Cresset Private Markets Opportunity Fund and Cresset SPG, LLC, 26489-26491 [2019-11793]

Download as PDF Federal Register / Vol. 84, No. 109 / Thursday, June 6, 2019 / Notices Form ATS–N submitted by JPB–X ineffective. By the Commission. Jill M. Peterson, Assistant Secretary. [FR Doc. 2019–11822 Filed 6–5–19; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–85979; File No. 013–00141] Initial Form ATS–N Filing; Notice of Extension of Commission Review Period khammond on DSKBBV9HB2PROD with NOTICES May 31, 2019. On February 13, 2019, XE filed an initial Form ATS–N (‘‘Form ATS–N’’) with the Securities and Exchange Commission (‘‘Commission’’). Pursuant to Rule 304 under the Securities and Exchange Act of 1934 (‘‘Act’’), the Commission may, after notice and an opportunity for hearing, declare an initial Form ATS–N ineffective no later than 120 days from the date of filing with the Commission, or, if applicable, the extended review period. June 13, 2019 is 120 calendar days from the date of filing. Pursuant to Rule 304(a)(1)(iv)(B), the Commission may extend the initial Form ATS–N review period for up to an additional 120 calendar days if the initial Form ATS– N is unusually lengthy or raises novel or complex issues that require additional time for review. XE was operating pursuant to an initial operation report on Form ATS on file with the Commission as of January 7, 2019.1 XE filed an initial Form ATS– N on February 13, 2019. During the initial 120 calendar day review period, the Commission staff has been reviewing the disclosures on XE’s initial Form ATS–N. In addition, the staff has been engaged in ongoing discussions with XE about its disclosures and manner of operations, as well as the requirements of Form ATS–N, to facilitate complete and comprehensible disclosures that reflect the complexities of those operations. Form ATS–N requires NMS Stock ATSs to file with the Commission, and disclose to the public for the first time, certain information, including descriptions by the NMS Stock ATSs of their fees, the trading activities by their broker-dealer operators and their affiliates in the NMS Stock ATSs, their 1 An NMS Stock ATS (as defined in Rule 300(k) of Regulation ATS) that was operating pursuant to an initial operation report on Form ATS on file with the Commission as of January 7, 2019 is a ‘‘Legacy NMS Stock ATS.’’ 17 CFR 242.301(b)(2)(viii). VerDate Sep<11>2014 16:11 Jun 05, 2019 Jkt 247001 use of market data, their written standards for granting access to trading on the NMS Stock ATSs, and their written safeguards and procedures for protecting their subscribers’ confidential trading information required by revised Rule 301(b)(10) of Regulation ATS. The initial Form ATS–N disclosures and discussions with Commission staff have revealed complexities about the operations of Legacy NMS Stock ATSs including, among other things, matching functionalities, means of order entry, order interaction and execution procedures, conditional order processes, segmentation of orders, and counterparty selection protocols. The Commission staff needs additional time to review novel and complex issues such as these, which Commission staff has discussed with XE. Extending the initial Form ATS–N Commission review period for an additional 120 calendar days will provide Commission staff an opportunity to continue its review of the initial Form ATS–N disclosures and discussions with XE. In the conversations between XE and Commission staff about the initial Form ATS–N disclosures and the ATS operations, Commission staff and XE have discussed a potential amendment to update XE’s disclosures regarding the complexities of its operations. Extending the review period will enable the NMS Stock ATS to amend its disclosures, if appropriate, and allow Commission staff to conduct a thorough review of amendments to the initial disclosures provided on the initial Form ATS–N. For the reasons given above, the Commission is extending the review period of the initial Form ATS–N submitted by XE. Accordingly, pursuant to Rule 304(a)(1)(iv)(B), October 11, 2019 is the date by which the Commission may declare the initial Form ATS–N submitted by XE ineffective. By the Commission. Eduardo A. Aleman, Deputy Secretary. BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 