

[Federal Register: December 21, 2006 (Volume 71, Number 245)]
[Notices]               
[Page 76710-76714]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de06-109]                         

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 27599; 812-13029]

 
ProFunds, et al.; Notice of Application

December 14, 2006.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 12(d)(1)(J) 
of the Investment Company Act of 1940 (the ``Act'') for 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 section 17(a) of the Act.

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    Summary of the Application: The order would permit certain 
management investment companies and unit investment trusts registered 
under the Act to acquire shares of certain open-end management 
investment companies and unit investment trusts registered under the 
Act, including those that operate as exchange-traded funds, that are 
outside the same group of investment companies as the acquiring 
investment companies.
    Applicants: ProFunds, Access One Trust, ProShares Trust (``ETF 
Trust,'' and together with ProFunds and Access One Trust, the 
``Trusts''), ProShare Advisors LLC (``ProShare Advisors''), and ProFund 
Advisors LLC (``ProFund Advisors,'' and together with ProShare 
Advisors, the ``Advisers'').
    Filing Dates: The application was filed on October 7, 2003, and 
amended on June 3, 2004, July 15, 2005, and October 6, 2006. Applicants 
have agreed to file an amendment during the notice period, the 
substance of which is reflected in this 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 January 8, 2007, 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, 7501 Wisconsin 
Avenue, Suite 1000, Bethesda, MD 20814.

FOR FURTHER INFORMATION CONTACT: John Yoder, Senior Counsel, at (202) 
551-6878, 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. The Trusts are open-end management investment companies 
registered under the Act and are each comprised of separate series 
(``Funds'') that pursue distinct investment objectives and strategies. 
Shares of certain Funds of ProFunds and Access One Trust are sold 
publicly to retail investors, and shares of other such Funds are sold 
to insurance company separate accounts funding variable life and 
variable annuity contracts. The Funds of the ETF Trust (``ETF Funds'') 
rely on an order from the Commission that allows the ETF Funds to 
operate as exchange-traded funds and to redeem their shares in large 
aggregations (``Creation Units'').\1\ Certain Funds pursue their 
investment objectives

[[Page 76711]]

through a master-feeder arrangement in reliance on section 12(d)(1)(E) 
of the Act.\2\ ProFund Advisors is registered as an investment adviser 
under the Investment Advisers Act of 1940 (``Advisers Act'') and serves 
as investment adviser to each Fund of ProFunds and Access One Trust. 
ProShare Advisors is registered as an investment adviser under the 
Advisers Act and serves as investment adviser to each ETF Fund.
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    \1\ ProShares Trust, et al., Investment Company Act Release Nos. 
27323 (May 18, 2006) (notice) and 27394 (June 13, 2006) (order) 
(``ETF Order'').
    \2\ A Fund of Funds (as defined below) may not invest in a Fund 
that serves as a feeder Fund unless the feeder Fund is part of the 
same group of investment companies as its corresponding master fund.
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    2. Applicants request relief to permit registered management 
investment companies and unit investment trusts registered under the 
Act that are not part of the same ``group of investment companies,'' 
within the meaning of section 12(d)(1)(G)(ii) of the Act, as the Trusts 
(such management investment companies are ``Investing Management 
Companies,'' such unit investment trusts are ``Investing Trusts,'' and 
Investing Management Companies and Investing Trusts are collectively 
``Funds of Funds''), to acquire shares of the Funds in excess of the 
limits in section 12(d)(1)(A) of the Act, and to permit a Fund, any 
principal underwriter for a Fund, and any broker or dealer registered 
under the Securities Exchange Act of 1934 (``Broker'') to sell shares 
of a Fund to a Fund of Funds in excess of the limits of section 
12(d)(1)(B) of the Act. Applicants request that the relief apply to: 
(1) Each open-end management investment company or unit investment 
trust registered under the Act that currently or subsequently is part 
of the same ``group of investment companies,'' within the meaning of 
section 12(d)(1)(G)(ii) of the Act, as the Trusts and is advised or 
sponsored by the Advisers or any entity controlling, controlled by, or 
under common control with the Advisers (such open-end management 
investment companies are ``Open-end Funds,'' such unit investment 
trusts are ``UIT Funds,'' and both Open-end Funds and UIT Funds are 
``Funds''); (2) each Fund of Funds that enters into a Participation 
Agreement (as defined below) with a Fund to purchase shares of the 
Funds; and (3) any principal underwriter to a Fund or Broker selling 
shares of a Fund.\3\
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    \3\ All entities that currently intend to rely on the requested 
order are named as applicants. Any other entity that relies on the 
order in the future will comply with the terms and conditions of the 
application. A Fund of Funds may rely on the requested order only to 
invest in the Funds and not in any other registered investment 
company.
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    3. Each Investing Management Company will be advised by an 
investment adviser within the meaning of section 2(a)(20)(A) of the Act 
and registered as an investment adviser under the Advisers Act or 
exempt from registration (``Fund of Funds Adviser''). A Fund of Funds 
Adviser may contract with an investment adviser which meets the 
definition of section 2(a)(20)(B) of the Act (a ``Subadviser''). Each 
Investing Trust will have a sponsor (``Sponsor'').
    4. Applicants state that the Funds will offer the Funds of Funds 
simple and efficient investment vehicles to achieve their asset 
allocation or diversification objectives. Applicants state that the 
Funds also provide high quality, professional investment program 
alternatives to Funds of Funds that do not have sufficient assets to 
operate comparable funds.

