign Funds.’’ The Funds may also
invest in ‘‘Depositary Receipts’’4 and
may engage in TBA Transactions
(defined below). Each Fund will consist
of a portfolio of securities (including
equity and fixed income securities),
currencies traded in the U.S. or in non-
Applicants’ Representations
1. Each Trust is registered as an openend management investment company
under the Act and is organized as a
Delaware statutory trust. Each Trust will
offer Funds (as defined below), each of
which will have distinct investment
strategies and will attempt to achieve its
investment objective by utilizing an
active management strategy based on
investments in equity and debt
securities, including shares of other
investment companies.
2. ETC LLC, an Oklahoma limited
liability company, is, and any other
Adviser (as defined below) will be,
registered as an investment adviser
under the Investment Advisers Act of
1940 (the ‘‘Advisers Act’’). An Adviser
will be the investment adviser to each
Fund and will, in each case, possess full
1 For purposes of the requested order, the term
‘‘Distributor’’ shall include any other entity that
acts as the distributor and principal underwriter of
the Creation Units of Shares of the Funds in the
future and complies with the terms and conditions
of the application. Any future Distributor will be a
Broker registered under the Exchange Act.
2 For the purposes of the requested order,
‘‘successor’’ is limited to those one or more entities
that would result from a reorganization into another
jurisdiction or a change in the type of business
organization.
3 All entities that currently intend to rely on the
order are named as applicants. Any entity that
relies on the order in the future will comply with
the terms and conditions of the application.
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
will not invest in any Depositary Receipts that the
Adviser or any 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 for any
Depositary Receipts held by a Fund.
PO 00000
Frm 00055
Fmt 4703
Sfmt 4703
E:\FR\FM\13MRN1.SGM
13MRN1
]]>Agencies
[Federal Register Volume 78, Number 49 (Wednesday, March 13, 2013)]
[Notices]
[Pages 15978-15982]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-05759]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 30416; File No. 812-14076]
Blackstone Alternative Investment Funds, et al.; Notice of
Application
March 7, 2013.
AGENCY: Securities and Exchange Commission (``Commission'').
ACTION: Notice of an application under section 6(c) of the Investment
Company Act of 1940 (``Act'') for an exemption from section 15(a) of
the Act and rule 18f-2 under the Act, as well as from certain
disclosure requirements.
-----------------------------------------------------------------------
Summary of Application: Applicants request an order that would
permit them to enter into and materially amend subadvisory agreements
with Wholly-Owned Sub-Advisors (as defined below) and non-affiliated
sub-advisors without shareholder approval and would grant relief from
certain disclosure requirements.
Applicants: Blackstone Alternative Investment Funds (the ``Trust'')
and Blackstone Alternative Asset Management L.P. (``BAAM'').
[[Page 15979]]
Filing Dates: The application was filed on September 12, 2012, and
amended on January 17, 2013.
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 April 1, 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,
345 Park Avenue, 28th Floor, New York, NY 10154.
FOR FURTHER INFORMATION CONTACT: Deepak T. Pai, Senior Counsel, at
(202) 551-6876, or Mary Kay Frech, Branch Chief, at (202) 551-6821
(Division of Investment Management, Office of Investment Company
Regulation).
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 Trust is organized as a Massachusetts business trust and is
registered under the Act as an open-end management investment company.
The Trust may offer one or more series of shares (each, a ``Series'')
with its own distinct investment objectives, policies and
restrictions.\1\ Each Series has, or will have, as its investment
adviser, BAAM, or another investment adviser controlling, controlled by
or under common control with BAAM or its successors (each, an
``Advisor'').\2\ BAAM, a Delaware limited partnership, is an indirect,
wholly-owned subsidiary of The Blackstone Group L.P. (``Blackstone'').
Blackstone is an alternative asset management and financial services
company that specializes in private equity, real estate and credit and
marketable alternative investment strategies, as well as financial
advisory services, such as mergers and acquisitions, restructurings and
reorganizations, and private placements.\3\
---------------------------------------------------------------------------
\1\ The Trust currently consists of a single Series, the
Blackstone Alternative Multi-Manager Fund.
\2\ Each Advisor is, or will be, registered as an investment
adviser under the Investment Advisers Act of 1940 (``Advisers
Act''). For purposes of the requested order, ``successor'' is
limited to an entity that results from a reorganization into another
jurisdiction or a change in the type of business organization.
