

[Federal Register: August 31, 2006 (Volume 71, Number 169)]
[Notices]               
[Page 51869-51876]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31au06-101]                         

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 27469; 812-13297]

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

August 28, 2006.
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: Claymore Exchange-Traded Fund Trust and Claymore Exchange-
Traded Fund Trust 2 (the ``Trusts''); Claymore Securities, Inc. 
(``Claymore''); and Claymore Advisers, LLC (``Claymore Advisors'').

Filing Dates: The application was filed on May 27, 2006, and amended on 
July 24, 2006. Applicants have agreed to file an amendment during the 
notice period, the substance of which is reflected in the notice.

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 September 15, 2006, 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, 2455 Corporate West 
Drive, Lisle, IL 60532.

FOR FURTHER INFORMATION CONTACT: Courtney S. Thornton, Senior Counsel 
at (202) 551-6812, or Michael W. Mundt, Senior Special Counsel, 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 Desk, U.S. Securities and Exchange Commission, 100 F 
Street, NE., Washington DC 20549-0102, telephone (202) 551-5850.

Applicants' Representations

    1. Each Trust is registered as an open-end management investment 
company and is organized as a Delaware statutory trust that will offer 
multiple series (each series, a ``Fund''). Claymore Exchange-Traded 
Fund Trust will offer and sell Fund Shares of five Funds, each of which 
will track an index of equity securities of domestic issuers and non-
domestic issuers meeting the requirements for trading in U.S. markets. 
Claymore Exchange-Traded Fund Trust 2 will offer and sell Fund Shares 
of two Funds (collectively with the Funds offered by Claymore Exchange-
Traded Fund Trust, the ``Initial Funds''), each of which will track an 
index of foreign equity securities (``Foreign Funds'').
    2. Each of Claymore and Claymore Advisors is registered as an 
``investment adviser'' under the Investment Advisers Act of 1940, as 
amended (the ``Advisers Act''). Claymore Advisors will serve as the 
investment adviser to each of the Initial Funds (the ``Adviser''). In 
the future, the Adviser may enter into sub-advisory agreements with 
other investment advisers to act as ``sub-advisers'' with respect to 
particular Funds. Any sub-adviser will be registered under the Advisers 
Act or exempt from registration. Claymore, a broker-dealer registered 
under the Securities Exchange Act of 1934 (the ``Exchange Act''), will 
serve as the principal underwriter and distributor for the Initial 
Funds (the ``Distributor'').
    3. Each Fund will hold certain 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''). No entity that creates, compiles, 
sponsors or maintains an Underlying Index 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 Trusts, the Adviser, the 
Distributor, promoter or any sub-adviser to a Fund. The Trusts may 
offer additional Funds in the future based on other Underlying Indices 
(``Future Funds''). Any Future Funds will (a) comply with the terms and 
conditions of any order granted pursuant to the application, and (b) be 
advised by the Adviser.
    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

[[Page 51870]]

``representative sampling'' strategy.\1\ 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.\2\ 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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    \1\ 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 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.
    \2\ Under the ``representative sampling'' strategy, the Adviser 
will seek to construct a Fund's portfolio so that its market 
capitalization, industry weightings, 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 of between $20 and $60 per 
Fund Share in Creation Unit Aggregations of 50,000 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 Trust and 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''). 
Shares of each Fund 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 to correspond 
generally to the price and yield performance, before fees and expenses, 
of the relevant Underlying Index (the ``Deposit Securities''), together 
with the deposit of a relatively small specified cash payment (``Cash 
Component''). The Cash Component 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.\3\ 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. 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.\4\ The maximum 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 transmit such orders 
to the Trust. The Distributor also will be responsible for delivering 
the 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 Trust to implement the delivery of Fund Shares.
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    \3\ The Trust will sell Creation Unit Aggregations of each Fund 
on any day that the New York Stock Exchange, the Exchange, a Fund, 
and the Custodian are open for business, including as required by 
section 22(e) of the Act (a ``Business Day''). In addition to the 
list of names and amount of each security constituting the current 
Deposit Securities, it is intended that, on each Business Day, the 
Cash Component effective as of the previous Business Day, per 
outstanding Fund Share, will be made available. Any 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 approximate amount per Fund Share 
representing the sum of the estimated Cash Component effective 
through and including the previous Business Day, plus the current 
value of the Deposit Securities, on a per Fund Share basis.
    \4\ 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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    6. 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 will be listed and traded on the American Stock 
Exchange, LLC, (``Amex''); Fund Shares of Future Funds will be listed 
and traded on a national securities exchange as defined in section 
2(a)(26) of the Act or on the Nasdaq Stock Market (``Nasdaq'') (each, 
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.\5\ 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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    \5\ If Fund Shares are listed on the 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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    7. 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.\6\ 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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    \6\ 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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[[Page 51871]]

