
[Federal Register: August 7, 2008 (Volume 73, Number 153)]
[Notices]               
[Page 46066-46073]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07au08-105]                         

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 28350; 812-13425]

 
Javelin Exchange-Traded Trust, et al.; Notice of Application

July 31, 2008.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 6(c) of the 
Investment Company Act of 1940 (the ``Act'') for an exemption from 
sections 2(a)(32), 5(a)(1), 22(d), 22(e) and 24(d) of the Act and rule 
22c-1 under the Act, under section 12(d)(1)(J) for an exemption from 
sections 12(d)(1)(A) and (B) of the Act, and under sections 6(c) and 
17(b) of the Act for an exemption from sections 17(a)(1) and (a)(2) of 
the Act.

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Summary of Application: Applicants request an order that would permit 
(a) series of open-end management investment companies to issue shares 
(``Fund Shares'') that can be redeemed only in large aggregations 
(``Creation Unit Aggregations''); (b) secondary market transactions in 
Fund Shares to occur at negotiated prices; (c) dealers to sell Fund 
Shares to purchasers in the secondary market unaccompanied by a 
prospectus when prospectus delivery is not required by the Securities 
Act of 1933 (``Securities Act''); (d) certain series to pay redemption 
proceeds, under certain circumstances, more than seven days after the 
tender of a Creation Unit Aggregation for redemption; (e) certain 
affiliated persons of the series to deposit securities into, and 
receive securities from, the series in connection with the purchase and 
redemption of Creation Unit Aggregations; and (f) certain registered 
management investment companies and unit investment trusts outside of 
the same group of investment companies as the series to acquire Fund 
Shares.

Applicants: Javelin Exchange-Traded Trust (the ``Trust''), Javelin 
Investment Management, LLC (the ``Adviser'') and ALPS Distributors, 
Inc. (the ``Distributor'').

Filing Dates: The application was filed on September 21, 2007, and 
amended on May 9, 2008 and July 31, 2008.

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 August 25, 2008, 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, c/o Brinton W. 
Frith, Javelin Investment Management, LLC, 338 The Great Road, 
Princeton, NJ 08540.

FOR FURTHER INFORMATION CONTACT: John Yoder, Senior Counsel, at (202) 
551-6878, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division 
of Investment Management, Office of Investment Company Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained for a fee at the 
Public Reference Room, U.S. Securities and Exchange Commission, 100 F 
Street, NE., Washington, DC 20549-1520, telephone (202) 551-5850.

[[Page 46067]]

Applicants' Representations

    1. The Trust is an open-end management investment company 
registered under the Act and is organized as a Delaware statutory 
trust. The Trust will offer Fund Shares of the Javelin DJ Latin America 
Index Fund (the ``Initial Index Fund''), a series of the Trust, which 
will track an index of selected Latin American equity securities. 
Applicants may establish one or more registered investment companies in 
the future (``Future Funds,'' collectively with the Initial Index Fund, 
``Funds''), which will be advised by the Adviser or an entity 
controlled by or under common control with the Adviser.\1\
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    \1\ All existing entities that intend to rely on the requested 
order have been named as applicants. Any other existing or future 
entity that subsequently relies on the order will comply with the 
terms and conditions of the application.
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    2. The Adviser will serve as the investment adviser to the Initial 
Index Fund. The Adviser is registered as an investment adviser under 
the Investment Advisers Act of 1940 (``Advisers Act''). In the future, 
the Adviser may enter into sub-advisory agreements with other 
investment advisers to act as sub-advisers (``Sub-Advisers'') with 
respect to the Funds. Any Sub-Adviser will be registered under the 
Advisers Act. The Distributor, a broker-dealer (``Broker'') registered 
under the Securities Exchange Act of 1934 (the ``Exchange Act''), will 
serve as the principal underwriter and distributor for the Initial 
Index Fund. The Distributor is not affiliated with the Adviser or any 
Sub-Adviser.
    3. Each Fund will hold certain equity securities (``Portfolio 
Securities'') selected to correspond generally to the price and yield 
performance, before fees and expenses, of a specified equity securities 
index (an ``Underlying Index''). Each Underlying Index will be 
comprised of equity securities issued by (a) domestic issuers and non-
domestic issuers meeting the requirements for trading in U.S. markets 
(``Domestic Index''), or (b) foreign equity securities (``Foreign 
Index''). No entity that creates, compiles, sponsors or maintains an 
Underlying Index (an ``Index Provider'') is or will be an affiliated 
person, as defined in section 2(a)(3) of the Act, or an affiliated 
person of an affiliated person, of the Trust, the Adviser, the 
Distributor, promoter or any Sub-Adviser to a Fund.
    4. The investment objective of each Fund will be to provide 
investment results that correspond generally to the price and yield 
performance, before fees and expenses, of its Underlying Index. Intra-
day values of the Underlying Index will be disseminated every 15 
seconds throughout the trading day. A Fund will utilize either a 
``replication'' or ``representative sampling'' strategy.\2\ A Fund 
using a ``replication'' strategy will invest in substantially all of 
the Component Securities in its Underlying Index in approximately the 
same weightings as in the Underlying Index. In certain circumstances, 
such as when there are practical difficulties or substantial costs 
involved in holding every security in an Underlying Index or when a 
Component Security is illiquid, a Fund may use a ``representative 
sampling'' strategy pursuant to which it will invest in some, but not 
all, of the relevant Component Securities.\3\ Applicants anticipate 
that a Fund that utilizes a ``representative sampling'' strategy will 
not track the performance of its Underlying Index with the same degree 
of accuracy as an investment vehicle that invests in every Component 
Security of the Underlying Index in the same weighting as the 
Underlying Index. Applicants expect that each Fund will have a tracking 
error relative to the performance of its Underlying Index of less than 
5 percent.
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    \2\ Applicants represent that a Fund will normally invest at 
least 90% of its total assets in the component securities that 
comprise its Underlying Index (``Component Securities'') or, in the 
case of Funds that track a Foreign Index (``Foreign Funds''), 
Component Securities and depositary receipts representing such 
securities. Each Fund also may invest up to 10% of its assets in 
certain futures, options and swap contracts, cash and cash 
equivalents, as well as in stocks not included in its Underlying 
Index, but which the Adviser believes will help the Fund track its 
Underlying Index.
    \3\ Under the ``representative sampling'' strategy, the Adviser 
will seek to construct a Fund's portfolio so that its market 
capitalization, industry weighting, fundamental investment 
characteristics (such as return variability, earnings valuation and 
yield) and liquidity measures perform like those of the Underlying 
Index.
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    5. Fund Shares will be sold at a price between $20 and $300 per 
Fund Share in Creation Unit Aggregations of 50,000 to 100,000 Fund 
Shares. All orders to purchase Creation Unit Aggregations must be 
placed with the Distributor by or through a party that has entered into 
an agreement with the Distributor (``Authorized Participant''). An 
Authorized Participant must be either: (a) A broker-dealer or other 
participant in the continuous net settlement system of the National 
Securities Clearing Corporation (``NSCC''), a clearing agency 
registered with the Commission, or (b) a participant in the Depository 
Trust Company (``DTC,'' and such participant, ``DTC Participant''). 
Fund Shares generally will be sold in Creation Unit Aggregations in 
exchange for an in-kind deposit by the purchaser of a portfolio of 
securities designated by the Adviser or the Sub-Adviser to correspond 
generally to the price and yield performance of the relevant Underlying 
Index (the ``Deposit Securities''), together with the deposit of a 
specified cash payment (``Balancing Amount''). The Balancing Amount is 
generally an amount equal to the difference between (a) the net asset 
value (``NAV'') (per Creation Unit Aggregation) of the Fund and (b) the 
total aggregate market value (per Creation Unit Aggregation) of the 
Deposit Securities.\4\ Applicants state that in some circumstances, it 
may not be practicable or convenient for a Fund to operate exclusively 
on an ``in-kind'' basis. The Trust reserves the right to permit, under 
certain circumstances, a purchaser of Creation Unit Aggregations to 
substitute cash in lieu of depositing some or all of the requisite 
Deposit Securities.
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    \4\ The Trust will sell Creation Unit Aggregations of each fund 
on any day that the New York Stock Exchange, the American Stock 
Exchange (``AMEX''), a Fund, and the custodian are open for 
business, including as required by section 22(e) of the Act (a 
``Business Day''). Each Business Day, prior to the opening of 
trading on the Exchange (defined below), the list of names and 
amount of each securities constituting the current Deposit 
Securities and the Balancing Amount, effective as of the previous 
Business Day, will be made available. Any national securities 
exchange as defined in section 2(a)(26) of the Act (each, an 
``Exchange'') on which Fund Shares are listed will disseminate, 
every 15 seconds during its regular trading hours, through the 
facilities of the Consolidated Tape Association, an amount per Fund 
Share representing the sum of the estimated Balancing Amount and the 
current value of the Deposit Securities.
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    6. An investor purchasing a Creation Unit Aggregation from a Fund 
will be charged a fee (``Transaction Fee'') to prevent the dilution of 
the interests of the remaining shareholders resulting from costs in 
connection with the purchase of Creation Unit Aggregations.\5\ The 
exact amounts of Transaction Fees relevant to each Fund (including the 
maximum Transaction Fees) will be fully disclosed in the prospectus of 
such Fund (``Fund's Prospectus''), and the method for calculating the 
Transaction Fees will be disclosed in each Fund's Prospectus or 
statement of additional information (``SAI''). All orders to purchase 
Creation Unit Aggregations will be placed with the Distributor by or 
through an Authorized Participant, and it will be the Distributor's 
responsibility to