33497; 812–14915] Cresset Private Markets Opportunity Fund and Cresset SPG, LLC May 31, 2019. Securities and Exchange Commission (‘‘Commission’’). AGENCY: Frm 00093 Fmt 4703 Notice. Notice of an application under section 6(c) of the Investment Company Act of 1940 (the ‘‘Act’’) for an exemption from sections 18(a)(2), 18(c) and 18(i) of the Act, and for an order pursuant to section 17(d) of the Act and rule 17d–1 under the Act. Applicants request an order to permit certain registered closed-end management investment companies to issue multiple classes of shares of beneficial interest with varying sales loads and to impose asset-based distribution and/or service fees. SUMMARY OF APPLICATION: Cresset Private Markets Opportunity Fund (the ‘‘Initial Fund’’) and Cresset SPG, LLC (the ‘‘Adviser’’). APPLICANTS: The application was filed on June 6, 2018, and amended on February 1, 2019. FILING DATES: An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission’s Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on June 25, 2019, and should be accompanied by proof of service on the applicants, in the form of an affidavit, or, for lawyers, a certificate of service. Pursuant to rule 0–5 under the Act, hearing requests should state the nature of the writer’s interest, any facts bearing upon the desirability of a hearing on the matter, 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. HEARING OR NOTIFICATION OF HEARING: Secretary, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090; Applicants, 444 W Lake Street, Suite 4700, Chicago, IL 60606. ADDRESSES: FOR FURTHER INFORMATION CONTACT: [FR Doc. 2019–11837 Filed 6–5–19; 8:45 am] PO 00000 ACTION: 26489 Sfmt 4703 Christine Y. Greenlees, Senior Counsel, at (202) 551–6871, or Andrea Ottomanelli Magovern, Branch Chief, 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 website by searching for the file number, or for an applicant using the Company name box, at https:// www.sec.gov/search/search.htm or by calling (202) 551–8090. SUPPLEMENTARY INFORMATION: E:\FR\FM\06JNN1.SGM 06JNN1 26490 Federal Register / Vol. 84, No. 109 / Thursday, June 6, 2019 / Notices khammond on DSKBBV9HB2PROD with NOTICES Applicants’ Representations 1. The Initial Fund is a Delaware statutory trust that is registered under the Act as a non-diversified, closed-end management investment company. The Initial Fund’s primary investment objective will be to generate appropriate risk-adjusted long-term returns by investing in a diversified portfolio of private equity investments. 2. The Adviser, a Delaware limited liability company, is registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the ‘‘Advisers Act’’). The Adviser will serve as investment adviser to the Initial Fund. 3. Applicants seek an order to permit the Initial Fund to issue multiple classes of shares of beneficial interest with varying sales loads and to impose assetbased distribution and/or service fees and early repurchase fees. 4. Applicants request that the order also apply to any continuously offered registered closed-end management investment company that has been previously organized or that may be organized in the future for which the Adviser, or any entity controlling, controlled by, or under common control with the Adviser, or any successor in interest to any such entity,1 acts as investment adviser and which provides periodic liquidity with respect to its shares pursuant to rule 13e–4 under the Securities Exchange Act of 1934 (each, a ‘‘Future Fund’’ and together with the Initial Fund, the ‘‘Funds’’).2 5. The Initial Fund initially will register a single class of shares (the ‘‘Initial Class’’). Shares of the Initial Fund will be sold only to persons who are ‘‘accredited investors,’’ as defined in Regulation D under the Securities Act of 1933, and ‘‘qualified clients,’’ as defined in the Advisers Act. The Funds will offer their Shares continuously at a price based on net asset value. Shares of the Funds will not be listed on any securities exchange nor quoted on any quotation medium. The Funds do not expect there to be a secondary trading market for their shares. 6. If the requested relief is granted, the Initial Fund intends to redesignate the Initial Class as ‘‘Class I Shares.’’ Additionally, if the requested relief is granted, the Initial Fund currently intends to continuously offer at least 1 A successor in interest is limited to an entity that results from a reorganization into another jurisdiction or a change in the type of business organization. 2 Any Fund relying on this relief in the future will do so in compliance with the terms and conditions of the application. Applicants represent that each entity presently intending to rely on the requested relief is listed as an applicant. VerDate Sep<11>2014 16:11 Jun 05, 2019 Jkt 247001 one additional class of shares, currently contemplated to be named ‘‘Class A Shares.’’ Each of the Class I Shares and Class A shares will have its own fee and expense structure. Additional offerings by any Fund relying on the order may be on a private placement or public offering basis. 7. Applicants state that, from time to time, the Initial Fund may create additional classes of shares, the terms of which may differ between Class I Shares and Class A Shares pursuant to and in compliance with rule 18f–3 under the Act. 8. Applicants state that shares of a Fund may be subject to an early repurchase fee (‘‘Early Repurchase Fee’’) at a rate of no greater than 2% of the shareholder’s repurchase proceeds if the interval between the date of purchase of the shares and the valuation date with respect to the repurchase of those shares is less than one year.3 Any Early Repurchase Fee will apply equally to all classes of shares of a Fund, consistent with section 18 of the Act and rule 18f– 3 thereunder. To the extent a Fund determines to waive, impose scheduled variations of, or eliminate any Early Repurchase Fee, it will do so consistently with the requirements of rule 22d–1 under the Act as if the Early Repurchase Fee were a CDSL and as if the Fund were an open-end investment company and the Fund’s waiver of, scheduled variation in, or elimination of, any such Early Repurchase Fee will apply uniformly to all shareholders of the Fund regardless of class. Applicants state that the Initial Fund intends to impose an Early Repurchase Fee of 2%. 9. Applicants represent that any assetbased service and/or distribution fees for each class of shares of the Funds will comply with the provisions of the FINRA Rule 2341(d) (‘‘FINRA Sales Charge Rule’’).4 Applicants also represent that each Fund will disclose in its prospectus the fees, expenses and other characteristics of each class of shares offered for sale by the prospectus, as is required for open-end multiple class funds under Form N–1A. As is required for open-end funds, each Fund will disclose its expenses in shareholder 3 Applicants state that an Early Repurchase Fee charged by a Fund is not the same as a contingent deferred sales load (‘‘CDSL’’) assessed by an openend fund pursuant to rule 6c–10 under the Act, as CDSLs are distribution-related charges payable to a distributor, whereas the Early Repurchase Fee is payable to the Fund to compensate long-term shareholders for the expenses related to shorter term investors, in light of the Fund’s generally longer-term investment horizons and investment operations. 4 Any reference to the FINRA Sales Charge Rule includes any successor or replacement to the FINRA Sales Charge Rule. PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 reports, and describe any arrangements that result in breakpoints in or elimination of sales loads in its prospectus.5 In addition, applicants will comply with applicable enhanced fee disclosure requirements for fund of funds, including registered funds of hedge funds.6 10. Each of the Funds will comply with any requirements that the Commission or FINRA may adopt regarding disclosure at the point of sale and in transaction confirmations about the costs and conflicts of interest arising out of the distribution of open-end investment company shares, and regarding prospectus disclosure of sales loads and revenue sharing arrangements, as if those requirements applied to the Fund. In addition, each Fund will contractually require that any distributor of the Fund’s shares comply with such requirements in connection with the distribution of such Fund’s shares. Applicants’ Legal Analysis Multiple Classes of Shares 1. Section 18(a)(2) of the Act provides that a closed-end investment company may not issue or sell a senior security that is a stock unless certain requirements are met. Applicants state that the creation of multiple classes of shares of the Funds may violate section 18(a)(2) because the Funds may not meet such requirements with respect to a class of shares that may be a senior security. 