IndexIQ ETF Trust, et al.; Notice of Application, 79519-79524 [2013-31137]

Download as PDF maindgalligan on DSK5TPTVN1PROD with NOTICES Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices will be passed through to the Investing Management Company. 6. No Investing Fund or Investing Fund’s Affiliate (except to the extent it is acting in its capacity as an investment adviser to a Fund) will cause a Fund to purchase a security in any Affiliated Underwriting. 7. The Board of a Fund, including a majority of the non-interested Board members, will adopt procedures reasonably designed to monitor any purchases of securities by the Fund in an Affiliated Underwriting, once an investment by an Investing Fund in the securities of the Fund exceeds the limit of Section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Investing Fund in the Fund. The Board will consider, among other things: (i) whether the purchases were consistent with the investment objectives and policies of the; (ii) 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 (iii) whether the amount of securities purchased by the Fund in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board will take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to ensure that purchases of securities in Affiliated Underwritings are in the best interest of shareholders of the Fund. 8. Each Fund will 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 will maintain and preserve for a period of 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 Affiliated Underwritings once an investment by an Investing Fund in the securities of the Fund exceeds the limit of Section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate’s members, the VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 terms of the purchase, and the information or materials upon which the Board’s determinations were made. 9. Before investing in a Fund in excess of the limits in Section 12(d)(1)(A), an Investing Fund and the Trust will execute an Investing Fund Participation Agreement stating without limitation that their respective boards of directors or trustees and their investment advisers, or trustee and Sponsor, as applicable, 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 a Fund in excess of the limit in Section 12(d)(1)(A)(i), an Investing Fund will notify the Fund of the investment. At such time, the Investing Fund will also transmit to the Fund a list of the names of each Investing Fund’s Affiliate and Underwriting Affiliate. The Investing Fund will notify the Fund of any changes to the list of the names as soon as reasonably practicable after a change occurs. The Fund and the Investing Fund will maintain and preserve a copy of the Order, the Investing Fund 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. 10. Before approving any advisory contract under Section 15 of the Act, the board of directors or trustees of each Investing Management Company, including a majority of the noninterested directors or trustees, will find that the advisory fees charged under such 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 Fund in which the Investing Management Company may invest. These findings and their basis will be fully recorded in the minute books of the appropriate Investing Management Company. 11. Any sales charges and/or service fees charged with respect to shares of an Investing Fund will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830. 12. No Fund will acquire securities of an 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 the Fund acquires securities of another investment company pursuant to exemptive relief from the Commission permitting the Fund to acquire securities of one or more investment companies for shortterm cash management purposes. PO 00000 Frm 00130 Fmt 4703 Sfmt 4703 79519 For the Commission, by the Division of Investment Management, under delegated authority. Kevin M. O’Neill, Deputy Secretary. [FR Doc. 2013–31136 Filed 12–27–13; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 30844; 812–14153] IndexIQ ETF Trust, et al.; Notice of Application December 23, 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 ‘‘1940 Act’’) for exemptions from sections 12(d)(1)(A), (B), and (C) of the 1940 Act, under sections 6(c) and 17(b) of the 1940 Act for an exemption from section 17(a) of the 1940 Act, and under section 6(c) of the 1940 Act for an exemption from rule 12d1–2(a) under the 1940 Act. AGENCY: Summary of the Application: Applicants request an order that 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 investment companies, registered closed-end management investment companies, business development companies as defined by section 2(a)(48) of the 1940 Act (‘‘business development companies’’), and registered unit investment trusts that are within or outside the same group of investment companies as the acquiring investment companies and (b) permit certain registered open-end management investment companies relying on rule 12d1–2 under the 1940 Act to invest in certain financial instruments. Applicants: IndexIQ ETF Trust, IndexIQ Active ETF Trust (each, a ‘‘Trust,’’ and collectively, the ‘‘Trusts’’), IndexIQ Advisors LLC (‘‘IndexIQ Advisors’’) and ALPS Distributors Inc. (the ‘‘Distributor’’). DATES: Filing Dates: The application was filed May 10, 2013, and amended on September 17, 2013, December 19, 2013 and December 23, 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 SUMMARY: E:\FR\FM\30DEN1.SGM 30DEN1 79520 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices 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 January 17, 2014, 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. Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicants, c/o David Fogel, 800 Westchester Avenue, Suite N–611, Rye Brook, NY 10573. ADDRESSES: FOR FURTHER INFORMATION CONTACT: Mark N. Zaruba, Senior Counsel, at (202) 551–6878, or Dalia O. Blass, Assistant Director, at (202) 551–6821 (Division of Investment Management, Chief Counsel’s 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 for an applicant using the ‘‘Company’’ name box, at http:// www.sec.gov/search/search.htm or by calling (202) 551–8090. SUPPLEMENTARY INFORMATION: Applicants’ Representations maindgalligan on DSK5TPTVN1PROD with NOTICES 1. Each Trust is an open-end management company registered under the 1940 Act and organized as a Delaware statutory trust. Each Trust has multiple series (‘‘Funds’’) which pursue distinct investment objectives and strategies.1 2. IndexIQ Advisors, a Delaware limited liability company, is a registered investment adviser under the Investment Advisers Act of 1940 (the ‘‘Advisers Act’’) and serves as the investment adviser to each of the 1 The Applicants request that the order apply not only to any existing series of the Trusts, but that the order also extend to any future series of the Trusts, and any other existing or future registered open-end management investment companies and any series thereof that are part of the same group of investment companies, as defined in Section 12(d)(1)(G)(ii) of the 1940 Act, as the Trusts and are, or may in the future be, advised by the Adviser or any other investment adviser controlling, controlled by, or under common control with the Adviser (together with the existing series of the Trusts, each series a ‘‘Fund,’’ and collectively, the ‘‘Funds’’). 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. VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 Funds.2 IndexIQ Advisors may enter into sub-advisory agreements with one or more additional investment advisors to act as ‘‘Sub-Advisers’’ with respect to particular Funds (each, a ‘‘SubAdviser’’). The Distributor is a Broker (as defined below) and serves as the existing Funds’ principal underwriter and distributor. 