Financial Investors Trust and Hanson McClain Strategic Advisors, Inc.; Notice of Application, 30346-30351 [2013-12144]
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Federal Register / Vol. 78, No. 99 / Wednesday, May 22, 2013 / Notices
a record retention requirement. The
public may view background
documentation for this information
collection at the following Web site,
www.reginfo.gov. 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 OMB control number.
Comments should be directed to: (i)
Desk Officer for the Securities and
Exchange Commission, Office of
Information and Regulatory Affairs,
Office of Management and Budget,
Room 10102, New Executive Office
Building, Washington, DC 20503 or
send an email to:
Shagufta_Ahmed@omb.eop.gov and (ii)
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. Comments
must be submitted to OMB within 30
days of this notice.
March 16, 2013.
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2013–12150 Filed 5–21–13; 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, under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) (‘‘Paperwork
Reduction Act’’), the Securities and
Exchange Commission (the
‘‘Commission’’) has submitted to the
Office of Management and Budget
(‘‘OMB’’) a request for extension of the
previously approved collection of
information discussed below.
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
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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
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 the average burden hours
are made solely for the purposes of the
Paperwork Reduction Act and are not
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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
person is not required to respond to, a
collection of information unless it
displays a currently valid OMB control
number.
The public may view the background
documentation for this information
collection at the following Web site:
www.reginfo,gov. Comments should be
directed to: (i) Desk Officer for the
Securities and Exchange Commission,
Office Information and Regulatory
Affairs, Office of Management and
Budget, Room 10102, New Executive
Office Building, Washington, DC 20503,
or by sending an email to:
Shagufta_Ahmed@omb.eop.gov; and (ii)
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. Comments
must be submitted to OMB within 30
days of this notice.
Dated: May 16, 2013.
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2013–12147 Filed 5–21–13; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Investment Company Act Release No.
30521; File No. 812–14098]
Financial Investors Trust and Hanson
McClain Strategic Advisors, Inc.;
Notice of Application
May 15, 2013.
Securities and Exchange
Commission (‘‘Commission’’).
ACTION: Notice of an application for an
order under section 12(d)(1)(J) of the
Investment Company Act of 1940 (the
‘‘Act’’) for an exemption from sections
12(d)(1)(A) and (B) of the Act, under
section 6(c) of the Act for an exemption
from rule 12d1–2(a) 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.
AGENCY:
Summary of the Application: The
requested order would (a) permit certain
registered open-end management
investment companies that operate as
‘‘funds of funds’’ to acquire shares of
certain registered open-end management
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investment companies and unit
investment trusts (‘‘UITs’’) that are
within and outside the same group of
investment companies as the acquiring
investment companies, and (b) permit
funds of funds relying on rule 12d1–2
under the Act to invest in certain
financial instruments.
Applicants: Financial Investors Trust
(the ‘‘Trust’’), on behalf of the Pathway
Advisors Conservative Fund, Pathway
Advisors Growth & Income Fund, and
Pathways Advisors Aggressive Growth
Fund (collectively, the ‘‘Hanson
Funds’’), and Hanson McClain Strategic
Advisors, Inc. (the ‘‘Adviser’’).
DATES: Filing Dates: The application was
filed on November 27, 2012 and
amended on March 28, 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 June 10, 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: Trust, 1290 Broadway, Suite
1100, Denver, Colorado 80203; Adviser,
3620 Fair Oaks Blvd., Suite 300,
Sacramento, California 95684.
FOR FURTHER INFORMATION CONTACT:
Courtney S. Thornton, Senior Counsel,
at (202) 551–6812, or David P. Bartels,
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 for 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 an open-end
management investment company
registered under the Act and organized
as a Delaware statutory trust. The Trust
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currently is comprised of multiple
series, including the Hanson Funds,
each of which pursues its own
investment strategies.1
2. The Adviser, a California
corporation, is registered as an
investment adviser under the
Investment Advisers Act of 1940
(‘‘Advisers Act’’) and serves as
investment adviser to the Hanson Funds
and may serve as investment adviser to
future Funds.
3. Applicants request an order to
permit (a) a Fund that operates as a
‘‘fund of funds’’ (each a ‘‘Fund of
Funds’’) to acquire shares of (i)
registered open-end management
investment companies or series thereof
that are not part of the same ‘‘group of
investment companies,’’ within the
meaning of section 12(d)(1)(G)(ii) of the
Act, as the Fund of Funds (‘‘Unaffiliated
Investment Companies’’) and UITs that
are not part of the same group of
investment companies as the Fund of
Funds (‘‘Unaffiliated Trusts,’’ together
with the Unaffiliated Investment
Companies, ‘‘Unaffiliated Funds’’),2 or
(ii) registered open-end management
companies or UITs that are part of the
same group of investment companies as
the Fund of Funds (collectively,
‘‘Affiliated Funds,’’ together with the
Unaffiliated Funds, ‘‘Underlying
Funds’’) and (b) each Underlying Fund,
any principal underwriter for the
Underlying Fund, and any broker or
dealer (‘‘Broker’’) registered under the
Securities Exchange Act of 1934
(‘‘Exchange Act’’) to sell shares of the
Underlying Fund to the Fund of Funds.3
Applicants also request an order under
sections 6(c) and 17(b) of the Act to
exempt applicants from section 17(a) to
the extent necessary to permit
Underlying Funds to sell their shares to
Funds of Funds and redeem their shares
from Funds of Funds.
4. Applicants also request an
exemption under section 6(c) from rule
12d1–2 under the Act to permit any
1 Applicants request that the relief apply to each
existing and future series of the Trust and future
registered open-end management investment
company or series thereof that is advised by the
Adviser or any entity controlling, controlled by or
under common control with the Adviser and that
is part of the same group of investment companies
(as defined in section 12(d)(1)(G)(ii)) as the Trust
(collectively, including the Hanson Funds,
‘‘Funds’’).
2 Certain of the Unaffiliated Funds may be
registered under the Act as either UITs or open-end
management investment companies and have
received exemptive relief to permit their shares to
be listed and traded on a national securities
exchange at negotiated prices (‘‘ETFs’’).
3 All entities that currently intend to rely on the
requested order are named as applicants. Any other
entity that relies on the order in the future will
comply with the terms and conditions of the
application.
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30347
existing or future Fund of Funds that
relies on section 12(d)(1)(G) of the Act
(‘‘Same Group Fund of Funds’’) and that
otherwise complies with rule 12d1–2 to
also invest, to the extent consistent with
its investment objective, policies,
strategies and limitations, in financial
instruments that may not be securities
within the meaning of section 2(a)(36) of
the Act (‘‘Other Investments’’).
Applicants’ Legal Analysis
Investments in Underlying Funds
A. Section 12(d)(1)
1. Section 12(d)(1)(A) of the Act, in
relevant part, prohibits a registered
investment company from acquiring
shares of an investment company if the
securities represent more than 3% of the
total outstanding voting stock of the
acquired company, more than 5% of the
total assets of the acquiring company,
or, together with the securities of any
other investment companies, more than
10% of the total assets of the acquiring
company. Section 12(d)(1)(B) of the Act
prohibits a registered open-end
investment company, its principal
underwriter, and any broker or dealer
from selling the investment company’s
shares to another investment company if
the sale will cause the acquiring
company to own more than 3% of the
acquired company’s voting stock, or if
the sale will cause more than 10% of the
acquired company’s voting stock to be
owned by investment companies
generally.
2. Section 12(d)(1)(J) of the Act
provides that the Commission may
exempt any person, security, or
transaction, or any class or classes of
persons, securities or transactions, from
any provision of section 12(d)(1) if the
exemption is consistent with the public
interest and the protection of investors.
