

[Federal Register: November 6, 2007 (Volume 72, Number 214)]
[Notices]               
[Page 62705-62709]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06no07-120]                         

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 28039; 812-13416]

 
Rafferty Asset Management, et al.; Notice of Application

October 30, 2007.
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 registered under the Act, that are outside of the same group 
of investment companies as the acquiring investment companies.

Applicants: Rafferty Asset Management, LLC (``Rafferty'' or 
``Adviser''), Direxion Funds (``DF'') and Direxion Insurance Trust LLC 
(``DIT,'' together with DF, the ``Trusts'').

Filing Dates: The application was filed on August 10, 2007, and amended 
on October 26, 2007. 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 November 26, 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, 33 Whitehall 
Street, 10th Floor, New York, NY 10004.

FOR FURTHER INFORMATION CONTACT: Bruce R. MacNeil, Senior Counsel, at 
(202) 551-6817, or Janet M. Grossnickle, Branch Chief, at (202) 551-
6821 (Division of Investment Management, Office of Investment Company 
Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained for a fee at the 
Public Reference 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 Funds of DF are sold publicly to retail investors, and shares 
of Funds of DIT are sold to insurance company separate accounts funding 
variable life and variable annuity contracts. The Adviser is registered 
as an investment adviser

[[Page 62706]]

under the Investment Advisers Act of 1940 (``Advisers Act'') and serves 
as investment adviser to each Fund.\1\
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    \1\ The term ``Adviser'' includes all entities controlling, 
controlled by or under common control with Rafferty and its 
successors in interest. A successor in interest is an entity 
resulting from a reorganization of Rafferty into another 
jurisdiction or a change in the type of business organization.
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    2. Applicants request relief to permit registered management 
investment companies and their series (``Investing Companies'') and 
registered unit investment trusts and their series (``Investing 
Trusts,'' and together with the Investing Companies, ``Investing 
Funds'') that are outside of the same ``group of investment 
companies,'' within the meaning of section 12(d)(1)(G)(ii) of the Act, 
as the Trusts, 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 each 
Fund to an Investing Fund in excess of the limits of section 
12(d)(1)(B) of the Act. Applicants request that the relief apply to: 
(a) Other existing and future registered open-end management investment 
companies and series thereof (included in the term ``Funds'') advised 
by the Adviser and in the same group of investment companies, within 
the meaning of section 12(d)(1)(G)(ii) of the Act, as the Trusts; (b) 
each Investing Fund that enters into a Participation Agreement (as 
defined below) with a Fund to purchase shares of the Fund; and (c) any 
principal underwriter to a Fund or Broker selling shares of a Fund.\2\
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    \2\ 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. An Investing 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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    3. Each Investing 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 (``Investing Fund 
Adviser''). An Investing Fund 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'') 
and a trustee (``Trustee''). Applicants represent that to ensure that 
the Investing Funds comply with the terms and conditions of the 
requested relief from section 12(d)(1) of the Act, an Investing Fund 
must enter into a participation agreement between a Trust, on behalf of 
the relevant Funds, and the Investing Fund (``Participation 
Agreement'') before investing in a Fund beyond the limits imposed by 
section 12(d)(1)(A). The Participation Agreement will require the 
Investing Funds to adhere to the terms and conditions of the requested 
order. The Participation Agreement will include an acknowledgment from 
an Investing Fund that it may rely on the requested order only to 
invest in the Funds and not in any other registered investment company.
    4. Applicants state that the Funds will offer the Investing 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 Investing Funds that do not have sufficient assets to 
make comparable investments.

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 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 Investing 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 an Investing Fund 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 Investing Fund nor an 
Investing Fund Affiliate would be able to exert undue influence over 
the Funds.\3\ To limit the control that an Investing Fund may have over 
a Fund, applicants propose a condition prohibiting the Investing Fund 
Adviser, Sponsor, and any person controlling, controlled by, or under 
common control with the Investing Fund Adviser or Sponsor, 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 that is advised or sponsored 
by the Investing Fund Adviser or Sponsor, or any person controlling, 
controlled by, or under common control with the Investing Fund Adviser 
or Sponsor (``Investing Fund Advisory Group'') from controlling 
(individually or in the aggregate) a Fund within the meaning of section 
2(a)(9) of the Act. The same prohibition would apply to each 
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 Investing Fund or Investing 
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 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 underwriter in any underwriting or selling 
syndicate that is an officer,

