

[Federal Register: March 5, 2007 (Volume 72, Number 42)]
[Notices]               
[Page 9787-9792]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05mr07-82]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-27745; 812-13344]

 
BLDRS Index Funds Trust, et al.; Notice of Application

February 28, 2007.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of application for an order under section 6(c) of the 
Investment Company Act of 1940 (``Act'') for an exemption from sections 
2(a)(32), 4(2), 22(d), 24(d) and 26(a)(2)(C) of the Act and rule 22c-1 
under the Act; under sections 6(c) and 17(b) of the Act for an 
exemption from sections 17(a)(1) and (a)(2) of the Act; and under 
section 17(d) of the Act and rule 17d-1 under the Act to permit certain 
joint transactions.

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SUMMARY OF APPLICATION: Applicants request an order that would permit: 
(a) BLDRS Index Funds Trust (the ``Fund''), a unit investment trust 
(``UIT'') with multiple series (each series, a ``Trust'') whose 
portfolios will consist of the component stocks of various specified 
indices (collectively, the ``Benchmark Indices,'' and each, a 
``Benchmark Index''), to issue shares (``Trust Shares'') that are only 
redeemable in large aggregations; (b) secondary market transactions in 
Trust Shares to occur at negotiated prices; (c) dealers to sell Trust 
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) the Trusts, rather than the 
Sponsor (as defined below), to bear certain expenses associated with 
maintaining the Trusts; (e) certain ``affiliated persons'' of the 
Trusts to deposit securities into, and receive securities from, the 
Trusts in connection with the purchase and redemption of Trust Shares; 
and (f) the Trusts to reimburse the Sponsor for payment of an annual 
licensing fee to The Bank of New York (``BoNY'').

APPLICANTS: The Fund, PowerShares Capital Management LLC 
(``PowerShares,'' together with its successor in interest \1\ and with 
any person, directly or indirectly, controlling, controlled by, or 
under common control with, PowerShares, ``Sponsor''), and ALPS 
Distributors, Inc. (``Distributor'').
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    \1\ ``Successors in interest'' means any entity or entities that 
result from a reorganization into another jurisdiction or a change 
in the type of business organization.

FILING DATES: The application was filed on November 20, 2006. 
Applicants have

[[Page 9788]]

agreed to file an amendment during the notice period, the substance of 
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which is reflected in this notice.

HEARING OR NOTIFICATION OF HEARING: An order granting the requested 
relief will be issued unless the Commission orders a hearing. 
Interested persons may request a hearing by writing to the Commission's 
Secretary and serving applicants with a copy of the request, personally 
or by mail. Hearing requests should be received by the Commission by 
5:30 p.m. on March 20, 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: Addresses: Secretary, U.S. Securities and Exchange 
Commission, 100 F Street, NE., Washington, DC 20549-1090. Applicants: 
H. Bruce Bond, PowerShares Capital Management LLC, 301 West Roosevelt 
Road, Wheaton, IL 60187.

FOR FURTHER INFORMATION CONTACT: Jaea F. Hahn, Senior Counsel, at (202) 
551-6870, or Janet M. Grossnickle, Branch Chief, at (202) 551-6821 
(Division of Investment Management, Office of Investment Company 
Regulation).

