
[Federal Register Volume 78, Number 127 (Tuesday, July 2, 2013)]
[Notices]
[Pages 39799-39804]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15846]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30582; File No. 812-14088]


First Trust Exchange-Traded Fund, et al.; Notice of Application

June 26, 2013.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 6(c) of the 
Investment Company Act of 1940 (the ``Act'') for an exemption from 
sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 
under the Act, and under sections 6(c) and 17(b) of the Act for an 
exemption from sections 17(a)(1) and (a)(2) of the Act.

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Summary of Application:  Applicants request an order that would permit 
(a) certain open-end management investment companies or series thereof 
to issue shares (``Shares'') redeemable in large aggregations only 
(``Creation Units''); (b) secondary market transactions in Shares to 
occur at negotiated market prices; (c) certain affiliated persons of 
the series to deposit securities into, and receive securities from, the 
series in connection with the purchase and redemption of Creation 
Units; and (d) certain series to pay redemption proceeds, under certain 
circumstances, more than seven days after the tender of Shares for 
redemption.

Applicants:  First Trust Exchange-Traded Fund, First Trust Exchange-
Traded Fund II, First Trust Exchange-Traded Fund III, First Trust 
Exchange-

[[Page 39800]]

Traded Fund IV, First Trust Exchange-Traded Fund V, First Trust 
Exchange-Traded Fund VI, First Trust Exchange-Traded Fund VII, First 
Trust Exchange-Traded AlphaDEX[supreg] Fund, First Trust Exchange-
Traded AlphaDEX[supreg] Fund II (the ``Existing Trusts''), First Trust 
Advisors L.P. (``First Trust Advisors''), and First Trust Portfolios, 
L.P. (the ``Distributor'').

DATES: Filing Dates: The application was filed on October 25, 2012, and 
amended on April 23, 2013. 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 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 July 22, 2013, 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: Elizabeth M. Murphy, Secretary, Securities and Exchange 
Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants, 
120 East Liberty Drive, Suite 400, Wheaton, IL 60187.

FOR FURTHER INFORMATION CONTACT: Bruce R. MacNeil, Senior Counsel at 
(202) 551-6817, or Daniele Marchesani, Branch Chief, at (202) 551-6821 
(Division of Investment Management, Exemptive Applications Office).