Applicants seek an exemption under
section 12(d)(1)(J) of the Act to permit
a Funds of Funds to acquire shares of
the Underlying Funds in excess of the
limits in section 12(d)(1)(A), and an
Underlying Fund, any principal
underwriter for an Underlying Fund,
and any Broker to sell shares of an
Underlying Fund to a Fund of Funds in
excess of the limits in section
12(d)(1)(B) of the Act.
3. Applicants state that the terms and
conditions of the proposed arrangement
will not give rise to the policy concerns
underlying sections 12(d)(1)(A) and (B),
which include concerns about undue
influence by a fund of funds over
underlying funds, excessive layering of
fees, and overly complex fund
structures. Accordingly, applicants
believe that the requested exemption is
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consistent with the public interest and
the protection of investors.
4. Applicants submit that the
proposed arrangement will not result in
the exercise of undue influence by a
Fund of Funds or a Fund of Funds
Affiliate (as defined below) over the
Unaffiliated Funds.4 To limit the control
that a Fund of Funds may have over an
Unaffiliated Fund, applicants propose a
condition prohibiting the Adviser, any
person controlling, controlled by, or
under common control with the
Adviser, and any investment company
or issuer that would be an investment
company but for section 3(c)(1) or
3(c)(7) of the Act that is advised or
sponsored by the Adviser or any person
controlling, controlled by, or under
common control with the Adviser (the
‘‘Advisory Group’’) from controlling
(individually or in the aggregate) an
Unaffiliated Fund within the meaning of
section 2(a)(9) of the Act. The same
prohibition would apply to any
subadviser within the meaning of
section 2(a)(20)(B) of the Act
(‘‘Subadviser’’) to a Fund of Funds, any
person controlling, controlled by or
under common control with the
Subadviser, and any investment
company or issuer that would be an
investment company but for section
3(c)(1) or 3(c)(7) of the Act (or portion
of such investment company or issuer)
advised or sponsored by the Subadviser
or any person controlling, controlled by
or under common control with the
Subadviser (the ‘‘Subadvisory Group’’).
Applicants propose other conditions to
limit the potential for undue influence
over the Unaffiliated Funds, including
that no Fund of Funds or Fund of Funds
Affiliate (except to the extent it is acting
in its capacity as an investment adviser
to an Unaffiliated Investment Company
or sponsor to an Unaffiliated Trust) will
cause an Unaffiliated Fund to purchase
a security in an offering of securities
during the existence of any
underwriting or selling syndicate of
which a principal underwriter is an
Underwriting Affiliate (‘‘Affiliated
Underwriting’’).5
4 A ‘‘Fund of Funds Affiliate’’ is the Adviser, any
Subadviser, promoter or principal underwriter of a
Fund of Funds, as well as any person controlling,
controlled by, or under common control with any
of those entities. An ‘‘Unaffiliated Fund Affiliate’’
is an investment adviser, sponsor, promoter, or
principal underwriter of an Unaffiliated Fund, as
well as any person controlling, controlled by, or
under common control with any of those entities.
5 An ‘‘Underwriting Affiliate’’ is a principal
underwriter in any underwriting or selling
syndicate that is an officer, director, member of an
advisory board, investment adviser, Subadviser, or
employee of the Fund of Funds, or a person of
which any such officer, director, member of an
advisory board, investment adviser, Subadviser, or
employee is an affiliated person. An Underwriting
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5. To further assure that an
Unaffiliated Investment Company
understands the implications of an
investment by a Fund of Funds under
the requested order, prior to a Fund of
Funds’ investment in the shares of an
Unaffiliated Investment Company in
excess of the limit in section
12(d)(1)(A)(i) of the Act, the Fund of
Funds and the Unaffiliated Investment
Company will execute an agreement
stating, without limitation, that their
boards of directors or trustees (for any
entity, the ‘‘Board’’) and their
investment advisers understand the
terms and conditions of the order and
agree to fulfill their responsibilities
under the order (‘‘Participation
Agreement’’). Applicants note that an
Unaffiliated Investment Company (other
than an ETF whose shares are
purchased by a Fund of Funds in the
secondary market) will retain its right at
all times to reject any investment by a
Fund of Funds.6
6. Applicants state that they do not
believe that the proposed arrangement
will involve excessive layering of fees.
The Board of each Fund of Funds,
including a majority of the directors or
trustees who are not ‘‘interested
persons’’ (within the meaning of section
2(a)(19) of the Act) (for any Board, the
‘‘Independent Trustees’’), will find that
the advisory fees charged under any
investment advisory or management
contract are based on services provided
that will be in addition to, rather than
duplicative of, the services provided
under the advisory contract(s) of any
Underlying Fund in which the Fund of
Funds may invest. In addition, the
Adviser will waive fees otherwise
payable to it by the Fund of Funds in
an amount at least equal to any
compensation (including fees received
pursuant to any plan adopted by an
Unaffiliated Investment Company under
rule 12b–1 under the Act) received from
an Unaffiliated Fund by the Adviser or
an affiliated person of the Adviser, other
than any advisory fees paid to the
Adviser or its affiliated person by an
Unaffiliated Investment Company, in
connection with the investment by the
Fund of Funds in the Unaffiliated Fund.
Any sales charges and/or service fees
charged with respect to shares of a Fund
of Funds will not exceed the limits
applicable to a fund of funds as set forth
Affiliate does not include any person whose
relationship to an Unaffiliated Fund is covered by
section 10(f) of the Act.
6 An Unaffiliated Investment Company, including
an ETF, would retain its right to reject any initial
investment by a Fund of Funds in excess of the
limit in section 12(d)(1)(A)(i) of the Act by
declining to execute the Participation Agreement
with the Fund of Funds.
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in Rule 2830 of the Conduct Rules of the
NASD (‘‘NASD Conduct Rule 2830’’).7
7. Applicants submit that the
proposed arrangement will not create an
overly complex fund structure.
Applicants note that no Underlying
Fund will acquire securities of any
investment company or company
relying on section 3(c)(1) or 3(c)(7) of
the Act in excess of the limits contained
in section 12(d)(1)(A) of the Act, except
in certain circumstances identified in
condition 11 below.
B. Section 17(a)
1. Section 17(a) of the Act generally
prohibits sales or purchases of securities
between a registered investment
company and any affiliated person of
the company. Section 2(a)(3) of the Act
defines an ‘‘affiliated person’’ of another
person to include (a) any person directly
or indirectly owning, controlling, or
holding with power to vote, 5% or more
of the outstanding voting securities of
the other person; (b) any person 5% or
more of whose outstanding voting
securities are directly or indirectly
owned, controlled, or held with power
to vote by the other person; and (c) any
person directly or indirectly controlling,
controlled by, or under common control
with the other person.
2. Applicants state that a Fund of
Funds and the Affiliated Funds might
be deemed to be under common control
of the Adviser and therefore affiliated
persons of one another. Applicants also
state that a Fund of Funds and the
Unaffiliated Funds might be deemed to
be affiliated persons of one another if
the Fund of Funds acquires 5% or more
of an Unaffiliated Fund’s outstanding
voting securities. In light of these and
other possible affiliations, section 17(a)
could prevent an Underlying Fund from
selling shares to and redeeming shares
from a Fund of Funds.
3. Section 17(b) of the Act authorizes
the Commission to grant an order
permitting a transaction otherwise
prohibited by section 17(a) if it finds
that (a) the terms of the proposed
transaction are fair and reasonable and
do not involve overreaching on the part
of any person concerned; (b) the
proposed transaction is consistent with
the policies of each registered
investment company involved; and (c)
the proposed transaction is consistent
with the general purposes of the Act.