3. Applicants request relief to the extent necessary to permit: (a) each Fund (each, a ‘‘Fund of Funds,’’ and collectively, the ‘‘Funds of Funds’’) to acquire shares of registered open-end management investment companies (each an ‘‘Unaffiliated Open-End Investment Company’’), registered closed-end management investment companies, business development companies (each registered closed-end management investment company and each business development company, an ‘‘Unaffiliated Closed-End Investment Company’’ and, together with the Unaffiliated Open-End Investment Companies, the ‘‘Unaffiliated Investment Companies’’), and registered unit investment trusts (‘‘UITs’’) (the ‘‘Unaffiliated Trusts,’’ collectively with the Unaffiliated Investment Companies, the ‘‘Unaffiliated Funds’’), in each case, that are not part of the same ‘‘group of investment companies’’ as the Funds of Funds; 3 (b) the Unaffiliated Funds, their principal underwriters and any broker or dealer registered under the Securities Exchange Act of 1934 (the ‘‘1934 Act’’) (‘‘Broker’’) to sell shares of such Unaffiliated Funds to the Funds of Funds; (c) the Funds of Funds to acquire shares of other registered investment companies, including open-end management investment companies and series thereof, closed-end management investment companies and UITs, as well as business development companies (if any), in the same group of investment companies as the Funds of Funds (collectively, the ‘‘Affiliated Funds,’’ and, together with the Unaffiliated Funds, the ‘‘Underlying Funds’’); 4 and 2 All references to the term ‘‘IndexIQ Advisors’’ include any successors in interest to IndexIQ Advisors LLC. A successor is limited to an entity that results from a reorganization into another jurisdiction or a change in the type of business organization. 3 For purposes of the request for relief, the term ‘‘group of investment companies’’ means any two or more registered investment companies, including closed-end investment companies, that hold themselves out to investors as related companies for purposes of investment and investor services. 4 Certain of the Underlying Funds may be registered under the 1940 Act as either UITs or open-end management investment companies and have obtained exemptions from the Commission necessary to permit their shares to be listed and traded on a national securities exchange at negotiated prices and, accordingly, to operate as exchange-traded funds (collectively, ‘‘ETFs’’ and PO 00000 Frm 00131 Fmt 4703 Sfmt 4703 (d) the Affiliated Funds, their principal underwriters and any Broker to sell shares of the Affiliated Funds to the Funds of Funds.5 Applicants also request an order under sections 6(c) and 17(b) of the 1940 Act to exempt applicants from section 17(a) to the extent necessary to permit Underlying Funds organized as open-end investment companies (‘‘Underlying Open-End Funds’’) and UITs (‘‘Underlying UITs’’) 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 1940 Act to permit any existing or future Fund of Funds that relies on section 12(d)(1)(G) of the 1940 Act (‘‘Section 12(d)(1)(G) Fund of Funds’’) and that otherwise complies with rule 12d1–2 under the 1940 Act, to also invest, to the extent consistent with its investment objective(s), policies, strategies and limitations, in other financial instruments that may not be securities within the meaning of section 2(a)(36) of the 1940 Act (‘‘Other Investments’’). Applicants’ Legal Analysis A. Section 12(d)(1) 1. Section 12(d)(1)(A) of the 1940 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 1940 Act prohibits a registered openend investment company, its principal underwriter, and any Broker from selling the investment company’s shares to another investment company if the each, an ‘‘ETF’’). In addition, certain of the Underlying Funds may in the future pursue their investment objectives through a master-feeder arrangement in reliance on section 12(d)(1)(E) of the 1940 Act. In accordance with condition 12, a Fund of Funds may not invest in an Underlying Fund that operates as a feeder fund unless the feeder fund is part of the same ‘‘group of investment companies’’ as its corresponding master fund or the Fund of Funds. If a Fund of Funds invests in an Affiliated Fund that operates as a feeder fund and the corresponding master fund is not within the same ‘‘group of investment companies’’ as the Fund of Funds and Affiliated Fund, the master fund would be an Unaffiliated Fund for purposes of the application and its conditions. 5 Applicants state that they do not believe that investments in business development companies present any particular considerations or concerns that may be different from those presented by investments in registered closed-end investment companies. E:\FR\FM\30DEN1.SGM 30DEN1 maindgalligan on DSK5TPTVN1PROD with NOTICES Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices 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. Section 12(d)(1)(C) prohibits an investment company from acquiring any security issued by a registered closed-end investment company if such acquisition would result in the acquiring company, any other investment companies having the same investment adviser, and companies controlled by such investment companies, collectively, owning more than 10% of the outstanding voting stock of the registered closed-end investment company. 2. Section 12(d)(1)(J) of the 1940 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 request an exemption under section 12(d)(1)(J) of the 1940 Act from the limitations of sections 12(d)(1)(A), (B) and (C) to the extent necessary to permit: (i) the Funds of Funds to acquire shares of Underlying Funds in excess of the limits set forth in section 12(d)(1)(A) and (C) of the 1940 Act; and (ii) the Underlying Funds, their principal underwriters and any Broker to sell shares of the Underlying Funds to the Funds of Funds in excess of the limits set forth in section 12(d)(1)(B) of the 1940 Act. 3. Applicants state that the proposed arrangement will not give rise to the policy concerns underlying sections 12(d)(1)(A), (B), and (C), 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 consistent with the public interest and the protection of investors. 4. Applicants submit that the proposed structure will not result in the exercise of undue influence by a Fund of Funds or its affiliated persons over the Underlying Funds. Applicants assert that the concern about undue influence does not arise in connection with a Fund of Funds’ investment in the Affiliated Funds because they are part of the same group of investment companies. To limit the control a Fund of Funds or Fund of Funds Affiliate 6 6A ‘‘Fund of Funds Affiliate’’ is the Adviser, any Sub-Adviser, promoter or principal underwriter of a Fund of Funds, as well as any person controlling, controlled by or under common control with any VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 may have over an Unaffiliated Fund, applicants propose a condition prohibiting IndexIQ Advisors and any person controlling, controlled by or under common control with IndexIQ Advisors, and any investment company and any issuer that would be an investment company but for section 3(c)(1) or section 3(c)(7) of the 1940 Act advised or sponsored by IndexIQ Advisors or any person controlling, controlled by or under common control with IndexIQ Advisors (collectively, the ‘‘Group’’) from controlling (individually or in the aggregate) an Unaffiliated Fund within the meaning of section 2(a)(9) of the 1940 Act. The same prohibition would apply to any Sub-Adviser and 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 1940 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 Sub-Adviser (collectively, the ‘‘Sub-Adviser Group’’). 5. With respect to closed-end Underlying Funds, applicants note that although closed-end funds may not be unduly influenced by a holder’s right of redemption, closed-end Underlying Funds may be unduly influenced by a holder’s ability to vote a large block of stock. To address this concern, applicants submit that, with respect to a Fund’s investment in an Unaffiliated Closed-End Investment Company, (i) each member of the Group or SubAdviser Group that is an investment company or an issuer that would be an investment company but for section 3(c)(1) or 3(c)(7) of the 1940 Act will vote its shares of the Unaffiliated Closed-End Investment Company in the manner prescribed by section 12(d)(1)(E) of the 1940 Act and (ii) each other member of the Group or SubAdviser Group will vote its shares of the Unaffiliated Closed-End Investment Company in the same proportion as the vote of all other holders of the same type of such Unaffiliated Closed-End Investment Company’s shares. Applicants state that, in this way, an Unaffiliated Closed-End Investment Company will be protected from undue influence by a Fund of Funds through the voting of the Unaffiliated ClosedEnd Investment Company’s shares. of those entities. An ‘‘Unaffiliated Fund Affiliate’’ is an investment adviser(s), sponsor, promoter or principal underwriter of any Unaffiliated Fund or any person controlling, controlled by or under common control with any of those entities. PO 00000 Frm 00132 Fmt 4703 Sfmt 4703 79521 6. 