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. Each Existing Trust is registered under the Act as an open-end 
management investment company. An Existing Trust initially will offer 
one Fund (defined below) identified in the application (``Initial 
Fund''), whose performance will correspond to the price and yield 
performance, before fees and expenses, of a specified securities index 
(``Underlying Index'').
    2. Applicants request that the order apply to the Existing Trusts 
and the Initial Fund and any other open-end management investment 
company existing or created in the future (together with the Existing 
Trusts, the ``Trusts'' and each, a ``Trust'') and any existing or 
future series of the Trusts, advised by First Trust Advisors or an 
entity controlling, controlled by or under common control with First 
Trust Advisors (each, an ``Adviser'') that tracks an Underlying Index 
(``Future Funds'').\1\ Any Future Fund will be (a) advised by an 
Adviser and (b) comply with the terms and conditions of the 
application. The Initial Fund and any Future Funds together are the 
``Funds.''
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    \1\ All entities that currently intend to rely on the order have 
been named as applicants. Any other existing or future entity that 
subsequently relies on the order will comply with the terms and 
conditions of the application. Any existing series of a Trust or any 
other registered open-end management investment company that seeks 
to rely on the requested relief in the future will be an exchange-
traded fund, not a mutual fund.
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    3. Certain of the Funds will be based on Underlying Indexes which 
will be comprised of securities traded in the U.S. markets (``Domestic 
Indexes''). Other Funds will be based on Underlying Indexes which will 
be comprised of foreign and domestic securities or solely of securities 
not traded in the U.S. markets (``Foreign Indexes''). Funds which track 
Domestic Indexes are referred to as ``Domestic Funds'' and Funds which 
track Foreign Indexes are referred to as ``Foreign Funds.'' Underlying 
Indexes that include both long and short positions in securities are 
referred to as ``Long/Short Indexes.'' Funds based on Long/Short 
Indexes are ``Long/Short Funds.'' Underlying Indexes that use a 130/30 
investment strategy are referred to as ``130/30 Indexes.'' Funds based 
on 130/30 Indexes are ``130/30 Funds.''
    4. An Adviser registered as an investment adviser under the 
Investment Advisers Act of 1940 (the ``Advisers Act'') will serve as 
investment adviser to the Funds. The Adviser may enter into sub-
advisory agreements with one or more investment advisers to act as a 
sub-adviser to a Fund (each, a ``Sub-Adviser''). Each Sub-Adviser will 
be registered or not subject to registration under the Advisers Act. 
The Distributor is a broker-dealer registered under the Securities 
Exchange Act of 1934 (the ``Exchange Act'') and will act as the 
principal underwriter and distributor for the Funds.\2\
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    \2\ Applicants request that the order also apply to future 
distributors that comply with the terms and conditions of the 
application.
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    5. Each Fund will hold certain securities and other assets and 
positions (``Portfolio Positions'') selected to correspond to the 
performance of its Underlying Index.\3\ Except with respect to 
Affiliated Index Funds (defined below), no entity that creates, 
compiles, sponsors or maintains an Underlying Index (``Index 
Provider'') 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 
Trust, a Fund, the Adviser, any Sub-adviser, or promoter of a Fund, or 
of the Distributor.
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    \3\ Applicants represent that each Fund will invest at least 80% 
of its total assets in the component securities that comprise its 
Underlying Index (``Component Securities'') or, as applicable, 
depositary receipts or TBA Transactions (as defined below) 
representing Component Securities. Each Fund also may invest up to 
20% of its total assets (the ``20% Asset Basket'') in a broad 
variety of other instruments, including securities and other 
instruments not included in its Underlying Index, which the Adviser 
believes will help the Fund track its Underlying Index.
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    6. A Fund will utilize either a replication or representative 
sampling strategy to track its Underlying Index. A Fund using a 
replication strategy will invest in substantially all of the Component 
Securities in its Underlying Index in the same approximate proportions 
as in the Underlying Index. A Fund using a representative sampling 
strategy will hold some, but may not hold all, of the Component 
Securities of its Underlying Index. Applicants state that use of the 
representative sampling strategy may prevent a Fund from tracking the 
performance of its Underlying Index with the same degree of accuracy as 
would a Fund that invests in every Component Security of the Underlying 
Index. Applicants expect that each Fund will have an annual tracking 
error relative to the performance of its Underlying Index of less than 
5 percent.
    7. Each Fund will issue, on a continuous basis, Creation Units, 
(e.g., at least 25,000 Shares) with an initial price per Share of $25 
to $100. All orders to purchase Creation Units must be placed with the 
Distributor by or through a party that has entered into an agreement 
with the Distributor (``Authorized Participant''). The Distributor will 
be responsible for delivering the Fund's prospectus to those persons 
acquiring Creation Units and for maintaining records of both the orders 
placed with it and the confirmations of acceptance furnished

[[Page 39801]]