Section 6(c) of the Act permits the
Commission to exempt any person or
transactions from any provision of the
Act if such exemption is necessary or
7 Any references to NASD Conduct Rule 2830
include any successor or replacement rule to NASD
Conduct Rule 2830 that may be adopted by FINRA.
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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.
4. Applicants submit that the
proposed transactions satisfy the
standards for relief under sections 17(b)
and 6(c) of the Act.8 Applicants state
that the terms of the transactions are
reasonable and fair and do not involve
overreaching. Applicants state that the
terms upon which an Underlying Fund
will sell its shares to or purchase its
shares from a Fund of Funds will be
based on the net asset value of the
Underlying Fund.9 Applicants state that
the proposed transactions will be
consistent with the policies of each
Fund of Funds and each Underlying
Fund and with the general purposes of
the Act.
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Other Investments by Same Group
Funds of Funds
1. Section 12(d)(1)(G) of the Act
provides that section 12(d)(1) will not
apply to securities of an acquired
company purchased by an acquiring
company if: (i) the acquiring company
and acquired company are part of the
same group of investment companies;
(ii) the acquiring company holds only
securities of acquired companies that
are part of the same group of investment
companies, government securities, and
short-term paper; (iii) the aggregate sales
loads and distribution-related fees of the
acquiring company and the acquired
company are not excessive under rules
adopted pursuant to section 22(b) or
section 22(c) of the Act by a securities
association registered under section 15A
of the Exchange Act or by the
Commission; and (iv) the acquired
company has a policy that prohibits it
from acquiring securities of registered
8 Applicants acknowledge that receipt of any
compensation by (a) an affiliated person of a Fund
of Funds, or an affiliated person of such person, for
the purchase by a Fund of Funds of shares of an
Underlying Fund or (b) an affiliated person of an
Underlying Fund, or an affiliated person of such
person, for the sale by the Underlying Fund of its
shares to a Fund of Funds may be prohibited by
section 17(e)(1) of the Act. The Participation
Agreement also will include this acknowledgement.
9 To the extent purchases and sales of shares of
an ETF occur in the secondary market (and not
through principal transactions directly between a
Fund of Funds and an ETF), relief from section
17(a) of the Act would not be necessary. The
requested relief is intended to cover, however,
transactions directly between ETFs and a Fund of
Funds. Applicants are not seeking relief from
section 17(a) of the Act for, and the requested relief
will not apply to, transactions where an ETF could
be deemed an affiliated person, or an affiliated
person of an affiliated person, of a Fund of Funds
because the investment adviser to the ETF or an
entity controlling, controlled by or under common
control with the investment adviser to the ETF is
also an investment adviser to the Fund of Funds.
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open-end management investment
companies or registered unit investment
trusts in reliance on section 12(d)(1)(F)
or (G) of the Act.
2. Rule 12d1–2 under the Act permits
a registered open-end investment
company or a registered unit investment
trust that relies on section 12(d)(1)(G) of
the Act to acquire, in addition to
securities issued by another registered
investment company in the same group
of investment companies, government
securities, and short-term paper: (1)
securities issued by an investment
company that is not in the same group
of investment companies, when the
acquisition is in reliance on section
12(d)(1)(A) or 12(d)(1)(F) of the Act; (2)
securities (other than securities issued
by an investment company); and (3)
securities issued by a money market
fund, when the investment is in reliance
on rule 12d1–1 under the Act. For the
purposes of rule 12d1–2, ‘‘securities’’
means any security as defined in section
2(a)(36) of the Act.
3. Applicants state that the proposed
arrangement would comply with the
provisions of rule 12d1–2 under the Act,
but for the fact that a Same Group Fund
of Funds may invest a portion of its
assets in Other Investments. Applicants
request an order under section 6(c) of
the Act for an exemption from rule
12d1–2(a) to allow the Same Group
Funds of Funds to invest in Other
Investments. Applicants assert that
permitting Same Group Funds of Funds
to invest in Other Investments as
described in the application would not
raise any of the concerns that the
requirements of section 12(d)(1) were
designed to address.
4. Applicants represent that,
consistent with its fiduciary obligations
under the Act, the Board of each Same
Group Fund of Funds will review the
advisory fees charged by the Same
Group Fund of Fund’s investment
adviser to ensure that they are based on
services provided that are in addition to,
rather than duplicative of, services
provided pursuant to the advisory
agreement of any investment company
in which the Same Group Fund of
Funds may invest.
Applicants’ Conditions
Investments by Funds of Funds in
Underlying Funds
Applicants agree that the relief to
permit Funds of Funds to invest in
Underlying Funds shall be subject to the
following conditions:
1. The members of an Advisory Group
will not control (individually or in the
aggregate) an Unaffiliated Fund within
the meaning of section 2(a)(9) of the Act.
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30349
The members of a Subadvisory Group
will not control (individually or in the
aggregate) an Unaffiliated Fund within
the meaning of section 2(a)(9) of the Act.
If, as a result of a decrease in the
outstanding voting securities of an
Unaffiliated Fund, an Advisory Group
or a Subadvisory Group, each in the
aggregate, becomes a holder of more
than 25 percent of the outstanding
voting securities of the Unaffiliated
Fund, then the Advisory Group or the
Subadvisory Group will vote its shares
of the Unaffiliated Fund in the same
proportion as the vote of all other
holders of the Unaffiliated Fund’s
shares. This condition will not apply to
a Subadvisory Group with respect to an
Unaffiliated Fund for which the
Subadviser or a person controlling,
controlled by, or under common control
with the Subadviser acts as the
investment adviser within the meaning
of section 2(a)(20)(A) of the Act (in the
case of an Unaffiliated Investment
Company) or as the sponsor (in the case
of an Unaffiliated Trust).
2. No Fund of Funds or Fund of
Funds Affiliate will cause any existing
or potential investment by the Fund of
Funds in shares of an Unaffiliated Fund
to influence the terms of any services or
transactions between the Fund of Funds
or a Fund of Funds Affiliate and the
Unaffiliated Fund or an Unaffiliated
Fund Affiliate.
3. The Board of each Fund of Funds,
including a majority of the Independent
Trustees, will adopt procedures
reasonably designed to assure that its
Adviser and any Subadviser(s) to the
Fund of Funds are conducting the
investment program of the Fund of
Funds without taking into account any
consideration received by the Fund of
Funds or Fund of Funds Affiliate from
an Unaffiliated Fund or an Unaffiliated
Fund Affiliate in connection with any
services or transactions.
4. Once an investment by a Fund of
Funds in the securities of an
Unaffiliated Investment Company
exceeds the limit of section
12(d)(1)(A)(i) of the Act, the Board of
the Unaffiliated Investment Company,
including a majority of the Independent
Trustees, will determine that any
consideration paid by the Unaffiliated
Investment Company to a Fund of
Funds or a Fund of Funds Affiliate in
connection with any services or
transactions: (a) Is fair and reasonable in
relation to the nature and quality of the
services and benefits received by the
Unaffiliated Investment Company; (b) is
within the range of consideration that
the Unaffiliated Investment Company
would be required to pay to another
unaffiliated entity in connection with
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the same services or transactions; and
(c) does not involve overreaching on the
part of any person concerned. This
condition does not apply with respect to
any services or transactions between an
Unaffiliated Investment Company and
its investment adviser(s) or any person
controlling, controlled by, or under
common control with such investment
adviser(s).
