Janus Investment Fund, et al.; Notice of Application, 39007-39010 [2014-15970]
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Federal Register / Vol. 79, No. 131 / Wednesday, July 9, 2014 / Notices
Advisers; and (b) monitor and evaluate
the performance of Sub-Advisers.
4. A Subadvised Fund will not make
any Ineligible Sub-Adviser Changes
without such agreement, including the
compensation to be paid thereunder,
being approved by the shareholders of
the applicable Subadvised Fund, which
in the case of a Master Fund will
include voting instructions provided by
shareholders of the Feeder Fund
investing in such Master Fund or other
voting arrangements that comply with
section 12(d)(1)(E)(iii)(aa) of the Act.
5. Subadvised Funds will inform
shareholders, and if the Subadvised
Fund is a Master Fund, shareholders of
any Feeder Funds, of the hiring of a new
Sub-Adviser within 90 days after the
hiring of the new Sub-Adviser pursuant
to the Modified Notice and Access
Procedures.
6. At all times, at least a majority of
the Board will be Independent Trustees,
and the selection and nomination of
new or additional Independent Trustees
will be placed within the discretion of
the then-existing Independent Trustees.
7. Independent Legal Counsel, as
defined in rule 0–1(a)(16) under the Act,
will be engaged to represent the
Independent Trustees. The selection of
such counsel will be within the
discretion of the then-existing
Independent Trustees.
8. The Adviser will provide the
Board, no less frequently than quarterly,
with information about the profitability
of the Adviser on a per Subadvised
Fund basis. The information will reflect
the impact on profitability of the hiring
or termination of any sub-adviser during
the applicable quarter.
9. Whenever a sub-adviser is hired or
terminated, the Adviser will provide the
Board with information showing the
expected impact on the profitability of
the Adviser.
10. Whenever a sub-adviser change is
proposed for a Subadvised Fund with
an Affiliated Sub-Adviser or a WhollyOwned Sub-Adviser, the Board,
including a majority of the Independent
Trustees, will make a separate finding,
reflected in the Board minutes, that
such change is in the best interests of
the Subadvised Fund and its
shareholders, and if the Subadvised
Fund is a Master Fund, the best interests
of any applicable Feeder Funds and
their respective shareholders, and does
not involve a conflict of interest from
which the Adviser or the Affiliated SubAdviser or Wholly-Owned Sub-Adviser
derives an inappropriate advantage.
11. No Trustee or officer of the Trust,
a Fund or a Feeder Fund, or partner,
director, manager or officer of the
Adviser, will own directly or indirectly
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(other than through a pooled investment
vehicle that is not controlled by such
person) any interest in a Sub-Adviser
except for (a) ownership of interests in
the Adviser or any entity, except a
Wholly-Owned Sub-Adviser, that
controls, is controlled by, or is under
common control with the Adviser, or (b)
ownership of less than 1% of the
outstanding securities of any class of
equity or debt of any publicly traded
company that is either a Sub-Adviser or
an entity that controls, is controlled by,
or under common control with a SubAdviser.
12. Each Subadvised Fund and any
Feeder Fund that invests in a
Subadvised Fund that is a Master Fund
will disclose the Aggregate Fee
Disclosure in its registration statement.
13. Any new Sub-Advisory
Agreement or any amendment to a
Subadvised Fund’s existing Investment
Management Agreement or SubAdvisory Agreement that directly or
indirectly results in an increase in the
aggregate advisory fee rate payable by
the Subadvised Fund will be submitted
to the Subadvised Fund’s shareholders
for approval.
14. In the event the Commission
adopts a rule under the Act providing
substantially similar relief to that
requested in the application, the
requested order will expire on the
effective date of that rule.
For the Commission, by the Division of
Investment Management, under delegated
authority.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2014–15969 Filed 7–8–14; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Investment Company Act Release No.
31145; File No. 812–14294]
Janus Investment Fund, et al.; Notice
of Application
July 2, 2014.
39007
and non-affiliated sub-advisers without
shareholder approval and would grant
relief from certain disclosure
requirements.
APPLICANTS: Janus Investment Fund and
Janus Aspen Series (each a ‘‘Trust’’),
and Janus Capital Management (‘‘the
Adviser’’).
DATES: Filing Dates: The application was
filed on March 31, 2014, and amended
on June 2, 2014.
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 July 28, 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: Secretary, U.S. Securities
and Exchange Commission, 100 F Street
NE., Washington, DC 20549–1090.
Applicants: Janus Capital Management
LLC, 151 Detroit Street, Denver, CO
80206.
FOR FURTHER INFORMATION CONTACT:
Linda A. Schneider, Senior Counsel, at
(202) 551–6859, or Holly Hunter-Ceci,
Branch Chief, at (202) 551–6869
(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 an applicant using the
Company name box, at https://
www.sec.gov/search/search.htm or by
calling (202) 551–8090.
AGENCY:
Applicants’ Representations
Applicants
request an order that would permit them
to enter into and materially amend
subadvisory agreements with WhollyOwned Sub-Advisers (as defined below)
1. Janus Investment Fund is organized
as a Massachusetts business trust and
Janus Aspen Series is registered
Delaware statutory trust. Each Trust is
registered under the Act as an open-end
management investment company. Each
Trust currently has, or intends to
introduce, at least one series of shares
(each, a ‘‘Series’’) with its own distinct
investment objective, policies and
restrictions that would operate under a
multi-manager structure. The Adviser is
a Delaware limited liability company
Securities and Exchange
Commission (‘‘Commission’’).
ACTION: Notice of an application under
section 6(c) of the Investment Company
Act of 1940 (‘‘Act’’) for an exemption
from section 15(a) of the Act and rule
18f–2 under the Act, as well as from
certain disclosure requirements.
SUMMARY OF APPLICATION:
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and is registered as an investment
adviser under the Investment Advisers
Act of 1940 (‘‘Advisers Act’’).1 The
Adviser is a direct subsidiary of Janus
Capital Group Inc. (‘‘JCGI’’). JCGI
maintains an asset management
presence through wholly-owned
subsidiaries, including the Adviser.