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’’).7 7. To further ensure that an Unaffiliated Investment Company understands the implications of a Fund of Funds’ investment under the requested exemptive relief, prior to its investment in the shares of an Unaffiliated Investment Company in excess of the limit of section 12(d)(1)(A)(i) of the 1940 Act, a Fund of Funds and the Unaffiliated Investment Company will execute an agreement stating, without limitation, that each of 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 (the ‘‘Participation Agreement’’). Applicants note that an Unaffiliated Investment Company (including an ETF or an Unaffiliated Closed-End Investment Company) would also retain its right to reject any initial investment by a Fund of Funds in excess of the limits in section 12(d)(1)(A)(i) of the 1940 Act by declining to execute the Participation Agreement with the Fund of Funds. In addition, an Unaffiliated Investment Company (other than an ETF or closedend fund 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. Finally, subject solely to the giving of notice to a Fund of Funds and the passage of a reasonable notice period, an Unaffiliated Fund (including an ETF or an Unaffiliated Closed-End Investment Company) could terminate a Participation Agreement with the Fund of Funds. 8. Applicants state that they do not believe that the proposed arrangement 7 An ‘‘Underwriting Affiliate’’ is a principal underwriter in any underwriting or selling syndicate that is an officer, director, trustee, advisory board member, investment adviser, subadviser or employee of the Fund of Funds, or a person of which any such officer, director, trustee, investment adviser, sub-adviser, member of an advisory board 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 1940 Act. E:\FR\FM\30DEN1.SGM 30DEN1 79522 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices maindgalligan on DSK5TPTVN1PROD with NOTICES will result in excessive layering of fees. The Board of each Fund of Funds, including a majority of the trustees who are not ‘‘interested persons’’ within the meaning of section 2(a)(19) of the 1940 Act (the ‘‘Independent Trustees’’), will find that the management or advisory fees charged under a Fund of Funds’ 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. In addition, IndexIQ Advisors 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 1940 Act) received from an Unaffiliated Fund by IndexIQ Advisors, or an affiliated person of IndexIQ Advisors, other than any advisory fees paid to IndexIQ Advisors or an affiliated person of IndexIQ Advisors by the Unaffiliated Investment Company, in connection with the investment by the Fund of Funds in the Unaffiliated Fund. 9. Applicants further state that any sales charges and/or service fees charged with respect to shares of a Fund of Funds will not exceed the limits applicable to funds of funds set forth in in rule 2830 of the Conduct Rules of the NASD (‘‘NASD Conduct Rule 2830’’).8 10. 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 other investment company or company relying on section 3(c)(1) or 3(c)(7) of the 1940 Act in excess of the limits contained in section 12(d)(1)(A) of the 1940 Act, except in certain circumstances identified in condition 12 below. B. Section 17(a) 1. Section 17(a) of the 1940 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 1940 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, 8 Any references to NASD Conduct Rule 2830 include any successor or replacement FINRA rule to NASD Conduct Rule 2830. VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 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 the Funds of Funds and the Affiliated Funds may be deemed to be under the common control of IndexIQ Advisors and, therefore, affiliated persons of one another. Applicants also state that the Funds of Funds and the Underlying Open-End Funds and Underlying UITs may also be deemed to be affiliated persons of one another if a Fund of Funds owns 5% or more of the outstanding voting securities of one or more of such Underlying Open-End Funds or Underlying UITs. Applicants state that the sale of shares by the Underlying Open-End Funds or Underlying UITs to the Funds of Funds and the purchase of those shares from the Funds of Funds by the Underlying Open-End Funds or Underlying UITs (through redemptions) could be deemed to violate section 17(a).9 3. Section 17(b) of the 1940 Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (i) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (ii) the proposed transaction is consistent with the policies of each registered investment company concerned; and (iii) the proposed transaction is consistent with the general purposes of the 1940 Act. Section 6(c) of the 1940 Act permits the Commission to exempt any person or transactions from any provision of the 1940 Act 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 1940 Act. 4. Applicants submit that the proposed transactions satisfy the standards for relief under sections 17(b) and 6(c) of the 1940 Act. 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 Open-End Fund will sell its shares to or purchase its shares from a Fund of Funds will be in accordance 9 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 the 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 1940 Act. The Participation Agreement also will include this acknowledgement. PO 00000 Frm 00133 Fmt 4703 Sfmt 4703 with the rules and regulations under the 1940 Act.10 Applicants also state that the proposed transactions will be consistent with the policies of each Fund of Funds and any Underlying Fund, and with the general purposes of the 1940 Act. C. Other Investments by Section 12(d)(1)(G) Funds of Funds 1. Section 12(d)(1)(G) of the 1940 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,’’ as defined in section 12(d)(1)(G)(ii) of the 1940 Act; (ii) the acquiring company holds only securities of acquired companies that are part of the same ‘‘group of investment companies,’’ as defined in section 12(d)(1)(G)(ii) of the 1940 Act, 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 1940 Act by a securities association registered under section 15A of the 1934 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 UITs in reliance on section 12(d)(1)(F) or (G) of the 1940 Act. 2. Rule 12d1–2 under the 1940 Act permits a registered open-end investment company or a registered UIT that relies on section 12(d)(1)(G) of the 1940 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 10 Applicants note that a Fund of Funds generally would purchase and sell shares of an Underlying Fund that operates as an ETF or a closed-end fund through secondary market transactions rather than through principal transactions with the Underlying Fund. Applicants nevertheless request relief from sections 17(a)(1) and (2) to permit each Fund of Funds that is an affiliated person, or an affiliated person of an affiliated person, as defined in section 2(a)(3) of the 1940 Act, of an ETF or a closed-end fund to purchase or redeem shares from the ETF or closed-end fund. Applicants are not seeking relief from section 17(a) for, and the requested relief will not apply to, transactions where an ETF or a closedend fund could be deemed an affiliated person, or an affiliated person of an affiliated person, of a Fund of Funds because an investment adviser to the ETF or an entity controlling, controlled by or under common control with the investment adviser to the ETF or closed-end fund is also an investment adviser to the Fund of Funds E:\FR\FM\30DEN1.SGM 30DEN1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices acquisition is in reliance on section 12(d)(1)(A) or 12(d)(1)(F) of the 1940 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 1940 Act. For the purposes of rule 12d1–2, ‘‘securities’’ means any security as defined in section 2(a)(36) of the 1940 Act. 3. Applicants state that the proposed arrangement would comply with rule 12d1–2 under the 1940 Act, but for the fact that the Section 12(d)(1)(G) Funds of Funds may invest a portion of their assets in Other Investments. Applicants request an order under section 6(c) of the 1940 Act for an exemption from rule 12d1–2(a) to allow the Section 12(d)(1)(G) Funds of Funds to invest in Other Investments. Applicants assert that permitting a Section 12(d)(1)(G) Fund of Funds to invest in Other Investments as described in the application would not raise any of the concerns that section 12(d)(1) of the 1940 Act was intended to address. 