5. No Fund of Funds or Fund of
Funds Affiliate (except to the extent it
is acting in its capacity as an investment
adviser to an Unaffiliated Investment
Company or sponsor to an Unaffiliated
Trust) will cause an Unaffiliated Fund
to purchase a security in any Affiliated
Underwriting.
6. The Board of an Unaffiliated
Investment Company, including a
majority of the Independent Trustees,
will adopt procedures reasonably
designed to monitor any purchases of
securities by the Unaffiliated Investment
Company in an Affiliated Underwriting
once an investment by a Fund of Funds
in the securities of the Unaffiliated
Investment Company exceeds the limit
of section 12(d)(1)(A)(i) of the Act,
including any purchases made directly
from an Underwriting Affiliate. The
Board of the Unaffiliated Investment
Company will review these purchases
periodically, but no less frequently than
annually, to determine whether the
purchases were influenced by the
investment by the Fund of Funds in the
Unaffiliated Investment Company. The
Board of the Unaffiliated Investment
Company will consider, among other
things, (a) whether the purchases were
consistent with the investment
objectives and policies of the
Unaffiliated Investment Company; (b)
how the performance of securities
purchased in an Affiliated Underwriting
compares to the performance of
comparable securities purchased during
a comparable period of time in
underwritings other than Affiliated
Underwritings or to a benchmark such
as a comparable market index; and (c)
whether the amount of securities
purchased by the Unaffiliated
Investment Company in Affiliated
Underwritings and the amount
purchased directly from an
Underwriting Affiliate have changed
significantly from prior years. The
Board of the Unaffiliated Investment
Company will take any appropriate
actions based on its review, including,
if appropriate, the institution of
procedures designed to assure that
purchases of securities in Affiliated
Underwritings are in the best interests
of shareholders.
7. Each Unaffiliated Investment
Company shall maintain and preserve
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16:59 May 21, 2013
Jkt 229001
permanently in an easily accessible
place a written copy of the procedures
described in the preceding condition,
and any modifications to such
procedures, and shall maintain and
preserve for a period not less than six
years from the end of the fiscal year in
which any purchase in an Affiliated
Underwriting occurred, the first two
years in an easily accessible place, a
written record of each purchase of
securities in an Affiliated Underwriting
once an investment by a Fund of Funds
in the securities of an Unaffiliated
Investment Company exceeds the limit
of section 12(d)(1)(A)(i) of the Act,
setting forth the: (a) Party from whom
the securities were acquired, (b) identity
of the underwriting syndicate’s
members, (c) terms of the purchase, and
(d) information or materials upon which
the determinations of the Board of the
Unaffiliated Investment Company were
made.
8. Prior to its investment in shares of
an Unaffiliated Investment Company in
excess of the limit in section
12(d)(1)(A)(i) of the Act, the Fund of
Funds and the Unaffiliated Investment
Company will execute a Participation
Agreement stating, without limitation,
that their Boards and their investment
advisers understand the terms and
conditions of the order and agree to
fulfill their responsibilities under the
order. At the time of its investment in
shares of an Unaffiliated Investment
Company in excess of the limit in
section 12(d)(1)(A)(i), a Fund of Funds
will notify the Unaffiliated Investment
Company of the investment. At such
time, the Fund of Funds will also
transmit to the Unaffiliated Investment
Company a list of the names of each
Fund of Funds Affiliate and
Underwriting Affiliate. The Fund of
Funds will notify the Unaffiliated
Investment Company of any changes to
the list of the names as soon as
reasonably practicable after a change
occurs. The Unaffiliated Investment
Company and the Fund of Funds will
maintain and preserve a copy of the
order, the Participation Agreement, and
the list with any updated information
for the duration of the investment and
for a period of not less than six years
thereafter, the first two years in an
easily accessible place.
9. Before approving any advisory
contract under section 15 of the Act, the
Board of each Fund of Funds, including
a majority of the Independent Trustees,
shall find that the advisory fees charged
under such advisory contract are based
on services provided that are in addition
to, rather than duplicative of, services
provided under the advisory contract(s)
of any Underlying Fund in which the
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Fund of Funds may invest. Such finding
and the basis upon which the finding
was made will be recorded fully in the
minute books of the appropriate Fund of
Funds.
10. The Adviser will waive fees
otherwise payable to it by a Fund of
Funds in an amount at least equal to any
compensation (including fees received
pursuant to any plan adopted by an
Unaffiliated Investment Company under
rule 12b–1 under the Act) received from
an Unaffiliated Fund by the Adviser, or
an affiliated person of the Adviser, other
than any advisory fees paid to the
Adviser or its affiliated person by an
Unaffiliated Investment Company, in
connection with the investment by the
Fund of Funds in the Unaffiliated Fund.
Any Subadviser will waive fees
otherwise payable to the Subadviser,
directly or indirectly, by the Fund of
Funds in an amount at least equal to any
compensation received by the
Subadviser, or an affiliated person of the
Subadviser, from an Unaffiliated Fund,
other than any advisory fees paid to the
Subadviser or its affiliated person by an
Unaffiliated Investment Company, in
connection with the investment by the
Fund of Funds in the Unaffiliated Fund
made at the direction of the Subadviser.
In the event that the Subadviser waives
fees, the benefit of the waiver will be
passed through to the Fund of Funds.
11. No Underlying Fund will acquire
securities of any other investment
company or company relying on section
3(c)(1) or 3(c)(7) of the Act in excess of
the limits contained in section
12(d)(1)(A) of the Act, except to the
extent that such Underlying Fund: (a)
Receives securities of another
investment company as a dividend or as
a result of a plan of reorganization of a
company (other than a plan devised for
the purpose of evading section 12(d)(1)
of the Act); or (b) acquires (or is deemed
to have acquired) securities of another
investment company pursuant to
exemptive relief from the Commission
permitting such Underlying Fund to (i)
acquire securities of one or more
investment companies for short-term
cash management purposes, or (ii)
engage in interfund borrowing and
lending transactions.
12. Any sales charges and/or service
fees charged with respect to shares of a
Fund of Funds will not exceed the
limits applicable to fund of funds set
forth in NASD Conduct Rule 2830.
Other Investments by Same Group
Funds of Funds
Applicants agree that the relief to
permit Same Group Funds of Funds to
invest in Other Investments shall be
subject to the following condition:
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13. Applicants will comply with all
provisions of rule 12d1–2 under the Act,
except for paragraph (a)(2), to the extent
that it restricts any Same Group Fund of
Funds from investing in Other
Investments as described in the
application.
For the Commission, by the Division of
Investment Management, pursuant to
delegated authority.
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2013–12144 Filed 5–21–13; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Investment Company Act Release No.
30523; File No. 812–14085]
LocalShares Investment Trust, et al.;
Notice of Application
May 15, 2013.
Securities and Exchange
Commission (‘‘Commission’’).
ACTION: Notice of an application for an
order under section 6(c) of the
Investment Company Act of 1940
(‘‘Act’’) for an exemption from sections
2(a)(32), 5(a)(1), 22(d) and 22(e) of the
Act and rule 22c-1 under the Act, 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.
TKELLEY on DSK3SPTVN1PROD with NOTICES
AGENCY:
Applicants: LocalShares Investment
Trust (the ‘‘Trust’’), LocalShares, Inc.
(the ‘‘Adviser’’), and SEI Investments
Distribution Co. (‘‘SEI’’).
SUMMARY: Summary of Application:
Applicants request an order that
permits: (a) Certain open-end
management investment companies or
series thereof 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 from 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 17, 2012, and amended
on April 3, 2013.
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16:59 May 21, 2013
Jkt 229001
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. June 10, 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, Securities and Exchange
Commission, 100 F Street NE.,
Washington, DC 20549; the Trust and
the Adviser, 618 Church Street, Suite
220, Nashville, TN 37219; SEI, One
Freedom Valley Drive, Oaks PA 19456.