Applicants' Legal Analysis

A. Section 12(d)(1)

    1. Section 12(d)(1)(A) of the Act, in relevant part, prohibits a 
registered investment company from acquiring shares of an investment 
company if the securities represent more than 3% of the total 
outstanding voting stock of the acquired company, more than 5% of the 
total assets of the acquiring company, or, together with the securities 
of any other investment companies, more than 10% of the total assets of 
the acquiring company. Section 12(d)(1)(B) of the Act prohibits a 
registered open-end investment company, its principal underwriter, and 
any broker or dealer from selling its 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.
    2. 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 provision of section 
12(d)(1) if the exemption is consistent with the public interest and 
the protection of investors. Applicants seek an exemption under section 
12(d)(1)(J) of the Act to permit Funds of Funds to acquire shares of 
the Funds in excess of the limits in section 12(d)(1)(A) of the Act, 
and a Fund, any principal underwriter for a Fund and any Broker to sell 
shares of a Fund to a Fund of Funds in excess of the limits of section 
12(d)(1)(B) of the Act.
    3. Applicants state that the proposed arrangement and conditions 
will adequately address the policy concerns underlying sections 
12(d)(1)(A) and (B) of the Act, which include concerns about undue 
influence by a fund of funds over underlying funds, excessive layering 
of fees, and overly complex fund structures. Accordingly, applicants 
believe that the requested exemption is consistent with the public 
interest and the protection of investors.
    4. Applicants believe that neither the Fund of Funds nor a Fund of 
Funds Affiliate would be able to exert undue influence over the 
Funds.\4\ To limit the control that a Fund of Funds may have over a 
Fund, applicants propose a condition prohibiting the Fund of Funds 
Adviser or Sponsor, any person controlling, controlled by, or under 
common control with the Fund of Funds Adviser or Sponsor, 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 that is advised or sponsored 
by the Fund of Funds Adviser or Sponsor, or any person controlling, 
controlled by, or under common control with the Fund of Funds Adviser 
or Sponsor (``Fund of Funds 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 the Subadviser, 
any person controlling, controlled by or under common control with the 
Subadviser, and any investment company or issuer that would be an 
investment company but for section 3(c)(1) or 3(c)(7) of the Act (or 
portion of such investment company or issuer) advised or sponsored by 
the Subadviser or any person controlling, controlled by or under common 
control with the Subadviser (``Subadviser Group''). Applicants propose 
other conditions to limit the potential for undue influence over the 
Funds, including that no Fund of Funds or Fund of Funds Affiliate 
(except to the extent it is acting in its capacity as an investment 
adviser to an Open-end Fund or sponsor to a UIT Fund) will cause a Fund 
to purchase a security in an offering of securities during the 
existence of any underwriting or selling syndicate of which a principal 
underwriter is an Underwriting Affiliate (``Affiliated Underwriting''). 
An ``Underwriting Affiliate'' is a principal