4. Consistent with its fiduciary obligations under the 1940 Act, a Section 12(d)(1)(G) Fund of Funds’ Board will review the advisory fees charged by the Section 12(d)(1)(G) Fund of Funds’ investment adviser(s) to ensure that the fees 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 Section 12(d)(1)(G) Fund of Funds may invest. maindgalligan on DSK5TPTVN1PROD with NOTICES Applicants’ Conditions A. Investments by Funds of Funds in Underlying Funds Applicants agree that the order granting the requested relief to permit Funds of Funds to invest in Underlying Funds shall be subject to the following conditions: 1. The members of the Group will not control (individually or in the aggregate) an Unaffiliated Fund within the meaning of section 2(a)(9) of the 1940 Act. The members of a Sub-Adviser Group will not control (individually or in the aggregate) an Unaffiliated Fund within the meaning of section 2(a)(9) of the 1940 Act. With respect to a Fund’s investment in an Unaffiliated ClosedEnd Investment Company, (i) each member of the Group or Sub-Adviser Group that is an investment company or an issuer that would be an investment company but for section 3(c)(1) or 3(c)(7) of the 1940 Act will vote its shares of the Unaffiliated Closed-End Investment Company in the manner VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 prescribed by section 12(d)(1)(E) of the 1940 Act and (ii) each other member of the Group or Sub-Adviser Group will vote its shares of the Unaffiliated Closed-End Investment Company in the same proportion as the vote of all other holders of the same type of such Unaffiliated Closed-End Investment Company’s shares. If, as a result of a decrease in the outstanding voting securities of any other Unaffiliated Fund, the Group or a Sub-Adviser Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of such Unaffiliated Fund, then the Group or the Sub-Adviser 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 Sub-Adviser Group with respect to an Unaffiliated Fund for which the SubAdviser or a person controlling, controlled by, or under common control with the Sub-Adviser acts as the investment adviser within the meaning of section 2(a)(20)(A) of the 1940 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 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 ensure that its Adviser and any Sub-Adviser 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 1940 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 PO 00000 Frm 00134 Fmt 4703 Sfmt 4703 79523 within the range of consideration that the Unaffiliated Investment Company would be required to pay to another unaffiliated entity in connection with 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 1940 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 ensure that purchases of securities in Affiliated E:\FR\FM\30DEN1.SGM 30DEN1 maindgalligan on DSK5TPTVN1PROD with NOTICES 79524 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices Underwritings are in the best interest of shareholders. 7. Each Unaffiliated Investment Company will 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 will maintain and preserve for a period of 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 1940 Act, setting forth (1) the party from whom the securities were acquired, (2) the identity of the underwriting syndicate’s members, (3) the terms of the purchase, and (4) the 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 set forth in section 12(d)(1)(A)(i) of the 1940 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 set forth 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 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 1940 Act, the Board of each Fund of Funds, including a majority of the Independent Trustees, shall find that the advisory fees charged under the advisory contract VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 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. IndexIQ Advisors 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 pursuant to rule 12b–1 under the 1940 Act) received from an Unaffiliated Fund by IndexIQ Advisors, or an affiliated person of IndexIQ Advisors, other than any advisory fees paid to IndexIQ Advisors or its affiliated person by the Unaffiliated Investment Company, in connection with the investment by the Fund of Funds in the Unaffiliated Fund. Any Sub-Adviser will waive fees otherwise payable to the Sub-Adviser, 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 Sub-Adviser, from an Unaffiliated Fund, other than any advisory fees paid to the Sub-Adviser or its affiliated person by the 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. Any sales charges and/or service fees charged with respect to shares of a Fund of Funds will not exceed the limits applicable to funds of funds set forth in NASD Conduct Rule 2830. 12. 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 1940 Act, in excess of the limits contained in section 12(d)(1)(A) of the 1940 Act, except to the extent that such Underlying Fund: (a) acquires such securities in compliance with section 12(d)(1)(E) of the 1940 Act and is either an Affiliated Fund or is in the same ‘‘group of investment companies’’ as its corresponding master fund; (b) 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 1940 Act); or (c) acquires (or is deemed to have acquired) securities of another investment company pursuant to exemptive relief from the Commission permitting such PO 00000 Frm 00135 Fmt 4703 Sfmt 4703 Underlying Fund to: (i) acquire securities of one or more investment companies for short-term cash management purposes or (ii) engage in inter-fund borrowing and lending transactions. B. Other Investments by Section 12(d)(1)(G) Funds of Funds In addition, Applicants agree that the order granting the requested relief to permit Section 12(d)(1)(G) Funds of Funds to invest in Other Investments shall be subject to the following condition: 1. Applicants will comply with all provisions of rule 12d1–2 under the 1940 Act, except for paragraph (a)(2) to the extent that it restricts any Section 12(d)(1)(G) 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. 2013–31137 Filed 12–27–13; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–71176; File No. SR– NYSEArca–2013–107] Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval to Proposed Rule Change To Establish a Retail Liquidity Program on a Pilot Basis for a Period of One Year From the Date of Implementation and Granting Request for a Limited Exemption From Rule 612 of Regulation NMS December 23, 2013. I. Introduction On October 22, 2013, NYSE Arca, Inc. (‘‘NYSE Arca’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to establish a Retail Liquidity Program (‘‘Program’’) on a pilot basis for a period of one year from the date of implementation. The proposed rule change was published for comment in the Federal Register on November 13, 2013.3 The Commission did not receive any comments on the proposed rule 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 70824 (Nov. 6, 2013), 78 FR 68116 (‘‘Notice’’). 2 17 E:\FR\FM\30DEN1.SGM 30DEN1