    8. 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 Cash Component, although the 
actual amount of the Cash Redemption Payment may differ from the Cash 
Component if the Fund Securities are not identical to the Deposit 
Securities on that day. 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 may pay a Transaction Fee, calculated 
in the same manner as a Transaction Fee payable in connection with 
purchases of Creation Unit Aggregations.
    9. Neither the Trusts 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 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 Trusts to register as 
open-end management investment companies and issue Fund Shares that are 
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 arbitrage

[[Page 51872]]

activity 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 to rely on the prospectus delivery exemption provided by 
section 4(3) of the Securities Act.\7\
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    \7\ 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 Trusts or an underwriter. Applicants further 
state that each Fund's Prospectus will caution 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 
will be published daily in the financial section of newspapers. In 
addition, a website 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''),\8\ the NAV for each Fund, and 
information about the premiums and discounts at which the Fund Shares 
have traded.
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    \8\ 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 Foreign Funds. Applicants request relief 
under section 6(c) of the Act from section 22(e) to allow the Foreign 
Funds 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) 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.\9\ 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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    \9\ Rule 15c6-1 under the Exchange Act requires 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.

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 
part of the same ``group of investment companies,'' as

[[Page 51873]]

defined in section 12(d)(1)(G)(ii) of the Act, as the Trusts 
(Purchasing Management Companies and Purchasing Trusts collectively, 
``Purchasing Funds'') to acquire shares of a Fund beyond the limits of 
section 12(d)(1)(A).\10\ 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 a 
Fund and the Distributor or any broker or dealer (``Broker'') that is 
registered under the Exchange Act to knowingly sell shares of a Fund to 
a Purchasing Fund in excess of the limits of section 12(d)(1)(B). 
Applicants request that the relief sought apply to (a) Funds that are 
advised by the Adviser and in the same group of investment companies as 
the Trusts, (b) each Purchasing Fund that enters into an agreement with 
a Fund for the purchase of Fund Shares (``Purchasing Fund Agreement''), 
and (c) any Broker.\11\
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    \10\ In addition to the Funds, applicants request that this 
relief apply to other exchange-traded funds (``ETFs'') that are (1) 
advised by the Adviser or an entity controlling, controlled by, or 
under common control with the Adviser, and (2) part of the same 
``group of investment companies'' as each Trust within the meaning 
of section 12(d)(1)(G)(ii) of the Act. Such open-end ETFs, 
collectively with the Funds, are referred to as ``Open-end Funds,'' 
and unit investment trust ETFs are referred to as ``UIT Funds.''
    \11\ All parties that currently intend to rely on the requested 
relief from section 12(d)(1) are named as applicants. Any other 
party that relies on this relief in the future will comply with the 
terms and conditions of the application. A Purchasing Fund may rely 
on the requested order only to invest in the Funds and not in any 
other registered investment company.
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    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 advised by one or more 
investment advisers within the meaning of section 2(a)(20)(B) of the 
Act (each a ``Sub-Adviser''). Any investment adviser to a Purchasing 
Fund 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 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 Adviser/Sponsor 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 Sub-Adviser, any person controlling, controlled by or under 
common control with the Sub-Adviser, and any investment company or 
issuer that would be an investment company but for sections 3(c)(1) or 
3(c)(7) of the Act (or portion of such investment company or issuer) 
advised or sponsored by the Sub-Adviser or any person controlling, 
controlled by or under common control with the Sub-Adviser (``Sub-
Adviser 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, Sub-Adviser, employee or Sponsor of a Purchasing Fund, or a 
person of which any such officer, director, member of an advisory 
board, Purchasing Fund Adviser, 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, 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.
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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 
Management Company or Purchasing Trust 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 
Management Company or Purchasing Trust 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 and participate in the proposed 
transactions in a manner that addresses concerns regarding the 
requested relief. 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

[[Page 51874]]

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 ETFs, including 
but not limited to the expense structure and any additional expenses of 
investing in ETFs.