2. Section 18(c) of the Act provides, in relevant part, that a closed-end investment company may not issue or sell any senior security if, immediately thereafter, the company has outstanding more than one class of senior security. Applicants state that the creation of multiple classes of shares of the Funds may be prohibited by section 18(c), as a class may have priority over another class as to payment of dividends because shareholders of different classes would pay different fees and expenses. 3. Section 18(i) of the Act provides that each share of stock issued by a 5 See Shareholder Reports and Quarterly Portfolio Disclosure of Registered Management Investment Companies, Investment Company Act Release No. 26372 (Feb. 27, 2004) (adopting release) (requiring open-end investment companies to disclose fund expenses in shareholder reports); and Disclosure of Breakpoint Discounts by Mutual Funds, Investment Company Act Release No. 26464 (June 7, 2004) (adopting release) (requiring open-end investment companies to provide prospectus disclosure of certain sales load information). 6 Fund of Funds Investments, Investment Company Act Rel. Nos. 26198 (Oct. 1, 2003) (proposing release) and 27399 (Jun. 20, 2006) (adopting release). See also Rules 12d1–1, et seq. of the Act. E:\FR\FM\06JNN1.SGM 06JNN1 Federal Register / Vol. 84, No. 109 / Thursday, June 6, 2019 / Notices khammond on DSKBBV9HB2PROD with NOTICES registered management investment company will be a voting stock and have equal voting rights with every other outstanding voting stock. Applicants state that multiple classes of shares of the Funds may violate section 18(i) of the Act because each class would be entitled to exclusive voting rights with respect to matters solely related to that class. 4. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction or any class or classes of persons, securities or transactions from any provision of the Act, or from any rule or regulation under the Act, if and to the extent 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 request an exemption under section 6(c) from sections 18(a)(2), 18(c) and 18(i) to permit the Funds to issue multiple classes of shares. 5. Applicants submit that the proposed allocation of expenses relating to distribution and voting rights among multiple classes is equitable and will not discriminate against any group or class of shareholders. Applicants submit that the proposed arrangements would permit a Fund to facilitate the distribution of its securities and provide investors with a broader choice of shareholder services. Applicants assert that the proposed closed-end investment company multiple class structure does not raise the concerns underlying section 18 of the Act to any greater degree than open-end investment companies’ multiple class structures that are permitted by rule 18f–3 under the Act. Applicants state that each Fund will comply with the provisions of rule 18f–3 as if it were an open-end investment company. Asset-Based Distribution and/or Service Fees 1. Section 17(d) of the Act and rule 17d–1 under the Act prohibit an affiliated person of a registered investment company, or an affiliated person of such person, acting as principal, from participating in or effecting any transaction in connection with any joint enterprise or joint arrangement in which the investment company participates unless the Commission issues an order permitting the transaction. In reviewing applications submitted under section 17(d) and rule 17d–1, the Commission considers whether the participation of the investment company in a joint enterprise or joint arrangement is consistent with the provisions, policies VerDate Sep<11>2014 16:11 Jun 05, 2019 Jkt 247001 and purposes of the Act, and the extent to which the participation is on a basis different from or less advantageous than that of other participants. 