FOR FURTHER INFORMATION CONTACT:
Barry Pershkow, Senior Special Counsel
at (202) 551–6877, or Janet M.
Grossnickle, Assistant Director, at (202)
551–6821 (Division of Investment
Management, Exemptive Applications
Office).
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.
SUPPLEMENTARY INFORMATION:
Applicants’ Representations
1. The Trust is registered as an openend management investment company
under the Act and organized as a
Delaware statutory trust. Applicants
request that the order apply to the series
of the Trust described in Appendix B to
the application (‘‘Initial Fund’’) and any
future series of the Trust and any other
open-end management companies or
series thereof created in the future
(‘‘Future Funds’’) that tracks a specified
securities index (an ‘‘Underlying
Index’’).1 Any Future Fund will be (a)
advised by the Adviser or an entity
controlling, controlled by, or under
common control with the Adviser, and
1 All entities that currently intend to rely on the
requested order are named as applicants. Any other
existing or future entity that relies on the order will
comply with the terms and conditions of the
application. An Investing Fund (as defined below)
may rely on the order only to invest in the Funds
and not in any other registered investment
company.
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30351
(b) comply with the terms and
conditions of the application. Each
Underlying Index will be comprised
solely of equity and/or fixed income
securities. The Funds will be based on
Underlying Indexes comprised of equity
and/or fixed income securities that trade
in U.S. markets (‘‘Domestic Funds’’) or
securities that trade in non-U.S. markets
(‘‘Foreign Funds’’) or Underlying
Indexes comprised of a combination of
domestic and foreign securities (‘‘Global
Funds’’). The Initial Fund and all Future
Funds, together, are the ‘‘Funds.’’
2. The Adviser will be registered as an
investment adviser under the
Investment Advisers Act of 1940
(‘‘Advisers Act’’) and will serve as
investment adviser to the Funds. The
Adviser may enter into sub-advisory
agreements with one or more
investment advisers to act as subadvisers to a particular Fund (each, a
‘‘Sub-Adviser’’). Each Sub-Adviser will
be registered, or not subject to
registration under the Advisers Act. The
Trust will enter into a distribution
agreement with one or more distributors
that will be registered as a broker-dealer
(‘‘Broker’’) under the Securities
Exchange Act of 1934 (‘‘Exchange Act’’)
and will serve as the principal
underwriter and distributor
(‘‘Distributor’’) for one or more Funds.
The Distributor for the Initial Fund is
SEI. A Distributor may be an affiliated
person of, or an affiliated person of such
affiliated person of, the Adviser and/or
Sub-Advisers within the meaning of
section 2(a)(3) of the Act.
3. Each Fund will consist of a
portfolio of securities, other assets and/
or positions (‘‘Portfolio Positions’’)
selected to correspond to the
performance of its Underlying Index. No
entity that creates, compiles, sponsors
or maintains an Underlying Index
(‘‘Index Provider’’) is or will be an
affiliated person, as defined in section
2(a)(3) of the Act, (‘‘Affiliated Person’’)
or an affiliated person of an affiliated
person (‘‘Second-Tier Affiliate’’) of the
Trust, any Fund, the Adviser, any SubAdviser, or promoter of a Fund, or of
any Distributor.
4. The Initial Fund’s investment
objective will be to seek to replicate as
closely as possible, before fees and
expenses, the price and yield
performance of an index comprised of
publicly traded U.S. companies that
have corporate headquarters in the
Nashville, Tennessee region and that
meet certain requirements regarding
capitalization, trading volume, and
price levels (the ‘‘Nashville Index’’). The
investment objective of each Fund will
be to provide investment returns that
correspond, before fees and expenses, to
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]]>Agencies
[Federal Register Volume 78, Number 99 (Wednesday, May 22, 2013)]
[Notices]
[Pages 30346-30351]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12144]
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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 30521; File No. 812-14098]
Financial Investors Trust and Hanson McClain Strategic Advisors,
Inc.; Notice of Application
May 15, 2013.
AGENCY: Securities and Exchange Commission (``Commission'').
ACTION: Notice of an application for an order under section 12(d)(1)(J)
of the Investment Company Act of 1940 (the ``Act'') for an exemption
from sections 12(d)(1)(A) and (B) of the Act, under section 6(c) of the
Act for an exemption from rule 12d1-2(a) 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.
-----------------------------------------------------------------------
Summary of the Application: The requested order would (a) permit
certain registered open-end management investment companies that
operate as ``funds of funds'' to acquire shares of certain registered
open-end management
[[Page 30347]]
investment companies and unit investment trusts (``UITs'') that are
within and outside the same group of investment companies as the
acquiring investment companies, and (b) permit funds of funds relying
on rule 12d1-2 under the Act to invest in certain financial
instruments.
Applicants: Financial Investors Trust (the ``Trust''), on behalf of
the Pathway Advisors Conservative Fund, Pathway Advisors Growth &
Income Fund, and Pathways Advisors Aggressive Growth Fund
(collectively, the ``Hanson Funds''), and Hanson McClain Strategic
Advisors, Inc. (the ``Adviser'').
DATES: Filing Dates: The application was filed on November 27, 2012 and
amended on March 28, 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 June 10, 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:
Trust, 1290 Broadway, Suite 1100, Denver, Colorado 80203; Adviser, 3620
Fair Oaks Blvd., Suite 300, Sacramento, California 95684.
FOR FURTHER INFORMATION CONTACT: Courtney S. Thornton, Senior Counsel,
at (202) 551-6812, or David P. Bartels, 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 for 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 an open-end management investment company
registered under the Act and organized as a Delaware statutory trust.
The Trust currently is comprised of multiple series, including the
Hanson Funds, each of which pursues its own investment strategies.\1\
---------------------------------------------------------------------------
\1\ Applicants request that the relief apply to each existing
and future series of the Trust and future registered open-end
management investment company or series thereof that is advised by
the Adviser or any entity controlling, controlled by or under common
control with the Adviser and that is part of the same group of
investment companies (as defined in section 12(d)(1)(G)(ii)) as the
Trust (collectively, including the Hanson Funds, ``Funds'').
---------------------------------------------------------------------------
2. The Adviser, a California corporation, is registered as an
investment adviser under the Investment Advisers Act of 1940
(``Advisers Act'') and serves as investment adviser to the Hanson Funds
and may serve as investment adviser to future Funds.
3. Applicants request an order to permit (a) a Fund that operates
as a ``fund of funds'' (each a ``Fund of Funds'') to acquire shares of
(i) registered open-end management investment companies or series
thereof that are not part of the same ``group of investment
companies,'' within the meaning of section 12(d)(1)(G)(ii) of the Act,
as the Fund of Funds (``Unaffiliated Investment Companies'') and UITs
that are not part of the same group of investment companies as the Fund
of Funds (``Unaffiliated Trusts,'' together with the Unaffiliated
Investment Companies, ``Unaffiliated Funds''),\2\ or (ii) registered
open-end management companies or UITs that are part of the same group
of investment companies as the Fund of Funds (collectively,
``Affiliated Funds,'' together with the Unaffiliated Funds,
``Underlying Funds'') and (b) each Underlying Fund, any principal
underwriter for the Underlying Fund, and any broker or dealer
(``Broker'') registered under the Securities Exchange Act of 1934
(``Exchange Act'') to sell shares of the Underlying Fund to the Fund of
Funds.\3\ Applicants also request an order under sections 6(c) and
17(b) of the Act to exempt applicants from section 17(a) to the extent
necessary to permit Underlying Funds to sell their shares to Funds of
Funds and redeem their shares from Funds of Funds.
