
[Federal Register Volume 76, Number 233 (Monday, December 5, 2011)]
[Notices]
[Pages 75922-75924]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31099]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 29876; File No. 812-13939]


AllianceBernstein Cap Fund, Inc., et al.; Notice of Application

November 29, 2011.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application under section 6(c) of the Investment 
Company Act of 1940 (``Act'') for an exemption from rule 12d1-2(a) 
under the Act.

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SUMMARY: 

SUMMARY OF APPLICATION: Applicants request an order to permit open-end 
management investment companies relying on rule 12d1-2 under the Act to 
invest in certain financial instruments.

APPLICANTS:  AllianceBernstein Cap Fund, Inc. (the ``Fund''), 
AllianceBernstein L.P. (``AllianceBernstein''), and AllianceBernstein 
Investments, Inc. (``ABI'').

DATES:  Filing Dates: The application was filed on August 9, 2011. 
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 December 20, 2011, 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, Securities and Exchange Commission, 100 F Street 
NE., Washington, DC 20549-1090; Applicants: 1345 Avenue of the 
Americas, New York, New York 10105.

FOR FURTHER INFORMATION CONTACT:  Lewis B. Reich, Senior Counsel, at 
(202)

[[Page 75923]]

551-6919, or Jennifer L. Sawin, 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 via the 
Commission's Web site by searching for the file number, or an applicant 
using the Company name box, at http://www.sec.gov/search/search.htm or 
by calling (202) 551-8090.

Applicants' Representations

    1. The Fund is organized as a Maryland corporation and is 
registered under the Act as an open-end management investment company. 
The existing Applicant Fund (as defined below) is a separate investment 
portfolio of the Fund and will invest in other registered investment 
companies in reliance on Section 12(d)(1)(G) of the Act. 
AllianceBernstein, a Delaware limited partnership, is an investment 
adviser registered under the Investment Advisers Act of 1940, as 
amended (the ``Advisers Act'') and currently serves as investment 
adviser to the existing Applicant Fund. ABI is a Delaware corporation, 
registered as a broker-dealer under the Securities Exchange Act of 
1934, as amended, and serves as the distributor for the existing 
Applicant Fund.
    2. Applicants request the exemption to the extent necessary to 
permit an existing or future series of the Fund and any other existing 
or future registered open-end investment company or series thereof that 
(i) is advised by AllianceBernstein or any person controlling, 
controlled by or under common control with AllianceBernstein that is 
registered as an investment adviser under the Advisers Act (any such 
adviser or AllianceBernstein, an ``Adviser''); (ii) that invests in 
other registered open-end investment companies (``Underlying Funds'') 
in reliance on section 12(d)(1)(G) of the Act; and (iii) is also 
eligible to invest in securities (as defined in section 2(a)(36) of the 
Act) in reliance on rule 12d1-2 under the Act (each an ``Applicant 
Fund''), to also invest, to the extent consistent with its investment 
objectives, policies, strategies and limitations, in financial 
instruments that may not be securities within the meaning of section 
2(a)(36) of the Act (``Other Investments'').\1\ Applicants also request 
that the order exempt any entity controlling, controlled by or under 
common control with ABI that now or in the future acts as principal 
underwriter with respect to the transactions described in the 
application.
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    \1\ Every existing entity that currently intends to rely on the 
requested order is named as an applicant. Any existing or future 
entity that relies on the requested order will do so only in 
accordance with the terms and condition in the application.
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    3. Consistent with its fiduciary obligations under the Act, each 
Applicant Fund's board of directors will review the advisory fees 
charged by the Applicant Fund's Adviser to ensure that they are based 
on services provided that are in addition to, rather than duplicative 
of, services provided pursuant to the advisory agreement of any 
investment company in which the Applicant Fund may invest.

Applicants' Legal Analysis

    1. Section 12(d)(1)(A) of the Act provides that no registered 
investment company (``acquiring company'') may acquire securities of 
another investment company (``acquired company'') if such securities 
represent more than 3% of the acquired company's outstanding voting 
stock or more than 5% of the acquiring company's total assets, or if 
such securities, together with the securities of other investment 
companies, represent more than 10% of the acquiring company's total 
assets. Section 12(d)(1)(B) of the Act provides that no registered 
open-end investment company may sell its securities to another 
investment company if the sale would cause the acquiring company to own 
more than 3% of the acquired company's voting stock, or cause more than 
10% of the acquired company's voting stock to be owned by investment 
companies and companies controlled by them.
    2. Section 12(d)(1)(G) of the Act provides, in part, that section 
12(d)(1) will not apply to securities of an acquired company purchased 
by an acquiring company if: (i) The acquired company and acquiring 
company are part of the same group of investment companies; (ii) the 
acquiring company holds only securities of acquired companies that are 
part of the same group of investment companies, government securities, 
and short-term paper; (iii) the aggregate sales loads and distribution-
related fees of the acquiring company and the acquired company are not 
excessive under rules adopted pursuant to section 22(b) or section 
22(c) of the Act by a securities association registered under section 
15A of the Exchange Act or by the Commission; and (iv) the acquired 
company has a policy that prohibits it from acquiring securities of 
registered open-end investment companies or registered unit investment 
trusts in reliance on section 12(d)(1)(F) or (G) of the Act.
    3. Rule 12d1-2 under the Act permits a registered open-end 
investment company or a registered unit investment trust that relies on 
section 12(d)(1)(G) of the Act to acquire, in addition to securities 
issued by another registered investment company in the same group of 
investment companies, government securities, and short-term paper: (i) 
Securities issued by an investment company that is not in the same 
group of investment companies, when the acquisition is in reliance on 
section 12(d)(1)(A) or 12(d)(1)(F) of the Act; (ii) securities (other 
than securities issued by an investment company); and (iii) securities 
issued by a money market fund, when the investment is in reliance on 
rule 12d1-1 under the Act. For the purposes of rule 12d1-2, 
``securities'' means any security as defined in section 2(a)(36) of the 
Act.
    4. Section 6(c) of the Act provides that the Commission may exempt 
any person, security, or transaction from any provision of the Act, or 
from any rule under 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 policies and 
provisions of the Act.
    5. Applicants state that the Applicant Funds will comply with rule 
12d1-2 under the Act, but for the fact that the Applicant Funds may 
invest a portion of their assets in Other Investments. Applicants 
request an order under section 6(c) of the Act for an exemption from 
rule 12d1-2(a) to allow the Applicant Funds to invest in Other 
Investments while investing in Underlying Funds. Applicants assert that 
permitting the Applicant Funds to invest in Other Investments as 
described in the application would not raise any of the concerns that 
the requirements of section 12(d)(1) were designed to address.

Applicants' Condition

    Applicants agree that the order granting the requested relief will 
be subject to the following condition:
    Applicants will comply with all provisions of rule 12d1-2 under the 
Act, except for paragraph (a)(2) to the extent that it restricts any 
Applicant Fund from investing in Other Investments as described in the 
application.


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    For the Commission, by the Division of Investment Management, 
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2011-31099 Filed 12-2-11; 8:45 am]
BILLING CODE 8011-01-P