2. Rule 17d–3 under the Act provides an exemption from section 17(d) and rule 17d–1 to permit open-end investment companies to enter into distribution arrangements pursuant to rule 12b–1 under the Act. Applicants request an order under section 17(d) and rule 17d–1 under the Act to the extent necessary to permit the Fund to impose asset-based distribution and/or service fees. Applicants have agreed to comply with rules 12b–1 and 17d–3 as if those rules applied to closed-end investment companies, which they believe will resolve any concerns that might arise in connection with a Fund financing the distribution of its shares through assetbased distribution fees. 3. For the reasons stated above, applicants submit that the exemptions requested under section 6(c) are necessary and appropriate in the public interest and are consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants also state that the Funds’ imposition of assetbased distribution and/or service fees is consistent with the provisions, policies and purposes of the Act and does not involve participation on a basis different from or less advantageous than that of other participants. Applicants’ Condition Applicants agree that any order granting the requested relief will be subject to the following condition: Each Fund relying on the order will comply with the provisions of rules 6c– 10, 12b–1, 17d–3, 18f–3, 22d–1, and, where applicable, 11a–3 under the Act, as amended from time to time, as if those rules applied to closed-end management investment companies, and will comply with the FINRA Sales Charge Rule, as amended from time to time, as if that rule applied to all closedend management investment companies. For the Commission, by the Division of Investment Management, under delegated authority. Eduardo A. Aleman, Deputy Secretary. 26491 SECURITIES AND EXCHANGE COMMISSION [Release No. 34–85978; File No. 013–00140] Initial Form ATS–N Filing; Notice of Extension of Commission Review Period May 31, 2019. On February 13, 2019, Virtu MatchIt ATS filed an initial Form ATS–N (‘‘Form ATS–N’’) with the Securities and Exchange Commission (‘‘Commission’’). Pursuant to Rule 304 under the Securities and Exchange Act of 1934 (‘‘Act’’), the Commission may, after notice and an opportunity for hearing, declare an initial Form ATS–N ineffective no later than 120 days from the date of filing with the Commission, or, if applicable, the extended review period. June 13, 2019 is 120 calendar days from the date of filing. Pursuant to Rule 304(a)(1)(iv)(B), the Commission may extend the initial Form ATS–N review period for up to an additional 120 calendar days if the initial Form ATS–N is unusually lengthy or raises novel or complex issues that require additional time for review. Virtu MatchIt ATS was operating pursuant to an initial operation report on Form ATS on file with the Commission as of January 7, 2019.1 Virtu MatchIt ATS filed an initial Form ATS–N on February 13, 2019. During the initial 120 calendar day review period, the Commission staff has been reviewing the disclosures on Virtu MatchIt ATS’s initial Form ATS–N. In addition, the staff has been engaged in ongoing discussions with Virtu MatchIt ATS about its disclosures and manner of operations, as well as the requirements of Form ATS–N, to facilitate complete and comprehensible disclosures that reflect the complexities of those operations. Form ATS–N requires NMS Stock ATSs to file with the Commission, and disclose to the public for the first time, certain information, including descriptions by the NMS Stock ATSs of their fees, the trading activities by their broker-dealer operators and their affiliates in the NMS Stock ATSs, their use of market data, their written standards for granting access to trading on the NMS Stock ATSs, and their written safeguards and procedures for protecting their subscribers’ confidential trading information required by revised Rule 301(b)(10) of Regulation ATS. The [FR Doc. 2019–11793 Filed 6–5–19; 8:45 am] 1 An NMS Stock ATS (as defined in Rule 300(k) of Regulation ATS) that was operating pursuant to an initial operation report on Form ATS on file with the Commission as of January 7, 2019 is a ‘‘Legacy NMS Stock ATS.’’ 17 CFR 242.301(b)(2)(viii). BILLING CODE 8011–01–P PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 E:\FR\FM\06JNN1.SGM 06JNN1