Applicants' Representations

    1. Each Trust is a unit investment trust that is or will be 
organized under the laws of the State of New York. The Sponsor is a 
wholly owned subsidiary of AIM Management Group Inc.\2\ The Bank of New 
York (``BoNY'') acts as trustee to each Trust (``Trustee'') pursuant to 
a trust agreement entered into by and between BoNY and the Initial 
Sponsor (each a ``Trust Agreement''). The Distributor is registered as 
a broker-dealer under the Securities Exchange Act of 1934 (``Exchange 
Act'') and serves, on an agency basis, as principal underwriter of the 
Trusts.
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    \2\ On October 18, 2006, PowerShares entered into a Transaction 
Agreement (``Transaction Agreement'') with The Nasdaq Stock Market 
(``Nasdaq''), the parent of Nasdaq Global Funds, Inc. (formerly 
named Nasdaq AMEX Investment Product Services, Inc., and later 
renamed Nasdaq Financial Products Services, Inc., the ``Initial 
Sponsor'') pursuant to which the Initial Sponsor will transfer 
sponsorship of the Trusts to PowerShares. In connection with the 
Transaction Agreement, PowerShares is seeking exemptive relief 
substantially identical to the relief granted to the Trust pursuant 
to a Commission order (Investment Company Act Release No. 25797 
(Nov. 8, 2002), as amended by Investment Company Act Release No. 
26415 (Apr. 9, 2004)). The transfer of sponsorship of the Trust from 
the Initial Sponsor to PowerShares is contingent upon receipt of the 
exemptive relief requested in the application.
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    2. Each Trust holds a portfolio of securities (``Portfolio 
Securities'') consisting of substantially all of the securities in 
substantially the same weighting as the component securities of the 
Benchmark Index that it tracks (the ``Index Securities''). There are 
currently four Trusts (``Current Trusts'').\3\ The Benchmark Indices 
for the Current Trusts (the ``Initial Benchmark Indices'') are compiled 
by BoNY (the ``BoNY Index Provider'').\4\ Pursuant to guidelines 
adopted by BoNY for the Index Provider, the BoNY personnel involved in 
compiling the Benchmark Indices cannot include any BoNY employees who 
are members of the BoNY division that provides trustee services to the 
Trusts, any broker-dealer affiliated with BoNY, BoNY's asset management 
division, or BoNY's private banking group.
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    \3\ The Current Trusts are the BLDRS Asia 50 ADR Index Fund, 
BLDRS Developed Markets 100 ADR Index Fund, BLDRS Emerging Markets 
50 ADR Index Fund and BLDRS Europe 100 ADR Index Fund. All Trusts 
that currently intend to rely on the requested order have been named 
as applicants. Any other existing Trust or any Trust organized in 
the future that relies on the requested order will comply with the 
terms and conditions of the application.
    \4\ The Benchmark Indices are the (a) BoNY Asia 50 ADR Index, 
(b) BoNY Developed Markets 100 ADR Index, (c) BoNY Emerging Markets 
50 ADR Index and (d) BoNY Europe 100 ADR Index. The Initial 
Benchmark Indices are sub-indices of the BoNY ADR Index, which is an 
index of all U.S. exchange-listed Depositary Receipts (``DRs''), 
subject to certain eligibility requirements. Applicants note that 
BoNY is a prominent participant in the DR market, and receives 
various fees and commissions in connection with its DR program 
functions. BoNY has informed applicants that the index compilation 
is bound by objective criteria, and that the identity of the 
depositary bank for a DR is never a criterion in the selection of 
Index Securities. As discussed in the application, BoNY represents 
that its DR sales efforts are not coordinated with the compilation 
of the Benchmark Indices.
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    3. In the future, applicants may offer additional Trusts based on 
other Benchmark Indices (``Future Trusts''). Any Future Trust will (a) 
be organized under New York state law pursuant to a trust agreement 
substantially identical to the Trust Agreements, (b) be sponsored by 
the Sponsor, and (c) comply with the terms and conditions of the 
requested order. No entity that creates, compiles, sponsors or 
maintains a Benchmark Index 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 Sponsor, Distributor or promoter of a Trust.
    4. Trust Shares, units of beneficial interest in the Trusts, are 
designed to provide investors with an instrument that closely tracks 
the Benchmark Indices, trades like a share of common stock, and pays 
periodic dividends proportionate to those paid by the Index Securities 
to the extent they exceed the Trust's fees and expenses.\5\ The Trustee 
makes adjustments to the Portfolio Securities to reflect changes made 
by the BoNY Index Provider to the composition and weighting of the 
Index Securities.\6\ All adjustments to the Portfolio Securities are 
made by the Trustee as set forth in the Trust Agreements and are non-
discretionary. Applicants state that the Trustee, consistent with its 
fiduciary duties, may utilize a broker-dealer that is an ``affiliated 
person,'' as defined in section 2(a)(3) of the Act, of the Trustee 
(each, an ``Affiliated Broker-Dealer'') in executing the transactions 
that are necessitated by the required adjustment(s).\7\ Applicants 
state that neither BoNY nor any Affiliated Broker-Dealer purchases or 
sells DRs on a principal basis, or intends to sell DRs or any other 
securities to any Trust on a principal basis. BoNY and its Affiliated 
Broker-Dealers would engage in transactions with a Trust on an agency 
basis only.
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    \5\ The Trusts make quarterly distributions when dividends on 
the Portfolio Securities and other income of the Trust, if any, 
exceed fees and expenses accrued by the Trust during the previous 
quarter. The Trustee may vary the frequency of dividend 
distributions under certain circumstances.
    \6\ The BoNY Index Provider determines, comprises and calculates 
Benchmark Indices without regard to any Trust. BoNY has instituted 
formal firewall procedures to ensure that no BoNY personnel involved 
in providing trustee services to the Trusts have access to 
information regarding changes to the Benchmark Indices prior to 
their public announcement.
    \7\ BoNY has adopted firewall procedures that prohibit 
communications regarding changes or proposed changes to the 
Benchmark Indices between any Affiliated Broker-Dealer and the BoNY 
personnel involved in the compilation of the Benchmark Indices.
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    5. Trust fees and expenses are first paid out of income received by 
the Trust in the form of dividends and other distributions on Portfolio 
Securities.\8\ Each Trust pays the Trustee a fee ranging from 0.06% to 
0.10% of the net asset value (``NAV'') of the Trust on an annualized 
basis, such percentage to vary based on the NAV of the Trust. The 
Trustee in its discretion may waive all or any portion of such fee.
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    \8\ Applicants expect that the income of the Trust may be 
insufficient to pay the fees and expenses of the Trust. In such 
circumstances, the Trustee will sell Portfolio Securities to 
generate sufficient cash to pay the Trust fees and expenses in 
excess of Trust income. The Trustee is ordinarily required to sell 
Portfolio Securities whenever the Trustee determines that accrued 
fees and expenses exceed dividends and other Trust accrued income on 
a projected basis by more than 0.01% of the NAV of the Trust.
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    6. Pursuant to a license agreement (``License Agreement''), the 
BoNY Index