[[Page 46068]]

transmit such orders to the Funds. The Distributor also will be 
responsible for delivering a Fund's Prospectus to those persons 
purchasing Creation Unit Aggregations, and for maintaining records of 
both the orders placed with it and the confirmations of acceptance 
furnished by it. In addition, the Distributor will maintain a record of 
the instructions given to the Fund to implement the delivery of Fund 
Shares.
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    \5\ Where a Fund permits a purchaser to substitute cash in lieu 
of depositing a portion of the requisite Deposit Securities, the 
purchaser may be assessed a higher Transaction Fee to cover the cost 
of purchasing such Deposit Securities, including brokerage costs, 
and part or all of the spread between the expected bid and the offer 
side of the market relating to such Deposit Securities.
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    7. Purchasers of Fund Shares in Creation Unit Aggregations may hold 
such Fund Shares or may sell such Fund Shares into the secondary 
market. Fund Shares of the Initial Index Fund will be listed and traded 
on the AMEX; Fund Shares of Future Funds will be listed and traded on 
an Exchange. It is expected that one or more member firms of a listing 
Exchange will be designated to act as a specialist and maintain a 
market for Fund Shares on the Exchange (a ``Specialist''), or if NASDAQ 
is the listing Exchange, one or more member firms of NASDAQ will act as 
a market maker (``Market Maker'') and maintain a market for Fund 
Shares.\6\ Prices of Fund Shares trading on an Exchange will be based 
on the current bid/offer market. Fund Shares sold in the secondary 
market will be subject to customary brokerage commissions and charges.
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    \6\ If Fund Shares are listed on NASDAQ, no particular Market 
maker will be contractually obligated to make a market in Fund 
Shares, although NASDAQ's listing requirements stipulate that at 
least two Market Makers must be registered as Market Makers in Fund 
Shares to maintain the listing. Registered Market makers are 
required to make a continuous, two-sided market at all times or be 
subject to regulatory sanctions.
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    8. Applicants expect that purchasers of Creation Unit Aggregations 
will include institutional investors and arbitrageurs (which could 
include institutional investors). A Specialist, or Market Maker, in 
providing a fair and orderly secondary market for the Fund Shares, also 
may purchase Creation Unit Aggregations for use in its market-making 
activities. Applicants expect that secondary market purchasers of Fund 
Shares will include both institutional investors and retail 
investors.\7\ Applicants expect that the price at which Fund Shares 
trade will be disciplined by arbitrage opportunities created by the 
ability to continually purchase or redeem Creation Unit Aggregations at 
their NAV, which should ensure that Fund Shares will not trade at a 
material discount or premium in relation to their NAV.
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    \7\ Fund Shares will be registered in book-entry form only. DTC 
or its nominee will be the registered owner of all outstanding Fund 
Shares. DTC or DTC Participants will maintain records reflecting 
beneficial owners of Fund Shares.
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    9. Fund Shares will not be individually redeemable, and owners of 
Fund Shares may acquire those Fund Shares from the Fund, or tender such 
Fund Shares for redemption to the Fund, in Creation Unit Aggregations 
only. To redeem, an investor will have to accumulate enough Fund Shares 
to constitute a Creation Unit Aggregation. Redemption orders must be 
placed by or through an Authorized Participant. An investor redeeming a 
Creation Unit Aggregation generally will receive (a) a portfolio of 
securities designated to be delivered for Creation Unit Aggregation 
redemptions on the date that the request for redemption is submitted 
(``Fund Securities''), which may not be identical to the Deposit 
Securities required to purchase Creation Unit Aggregations on that 
date, and (b) a ``Cash Redemption Payment,'' consisting of an amount 
calculated in the same manner as the Balancing Amount, although the 
actual amount of the Cash Redemption Payment may differ from the 
Balancing Amount if the Fund Securities are not identical to the 
Deposit Securities on that day.\8\ An investor may receive the cash 
equivalent of a Fund Security in certain circumstances, such as if the 
investor is constrained from effecting transactions in the security by 
regulation or policy. A redeeming investor will be subject to a 
Transaction Fee, calculated in the same manner as a Transaction Fee 
payable in connection with purchases of Creation Unit Aggregations.
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    \8\ The Funds will comply with the federal securities laws in 
accepting Deposit Securities and satisfying redemptions with Fund 
Shares, including with the Deposit Securities and Fund Securities 
are sold in transactions that would be exempt from registration 
under the Securities Act. As a general matter, the Deposit 
Securities and Fund Securities will correspond pro rata to the 
securities held by each Fund.
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    10. Neither the Trust nor any individual Fund will be marketed or 
otherwise held out as an ``open-end investment company'' or a ``mutual 
fund.'' Instead, each Fund will be marketed as an ``exchange-traded 
fund,'' an ``investment company,'' a ``fund,'' or a ``trust.'' All 
marketing materials that describe the features or method of obtaining, 
buying or selling Fund Shares, or refer to redeemability, will 
prominently disclose that Fund Shares are not individually redeemable 
and that the owners of Fund Shares may purchase or redeem Fund Shares 
from the Fund in Creation Unit Aggregations only. The same approach 
will be followed in the SAI, shareholder reports and investor 
educational materials issued or circulated in connection with the Fund 
Shares. The Funds will provide copies of their annual and semi-annual 
shareholder reports to DTC Participants for distribution to beneficial 
owners of Fund Shares.

