
[Federal Register Volume 79, Number 226 (Monday, November 24, 2014)]
[Notices]
[Pages 69966-69974]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-27711]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-73630; File No. SR-NASDAQ-2014-038]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order 
Granting Approval of a Proposed Rule Change, as Modified by Amendments 
No. 1 and No. 2 Thereto, Relating to the Listing and Trading of the 
Shares of the Reality Shares NASDAQ-100 DIVS Index ETF Under Nasdaq 
Rule 5705

November 18, 2014.

I. Introduction

    On April 10, 2014, The NASDAQ Stock Market LLC (``Exchange'' or 
``NASDAQ'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'' or ``Exchange Act'') \1\ and

[[Page 69967]]

Rule 19b-4 thereunder,\2\ a proposed rule change to list and trade 
shares (``Shares'') of the Reality Shares NASDAQ-100 DIVS Index ETF 
(``Fund'') under Rule 5705. The proposed rule change was published for 
comment in the Federal Register on April 30, 2014.\3\ On May 13, 2014, 
the Exchange filed Amendment No. 1 to the proposed rule change, which 
amended and replaced the proposed rule change in its entirety.\4\ On 
June 4, 2014, the Exchange filed Amendment No. 2 to the proposed rule 
change.\5\ On June 13, 2014, pursuant to Section 19(b)(2) of the 
Act,\6\ the Commission designated a longer period within which to 
approve the proposed rule change, disapprove the proposed rule change, 
or institute proceedings to determine whether to disapprove the 
proposed rule change.\7\
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 72014 (Apr. 24, 
2014), 79 FR 24465 (``Notice'').
    \4\ In Amendment No. 1, the Exchange confirmed the hours of the 
three trading sessions on the Exchange, clarified the valuation of 
investments for purposes of calculating net asset value, clarified 
what information would be available on the Fund's Web site, and 
provided additional information relating to surveillance with 
respect to certain assets held by the Fund. Amendment No. 1 provided 
clarification to the proposed rule change, and because it does not 
materially affect the substance of the proposed rule change or raise 
novel or unique regulatory issues, Amendment No. 1 is not subject to 
notice and comment.
    \5\ The Exchange filed Amendment No. 2 to the proposal to 
reflect a change to the name of the Fund and the underlying index. 
Specifically, the Exchange replaced each reference in the proposal 
to the ``Reality Shares NASDAQ-100 Isolated Dividend Growth ETF'' 
(the original name of the Fund) with a reference to the ``Reality 
Shares NASDAQ-100 DIVS Index ETF.'' Similarly, the Exchange replaced 
each reference in the proposal to the ``Reality Shares NASDAQ-100 
Isolated Dividend Growth Index'' with a reference to the ``Reality 
Shares NASDAQ-100 DIVS Index.'' Amendment No. 2 is a technical 
amendment and is not subject to notice and comment as it does not 
materially affect the substance of the filing.
    \6\ 15 U.S.C. 78s(b)(2).
    \7\ See Securities Exchange Act Release No. 72384, 79 FR 35205 
(Jun. 19, 2014). The Commission designated a longer period within 
which to take action on the proposed rule change and designated July 
29, 2014, as the date by which it should approve, disapprove, or 
institute proceedings to determine whether to disapprove the 
proposed rule change.
---------------------------------------------------------------------------

    On July 29, 2014, the Commission instituted proceedings under 
Section 19(b)(2)(B) of the Act \8\ to determine whether to approve or 
disapprove the proposed rule change.\9\ In response to the Order 
Instituting Proceedings, the Commission received two comment letters on 
the proposal.\10\ On October 23, 2014, the Commission designated a 
longer period for Commission action on the Order Instituting 
Proceedings.\11\ This order grants approval of the proposed rule 
change, as modified by Amendments No. 1 and No. 2 thereto.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78s(b)(2)(B).
    \9\ See Securities Exchange Act Release No. 72715, 79 FR 45556 
(Aug. 5, 2014) (``Order Instituting Proceedings''). Specifically, 
the Commission instituted proceedings to allow for additional 
analysis of the proposed rule change's consistency with Section 
6(b)(5) of the Act, which requires, among other things, that the 
rules of a national securities exchange be ``designed to prevent 
fraudulent and manipulative acts and practices, to promote just and 
equitable principles of trade,'' and ``to protect investors and the 
public interest.'' See id.
    \10\ See Letter from Eric R. Ervin, President, Reality Shares 
ETF Trust and Reality Shares Advisors, LLC, and President and CEO, 
Reality Shares, Inc., to Kevin M. O'Neill, Deputy Secretary, 
Commission, dated August 22, 2014 (``Reality Shares Letter 1''); 
Letter from Eric R. Ervin, President, Reality Shares ETF Trust and 
Reality Shares Advisors, LLC, and President and CEO, Reality Shares, 
Inc., to Arun Manoharan, Financial Economist, Commission, dated 
October 21, 2014 (``Reality Shares Letter 2'').
    \11\ See Securities Exchange Act Release No. 73418, 79 FR 64431 
(Oct. 29, 2014).
---------------------------------------------------------------------------