[[Page 9789]]

Provider has granted the Sponsor a license to use the Benchmark Indices 
and certain trademarks of BoNY. The Sponsor will pay the BoNY Index 
Provider an annual licensing fee for each Benchmark Index and will seek 
reimbursement from each Trust for the fee charged in connection with 
its Benchmark Index. The Sponsor will pay the Distributor a flat annual 
fee for services provided to the Trusts. The Sponsor will not seek 
reimbursement from any Trust for such payment without obtaining prior 
exemptive relief from the Commission.
    7. Trust Shares are issued in aggregations of 50,000 shares 
(``Creation Units''). Orders to purchase Creation Units generally must 
be delivered to the Distributor through a party that has executed a 
participant agreement with the Distributor and Trustee, and is either 
(a) a participant in the Continuous Net Settlement System of the 
National Securities Clearing Corporation (``NSCC,'' and the NSCC 
process of placing orders, the ``Trust Shares Clearing Process''), or 
(b) a Depository Trust Company (``DTC'') participant, but such entity 
or person is not required to be a Nasdaq member.
    8. An investor wishing to purchase a Creation Unit from the Trust 
will have to transfer to the Trustee a ``Portfolio Deposit,'' 
consisting of the following: (a) A portfolio of securities 
substantially similar in composition and weighting to the Index 
Securities (``Deposit Securities''); \9\ (b) a cash payment equal to 
the dividends accrued on the Portfolio Securities since the last 
dividend payment on the Portfolio Securities, net of expenses and 
liabilities (``Income Net of Expense Amount''); and (c) a cash payment 
or credit to equalize any differences between the market value of the 
Deposit Securities and the NAV of the Trust on a per Creation Unit 
basis (``Balancing Amount,'' and together with the Income Net of 
Expense Amount, the ``Cash Component'').\10\ The Sponsor or its 
designee makes available on each Business Day a list of the names and 
the required number of shares of each of the Deposit Securities in the 
current Portfolio Deposit, as well as the Income Net of Expense Amount, 
effective through and including the previous Business Day, per 
outstanding Trust Share.\11\ The Sponsor or its designee makes 
available on the Exchange, every 15 seconds of each Business Day, the 
sum of the Income Net of Expense Amount and the value of the Deposit 
Securities, on a per Trust Share basis. An investor making a Portfolio 
Deposit is charged a service fee (``Transaction Fee'') to be paid to 
the Trustee to defray the Trustee's costs in processing transactions 
for the Trust.\12\
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    \9\ The Trusts will comply with the federal securities laws in 
accepting Deposit Securities and satisfying redemptions with 
Redemption Securities (as defined below), including that the Deposit 
Securities and Redemption Securities are sold in transactions that 
would be exempt from registration under the Securities Act of 1933. 
The specified Deposit Securities and Redemption Securities generally 
will correspond pro rata to the Portfolio Securities.
    \10\ At the close of the market on each Business Day (as defined 
below), the Trustee calculates the NAV of each Trust, divides that 
amount by the total number of shares outstanding (yielding a ``Per 
Trust Share NAV''), multiplies the Per Trust Share NAV by the number 
of Trust Shares in a Creation Unit (e.g., 50,000), thereby 
calculating the NAV per Creation Unit. The Trustee then calculates 
the required number of shares of Index Securities and the Cash 
Component that will comprise a Portfolio Deposit for the following 
Business Day. A ``Business Day'' is any day that the Nasdaq or any 
other Exchange that lists Trust Shares is open for business and any 
day that the Trusts are open for business as required by section 
22(e) of the Act.
    \11\ The cash equivalent of an Index Security may be included in 
the Cash Component of a Portfolio Deposit in lieu of the Index 
Security if (a) the Trustee determines that an Index Security is 
likely to be unavailable or available in insufficient quantity for 
inclusion in a Portfolio Deposit, or (b) a particular investor is 
restricted from investing or engaging in transactions in the Index 
Security (for example, when the investor is a broker-dealer 
restricted by regulation or internal policy from investing in 
securities issued by a company on whose board of directors one of 
its principals serves or when the investor is a broker-dealer and 
the security is on its ``restricted list'').
    \12\ The Transaction Fee will be $10 per each security ``name'' 
(i.e., each security identified by a separate CUSIP number) in the 
Portfolio Deposit, rounded to the nearest $500 for BLDRS Asia 50 ADR 