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

    19. 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. Applicants 
state that if Creation Unit Aggregations of all of the Funds or of one 
or more particular Funds are held by twenty or fewer investors, 
including a Specialist or Market Maker, some or all of such investors 
will be 5% owners of the Fund, and one or more investors may hold in 
excess of 25% of the Fund. Such investors would be deemed to be 
affiliated persons of the Fund.
    20. 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 that 
are affiliated persons of the Funds solely by virtue of holding 5 
percent or more, or in excess of 25 percent of the outstanding Fund 
Shares of one or more Funds (or affiliated persons of such persons so 
long as they are not otherwise affiliated with the Funds) to effectuate 
purchases and redemptions ``in-kind.''
    21. 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 the 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 Fund.
    22. 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.\13\ 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 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 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:
    1. Applicants will not register a Future Fund of a Trust by means 
of filing a post-effective amendment to a Trust's registration 
statement or by any other means, unless either: (a) Applicants have 
requested and received with respect to such Future Fund, either 
exemptive relief from the Commission or a no-action letter from the 
Division of Investment Management of the Commission; or (b) the Future 
Fund will be listed on an Exchange without the need for a filing 
pursuant to rule 19b-4 under the Exchange Act.
    2. As long as the Trusts operate in reliance on the requested 
order, Fund Shares will be listed on an Exchange.
    3. Neither the Trusts 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.
    4. The Web site maintained for each Fund, 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.
    5. The Fund's Prospectus and annual report for each Fund also will 
include: (a) the information listed in condition 4(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.
    6. 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

[[Page 51875]]

Product Description to purchasers of Fund Shares.
    7. 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 of section 12(d)(1), subject to certain 
terms and conditions, including that the registered investment company 
enter into a Purchasing Fund Agreement with the Fund regarding the 
terms of the investment.
    8. The members of a Purchasing Fund's 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's 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's Advisory Group or a Purchasing Fund's 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's Sub-Advisory Group 
with respect to a Fund for which the Purchasing Fund's 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 (in the case of an Open-end 
Fund) or as the sponsor (in the case of a UIT Fund).
    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 an 
Open-end Fund or sponsor to a UIT 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 or 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 shares of an Open-end 
Fund in excess of the limit in section 12(d)(1)(A)(i), a Purchasing 
Fund will notify the Open-end Fund of the investment. At such time, the 
Purchasing Fund will also transmit to the Fund a list of 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 an Open-end 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 an Open-
end 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 Open-end 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 an Open-end Fund (``Board''), including a 
majority of the disinterested Board members, will determine that any 
consideration paid by the Open-end 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 Open-end 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 an Open-end 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 an Open-end Fund in an Affiliated 
Underwriting once the investment by a Purchasing Fund in the securities 
of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, 
including any purchases made directly from an Underwriting Affiliate. 
The Board will review these purchases periodically, but no less 
frequently than annually, to determine whether the purchases were 
influenced by the investment by the Purchasing Fund in the Open-end 
Fund. The Board will consider, among other things: (a) Whether the 
purchases were consistent with the investment objectives and policies 
of the Open-end Fund; (b) how the performance of securities purchased 
in an Affiliated Underwriting compares to the performances of 
comparable securities purchased during a comparable period of time in 
underwritings other than

[[Page 51876]]

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 Open-end Fund.
    17. Each Open-end 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 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 Fund Shares 
of the Fund exceeds the limits 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 Open-end 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.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 06-7353 Filed 8-30-06; 8:45 am]

BILLING CODE 8010-01-P