II. Description of the Proposal, as Modified by Amendments No. 1 and 
No. 2 Thereto

    The Exchange proposes to list and trade the Shares of the Fund 
under NASDAQ Rule 5705(b), which governs the listing and trading of 
Index Fund Shares on the Exchange.\12\
---------------------------------------------------------------------------

    \12\ Index Fund Shares that are issued by an open-end investment 
company and listed and traded on the Exchange under NASDAQ Rule 5705 
seek to provide investment results that correspond generally to the 
price and yield performance of a specific foreign or domestic stock 
index, fixed income securities index, or combination thereof. See 
Rule 5705(b)(1)(A).
---------------------------------------------------------------------------

A. The Fund, Generally

    The Fund is an exchange-traded fund (``ETF'') that will seek long-
term capital appreciation by tracking the Reality Shares NASDAQ-100 
DIVS Index (``Index''). The Index measures market expectations for 
dividend growth of the companies included in the NASDAQ-100 Index.\13\ 
The Shares of the Fund will be offered by the Reality Shares ETF Trust 
(``Trust''), which was established as a Delaware statutory trust on 
March 26, 2013. The Fund is a series of the Trust. The Exchange 
represents that the Trust will be registered with the Commission as an 
open-end management investment company.\14\ Reality Shares Advisors, 
LLC will serve as the investment adviser to the Fund (``Adviser'').\15\ 
ALPS Distributors, Inc. will be the principal underwriter and 
distributor of the Fund's Shares. The Bank of New York Mellon will 
serve as administrator, custodian, and transfer agent for the Fund. The 
Exchange states that the Adviser is not a broker-dealer and is not 
affiliated with any broker-dealers.\16\
---------------------------------------------------------------------------

    \13\ The NASDAQ-100 Index is an index of 100 of the largest 
domestic and international securities (based on market 
capitalization) listed on The NASDAQ Stock Market. The NASDAQ-100 
Index includes companies across major industry groups, including 
computer hardware and software, telecommunications, retail/wholesale 
trade and biotechnology, and excludes securities of financial 
companies.
    \14\ According to the Exchange, the Trust will be registered 
under the Investment Company Act of 1940 (``1940 Act''). On November 
12, 2013, the Trust filed a registration statement on Form N-1A 
under the Securities Act of 1933 and the 1940 Act relating to the 
Fund, as amended by Pre-Effective Amendment Number 1, filed with the 
Commission on February 6, 2014 (File Nos. 333-192288 and 811-22911) 
(``Registration Statement''). In addition, the Exchange states that 
the Trust has obtained certain exemptive relief under the 1940 Act. 
Investment Company Act Release No. 30678 (Aug. 27, 2013) 
(``Exemptive Order''). The Exchange represents that investments made 
by the Fund will comply with the conditions set forth in the 
Exemptive Order.
    \15\ The Adviser is a wholly-owned subsidiary of the Index 
Provider.
    \16\ See note 19, infra.
---------------------------------------------------------------------------

B. The Exchange's Description of the Fund

    The Exchange has made the following representations and statements 
in describing the Fund and its investment strategy, including permitted 
portfolio holdings and investment restrictions.\17\
---------------------------------------------------------------------------

    \17\ Additional information regarding the Trust, the Fund, and 
the Shares, including investment strategy, risks, creation and 
redemption procedures, fees, portfolio holdings disclosure policies, 
distributions, and taxes, among other things, is included in the 
Notice, Registration Statement, and Exemptive Order, as applicable. 
See Notice, supra note 3; see also Registration Statement and 
Exemptive Order, supra note 14.
---------------------------------------------------------------------------

Reality Shares NASDAQ-100 DIVS Index ETF
    The Exchange states that the Index was developed by Reality Shares, 
Inc., the parent company of the Adviser, in conjunction with The NASDAQ 
OMX Group, Inc., and is maintained by Reality Shares, Inc. (``Index 
Provider'').\18\ The Index Provider is not a broker-dealer and is not 
affiliated with any broker-dealers.\19\ The Exchange

[[Page 69968]]

states that the Index for the Fund does not meet all of the ``generic'' 
listing requirements of paragraph (b)(3)(A)(i) of Rule 5705 applicable 
to the listing of Index Fund Shares based upon an index of ``U.S. 
Component Stocks.'' \20\ Specifically, Rule 5705(b)(3)(A)(i) sets forth 
the requirements to be met by components of an index or portfolio of 
U.S. Component Stocks. The Index will consist primarily of U.S. 
exchange-listed and traded options on the NASDAQ-100 Index and U.S. 
exchange-listed and traded options on ETFs that track the NASDAQ-100 
Index.\21\ The Fund may also invest up to 20% of its total assets in 
other securities such as over-the-counter (``OTC'') options, futures, 
and forward contracts on the NASDAQ-100 Index, and OTC options, 
futures, and forward contracts on ETFs that track the NASDAQ-100 Index. 
The Exchange has represented that the Shares will conform to the 
initial and continued requirements of listing criteria under Rule 
5705(b), except to the extent that the Index is composed of options 
based on U.S. Component Stocks (i.e., ETFs based on the NASDAQ-100 
Index) and options on an index of U.S. Component Stocks (i.e., the 
NASDAQ-100 Index).
---------------------------------------------------------------------------