by it. In addition, the Distributor will maintain a record of the 
instructions given to the applicable Fund to implement the delivery of 
its Shares. An Authorized Participant must be either (a) a 
``Participating Party,'' (i.e., a broker-dealer or other participant in 
the Continuous Net Settlement System of the National Securities 
Clearing Corporation (``NSCC''), a clearing house registered with the 
Commission, or (b) a participant in the Depository Trust Company 
(``DTC,'' and such participant, ``DTC Participant''), which, in either 
case, has signed a ``Participant Agreement'' with the Distributor.
    8. The Shares will be purchased and redeemed in Creation Units and 
generally on an in-kind basis. Except where the purchase or redemption 
will include cash under the limited circumstances specified below, 
purchasers will be required to purchase Creation Units by making an in-
kind deposit of specified instruments (``Deposit Instruments''), and 
shareholders redeeming their Shares will receive an in-kind transfer of 
specified instruments (``Redemption Instruments'').\4\ On any given 
Business Day the names and quantities of the instruments that 
constitute the Deposit Instruments and the names and quantities of the 
instruments that constitute the Redemption Instruments will be 
identical, unless the Fund is Rebalancing (as defined below). In 
addition, the Deposit Instruments and the Redemption Instruments will 
each correspond pro rata to the positions in a Fund's portfolio 
(including cash positions),\5\ except: (a) In the case of bonds, for 
minor differences when it is impossible to break up bonds beyond 
certain minimum sizes needed for transfer and settlement; (b) for minor 
differences when rounding is necessary to eliminate fractional shares 
or lots that are not tradeable round lots; \6\ (c) ``to be announced'' 
transactions (``TBA Transactions''),\7\ short positions, derivatives 
and other positions that cannot be transferred in kind \8\ will be 
excluded from the Deposit Instruments and the Redemption Instruments; 
\9\ (d) to the extent the Fund determines, on a given Business Day, to 
use a representative sampling of the Fund's portfolio; \10\ or (e) for 
temporary periods, to effect changes in the Fund's portfolio as a 
result of the rebalancing of its Underlying Index (any such change, a 
``Rebalancing''). If there is a difference between the net asset value 
(``NAV'') attributable to a Creation Unit and the aggregate market 
value of the Deposit Instruments or Redemption Instruments exchanged 
for the Creation Unit, the party conveying instruments with the lower 
value will also pay to the other an amount in cash equal to that 
difference (the ``Balancing Amount'').
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    \4\ The Funds must comply with the federal securities laws in 
accepting Deposit Instruments and satisfying redemptions with 
Redemption Instruments, including that the Deposit Instruments and 
Redemption Instruments are sold in transactions that would be exempt 
from registration under the Securities Act of 1933 (``Securities 
Act''). In accepting Deposit Instruments and satisfying redemptions 
with Redemption Instruments that are restricted securities eligible 
for resale pursuant to Rule 144A under the Securities Act, the Funds 
will comply with the conditions of Rule 144A.
    \5\ The portfolio used for this purpose will be the same 
portfolio used to calculate the Fund's NAV for that Business Day.
    \6\ A tradeable round lot for a security will be the standard 
unit of trading in that particular type of security in its primary 
market.
    \7\ A TBA Transaction is a method of trading mortgage-backed 
securities. In a TBA Transaction, the buyer and seller agree on 
general trade parameters such as agency, settlement date, par amount 
and price. The actual pools delivered generally are determined two 
days prior to the settlement date.
    \8\ This includes instruments that can be transferred in kind 
only with the consent of the original counterparty to the extent the 
Fund does not intend to seek such consents.
    \9\ Because these instruments will be excluded from the Deposit 
Instruments and the Redemption Instruments, their value will be 
reflected in the determination of the Balancing Amount (defined 
below).
    \10\ A Fund may only use sampling for this purpose if the 
sample: (a) Is designed to generate performance that is highly 