\3\ Applicants request that the relief apply to applicants, as
well as to any future Series and any other existing or future
registered open-end management investment company or series thereof
that is advised by an Advisor, uses the multi-manager structure
described in the application, and complies with the terms and
conditions of the application (``Subadvised Series''). All
registered open-end investment companies that currently intend to
rely on the requested order are named as applicants. Any entity that
relies on the requested order will do so only in accordance with the
terms and conditions contained in the application. If the name of
any Subadvised Series contains the name of a Sub-Advisor (as defined
below), the name of the Advisor that serves as the primary adviser
to the Subadvised Series, or a trademark or trade name that is owned
by or publicly used to identify that Advisor, will precede the name
of the Sub-Advisor.
---------------------------------------------------------------------------
2. An Advisor will serve as the investment adviser to each Series
pursuant to an investment advisory agreement with the Trust
(``Investment Management Agreement''). The Investment Management
Agreement will be approved by the board of trustees of the Trust
(``Board''),\4\ including a majority of the members of the Board who
are not ``interested persons,'' as defined in section 2(a)(19) of the
Act, of the Series or the Advisor (``Independent Board Members'') and
by the shareholders of the relevant Series as required by sections
15(a) and 15(c) of the Act and rule 18f-2 thereunder. The terms of
these Investment Management Agreements will comply with section 15(a)
of the Act.
---------------------------------------------------------------------------
\4\ The term ``Board'' also includes the board of trustees or
directors of a future Subadvised Series.
---------------------------------------------------------------------------
3. Under the terms of each Investment Management Agreement, the
Advisor, subject to the supervision of the Board, will provide
continuous investment management of the assets of each Series. The
Advisor will periodically review a Series' investment policies and
strategies, and based on the need of a particular Series may recommend
changes to the investment policies and strategies of the Series for
consideration by the Board. For its services to each Series under the
applicable Investment Management Agreement, the Advisor will receive an
investment management fee from that Series based on either the average
net assets of that Series or that Series' investment performance over a
particular period compared to a benchmark. Each Investment Management
Agreement will provide that the Advisor may, subject to the approval of
the Board, including a majority of the Independent Board Members, and
the shareholders of the applicable Subadvised Series (if required),
delegate portfolio management responsibilities of all or a portion of
the assets of a Subadvised Series to one or more Sub-Advisors.\5\
---------------------------------------------------------------------------
\5\ A ``Sub-Advisor'' is (a) an indirect or direct ``wholly-
owned subsidiary'' (as such term is defined in the Act) of the
Advisor for that Series; (b) a sister company of the Advisor for
that Series that is an indirect or direct ``wholly-owned
subsidiary'' (as such term is defined in the Act) of the same
company that, indirectly or directly, wholly owns the Advisor (each
of (a) and (b), a ``Wholly-Owned Sub-Advisor'' and collectively, the
``Wholly-Owned Sub-Advisors''), or (c) an investment sub-advisor for
that Series that is not an ``affiliated person'' (as such term is
defined in section 2(a)(3) of the Act) of the Series or the Advisor,
except to the extent that an affiliation arises solely because the
sub-advisor serves as a sub-advisor to a Series (each, a ``Non-
Affiliated Sub-Advisor'').
---------------------------------------------------------------------------
4. Applicants request an order to permit the Advisor, subject to
the approval of the Board, including a majority of the Independent
Board Members, to, without obtaining shareholder approval: (i) Select
Sub-Advisors to manage all or a portion of the assets of a Series and
enter into Sub-Advisory Agreements (as defined below) with the Sub-
Advisors, and (ii) materially amend Sub-Advisory Agreements with the
Sub-Advisors.\6\ The requested relief will not extend to any sub-
advisor, other than a Wholly-Owned Sub-Advisor, who is an affiliated
person, as defined in section 2(a)(3) of the Act, of the Subadvised
Series or of the Advisor, other than by reason of serving as a sub-
advisor to one or more of the Subadvised Series (``Affiliated Sub-
Advisor'').
---------------------------------------------------------------------------
\6\ Shareholder approval will continue to be required for any
other sub-advisor change (not otherwise permitted by rule or other
action of the Commission or staff) and material amendments to an
existing Sub-Advisory Agreement with any sub-advisor other than a
Non-Affiliated Sub-Advisor or a Wholly-Owned Sub-Advisor (all such
changes referred to as ``Ineligible Sub-Advisor Changes'').