Index Fund and BLDRS Emerging Markets 50 ADR Index Fund and $1,000 
for BLDRS Developed Markets 100 ADR Index Fund and BLDRS Europe 100 
ADR Index Fund per Participating Party (as defined below) per day, 
regardless of the number of Creation Units purchased by such 
Participating Party on such day. ``Participating Party'' means an 
NSCC participant who may place orders through the Trust Shares 
Clearing Process. The Transaction Fee may be changed by the Trustee 
with the Sponsor's consent, but will not exceed 0.20% of the value 
of a Creation Unit. Investors who purchase Creation Units outside 
the Trust Shares Clearing Process will pay the Transaction Fee plus 
an amount not to exceed three times the Transaction Fee. The amount 
of the Transaction Fee is disclosed in the prospectus for the Trust.
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    9. Orders to purchase Creation Units are placed with the 
Distributor, who is responsible for transmitting orders to the Trustee. 
The Distributor issues confirmations of acceptance, issues delivery 
instructions to the Trustee to implement the delivery of Creation 
Units, and maintains records of the orders and the confirmations. The 
Distributor also is responsible for delivering prospectuses to 
purchasers of Creation Units and may provide certain other 
administrative services.
    10. Persons purchasing Creation Units from the Trust may hold the 
Trust Shares or sell some, or all, of them in the secondary market. 
Trust Shares of the Current Trusts are listed on Nasdaq and all Trust 
Shares will be listed on a national securities exchange as defined in 
section 2(a)(26) of the Act (``Exchange''). Trust Shares are traded in 
the secondary market as individual units (i.e., in less than Creation 
Units) in the same manner as other equity securities. Participating 
Parties act as market makers (``Market Makers'') on Nasdaq and maintain 
a market for Trust Shares.\13\ The price of each Trust Share that 
trades on Nasdaq is based on the current bid-offer market. Transactions 
involving Trust Shares on Nasdaq are subject to customary brokerage 
commissions and charges. Applicants state that the price at which Trust 
Shares trade is disciplined by arbitrage opportunities created by the 
continuous ability to purchase or redeem Creation Units at their NAV, 
which ensures that Trust Shares do not trade at a material premium or 
discount in relation to their NAV.\14\
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    \13\ No particular Market Maker is contractually obligated to 
make a market in Trust Shares although Nasdaq's listing requirements 
stipulate that at least two Market Makers must be registered in 
Trust Shares to maintain a listing on Nasdaq. Applicants state that 
no Market Maker will be an affiliated person, promoter, or principal 
underwriter of the Trusts, or an affiliated person of such persons, 
within the meaning of section 2(a)(3) of the Act, except pursuant to 
section 2(a)(3)(A) or (C) of the Act due to ownership of Trust 
Shares, as described below.
    \14\ Applicants do not believe there are any special liquidity 
issues as to constituents in the Benchmark Indices, in light of the 
fact that constituent DRs are selected based on liquidity that is 
high relative to DRs that would otherwise fit the relevant criteria. 
The constituent DRs of the Benchmark Indices are traded and priced 
on national securities exchanges, as are the constituent securities 
of other indices on which exchange-traded funds investing in 
domestic securities are based. Accordingly, applicants believe that 
the pricing transparency for DRs should be equivalent to that of 
other securities that are traded and priced on national securities 
exchanges. Because there are no apparent differences in the pricing 
transparency between DRs and such other equity securities, 
applicants believe that there are no corresponding differences in, 
and no deleterious effects on, the arbitrage efficiency of the 
Trusts.
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    11. Purchasers of Creation Units include institutional investors 
and arbitrageurs, which include institutional investors. Market Makers 
or specialists of an Exchange also may purchase Trust Shares in 
connection with their market making activities. Secondary market 
purchasers of Trust Shares include both institutional and retail 
investors.\15\
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    \15\ Trust Shares are registered in book-entry form only. DTC or 
its nominee is the record owner of all outstanding Trust Shares. 
Beneficial ownership of Trust Shares is shown on the records of DTC 
or its participants.
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    12. Applicants make available a standard Trust Shares product 
description (``Product Description'') to members and member 
organizations for