correlated to the performance of the Fund's portfolio; (b) consists 
entirely of instruments that are already included in the Fund's 
portfolio; and (c) is the same for all Authorized Participants on a 
given Business Day.
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    9. Purchases and redemptions of Creation Units may be made in whole 
or in part on a cash basis, rather than in kind, solely under the 
following circumstances: (a) To the extent there is a Balancing Amount, 
as described above; (b) if, on a given Business Day, a Fund announces 
before the open of trading that all purchases, all redemptions or all 
purchases and redemptions on that day will be made entirely in cash; 
(c) if, upon receiving a purchase or redemption order from an 
Authorized Participant, a Fund determines to require the purchase or 
redemption, as applicable, to be made entirely in cash; \11\ (d) if, on 
a given Business Day, a Fund requires all Authorized Participants 
purchasing or redeeming Shares on that day to deposit or receive (as 
applicable) cash in lieu of some or all of the Deposit Instruments or 
Redemption Instruments, respectively, solely because: (i) Such 
instruments are not eligible for transfer through either the NSCC or 
DTC; or (ii) in the case of Foreign Funds, such instruments are not 
eligible for trading due to local trading restrictions, local 
restrictions on securities transfers or other similar circumstances; or 
(e) if a Fund permits an Authorized Participant to deposit or receive 
(as applicable) cash in lieu of some or all of the Deposit Instruments 
or Redemption Instruments, respectively, solely because: (i) Such 
instruments are, in the case of the purchase of a Creation Unit, not 
available in sufficient quantity; (ii) such instruments are not 
eligible for trading by an Authorized Participant or the investor on 
whose behalf the Authorized Participant is acting; or (iii) a holder of 
Shares of a Foreign Fund would be subject to unfavorable income tax 
treatment if the holder receives redemption proceeds in kind.\12\
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    \11\ In determining whether a particular Fund will sell or 
redeem Creation Units entirely on a cash or in-kind basis (whether 
for a given day or a given order), the key consideration will be the 
benefit that would accrue to the Fund and its investors. For 
instance, in bond transactions, the Adviser may be able to obtain 
better execution than Share purchasers because of the Adviser's 
size, experience and potentially stronger relationships in the fixed 
income markets. Purchases of Creation Units either on an all cash 
basis or in-kind are expected to be neutral to the Funds from a tax 
perspective. In contrast, cash redemptions typically require selling 
portfolio holdings, which may result in adverse tax consequences for 
the remaining Fund shareholders that would not occur with an in-kind 
redemption. As a result, tax considerations may warrant in-kind 
redemptions.
    \12\ A ``custom order'' is any purchase or redemption of Shares 
made in whole or in part on a cash basis in reliance on clause 
(e)(i) or (e)(ii).
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    10. Each Business Day, before the open of trading on a national 
securities exchange, as defined in section 2(a)(26) of the Act 
(``Exchange'') on which Shares are listed (``Listing Exchange''), each 
Fund will cause to be published through the NSCC the names and 
quantities of the instruments comprising the Deposit Instruments and 
the Redemption Instruments, as well as the estimated Balancing Amount 
(if any), for that day. The list of Deposit Instruments and the list of 
Redemption Instruments will apply until new lists are announced on the 
following Business Day, and there will be no intra-day changes to the 
lists except to correct errors in the published lists.
    11. For the Long/Short Funds and 130/30 Funds, the Adviser will 
provide full portfolio holdings disclosure on a daily basis on the 
Funds' publicly available Web site (``Web site'') and will develop an 
``IIV File,'' which it will use to disclose the Funds' full portfolio 
holdings, including short positions. Before the opening of business on 
each Business Day, the Trust, Adviser or other third party, will make 
the IIV File available by email upon request. Applicants state that 
given either the IIV