    \18\ The Index will be calculated by International Data 
Corporation, which is not affiliated with the Adviser, Index 
Provider, or The NASDAQ OMX Group, and which is not a broker-dealer 
or fund advisor.
    \19\ According to the Exchange, the Adviser and the Index 
Provider have represented that a fire wall exists around the 
respective personnel who have access to information concerning 
changes and adjustments to the Index. The Exchange further 
represents that in the event (a) the Adviser, any sub-adviser, or 
the Index Provider becomes registered as a broker-dealer or is newly 
affiliated with a broker dealer, or (b) any new adviser, sub-
adviser, or Index Provider is a registered broker-dealer or becomes 
affiliated with a broker dealer, the Adviser, sub-adviser or Index 
Provider will implement a fire wall with respect to its relevant 
personnel or such broker dealer affiliate, as applicable, regarding 
access to information concerning the composition or changes to the 
portfolio and will be subject to procedures designed to prevent the 
use and dissemination of material, non-public information regarding 
the portfolio. The Fund does not currently intend to use a sub-
adviser. See Rule 5705(b)(1)(C); Rule 5705(b)(5)(A).
    \20\ Paragraph (b)(1)(D) of Rule 5705 states that the term 
``U.S. Component Stock'' shall mean an equity security that is 
registered under Sections 12(b) or 12(g) of the Exchange Act, or an 
American Depositary Receipt, the underlying equity security of which 
is registered under Sections 12(b) or 12(g) of the Act. See Rule 
5705(b)(1)(D).
    \21\ Paragraph (b)(3)(A)(i) of Rule 5705 states, in relevant 
part, that upon the initial listing of a series of Index Fund Shares 
pursuant to 19b-4(e) under the Act, all securities in the index or 
portfolio shall be U.S. Component Stocks listed on NASDAQ (including 
The NASDAQ Capital Market) or another national securities exchange, 
and shall be NMS Stocks as defined in Rule 600 of Regulation NMS 
under the Act. The Exchange states that each component stock of the 
NASDAQ-100 Index is a U.S. Component Stock that is listed on a 
national securities exchange and is an NMS Stock. Options, however, 
are excluded from the definition of NMS Stock. The Fund and the 
Index meet all of the requirements of the listing standards for 
Index Fund Shares in Rule 5705 except the requirements in 
5705(b)(3)(A)(i)(a)-(e), because the Index includes options on U.S. 
Component Stocks.
---------------------------------------------------------------------------

Principal Investments of the Fund
    The Fund will seek long-term capital appreciation and will seek 
investment results that, before fees and expenses, generally correspond 
to the performance of the Index. At least 80% of the Fund's total 
assets (exclusive of collateral held from securities lending, if any) 
will be invested in the component securities of the Index. The Fund 
will seek a correlation of 0.95 or better between its performance and 
the performance of its Index (a figure of 1.00 would represent perfect 
correlation). The Fund generally will use a representative sampling 
investment strategy.
    The Fund will buy (i.e., hold a ``long'' position in) and sell 
(i.e., hold a ``short'' position in) put and call options. The strategy 
of taking both a long position in a security through its ex-dividend 
date (the last date an investor can own the security and receive 
dividends paid on the security) and a corresponding short position in 
the same security immediately thereafter is designed to allow the Fund 
to isolate its exposure to the growth of the level of dividends 
expected to be paid on such security while minimizing its exposure to 
changes in the trading price of such security.
    The Fund will buy and sell U.S. exchange-listed options on the 
NASDAQ-100 Index and U.S. exchange-listed options on ETFs designed to 
track the NASDAQ-100 Index. A put option gives the purchaser of the 
option the right to sell, and the issuer of the option the obligation 
to buy, the underlying security or instrument on a specified date or 
during a specified period of time. A call option on a security gives 
the purchaser of the option the right to buy, and the writer of the 
option the obligation to sell, the underlying security or instrument on 
a specified date or during a specified period of time. The Fund will 
invest in a combination of put and call options designed to allow the 
Fund to isolate its exposure to the growth of the level of expected 
dividends reflected in options on the NASDAQ-100 Index and options on 
ETFs tracking the NASDAQ-100 Index, while minimizing the Fund's 
exposure to changes in the trading price of such securities.
Index Methodology
    The Index will be calculated using a proprietary, rules-based 
methodology designed to track market expectations for dividend growth 
conveyed in real-time using the mid-point of the bid-ask spread on 
NASDAQ-100 Index options and options on ETFs designed to track the 
NASDAQ-100 Index.\22\ All options included in the Index will be listed 
and traded on a U.S. national securities exchange. The Index will 
consist of a minimum of 20 components.\23\
---------------------------------------------------------------------------

    \22\ The Exchange notes that there is no guarantee that either 
the level of overall dividends paid by such companies will grow over 
time, or that the Index or Fund's investment strategies will capture 
such growth. The Fund will include appropriate risk disclosure in 
its offering documents disclosing these risks, which will be 
available for free on the Commission's Web site and on the Fund's 
Web site, www.realityshares.com.
    \23\ See Rule 5705(b)(3).
---------------------------------------------------------------------------