2. Each Series has or will have, as its
investment adviser, the Adviser, or an
entity controlling, controlled by or
under common control with the Adviser
or its successors (included in the term,
the ‘‘Adviser’’).2 The Adviser will serve
as the investment adviser to each Series
pursuant to an investment advisory
agreement with the relevant Trust
(‘‘Investment Management Agreement’’).
Each Investment Management
Agreement has been or will be approved
by the board of trustees of the relevant
Trust (‘‘Board’’),3 including a majority
of the members of the Board who are not
‘‘interested persons,’’ as defined in
section 2(a)(19) of the Act, of the Series
or the Adviser (‘‘Independent Board
Members’’) and by the shareholders of
the relevant Series as required by
sections 15(a) and 15(c) of the Act and
rule 18f–2 thereunder. The terms of
these Investment Management
Agreements comply or will comply with
section 15(a) of the Act.
3. Under the terms of each Investment
Management Agreement, the Adviser,
subject to the supervision of the Board,
will provide continuous investment
management of the assets of each Series.
The Adviser will periodically review a
Series’ investment policies and
strategies, and based on the need of a
particular Series may recommend
changes to the investment policies and
strategies of the Series for consideration
by the Board. For its services to each
Series under the applicable Investment
1 Applicants request that the relief apply to
applicants, as well as to any future Series and any
other existing or future registered open-end
management investment company or series thereof
that is advised by the Adviser, uses the multimanager structure described in the application, and
complies with the terms and conditions of the
application (‘‘Subadvised Series’’). All registered
open-end investment companies that currently
intend to rely on the requested order are named as
applicants. Any entity that relies on the requested
order will do so only in accordance with the terms
and conditions contained in the application. If the
name of any Subadvised Series contains the name
of a Sub-Adviser (as defined below), the name of
the Adviser that serves as the primary adviser to the
Subadvised Series, or a trademark or trade name
that is owned by or publicly used to identify that
Adviser, will precede the name of the Sub-Adviser.
2 Each Adviser is, or will be, registered with the
Commission as an investment adviser under the
Advisers Act. For purposes of the requested order,
‘‘successor’’ is limited to an entity that results from
a reorganization into another jurisdiction or a
change in the type of business organization.
3 The term ‘‘Board’’ also includes the board of
trustees or directors of a future Subadvised Series.
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Management Agreement, the Adviser
will receive an investment management
fee from that Series. Each Investment
Management Agreement provides that
the Adviser may, subject to the approval
of the Board, including a majority of the
Independent Board Members, and the
shareholders of the applicable
Subadvised Series (if required), delegate
portfolio management responsibilities of
all or a portion of the assets of a
Subadvised Series to one or more SubAdvisers.4
4. Applicants request an order to
permit the Adviser, subject to the
approval of the Board of the relevant
Trust, including a majority of the
Independent Board Members, to,
without obtaining shareholder approval:
(i) Select Sub-Advisers to manage all or
a portion of the assets of a Series and
enter into Sub-Advisory Agreements (as
defined below) with the Sub-Advisers,
and (ii) materially amend Sub-Advisory
Agreements with the Sub-Advisers.5
The requested relief will not extend to
any sub-adviser, other than a WhollyOwned Sub-Adviser, who is an
affiliated person, as defined in section
2(a)(3) of the Act, of the Subadvised
Series, the applicable Trust, or of the
Adviser, other than by reason of serving
as a sub-adviser to one or more of the
Subadvised Series (‘‘Affiliated SubAdviser’’).
5. Pursuant to each Investment
Management Agreement, the Adviser
has overall responsibility for the
management and investment of the
assets of each Subadvised Series. These
responsibilities include recommending
the removal or replacement of SubAdvisers, determining the portion of
that Subadvised Series’ assets to be
managed by any given Sub-Adviser and
reallocating those assets as necessary
from time to time.
‘‘Sub-Adviser’’ is (a) an indirect or direct
‘‘wholly-owned subsidiary’’ (as such term is
defined in the Act) of the Adviser for that Series;
(b) a sister company of the Adviser for that Series
that is an indirect or direct ‘‘wholly-owned
subsidiary’’ (as such term is defined in the Act) of
the same company that, indirectly or directly,
wholly owns the Adviser (each of (a) and (b), a
‘‘Wholly-Owned Sub-Adviser’’ and collectively, the
‘‘Wholly-Owned Sub-Advisers’’), or (c) an
investment sub-adviser for that Series that is not an
‘‘affiliated person’’ (as such term is defined in
section 2(a)(3) of the Act) of the Series or the
Adviser, except to the extent that an affiliation
arises solely because the sub-adviser serves as a
sub-adviser to one or more Series (each, a ‘‘NonAffiliated Sub-Adviser’’).
5 Shareholder approval will continue to be
required for any other sub-adviser change (not
otherwise permitted by rule or other action of the
Commission or staff) and material amendments to
an existing Sub-Advisory Agreement with any subadviser other than a Non-Affiliated Sub-Adviser or
a Wholly-Owned Sub-Adviser (all such changes
referred to as ‘‘Ineligible Sub-Adviser Changes’’).
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6. The Adviser may enter into subadvisory agreements with various SubAdvisers (‘‘Sub-Advisory Agreements’’)
to provide investment management
services to the Subadvised Series. The
terms of each Sub-Advisory Agreement
comply or will comply fully with the
requirements of section 15(a) of the Act
and have been or will be approved by
the Board, including a majority of the
Independent Board Members and the
initial shareholder of the applicable
Subadvised Series, in accordance with
sections 15(a) and 15(c) of the Act and
rule 18f–2 thereunder. The SubAdvisers, subject to the supervision of
the Adviser and oversight of the Board,
will determine the securities and other
investments to be purchased or sold by
a Subadvised Series and place orders
with brokers or dealers that they select.
The Adviser will compensate each SubAdviser out of the fee paid to the
Adviser under the applicable
Investment Management Agreement.
