
[Federal Register Volume 78, Number 95 (Thursday, May 16, 2013)]
[Notices]
[Pages 28904-28906]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-11605]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30512; 812-14089]


CPG Carlyle Private Equity Fund, LLC, et al.; Notice of 
Application

May 9, 2013.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application under section 6(c) of the Investment 
Company Act of 1940 (the ``Act'') for an exemption from sections 18(c) 
and 18(i) of the Act and for an order pursuant to section 17(d) of the 
Act and rule 17d-1 under the Act.

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    Summary of Application: Applicants request an order to permit 
certain registered closed-end management investment companies to issue 
multiple classes of units of beneficial interest (``Units'') with 
varying sales loads and to impose asset-based service and/or 
distribution fees and contingent deferred sales loads (``CDSCs'').
    Applicants: CPG Carlyle Private Equity Fund, LLC (the ``Feeder 
Fund''), CPG Carlyle Private Equity Master Fund, LLC (the ``Master 
Fund''), and Central Park Advisers, LLC (the ``Adviser'').
    Filing Dates: The application was filed on October 30, 2012, and 
amended on March 26, 2013 and May 8, 2013.
    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 June 3, 2013, and should be accompanied by proof of 
service on the 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: Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange 
Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants, c/
o Gary L. Granik, Esq., Stroock & Stroock & Lavan LLP, 180 Maiden Lane, 
New York, New York 10038.

FOR FURTHER INFORMATION CONTACT: Jean E. Minarick, Senior Counsel, 
(202) 551-6811 or Daniele Marchesani, 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 Feeder Fund and the Master Fund are continuously offered 
non-diversified closed-end management investment companies registered 
under the Act and organized as Delaware limited liability companies. 
The Feeder Fund operates as a feeder fund in a master-feeder structure 
and intends to invest substantially all of its assets in the Master 
Fund. The Master Fund invests primarily in ``alternative'' investment 
funds with an emphasis on private equity funds (e.g., buyout, growth, 
and mezzanine).
    2. The Adviser, a Delaware limited liability company and wholly-
owned subsidiary of Central Park Group, LLC, is registered as an 
investment adviser under the Investment Advisers Act of 1940 and serves 
as investment adviser to the Feeder Fund and the Master Fund.
    3. The Feeder Fund continuously offers its Units \1\ in private 
placements in reliance on the provisions of Regulation D under the 
Securities Act of 1933. Units of the Feeder Fund are not listed on any 
securities exchange and do not trade on an over-the-counter system. 
Applicants do not expect that any secondary market will develop for the 
Units.
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    \1\ ``Units'' includes any other equivalent designation of a 
proportionate ownership interest of the Feeder Fund (or any other 
registered closed-end management investment company relying on the 
requested order).
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    4. The Feeder Fund currently offers a single class of Units (the 
``Class A Units'') at net asset value per Unit subject to a sales load 
and annual asset-based distribution fee. The Feeder Fund proposes to 
offer an additional Unit class (the ``Class I Units'') at net asset 
value that may (but would not necessarily) be subject to a front-end 
sales load and an annual asset-based service and/or distribution fee. 
Both classes would be subject to minimum purchase requirements.
    5. In order to provide a limited degree of liquidity to 
unitholders, the Feeder Fund may from time to time offer to repurchase 
Units at their then current net asset value in accordance with rule 
13e-4 under the Securities Exchange Act of 1934 (``1934 Act'') pursuant 
to written tenders by unitholders.\2\ Repurchases will be made at such 
times, in such amounts and on such terms as may be determined by the 
Feeder Fund's board of trustees (``Board''), in its sole discretion.\3\ 
The Adviser