---------------------------------------------------------------------------
5. Pursuant to each Investment Management Agreement, the Advisor
will have overall responsibility for the management and investment of
the assets of each Subadvised Series. These responsibilities will
include recommending the removal or replacement of Sub-Advisors,
determining the portion of that Subadvised Series' assets to be managed
by any given Sub-Advisor and reallocating those assets as necessary
from time to time.
6. The Advisor may enter into sub-advisory agreements with various
Sub-Advisors (``Sub-Advisory Agreements'')
[[Page 15980]]
to provide investment management services to the Subadvised Series. The
terms of each Sub-Advisory Agreement will comply fully with the
requirements of section 15(a) of the Act and will be approved by the
Board, including a majority of the Independent Board Members and the
shareholders of the Subadvised Series, in accordance with sections
15(a) and 15(c) of the Act and rule 18f-2 thereunder. The Sub-Advisors,
subject to the supervision of the Advisor and oversight of the Board,
will determine the securities and other investments to be purchased or
sold by a Subadvised Series and place orders with brokers or dealers
that they select. The Advisor will compensate each Sub-Advisor out of
the fee paid to the Advisor under the relevant Investment Management
Agreement.
7. Subadvised Series will inform shareholders of the hiring of a
new Sub-Advisor pursuant to the following procedures (``Modified Notice
and Access Procedures''): (a) Within 90 days after a new Sub-Advisor is
hired for any Subadvised Series, that Subadvised Series will send its
shareholders either a Multi-manager Notice or a Multi-manager Notice
and Multi-manager Information Statement;) \7\ and (b) the Subadvised
Series will make the Multi-manager Information Statement available on
the website identified in the Multi-manager Notice no later than when
the Multi-manager Notice (or Multi-manager Notice and Multi-manager
Information Statement) is first sent to shareholders, and will maintain
it on that website for at least 90 days. In the circumstances described
in the application, a proxy solicitation to approve the appointment of
new Sub-Advisors provides no more meaningful information to
shareholders than the proposed Multi-manager Information Statement.
Applicants state that each Board would comply with the requirements of
sections 15(a) and 15(c) of the Act before entering into or amending
Sub-Advisory Agreements.
---------------------------------------------------------------------------
\7\ A ``Multi-manager Notice'' will be modeled on a Notice of
Internet Availability as defined in rule 14a-16 under the Securities
Exchange Act of 1934 (``Exchange Act''), and specifically will,
among other things: (a) Summarize the relevant information regarding
the new Sub-Advisor (except as modified to permit Aggregate Fee
Disclosure (as defined below); (b) inform shareholders that the
Multi-manager Information Statement is available on a website; (c)
provide the website address; (d) state the time period during which
the Multi-manager Information Statement will remain available on
that website; (e) provide instructions for accessing and printing
the Multi-manager Information Statement; and (f) instruct the
shareholder that a paper or email copy of the Multi-manager
Information Statement may be obtained, without charge, by contacting
the Subadvised Series.
A ``Multi-manager Information Statement'' will meet the
requirements of Regulation 14C, Schedule 14C and Item 22 of Schedule
14A under the Exchange Act for an information statement, except as
modified by the order to permit Aggregate Fee Disclosure. Multi-
manager Information Statements will be filed with the Commission via
the EDGAR system.
---------------------------------------------------------------------------
8. Applicants also request an order exempting the Subadvised Series
from certain disclosure obligations that may require each Subadvised
Series to disclose fees paid by the Advisor to each Sub-Advisor.
Applicants seek relief to permit each Subadvised Series to disclose (as
a dollar amount and a percentage of the Subadvised Series' net assets):
(a) The aggregate fees paid to the Advisor and any Wholly-Owned Sub-
Advisors; (b) the aggregate fees paid to Non-Affiliated Sub-Advisors;
and (c) the fee paid to each Affiliated Sub-Advisor (collectively, the
``Aggregate Fee Disclosure'').
Applicants' Legal Analysis
1. Section 15(a) of the Act states, in part, that it is unlawful
for any person to act as an investment adviser to a registered
investment company ``except pursuant to a written contract, which
contract, whether with such registered company or with an investment
adviser of such registered company, has been approved by the vote of a
majority of the outstanding voting securities of such registered
company.'' Rule 18f-2 under the Act provides that each series or class
of stock in a series investment company affected by a matter must
approve that matter if the Act requires shareholder approval.