7. Subadvised Series will inform
shareholders of the hiring of a new SubAdviser pursuant to the following
procedures (‘‘Modified Notice and
Access Procedures’’): (a) within 90 days
after a new Sub-Adviser is hired for any
Subadvised Series, that Subadvised
Series will send its shareholders either
a Multi-manager Notice or a Multimanager Notice and Multi-manager
Information Statement; 6 and (b) the
Subadvised Series will make the Multimanager Information Statement
available on the Web site identified in
the Multi-manager Notice no later than
when the Multi-manager Notice (or
Multi-manager Notice and Multimanager Information Statement) is first
sent to shareholders, and will maintain
it on that Web site for at least 90 days.
In the circumstances described in the
application, a proxy solicitation to
6 A ‘‘Multi-manager Notice’’ will be modeled on
a Notice of Internet Availability as defined in rule
14a-16 under the Securities Exchange Act of 1934
(‘‘Exchange Act’’), and specifically will, among
other things: (a) Summarize the relevant
information regarding the new Sub-Adviser (except
as modified to permit Aggregate Fee Disclosure (as
defined below); (b) inform shareholders that the
Multi-manager Information Statement is available
on a Web site; (c) provide the Web site address; (d)
state the time period during which the Multimanager Information Statement will remain
available on that Web site; (e) provide instructions
for accessing and printing the Multi-manager
Information Statement; and (f) instruct the
shareholder that a paper or email copy of the Multimanager Information Statement may be obtained,
without charge, by contacting the Subadvised
Series. A ‘‘Multi-manager Information Statement’’
will meet the requirements of Regulation 14C,
Schedule 14C and Item 22 of Schedule 14A under
the Exchange Act for an information statement,
except as modified by the order to permit Aggregate
Fee Disclosure. Multi-manager Information
Statements will be filed with the Commission via
the EDGAR system.
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approve the appointment of new SubAdvisers provides no more meaningful
information to shareholders than the
proposed Multi-manager Information
Statement. Applicants state that each
Board would comply with the
requirements of sections 15(a) and 15(c)
of the Act before entering into or
amending Sub-Advisory Agreements.
8. Applicants also request an order
exempting the Subadvised Series from
certain disclosure obligations that may
require each Subadvised Series to
disclose fees paid by the Adviser to each
Sub-Adviser. Applicants seek relief to
permit each Subadvised Series to
disclose (as a dollar amount and a
percentage of the Subadvised Series’ net
assets): (a) The aggregate fees paid to the
Adviser and any Wholly-Owned SubAdvisers; (b) the aggregate fees paid to
Non-Affiliated Sub-Advisers; and (c) the
fee paid to each Affiliated Sub-Adviser
(collectively, the ‘‘Aggregate Fee
Disclosure’’).
Applicants’ Legal Analysis
1. Section 15(a) of the Act states, in
part, that it is unlawful for any person
to act as an investment adviser to a
registered investment company ‘‘except
pursuant to a written contract, which
contract, whether with such registered
company or with an investment adviser
of such registered company, has been
approved by the vote of a majority of the
outstanding voting securities of such
registered company.’’ Rule 18f–2 under
the Act provides that each series or class
of stock in a series investment company
affected by a matter must approve that
matter if the Act requires shareholder
approval.
2. Form N–1A is the registration
statement used by open-end investment
companies. Item 19(a)(3) of Form N–1A
requires a registered investment
company to disclose in its statement of
additional information the method of
computing the ‘‘advisory fee payable’’
by the investment company, including
the total dollar amounts that the
investment company ‘‘paid to the
adviser (aggregated with amounts paid
to affiliated advisers, if any), and any
advisers who are not affiliated persons
of the adviser, under the investment
advisory contract for the last three fiscal
years.’’
3. Rule 20a–1 under the Act requires
proxies solicited with respect to a
registered investment company to
comply with Schedule 14A under the
Exchange Act. Items 22(c)(1)(ii),
22(c)(1)(iii), 22(c)(8) and 22(c)(9) of
Schedule 14A, taken together, require a
proxy statement for a shareholder
meeting at which the advisory contract
will be voted upon to include the ‘‘rate
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of compensation of the investment
adviser,’’ the ‘‘aggregate amount of the
investment adviser’s fee,’’ a description
of the ‘‘terms of the contract to be acted
upon,’’ and, if a change in the advisory
fee is proposed, the existing and
proposed fees and the difference
between the two fees.
4. Regulation S–X sets forth the
requirements for financial statements
required to be included as part of a
registered investment company’s
registration statement and shareholder
reports filed with the Commission.
Sections 6–07(2)(a), (b), and (c) of
Regulation S–X require a registered
investment company to include in its
financial statement information about
the investment advisory fees.
5. Section 6(c) of the Act provides that
the Commission by order upon
application may conditionally or
unconditionally exempt any person,
security, or transaction or any class or
classes of persons, securities, or
transactions from any provisions of the
Act, or from any rule thereunder, if such
exemption is necessary or appropriate
in the public interest and consistent
with the protection of investors and the
purposes fairly intended by the policy
and provisions of the Act. Applicants
state that their requested relief meets
this standard for the reasons discussed
below.
6. Applicants assert that the
shareholders expect the Adviser, subject
to the review and approval of the Board,
to select the Sub-Advisers who are in
the best position to achieve the
Subadvised Series’ investment
objective. Applicants assert that, from
the perspective of the shareholder, the
role of the Sub-Advisers is substantially
equivalent to the role of the individual
portfolio managers employed by an
investment adviser to a traditional
investment company. Applicants
believe that permitting the Adviser to
perform the duties for which the
shareholders of the Subadvised Series
are paying the Adviser the selection,
supervision and evaluation of the SubAdvisers without incurring unnecessary
delays or expenses is appropriate in the
interest of the Subadvised Series’
shareholders and will allow such
Subadvised Series to operate more
efficiently. Applicants state that each
Investment Management Agreement will
continue to be fully subject to section
15(a) of the Act and rule 18f-2 under the
Act and approved by the Board,
including a majority of the Independent
Board Members, in the manner required
by sections 15(a) and 15(c) of the Act.