Applicants' Legal Analysis

    1. Applicants request an order under section 6(c) of the Act for an 
exemption from sections 2(a)(32), 5(a)(1), 22(d), 22(e), and 24(d) of 
the Act and rule 22c-1 under the Act, under section 12(d)(1)(J) for an 
exemption from sections 12(d)(1)(A) and (B) of the Act, and under 
sections 6(c) and 17(b) of the Act for an exemption from sections 
17(a)(1) and 17(a)(2) of the Act.
    2. Section 6(c) of the Act provides that the Commission may exempt 
any person, security or transaction, or any class of persons, 
securities or transactions, from any provision of the Act, if and to 
the extent that 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. 
Section 17(b) of the Act authorizes the Commission to exempt a proposed 
transaction from section 17(a) of the Act if evidence establishes that 
the terms of the transaction, including the consideration to be paid or 
received, are reasonable and fair and do not involve overreaching on 
the part of any person concerned, and the proposed transaction is 
consistent with the policies of the registered investment company and 
the general provisions of the Act. Section 12(d)(1)(J) of the Act 
provides that the Commission may exempt any person, security, or 
transaction, or any class or classes of persons, securities or 
transactions, from any provisions of section 12(d)(1) if the exemption 
is consistent with the public interest and the protection of investors.

Sections 5(a)(1) and 2(a)(32) of the Act

    3. Section 5(a)(1) of the Act defines an ``open-end company'' as a 
management investment company that is offering for sale or has 
outstanding any redeemable security of which it is the issuer. Section 
2(a)(32) of the Act defines a redeemable security as any security, 
other than short-term paper, under the terms of which the owner, upon 
its presentation to the issuer, is entitled to receive approximately 
his proportionate share of the issuer's current net assets, or the cash 
equivalent. Because Fund Shares will not be individually redeemable, 
applicants request an order that would permit the Trust to register as 
an open-end management investment company and issue Fund Shares that 
are

[[Page 46069]]

redeemable in Creation Units Aggregations only. Applicants state that 
investors may purchase Fund Shares in Creation Unit Aggregations and 
redeem Creation Unit Aggregations from each Fund. Applicants further 
state that because the market price of Fund Shares will be disciplined 
by arbitrage opportunities, investors should be able to sell Fund 
Shares in the secondary market at prices that do not vary substantially 
from their NAV.

Section 22(d) of the Act and Rule 22c-1 Under the Act

    4. Section 22(d) of the Act, among other things, prohibits a dealer 
from selling a redeemable security, which is currently being offered to 
the public by or through a principal underwriter, except at a current 
public offering price described in the prospectus. Rule 22c-1 under the 
Act generally requires that a dealer selling, redeeming or repurchasing 
a redeemable security do so only at a price based on its NAV. 
Applicants state that secondary market trading in Fund Shares will take 
place at negotiated prices, not at a current offering price described 
in a Fund's Prospectus, and not at a price based on NAV. Thus, 
purchases and sales of Fund Shares in the secondary market will not 
comply with section 22(d) of the Act and rule 22c-1 under the Act. 
Applicants request an exemption under section 6(c) from these 
provisions.
    5. Applicants assert that the concerns sought to be addressed by 
section 22(d) of the Act and rule 22c-1 under the Act with respect to 
pricing are equally satisfied by the proposed method of pricing Fund 
Shares. Applicants maintain that while there is little legislative 
history regarding section 22(d), its provisions, as well as those of 
rule 22c-1, appear to have been designed to (a) prevent dilution caused 
by certain riskless-trading schemes by principal underwriters and 
contract dealers, (b) prevent unjust discrimination or preferential 
treatment among buyers, and (c) ensure an orderly distribution of 
investment company shares by eliminating price competition from dealers 
offering shares at less than the published sales price and repurchasing 
shares at more than the published redemption price.
    6. Applicants believe that none of these purposes will be thwarted 
by permitting Fund Shares to trade in the secondary market at 
negotiated prices. Applicants state that (a) secondary market trading 
in Fund Shares does not involve the Funds as parties and cannot result 
in dilution of an investment in Fund Shares, and (b) to the extent 
different prices exist during a given trading day, or from day to day, 
such variances occur as a result of third-party market forces, such as 
supply and demand. Therefore, applicants assert that secondary market 
transactions in Fund Shares will not lead to discrimination or 
preferential treatment among purchasers. Finally, applicants contend 
that the proposed distribution system will be orderly because 
competitive forces in the marketplace will ensure that the difference 
between the market price of Fund Shares and their NAV remains narrow.