[[Page 39802]]

File or the Web site disclosure,\13\ anyone will be able to know in 
real time the intraday value of the Long/Short Funds and 130/30 
Funds.\14\ With respect to the Long/Short Funds and 130/30 Funds, the 
investment characteristics of any financial instruments and short 
positions used to achieve short and long exposures will be described in 
sufficient detail for market participants to understand the principal 
investment strategies of the Funds and to permit informed trading of 
their Shares.
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    \13\ The information on the Web site will be the same as that 
disclosed to Authorized Participants in the IIV File, except that 
(a) the information provided on the Web site will be formatted to be 
reader-friendly and (b) the portfolio holdings data on the Web site 
will be calculated and displayed on a per Fund basis, while the 
information in the IIV File will be calculated and displayed on a 
per Creation Unit basis.
    \14\ Each Listing Exchange or other major market data provider 
will disseminate, every 15 seconds during regular Exchange trading 
hours, through the facilities of the Consolidated Tape Association, 
an amount for each Fund representing the sum of (a) the estimated 
Balancing Amount and (b) the current value of the Deposit 
Instruments and any short positions, on a per individual Share 
basis.
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    12. Shares of each Fund will be listed and traded individually on 
an Exchange. It is expected that one or more member firms of an 
Exchange will be designated to act as a market maker (``Market Maker'') 
and maintain a market in Shares trading on the Exchange. Prices of 
Shares trading on an Exchange will be based on the current bid/offer 
market. Shares sold in the secondary market will be subject to 
customary brokerage commissions and charges.
    13. Applicants expect that purchasers of Creation Units will 
include institutional investors and arbitrageurs. Market Makers also 
may purchase Creation Units for use in market-making activities. 
Applicants expect that secondary market purchasers of Shares will 
include both institutional investors and retail investors.\15\ 
Applicants expect that the price at which Shares trade will be 
disciplined by arbitrage opportunities created by the option to 
continually purchase or redeem Creation Units at their NAV, which 
should ensure that Shares will not trade at a material discount or 
premium in relation to their NAV.
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    \15\ Shares will be registered in book-entry form only. DTC or 
its nominee will be the registered owner of all outstanding Shares. 
DTC or DTC Participants will maintain records reflecting beneficial 
owners of Shares.
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    14. Shares will not be individually redeemable. To redeem, an 
investor must accumulate enough Shares to constitute a Creation Unit. 
Redemption orders must be placed by or through an Authorized 
Participant.
    15. An investor purchasing or redeeming a Creation Unit from a Fund 
may be charged a fee (``Transaction Fee'') to protect existing 
shareholders of the Funds from the dilutive costs associated with the 
purchase and redemption of Creation Units.\16\
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    \16\ Where a Fund permits an in-kind purchaser to substitute 
cash in lieu of depositing one or more Deposit Instruments, the 
Transaction Fee imposed on a purchaser or redeemer may be higher.
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    16. None of the Funds will be advertised, marketed or otherwise 
held out as a traditional open-end investment company or a mutual fund. 
Instead, each Fund will be marketed as an ``exchange traded fund 
(``ETF''). All marketing materials that describe the features or method 
of obtaining, buying or selling Creation Units, or Shares traded on an 
Exchange, or refer to redeemability, will prominently disclose that 
Shares are not individually redeemable and that the owners of Shares 
may purchase or redeem Shares from the Fund in Creation Units. The same 
approach will be followed in the shareholder reports issued or 
circulated in connection with the Shares. The Funds will provide copies 
of their annual and semi-annual shareholder reports to DTC Participants 
for distribution to shareholders.
    17. Applicants also request that the order allow them to offer 
Funds for which the Adviser or an affiliated person, as defined in 
section 2(a)(3) of the Act, or an affiliated person of an affiliated 
person, of a Trust or a Fund, the Adviser, any Sub-Adviser, the 
Distributor or a promoter of the Fund (each, other than the Adviser, an 
``Affiliated Person'') will serve as the Index Provider (``Affiliated 
Index Fund''). The Index Provider to an Affiliated Index Fund (the 
``Affiliated Index Provider''), will create a proprietary, rules based 
methodology (``Rules-Based Process'') to create Underlying Indexes for 
use by the Affiliated Index Funds and other investors (an ``Affiliated 
Index'').\17\ The Adviser, if it is the Affiliated Index Provider, will 
be the owner of the Affiliated Indexes and all related intellectual 
property thereto, or the Adviser will enter into a license agreement 
with any Affiliated Person that is an Affiliated Index Provider for the 
use of the Underlying Indexes and related intellectual property at no 
cost to a Trust and Affiliated Index Funds.
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    \17\ The Affiliated Indexes may be made available to registered 
investment companies, as well as separately managed accounts of 
institutional investors and privately offered funds that are not 
deemed to be ``investment companies'' in reliance on section 3(c)(1) 
or 3(c)(7) of the Act and other pooled investment vehicles for which 
the Adviser acts as adviser or sub-adviser (``Affiliated Accounts'') 
as well as other such registered investment companies, separately 
managed accounts, privately offered funds and other pooled 
investment vehicles for which it does not act either as adviser or 
sub-adviser (``Unaffiliated Accounts''). The Affiliated Accounts and 
the Unaffiliated Accounts (collectively, ``Accounts''), like the 
Funds, would seek to track the performance of one or more Underlying 
Index(es) by investing in the constituents of such Underlying 
Index(es) or a representative sample of such constituents of the 
index. Consistent with the relief requested from section 17(a), the 
Affiliated Accounts will not engage in Creation Unit transactions 
with a Fund.
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    18. Applicants contend that the potential conflicts of interest 
arising from the fact that the Affiliated Index Provider will be the 
Adviser or an Affiliated Person are not actual concerns, and will not 
have any impact on the operation of the Affiliated Index Funds, because 
the Affiliated Indexes will maintain transparency. Applicants further 
state that the Affiliated Index Funds' portfolios will be transparent, 
and the Adviser, any Affiliated Person who is an Affiliated Index 
Provider, any Sub-Adviser and the Affiliated Index Funds each will 
adopt policies and procedures to address any potential conflicts of 
interest (``Policies and Procedures''). The Affiliated Index Provider 
will publish in the public domain, including on its Web site and/or the 
Affiliated Index Funds' Web site, the rules that governing the 
construction and maintenance of each of its Affiliated Indexes. 
Applicants believe that this public disclosure will prevent the Adviser 
from possessing any advantage over other market participants by virtue 
of being the Affiliated Index Provider or being affiliated with the 
Affiliated Index Provider. Applicants note that the identity and 
weightings of the securities of any Affiliated Index will be readily 
ascertainable by any third party because the Rules-Based Process will 
be freely available.
    19. Like other index providers, the Affiliated Index Provider may 
modify the Rules-Based Process in the future. The Rules-Based Process 
could be modified, for example, to reflect changes in the underlying 
market tracked by an Affiliated Index, the way in which the Rules-Based 
Process takes into account market events or to change the way a 
corporate action, such as a stock split, is handled. Such changes would 
not take effect until the Affiliated Index Provider has given (a) the 
Calculation Agent (defined below) reasonable prior written notice of 
such rule changes, and (b) the investing public at least sixty (60) 
days published notice that such changes will be implemented. Affiliated 
Indexes may have reconstitution dates and rebalance dates that occur on 
a periodic basis