Applicants are not seeking an
exemption with respect to the
Investment Management Agreements.
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7. Applicants assert that disclosure of
the individual fees that the Adviser
would pay to the Sub-Advisers of
Subadvised Series that operate under
the multi-manager structure described
in the application would not serve any
meaningful purpose. Applicants
contend that the primary reasons for
requiring disclosure of individual fees
paid to Sub-Advisers are to inform
shareholders of expenses to be charged
by a particular Subadvised Series and to
enable shareholders to compare the fees
to those of other comparable investment
companies. Applicants believe that the
requested relief satisfies these objectives
because the advisory fee paid to the
Adviser will be fully disclosed and,
therefore, shareholders will know what
the Subadvised Series’ fees and
expenses are and will be able to
compare the advisory fees a Subadvised
Series is charged to those of other
investment companies. Applicants
assert that the requested disclosure
relief ‘‘would benefit shareholders of the
Subadvised Series because it would
improve the Adviser’s ability to
negotiate the fees paid to Sub-Advisers.
Applicants state that the Adviser may be
able to negotiate rates that are below a
Sub-Adviser’s ‘‘posted’’ amounts if the
Adviser is not required to disclose the
Sub-Advisers’ fees to the public.
Applicants submit that the relief
requested to use Aggregate Fee
Disclosure will encourage Sub-Advisers
to negotiate lower subadvisory fees with
the Adviser if the lower fees are not
required to be made public.
8. For the reasons discussed above,
applicants submit that the requested
relief meets the standards for relief
under section 6(c) of the Act. Applicants
state that the operation of the
Subadvised Series in the manner
described in the application must be
approved by shareholders of a
Subadvised Series before that
Subadvised Series may rely on the
requested relief. In addition, applicants
state that the proposed conditions to the
requested relief are designed to address
any potential conflicts of interest,
including any posed by the use of
Wholly-Owned Sub-Advisers, and
provide that shareholders are informed
when new Sub-Advisers are hired.
Applicants assert that conditions 6, 10
and 11 are designed to provide the
Board with sufficient independence and
the resources and information it needs
to monitor and address any conflicts of
interest with affiliated persons of the
Adviser, including Wholly-Owned SubAdvisers. Applicants state that,
accordingly, they believe the requested
relief is necessary or appropriate in the
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public interest and consistent with the
protection of investors and the purposes
fairly intended by the policy and
provisions of the Act.
Applicants’ Conditions
Applicants agree that any order
granting the requested relief will be
subject to the following conditions:7
1. Before a Subadvised Series may
rely on the order requested in the
application, the operation of the
Subadvised Series in the manner
described in the application, including
the hiring of Wholly-Owned SubAdvisers, will be, or has been, approved
by a majority of the Subadvised Series’
outstanding voting securities as defined
in the Act, or, in the case of a new
Subadvised Series whose public
shareholders purchase shares on the
basis of a prospectus containing the
disclosure contemplated by condition 2
below, by the sole initial shareholder
before offering the Subadvised Series’
shares to the public.
2. The prospectus for each
Subadvised Series will disclose the
existence, substance, and effect of any
order granted pursuant to the
application. Each Subadvised Series
will hold itself out to the public as
employing the multi-manager structure
described in the application. Each
prospectus will prominently disclose
that the Adviser has the ultimate
responsibility, subject to oversight by
the Board, to oversee the Sub-Advisers
and recommend their hiring,
termination and replacement.
3. The Adviser will provide general
management services to a Subadvised
Series, including overall supervisory
responsibility for the general
management and investment of the
Subadvised Series’ assets. Subject to
review and approval of the Board, the
Adviser will (a) set a Subadvised Series’
overall investment strategies, (b)
evaluate, select, and recommend SubAdvisers to manage all or a portion of
a Subadvised Series’ assets, and (c)
implement procedures reasonably
designed to ensure that Sub-Advisers
comply with a Subadvised Series’
investment objective, policies and
restrictions. Subject to review by the
Board, the Adviser will (a) when
appropriate, allocate and reallocate a
Subadvised Series’ assets among
multiple Sub-Advisers; and (b) monitor
and evaluate the performance of SubAdvisers.
4. A Subadvised Series will not make
any Ineligible Sub-Adviser Changes
7 Applicants will only comply with conditions 7,
8, 9 and 12 if they rely on the relief that would
allow them to provide Aggregate Fee Disclosure.
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without the approval of the
shareholders of the applicable
Subadvised Series.
5. Subadvised Series will inform
shareholders of the hiring of a new SubAdviser within 90 days after the hiring
of the new Sub-Adviser pursuant to the
Modified Notice and Access Procedures.
6. At all times, at least a majority of
the Board will be Independent Board
Members, and the selection and
nomination of new or additional
Independent Board Members will be
placed within the discretion of the thenexisting Independent Board Members.
7. Independent Legal Counsel, as
defined in rule 0–1(a)(6) under the Act,
will be engaged to represent the
Independent Board Members. The
selection of such counsel will be within
the discretion of the then-existing
Independent Board Members.
8. The Adviser will provide the
Board, no less frequently than quarterly,
with information about the profitability
of the Adviser on a per Subadvised
Series basis. The information will reflect
the impact on profitability of the hiring
or termination of any sub-adviser during
the applicable quarter.
9. Whenever a sub-adviser is hired or
terminated, the Adviser will provide the
Board with information showing the
expected impact on the profitability of
the Adviser.
10. Whenever a sub-adviser change is
proposed for a Subadvised Series with
an Affiliated Sub-Adviser or a WhollyOwned Sub-Adviser, the Board,
including a majority of the Independent
Board Members, will make a separate
finding, reflected in the Board minutes,
that such change is in the best interests
of the Subadvised Series and its
shareholders, and does not involve a
conflict of interest from which the
Adviser or the Affiliated Sub-Adviser or
Wholly-Owned Sub-Adviser derives an
inappropriate advantage.