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\2\ Certain of the Unaffiliated Funds may be registered under
the Act as either UITs or open-end management investment companies
and have received exemptive relief to permit their shares to be
listed and traded on a national securities exchange at negotiated
prices (``ETFs'').
\3\ All entities that currently intend to rely on the requested
order are named as applicants. Any other entity that relies on the
order in the future will comply with the terms and conditions of the
application.
---------------------------------------------------------------------------
4. Applicants also request an exemption under section 6(c) from
rule 12d1-2 under the Act to permit any existing or future Fund of
Funds that relies on section 12(d)(1)(G) of the Act (``Same Group Fund
of Funds'') and that otherwise complies with rule 12d1-2 to also
invest, to the extent consistent with its investment objective,
policies, strategies and limitations, in financial instruments that may
not be securities within the meaning of section 2(a)(36) of the Act
(``Other Investments'').
Applicants' Legal Analysis
Investments in Underlying Funds
A. Section 12(d)(1)
1. Section 12(d)(1)(A) of the Act, in relevant part, prohibits a
registered investment company from acquiring shares of an investment
company if the securities represent more than 3% of the total
outstanding voting stock of the acquired company, more than 5% of the
total assets of the acquiring company, or, together with the securities
of any other investment companies, more than 10% of the total assets of
the acquiring company. Section 12(d)(1)(B) of the Act prohibits a
registered open-end investment company, its principal underwriter, and
any broker or dealer from selling the investment company's shares to
another investment company if the sale will cause the acquiring company
to own more than 3% of the acquired company's voting stock, or if the
sale will cause more than 10% of the acquired company's voting stock to
be owned by investment companies generally.
2. Section 12(d)(1)(J) of the Act provides that the Commission may
exempt any person, security, or transaction, or any class or classes of
persons, securities or transactions, from any provision of section
12(d)(1) if the exemption is consistent with the public interest and
the protection of investors. Applicants seek an exemption under section
12(d)(1)(J) of the Act to permit a Funds of Funds to acquire shares of
the Underlying Funds in excess of the limits in section 12(d)(1)(A),
and an Underlying Fund, any principal underwriter for an Underlying
Fund, and any Broker to sell shares of an Underlying Fund to a Fund of
Funds in excess of the limits in section 12(d)(1)(B) of the Act.
3. Applicants state that the terms and conditions of the proposed
arrangement will not give rise to the policy concerns underlying
sections 12(d)(1)(A) and (B), which include concerns about undue
influence by a fund of funds over underlying funds, excessive layering
of fees, and overly complex fund structures. Accordingly, applicants
believe that the requested exemption is
[[Page 30348]]
consistent with the public interest and the protection of investors.
4. Applicants submit that the proposed arrangement will not result
in the exercise of undue influence by a Fund of Funds or a Fund of
Funds Affiliate (as defined below) over the Unaffiliated Funds.\4\ To
limit the control that a Fund of Funds may have over an Unaffiliated
Fund, applicants propose a condition prohibiting the Adviser, any
person controlling, controlled by, or under common control with the
Adviser, and any investment company or issuer that would be an
investment company but for section 3(c)(1) or 3(c)(7) of the Act that
is advised or sponsored by the Adviser or any person controlling,
controlled by, or under common control with the Adviser (the ``Advisory
Group'') from controlling (individually or in the aggregate) an
Unaffiliated Fund within the meaning of section 2(a)(9) of the Act. The
same prohibition would apply to any subadviser within the meaning of
section 2(a)(20)(B) of the Act (``Subadviser'') to a Fund of Funds, any
person controlling, controlled by or under common control with the
Subadviser, and any investment company or issuer that would be an
investment company but for section 3(c)(1) or 3(c)(7) of the Act (or
portion of such investment company or issuer) advised or sponsored by
the Subadviser or any person controlling, controlled by or under common
control with the Subadviser (the ``Subadvisory Group''). Applicants
propose other conditions to limit the potential for undue influence
over the Unaffiliated Funds, including that no Fund of Funds or Fund of
Funds Affiliate (except to the extent it is acting in its capacity as
an investment adviser to an Unaffiliated Investment Company or sponsor
to an Unaffiliated Trust) will cause an Unaffiliated Fund to purchase a
security in an offering of securities during the existence of any
underwriting or selling syndicate of which a principal underwriter is
an Underwriting Affiliate (``Affiliated Underwriting'').\5\
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\4\ A ``Fund of Funds Affiliate'' is the Adviser, any
Subadviser, promoter or principal underwriter of a Fund of Funds, as
well as any person controlling, controlled by, or under common
control with any of those entities. An ``Unaffiliated Fund
Affiliate'' is an investment adviser, sponsor, promoter, or
principal underwriter of an Unaffiliated Fund, as well as any person
controlling, controlled by, or under common control with any of
those entities.
\5\ An ``Underwriting Affiliate'' is a principal underwriter in
any underwriting or selling syndicate that is an officer, director,
member of an advisory board, investment adviser, Subadviser, or
employee of the Fund of Funds, or a person of which any such
officer, director, member of an advisory board, investment adviser,
Subadviser, or employee is an affiliated person. An Underwriting
Affiliate does not include any person whose relationship to an
Unaffiliated Fund is covered by section 10(f) of the Act.
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5. To further assure that an Unaffiliated Investment Company
understands the implications of an investment by a Fund of Funds under
the requested order, prior to a Fund of Funds' investment in the shares
of an Unaffiliated Investment Company in excess of the limit in section
12(d)(1)(A)(i) of the Act, the Fund of Funds and the Unaffiliated
Investment Company will execute an agreement stating, without
limitation, that their boards of directors or trustees (for any entity,
the ``Board'') and their investment advisers understand the terms and
conditions of the order and agree to fulfill their responsibilities
under the order (``Participation Agreement''). Applicants note that an
Unaffiliated Investment Company (other than an ETF whose shares are
purchased by a Fund of Funds in the secondary market) will retain its
right at all times to reject any investment by a Fund of Funds.\6\
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\6\ An Unaffiliated Investment Company, including an ETF, would
retain its right to reject any initial investment by a Fund of Funds
in excess of the limit in section 12(d)(1)(A)(i) of the Act by
declining to execute the Participation Agreement with the Fund of
Funds.
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6. Applicants state that they do not believe that the proposed
arrangement will involve excessive layering of fees. The Board of each
Fund of Funds, including a majority of the directors or trustees who
are not ``interested persons'' (within the meaning of section 2(a)(19)
of the Act) (for any Board, the ``Independent Trustees''), will find
that the advisory fees charged under any investment advisory or
management contract are based on services provided that will be in
addition to, rather than duplicative of, the services provided under
the advisory contract(s) of any Underlying Fund in which the Fund of
Funds may invest. In addition, the Adviser will waive fees otherwise
payable to it by the Fund of Funds in an amount at least equal to any
compensation (including fees received pursuant to any plan adopted by
an Unaffiliated Investment Company under rule 12b-1 under the Act)
received from an Unaffiliated Fund by the Adviser or an affiliated
person of the Adviser, other than any advisory fees paid to the Adviser
or its affiliated person by an Unaffiliated Investment Company, in
connection with the investment by the Fund of Funds in the Unaffiliated
Fund. Any sales charges and/or service fees charged with respect to
shares of a Fund of Funds will not exceed the limits applicable to a
fund of funds as set forth in Rule 2830 of the Conduct Rules of the
NASD (``NASD Conduct Rule 2830'').\7\
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\7\ Any references to NASD Conduct Rule 2830 include any
successor or replacement rule to NASD Conduct Rule 2830 that may be
adopted by FINRA.