Agencies

[Federal Register Volume 78, Number 250 (Monday, December 30, 2013)]
[Notices]
[Pages 79519-79524]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-31137]


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

SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30844; 812-14153]


IndexIQ ETF Trust, et al.; Notice of Application

December 23, 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 ``1940 Act'') for exemptions 
from sections 12(d)(1)(A), (B), and (C) of the 1940 Act, under sections 
6(c) and 17(b) of the 1940 Act for an exemption from section 17(a) of 
the 1940 Act, and under section 6(c) of the 1940 Act for an exemption 
from rule 12d1-2(a) under the 1940 Act.

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

SUMMARY:  Summary of the Application: Applicants request an order that 
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 investment companies, registered 
closed-end management investment companies, business development 
companies as defined by section 2(a)(48) of the 1940 Act (``business 
development companies''), and registered unit investment trusts that 
are within or outside the same group of investment companies as the 
acquiring investment companies and (b) permit certain registered open-
end management investment companies relying on rule 12d1-2 under the 
1940 Act to invest in certain financial instruments.
    Applicants: IndexIQ ETF Trust, IndexIQ Active ETF Trust (each, a 
``Trust,'' and collectively, the ``Trusts''), IndexIQ Advisors LLC 
(``IndexIQ Advisors'') and ALPS Distributors Inc. (the 
``Distributor'').

DATES:  Filing Dates: The application was filed May 10, 2013, and 
amended on September 17, 2013, December 19, 2013 and December 23, 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

[[Page 79520]]

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 January 
17, 2014, 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, c/
o David Fogel, 800 Westchester Avenue, Suite N-611, Rye Brook, NY 
10573.

FOR FURTHER INFORMATION CONTACT: Mark N. Zaruba, Senior Counsel, at 
(202) 551-6878, or Dalia O. Blass, Assistant Director, at (202) 551-
6821 (Division of Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained via the 
Commission's Web site by searching for the file number, or for an 
applicant using the ``Company'' name box, at http://www.sec.gov/search/search.htm or by calling (202) 551-8090.

Applicants' Representations

    1. Each Trust is an open-end management company registered under 
the 1940 Act and organized as a Delaware statutory trust. Each Trust 
has multiple series (``Funds'') which pursue distinct investment 
objectives and strategies.\1\
---------------------------------------------------------------------------

    \1\ The Applicants request that the order apply not only to any 
existing series of the Trusts, but that the order also extend to any 
future series of the Trusts, and any other existing or future 
registered open-end management investment companies and any series 
thereof that are part of the same group of investment companies, as 
defined in Section 12(d)(1)(G)(ii) of the 1940 Act, as the Trusts 
and are, or may in the future be, advised by the Adviser or any 
other investment adviser controlling, controlled by, or under common 
control with the Adviser (together with the existing series of the 
Trusts, each series a ``Fund,'' and collectively, the ``Funds''). 
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.
---------------------------------------------------------------------------

    2. IndexIQ Advisors, a Delaware limited liability company, is a 
registered investment adviser under the Investment Advisers Act of 1940 
(the ``Advisers Act'') and serves as the investment adviser to each of 
the Funds.\2\ IndexIQ Advisors may enter into sub-advisory agreements 
with one or more additional investment advisors to act as ``Sub-
Advisers'' with respect to particular Funds (each, a ``Sub-Adviser''). 
The Distributor is a Broker (as defined below) and serves as the 
existing Funds' principal underwriter and distributor.
---------------------------------------------------------------------------

    \2\ All references to the term ``IndexIQ Advisors'' include any 
successors in interest to IndexIQ Advisors LLC. A 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 relief to the extent necessary to permit: (a) 
each Fund (each, a ``Fund of Funds,'' and collectively, the ``Funds of 
Funds'') to acquire shares of registered open-end management investment 
companies (each an ``Unaffiliated Open-End Investment Company''), 
registered closed-end management investment companies, business 
development companies (each registered closed-end management investment 
company and each business development company, an ``Unaffiliated 
Closed-End Investment Company'' and, together with the Unaffiliated 
Open-End Investment Companies, the ``Unaffiliated Investment 
Companies''), and registered unit investment trusts (``UITs'') (the 
``Unaffiliated Trusts,'' collectively with the Unaffiliated Investment 
Companies, the ``Unaffiliated Funds''), in each case, that are not part 
of the same ``group of investment companies'' as the Funds of Funds; 
\3\ (b) the Unaffiliated Funds, their principal underwriters and any 
broker or dealer registered under the Securities Exchange Act of 1934 
(the ``1934 Act'') (``Broker'') to sell shares of such Unaffiliated 
Funds to the Funds of Funds; (c) the Funds of Funds to acquire shares 
of other registered investment companies, including open-end management 
investment companies and series thereof, closed-end management 
investment companies and UITs, as well as business development 
companies (if any), in the same group of investment companies as the 
Funds of Funds (collectively, the ``Affiliated Funds,'' and, together 
with the Unaffiliated Funds, the ``Underlying Funds''); \4\ and (d) the 
Affiliated Funds, their principal underwriters and any Broker to sell 
shares of the Affiliated Funds to the Funds of Funds.\5\ Applicants 
also request an order under sections 6(c) and 17(b) of the 1940 Act to 
exempt applicants from section 17(a) to the extent necessary to permit 
Underlying Funds organized as open-end investment companies 
(``Underlying Open-End Funds'') and UITs (``Underlying UITs'') to sell 
their shares to Funds of Funds and redeem their shares from Funds of 
Funds.
---------------------------------------------------------------------------