    The prices of index and ETF options reflect the market trading 
prices of the securities included in the applicable underlying index or 
ETF, as well as market expectations regarding the level of dividends to 
be paid on such indexes or ETFs during the term of the option. The 
Index constituents, and, therefore, most of the Fund's portfolio 
holdings, will consist of multiple corresponding near-term and long-
term put and call option combinations on the same reference assets 
(i.e., options on the NASDAQ-100 Index or options on NASDAQ-100 ETFs) 
with the same strike price. Because option prices reflect both stock 
price and dividend expectations, they can be used in combination to 
isolate either price exposure or dividend expectations. The use of 
near-term and long-term put and call options combinations on the same 
reference asset with the same strike price, but with different 
maturities, is designed to gain exposure to the expected dividends 
reflected in options on the NASDAQ-100 Index and options on ETFs 
tracking the NASDAQ-100 Index while neutralizing the impact of stock 
price.
    Once established, this portfolio construction of options 
combinations will accomplish two goals. First, the use of corresponding 
buy or sell positions on near and long-term options at the same strike 
price is designed to neutralize underlying stock price movements. In 
other words, the corresponding ``buy'' and ``sell'' positions on the 
same reference asset are designed to net against each other and 
eliminate the impact that changes to the stock price of the reference 
asset would otherwise have on the value of the Index (and Fund Shares). 
Second, by minimizing the impact of price fluctuations through the 
construct of the near- and long-term contract combinations, the 
strategy is designed to isolate market expectations for dividends 
implied between expiration dates of the near-term and long-term option 
contracts. Over time, the Index will increase or decrease in value as 
the dividend spread between the near-term and long-term options 
combinations increases or decreases as a result of changing market 
expectations for dividend growth.
Other Fund Investments
    While, as described above, at least 80% of the Fund's total assets 
(exclusive of collateral held from securities lending, if any) will be 
invested in the component securities of the Index, the Fund may invest 
up to 20% of its total assets in other securities and financial 
instruments, as described below.
    The Fund may invest in: (a) U.S. exchange-listed futures contracts 
based

[[Page 69969]]

on the NASDAQ-100 Index and ETFs designed to track the NASDAQ-100 
Index; and (b) forward contracts based on the NASDAQ-100 Index and ETFs 
designed to track the NASDAQ-100 Index. The Fund's use of exchange-
listed futures contracts and forward contracts is designed to allow the 
Fund to isolate its exposure to the growth of the level of expected 
dividends reflected in options on the NASDAQ-100 Index and options on 
ETFs tracking the NASDAQ-100 Index, while minimizing the Fund's 
exposure to changes in the trading price of such securities. The Fund 
may also buy and sell OTC options on the NASDAQ-100 Index and on ETFs 
designed to track the NASDAQ-100 Index.
    The Fund may enter into dividend and total return swap transactions 
(including equity swap transactions) based on the NASDAQ-100 Index and 
ETFs designed to track the NASDAQ-100 Index.\24\ In a typical swap 
transaction, one party agrees to make periodic payments to another 
party (``counterparty'') based on the change in market value or level 
of a specified rate, index, or asset. In return, the counterparty 
agrees to make periodic payments to the first party based on the return 
of a different specified rate, index, or asset. Swap transactions are 
usually done on a net basis, whereby the Fund would receive or pay only 
the net amount of the two payments. In a typical dividend swap 
transaction, the Fund would pay the swap counterparty a premium and 
would be entitled to receive the value of the actual dividends paid on 
the subject index during the term of the swap contract. In a typical 
total return swap, the Fund might exchange long or short exposures to 
the return of the underlying securities or index to isolate the value 
of the dividends paid on the underlying securities or index 
constituents. The Fund also may engage in interest rate swap 
transactions. In a typical interest rate swap transaction one stream of 
future interest payments is exchanged for another. Such transactions 
often take the form of an exchange of a fixed payment for a variable 
payment based on a future interest rate. The Fund intends to use 
interest rate swap transactions to manage or hedge exposure to interest 
rate fluctuations.
---------------------------------------------------------------------------

    \24\ The Fund will transact only with swap dealers that have in 
place an ISDA agreement with the Fund.
---------------------------------------------------------------------------

    The Fund may invest up to 20% of its assets (exclusive of 
collateral held from securities lending, if any) in exchange-listed 
equity securities and derivative instruments (specifically, futures 
contracts, forward contracts, and swap transactions, as noted above) 
\25\ relating to the Index and its component securities that the 
Adviser believes will help the Fund track the Index. For example, the 
Fund may buy and sell ETFs and, to a limited extent, individual large-
capitalization equity securities listed and traded on a U.S. national 
securities exchange.
---------------------------------------------------------------------------

    \25\ Where practicable, the Fund intends to invest in swaps 
cleared through a central clearing house (``Cleared Swaps''). 
Currently, only certain of the interest rate swaps in which the Fund 
intends to invest are Cleared Swaps, while the dividend and total 
return swaps (including equity swaps) in which the Fund may invest 
are currently not Cleared Swaps.
---------------------------------------------------------------------------