[[Page 76712]]

underwriter in any underwriting or selling syndicate that is an 
officer, director, member of an advisory board, Fund of Funds Advisor, 
Subadviser, Sponsor, or employee of the Fund of Funds, or a person of 
which any such officer, director, member of an advisory board, Fund of 
Funds Adviser, Subadviser, Sponsor or employee is an affiliated person. 
An Underwriting Affiliate does not include a person whose relationship 
to a Fund is covered by section 10(f) of the Act.
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    \4\ A ``Fund of Funds Affiliate'' is a Fund of Funds Adviser, 
Subadviser, Sponsor, promoter, or principal underwriter of a Fund of 
Funds, and any person controlling, controlled by, or under common 
control with any of those entities. A ``Fund Affiliate'' is an 
investment adviser, sponsor, promoter, or principal underwriter of a 
Fund, and any person controlling, controlled by, or under common 
control with any of those entities.
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    5. Applicants do not believe that the proposed arrangement will 
involve excessive layering of fees. The board of directors or trustees 
of each Investing Management Company, including a majority of the 
directors or trustees who are not ``interested persons'' (within the 
meaning of section 2(a)(19) of the Act) (``Disinterested Trustees''), 
will find that the advisory fees charged to the Investing Management 
Company 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 Investing Management 
Company may invest. In addition, a Fund of Funds Advisor, trustee or 
Sponsor of a Fund of Funds will waive fees otherwise payable to it by 
the Fund of Funds, as applicable, in an amount at least equal to any 
compensation (including fees received pursuant to any plan adopted by 
an Open-end Fund under rule 12b-1 under the Act) received from a Fund 
by the Fund of Funds Advisor, trustee or Sponsor or an affiliated 
person of the Fund of Funds Adviser, trustee or Sponsor, other than 
advisory fees paid to the Fund of Funds Adviser, trustee or Sponsor, or 
its affiliated person by an Open-end Fund, in connection with the 
investment by the Fund of Funds in the Fund. Applicants also state that 
with respect to registered separate accounts that invest in a Fund of 
Funds, no sales load will be charged at the Fund of Funds level or at 
the Fund level. Other sales charges and service fees, as defined in 
Rule 2830 of the Conduct Rules of the National Association of 
Securities Dealers, Inc. (``NASD''), if any, will only be charged at 
the Fund of Funds level or at the Fund level, not both. With respect to 
other investments in a Fund of Funds, any sales charges and/or service 
fees charged with respect to shares of the Fund of Funds will not 
exceed the limits applicable to a fund of funds as set forth in Rule 
2830 of the NASD Conduct Rules.
    6. 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 
section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained 
in section 12(d)(1)(A) of the Act, except to the extent permitted by 
section 12(d)(1)(E) of the Act, an exemptive order that allows the Fund 
to purchase shares of an affiliated money market fund for short-term 
cash management purposes or rule 12d1-1 under the Act. Applicants also 
represent that to ensure that the Funds of Funds comply with the terms 
and conditions of the requested relief from section 12(d)(1) of the 
Act, a Fund of Funds must enter into a participation agreement between 
a Trust, on behalf of the relevant Funds, and the Funds of Funds 
(``Participation Agreement'') before investing in a Fund beyond the 
limits imposed by section 12(d)(1)(A). The Participation Agreement will 
require the Fund of Funds to adhere to the terms and conditions of the 
requested order. The Participation Agreement will include an 
acknowledgment from the Fund of Funds that it may rely on the requested 
order only to invest in the Funds and not in series of any other 
registered investment company. The Participation Agreement will further 
require each Fund of Funds that exceeds the 5% or 10% limitations in 
sections 12(d)(1)(A)(ii) and (iii) of the Act to disclose in its 
prospectus that it may invest in the Funds, and to disclose, in ``plain 
English,'' in its prospectus the unique characteristics of the Fund of 
Funds investing in the Funds, including but not limited to the expense 
structure and any additional expenses of investing in the Funds. Each 
Fund of Funds also will comply with the disclosure requirements set 
forth in Investment Company Act Release No. 27399 (June 20, 2006).
    7. Applicants also note that a Fund may choose to reject a direct 
purchase by a Fund of Funds. To the extent that a Fund of Funds 
purchases shares of an ETF Fund in the secondary market, the ETF Fund 
would still retain its ability to reject purchases of its shares 
through its decision to enter into the Participation Agreement prior to 
any investment by a Fund of Funds in excess of the limits of section 
12(d)(1)(A).