[[Page 9790]]

distribution to investors purchasing Trust Shares in accordance with 
Exchange rules. Currently, the rules of the National Association of 
Securities Dealers (``NASD'') require that NASD members distribute a 
Product Description to all purchasers of Trust Shares. The Product 
Description provides a plain English overview of a Trust, including the 
material risks and potential rewards of owning Trust Shares, and 
discloses the salient aspects of Trust Shares. The Product Description 
advises investors that a prospectus for Trust Shares is available 
without charge from the investor's broker or from the Distributor. 
Applicants believe that the volume of purchase transactions in which an 
investor will not receive a Product Description does not constitute a 
significant portion of the market activity in Trust Shares.
    13. Trust Shares are not individually redeemable, except upon 
termination of the Trust. Trust Shares are redeemable in Creation Units 
only. An investor redeeming a Creation Unit will receive a portfolio of 
securities typically identical in composition and weighting to the 
Deposit Securities as of the date the redemption request was made 
(``Redemption Securities''). The redeeming investor may receive the 
cash equivalent of an Index Security (a) when the Trustee determines 
that an Index Security is likely to be unavailable or available in 
insufficient quantity for delivery by the Trust, or (b) upon the 
request of the redeeming investor (because, for example, the redeeming 
investor is restricted by regulation or otherwise from holding an Index 
Security). The redeeming investor also may receive, or may pay, cash in 
an amount equal to the Cash Component in effect on the relevant 
Business Day for Portfolio Deposits (``Cash Redemption Amount''). The 
redeeming investor will pay a Transaction Fee, which will be calculated 
in the same manner as a Transaction Fee payable in connection with the 
purchase of a Creation Unit on the relevant Business Day.
    14. Because each Trust ordinarily redeems in kind, rather than in 
cash, the Trustee will not have to maintain cash reserves for 
redemptions. This allows the assets of each Trust to be committed as 
fully as possible to tracking the relevant Benchmark Index, and allows 
each Trust to track the relevant Benchmark Index more closely than 
other market basket products that must allocate a portion of their 
assets to cash for redemptions.

Applicants' Legal Analysis

    1. Applicants request an order under (a) section 6(c) of the Act 
granting an exemption from sections 2(a)(32), 4(2), 22(d), 24(d) and 
26(a)(2)(C) of the Act and rule 22c-1 under the Act; (b) sections 6(c) 
and 17(b) of the Act granting an exemption from sections 17(a)(1) and 
(2) of the Act; and (c) section 17(d) and rule 17d-1 under the Act to 
permit certain joint transactions.
    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, 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.