[[Page 28905]]

anticipates to recommend that the Board authorize the Feeder Fund to 
offer to repurchase Units from unitholders quarterly.
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    \2\ Likewise, the Master Fund's repurchase offers will be 
conducted pursuant to rule 13e-4 under the 1934 Act.
    \3\ Units are subject to an early withdrawal fee at a rate of 
2.00% of the aggregate net asset value of the investors' Units 
repurchased by the Feeder Fund (the ``Early Withdrawal Fee'') with 
respect to any repurchase of Units from an investor at any time 
prior to the day immediately preceding the one-year anniversary of 
the investor's purchase of the Units. The Early Withdrawal Fee will 
equally apply to all investors of the Feeder Fund, regardless of 
class, consistent with section 18 of the Act and rule 18f-3 under 
the Act. To the extent the Feeder Fund determines to waive, impose 
scheduled variations of, or eliminate the Early Withdrawal Fee, it 
will comply with the requirements of rule 22d-1 under the Act as if 
it were a CDSC and such waiver, scheduled variation or elimination 
will apply uniformly to all unitholders of the Feeder Fund.
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    6. Applicants request that the order also apply to any other 
continuously offered registered closed-end management investment 
company existing now or in the future for which the Adviser, or any 
entity controlling, controlled by, or under common control with the 
Adviser acts as investment adviser, and which provides periodic 
liquidity with respect to its Units through tender offers conducted in 
compliance with rule 13e-4 under the 1934 Act.\4\
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    \4\ The Feeder Fund and any other entity relying on the 
requested relief will do so in a manner consistent with the terms 
and conditions of the application.
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    7. Applicants represent that any asset-based service and/or 
distribution fees will comply with the provisions of rule 2830(d) of 
the Conduct Rules of the National Association of Securities Dealers, 
Inc. (``NASD Conduct Rule 2830'') as if that rule applied to the Feeder 
Fund.\5\ Applicants also represent that the Feeder Fund will disclose 
in its Confidential Memorandum, the fees, expenses and other 
characteristics of each class of Units offered for sale by the 
Confidential Memorandum, as is required for open-end, multiple class 
funds under Form N-1A. As is required for open-end funds, the Feeder 
Fund will disclose its expenses in unitholder reports, and disclose any 
arrangements that result in breakpoints in or elimination of sales 
loads in its Confidential Memorandum.\6\ The Feeder Fund will also 
comply, and will contractually require its placement agency to comply, 
with any requirements that may be adopted by the Commission or FINRA 
regarding disclosure at the point of sale and in transaction 
confirmations about the costs and conflicts of interest arising out of 
the distribution of open-end investment company shares, and regarding 
Confidential Memorandum disclosure of sales loads and revenue sharing 
arrangements as if those requirements applied to the Feeder Fund.\7\
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    \5\ All references to NASD Conduct Rule 2830 include any 
successor or replacement rule that may be adopted by the Financial 
Industry Regulatory Authority (``FINRA''). Any Fund or Adviser 
presently intending to rely on the order requested in this 
application is listed as an applicant.
    \6\ See Shareholder Reports and Quarterly Portfolio Disclosure 
of Registered Management Investment Companies, Investment Company 
Act Release No. 26372 (Feb. 27, 2004) (adopting release) (requiring 
open-end investment companies to disclose fund expenses in 
shareholder reports); and Disclosure of Breakpoint Discounts by 
Mutual Funds, Investment Company Act Release No. 26464 (June 7, 
2004) (adopting release) (requiring open-end investment companies to 
provide prospectus disclosure of certain sales load information).
    \7\ See, e.g., Confirmation Requirements and Point of Sale 
Disclosure Requirements for Transactions in Certain Mutual Funds and 
Other Securities, and Other Confirmation Requirement Amendments, and 
Amendments to the Registration Form for Mutual Funds, Investment 
Company Act Release No. 26341 (Jan. 29, 2004) (proposing release).
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    8. The Feeder Fund will allocate all expenses incurred by it among 
the various classes of Units based on the net assets of the Feeder Fund 
attributable to each class, except that the net asset value and 
expenses of each class will reflect distribution fees, service fees, 
and any other incremental expenses of that class. Expenses of a Feeder 
Fund allocated to a particular class of Units will be borne on a pro 
rata basis by each outstanding Unit of that class. Applicants state 
that the Feeder Fund will comply with the provisions of rule 18f-3 
under the Act as if it were an open-end investment company.
    9. In the event the Feeder Fund imposes a CDSC, the applicants will 
comply with the provisions of rule 6c-10 under the Act, as if that rule 
applied to closed-end management investment companies. With respect to 
any waiver of, scheduled variation in, or elimination of the CDSC, the 
Feeder Fund will comply with rule 22d-1 under the Act as if the Feeder 
Fund were an open-end investment company.