    \3\ For purposes of the request for relief, the term ``group of 
investment companies'' means any two or more registered investment 
companies, including closed-end investment companies, that hold 
themselves out to investors as related companies for purposes of 
investment and investor services.
    \4\ Certain of the Underlying Funds may be registered under the 
1940 Act as either UITs or open-end management investment companies 
and have obtained exemptions from the Commission necessary to permit 
their shares to be listed and traded on a national securities 
exchange at negotiated prices and, accordingly, to operate as 
exchange-traded funds (collectively, ``ETFs'' and each, an ``ETF''). 
In addition, certain of the Underlying Funds may in the future 
pursue their investment objectives through a master-feeder 
arrangement in reliance on section 12(d)(1)(E) of the 1940 Act. In 
accordance with condition 12, a Fund of Funds may not invest in an 
Underlying Fund that operates as a feeder fund unless the feeder 
fund is part of the same ``group of investment companies'' as its 
corresponding master fund or the Fund of Funds. If a Fund of Funds 
invests in an Affiliated Fund that operates as a feeder fund and the 
corresponding master fund is not within the same ``group of 
investment companies'' as the Fund of Funds and Affiliated Fund, the 
master fund would be an Unaffiliated Fund for purposes of the 
application and its conditions.
    \5\ Applicants state that they do not believe that investments 
in business development companies present any particular 
considerations or concerns that may be different from those 
presented by investments in registered closed-end investment 
companies.
---------------------------------------------------------------------------

    4. Applicants also request an exemption under section 6(c) from 
rule 12d1-2 under the 1940 Act to permit any existing or future Fund of 
Funds that relies on section 12(d)(1)(G) of the 1940 Act (``Section 
12(d)(1)(G) Fund of Funds'') and that otherwise complies with rule 
12d1-2 under the 1940 Act, to also invest, to the extent consistent 
with its investment objective(s), policies, strategies and limitations, 
in other financial instruments that may not be securities within the 
meaning of section 2(a)(36) of the 1940 Act (``Other Investments'').

Applicants' Legal Analysis

A. Section 12(d)(1)

    1. Section 12(d)(1)(A) of the 1940 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 1940 Act prohibits a 
registered open-end investment company, its principal underwriter, and 
any Broker from selling the investment company's shares to another 
investment company if the

[[Page 79521]]

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. Section 12(d)(1)(C) prohibits an investment 
company from acquiring any security issued by a registered closed-end 
investment company if such acquisition would result in the acquiring 
company, any other investment companies having the same investment 
adviser, and companies controlled by such investment companies, 
collectively, owning more than 10% of the outstanding voting stock of 
the registered closed-end investment company.
    2. Section 12(d)(1)(J) of the 1940 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 request an 
exemption under section 12(d)(1)(J) of the 1940 Act from the 
limitations of sections 12(d)(1)(A), (B) and (C) to the extent 
necessary to permit: (i) the Funds of Funds to acquire shares of 
Underlying Funds in excess of the limits set forth in section 
12(d)(1)(A) and (C) of the 1940 Act; and (ii) the Underlying Funds, 
their principal underwriters and any Broker to sell shares of the 
Underlying Funds to the Funds of Funds in excess of the limits set 
forth in section 12(d)(1)(B) of the 1940 Act.
    3. Applicants state that the proposed arrangement will not give 
rise to the policy concerns underlying sections 12(d)(1)(A), (B), and 
(C), 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 consistent with the public interest and the protection of 
investors.
    4. Applicants submit that the proposed structure will not result in 
the exercise of undue influence by a Fund of Funds or its affiliated 
persons over the Underlying Funds. Applicants assert that the concern 
about undue influence does not arise in connection with a Fund of 
Funds' investment in the Affiliated Funds because they are part of the 
same group of investment companies. To limit the control a Fund of 
Funds or Fund of Funds Affiliate \6\ may have over an Unaffiliated 
Fund, applicants propose a condition prohibiting IndexIQ Advisors and 
any person controlling, controlled by or under common control with 
IndexIQ Advisors, and any investment company and any issuer that would 
be an investment company but for section 3(c)(1) or section 3(c)(7) of 
the 1940 Act advised or sponsored by IndexIQ Advisors or any person 
controlling, controlled by or under common control with IndexIQ 
Advisors (collectively, the ``Group'') from controlling (individually 
or in the aggregate) an Unaffiliated Fund within the meaning of section 
2(a)(9) of the 1940 Act. The same prohibition would apply to any Sub-
Adviser and any person controlling, controlled by or under common 
control with the Sub-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 1940 Act (or portion of such investment company or issuer) advised 
or sponsored by the Sub-Adviser or any person controlling, controlled 
by or under common control with the Sub-Adviser (collectively, the 
``Sub-Adviser Group'').
---------------------------------------------------------------------------

    \6\ A ``Fund of Funds Affiliate'' is the Adviser, any Sub-
Adviser, 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(s), sponsor, promoter or 
principal underwriter of any Unaffiliated Fund or any person 
controlling, controlled by or under common control with any of those 
entities.
---------------------------------------------------------------------------

    5. With respect to closed-end Underlying Funds, applicants note 
that although closed-end funds may not be unduly influenced by a 
holder's right of redemption, closed-end Underlying Funds may be unduly 
influenced by a holder's ability to vote a large block of stock. To 
address this concern, applicants submit that, with respect to a Fund's 
investment in an Unaffiliated Closed-End Investment Company, (i) each 
member of the Group or Sub-Adviser Group that is an investment company 
or an issuer that would be an investment company but for section 
3(c)(1) or 3(c)(7) of the 1940 Act will vote its shares of the 
Unaffiliated Closed-End Investment Company in the manner prescribed by 
section 12(d)(1)(E) of the 1940 Act and (ii) each other member of the 
Group or Sub-Adviser Group will vote its shares of the Unaffiliated 
Closed-End Investment Company in the same proportion as the vote of all 
other holders of the same type of such Unaffiliated Closed-End 
Investment Company's shares. Applicants state that, in this way, an 
Unaffiliated Closed-End Investment Company will be protected from undue 
influence by a Fund of Funds through the voting of the Unaffiliated 
Closed-End Investment Company's shares.
    6. 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'').\7\
---------------------------------------------------------------------------