Sections 4(2) and 2(a)(32) of the Act

    3. Section 4(2) of the Act defines a UIT as an investment company 
that, among other things, issues only redeemable securities. 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 holder, upon 
its presentation to the issuer is entitled to receive approximately a 
proportionate share of the issuer's current net assets, or the cash 
equivalent. Because Trust Shares would not be individually redeemable, 
applicants request an order that would permit the Trust to register as 
a UIT and issue Trust Shares that are redeemable in Creation Units 
only. Applicants state that investors may purchase and redeem Trust 
Shares through the Trust in Creation Units. Applicants further state 
that, because the market price of Creation Units is disciplined by 
arbitrage opportunities, investors should be able to sell individual 
Trust Shares in the secondary market at approximately 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 that is being currently offered to 
the public by or through an underwriter, except at the 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 next 
computed after receipt of a tender of the security for redemption or of 
an order to purchase or sell the security. Applicants state that 
secondary market trading in Trust Shares takes place at negotiated 
prices, not at a current offering price described in the prospectus and 
not at a price based on NAV. Thus, purchases and sales of Trust Shares 
in the secondary market do not comply with section 22(d) and rule 22c-
1, and applicants request an exemption from these provisions.
    5. Applicants maintain that, while there is little legislative 
history regarding section 22(d), its provisions and 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) assure an orderly distribution of 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. Applicants believe that none of these 
purposes is thwarted by permitting Trust Shares to trade in the 
secondary market at negotiated prices. Applicants state that secondary 
market trading in Trust Shares does not involve the Trust directly and 
cannot, therefore, result in dilution of Trust assets. Applicants also 
state that, to the extent different prices exist during a trading day, 
or from day to day, for Trust Shares, such variances occur as a result 
of third-party market forces, such as supply and demand, and not as a 
result of unjust or discriminatory manipulation. Therefore, applicants 
assert that secondary market transactions in Trust Shares do not create 
discrimination or preferential treatment among buyers. Finally, 
applicants contend that the proposed distribution system is orderly 
because arbitrage activity ensures that the difference between the 
market price of Trust Shares and their NAV remains narrow.

Section 24(d) of the Act

    6. Section 24(d) of the Act provides, in pertinent 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 a UIT. Applicants request an exemption 
from section 24(d) to permit dealers in Trust Shares to rely on the 
prospectus delivery exemption provided by section 4(3) of the 
Securities Act.\16\
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    \16\ Applicants are not seeking relief from the prospectus 
delivery requirement for non-secondary market transactions, 
including purchases of Creation Units or those involving an issuer. 
Applicants state that persons purchasing Creation Units will be 
cautioned in the prospectus that some activities on their part may, 
depending on the circumstances, 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 takes Creation Units after placing an order with 
the Distributor, breaks them down into the constituent Trust Shares, 
and sells Trust Shares directly to its customers, or if it chooses 
to couple the purchase of a supply of new Trust Shares with an 
active selling effort involving solicitation of secondary market 
demand for Trust Shares. The prospectus states that whether a person 
is an underwriter depends upon all the facts and circumstances 
pertaining to that person's activities. The prospectus also states 
that dealers who are not ``underwriters'' but are participating in a 
distribution (as contrasted to ordinary secondary market trading 
transactions), and thus dealing with Trust Shares that are part of 
an ``unsold allotment'' within the meaning of section 4(3)(C) of the 
Securities Act, would be unable to take advantage of the prospectus 
delivery exemption provided by section 4(3) of the Securities Act.

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[[Page 9791]]

    7. Applicants state that the secondary market for Trust Shares is 
significantly different from the typical secondary market for UIT 
securities, which is usually maintained by the sponsor of the UIT. 
Trust Shares are listed on an Exchange and trade in the same manner as 
listed securities issued by operating companies and closed-end 
investment companies. Dealers selling shares of operating companies and 
closed-end investment companies in the secondary market are generally 
not required to deliver a prospectus to a purchaser.
    8. Applicants contend that Trust Shares, as listed securities, 
merit a reduction in the compliance costs and regulatory burdens 
resulting from the imposition of prospectus delivery obligations in the 
secondary market. Because Trust Shares are exchange-listed, prospective 
investors have access to several types of market information about the 
product. Applicants state that quotations, last sale price, and volume 
information are continually available on a real-time basis through the 
consolidated tape and are available throughout the day on brokers' 
computer screens and other electronic services. The previous day's 
price and volume information also is published in the financial section 
of newspapers. The Sponsor publishes daily, on a per Trust Share basis, 
the Income Net of Expense Amount. The Fund's Web site contains 
quantitative information, updated on a daily basis, regarding the 
previous Business Day's NAV and the reported closing price. The Web 
site also includes for each Trust, a calculation of the premium or 
discount of the closing price against NAV and data, in chart format, 
displaying the frequency distribution of discounts and premiums of the 
closing price against the NAV, within appropriate ranges, for each of 
the four previous calendar quarters.
    9. In addition, secondary market purchasers generally receive the 
Product Description. Applicants state that, while the Product 
Description is not intended as a substitute for a prospectus, it 
contains pertinent information about Trust Shares. Applicants also note 
that Trust Shares are understandable to retail investors as a product 
that tracks the Benchmark Indices.