11. No Board member or officer of a
Subadvised Series, or director or officer
of the Adviser, will own directly or
indirectly (other than through a pooled
investment vehicle that is not controlled
by such person), any interest in a SubAdviser, except for (a) ownership of
interests in the Adviser or any entity,
other than a Wholly-Owned SubAdviser, that controls, is controlled by,
or is under common control with the
Adviser, or (b) ownership of less than
1% of the outstanding securities of any
class of equity or debt of a publicly
traded company that is either a SubAdviser or an entity that controls, is
controlled by, or is under common
control with a Sub-Adviser.
PO 00000
Frm 00161
Fmt 4703
Sfmt 4703
12. Each Subadvised Series will
disclose the Aggregate Fee Disclosure in
its registration statement.
13. In the event the Commission
adopts a rule under the Act providing
substantially similar relief to that
requested in the application, the
requested order will expire on the
effective date of that rule.
14. Any new Sub-Advisory
Agreement or any amendment to a
Subadvised Series’ existing Investment
Management Agreement or SubAdvisory Agreement that directly or
indirectly results in an increase in the
aggregate advisory rate payable by the
Subadvised Series will be submitted to
the Subadvised Series’ shareholders for
approval.
For the Commission, by the Division of
Investment Management, under delegated
authority.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2014–15970 Filed 7–8–14; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Investment Company Act Release No.
31146; File No. 812–14217]
BMO Funds, Inc., et al.; Notice of
Application
July 2, 2014.
Securities and Exchange
Commission (‘‘Commission’’).
ACTION: Notice of an application for an
order pursuant to (a) section 6(c) of the
Investment Company Act of 1940
(‘‘Act’’) granting an exemption from
sections 18(f) and 21(b) of the Act; (b)
section 12(d)(1)(J) of the Act granting an
exemption from section 12(d)(1) of the
Act; (c) sections 6(c) and 17(b) of the
Act granting an exemption from sections
17(a)(1), 17(a)(2) and 17(a)(3) of the Act;
and (d) section 17(d) of the Act and rule
17d–1 under the Act to permit certain
joint arrangements.
AGENCY:
SUMMARY OF THE APPLICATION:
Applicants request an order that would
permit certain registered open-end
management investment companies to
participate in a joint lending and
borrowing facility.
APPLICANTS: BMO Fund, Inc.
(‘‘Company’’ or ‘‘BMO’’), BMO Asset
Management Corp. (‘‘Adviser’’), and
BMO Harris Bank N.A. (‘‘Bank’’).
DATES: Filing Dates: The application was
filed on September 25, 2013, and
amended on February 14, 2014 and June
6, 2014. Applicants have agreed to file
an amendment during the notice period,
E:\FR\FM\09JYN1.SGM
09JYN1
]]>Agencies
[Federal Register Volume 79, Number 131 (Wednesday, July 9, 2014)]
[Notices]
[Pages 39007-39010]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-15970]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 31145; File No. 812-14294]
Janus Investment Fund, et al.; Notice of Application
July 2, 2014.
AGENCY: Securities and Exchange Commission (``Commission'').
ACTION: Notice of an application under section 6(c) of the Investment
Company Act of 1940 (``Act'') for an exemption from section 15(a) of
the Act and rule 18f-2 under the Act, as well as from certain
disclosure requirements.
-----------------------------------------------------------------------
Summary of Application: Applicants request an order that would permit
them to enter into and materially amend subadvisory agreements with
Wholly-Owned Sub-Advisers (as defined below) and non-affiliated sub-
advisers without shareholder approval and would grant relief from
certain disclosure requirements.
Applicants: Janus Investment Fund and Janus Aspen Series (each a
``Trust''), and Janus Capital Management (``the Adviser'').
Dates: Filing Dates: The application was filed on March 31, 2014, and
amended on June 2, 2014.
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 July 28, 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: Secretary, U.S. Securities and Exchange Commission, 100 F
Street NE., Washington, DC 20549-1090. Applicants: Janus Capital
Management LLC, 151 Detroit Street, Denver, CO 80206.
FOR FURTHER INFORMATION CONTACT: Linda A. Schneider, Senior Counsel, at
(202) 551-6859, or Holly Hunter-Ceci, Branch Chief, at (202) 551-6869
(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 an applicant
using the Company name box, at https://www.sec.gov/search/search.htm or
by calling (202) 551-8090.
Applicants' Representations
1. Janus Investment Fund is organized as a Massachusetts business
trust and Janus Aspen Series is registered Delaware statutory trust.
Each Trust is registered under the Act as an open-end management
investment company. Each Trust currently has, or intends to introduce,
at least one series of shares (each, a ``Series'') with its own
distinct investment objective, policies and restrictions that would
operate under a multi-manager structure. The Adviser is a Delaware
limited liability company
[[Page 39008]]
and is registered as an investment adviser under the Investment
Advisers Act of 1940 (``Advisers Act'').\1\ The Adviser is a direct
subsidiary of Janus Capital Group Inc. (``JCGI''). JCGI maintains an
asset management presence through wholly-owned subsidiaries, including
the Adviser.
---------------------------------------------------------------------------
\1\ Applicants request that the relief apply to applicants, as
well as to any future Series and any other existing or future
registered open-end management investment company or series thereof
that is advised by the Adviser, uses the multi-manager structure
described in the application, and complies with the terms and
conditions of the application (``Subadvised Series''). All
registered open-end investment companies that currently intend to
rely on the requested order are named as applicants. Any entity that
relies on the requested order will do so only in accordance with the
terms and conditions contained in the application. If the name of
any Subadvised Series contains the name of a Sub-Adviser (as defined
below), the name of the Adviser that serves as the primary adviser
to the Subadvised Series, or a trademark or trade name that is owned
by or publicly used to identify that Adviser, will precede the name
of the Sub-Adviser.