[[Page 62707]]

director, member of an advisory board, Investing Fund Adviser, 
Subadviser, Sponsor, or employee of the Investing Fund, or a person of 
which any such officer, director, member of an advisory board, 
Investing Fund Adviser, Subadviser, Sponsor or employee is an 
affiliated person; however any person whose relationship to a Fund is 
covered by section 10(f) of the Act is not an Underwriting Affiliate.
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    \3\ ``Investing Fund Affiliates'' are the Investing Fund 
Adviser, Subadviser, Sponsor, promoter, and principal underwriter of 
the Investing Fund, and any person controlling, controlled by, or 
under common control with any of these entities. ``Fund Affiliates'' 
are the investment adviser(s), promoter, and principal underwriter 
of the Fund, and any person controlling, controlled by, or under 
common control with any of these 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 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 under the 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 Fund in 
which the Investing Company may invest. In addition, an Investing Fund 
Adviser, Sponsor, or Trustee, as applicable, will waive fees otherwise 
payable to it by the Investing Fund in an amount at least equal to any 
compensation (including fees received pursuant to any plan adopted by a 
Fund under rule 12b-1 under the Act) received from a Fund by the 
Investing Fund Adviser, Sponsor or Trustee or an affiliated person 
thereof, other than any advisory fees paid to the Investing Fund 
Adviser, Sponsor or Trustee, or an affiliated person thereof by a Fund 
in connection with the investment by the Investing Fund in the Fund. 
Applicants also state that with respect to registered separate accounts 
that invest in any Investing Fund, no sales load will be charged at the 
Investing Fund 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., (``Rule 2830''), if 
any, will only be charged at the Investing Fund level or at the Fund 
level, not both.\4\ With respect to other investments in any Investing 
Fund, any sales charges and/or service fees charged with respect to 
shares of the Investing Fund will not exceed the limits applicable to a 
fund of funds as set forth in Rule 2830.
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    \4\ Applicants represent that each Investing Fund will represent 
in the Participation Agreement that no insurance company sponsoring 
a registered separate account funding variable insurance contracts 
will be permitted to invest in the Investing Fund unless the 
insurance company has certified to the Investing Fund that the 
aggregate of all fees and charges associated with each contract that 
invests in the Investing Fund, including fees and charges at the 
separate account, Investing Fund, and Fund levels, will be 
reasonable in relation to the services rendered, the expenses 
expected to be incurred, and the risks assumed by the insurance 
company.
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    6. Applicants submit that the proposed arrangement will not create 
an overly complex fund structure. Applicants propose condition 12 to 
ensure that the proposed structure will not result in unnecessary 
complexity. Further, the Participation Agreement will require each 
Investing Fund that exceeds the 5% or 10% limitation in section 
12(d)(1)(A)(ii) and (iii) of the Act to disclose in its prospectus that 
it may invest in registered investment companies, and to disclose, in 
``plain English,'' in its prospectus the unique characteristics of the 
Investing Fund investing in registered investment companies, including 
but not limited to the expense structure and any additional expenses of 
investing in registered investment companies. Each Investing Fund 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 any 
investment by an Investing Fund. The prospectus of each Fund discloses 
that the Fund may choose to reject a purchase order at the discretion 
of the Fund.

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. 
Applicants seek relief from section 17(a) to permit a Fund that is an 
affiliated person of an Investing Fund because the Investing Fund holds 
5% or more of the Fund's shares to sell its shares to and redeem its 
shares from an Investing Fund.\5\
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    \5\ Applicants acknowledge that receipt of any compensation by 
(a) an affiliated person of an Investing Fund, or an affiliated 
person of such person, for the purchase by the Investing Fund 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 an Investing Fund is subject to section 17(e) of the Act. 
The Participation Agreement also will include this acknowledgment.
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    2. 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 (a) the terms of the proposed transaction are fair and 
reasonable and do not involve overreaching on the part of any person 
concerned, (b) the proposed transaction is consistent with the policies 
of each registered investment company involved, and (c) 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. Applicants submit that the proposed 
arrangement satisfies the standards for relief under sections 17(b) and 
6(c) of the Act.
    3. Applicants believe that any proposed transactions directly 
between Funds and the Investing Funds will be consistent with the 
policies of each Fund and Investing Fund. The Participation Agreement 
will require any Investing Fund that purchases shares from a Fund to 
represent that the purchase of shares from the Fund by an Investing 
Fund will be accomplished in compliance with the investment 
restrictions of the Investing Fund and will be consistent with the 
investment policies set forth in the Investing Fund's registration 
statement.
    4. Applicants also state that the terms of the arrangement are fair 
and reasonable and do not involve overreaching. Applicants note that 
all shares of the Funds sold and redeemed by the Funds will be sold and 
redeemed at net asset value as required by rule 22c-1 under the Act, 
without regard to the identity of the purchasing or redeeming investor. 
Applicants state that the proposed arrangement will be consistent with 
the policies of each Investing Fund 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 the Investing Fund Advisory Group will not 
control (individually or in the aggregate) a Fund within the meaning of 
section 2(a)(9) of the Act. The members of the 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 Investing Fund 
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 Investing Fund Advisory Group or 
Subadviser Group that is a separate account) will vote its shares of

[[Page 62708]]