B. Section 17(a)

    1. Section 17(a) of the Act generally prohibits sales or purchases 
of securities between a registered investment company and any 
affiliated person of the company. Section 2(a)(3) of the Act defines an 
``affiliated person'' of another person to include any person 5% or 
more of whose outstanding voting securities are directly or indirectly 
owned, controlled, or held with power to vote by the other person.
    2. Applicants seek relief from section 17(a) to permit a Fund that 
is an affiliated person of a Fund of Funds because the Fund of Funds 
holds 5% or more of the Fund's shares to sell its shares to and redeem 
its shares from a Fund of Funds.\5\ Applicants believe that any 
proposed transactions directly between Funds and Funds of Funds will be 
consistent with the policies of each Fund and Fund of Funds. The 
Participation Agreement will require any Fund of Funds that purchases 
shares from a Fund to represent that the purchase of shares from the 
Fund by a Fund of Funds will be accomplished in compliance with the 
investment restrictions of the Fund of Funds and will be consistent 
with the investment policies set forth in the Fund of Funds' 
registration statement.\6\
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    \5\ Applicants acknowledge that receipt of any compensation by 
(a) an affiliated person of a Fund of Funds, or an affiliated person 
of such person, for the purchase by the Fund of Funds of shares of a 
Fund or (b) an affiliated person of a Fund, or an affiliated person 
of such person, for the sale by the Fund of its shares to a Fund of 
Funds is subject to section 17(e) of the Act. The Participation 
Agreement also will include this acknowledgment.
    \6\ To the extent that purchases and sales of shares of an ETF 
Fund occur in the secondary market and not through principal 
transactions directly between a Fund of Funds and an ETF Fund, 
relief from section 17(a) would not be necessary. However, the 
requested relief would apply to direct sales of shares in Creation 
Units by an ETF Fund to a Fund of Funds and redemptions of those 
shares. The requested relief is also intended to cover the in-kind 
transactions that would accompany such sales and redemptions, as 
described in the application for the ETF Order.
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    3. Section 17(b) of the Act authorizes the Commission to grant an 
order permitting a transaction otherwise prohibited by section 17(a) if 
it finds that (i) The terms of the proposed transaction are fair and 
reasonable and do not involve overreaching on the part of any person 
concerned; (ii) the proposed transaction is consistent with the 
policies of each registered investment company involved; and (iii) the 
proposed transaction is consistent with the general purposes of the 
Act. Section 6(c) of the Act permits the Commission to exempt any 
person or transactions from any provision of the Act if such exemption 
is necessary or appropriate in the public interest and consistent with 
the protection of investors and the purposes fairly intended by the 
policy and provisions of the Act.
    4. Applicants submit that the proposed arrangement satisfies the 
standards for relief under sections 17(b) and 6(c) of the Act. 
Applicants state that the terms of the arrangement are fair and

[[Page 76713]]

reasonable and do not involve overreaching. Applicants note that any 
consideration paid for the purchase or redemption of shares directly 
from a Fund will be based on the net asset value of the Fund. 
Applicants state that the proposed arrangement will be consistent with 
the policies of each Fund of Funds and Fund and with the general 
purposes of the Act.