    \7\ An ``Underwriting Affiliate'' is a principal underwriter in 
any underwriting or selling syndicate that is an officer, director, 
trustee, advisory board member, investment adviser, sub-adviser or 
employee of the Fund of Funds, or a person of which any such 
officer, director, trustee, investment adviser, sub-adviser, member 
of an advisory board 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 1940 Act.
---------------------------------------------------------------------------

    7. To further ensure that an Unaffiliated Investment Company 
understands the implications of a Fund of Funds' investment under the 
requested exemptive relief, prior to its investment in the shares of an 
Unaffiliated Investment Company in excess of the limit of section 
12(d)(1)(A)(i) of the 1940 Act, a Fund of Funds and the Unaffiliated 
Investment Company will execute an agreement stating, without 
limitation, that each of 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 (the ``Participation Agreement''). 
Applicants note that an Unaffiliated Investment Company (including an 
ETF or an Unaffiliated Closed-End Investment Company) would also retain 
its right to reject any initial investment by a Fund of Funds in excess 
of the limits in section 12(d)(1)(A)(i) of the 1940 Act by declining to 
execute the Participation Agreement with the Fund of Funds. In 
addition, an Unaffiliated Investment Company (other than an ETF or 
closed-end fund 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. Finally, subject solely to the giving of 
notice to a Fund of Funds and the passage of a reasonable notice 
period, an Unaffiliated Fund (including an ETF or an Unaffiliated 
Closed-End Investment Company) could terminate a Participation 
Agreement with the Fund of Funds.
    8. Applicants state that they do not believe that the proposed 
arrangement

[[Page 79522]]

will result in excessive layering of fees. The Board of each Fund of 
Funds, including a majority of the trustees who are not ``interested 
persons'' within the meaning of section 2(a)(19) of the 1940 Act (the 
``Independent Trustees''), will find that the management or advisory 
fees charged under a Fund of Funds' 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. In addition, IndexIQ Advisors 
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 1940 Act) received from an Unaffiliated Fund by IndexIQ 
Advisors, or an affiliated person of IndexIQ Advisors, other than any 
advisory fees paid to IndexIQ Advisors or an affiliated person of 
IndexIQ Advisors by the Unaffiliated Investment Company, in connection 
with the investment by the Fund of Funds in the Unaffiliated Fund.
    9. Applicants further state that any sales charges and/or service 
fees charged with respect to shares of a Fund of Funds will not exceed 
the limits applicable to funds of funds set forth in in rule 2830 of 
the Conduct Rules of the NASD (``NASD Conduct Rule 2830'').\8\
---------------------------------------------------------------------------

    \8\ Any references to NASD Conduct Rule 2830 include any 
successor or replacement FINRA rule to NASD Conduct Rule 2830.
---------------------------------------------------------------------------

    10. 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 other investment company or company 
relying on section 3(c)(1) or 3(c)(7) of the 1940 Act in excess of the 
limits contained in section 12(d)(1)(A) of the 1940 Act, except in 
certain circumstances identified in condition 12 below.

B. Section 17(a)

    1. Section 17(a) of the 1940 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 1940 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 the Funds of Funds and the Affiliated 
Funds may be deemed to be under the common control of IndexIQ Advisors 
and, therefore, affiliated persons of one another. Applicants also 
state that the Funds of Funds and the Underlying Open-End Funds and 
Underlying UITs may also be deemed to be affiliated persons of one 
another if a Fund of Funds owns 5% or more of the outstanding voting 
securities of one or more of such Underlying Open-End Funds or 
Underlying UITs. Applicants state that the sale of shares by the 
Underlying Open-End Funds or Underlying UITs to the Funds of Funds and 
the purchase of those shares from the Funds of Funds by the Underlying 
Open-End Funds or Underlying UITs (through redemptions) could be deemed 
to violate section 17(a).\9\
---------------------------------------------------------------------------

    \9\ 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 the 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 1940 Act. The Participation Agreement 
also will include this acknowledgement.
---------------------------------------------------------------------------

    3. Section 17(b) of the 1940 Act authorizes the Commission to grant 
an order permitting a transaction otherwise prohibited by section 17(a) 
if it finds that (i) the terms of the proposed transaction are fair and 
reasonable and do not involve overreaching on the part of any person 
concerned; (ii) the proposed transaction is consistent with the 
policies of each registered investment company concerned; and (iii) the 
proposed transaction is consistent with the general purposes of the 
1940 Act. Section 6(c) of the 1940 Act permits the Commission to exempt 
any person or transactions from any provision of the 1940 Act 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 1940 Act.
    4. Applicants submit that the proposed transactions satisfy the 
standards for relief under sections 17(b) and 6(c) of the 1940 Act. 
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 Open-End Fund will sell its shares to or 
purchase its shares from a Fund of Funds will be in accordance with the 
rules and regulations under the 1940 Act.\10\ Applicants also state 
that the proposed transactions will be consistent with the policies of 
each Fund of Funds and any Underlying Fund, and with the general 
purposes of the 1940 Act.
---------------------------------------------------------------------------

    \10\ Applicants note that a Fund of Funds generally would 
purchase and sell shares of an Underlying Fund that operates as an 
ETF or a closed-end fund through secondary market transactions 
rather than through principal transactions with the Underlying Fund. 
Applicants nevertheless request relief from sections 17(a)(1) and 
(2) to permit each Fund of Funds that is an affiliated person, or an 
affiliated person of an affiliated person, as defined in section 
2(a)(3) of the 1940 Act, of an ETF or a closed-end fund to purchase 
or redeem shares from the ETF or closed-end fund. Applicants are not 
seeking relief from section 17(a) for, and the requested relief will 
not apply to, transactions where an ETF or a closed-end fund could 
be deemed an affiliated person, or an affiliated person of an 
affiliated person, of a Fund of Funds because an investment adviser 
to the ETF or an entity controlling, controlled by or under common 
control with the investment adviser to the ETF or closed-end fund is 
also an investment adviser to the Fund of Funds
---------------------------------------------------------------------------