Agencies

[Federal Register Volume 84, Number 109 (Thursday, June 6, 2019)]
[Notices]
[Pages 26489-26491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11793]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 33497; 812-14915]


Cresset Private Markets Opportunity Fund and Cresset SPG, LLC

May 31, 2019.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

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    Notice of an application under section 6(c) of the Investment 
Company Act of 1940 (the ``Act'') for an exemption from sections 
18(a)(2), 18(c) and 18(i) of the Act, and for an order pursuant to 
section 17(d) of the Act and rule 17d-1 under the Act.

Summary of Application: Applicants request an order to permit certain 
registered closed-end management investment companies to issue multiple 
classes of shares of beneficial interest with varying sales loads and 
to impose asset-based distribution and/or service fees.

Applicants: Cresset Private Markets Opportunity Fund (the ``Initial 
Fund'') and Cresset SPG, LLC (the ``Adviser'').

Filing Dates: The application was filed on June 6, 2018, and amended on 
February 1, 2019.

Hearing or Notification of Hearing: An order granting the requested 
relief will be issued unless the Commission orders a hearing. 
Interested persons may request a hearing by writing to the Commission's 
Secretary and serving applicants with a copy of the request, personally 
or by mail. Hearing requests should be received by the Commission by 
5:30 p.m. on June 25, 2019, and should be accompanied by proof of 
service on the applicants, in the form of an affidavit, or, for 
lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, 
hearing requests should state the nature of the writer's interest, any 
facts bearing upon the desirability of a hearing on the matter, 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, 444 W Lake Street, 
Suite 4700, Chicago, IL 60606.

FOR FURTHER INFORMATION CONTACT: Christine Y. Greenlees, Senior 
Counsel, at (202) 551-6871, or Andrea Ottomanelli Magovern, Branch 
Chief, 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 website by searching for the file number, or for an 
applicant using the Company name box, at https://www.sec.gov/search/search.htm or by calling (202) 551-8090.

[[Page 26490]]

Applicants' Representations

    1. The Initial Fund is a Delaware statutory trust that is 
registered under the Act as a non-diversified, closed-end management 
investment company. The Initial Fund's primary investment objective 
will be to generate appropriate risk-adjusted long-term returns by 
investing in a diversified portfolio of private equity investments.
    2. The Adviser, a Delaware limited liability company, is registered 
as an investment adviser under the Investment Advisers Act of 1940, as 
amended (the ``Advisers Act''). The Adviser will serve as investment 
adviser to the Initial Fund.
    3. Applicants seek an order to permit the Initial Fund to issue 
multiple classes of shares of beneficial interest with varying sales 
loads and to impose asset-based distribution and/or service fees and 
early repurchase fees.
    4. Applicants request that the order also apply to any continuously 
offered registered closed-end management investment company that has 
been previously organized or that may be organized in the future for 
which the Adviser, or any entity controlling, controlled by, or under 
common control with the Adviser, or any successor in interest to any 
such entity,\1\ acts as investment adviser and which provides periodic 
liquidity with respect to its shares pursuant to rule 13e-4 under the 
Securities Exchange Act of 1934 (each, a ``Future Fund'' and together 
with the Initial Fund, the ``Funds'').\2\
---------------------------------------------------------------------------

    \1\ A successor in interest is limited to an entity that results 
from a reorganization into another jurisdiction or a change in the 
type of business organization.
    \2\ Any Fund relying on this relief in the future will do so in 
compliance with the terms and conditions of the application. 
Applicants represent that each entity presently intending to rely on 
the requested relief is listed as an applicant.
---------------------------------------------------------------------------

    5. The Initial Fund initially will register a single class of 
shares (the ``Initial Class''). Shares of the Initial Fund will be sold 
only to persons who are ``accredited investors,'' as defined in 
Regulation D under the Securities Act of 1933, and ``qualified 
clients,'' as defined in the Advisers Act. The Funds will offer their 
Shares continuously at a price based on net asset value. Shares of the 
Funds will not be listed on any securities exchange nor quoted on any 
quotation medium. The Funds do not expect there to be a secondary 
trading market for their shares.
    6. If the requested relief is granted, the Initial Fund intends to 
redesignate the Initial Class as ``Class I Shares.'' Additionally, if 
the requested relief is granted, the Initial Fund currently intends to 
continuously offer at least one additional class of shares, currently 
contemplated to be named ``Class A Shares.'' Each of the Class I Shares 
and Class A shares will have its own fee and expense structure. 
Additional offerings by any Fund relying on the order may be on a 
private placement or public offering basis.
    7. Applicants state that, from time to time, the Initial Fund may 
create additional classes of shares, the terms of which may differ 
between Class I Shares and Class A Shares pursuant to and in compliance 
with rule 18f-3 under the Act.
    8. Applicants state that shares of a Fund may be subject to an 
early repurchase fee (``Early Repurchase Fee'') at a rate of no greater 
than 2% of the shareholder's repurchase proceeds if the interval 
between the date of purchase of the shares and the valuation date with 
respect to the repurchase of those shares is less than one year.\3\ Any 
Early Repurchase Fee will apply equally to all classes of shares of a 
Fund, consistent with section 18 of the Act and rule 18f-3 thereunder. 
To the extent a Fund determines to waive, impose scheduled variations 
of, or eliminate any Early Repurchase Fee, it will do so consistently 
with the requirements of rule 22d-1 under the Act as if the Early 
Repurchase Fee were a CDSL and as if the Fund were an open-end 
investment company and the Fund's waiver of, scheduled variation in, or 
elimination of, any such Early Repurchase Fee will apply uniformly to 
all shareholders of the Fund regardless of class. Applicants state that 
the Initial Fund intends to impose an Early Repurchase Fee of 2%.
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    \3\ Applicants state that an Early Repurchase Fee charged by a 
Fund is not the same as a contingent deferred sales load (``CDSL'') 
assessed by an open-end fund pursuant to rule 6c-10 under the Act, 
as CDSLs are distribution-related charges payable to a distributor, 
whereas the Early Repurchase Fee is payable to the Fund to 
compensate long-term shareholders for the expenses related to 
shorter term investors, in light of the Fund's generally longer-term 
investment horizons and investment operations.
---------------------------------------------------------------------------