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7. Applicants submit that the proposed arrangement will not create
an overly complex fund structure. Applicants note that no Underlying
Fund will acquire securities of any investment company or company
relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the
limits contained in section 12(d)(1)(A) of the Act, except in certain
circumstances identified in condition 11 below.
B. Section 17(a)
1. Section 17(a) of the Act generally prohibits sales or purchases
of securities between a registered investment company and any
affiliated person of the company. Section 2(a)(3) of the Act defines an
``affiliated person'' of another person to include (a) any person
directly or indirectly owning, controlling, or holding with power to
vote, 5% or more of the outstanding voting securities of the other
person; (b) any person 5% or more of whose outstanding voting
securities are directly or indirectly owned, controlled, or held with
power to vote by the other person; and (c) any person directly or
indirectly controlling, controlled by, or under common control with the
other person.
2. Applicants state that a Fund of Funds and the Affiliated Funds
might be deemed to be under common control of the Adviser and therefore
affiliated persons of one another. Applicants also state that a Fund of
Funds and the Unaffiliated Funds might be deemed to be affiliated
persons of one another if the Fund of Funds acquires 5% or more of an
Unaffiliated Fund's outstanding voting securities. In light of these
and other possible affiliations, section 17(a) could prevent an
Underlying Fund from selling shares to and redeeming shares from a Fund
of Funds.
3. Section 17(b) of the Act authorizes the Commission to grant an
order permitting a transaction otherwise prohibited by section 17(a) if
it finds that (a) the terms of the proposed transaction are fair and
reasonable and do not involve overreaching on the part of any person
concerned; (b) the proposed transaction is consistent with the policies
of each registered investment company involved; and (c) the proposed
transaction is consistent with the general purposes of the Act. Section
6(c) of the Act permits the Commission to exempt any person or
transactions from any provision of the Act if such exemption is
necessary or
[[Page 30349]]
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.
4. Applicants submit that the proposed transactions satisfy the
standards for relief under sections 17(b) and 6(c) of the Act.\8\
Applicants state that the terms of the transactions are reasonable and
fair and do not involve overreaching. Applicants state that the terms
upon which an Underlying Fund will sell its shares to or purchase its
shares from a Fund of Funds will be based on the net asset value of the
Underlying Fund.\9\ Applicants state that the proposed transactions
will be consistent with the policies of each Fund of Funds and each
Underlying Fund and with the general purposes of the Act.
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\8\ Applicants acknowledge that receipt of any compensation by
(a) an affiliated person of a Fund of Funds, or an affiliated person
of such person, for the purchase by a Fund of Funds of shares of an
Underlying Fund or (b) an affiliated person of an Underlying Fund,
or an affiliated person of such person, for the sale by the
Underlying Fund of its shares to a Fund of Funds may be prohibited
by section 17(e)(1) of the Act. The Participation Agreement also
will include this acknowledgement.
\9\ To the extent purchases and sales of shares of an ETF occur
in the secondary market (and not through principal transactions
directly between a Fund of Funds and an ETF), relief from section
17(a) of the Act would not be necessary. The requested relief is
intended to cover, however, transactions directly between ETFs and a
Fund of Funds. Applicants are not seeking relief from section 17(a)
of the Act for, and the requested relief will not apply to,
transactions where an ETF could be deemed an affiliated person, or
an affiliated person of an affiliated person, of a Fund of Funds
because the investment adviser to the ETF or an entity controlling,
controlled by or under common control with the investment adviser to
the ETF is also an investment adviser to the Fund of Funds.
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Other Investments by Same Group Funds of Funds
1. Section 12(d)(1)(G) of the Act provides that section 12(d)(1)
will not apply to securities of an acquired company purchased by an
acquiring company if: (i) the acquiring company and acquired company
are part of the same group of investment companies; (ii) the acquiring
company holds only securities of acquired companies that are part of
the same group of investment companies, government securities, and
short-term paper; (iii) the aggregate sales loads and distribution-
related fees of the acquiring company and the acquired company are not
excessive under rules adopted pursuant to section 22(b) or section
22(c) of the Act by a securities association registered under section
15A of the Exchange Act or by the Commission; and (iv) the acquired
company has a policy that prohibits it from acquiring securities of
registered open-end management investment companies or registered unit
investment trusts in reliance on section 12(d)(1)(F) or (G) of the Act.
2. Rule 12d1-2 under the Act permits a registered open-end
investment company or a registered unit investment trust that relies on
section 12(d)(1)(G) of the Act to acquire, in addition to securities
issued by another registered investment company in the same group of
investment companies, government securities, and short-term paper: (1)
securities issued by an investment company that is not in the same
group of investment companies, when the acquisition is in reliance on
section 12(d)(1)(A) or 12(d)(1)(F) of the Act; (2) securities (other
than securities issued by an investment company); and (3) securities
issued by a money market fund, when the investment is in reliance on
rule 12d1-1 under the Act. For the purposes of rule 12d1-2,
``securities'' means any security as defined in section 2(a)(36) of the
Act.
3. Applicants state that the proposed arrangement would comply with
the provisions of rule 12d1-2 under the Act, but for the fact that a
Same Group Fund of Funds may invest a portion of its assets in Other
Investments. Applicants request an order under section 6(c) of the Act
for an exemption from rule 12d1-2(a) to allow the Same Group Funds of
Funds to invest in Other Investments. Applicants assert that permitting
Same Group Funds of Funds to invest in Other Investments as described
in the application would not raise any of the concerns that the
requirements of section 12(d)(1) were designed to address.
4. Applicants represent that, consistent with its fiduciary
obligations under the Act, the Board of each Same Group Fund of Funds
will review the advisory fees charged by the Same Group Fund of Fund's
investment adviser to ensure that they are based on services provided
that are in addition to, rather than duplicative of, services provided
pursuant to the advisory agreement of any investment company in which
the Same Group Fund of Funds may invest.
Applicants' Conditions
Investments by Funds of Funds in Underlying Funds
Applicants agree that the relief to permit Funds of Funds to invest
in Underlying Funds shall be subject to the following conditions:
1. The members of an Advisory Group will not control (individually
or in the aggregate) an Unaffiliated Fund within the meaning of section
2(a)(9) of the Act. The members of a Subadvisory Group will not control
(individually or in the aggregate) an Unaffiliated Fund within the
meaning of section 2(a)(9) of the Act. If, as a result of a decrease in
the outstanding voting securities of an Unaffiliated Fund, an Advisory
Group or a Subadvisory Group, each in the aggregate, becomes a holder
of more than 25 percent of the outstanding voting securities of the
Unaffiliated Fund, then the Advisory Group or the Subadvisory Group
will vote its shares of the Unaffiliated Fund in the same proportion as
the vote of all other holders of the Unaffiliated Fund's shares. This
condition will not apply to a Subadvisory Group with respect to an
Unaffiliated Fund for which the Subadviser or a person controlling,
controlled by, or under common control with the Subadviser acts as the
investment adviser within the meaning of section 2(a)(20)(A) of the Act
(in the case of an Unaffiliated Investment Company) or as the sponsor
(in the case of an Unaffiliated Trust).
2. No Fund of Funds or Fund of Funds Affiliate will cause any
existing or potential investment by the Fund of Funds in shares of an
Unaffiliated Fund to influence the terms of any services or
transactions between the Fund of Funds or a Fund of Funds Affiliate and
the Unaffiliated Fund or an Unaffiliated Fund Affiliate.