Section 24(d) of the Act

    7. Section 24(d) of the Act provides, in relevant part, that the 
prospectus delivery exemption provided to dealer transactions by 
section 4(3) of the Securities Act does not apply to any transaction in 
a redeemable security issued by an open-end investment company. 
Applicants seek relief from section 24(d) to permit dealers selling 
Fund Shares in the secondary market to rely on the prospectus delivery 
exemption provided by section 4(3) of the Securities Act.\9\
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    \9\ Applicants state that they are not seeking relief from the 
prospectus delivery requirement for non-secondary market 
transactions, such as transactions in which an investor purchases 
Fund Shares from the Trust or an underwriter. Applicants further 
state that each Fund's Prospectus will causation broker-dealers and 
others that some activities on their part, depending on the 
circumstances, may result in their being deemed statutory 
underwriters and subject them to the prospectus delivery and 
liability provisions of the Securities Act. For example, a broker-
dealer firm and/or its client may be deemed a statutory underwriter 
if it purchases Creation Unit Aggregations from a Fund, breaks them 
down into the constituent Fund Shares, and sells those Fund Shares 
directly to customers, or if it chooses to couple the creation of a 
supply of new fund Shares with an active selling effort involving 
solicitation of secondary market demand for Fund Shares. Each Fund's 
Prospectus will state that whether a person is an underwriter 
depends upon all of the facts and circumstances pertaining to that 
person's activities. Each Fund's Prospectus will caution dealers who 
are not ``underwriters'' but are participating in a distribution (as 
contrasted to ordinary secondary market trading transactions), and 
thus dealing with Fund Shares that are part of an ``unsold 
allotment'' within the meaning of section 4(3)(C) of the Securities 
Act, that they would be unable to take advantage of the prospectus 
delivery exemption provided by section 4(3) of the Securities Act.
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    8. Applicants state that Fund Shares are bought and sold in the 
secondary market in the same manner as closed-end fund shares. 
Applicants note that transactions in closed-end fund shares are not 
subject to section 24(d), and thus closed-end fund shares are sold in 
the secondary market without a prospectus. Applicants contend that Fund 
Shares likewise merit a reduction in the unnecessary compliance costs 
and regulatory burdens resulting from the imposition of the prospectus 
delivery obligations in the secondary market. Because Fund Shares will 
be listed on an Exchange, prospective investors will have access to 
information about the product over and above what is normally available 
about an open-end security. Applicants state that information regarding 
market price and volume will be continually available on a real time 
basis throughout the day on brokers' computer screens and other 
electronic services. The previous day's price and volume information 
for Fund Shares will be published daily in the financial section of 
newspapers. In addition, a Web site will be maintained that will 
include each Fund's Prospectus and SAI, the relevant Underlying Index 
for each Fund, and additional quantitative information that is updated 
on a daily basis, including the mid-point of the bid-ask spread at the 
time of the calculation of NAV (``Bid/Ask Price''),\10\ the NAV for 
each Fund, and information about the premiums and discounts at which 
the Fund Shares have traded.
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    \10\ The Bid/Ask Price per Fund Share of a Fund is determined 
using the highest bid and the lowest offer on the Exchange on which 
the Fund Shares are listed.
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    9. Applicants will arrange for broker-dealers selling Fund Shares 
in the secondary market to provide purchasers with a product 
description (``Product Description'') that describes, in plain English, 
the relevant Fund and the Fund Shares it issues. Applicants state that 
a Product Description is not intended to substitute for a full Fund's 
Prospectus. Applicants state that the Product Description will be 
tailored to meet the information needs of investors purchasing Fund 
Shares in the secondary market.

Section 22(e)

    10. Section 22(e) generally prohibits a registered investment 
company from suspending the right of redemption or postponing the date 
of payment of redemption proceeds for more than seven days after the 
tender of a security for redemption. The principal reason for the 
requested exemption is that settlement of redemptions for the Foreign 
Funds is contingent not only on the settlement cycle of the United 
States market, but also on currently practicable delivery cycles in 
local markets for underlying foreign securities held by the Foreign 
Funds. Applicants state that local market delivery cycles for 
transferring certain foreign securities to investors redeeming Creation 
Unit Aggregations, together with local market holiday schedules, will 
under certain circumstances require a delivery process in excess of 
seven calendar days for the

[[Page 46070]]

Foreign Funds. Applicants request relief under section 6(c) of the Act 
from section 22(e) to allow the Initial Index Fund to pay redemption 
proceeds up to 14 calendar days (or, with respect to future Foreign 
Funds, within not more than the number of calendar days known to 
applicants as being the maximum number of calendar days required for 
such payment or satisfaction in the principal local foreign market(s) 
where transactions in Portfolio Securities of each such Fund 
customarily clear and settle but in any event not more than 14 calendar 
days) after the tender of a Creation Unit Aggregation for redemption. 
At all other times and except as disclosed in the relevant Fund's 
Prospectus and/or SAI, applicants expect that each Foreign Fund will be 
able to deliver redemption proceeds within seven days.\11\ With respect 
to future Foreign Funds, applicants seek the same relief from section 
22(e) only to the extent that circumstances similar to those described 
in the application exist.
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    \11\ Rule 15c6-1 under the Exchange Act that most securities 
transactions be settled within three business days of the trade. 
Applicants acknowledge that no relief obtained from the requirements 
of section 22(e) will affect any obligations applicants may have 
under rule 15c6-1.
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    11. Applicants state that section 22(e) was designed to prevent 
unreasonable, undisclosed and unforeseen delays in the payment of 
redemption proceeds. Applicants assert that the requested relief will 
not lead to the problems that section 22(e) was designed to prevent. 
Applicants state that the SAI will disclose those local holidays (over 
the period of at least one year following the date of the SAI), if any, 
that are expected to prevent the delivery of redemption proceeds in 
seven calendar days, and the maximum number of days needed to deliver 
the proceeds for the relevant Foreign Fund. Applicants are not seeking 
relief from section 22(e) with respect to Foreign Funds that do not 
effect in-kind purchases and redemptions of Creation Unit Aggregations.