C. Other Investments by Section 12(d)(1)(G) Funds of Funds

    1. Section 12(d)(1)(G) of the 1940 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,'' as 
defined in section 12(d)(1)(G)(ii) of the 1940 Act; (ii) the acquiring 
company holds only securities of acquired companies that are part of 
the same ``group of investment companies,'' as defined in section 
12(d)(1)(G)(ii) of the 1940 Act, 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 1940 
Act by a securities association registered under section 15A of the 
1934 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 UITs in reliance on 
section 12(d)(1)(F) or (G) of the 1940 Act.
    2. Rule 12d1-2 under the 1940 Act permits a registered open-end 
investment company or a registered UIT that relies on section 
12(d)(1)(G) of the 1940 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

[[Page 79523]]

acquisition is in reliance on section 12(d)(1)(A) or 12(d)(1)(F) of the 
1940 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 1940 Act. For the 
purposes of rule 12d1-2, ``securities'' means any security as defined 
in section 2(a)(36) of the 1940 Act.
    3. Applicants state that the proposed arrangement would comply with 
rule 12d1-2 under the 1940 Act, but for the fact that the Section 
12(d)(1)(G) Funds of Funds may invest a portion of their assets in 
Other Investments. Applicants request an order under section 6(c) of 
the 1940 Act for an exemption from rule 12d1-2(a) to allow the Section 
12(d)(1)(G) Funds of Funds to invest in Other Investments. Applicants 
assert that permitting a Section 12(d)(1)(G) Fund of Funds to invest in 
Other Investments as described in the application would not raise any 
of the concerns that section 12(d)(1) of the 1940 Act was intended to 
address.
    4. Consistent with its fiduciary obligations under the 1940 Act, a 
Section 12(d)(1)(G) Fund of Funds' Board will review the advisory fees 
charged by the Section 12(d)(1)(G) Fund of Funds' investment adviser(s) 
to ensure that the fees 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 Section 
12(d)(1)(G) Fund of Funds may invest.

Applicants' Conditions

A. Investments by Funds of Funds in Underlying Funds

    Applicants agree that the order granting the requested relief to 
permit Funds of Funds to invest in Underlying Funds shall be subject to 
the following conditions:
    1. The members of the Group will not control (individually or in 
the aggregate) an Unaffiliated Fund within the meaning of section 
2(a)(9) of the 1940 Act. The members of a Sub-Adviser Group will not 
control (individually or in the aggregate) an Unaffiliated Fund within 
the meaning of section 2(a)(9) of the 1940 Act. With respect to a 
Fund's investment in an Unaffiliated Closed-End Investment Company, (i) 
each member of the Group or Sub-Adviser Group that is an investment 
company or an issuer that would be an investment company but for 
section 3(c)(1) or 3(c)(7) of the 1940 Act will vote its shares of the 
Unaffiliated Closed-End Investment Company in the manner prescribed by 
section 12(d)(1)(E) of the 1940 Act and (ii) each other member of the 
Group or Sub-Adviser Group will vote its shares of the Unaffiliated 
Closed-End Investment Company in the same proportion as the vote of all 
other holders of the same type of such Unaffiliated Closed-End 
Investment Company's shares. If, as a result of a decrease in the 
outstanding voting securities of any other Unaffiliated Fund, the Group 
or a Sub-Adviser Group, each in the aggregate, becomes a holder of more 
than 25 percent of the outstanding voting securities of such 
Unaffiliated Fund, then the Group or the Sub-Adviser 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 Sub-Adviser Group with respect to an Unaffiliated 
Fund for which the Sub-Adviser or a person controlling, controlled by, 
or under common control with the Sub-Adviser acts as the investment 
adviser within the meaning of section 2(a)(20)(A) of the 1940 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 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 
ensure that its Adviser and any Sub-Adviser 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 1940 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 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 1940 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 ensure that purchases of 
securities in Affiliated

[[Page 79524]]

Underwritings are in the best interest of shareholders.
    7. Each Unaffiliated Investment Company will 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 will maintain and preserve for a period of 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 1940 Act, setting 
forth (1) the party from whom the securities were acquired, (2) the 
identity of the underwriting syndicate's members, (3) the terms of the 
purchase, and (4) the 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 set forth in section 12(d)(1)(A)(i) of 
the 1940 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 set forth 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 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 
1940 Act, the Board of each Fund of Funds, including a majority of the 
Independent Trustees, shall find that the advisory fees charged under 
the 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. IndexIQ Advisors 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 pursuant to rule 12b-1 under the 1940 
Act) received from an Unaffiliated Fund by IndexIQ Advisors, or an 
affiliated person of IndexIQ Advisors, other than any advisory fees 
paid to IndexIQ Advisors or its affiliated person by the Unaffiliated 
Investment Company, in connection with the investment by the Fund of 
Funds in the Unaffiliated Fund. Any Sub-Adviser will waive fees 
otherwise payable to the Sub-Adviser, directly or indirectly, by the 
Fund of Funds in an amount at least equal to any compensation received 
by the Sub-Adviser, or an affiliated person of the Sub-Adviser, from an 
Unaffiliated Fund, other than any advisory fees paid to the Sub-Adviser 
or its affiliated person by the Unaffiliated Investment Company, in 
connection with the investment by the Fund of Funds in the Unaffiliated 
Fund made at the direction of the Sub-Adviser. In the event that the 
Sub-Adviser waives fees, the benefit of the waiver will be passed 
through to the Fund of Funds.
    11. Any sales charges and/or service fees charged with respect to 
shares of a Fund of Funds will not exceed the limits applicable to 
funds of funds set forth in NASD Conduct Rule 2830.
    12. 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 1940 Act, in excess of the limits contained in section 12(d)(1)(A) 
of the 1940 Act, except to the extent that such Underlying Fund: (a) 
acquires such securities in compliance with section 12(d)(1)(E) of the 
1940 Act and is either an Affiliated Fund or is in the same ``group of 
investment companies'' as its corresponding master fund; (b) 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 1940 Act); or (c) 
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 inter-fund borrowing and lending transactions.

B. Other Investments by Section 12(d)(1)(G) Funds of Funds

    In addition, Applicants agree that the order granting the requested 
relief to permit Section 12(d)(1)(G) Funds of Funds to invest in Other 
Investments shall be subject to the following condition:
    1. Applicants will comply with all provisions of rule 12d1-2 under 
the 1940 Act, except for paragraph (a)(2) to the extent that it 
restricts any Section 12(d)(1)(G) 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. 2013-31137 Filed 12-27-13; 8:45 am]
BILLING CODE 8011-01-P