Section 26(a)(2)(C) of the Act

    10. Section 26(a)(2)(C) of the Act requires, among other things, 
that a UIT's trust indenture prohibit payments to the trust's depositor 
(in the case of a Trust, the Sponsor), and any affiliated person of the 
depositor, except payments for performing certain administrative 
services. Applicants request an exemption from section 26(a)(2)(C) to 
permit any Trust to reimburse the Sponsor for certain licensing, 
registration, and marketing expenses.
    11. Applicants state that, ordinarily, a sponsor of a UIT has an 
opportunity to profit in connection with the creation of a trust in two 
ways--through the difference between the acquisition cost of the 
securities and their value on the date of deposit in the trust and, to 
the extent a secondary market is maintained for units, through the 
imposition of sales charges on resales of units. Expenses normally 
incurred in the creation and maintenance of a trust can then be offset 
against such profits. Applicants assert, however, that under the 
proposed structure, the usual sources of income are not available 
because the Sponsor does not impose a sales load or deposit Index 
Securities into the Trust. Applicants contend that the motivation for 
the limitations imposed in section 26(a)(2)(C) of the Act was the fear 
that sponsors could take unfair advantage of a trust to profit, when 
profits were already being generated through sales charges and market 
gains (on the securities deposited by the sponsor). Applicants contend 
that no such opportunity to profit exists for Sponsor.
    12. Applicants state that permitting a Trust to reimburse the 
Sponsor for certain of the Trust's expenses is no more disadvantageous 
to the holders of Trust Shares than allowing the expenses to be imposed 
indirectly as offsets to sales loads and other charges, as is done by 
typical UITs. Applicants state that a Trust pays the Sponsor only its 
actual out-of-pocket expenses. Finally, applicants state that the 
payment is capped at 30 basis points of the Trust's NAV on an 
annualized basis, with any expenses in excess of that amount to be 
absorbed by the Sponsor.

Section 17(a) of the Act

    13. Section 17(a) of the Act generally prohibits an affiliated 
person of a registered investment company, or an affiliated person of 
such person, from selling any security to or purchasing any security 
from, the investment company. Section 2(a)(3) 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, and any person 
controlling, controlled by or under common control with the other 
person. Section 2(a)(9) provides that a control relationship will be 
presumed where one person owns 25% or more of another person's voting 
securities. Applicants state that, because the definition of 
``affiliated person'' includes any person owning 5% or more, or more 
than 25%, of an issuer's outstanding voting securities, every purchaser 
of a Creation Unit will be an affiliated person of the Trust so long as 
20 or fewer Creation Units are in existence. Applicants request an 
exemption from section 17(a) under sections 6(c) and 17(b) to permit 
persons that are affiliated persons solely by virtue of a 5% or more, 
or more than 25%, ownership interest in a Trust (or affiliated persons 
of such persons that are not otherwise affiliated with the Trusts) to 
purchase and redeem Creation Units through in-kind transactions.
    14. Section 17(b) authorizes the Commission to exempt a proposed 
transaction from section 17(a) if the terms of the transaction, 
including the consideration to be paid or received, are reasonable and 
fair and do not involve overreaching, and the proposed transaction is 
consistent with the policies of the registered investment company and 
with the general purposes of the Act. Applicants assert that no useful 
purpose would be served by prohibiting the affiliated persons described 
above from making in-kind purchases and redemptions of Creation Units. 
The composition of a Portfolio Deposit made by a purchaser, like the 
Redemption Securities and Cash Redemption Amount given to a redeeming 
investor, is the same regardless of the investor's identity, and is 
valued under the same objective standards applied to valuing the 
Portfolio Securities in connection with determining the Trust's NAV. 
Therefore, applicants state that in-kind purchases and redemptions 
afford no opportunity for the affiliated persons described above to 
effect a transaction detrimental to other holders of Trust Shares. 
Applicants also believe that in-kind

[[Page 9792]]

purchases and redemptions do not result in abusive self-dealing or 
overreaching by affiliated persons of the Funds.