Applicants' Conditions

    Applicants agree that any order granting the requested relief will 
be subject to the following conditions:
    1. The members of a Fund of Funds 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 Subadviser 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 
voting securities of a Fund, the Fund of Funds Advisory Group or the 
Subadviser Group, each in the aggregate, becomes a holder of more than 
25% of the outstanding voting securities of a Fund, it (except for any 
member of the Fund of Funds Advisory Group or Subadviser Group that is 
a separate account) will vote its shares of the Fund in the same 
proportion as the vote of all other holders of the Fund's shares. This 
condition does not apply to the Subadviser Group with respect to a Fund 
for which the Subadviser or a person controlling, controlled by, or 
under common control with the Subadviser 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). A 
registered separate account will seek voting instructions from its 
contract holders and will vote its shares in accordance with the 
instructions received and will vote those shares for which no 
instructions were received in the same proportion as the shares for 
which instructions were received. An unregistered separate account will 
either (i) Vote its shares of the Fund in the same proportion as the 
vote of all other holders of the Fund's shares; or (ii) seek voting 
instructions from its contract holders and vote its shares in 
accordance with the instructions received and vote those shares for 
which no instructions were received in the same proportion as the 
shares for which instructions were received.
    2. No Fund of Funds or Fund of Funds Affiliate will cause any 
existing or potential investment by the Fund of Funds in shares of a 
Fund to influence the terms of any services or transactions between the 
Fund of Funds or a Fund of Funds Affiliate and the Fund or a Fund 
Affiliate.
    3. The board of directors or trustees of an Investing Management 
Company, including a majority of the Disinterested Trustees, will adopt 
procedures reasonably designed to assure that the Fund of Funds Adviser 
and any Subadviser are conducting the investment program of the 
Investing Management Company without taking into account any 
consideration received by the Investing Management Company or a Fund of 
Funds Affiliate from a Fund or a Fund Affiliate in connection with any 
services or transactions.
    4. Once an investment by a Fund of Funds in the securities of an 
Open-end Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, 
the board of trustees of the Open-end Fund (``Board''), including a 
majority of the Disinterested Trustees, will determine that any 
consideration paid by the Open-end Fund to a Fund of Funds or a Fund of 
Funds Affiliate in connection with any services or transactions: (a) Is 
fair and reasonable in relation to the nature and quality of the 
services and benefits received by the Open-end 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).
    5. No Fund of Funds or Fund of Funds Affiliate (except to the 
extent it is acting in its capacity as an investment adviser to an 
Open-end Fund or sponsor to a UIT Fund) will cause a Fund to purchase a 
security in any Affiliated Underwriting.
    6. The Board of an Open-end Fund, including a majority of the 
Disinterested Trustees, will adopt procedures reasonably designed to 
monitor any purchases of securities by the Open-end Fund in an 
Affiliated Underwriting once an investment by a Fund of Funds in the 
securities of the Fund exceeds the limit in section 12(d)(1)(A)(i) of 
the Act, including any purchases made directly from an Underwriting 
Affiliate. The Board of the Open-end Fund will review these purchases 
periodically, but no less frequently than annually, to determine 
whether the purchases were influenced by the investment by the Fund of 
Funds in the Open-end Fund. The Board of the Open-end Fund will 
consider, among other things, (i) Whether the purchases were consistent 
with the investment objectives and policies of the Open-end Fund; (ii) 
how the performance of securities purchased in an Affiliated 
Underwriting compares to the performance of comparable securities 
purchased during a comparable period of time in underwritings other 
than Affiliated Underwritings or to a benchmark such as a comparable 
market index; and (iii) whether the amount of securities purchased by 
the Open-end Fund in Affiliated Underwritings and the amount purchased 
directly from an Underwriting Affiliate have changed significantly from 
prior years. The Board of the Open-end Fund 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.
    7. The 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 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 Fund of Funds in the securities 
of the Open-end Fund exceeds the limit in 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 determinations of the Board 
of the Open-end Fund were made.
    8. Before investing in a Fund in excess of the limits in section 
12(d)(1)(A) of the Act, the Fund of Funds and the Fund will execute a 
Participation 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 shares of an Open-end Fund in excess of 
the limit in section 12(d)(1)(A)(i), a Fund of Funds will notify the 
Open-end Fund of the investment. At such time, the Fund of Funds will 
also transmit to the Open-end Fund a list of the names of each Fund of 
Funds Affiliate and Underwriting Affiliate. The Fund of