---------------------------------------------------------------------------
2. Each Series has or will have, as its investment adviser, the
Adviser, or an entity controlling, controlled by or under common
control with the Adviser or its successors (included in the term, the
``Adviser'').\2\ The Adviser will serve as the investment adviser to
each Series pursuant to an investment advisory agreement with the
relevant Trust (``Investment Management Agreement''). Each Investment
Management Agreement has been or will be approved by the board of
trustees of the relevant Trust (``Board''),\3\ including a majority of
the members of the Board who are not ``interested persons,'' as defined
in section 2(a)(19) of the Act, of the Series or the Adviser
(``Independent Board Members'') and by the shareholders of the relevant
Series as required by sections 15(a) and 15(c) of the Act and rule 18f-
2 thereunder. The terms of these Investment Management Agreements
comply or will comply with section 15(a) of the Act.
---------------------------------------------------------------------------
\2\ Each Adviser is, or will be, registered with the Commission
as an investment adviser under the Advisers Act. For purposes of the
requested order, ``successor'' is limited to an entity that results
from a reorganization into another jurisdiction or a change in the
type of business organization.
\3\ The term ``Board'' also includes the board of trustees or
directors of a future Subadvised Series.
---------------------------------------------------------------------------
3. Under the terms of each Investment Management Agreement, the
Adviser, subject to the supervision of the Board, will provide
continuous investment management of the assets of each Series. The
Adviser will periodically review a Series' investment policies and
strategies, and based on the need of a particular Series may recommend
changes to the investment policies and strategies of the Series for
consideration by the Board. For its services to each Series under the
applicable Investment Management Agreement, the Adviser will receive an
investment management fee from that Series. Each Investment Management
Agreement provides that the Adviser may, subject to the approval of the
Board, including a majority of the Independent Board Members, and the
shareholders of the applicable Subadvised Series (if required),
delegate portfolio management responsibilities of all or a portion of
the assets of a Subadvised Series to one or more Sub-Advisers.\4\
---------------------------------------------------------------------------
\4\ A ``Sub-Adviser'' is (a) an indirect or direct ``wholly-
owned subsidiary'' (as such term is defined in the Act) of the
Adviser for that Series; (b) a sister company of the Adviser for
that Series that is an indirect or direct ``wholly-owned
subsidiary'' (as such term is defined in the Act) of the same
company that, indirectly or directly, wholly owns the Adviser (each
of (a) and (b), a ``Wholly-Owned Sub-Adviser'' and collectively, the
``Wholly-Owned Sub-Advisers''), or (c) an investment sub-adviser for
that Series that is not an ``affiliated person'' (as such term is
defined in section 2(a)(3) of the Act) of the Series or the Adviser,
except to the extent that an affiliation arises solely because the
sub-adviser serves as a sub-adviser to one or more Series (each, a
``Non-Affiliated Sub-Adviser'').
---------------------------------------------------------------------------
4. Applicants request an order to permit the Adviser, subject to
the approval of the Board of the relevant Trust, including a majority
of the Independent Board Members, to, without obtaining shareholder
approval: (i) Select Sub-Advisers to manage all or a portion of the
assets of a Series and enter into Sub-Advisory Agreements (as defined
below) with the Sub-Advisers, and (ii) materially amend Sub-Advisory
Agreements with the Sub-Advisers.\5\ The requested relief will not
extend to any sub-adviser, other than a Wholly-Owned Sub-Adviser, who
is an affiliated person, as defined in section 2(a)(3) of the Act, of
the Subadvised Series, the applicable Trust, or of the Adviser, other
than by reason of serving as a sub-adviser to one or more of the
Subadvised Series (``Affiliated Sub-Adviser'').
---------------------------------------------------------------------------
\5\ Shareholder approval will continue to be required for any
other sub-adviser change (not otherwise permitted by rule or other
action of the Commission or staff) and material amendments to an
existing Sub-Advisory Agreement with any sub-adviser other than a
Non-Affiliated Sub-Adviser or a Wholly-Owned Sub-Adviser (all such
changes referred to as ``Ineligible Sub-Adviser Changes'').
---------------------------------------------------------------------------
5. Pursuant to each Investment Management Agreement, the Adviser
has overall responsibility for the management and investment of the
assets of each Subadvised Series. These responsibilities include
recommending the removal or replacement of Sub-Advisers, determining
the portion of that Subadvised Series' assets to be managed by any
given Sub-Adviser and reallocating those assets as necessary from time
to time.
6. The Adviser may enter into sub-advisory agreements with various
Sub-Advisers (``Sub-Advisory Agreements'') to provide investment
management services to the Subadvised Series. The terms of each Sub-
Advisory Agreement comply or will comply fully with the requirements of
section 15(a) of the Act and have been or will be approved by the
Board, including a majority of the Independent Board Members and the
initial shareholder of the applicable Subadvised Series, in accordance
with sections 15(a) and 15(c) of the Act and rule 18f-2 thereunder. The
Sub-Advisers, subject to the supervision of the Adviser and oversight
of the Board, will determine the securities and other investments to be
purchased or sold by a Subadvised Series and place orders with brokers
or dealers that they select. The Adviser will compensate each Sub-
Adviser out of the fee paid to the Adviser under the applicable
Investment Management Agreement.
7. Subadvised Series will inform shareholders of the hiring of a
new Sub-Adviser pursuant to the following procedures (``Modified Notice
and Access Procedures''): (a) within 90 days after a new Sub-Adviser is
hired for any Subadvised Series, that Subadvised Series will send its
shareholders either a Multi-manager Notice or a Multi-manager Notice
and Multi-manager Information Statement; \6\ and (b) the Subadvised
Series will make the Multi-manager Information Statement available on
the Web site identified in the Multi-manager Notice no later than when
the Multi-manager Notice (or Multi-manager Notice and Multi-manager
Information Statement) is first sent to shareholders, and will maintain
it on that Web site for at least 90 days. In the circumstances
described in the application, a proxy solicitation to
[[Page 39009]]
approve the appointment of new Sub-Advisers provides no more meaningful
information to shareholders than the proposed Multi-manager Information
Statement. Applicants state that each Board would comply with the
requirements of sections 15(a) and 15(c) of the Act before entering
into or amending Sub-Advisory Agreements.