Applicants' Legal Analysis

Multiple Classes of Units

    1. Section 18(c) of the Act provides, in relevant part, that a 
closed-end investment company may not issue or sell any senior security 
if, immediately thereafter, the company has outstanding more than one 
class of senior security. Applicants state that the creation of 
multiple classes of Units of the Feeder Fund may be prohibited by 
section 18(c). Section 18(i) of the Act provides that each share of 
stock issued by a registered management investment company will be a 
voting stock and have equal voting rights with every other outstanding 
voting stock. Applicants state that permitting multiple classes of 
Units of the Feeder Fund may violate section 18(i) of the Act because 
each class would be entitled to exclusive voting rights with respect to 
matters solely related to that class.
    2. Section 6(c) 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 the Act, or from any 
rule under the Act, if and to the extent 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 request an exemption under section 
6(c) from sections 18(c) and 18(i) to permit the Feeder Fund to issue 
multiple classes of Units.\8\
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    \8\ The Master Fund will not issue multiple classes of its units 
and is an applicant because of the master-feeder structure.
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    3. Applicants submit that the proposed allocation of expenses and 
voting rights among multiple classes is equitable and will not 
discriminate against any group or class of unitholders. Applicants 
submit that the proposed arrangements would permit the Feeder Fund to 
facilitate the distribution of its Units and provide investors with a 
broader choice of unitholder options. Applicants assert that the 
proposed closed-end investment company multiple class structure does 
not raise the concerns underlying section 18 of the Act to any greater 
degree than open-end investment companies' multiple class structures 
that are permitted by rule 18f-3 under the Act. Applicants state that 
the Feeder Fund will comply with the provisions of rule 18f-3 as if it 
were an open-end investment company.

CDSCs

    4. Applicants believe that the requested relief meets the standards 
of section 6(c) of the Act. Rule 6c-10 under the Act permits open-end 
investment companies to impose CDSCs, subject to certain conditions. 
Applicants state that any CDSC imposed by the Feeder Fund will comply 
with rule 6c-10 under the Act as if the rule were applicable to closed-
end investment companies. The Feeder Fund also will disclose CDSCs in 
accordance with the requirements of Form N-1A concerning CDSCs as if 
the Feeder Fund were an open-end investment company. Applicants further 
state that the Feeder Fund will apply the CDSC (and any waivers or 
scheduled variations of the CDSC) uniformly to all unitholders in a 
given class and consistently with the requirements of rule 22d-1 under 
the Act.

Asset-Based Service and/or Distribution Fees

    5. Section 17(d) of the Act and rule 17d-1 under the Act prohibit 
an

[[Page 28906]]

affiliated person of a registered investment company or an affiliated 
person of such person, acting as principal, from participating in or 
effecting any transaction in connection with any joint enterprise or 
joint arrangement in which the investment company participates unless 
the Commission issues an order permitting the transaction. In reviewing 
applications submitted under section 17(d) and rule 17d-1, the 
Commission considers whether the participation of the investment 
company in a joint enterprise or joint arrangement is consistent with 
the provisions, policies and purposes of the Act, and the extent to 
which the participation is on a basis different from or less 
advantageous than that of other participants.
    6. Rule 17d-3 under the Act provides an exemption from section 
17(d) and rule 17d-1 to permit open-end investment companies to enter 
into distribution arrangements pursuant to rule 12b-1 under the Act. 
Applicants request an order under section 17(d) and rule 17d-1 under 
the Act to permit the Feeder Fund to impose asset-based service and/or 
distribution fees. Applicants have agreed to comply with rules 12b-1 
and 17d-3 as if those rules applied to closed-end investment companies.

Applicants' Condition

    Applicants agree that any order granting the requested relief will 
be subject to the following condition:
    Applicants will comply with the provisions of rules 6c-10, 12b-1, 
17d-3, 18f-3 and 22d-1 under the Act, as amended from time to time or 
replaced, as if those rules applied to closed-end management investment 
companies, and will comply with NASD Conduct Rule 2830, as amended from 
time to time, as if that rule applied to all closed-end management 
investment companies.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-11605 Filed 5-15-13; 8:45 am]
BILLING CODE 8011-01-P