[[Page 76714]]

Funds will notify the Open-end Fund of any changes to the list of the 
names as soon as reasonably practicable after a change occurs. The Fund 
and the Fund of Funds will maintain and preserve a copy of the order, 
the agreement and, in the case of an Open-end Fund, the list with any 
updated information for the duration of the investment and for a period 
of not less than six years thereafter, the first two years in an easily 
accessible place.
    9. Before approving any advisory contract under section 15 of the 
Act, the board of directors or trustees of each Investing Management 
Company, including a majority of the Disinterested Trustees, will find 
that the advisory fees charged under such advisory 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 Investing Management Company may invest. 
These findings and their basis will be recorded fully in the minute 
books of the appropriate Investing Management Company.
    10. A Fund of Funds Adviser, or trustee or Sponsor of a Fund of 
Funds, as applicable, will waive fees otherwise payable to it by the 
Fund of Funds in an amount at least equal to any compensation 
(including fees received pursuant to any plan adopted by an Open-end 
Fund under rule 12b-1 under the Act) received from a Fund by the Fund 
of Funds Adviser, trustee, or Sponsor, or an affiliated person of the 
Fund of Funds' Adviser, trustee or Sponsor, other than any advisory 
fees paid to the Fund of Funds' Adviser, trustee or Sponsor or its 
affiliated person, by an Open-end Fund, in connection with the 
investment by the Fund of Funds in the Fund. Any Subadviser will waive 
fees otherwise payable to the Subadviser, directly or indirectly, by 
the Investing Management Company in an amount at least equal to any 
compensation received from a Fund by the Subadviser, or an affiliated 
person of the Subadviser, other than any advisory fees paid to the 
Subadviser or its affiliated person by an Open-end Fund, in connection 
with the investment by the Investing Management Company in the Fund 
made at the direction of the Subadviser. In the event that the 
Subadviser waives fees, the benefit of the waiver will be passed 
through to the Investing Management Company.
    11. With respect to registered separate accounts that invest in a 
Fund of Funds, no sales load will be charged at the Fund of Funds level 
or at the Fund level. Other sales charges and service fees, as defined 
in Rule 2830 of the Conduct Rules of the NASD, if any, will only be 
charged at the Fund of Funds level or at the Fund level, not both. With 
respect to other investments in a Fund of Funds, any sales charges and/
or service fees charged with respect to shares of the Fund of Funds 
will not exceed the limits applicable to a fund of funds as set forth 
in Rule 2830 of the NASD Conduct Rules.
    12. No Fund will acquire securities of any investment company or 
company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of 
the limits contained in section 12(d)(1)(A) of the Act, except to the 
extent permitted by section 12(d)(1)(E) of the Act, an exemptive order 
that allows a Fund to purchase shares of an affiliated money market 
fund for short-term cash management purposes or rule 12d1-1 under the 
Act.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Nancy M. Morris,
Secretary.
 [FR Doc. E6-21780 Filed 12-20-06; 8:45 am]

BILLING CODE 8011-01-P