[[Page 39803]]

more frequently than once yearly, but no more frequently than monthly.
    20. As owner of the Affiliated Indexes, the Affiliated Index 
Provider will hire a calculation agent (``Calculation Agent''). The 
Calculation Agent will not be an affiliated person, as such term is 
defined in the Act, or an affiliated person of an affiliated person, of 
the Affiliated Index Funds, the Adviser, any Sub-Adviser, any promoter 
of a Fund or the Distributor. The Affiliated Index Provider will 
initially apply the Rules Based Process to the universe of equity and/
or fixed income securities and will determine the number, type, and 
weight of securities that will comprise each Affiliated Index, and will 
perform all calculations necessary to determine the proper make-up of 
the Affiliated Index. Thereafter, the Calculation Agent will be solely 
responsible for the calculation and maintenance of each Affiliated 
Index, as well as the dissemination of the values of each Affiliated 
Index. The Affiliated Index Provider will be responsible solely for 
performing the reconstitution updates and rebalance updates for each 
Affiliated Index.
    21. The Adviser, any Affiliated Person who is an Affiliated Index 
Provider, any Sub-Adviser and the Affiliated Index Funds will adopt and 
implement Policies and Procedures to address any potential conflicts of 
interest. Among other things, the Policies and Procedures will be 
designed to limit or prohibit communication with respect to issues/
information related to management, calculation and reconstitution of 
the Affiliated Indexes between the personnel of the Index Provider who 
have responsibility for the Affiliated Indexes and the Rules Based 
Process (``Index Personnel'') and the personnel who have responsibility 
for the maintenance of the Affiliated Index Funds or any Affiliated 
Accounts. The Index Personnel (a) will not have any responsibility for 
the management of the Affiliated Index Funds, or the Affiliated 
Accounts, (b) will be expressly prohibited from sharing this 
information with those employees of the Adviser or those of any Sub-
Adviser, that have responsibility for the management of the Affiliated 
Index Funds, or any Affiliated Account until such information is 
publicly announced, and (c) will be expressly prohibited from sharing 
or using this non-public information in any way except in connection 
with the performance of their respective duties. In addition, the 
Adviser and any Sub-Adviser will adopt and implement, pursuant to rule 
206(4)-7 under the Advisers Act, written policies and procedures 
designed to prevent violations of the Advisers Act and the rules 
thereunder. Also, the Adviser has adopted a code of ethics pursuant to 
rule 17j-1 under the Act and rule 204A-1 under the Advisers Act (``Code 
of Ethics''). Any Sub-Adviser will be required to adopt a Code of 
Ethics and provide the Trust with the certification required by rule 
17j-1 under the Act. In conclusion, Applicants submit that the 
Affiliated Index Funds will operate in a manner very similar to the 
other index-based ETFs which are currently traded.