Section 12(d)(1)

    12. Section 12(d)(1)(A) of the Act prohibits a registered 
investment company from acquiring securities of an investment company 
if such securities represent more than 3% of the total outstanding 
voting stock of the acquired company, more than 5% of the total assets 
of the acquiring company, or, together with the securities of any other 
investment companies, more than 10% of the total assets of the 
acquiring company. Section 12(d)(1)(B) of the Act prohibits a 
registered open-end investment company, its principal underwriter and 
any other broker-dealer from selling the investment company's shares to 
another investment company if the sale will cause the acquiring company 
to own more than 3% of the acquired company's voting stock, or if the 
sale will cause more than 10% of the acquired company's voting stock to 
be owned by investment companies generally.
    13. Applicants request an exemption to permit management investment 
companies (``Purchasing Management Companies'') and unit investment 
trusts (``Purchasing Trusts'') registered under the Act that are not 
sponsored or advised by the Adviser or any entity controlling, 
controlled by, or under common control with the Adviser and are not 
part of the same ``group of investment companies,'' as defined in 
section 12(d)(1)(G)(ii) of the Act, as the Trust (Purchasing Management 
Companies and Purchasing Trusts collectively, ``Purchasing Funds'') to 
acquire shares of a Fund beyond the limits of section 12(d)(1)(A). 
Purchasing Funds exclude registered investment companies that are, or 
in the future may be, part of the same group of investment companies 
within the meaning of section 12(d)(1)(G)(ii) of the Act as the Funds. 
In addition, applicants seek relief to permit the Funds or any Broker 
that is registered under the Exchange Act to sell Fund Shares to a 
Purchasing Fund in excess of the limits of section 12(d)(1)(B).
    14. Each Purchasing Management Company will be advised by an 
investment adviser within the meaning of section 2(a)(20)(A) of the Act 
(the ``Purchasing Fund Adviser'') and may be sub-advised by one or more 
investment advisers within the meaning of section 2(a)(20)(B) of the 
Act (each a ``Purchasing Fund Sub-Adviser''). Any investment adviser to 
a Purchasing Management Company will be registered under the Advisers 
Act or exempt from registration. Each Purchasing Trust will be 
sponsored by a sponsor (``Sponsor'').
    15. Applicants submit that the proposed conditions to the relief 
requested, including the requirement that Purchasing Funds enter into 
an agreement with a Fund for the purchase of Fund Shares (a 
``Purchasing Fund Agreement''), adequately address the concerns 
underlying the limits in section 12(d)(1)(A) and (B), which include 
concerns about undue influence, excessive layering of fees and overly 
complex structures. Applicants believe that the requested exemption is 
consistent with the public interest and the protection of investors.
    16. Applicants believe that neither the Purchasing Funds nor a 
Purchasing Fund Affiliate would be able to exert undue influence over 
the Funds.\12\ To limit the control that a Purchasing Fund may have 
over a Fund, applicants propose a condition prohibiting a Purchasing 
Fund Adviser or a Sponsor, any person controlling, controlled by, or 
under common control with a Purchasing Fund Adviser or Sponsor, and any 
investment company and any issuer that would be an investment company 
but for sections 3(c)(1) or 3(c)(7) of the Act that is advised or 
sponsored by a Purchasing Fund Adviser or Sponsor, or any person 
controlling, controlled by, or under common control with a Purchasing 
Fund Adviser or Sponsor (``Purchasing Fund Advisory Group'') from 
controlling (individually or in the aggregate) a Fund within the 
meaning of section 2(a)(9) of the Act. The same prohibition would apply 
to any Purchasing Fund Sub-Adviser, any person controlling, controlled 
by or under common control with the Purchasing Fund Sub-Adviser, and 
any investment company or issuer that would be an investment company 
but for sections 3(c)(1) or 3(c)(7) of the Act (or portion of such 
investment company or issuer) advised or sponsored by the Purchasing 
Fund Sub-Adviser or any person controlling, controlled by or under 
common control with the Purchasing Fund Sub-Adviser (``Purchasing Fund 
Sub-Advisory Group''). Applicants propose other conditions to limit the 
potential for undue influence over the Funds, including that no 
Purchasing Fund or Purchasing Fund Affiliate (except to the extent it 
is acting in its capacity as an investment adviser to a Fund) will 
cause a Fund to purchase a security in any offering of securities 
during the existence of any underwriting or selling syndicate of which 
a principal underwriter is an Underwriting Affiliate (``Affiliated 
Underwriting''). An ``Underwriting Affiliate'' is a principal 
underwriter in any underwriting or selling syndicate that is an 
officer, director, member of an advisory board, Purchasing Fund 
Adviser, Purchasing Fund Sub-Adviser, employee or Sponsor of a 
Purchasing Fund, or a