    The Fund may invest in the securities of other investment companies 
(including money market funds) to the extent permitted under the 1940 
Act.
    The Fund's short positions and its investments in swaps, futures 
contracts, forward contracts and options based on the NASDAQ-100 Index 
and ETFs designed to track the NASDAQ-100 Index will be backed by 
investments in cash, high-quality short-term debt securities and money-
market instruments in an amount equal to the Fund's maximum liability 
under the applicable position or contract, or will otherwise be offset 
in accordance with Section 18 of the 1940 Act. Short-term debt 
securities and money market instruments include shares of fixed income 
or money market mutual funds, commercial paper, certificates of 
deposit, bankers' acceptances, U.S. government securities (including 
securities issued or guaranteed by the U.S. government or its 
authorities, agencies, or instrumentalities), repurchase 
agreements,\26\ and bonds that are rated BBB or higher. In addition to 
the investments described above, and in a manner consistent with its 
investment objective, the Fund may invest a limited portion of its net 
assets in high-quality, short-term debt securities and money market 
instruments for cash management purposes.\27\
---------------------------------------------------------------------------

    \26\ The Fund may enter into repurchase agreements with banks 
and broker-dealers. A repurchase agreement is an agreement under 
which securities are acquired by a fund from a securities dealer or 
bank subject to resale at an agreed upon price on a later date. The 
acquiring fund bears a risk of loss in the event that the other 
party to a repurchase agreement defaults on its obligations and the 
fund is delayed or prevented from exercising its rights to dispose 
of the collateral securities.
    \27\ The Fund may invest in shares of money market mutual funds 
to the extent permitted by the 1940 Act.
---------------------------------------------------------------------------

    The Fund will attempt to limit counterparty risk in non-cleared 
swap, forward, and OTC option contracts by entering into such contracts 
only with counterparties the Adviser believes are creditworthy and by 
limiting the Fund's exposure to each counterparty. The Adviser will 
monitor the creditworthiness of each counterparty and the Fund's 
exposure to each counterparty on an ongoing basis.\28\
---------------------------------------------------------------------------

    \28\ The Fund will seek, where possible, to use counterparties, 
as applicable, whose financial status is such that the risk of 
default is reduced; however, the risk of losses resulting from 
default is still possible. The Adviser will evaluate the 
creditworthiness of counterparties on an ongoing basis. In addition 
to information provided by credit agencies, the Adviser will 
evaluate each approved counterparty using various methods of 
analysis, such as, for example, the counterparty's liquidity in the 
event of default, the counterparty's reputation, the Adviser's past 
experience with the counterparty, and the counterparty's share of 
market participation.
---------------------------------------------------------------------------

    The Fund's investments in swaps, futures contracts, forward 
contracts and options will be consistent with the Fund's investment 
objective and with the requirements of the 1940 Act.\29\
---------------------------------------------------------------------------

    \29\ To limit the potential risk associated with such 
transactions, the Fund will segregate or ``earmark'' assets 
determined to be liquid by the Adviser in accordance with procedures 
established by the Trust's Board of Trustees and in accordance with 
the 1940 Act (or, as permitted by applicable regulation, enter into 
certain offsetting positions) to cover its obligations arising from 
such transactions. These procedures have been adopted consistent 
with Section 18 of the 1940 Act and related Commission guidance. In 
addition, the Fund will include appropriate risk disclosure in its 
offering documents, including leveraging risk. Leveraging risk is 
the risk that certain transactions of the Fund, including the Fund's 
use of derivatives, may give rise to leverage, causing the Fund to 
be more volatile than if it had not been leveraged. To mitigate 
leveraging risk, the Adviser will segregate or ``earmark'' liquid 
assets or otherwise cover the transactions that may give rise to 
such risk.
---------------------------------------------------------------------------

Investment Restrictions
    To the extent the Index concentrates (i.e., holds 25% or more of 
its total assets) in the securities of a particular industry or group 
of industries, the Fund will concentrate its investments to 
approximately the same extent as the Index.
    The Fund may hold up to an aggregate amount of 15% of its net 
assets in illiquid assets (calculated at the time of investment) deemed 
illiquid by the Adviser, consistent with Commission guidance.\30\ The 
Fund will monitor its portfolio liquidity on an ongoing basis to 
determine whether, in light of current circumstances, an adequate level 
of liquidity is being maintained, and will consider taking appropriate 
steps in

[[Page 69970]]

order to maintain adequate liquidity if, through a change in values, 
net assets, or other circumstances, more than 15% of the Fund's net 
assets are held in illiquid assets. Illiquid assets include securities 
subject to contractual or other restrictions on resale and other 
instruments that lack readily available markets as determined in 
accordance with Commission staff guidance.
---------------------------------------------------------------------------

    \30\ In reaching liquidity decisions, the Adviser may consider 
the following factors: The frequency of trades and quotes for the 
security; the number of dealers wishing to purchase or sell the 
security and the number of other potential purchasers; dealer 
undertakings to make a market in the security; and the nature of the 
security and the nature of the marketplace in which it trades (e.g., 
the time needed to dispose of the security, the method of soliciting 
offers, and the mechanics of transfer).
---------------------------------------------------------------------------

    The Fund may make secured loans of its portfolio securities; 
however, securities loans will not be made if, as a result, the 
aggregate amount of all outstanding securities loans by the Fund 
exceeds 33\1/3\% of its total assets (including the market value of 
collateral received). To the extent the Fund engages in securities 
lending, securities loans will be made to broker-dealers that the 
Adviser believes to be of relatively high credit standing pursuant to 
agreements requiring that the loans continuously be collateralized by 
cash, liquid securities, or shares of other investment companies with a 
value at least equal to the market value of the loaned securities.
    The Fund will be classified as a ``non-diversified'' investment 
company under the 1940 Act. The Fund intends to qualify for and to 
elect treatment as a separate regulated investment company (``RIC'') 
under Subchapter M of the Internal Revenue Code.
    The Fund's investments will be consistent with its investment 
objective and will not be used to provide multiple returns of a 
benchmark or to produce leveraged returns.