---------------------------------------------------------------------------
\6\ A ``Multi-manager Notice'' will be modeled on a Notice of
Internet Availability as defined in rule 14a-16 under the Securities
Exchange Act of 1934 (``Exchange Act''), and specifically will,
among other things: (a) Summarize the relevant information regarding
the new Sub-Adviser (except as modified to permit Aggregate Fee
Disclosure (as defined below); (b) inform shareholders that the
Multi-manager Information Statement is available on a Web site; (c)
provide the Web site address; (d) state the time period during which
the Multi-manager Information Statement will remain available on
that Web site; (e) provide instructions for accessing and printing
the Multi-manager Information Statement; and (f) instruct the
shareholder that a paper or email copy of the Multi-manager
Information Statement may be obtained, without charge, by contacting
the Subadvised Series. A ``Multi-manager Information Statement''
will meet the requirements of Regulation 14C, Schedule 14C and Item
22 of Schedule 14A under the Exchange Act for an information
statement, except as modified by the order to permit Aggregate Fee
Disclosure. Multi-manager Information Statements will be filed with
the Commission via the EDGAR system.
---------------------------------------------------------------------------
8. Applicants also request an order exempting the Subadvised Series
from certain disclosure obligations that may require each Subadvised
Series to disclose fees paid by the Adviser to each Sub-Adviser.
Applicants seek relief to permit each Subadvised Series to disclose (as
a dollar amount and a percentage of the Subadvised Series' net assets):
(a) The aggregate fees paid to the Adviser and any Wholly-Owned Sub-
Advisers; (b) the aggregate fees paid to Non-Affiliated Sub-Advisers;
and (c) the fee paid to each Affiliated Sub-Adviser (collectively, the
``Aggregate Fee Disclosure'').
Applicants' Legal Analysis
1. Section 15(a) of the Act states, in part, that it is unlawful
for any person to act as an investment adviser to a registered
investment company ``except pursuant to a written contract, which
contract, whether with such registered company or with an investment
adviser of such registered company, has been approved by the vote of a
majority of the outstanding voting securities of such registered
company.'' Rule 18f-2 under the Act provides that each series or class
of stock in a series investment company affected by a matter must
approve that matter if the Act requires shareholder approval.
2. Form N-1A is the registration statement used by open-end
investment companies. Item 19(a)(3) of Form N-1A requires a registered
investment company to disclose in its statement of additional
information the method of computing the ``advisory fee payable'' by the
investment company, including the total dollar amounts that the
investment company ``paid to the adviser (aggregated with amounts paid
to affiliated advisers, if any), and any advisers who are not
affiliated persons of the adviser, under the investment advisory
contract for the last three fiscal years.''
3. Rule 20a-1 under the Act requires proxies solicited with respect
to a registered investment company to comply with Schedule 14A under
the Exchange Act. Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and
22(c)(9) of Schedule 14A, taken together, require a proxy statement for
a shareholder meeting at which the advisory contract will be voted upon
to include the ``rate of compensation of the investment adviser,'' the
``aggregate amount of the investment adviser's fee,'' a description of
the ``terms of the contract to be acted upon,'' and, if a change in the
advisory fee is proposed, the existing and proposed fees and the
difference between the two fees.
4. Regulation S-X sets forth the requirements for financial
statements required to be included as part of a registered investment
company's registration statement and shareholder reports filed with the
Commission. Sections 6-07(2)(a), (b), and (c) of Regulation S-X require
a registered investment company to include in its financial statement
information about the investment advisory fees.
5. Section 6(c) of the Act provides that the Commission by order
upon application may conditionally or unconditionally exempt any
person, security, or transaction or any class or classes of persons,
securities, or transactions from any provisions of the Act, or from any
rule thereunder, if such exemption is necessary or appropriate in the
public interest and consistent with the protection of investors and the
purposes fairly intended by the policy and provisions of the Act.
Applicants state that their requested relief meets this standard for
the reasons discussed below.
6. Applicants assert that the shareholders expect the Adviser,
subject to the review and approval of the Board, to select the Sub-
Advisers who are in the best position to achieve the Subadvised Series'
investment objective. Applicants assert that, from the perspective of
the shareholder, the role of the Sub-Advisers is substantially
equivalent to the role of the individual portfolio managers employed by
an investment adviser to a traditional investment company. Applicants
believe that permitting the Adviser to perform the duties for which the
shareholders of the Subadvised Series are paying the Adviser the
selection, supervision and evaluation of the Sub-Advisers without
incurring unnecessary delays or expenses is appropriate in the interest
of the Subadvised Series' shareholders and will allow such Subadvised
Series to operate more efficiently. Applicants state that each
Investment Management Agreement will continue to be fully subject to
section 15(a) of the Act and rule 18f-2 under the Act and approved by
the Board, including a majority of the Independent Board Members, in
the manner required by sections 15(a) and 15(c) of the Act. Applicants
are not seeking an exemption with respect to the Investment Management
Agreements.
7. Applicants assert that disclosure of the individual fees that
the Adviser would pay to the Sub-Advisers of Subadvised Series that
operate under the multi-manager structure described in the application
would not serve any meaningful purpose. Applicants contend that the
primary reasons for requiring disclosure of individual fees paid to
Sub-Advisers are to inform shareholders of expenses to be charged by a
particular Subadvised Series and to enable shareholders to compare the
fees to those of other comparable investment companies. Applicants
believe that the requested relief satisfies these objectives because
the advisory fee paid to the Adviser will be fully disclosed and,
therefore, shareholders will know what the Subadvised Series' fees and
expenses are and will be able to compare the advisory fees a Subadvised
Series is charged to those of other investment companies. Applicants
assert that the requested disclosure relief ``would benefit
shareholders of the Subadvised Series because it would improve the
Adviser's ability to negotiate the fees paid to Sub-Advisers.