2. Form N-1A is the registration statement used by open-end
investment companies. Item 19(a)(3) of Form N-1A requires a registered
investment company to disclose in its statement of additional
information the method of computing the ``advisory fee payable'' by the
investment company, including the total dollar amounts that the
investment company ``paid to the adviser (aggregated with amounts paid
to affiliated advisers, if any), and any advisers who are not
affiliated persons of the adviser, under the investment advisory
contract for the last three fiscal years.''
3. Rule 20a-1 under the Act requires proxies solicited with respect
to a registered investment company to comply with Schedule 14A under
the Exchange Act. Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and
22(c)(9) of Schedule 14A, taken together, require a proxy statement for
a shareholder meeting at which the advisory contract will be voted upon
to include the ``rate of compensation of the investment adviser,'' the
``aggregate amount of the investment adviser's fee,'' a description of
the ``terms of the contract to be acted upon,'' and, if a change in the
advisory fee is proposed, the existing and proposed fees and the
difference between the two fees.
4. Regulation S-X sets forth the requirements for financial
statements required to be included as part of a registered investment
company's registration statement and shareholder reports filed with the
Commission. Sections 6-07(2)(a), (b), and (c) of Regulation S-X require
a registered investment company to include in its financial statement
information about the investment advisory fees.
5. Section 6(c) of the Act provides that the Commission by order
upon application may conditionally or unconditionally exempt any
person, security, or transaction or any class or classes of persons,
securities, or transactions from any provisions of the Act, or from any
rule thereunder, if 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 requested relief meets this standard for
the reasons discussed below.
6. Applicants assert that the shareholders expect the Advisor,
subject to the review and approval of the Board, to select the Sub-
Advisors who are in the best position to achieve the Subadvised Series'
investment objective. Applicants assert that, from the perspective of
the shareholder, the role of the Sub-Advisors is substantially
equivalent to the role of the individual portfolio managers employed by
an investment adviser to a traditional investment company. Applicants
believe that permitting the Advisor to perform the duties for which the
shareholders of the Subadvised Series are paying the Advisor--the
selection, supervision and evaluation of the Sub-Advisors--without
incurring unnecessary delays or expenses is appropriate in the interest
of the Subadvised Series' shareholders and will allow such Subadvised
Series to operate more efficiently. Applicants state that each
Investment Management Agreement will continue to be fully subject to
section 15(a) of the Act and rule 18f-2 under the Act and approved by
the Board, including a majority of the Independent Board Members, in
the manner required by sections 15(a) and 15(c) of the Act. Applicants
are not seeking an exemption with respect to the Investment Management
Agreements.
7. Applicants assert that disclosure of the individual fees that
the Advisor
[[Page 15981]]
would pay to the Sub-Advisors of Subadvised Series that operate under
the multi-manager structure described in the application would not
serve any meaningful purpose. Applicants contend that the primary
reasons for requiring disclosure of individual fees paid to Sub-
Advisors are to inform shareholders of expenses to be charged by a
particular Subadvised Series and to enable shareholders to compare the
fees to those of other comparable investment companies. Applicants
believe that the requested relief satisfies these objectives because
the advisory fee paid to the Advisor will be fully disclosed and,
therefore, shareholders will know what the Subadvised Series' fees and
expenses are and will be able to compare the advisory fees a Subadvised
Series is charged to those of other investment companies. Applicants
assert that the requested disclosure relief would benefit shareholders
of the Subadvised Series because it would improve the Advisor's ability
to negotiate the fees paid to Sub-Advisors. Applicants state that the
Advisor may be able to negotiate rates that are below a Sub-Advisor's
``posted'' amounts if the Advisor is not required to disclose the Sub-
Advisors' fees to the public. Applicants submit that the relief
requested to use Aggregate Fee Disclosure will encourage Sub-Advisors
to negotiate lower subadvisory fees with the Advisor if the lower fees
are not required to be made public.