III. Summary of Comment Letters

    As noted above, the Commission received two comment letters in 
response to the Order Instituting Proceedings.\31\ Both comment 
letters, which were in favor of the proposal, sought to address certain 
questions, as outlined in the Order Instituting Proceedings,\32\ and 
provide additional clarification regarding the proposal.
---------------------------------------------------------------------------

    \31\ See Reality Shares Letter 1; Reality Shares Letter 2, supra 
note 10.
    \32\ In the Order Instituting Proceedings, the Commission sought 
comment on the following questions: (a) Because the Index is 
designed to reflect changes in market expectations of future 
dividend growth, rather than to track actual dividend growth, is the 
Fund's investment strategy fundamentally based on an assumption that 
the options markets systemically underprice dividend growth? What 
are commenters' views regarding whether investors would be able to 
understand the strategy, risks, potential rewards, assumptions, and 
expected performance of the Fund's strategy? (b) With respect to the 
trading of the Shares on the Exchange, do commenters believe that 
the Exchange's rules governing sales practices are adequately 
designed to ensure the suitability of recommendations regarding the 
Shares? Why or why not? If not, should the Exchange's rules 
governing sales practices be enhanced? If so, in what ways? (c) How 
closely do commenters think the market price of the Shares will 
track the Fund's intraday indicative value (``IIV'') or the intraday 
value of the Index? Are certain of these values likely to be more 
volatile than others? If so, how would this affect trading in the 
Shares? Are the Shares likely to trade with a significant premium or 
discount to IIV? What are commenters' views of how effectively the 
IIV of the Fund would represent the Fund's portfolio? What are 
commenters' views of how the Shares' market price, the Fund's IIV, 
and the intraday value of the Index will relate to one another 
during times of market stress? and (d) Does the liquidity of the 
long-dated options in which the Fund will invest differ materially 
from that of the short-dated options in which the Fund will invest? 
If so, how would that affect the ability of market makers to engage 
in arbitrage or to hedge their positions while making a market in 
the Shares? Would the liquidity characteristics of the Index 
components or of the options in the Fund's portfolio affect the 
calculation of the Index value, the calculation of the Fund's IIV, 
the calculation of the Fund's NAV, or the ability of market makers 
or other market participants to value the Shares? If so, how?
---------------------------------------------------------------------------

A. Reality Shares Letter 1

    In Reality Shares Letter 1, the commenter offers its responses to 
the Commission's questions. The commenter responds that the Fund's 
investment strategy is not based on the assumption that dividend growth 
is underpriced by the options markets, stating that it is instead based 
on the expected dividend value to be paid on Nasdaq-100 securities (as 
implied in the price of listed Nasdaq- Index options over time) and the 
``historical high correlation between such expected dividend values and 
the value of actual dividends paid on Nasdaq- securities.'' \33\ The 
commenter then explains that, as the value of actual dividends paid 
increases or decreases, market expectations for dividends typically 
move up or down in a corresponding direction and that, if the current 
expected dividend value of the options in the Fund's portfolio changes, 
the value of an investment in the Fund changes correspondingly.\34\
---------------------------------------------------------------------------

    \33\ See Reality Shares Letter 1, supra note 10, at 2-3.
    \34\ See id., at 3.
---------------------------------------------------------------------------

    The commenter asserts that the Fund's Registration Statement will 
sufficiently disclose to investors the key features of the Fund, 
including explanations of how the Fund's strategy works and how the 
Fund is expected to perform under various market conditions, and 
disclosures highlighting all material risks of investing in the 
Fund.\35\ The commenter believes that these disclosures, and the 
disclosures in the Fund's marketing materials, will allow investors to 
understand the Fund's investment objective, strategy, risks, potential 
rewards, assumptions, and performance characteristics.\36\ Further, the 
commenter believes that the Exchange's rules governing sales practices 
are sufficient to ensure the suitability of recommendations to 
investors regarding the Fund's Shares.\37\
---------------------------------------------------------------------------

    \35\ See id., at 3-4.
    \36\ See id., at 4.
    \37\ See id., at 5.
---------------------------------------------------------------------------