Applicants state that the Adviser may be able to negotiate rates that
are below a Sub-Adviser's ``posted'' amounts if the Adviser is not
required to disclose the Sub-Advisers' fees to the public. Applicants
submit that the relief requested to use Aggregate Fee Disclosure will
encourage Sub-Advisers to negotiate lower subadvisory fees with the
Adviser if the lower fees are not required to be made public.
8. For the reasons discussed above, applicants submit that the
requested relief meets the standards for relief under section 6(c) of
the Act. Applicants state that the operation of the Subadvised Series
in the manner described in the application must be approved by
shareholders of a Subadvised Series before that Subadvised Series may
rely on the requested relief. In addition, applicants state that the
proposed conditions to the requested relief are designed to address any
potential conflicts of interest, including any posed by the use of
Wholly-Owned Sub-Advisers, and provide that shareholders are informed
when new Sub-Advisers are hired. Applicants assert that conditions 6,
10 and 11 are designed to provide the Board with sufficient
independence and the resources and information it needs to monitor and
address any conflicts of interest with affiliated persons of the
Adviser, including Wholly-Owned Sub-Advisers. Applicants state that,
accordingly, they believe the requested relief is necessary or
appropriate in the
[[Page 39010]]
public interest and consistent with the protection of investors and the
purposes fairly intended by the policy and provisions of the Act.
Applicants' Conditions
Applicants agree that any order granting the requested relief will
be subject to the following conditions:\7\
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\7\ Applicants will only comply with conditions 7, 8, 9 and 12
if they rely on the relief that would allow them to provide
Aggregate Fee Disclosure.
---------------------------------------------------------------------------
1. Before a Subadvised Series may rely on the order requested in
the application, the operation of the Subadvised Series in the manner
described in the application, including the hiring of Wholly-Owned Sub-
Advisers, will be, or has been, approved by a majority of the
Subadvised Series' outstanding voting securities as defined in the Act,
or, in the case of a new Subadvised Series whose public shareholders
purchase shares on the basis of a prospectus containing the disclosure
contemplated by condition 2 below, by the sole initial shareholder
before offering the Subadvised Series' shares to the public.
2. The prospectus for each Subadvised Series will disclose the
existence, substance, and effect of any order granted pursuant to the
application. Each Subadvised Series will hold itself out to the public
as employing the multi-manager structure described in the application.
Each prospectus will prominently disclose that the Adviser has the
ultimate responsibility, subject to oversight by the Board, to oversee
the Sub-Advisers and recommend their hiring, termination and
replacement.
3. The Adviser will provide general management services to a
Subadvised Series, including overall supervisory responsibility for the
general management and investment of the Subadvised Series' assets.
Subject to review and approval of the Board, the Adviser will (a) set a
Subadvised Series' overall investment strategies, (b) evaluate, select,
and recommend Sub-Advisers to manage all or a portion of a Subadvised
Series' assets, and (c) implement procedures reasonably designed to
ensure that Sub-Advisers comply with a Subadvised Series' investment
objective, policies and restrictions. Subject to review by the Board,
the Adviser will (a) when appropriate, allocate and reallocate a
Subadvised Series' assets among multiple Sub-Advisers; and (b) monitor
and evaluate the performance of Sub-Advisers.
4. A Subadvised Series will not make any Ineligible Sub-Adviser
Changes without the approval of the shareholders of the applicable
Subadvised Series.
5. Subadvised Series will inform shareholders of the hiring of a
new Sub-Adviser within 90 days after the hiring of the new Sub-Adviser
pursuant to the Modified Notice and Access Procedures.
6. At all times, at least a majority of the Board will be
Independent Board Members, and the selection and nomination of new or
additional Independent Board Members will be placed within the
discretion of the then-existing Independent Board Members.
7. Independent Legal Counsel, as defined in rule 0-1(a)(6) under
the Act, will be engaged to represent the Independent Board Members.
The selection of such counsel will be within the discretion of the
then-existing Independent Board Members.
8. The Adviser will provide the Board, no less frequently than
quarterly, with information about the profitability of the Adviser on a
per Subadvised Series basis. The information will reflect the impact on
profitability of the hiring or termination of any sub-adviser during
the applicable quarter.
9. Whenever a sub-adviser is hired or terminated, the Adviser will
provide the Board with information showing the expected impact on the
profitability of the Adviser.
10. Whenever a sub-adviser change is proposed for a Subadvised
Series with an Affiliated Sub-Adviser or a Wholly-Owned Sub-Adviser,
the Board, including a majority of the Independent Board Members, will
make a separate finding, reflected in the Board minutes, that such
change is in the best interests of the Subadvised Series and its
shareholders, and does not involve a conflict of interest from which
the Adviser or the Affiliated Sub-Adviser or Wholly-Owned Sub-Adviser
derives an inappropriate advantage.
11. No Board member or officer of a Subadvised Series, or director
or officer of the Adviser, will own directly or indirectly (other than
through a pooled investment vehicle that is not controlled by such
person), any interest in a Sub-Adviser, except for (a) ownership of
interests in the Adviser or any entity, other than a Wholly-Owned Sub-
Adviser, that controls, is controlled by, or is under common control
with the Adviser, or (b) ownership of less than 1% of the outstanding
securities of any class of equity or debt of a publicly traded company
that is either a Sub-Adviser or an entity that controls, is controlled
by, or is under common control with a Sub-Adviser.
12. Each Subadvised Series will disclose the Aggregate Fee
Disclosure in its registration statement.
13. In the event the Commission adopts a rule under the Act
providing substantially similar relief to that requested in the
application, the requested order will expire on the effective date of
that rule.
14. Any new Sub-Advisory Agreement or any amendment to a Subadvised
Series' existing Investment Management Agreement or Sub-Advisory
Agreement that directly or indirectly results in an increase in the
aggregate advisory rate payable by the Subadvised Series will be
submitted to the Subadvised Series' shareholders for approval.
For the Commission, by the Division of Investment Management,
under delegated authority.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2014-15970 Filed 7-8-14; 8:45 am]
BILLING CODE 8011-01-P