8. For the reasons discussed above, applicants submit that the
requested relief meets the standards for relief under section 6(c) of
the Act. Applicants state that the operation of the Subadvised Series
in the manner described in the application must be approved by
shareholders of a Subadvised Series before that Subadvised Series may
rely on the requested relief. In addition, applicants state that the
proposed conditions to the requested relief are designed to address any
potential conflicts of interest, including any posed by the use of
Wholly-owned Sub-Advisors, and provide that shareholders are informed
when new Sub-Advisors are hired. Applicants assert that conditions 6,
7, 10 and 11 are designed to provide the Board with sufficient
independence and the resources and information it needs to monitor and
address any conflicts of interest with affiliated persons of the
Advisor, including Wholly-Owned Sub-Advisors. Applicants state that,
accordingly, they believe the requested relief 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' Conditions
Applicants agree that any order granting the requested relief will
be subject to the following conditions:
1. Before a Subadvised Series may rely on the order requested in
the application, the operation of the Subadvised Series in the manner
described in the application, including the hiring of Wholly-Owned Sub-
Advisors, will be, or has been, approved by a majority of the
Subadvised Series' outstanding voting securities as defined in the Act,
or, in the case of a new Subadvised Series whose public shareholders
purchase shares on the basis of a prospectus containing the disclosure
contemplated by condition 2 below, by the sole initial shareholder
before offering the Subadvised Series' shares to the public.
2. The prospectus for each Subadvised Series will disclose the
existence, substance, and effect of any order granted pursuant to the
application. Each Subadvised Series will hold itself out to the public
as employing the multi-manager structure described in the application.
Each prospectus will prominently disclose that the Advisor has the
ultimate responsibility, subject to oversight by the Board, to oversee
the Sub-Advisors and recommend their hiring, termination and
replacement.
3. The Advisor will provide general management services to a
Subadvised Series, including overall supervisory responsibility for the
general management and investment of the Subadvised Series' assets.
Subject to review and approval of the Board, the Advisor will (a) set a
Subadvised Series' overall investment strategies, (b) evaluate, select,
and recommend Sub-Advisors to manage all or a portion of a Subadvised
Series' assets, and (c) implement procedures reasonably designed to
ensure that Sub-Advisors comply with a Subadvised Series' investment
objective, policies and restrictions. Subject to review by the Board,
the Advisor will (a) when appropriate, allocate and reallocate a
Subadvised Series' assets among multiple Sub-Advisors; and (b) monitor
and evaluate the performance of Sub-Advisors.
4. A Subadvised Series will not make any Ineligible Sub-Advisor
Changes without the approval of the shareholders of the applicable
Subadvised Series.
5. Subadvised Series will inform shareholders of the hiring of a
new Sub-Advisor within 90 days after the hiring of the new Sub-Advisor
pursuant to the Modified Notice and Access Procedures.
6. At all times, at least a majority of the Board will be
Independent Board Members, and the selection and nomination of new or
additional Independent Board Members will be placed within the
discretion of the then-existing Independent Board Members.
7. Independent Legal Counsel, as defined in rule 0-1(a)(6) under
the Act, will be engaged to represent the Independent Board Members.
The selection of such counsel will be within the discretion of the
then-existing Independent Board Members.
8. The Advisor will provide the Board, no less frequently than
quarterly, with information about the profitability of the Advisor on a
per Subadvised Series basis. The information will reflect the impact on
profitability of the hiring or termination of any sub-advisor during
the applicable quarter.
9. Whenever a sub-advisor is hired or terminated, the Advisor will
provide the Board with information showing the expected impact on the
profitability of the Advisor.
10. Whenever a sub-advisor change is proposed for a Subadvised
Series with an Affiliated Sub-Advisor or a Wholly-Owned Sub-Advisor,
the Board, including a majority of the Independent Board Members, will
make a separate finding, reflected in the Board minutes, that such
change is in the best interests of the Subadvised Series and its
shareholders, and does not involve a conflict of interest from which
the Advisor or the Affiliated Sub-Advisor or Wholly-Owned Sub-Advisor
derives an inappropriate advantage.
11. No Board member or officer of a Subadvised Series, or director,
manager, or officer of the Advisor, will own directly or indirectly
(other than through a pooled investment vehicle that is not controlled
by such person), any interest in a sub-advisor, except for ownership of
interests in the Advisor or any entity, other than a Wholly-Owned Sub-
Advisor, that controls, is controlled by, or is under common control
with the Advisor.
12. Each Subadvised Series will disclose the Aggregate Fee
Disclosure in its registration statement.
13. In the event the Commission adopts a rule under the Act
providing substantially similar relief to that requested in the
application, the requested order will expire on the effective date of
that rule.
[[Page 15982]]
For the Commission, by the Division of Investment Management,
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-05759 Filed 3-12-13; 8:45 am]
BILLING CODE 8011-01-P