    With respect to IIV, the commenter responds that it believes that 
the market price of the Fund Shares will closely approximate the IIV of 
the Fund's portfolio and the intraday value of the Fund's underlying 
Index.\38\ While it believes that ``the Fund's IIV and intraday Index 
values may reflect higher volatility than the market trading price of 
Fund Shares,'' the commenter does not expect this will have any 
material impact on secondary market trading of Fund Shares or arbitrage 
in Fund Shares.\39\ The commenter expects that Authorized Participants 
and other institutional investors will quote and trade the option 
contracts held by the Fund in combination (by holding simultaneous long 
and short positions in the same put/call contracts) and that this 
combination tends to trade at tighter bid/ask spreads than do the 
individual contracts.\40\ The commenter expects that Authorized 
Participants and other market makers will factor the price of the 
combination trades into their assessment of the value of Fund Shares, 
which will be reflected in the trading price of Fund Shares.\41\ The 
commenter explains that the Fund's IIV and the intraday Index values 
are based on the intraday market price of individual option contracts 
and do not reflect the trading price of option contracts held in 
combination. So, while the commenter expects the price of Fund Shares 
to closely approximate the Fund's IIV and the intraday values of the 
Index, it also expects that the trading price of Fund shares will be 
less volatile than the Fund's IIV and the intraday value of the 
Index.\42\
---------------------------------------------------------------------------

    \38\ See Reality Shares Letter 1, supra note 10, at 6.
    \39\ See id.
    \40\ See id.
    \41\ See id., at 7.
    \42\ See id.
---------------------------------------------------------------------------

    In times of market stress, the commenter believes that the Fund's 
Shares will trade within an acceptable spread to the Fund's IIV and the 
intraday value of the Index.\43\ The commenter believes that, because 
the Fund's portfolio is transparent and the Index constituents are 
publicly disclosed, market participants will be able to assess the 
value of the Fund and the Index and access the securities necessary to 
hedge their position exposures, even during times of market

[[Page 69971]]

stress.\44\ Further, the commenter asserts that, ``[b]ecause of the 
transparency of the Fund's portfolio and the liquidity and transparency 
of the underlying listed index options . . . investors will continue to 
have the ability to buy and sell Shares in the secondary market at fair 
and representative prices should there be any material departure from 
the IIV.'' \45\
---------------------------------------------------------------------------

    \43\ See Reality Shares Letter 1, supra note 10, at 9.
    \44\ See id.
    \45\ See id., at 10.
---------------------------------------------------------------------------

    The commenter states that the liquidity of the longer-dated option 
contracts in the Fund's portfolio will not differ materially from the 
liquidity of the shorter-dated option contracts.\46\ Further, the 
commenter explains that the liquidity characteristics of the option 
contracts held by the Fund will not negatively impact the Fund's 
operation, the calculation of the Index value, the calculation of the 
Fund's IIV, or the calculation of the Fund's NAV.\47\ The commenter 
believes that the options contracts provide ``sufficient and ample 
liquidity . . . for Authorized Participants and other investors to 
engage in efficient hedging activity, to value Fund Shares and to make 
markets in Fund Shares.'' \48\
---------------------------------------------------------------------------

    \46\ See id.
    \47\ See id., at 11.
    \48\ See Reality Shares Letter 1, supra note 10, at 12.
---------------------------------------------------------------------------

B. Reality Shares Letter 2

    In Reality Shares Letter 2, the commenter seeks to address whether 
the Fund's strategy will produce positive returns for buy-and-hold 
investors over the longer term in light of the efficient nature of 
markets and the ability of astute market participants to predict 
dividend growth.\49\ The commenter claims that the historical returns 
of the Fund's strategy have been positive over long periods of time and 
that an investor can reasonably expect returns in the future that are 
non-zero and positive in the long term.\50\
---------------------------------------------------------------------------

    \49\ See Reality Shares Letter 2, supra note 10, at 1.
    \50\ See id.
---------------------------------------------------------------------------

    In support of this claim, the commenter argues that all 
investments, even in perfectly efficient markets, are expected to have, 
at minimum, a risk-free rate associated with them.\51\ For example, 
Treasury Bills (theoretically risk-free assets) are discounted by the 
risk-free rate in order to entice investors to purchase them.\52\ Thus, 
even in a perfectly efficient market such as the one for Treasury 
Bills, an investment in a riskless asset will produce a long-term 
return greater than zero.\53\ In addition, the commenter adds that, if 
any uncertainty surrounds the future payoff of an investment, one would 
expect a risk premium to be attached to the investment.\54\ This would 
be quantified as the amount of money by which the expected return on 
the asset exceeds the known return of a risk-free asset.\55\ This risk 
premium compensates investors for the uncertainty in their investment 
in a risky asset.\56\ If the dividend risk premium were low, one would 
expect the strategy to earn less than the actual growth of dividends; 
if dividend risk premium were high, one would expect the strategy to 
earn more than actual dividend growth.\57\ The commenter notes that, 
while expected dividend returns may not match dividend growth exactly, 
the rate of return would (at a minimum) be expected to be equal to the 
risk free rate, plus the risk premium.\58\
---------------------------------------------------------------------------

    \51\ See id.
    \52\ See id.
    \53\ See id.
    \54\ See Reality Shares Letter 2, supra note 10, at 2.
    \55\ See id.
    \56\ See id.
    \57\ See id.
    \58\ See id.
---------------------------------------------------------------------------

    The commenter further asserts that, beyond the theoretical analogy 
stated above, an investment in the expected dividend implied in the 
options markets has historically produced positive returns and that the 
Fund's strategy can be expected to produce future positive long-term 
returns.\59\ While the commenter believes that it is possible for 
implied dividend strategies to outperform equity returns, as well as 
actual dividend growth, the commenter argues that the foundation of the 
Fund's investment strategy is predicated on its conclusion that implied 
dividends carry risk and that, in an efficient market, this risk will 
be reflected in the form of a dividend risk premium.\60\
---------------------------------------------------------------------------