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. 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 (a) vote its shares of the Fund in the same 
proportion as the vote of all other holders of the Fund's shares, or 
(b) 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 Investing Fund or Investing Fund Affiliate will cause any 
existing or potential investment by the Investing Fund in shares of a 
Fund to influence the terms of any services or transactions between the 
Investing Fund or an Investing Fund Affiliate and the Fund or a Fund 
Affiliate.
    3. The board of directors or trustees of an Investing Company, 
including a majority of the Disinterested Trustees, will adopt 
procedures reasonably designed to assure that the Investing Fund 
Adviser and any Subadviser are conducting the investment program of the 
Investing Company without taking into account any consideration 
received by the Investing Company or an Investing Fund Affiliate from a 
Fund or a Fund Affiliate in connection with any services or 
transactions.
    4. Once an investment by an Investing Fund in the securities of a 
Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, the board 
of trustees of the Fund (``Board''), including a majority of the 
Disinterested Trustees, will determine that any consideration paid by 
the Fund to an Investing Fund or an Investing Fund Affiliate in 
connection with any services or transactions (a) is fair and reasonable 
in relation to the nature and quality of the services and benefits 
received by the Fund, (b) is within the range of consideration that the 
Fund would be required to pay to another unaffiliated entity in 
connection with the same services or transactions, and (c) does not 
involve overreaching on the part of any person concerned. This 
condition does not apply with respect to any services or transactions 
between a Fund and its investment adviser(s), or any person 
controlling, controlled by, or under common control with such 
investment adviser(s).
    5. No Investing Fund or Investing Fund Affiliate (except to the 
extent it is acting in its capacity as an investment adviser to a Fund) 
will cause a Fund to purchase a security in any Affiliated 
Underwriting.
    6. The Board of a Fund, including a majority of the Disinterested 
Trustees, will adopt procedures reasonably designed to monitor any 
purchases of securities by the Fund in an Affiliated Underwriting once 
an investment by an Investing Fund 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 Fund will review these purchases periodically, but no less 
frequently than annually, to determine whether the purchases were 
influenced by the investment by the Investing Fund in the Fund. The 
Board of the Fund will consider, among other things, (a) whether the 
purchases were consistent with the investment objectives and policies 
of the Fund, (b) how the performance of securities purchased in an 
Affiliated Underwriting compares to the performance of comparable 
securities purchased during a comparable period of time in 
underwritings other than Affiliated Underwritings or to a benchmark 
such as a comparable market index, and (c) whether the amount of 
securities purchased by the Fund in Affiliated Underwritings and the 
amount purchased directly from an Underwriting Affiliate have changed 
significantly from prior years. The Board of the 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 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 an Investing Fund in the securities 
of the 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 Fund were made.
    8. Before investing in a Fund in excess of the limits in section 
12(d)(1)(A) of the Act, the Investing Fund and the Fund will execute a 
Participation Agreement stating without limitation that their boards of 
directors or trustees and their investment advisers, or the Sponsor and 
Trustee, 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 a Fund in excess of the limit 
in section 12(d)(1)(A)(i), an Investing Fund will notify the Fund of 
the investment. At such time, the Investing Fund will also transmit to 
the Fund a list of the names of each Investing Fund Affiliate and 
Underwriting Affiliate. The Investing Fund will notify the Fund of any 
changes to the list of the names as soon as reasonably practicable 
after a change occurs. The Fund and the Investing Fund will maintain 
and preserve a copy of the order, the Participation 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.
    9. Before approving any advisory contract under section 15 of the 
Act, the board of directors or trustees of each Investing 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 Fund in 
which the Investing Company may invest. These findings and their basis 
will be recorded fully in the minute books of the appropriate Investing 
Company.
    10. An Investing Fund Adviser, Sponsor or Trustee, as applicable, 
will waive fees otherwise payable to it by the Investing Fund in an 
amount at least equal to any compensation (including fees from any plan 
adopted by a Fund under rule 12b-1 under the Act) received from a Fund 
by the Investing Fund Adviser, Sponsor or Trustee, or an affiliated 
person thereof, other than any advisory fees paid to the Investing Fund 
Adviser, Sponsor or Trustee, or an affiliated person thereof, by a Fund 
in

[[Page 62709]]

connection with the investment by the Investing Fund in the Fund. Any 
Subadviser will waive fees otherwise payable to the Subadviser, 
directly or indirectly, by the Investing Company in an amount at least 
equal to any compensation received from a Fund by the Subadviser, or an 
affiliated person thereof, other than any advisory fees paid to the 
Subadviser or its affiliated person by a Fund, in connection with the 
investment by the Investing 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 Company.
    11. With respect to registered separate accounts that invest in any 
Investing Fund, no sales load will be charged at the Investing Fund 
level or at the Fund level. Other sales charges and service fees, as 
defined in Rule 2830, if any, will only be charged at the Investing 
Fund level or at the Fund level, not both. With respect to other 
investments in an Investing Fund, any sales charges and/or service fees 
charged with respect to shares of the Investing Fund will not exceed 
the limits applicable to a fund of funds as set forth in Rule 2830.
    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 or exemptive relief 
from the Commission permitting the Fund to purchase shares of an 
affiliated money market fund for short-term cash management purposes.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-21694 Filed 11-5-07; 8:45 am]

BILLING CODE 8011-01-P