Section 17(d) of the Act and Rule 17d-1 Under the Act

    15. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
any affiliated person of, or principal underwriter for, a registered 
investment company, or any affiliated person of the affiliated person 
or the principal underwriter, acting as principal, from effecting any 
transaction in connection with any joint enterprise or other 
arrangement or profit-sharing plan in which the investment company 
participates, unless an application regarding the joint transaction has 
been filed with the Commission and granted by order. Under rule 17d-1, 
in passing upon such applications, the Commission considers whether the 
participation of the registered investment company in the joint 
transaction is consistent with the provisions, policies and purposes of 
the Act and the extent to which such participation is on a basis 
different from or less advantageous than that of other participants.
    16. Applicants request an order under rule 17d-1 that would permit 
a Trust to reimburse the Sponsor for the payment to the BoNY Index 
Provider of an annual license fee under the License Agreement. 
Applicants believe that relief is necessary because the Sponsor may be 
deemed an affiliated person of the Trust, as defined in section 2(a)(3) 
of the Act, and the Trust's undertaking to reimburse the Sponsor might 
be deemed a joint enterprise or other joint arrangement in which the 
Trust is a participant, in contravention of section 17(d) and rule 17d-
1.
    17. The License Agreement allows applicants to use the Benchmark 
Indices as bases for Trust Shares and to use certain of BoNY's trade 
name and trademark rights. Applicants believe that BoNY is a valuable 
name that is well-known to investors and believe that investors wish to 
invest in instruments that closely mirror the Benchmark Indices. In 
view of this, applicants state that it is necessary to obtain from BoNY 
the License Agreement so that appropriate reference to BoNY may be made 
in materials describing Trust Shares and the Trust. Applicants assert 
that the terms and provisions of the License Agreement are comparable 
to the terms and provisions of other similar license agreements and 
that the annual license fee is for fair value, is in an amount 
comparable to that which would be charged by the BoNY Index Provider 
for similar arrangements, and is in an amount comparable to that 
charged by licensors in connection with the formation of other UITs 
based on other indices. For these reasons, applicants state that the 
proposed license fee arrangement satisfies the standards of section 
17(d) and rule 17d-1.

Applicants' Conditions

    Applicants agree that any order granting the requested relief will 
be subject to the following conditions:
    1. Each Trust's prospectus and Product Description will clearly 
disclose that, for purposes of the Act, Trust Shares are issued by a 
registered investment company, and the acquisition of Trust 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 Trust Shares beyond the 
limits in Section 12(d)(1)(A), subject to certain terms and conditions, 
including that the registered investment company enter into an 
agreement with the Trust regarding the terms of the investment.
    2. As long as a Trust operates in reliance on the requested order, 
the Trust Shares will be listed on an Exchange.
    3. The Web site for the Trusts, which will be publicly accessible 
at no charge, will contain the following information, on a per Trust 
Share basis, for each Trust: (a) The prior Business Day's NAV and the 
reported closing price, and a calculation of the premium or discount of 
such price against such NAV; and (b) data in chart format displaying 
the frequency distribution of discounts and premiums of the daily 
closing price against the NAV, within appropriate ranges, for each of 
the four previous calendar quarters. In addition, the Product 
Description for each Trust will state that the Web site for the Trusts 
has information about the premiums and discounts at which the Trust 
Shares have traded.
    4. The prospectus and annual report for each Trust will also 
include: (a) The information listed in condition 3(b) above, (i) in the 
case of the 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 
Trust Share basis for one, five and ten year periods (or life of that 
Trust), (i) the cumulative total return and the average annual total 
return based on NAV and closing price, and (ii) the cumulative total 
return of the relevant Benchmark Index.
    5. Before a Trust 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 Trust Shares to deliver a Product Description to 
purchasers of Trust Shares.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-3784 Filed 3-2-07; 8:45 am]

BILLING CODE 8010-01-P