[[Page 46071]]

person of which any such officer, director, member of an advisory 
board, Purchasing Fund Adviser, Purchasing Fund Sub-Adviser, employee, 
or Sponsor is an affiliated person (except any person whose 
relationship to the Fund is covered by section 10(f) of the Act is not 
an Underwriting Affiliate).
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    \12\ A ``Purchasing Fund Affiliate'' is a Purchasing Fund 
Adviser, Purchasing Fund Sub-Adviser, Sponsor, promoter, and 
principal underwriter of a Purchasing Fund, and any person 
controlling, controlled by, or under common control with any of 
those entities. A ``Fund Affiliate'' is an investment adviser, 
promoter, or principal underwriter of a Fund and any person 
controlling, controlled by, or under common control with any of 
these entities.
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    17. Applicants do not believe the proposed arrangement will involve 
excessive layering of fees. The board of directors or trustees of any 
Purchasing Management Company, including a majority of the 
disinterested directors or trustees, will find that the advisory fees 
charged to the Purchasing Management Company are based on services 
provided that will be in addition to, rather than duplicative of, 
services provided under the advisory contract(s) of any Fund in which 
the Purchasing Management Company may invest. In addition, a Purchasing 
Fund Adviser or a trustee (``Trustee'') or Sponsor of a Purchasing 
Trust will waive fees otherwise payable to it by the Purchasing Fund in 
an amount at least equal to any compensation (including fees received 
pursuant to any plan adopted by a Fund under rule 12b-1 under the Act) 
received by the Purchasing Fund Adviser or Trustee or Sponsor to the 
Purchasing Trust or an affiliated person of the Purchasing Fund 
Adviser, Trustee or Sponsor, from the Funds in connection with the 
investment by the Purchasing Fund in the Fund. Applicants state that 
any sales loads or service fees charged with respect to shares of a 
Purchasing Fund will not exceed the limits applicable to a fund of 
funds set forth in Conduct Rule 2830 of the NASD.
    18. Applicants submit that the proposed arrangement will not create 
an overly complex fund structure. Applicants note that no Fund may 
acquire securities of any investment company or company relying on 
sections 3(c)(1) or 3(c)(7) of the Act in excess of the limits 
contained in section 12(d)(1)(A) of the Act. Applicants also represent 
that to ensure that Purchasing Funds comply with the terms and 
conditions of the requested relief from section 12(d)(1), any 
Purchasing Fund that intends to invest in a Fund in reliance on the 
requested order will be required to enter into a Purchasing Fund 
Agreement between the Fund and the Purchasing Fund. The Purchasing Fund 
Agreement will require the Purchasing Fund to adhere to the terms and 
conditions of the requested order. The Purchasing Fund Agreement also 
will include an acknowledgement from the Purchasing Fund that it may 
rely on the order only to invest in the Funds and not in any other 
investment company. The Purchasing Fund Agreement will further require 
any Purchasing Fund that exceeds the 5% or 10% limitations in section 
12(d)(1)(A)(ii) and (iii) to disclose in its prospectus that it may 
invest in ETFs, and to disclose, in ``plain English,'' in its 
prospectus the unique characteristics of the Purchasing Funds investing 
in exchange-traded funds (``ETFs''), including but not limited to the 
expense structure and any additional expenses of investing in ETFs.
    19. Applicants also note that a Fund may choose to reject a direct 
purchase of Fund Shares in Creation Unit Aggregations by a Purchasing 
Fund. To the extent that a Purchasing Fund purchases Fund Shares in the 
secondary market, a Fund would still retain its ability to reject 
initial purchases of Fund Shares made in reliance on the requested 
order by declining to enter into the Purchasing Fund Agreement prior to 
any investment by a Purchasing Fund in excess of the limits of section 
12(d)(1)(A).

Section 17(a)(1) and (2) of the Act

    20. Section 17(a) of the Act generally prohibits an affiliated 
person of a registered investment company, or an affiliated person of 
such a person, from selling any security to or purchasing any security 
from the company. Section 2(a)(3) of the Act defines ``affiliated 
person'' to include any person directly or indirectly owning, 
controlling or holding with power to vote 5% or more of the outstanding 
voting securities of the other person, any person 5% or more of whose 
outstanding voting securities are directly or indirectly owned, 
controlled or held with the power to vote by the other person, and any 
person directly or indirectly controlling, controlled by or under 
common control with the other person. Section 2(a)(9) of the Act 
provides that a control relationship will be presumed where one person 
owns more than 25% of another person's voting securities.
    21. Applicants request an exemption from section 17(a) of the Act 
pursuant to sections 17(b) and 6(c) of the Act to permit persons to 
effectuate in-kind purchases and redemptions with a Fund when they are 
affiliated persons, or affiliated persons of affiliated persons, of the 
Fund solely by virtue of one or more of the following: (a) Holding 5 
percent or more, or in excess of 25 percent, of the outstanding Fund 
Shares of one or more Funds; (b) having an affiliation with a person 
with an ownership interest described in (a); or (c) holding 5 percent 
or more, or more than 25 percent, of the shares of one or more other 
registered investment companies (or series thereof) advised by the 
Adviser or an entity controlling, controlled by or under common control 
with the Adviser.
    22. Applicants assert that no useful purpose would be served by 
prohibiting these types of affiliated persons from purchasing or 
redeeming Creation Unit Aggregations through ``in-kind'' transactions. 
The deposit procedures for both in-kind purchases and in-kind 
redemptions of Creation Unit Aggregations will be the same for all 
purchases and redemptions. Deposit Securities and Fund Securities will 
be valued in the same manner as Portfolio Securities. Therefore, 
applicants state that in-kind purchases and redemptions will afford no 
opportunity for these affiliated persons of a Fund, or the affiliated 
persons of such affiliated persons, to effect a transaction detrimental 
to other holders of Fund Shares. Applicants also believe that in-kind 
purchases and redemptions will not result in self-dealing or 
overreaching of the Funds.
    23. Applicants also seek relief from section 17(a) to permit a Fund 
that is an affiliated person of a Purchasing Fund because the 
Purchasing Fund holds 5% or more of the Fund Shares of the Fund to sell 
its Fund Shares to and redeem its Fund Shares from a Purchasing Fund 
and to engage in the accompanying in-kind transactions with the 
Purchasing Fund.\13\ Applicants note that Creation Unit Aggregations 
that are purchased or redeemed directly from a Fund will be based on 
the NAV of the Fund.\14\ Applicants believe that any proposed 
transactions directly between the Funds and Purchasing Funds will be 
consistent with the policies of each Purchasing Fund. The purchase of 
Creation Unit Aggregations by a Purchasing Fund directly from a Fund 
will be accomplished in accordance with the investment restrictions of 
any such Purchasing Fund and will be consistent with the investment 
policies set forth in the Purchasing Fund's registration statement. The 
Purchasing Fund