Applicants' Legal Analysis

    1. Applicants request an order under section 6(c) of the Act for an 
exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act 
and rule 22c-1 under the Act, and under sections 6(c) and 17(b) of the 
Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act.
    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, from any provision of the Act, 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. 
Section 17(b) of the Act authorizes the Commission to exempt a proposed 
transaction from section 17(a) of the Act if evidence establishes that 
the terms of the transaction, including the consideration to be paid or 
received, are reasonable and fair and do not involve overreaching on 
the part of any person concerned, and the proposed transaction is 
consistent with the policies of the registered investment company and 
the general provisions of the Act.

Sections 5(a)(1) and 2(a)(32) of the Act

    3. Section 5(a)(1) of the Act defines an ``open-end company'' as a 
management investment company that is offering for sale or has 
outstanding any redeemable security of which it is the issuer. 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 owner, upon 
its presentation to the issuer, is entitled to receive approximately 
his proportionate share of the issuer's current net assets, or the cash 
equivalent. Because Shares will not be individually redeemable, 
applicants request an order that would permit the Funds to register as 
open-end management investment companies and issue Shares that are 
redeemable in Creation Units only. Applicants state that investors may 
purchase Shares in Creation Units and redeem Creation Units from each 
Fund. Applicants further state that because the market price of Shares 
will be disciplined by arbitrage opportunities, investors should be 
able to buy and sell Shares in the secondary market at prices that do 
not vary materially from their 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 currently being offered to 
the public by or through a principal underwriter, except at a 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. 
Applicants state that secondary market trading in Shares will take 
place at negotiated prices, not at a current offering price described 
in a Fund's prospectus, and not at a price based on NAV. Thus, 
purchases and sales of Shares in the secondary market will not comply 
with section 22(d) of the Act and rule 22c-1 under the Act. Applicants 
request an exemption under section 6(c) from these provisions.
    5. Applicants assert that the concerns sought to be addressed by 
section 22(d) of the Act and rule 22c-1 under the Act with respect to 
pricing are equally satisfied by the proposed method of pricing Shares. 
Applicants maintain that while there is little legislative history 
regarding section 22(d), its provisions, as well as 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) ensure an orderly distribution system of 
investment company shares by eliminating price competition from non-
contract dealers offering shares at less than the published sales price 
and repurchasing shares at more than the published redemption price.
    6. Applicants believe that none of these purposes will be thwarted 
by permitting Shares to trade in the secondary market at negotiated 
prices. Applicants state that (a) secondary market trading in Shares 
does not involve Trust assets and will not result in dilution of an 
investment in Shares, and (b) to the extent different prices exist 
during a given trading day, or from day to day, such variances occur as 
a result of third party market forces, such as supply and demand. 
Therefore, applicants assert that secondary market transactions in 
Shares will not lead to

[[Page 39804]]

discrimination or preferential treatment among purchasers. Finally, 
applicants contend that the proposed distribution system will be 
orderly because competitive forces will ensure that the difference 
between the market price of Shares and their NAV remains narrow.

Section 22(e)

    7. Section 22(e) of the Act generally prohibits a registered 
investment company from suspending the right of redemption or 
postponing the date of payment of redemption proceeds for more than 
seven days after the tender of a security for redemption. Applicants 
observe that the settlement of redemptions for the Foreign Funds will 
be contingent not only on the settlement cycle of the U.S. securities 
markets, but also on the delivery cycles in local markets for the 
underlying foreign securities held by the Foreign Funds. Applicants 
believe that under certain circumstances, the delivery cycles for 
transferring Portfolio Securities to redeeming investors, coupled with 
local market holiday schedules, will require a delivery process of up 
to 15 calendar days.\18\ Applicants therefore request relief from 
section 22(e) in order to provide for payment or satisfaction of 
redemptions within the maximum number of calendar days required for 
such payment or satisfaction in the principal local markets where 
transactions in the Portfolio Securities of each Foreign Fund 
customarily clear and settle, but in all cases no later than 15 
calendar days following the tender of a Creation Unit.\19\ With respect 
to Future Funds that are Foreign Funds, applicants seek the same relief 
from section 22(e) only to the extent that circumstances exist similar 
to those described in the application.
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    \18\ In the past, settlement in certain countries, including 
Russia, has extended to 15 calendar days.
    \19\ Applicants acknowledge that relief obtained from the 
requirements of section 22(e) will not affect any obligations 
applicants may have under rule 15c6-1 under the Exchange Act. Rule 
15c6-1 requires that most securities transactions be settled within 
three business days of the trade date.
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    8. Applicants submit that section 22(e) was designed to prevent 
unreasonable, undisclosed and unforeseen delays in the actual payment 
of redemption proceeds. Applicants state that allowing redemption 
payments for Creation Units of a Foreign Fund to be made within a 
maximum of 15 calendar days would not be inconsistent with the spirit 
and intent of section 22(e). Applicants state the SAI will identify 
those instances in a given year where, due to local holidays, more than 
seven days will be needed to deliver redemption proceeds and will list 
such holidays and the maximum number of days, but in no case more than 
15 calendar days. Applicants are only seeking relief from section 22(e) 
to the extent that the Foreign Funds effect redemptions of Creation 
Units in-kind.