    9. Applicants represent that any asset-based service and/or 
distribution fees for each class of shares of the Funds will comply 
with the provisions of the FINRA Rule 2341(d) (``FINRA Sales Charge 
Rule'').\4\ Applicants also represent that each Fund will disclose in 
its prospectus the fees, expenses and other characteristics of each 
class of shares offered for sale by the prospectus, as is required for 
open-end multiple class funds under Form N-1A. As is required for open-
end funds, each Fund will disclose its expenses in shareholder reports, 
and describe any arrangements that result in breakpoints in or 
elimination of sales loads in its prospectus.\5\ In addition, 
applicants will comply with applicable enhanced fee disclosure 
requirements for fund of funds, including registered funds of hedge 
funds.\6\
---------------------------------------------------------------------------

    \4\ Any reference to the FINRA Sales Charge Rule includes any 
successor or replacement to the FINRA Sales Charge Rule.
    \5\ See Shareholder Reports and Quarterly Portfolio Disclosure 
of Registered Management Investment Companies, Investment Company 
Act Release No. 26372 (Feb. 27, 2004) (adopting release) (requiring 
open-end investment companies to disclose fund expenses in 
shareholder reports); and Disclosure of Breakpoint Discounts by 
Mutual Funds, Investment Company Act Release No. 26464 (June 7, 
2004) (adopting release) (requiring open-end investment companies to 
provide prospectus disclosure of certain sales load information).
    \6\ Fund of Funds Investments, Investment Company Act Rel. Nos. 
26198 (Oct. 1, 2003) (proposing release) and 27399 (Jun. 20, 2006) 
(adopting release). See also Rules 12d1-1, et seq. of the Act.
---------------------------------------------------------------------------

    10. Each of the Funds will comply with any requirements that the 
Commission or FINRA may adopt regarding disclosure at the point of sale 
and in transaction confirmations about the costs and conflicts of 
interest arising out of the distribution of open-end investment company 
shares, and regarding prospectus disclosure of sales loads and revenue 
sharing arrangements, as if those requirements applied to the Fund. In 
addition, each Fund will contractually require that any distributor of 
the Fund's shares comply with such requirements in connection with the 
distribution of such Fund's shares.