[[Page 46072]]

Agreement will require any Purchasing Fund that purchases Creation Unit 
Aggregations directly from a Fund to represent that the purchase of 
Creation Unit Aggregations from a Fund by a Purchasing Fund will be 
accomplished in compliance with the investment restrictions of the 
Purchasing Fund and will be consistent with the investment policies set 
forth in the Purchasing Fund's registration statement.
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    \13\ Applicants acknowledge that receipt of compensation by (a) 
an affiliated person of a Purchasing Fund, or an affiliated person 
of such person, for the purchase by the Purchasing Fund of Fund 
Shares or (b) an affiliated person of a Fund, or an affiliated 
person of such person, for the sale by the Fund of its Fund Shares 
to a Purchasing Fund may be prohibited by section 17(e)(1) of the 
Act. The Purchasing Fund Agreement also will include this 
acknowledgement.
    \14\ Applicants believe that a Purchasing Fund will purchase 
Fund Shares in the secondary market and will not purchase or redeem 
Creation Unit Aggregations directly from a Fund. Nonetheless, a 
Purchasing Fund that owns 5% or more of a Fund could seek to 
transact in Creation Unit Aggregations directly with a Fund pursuant 
to the section 17(a) relief requested.
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Applicants' Conditions

    Applicants agree that any order granting the requested relief will 
be subject to the following conditions:

ETF Relief

    1. As long as the Funds operate in reliance on the requested order, 
Fund Shares will be listed on an Exchange.
    2. Neither the Trust nor any Fund will be advertised or marketed as 
an open-end investment company or a mutual fund. Each Fund's Prospectus 
will prominently disclose that Fund Shares are not individually 
redeemable shares and will disclose that the owners of Fund Shares may 
acquire those Fund Shares from the Fund and tender those Fund Shares 
for redemption to the Fund in Creation Unit Aggregations only. Any 
advertising material that describes the purchase or sale of Creation 
Unit Aggregations or refers to redeemability will prominently disclose 
that Fund Shares are not individually redeemable, and that owners of 
Fund Shares may acquire those Fund Shares from the Fund and tender 
those Fund Shares for redemption to the Fund in Creation Unit 
Aggregations only.
    3. The Web site maintained for the Funds, which will be publicly 
accessible at no charge, will contain the following information, on a 
per Fund Share basis, for each Fund: (a) The prior Business Day's NAV 
and the Bid/Ask Price, and a calculation of the premium or discount of 
the Bid/Ask Price at the time of calculation of the NAV against such 
NAV; and (b) data in chart format displaying the frequency distribution 
of discounts and premiums of the daily Bid/Ask Price against the NAV, 
within appropriate ranges, for each of the four previous calendar 
quarters. In addition, the Product Description for each Fund will state 
that the Web site for the Fund has information about the premiums and 
discounts at which Fund Shares have traded.
    4. Each Fund's Prospectus and annual report also will include: (a) 
The information listed in condition 3(b), (i) in the case of the Fund's 
Prospectus, for the most recently completed year (and the most recently 
completed quarter or quarters, as applicable) and (ii) in the case of 
the annual report, for the immediately preceding five years, as 
applicable; and (b) the following data, calculated on a per Fund Share 
basis for one, five and ten year periods (or life of the Fund): (i) The 
cumulative total return and the average annual total return based on 
NAV and Bid/Ask Price, and (ii) the cumulative total return of the 
relevant Underlying Index.
    5. Before a Fund may rely on the order, the Commission will have 
approved, pursuant to rule 19b-4 under the Exchange Act, an Exchange 
rule requiring Exchange members and member organizations effecting 
transactions in Fund Shares to deliver a Product Description to 
purchasers of Fund Shares.
    6. Each Fund's Prospectus and Product Description will clearly 
disclose that, for purposes of the Act, Fund Shares are issued by the 
Fund, which is a registered investment company, and that the 
acquisition of Fund Shares by investment companies is subject to the 
restrictions of section 12(d)(1) of the Act, except as permitted by an 
exemptive order that permits registered investment companies to invest 
in a Fund beyond the limits in section 12(d)(1), subject to certain 
terms and conditions, including that the registered investment company 
enter into a Purchasing Fund Agreement with a Fund regarding the terms 
of the investment.
    7. The requested relief to permit ETF operations will expire on the 
effective date of any Commission rule under the Act that provides 
relief permitting the operation of index-based exchange-traded funds.

Section 12(d)(1) Relief

    8. The members of a Purchasing Fund Advisory Group will not control 
(individually or in the aggregate) a Fund within the meaning of section 
2(a)(9) of the Act. The members of a Purchasing Fund Sub-Advisory Group 
will not control (individually or in the aggregate) a Fund within the 
meaning of section 2(a)(9) of the Act. If, as a result of a decrease in 
the outstanding Fund Shares of a Fund, a Purchasing Fund Advisory Group 
or a Purchasing Fund Sub-Advisory Group, each in the aggregate, becomes 
a holder of more than 25% of the outstanding Fund Shares of a Fund, it 
will vote its Fund Shares in the same proportion as the vote of all 
other holders of the Fund Shares. This condition does not apply to the 
Purchasing Fund Sub-Advisory Group with respect to a Fund for which the 
Purchasing Fund Sub-Adviser or a person controlling, controlled by, or 
under common control with the Purchasing Fund Sub-Adviser acts as the 
investment adviser within the meaning of section 2(a)(20)(A) of the 
Act.
    9. No Purchasing Fund or Purchasing Fund Affiliate will cause any 
existing or potential investment by the Purchasing Fund in a Fund to 
influence the terms of any services or transactions between the 
Purchasing Fund or Purchasing Fund Affiliate and the Fund or a Fund 
Affiliate.
    10. The board of directors or trustees of a Purchasing Management 
Company, including a majority of the disinterested directors or 
trustees, will adopt procedures reasonably designed to ensure that the 
Purchasing Fund Adviser and Purchasing Fund Sub-Adviser are conducting 
the investment program of the Purchasing Management Company without 
taking into account any consideration received by the Purchasing 
Management Company or a Purchasing Fund Affiliate from a Fund or a Fund 
Affiliate in connection with any services or transactions.
    11. No Purchasing Fund or Purchasing Fund Affiliate (except to the 
extent it is acting in its capacity as an investment adviser to a Fund) 
will cause a Fund to purchase a security in any Affiliated 
Underwriting.
    12. Before investing in a Fund in excess of the limits in section 
12(d)(1)(A), each Purchasing Fund and the Fund will execute a 
Purchasing Fund Agreement stating, without limitation, that their 
boards of directors or trustees and their investment advisers or 
sponsors and trustees, as applicable, understand the terms and 
conditions of the order, and agree to fulfill their responsibilities 
under the order. At the time of its investment in Fund Shares in excess 
of the limit in section 12(d)(1)(A)(i), a Purchasing Fund will notify 
the Fund of the investment. At such time, the Purchasing Fund will also 
transmit to the Fund a list of the names of each Purchasing Fund 
Affiliate and Underwriting Affiliate. The Purchasing Fund will notify 
the Fund of any changes to the list of names as soon as reasonably 
practicable after a change occurs. The relevant Fund and the Purchasing 
Fund will maintain and preserve a copy of the order, the agreement, and 
the list with any updated information for the duration of the 
investment and for a period of not less than six years thereafter, the 
first two years in an easily accessible place.
    13. The Purchasing Fund Adviser, Trustee or Sponsor, as applicable, 
will waive fees otherwise payable to it by the Purchasing Fund in an 
amount at least equal to any compensation (including fees received 
under any plan adopted by