3. The Board of each Fund of Funds, including a majority of the
Independent Trustees, will adopt procedures reasonably designed to
assure that its Adviser and any Subadviser(s) to the Fund of Funds are
conducting the investment program of the Fund of Funds without taking
into account any consideration received by the Fund of Funds or Fund of
Funds Affiliate from an Unaffiliated Fund or an Unaffiliated Fund
Affiliate in connection with any services or transactions.
4. Once an investment by a Fund of Funds in the securities of an
Unaffiliated Investment Company exceeds the limit of section
12(d)(1)(A)(i) of the Act, the Board of the Unaffiliated Investment
Company, including a majority of the Independent Trustees, will
determine that any consideration paid by the Unaffiliated Investment
Company to a Fund of Funds or a Fund of Funds Affiliate in connection
with any services or transactions: (a) Is fair and reasonable in
relation to the nature and quality of the services and benefits
received by the Unaffiliated Investment Company; (b) is within the
range of consideration that the Unaffiliated Investment Company would
be required to pay to another unaffiliated entity in connection with
[[Page 30350]]
the same services or transactions; and (c) does not involve
overreaching on the part of any person concerned. This condition does
not apply with respect to any services or transactions between an
Unaffiliated Investment Company and its investment adviser(s) or any
person controlling, controlled by, or under common control with such
investment adviser(s).
5. No Fund of Funds or Fund of Funds Affiliate (except to the
extent it is acting in its capacity as an investment adviser to an
Unaffiliated Investment Company or sponsor to an Unaffiliated Trust)
will cause an Unaffiliated Fund to purchase a security in any
Affiliated Underwriting.
6. The Board of an Unaffiliated Investment Company, including a
majority of the Independent Trustees, will adopt procedures reasonably
designed to monitor any purchases of securities by the Unaffiliated
Investment Company in an Affiliated Underwriting once an investment by
a Fund of Funds in the securities of the Unaffiliated Investment
Company exceeds the limit of section 12(d)(1)(A)(i) of the Act,
including any purchases made directly from an Underwriting Affiliate.
The Board of the Unaffiliated Investment Company will review these
purchases periodically, but no less frequently than annually, to
determine whether the purchases were influenced by the investment by
the Fund of Funds in the Unaffiliated Investment Company. The Board of
the Unaffiliated Investment Company will consider, among other things,
(a) whether the purchases were consistent with the investment
objectives and policies of the Unaffiliated Investment Company; (b) how
the performance of securities purchased in an Affiliated Underwriting
compares to the performance of comparable securities purchased during a
comparable period of time in underwritings other than Affiliated
Underwritings or to a benchmark such as a comparable market index; and
(c) whether the amount of securities purchased by the Unaffiliated
Investment Company in Affiliated Underwritings and the amount purchased
directly from an Underwriting Affiliate have changed significantly from
prior years. The Board of the Unaffiliated Investment Company will take
any appropriate actions based on its review, including, if appropriate,
the institution of procedures designed to assure that purchases of
securities in Affiliated Underwritings are in the best interests of
shareholders.
7. Each Unaffiliated Investment Company shall maintain and preserve
permanently in an easily accessible place a written copy of the
procedures described in the preceding condition, and any modifications
to such procedures, and shall maintain and preserve for a period not
less than six years from the end of the fiscal year in which any
purchase in an Affiliated Underwriting occurred, the first two years in
an easily accessible place, a written record of each purchase of
securities in an Affiliated Underwriting once an investment by a Fund
of Funds in the securities of an Unaffiliated Investment Company
exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting forth
the: (a) Party from whom the securities were acquired, (b) identity of
the underwriting syndicate's members, (c) terms of the purchase, and
(d) information or materials upon which the determinations of the Board
of the Unaffiliated Investment Company were made.
8. Prior to its investment in shares of an Unaffiliated Investment
Company in excess of the limit in section 12(d)(1)(A)(i) of the Act,
the Fund of Funds and the Unaffiliated Investment Company will execute
a Participation Agreement stating, without limitation, that their
Boards and their investment advisers understand the terms and
conditions of the order and agree to fulfill their responsibilities
under the order. At the time of its investment in shares of an
Unaffiliated Investment Company in excess of the limit in section
12(d)(1)(A)(i), a Fund of Funds will notify the Unaffiliated Investment
Company of the investment. At such time, the Fund of Funds will also
transmit to the Unaffiliated Investment Company a list of the names of
each Fund of Funds Affiliate and Underwriting Affiliate. The Fund of
Funds will notify the Unaffiliated Investment Company of any changes to
the list of the names as soon as reasonably practicable after a change
occurs. The Unaffiliated Investment Company and the Fund of Funds will
maintain and preserve a copy of the order, the Participation Agreement,
and the list with any updated information for the duration of the
investment and for a period of not less than six years thereafter, the
first two years in an easily accessible place.
9. Before approving any advisory contract under section 15 of the
Act, the Board of each Fund of Funds, including a majority of the
Independent Trustees, shall find that the advisory fees charged under
such advisory contract are based on services provided that are in
addition to, rather than duplicative of, services provided under the
advisory contract(s) of any Underlying Fund in which the Fund of Funds
may invest. Such finding and the basis upon which the finding was made
will be recorded fully in the minute books of the appropriate Fund of
Funds.
10. The Adviser will waive fees otherwise payable to it by a Fund
of Funds in an amount at least equal to any compensation (including
fees received pursuant to any plan adopted by an Unaffiliated
Investment Company under rule 12b-1 under the Act) received from an
Unaffiliated Fund by the Adviser, or an affiliated person of the
Adviser, other than any advisory fees paid to the Adviser or its
affiliated person by an Unaffiliated Investment Company, in connection
with the investment by the Fund of Funds in the Unaffiliated Fund. Any
Subadviser will waive fees otherwise payable to the Subadviser,
directly or indirectly, by the Fund of Funds in an amount at least
equal to any compensation received by the Subadviser, or an affiliated
person of the Subadviser, from an Unaffiliated Fund, other than any
advisory fees paid to the Subadviser or its affiliated person by an
Unaffiliated Investment Company, in connection with the investment by
the Fund of Funds in the Unaffiliated Fund made at the direction of the
Subadviser. In the event that the Subadviser waives fees, the benefit
of the waiver will be passed through to the Fund of Funds.
11. No Underlying Fund will acquire securities of any other
investment company or company relying on section 3(c)(1) or 3(c)(7) of
the Act in excess of the limits contained in section 12(d)(1)(A) of the
Act, except to the extent that such Underlying Fund: (a) Receives
securities of another investment company as a dividend or as a result
of a plan of reorganization of a company (other than a plan devised for
the purpose of evading section 12(d)(1) of the Act); or (b) acquires
(or is deemed to have acquired) securities of another investment
company pursuant to exemptive relief from the Commission permitting
such Underlying Fund to (i) acquire securities of one or more
investment companies for short-term cash management purposes, or (ii)
engage in interfund borrowing and lending transactions.
12. Any sales charges and/or service fees charged with respect to
shares of a Fund of Funds will not exceed the limits applicable to fund
of funds set forth in NASD Conduct Rule 2830.
Other Investments by Same Group Funds of Funds
Applicants agree that the relief to permit Same Group Funds of
Funds to invest in Other Investments shall be subject to the following
condition:
[[Page 30351]]
13. Applicants will comply with all provisions of rule 12d1-2 under
the Act, except for paragraph (a)(2), to the extent that it restricts
any Same Group Fund of Funds from investing in Other Investments as
described in the application.
For the Commission, by the Division of Investment Management,
pursuant to delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-12144 Filed 5-21-13; 8:45 am]
BILLING CODE 8011-01-P