Applicants' Legal Analysis

Multiple Classes of Shares

    1. Section 18(a)(2) of the Act provides that a closed-end 
investment company may not issue or sell a senior security that is a 
stock unless certain requirements are met. Applicants state that the 
creation of multiple classes of shares of the Funds may violate section 
18(a)(2) because the Funds may not meet such requirements with respect 
to a class of shares that may be a senior security.
    2. Section 18(c) of the Act provides, in relevant part, that a 
closed-end investment company may not issue or sell any senior security 
if, immediately thereafter, the company has outstanding more than one 
class of senior security. Applicants state that the creation of 
multiple classes of shares of the Funds may be prohibited by section 
18(c), as a class may have priority over another class as to payment of 
dividends because shareholders of different classes would pay different 
fees and expenses.
    3. Section 18(i) of the Act provides that each share of stock 
issued by a

[[Page 26491]]

registered management investment company will be a voting stock and 
have equal voting rights with every other outstanding voting stock. 
Applicants state that multiple classes of shares of the Funds may 
violate section 18(i) of the Act because each class would be entitled 
to exclusive voting rights with respect to matters solely related to 
that class.
    4. Section 6(c) of the Act provides that the Commission may exempt 
any person, security or transaction or any class or classes of persons, 
securities or transactions from any provision of the Act, or from any 
rule or regulation under the Act, if and to the extent 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 request an exemption under 
section 6(c) from sections 18(a)(2), 18(c) and 18(i) to permit the 
Funds to issue multiple classes of shares.
    5. Applicants submit that the proposed allocation of expenses 
relating to distribution and voting rights among multiple classes is 
equitable and will not discriminate against any group or class of 
shareholders. Applicants submit that the proposed arrangements would 
permit a Fund to facilitate the distribution of its securities and 
provide investors with a broader choice of shareholder services. 
Applicants assert that the proposed closed-end investment company 
multiple class structure does not raise the concerns underlying section 
18 of the Act to any greater degree than open-end investment companies' 
multiple class structures that are permitted by rule 18f-3 under the 
Act. Applicants state that each Fund will comply with the provisions of 
rule 18f-3 as if it were an open-end investment company.

Asset-Based Distribution and/or Service Fees

    1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
an affiliated person of a registered investment company, or an 
affiliated person of such person, acting as principal, from 
participating in or effecting any transaction in connection with any 
joint enterprise or joint arrangement in which the investment company 
participates unless the Commission issues an order permitting the 
transaction. In reviewing applications submitted under section 17(d) 
and rule 17d-1, the Commission considers whether the participation of 
the investment company in a joint enterprise or joint arrangement is 
consistent with the provisions, policies and purposes of the Act, and 
the extent to which the participation is on a basis different from or 
less advantageous than that of other participants.
    2. Rule 17d-3 under the Act provides an exemption from section 
17(d) and rule 17d-1 to permit open-end investment companies to enter 
into distribution arrangements pursuant to rule 12b-1 under the Act. 
Applicants request an order under section 17(d) and rule 17d-1 under 
the Act to the extent necessary to permit the Fund to impose asset-
based distribution and/or service fees. Applicants have agreed to 
comply with rules 12b-1 and 17d-3 as if those rules applied to closed-
end investment companies, which they believe will resolve any concerns 
that might arise in connection with a Fund financing the distribution 
of its shares through asset-based distribution fees.
    3. For the reasons stated above, applicants submit that the 
exemptions requested under section 6(c) are necessary and appropriate 
in the public interest and are consistent with the protection of 
investors and the purposes fairly intended by the policy and provisions 
of the Act. Applicants also state that the Funds' imposition of asset-
based distribution and/or service fees is consistent with the 
provisions, policies and purposes of the Act and does not involve 
participation on a basis different from or less advantageous than that 
of other participants.

Applicants' Condition

    Applicants agree that any order granting the requested relief will 
be subject to the following condition:
    Each Fund relying on the order will comply with the provisions of 
rules 6c-10, 12b-1, 17d-3, 18f-3, 22d-1, and, where applicable, 11a-3 
under the Act, as amended from time to time, as if those rules applied 
to closed-end management investment companies, and will comply with the 
FINRA Sales Charge Rule, as amended from time to time, as if that rule 
applied to all closed-end management investment companies.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019-11793 Filed 6-5-19; 8:45 am]
BILLING CODE 8011-01-P
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