[[Page 46073]]

a Fund under rule 12b-1 under the Act) received from a Fund by the 
Purchasing Fund Adviser, Trustee or Sponsor, or an affiliated person of 
the Purchasing Fund Adviser, Trustee or Sponsor, other than any 
advisory fees paid to the Purchasing Fund Adviser, Trustee or Sponsor, 
or its affiliated person by a Fund, in connection with the investment 
by the Purchasing Fund in the Fund. Any Purchasing Fund Sub-Adviser 
will waive fees otherwise payable to the Purchasing Fund Sub-Adviser, 
directly or indirectly, by the Purchasing Management Company in an 
amount at least equal to any compensation received from a Fund by the 
Purchasing Fund Sub-Adviser, or an affiliated person of the Purchasing 
Fund Sub-Adviser, other than any advisory fees paid to the Purchasing 
Fund Sub-Adviser or its affiliated person by the Fund, in connection 
with the investment by the Purchasing Management Company in a Fund made 
at the direction of the Purchasing Fund Sub-Adviser. In the event that 
the Purchasing Fund Sub-Adviser waives fees, the benefit of the waiver 
will be passed through to the Purchasing Management Company.
    14. Any sales charges and/or service fees charged with respect to 
shares of a Purchasing Fund will not exceed the limits applicable to a 
fund of funds as set forth in Conduct Rule 2830 of the NASD.
    15. Once an investment by a Purchasing Fund in the securities of a 
Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, the board 
of directors/trustees of a Fund (``Board''), including a majority of 
the disinterested Board members, will determine that any consideration 
paid by the Fund to a Purchasing Fund or a Purchasing Fund Affiliate in 
connection with any services or transactions: (a) Is fair and 
reasonable in relation to the nature and quality of the services and 
benefits received by the Fund; (b) is within the range of consideration 
that the Fund would be required to pay to another unaffiliated entity 
in connection with the same services or transactions; and (c) does not 
involve overreaching on the part of any person concerned. This 
condition does not apply with respect to any services or transactions 
between a Fund and its investment adviser(s), or any person 
controlling, controlled by, or under common control with such 
investment adviser(s).
    16. The Board, including a majority of the disinterested Board 
members, will adopt procedures reasonably designed to monitor any 
purchases of securities by a Fund in an Affiliated Underwriting once 
the investment by a Purchasing Fund in a Fund exceeds the limit of 
section 12(d)(1)(A)(i) of the Act, including any purchases made 
directly from an Underwriting Affiliate. The Board will review these 
purchases periodically, but no less frequently than annually, to 
determine whether the purchases were influenced by the investment by 
the Purchasing Fund in a Fund. The Board will consider, among other 
things: (a) Whether the purchases were consistent with the investment 
objectives and policies of the Fund; (b) how the performance of 
securities purchased in an Affiliated Underwriting compares to the 
performance of comparable securities purchased during a comparable 
period of time in underwritings other than Affiliated Underwritings or 
to a benchmark such as a comparable market index; and (c) whether the 
amount of securities purchased by the Fund in Affiliated Underwritings 
and the amount purchased directly from an Underwriting Affiliate have 
changed significantly from prior years. The Board will take any 
appropriate actions based on its review, including, if appropriate, the 
institution of procedures designed to assure that purchases of 
securities in Affiliated Underwritings are in the best interests of 
shareholders of the Fund.
    17. Each Fund will maintain and preserve permanently in an easily 
accessible place a written copy of the procedures described in the 
preceding condition, and any modifications to such procedures, and will 
maintain and preserve for a period of not less than six years from the 
end of the fiscal year in which any purchase in an Affiliated 
Underwriting occurred, the first two years in an easily accessible 
place, a written record of each purchase of securities in Affiliated 
Underwritings, once an investment by a Purchasing Fund in shares of the 
Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting 
forth from whom the securities were acquired, the identity of the 
underwriting syndicate's members, the terms of the purchase, and the 
information or materials upon which the Board's determinations were 
made.
    18. Before approving any advisory contract under section 15 of the 
Act, the board of directors or trustees of each Purchasing Management 
Company, including a majority of the disinterested directors or 
trustees, will find that the advisory fees charged under such contract 
are based on services provided that will be in addition to, rather than 
duplicative of, the services provided under the advisory contract(s) of 
any Fund in which the Purchasing Management Company may invest. These 
findings and their basis will be recorded fully in the minute books of 
the appropriate Purchasing Management Company.
    19. No Fund will acquire securities of any other investment company 
or companies relying on sections 3(c)(1) or 3(c)(7) of the Act in 
excess of the limits contained in section 12(d)(1)(A) of the Act.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Florence E. Harmon,
Acting Secretary.
 [FR Doc. E8-18151 Filed 8-6-08; 8:45 am]

BILLING CODE 8010-01-P