Sections 17(a)(1) and (2) of the Act

    9. Section 17(a) of the Act generally prohibits an affiliated 
person of a registered investment company, or an affiliated person of 
such a person (``second-tier affiliate''), from selling any security or 
other property to or acquiring any security or other property from the 
company. Section 2(a)(3) of the Act defines ``affiliated person'' of 
another person to include (a) 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 (c) any person directly or 
indirectly controlling, controlled by or under common control with the 
other person. Section 2(a)(9) of the Act defines control as the power 
to exercise a controlling influence over the management of policies of 
a company. It also provides that a control relationship will be 
presumed where one person owns more than 25% of a company's voting 
securities. The Funds may be deemed to be controlled by the Adviser and 
hence affiliated persons of each other. In addition, the Funds may be 
deemed to be under common control with any other registered investment 
company (or series thereof) advised by the Adviser (an ``Affiliated 
Fund'').
    10. Applicants request an exemption from section 17(a) of the Act 
pursuant to sections 17(b) and 6(c) of the Act to permit persons to 
effectuate in-kind purchases and redemptions with a Fund when they are 
affiliated persons or second-tier affiliates of the Fund solely by 
virtue of one or more of the following: (a) Holding 5% or more, or more 
than 25%, of the outstanding Shares of one or more Funds; (b) having an 
affiliation with a person with an ownership interest described in (a); 
or (c) holding 5% or more, or more than 25%, of the shares of one or 
more Affiliated Funds.
    11. Applicants assert that no useful purpose would be served by 
prohibiting these types of affiliated persons from acquiring or 
redeeming Creation Units through in-kind transactions. Except as 
described in Section II.K.2 of the application, the Deposit Instruments 
and Redemption Instruments will be the same for each purchaser or 
redeemer regardless of the their identity. The deposit procedures for 
both in-kind purchases and in-kind redemptions of Creation Units will 
be the same for all purchases and redemptions, regardless of size or 
number. Deposit Instruments and Redemption Instruments will be valued 
in the same manner as Portfolio Securities are valued for purposes of 
calculating NAV. Applicants submit that, by using the same standards 
for valuing Portfolio Securities as are used for calculating in-kind 
redemptions or purchases, the Fund will ensure that its NAV will not be 
adversely affected by such transactions. Applicants also believe that 
in-kind purchases and redemptions will not result in self-dealing or 
overreaching of the Fund.

Applicants' Conditions

    Applicants agree that any order of the Commission granting the 
requested relief will be subject to the following conditions:
    1. The requested relief will expire on the effective date of any 
Commission rule under the Act that provides relief permitting the 
operation of index-based ETFs.
    2. As long as a Fund operates in reliance on the order, the Shares 
of such Fund will be listed on an Exchange.
    3. No Fund will be advertised or marketed as an open-end investment 
company or mutual fund. Any advertising material that describes the 
purchase or sale of Creation Units or refers to redeemability will 
prominently disclose that Shares are not individually redeemable and 
that owners of Shares may acquire those Shares from the Fund and tender 
those Shares for redemption to a Fund in Creation Units only.
    4. The Web site for the Funds, which is and will be publicly 
accessible at no charge, will contain, on a per Share basis for each 
Fund, the prior Business Day's NAV and the market closing price or the 
Bid/Ask Price, and a calculation of the premium or discount of the 
market closing price or Bid/Ask Price against such NAV.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-15846 Filed 7-1-13; 8:45 am]
BILLING CODE 8011-01-P