    \59\ See Reality Shares Letter 2, supra note 10, at 2.
    \60\ See id., at 3.
---------------------------------------------------------------------------

IV. Discussion and Commission Findings

    The Commission has carefully considered the proposal and the 
comments submitted in response to the questions raised by the 
Commission in the Order Instituting Proceedings. For the reasons 
discussed below, the Commission finds that the Exchange's proposal to 
list and trade the Shares is consistent with the Exchange Act and the 
rules and regulations thereunder applicable to a national securities 
exchange.\61\ In particular, the Commission finds that the proposed 
rule change, as modified by Amendments No. 1 and No. 2 thereto, is 
consistent with Section 6(b)(5) of the Exchange Act,\62\ which 
requires, among other things, that the Exchange's rules be designed to 
promote just and equitable principles of trade, to remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system, and, in general, to protect investors and the public 
interest. The Commission also finds that the proposal to list and trade 
the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) 
of the Exchange Act,\63\ which sets forth Congress' finding that it is 
in the public interest and appropriate for the protection of investors 
and the maintenance of fair and orderly markets to assure the 
availability to brokers, dealers, and investors of information with 
respect to quotations for and transactions in securities.
---------------------------------------------------------------------------

    \61\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \62\ 15 U.S.C. 78f(b)(5).
    \63\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
---------------------------------------------------------------------------

    Quotation and last-sale information for the Shares will be 
available via NASDAQ proprietary quote and trade services, as well as 
in accordance with the Unlisted Trading Privileges and the Consolidated 
Tape Association plans for the Shares. The value of the Index will be 
published by one or more major market data vendors every 15 seconds 
during the Regular Market Session. Information about the Index 
constituents, the weighting of the constituents, the Index's 
methodology, and the Index's rules will be available at no charge on 
the Index Provider's Web site at www.realityshares.com. In addition, an 
estimated value, defined in Rule 5705(b)(3)(C) as the ``Intraday 
Indicative Value,'' will be disseminated. The Intraday Indicative 
Value, available on the NASDAQ OMX Information LLC proprietary index 
data service,\64\ will be based upon the current value for the 
components of the Disclosed Portfolio (as discussed herein) and will be 
updated and widely disseminated and broadly displayed at least every 15 
seconds during the Regular Market Session (currently 9:30 a.m. Eastern 
time). On each business day, before commencement of trading in Shares 
in the Regular Market Session on the

[[Page 69972]]

Exchange, the Fund will disclose on its Web site the identities and 
quantities of the portfolio of securities and other assets (the 
``Disclosed Portfolio'') held by the Fund that will form the basis for 
the Fund's calculation of NAV at the end of the business day.\65\ In 
addition, a basket composition file, which includes the security names 
and quantities, as applicable, required to be delivered in exchange for 
the Fund's Shares, together with estimates and actual cash components, 
will be publicly disseminated daily prior to the opening of NASDAQ via 
the National Securities Clearing Corporation. The basket will represent 
one Creation Unit of the Fund. The portfolio composition file will 
represent one Creation Unit of Shares of the Fund.
---------------------------------------------------------------------------

    \64\ Currently, the NASDAQ OMX Global Index Data Service 
(``GIDS'') is the NASDAQ OMX global index data feed service, 
offering real-time updates, daily summary messages, and access to 
widely followed indexes and Intraday Indicative Values for ETFs. 
GIDS provides investment professionals with the daily information 
needed to track or trade NASDAQ OMX indexes, listed ETFs, or third-
party partner indexes and ETFs.
    \65\ Under accounting procedures to be followed by the Fund, 
trades made on the prior business day (``T'') will be booked and 
reflected in NAV on the current business day (``T+1''). Accordingly, 
the Fund will be able to disclose at the beginning of the business 
day the portfolio that will form the basis for the NAV calculation 
at the end of the business day. On a daily basis, the Adviser, on 
behalf of the Fund, will disclose on the Fund's Web site the 
following information regarding each portfolio holding, as 
applicable to the type of holding: Ticker symbol, CUSIP number or 
other identifier, if any; a description of the holding (including 
the type of holding, such as the type of swap); the identity of the 
security, commodity, index, or other asset or instrument underlying 
the holding, if any; for options, the option strike price; quantity 
held (as measured by, for example, par value, notional value or 
number of shares, contracts or units); maturity date, if any; coupon 
rate, if any; effective date, if any; market value of the holding; 
and the percentage weighting of the holdings in the Fund's 
portfolio. The Web site information will be publicly available at no 
charge.
---------------------------------------------------------------------------

    The Fund will calculate its NAV by: (i) taking the current market 
value of its total assets; (ii) subtracting any liabilities; and (iii) 
dividing that amount by the total number of Shares outstanding. The 
Fund will calculate NAV once each business day as of the regularly 
scheduled close of trading on the NYSE (normally, 4:00 p.m., Eastern 
Time).\66\ Intra-day, executable price quotations on the securities and 
other assets held by the Fund will be available from major broker-
dealer firms or on the exchange on which they are traded, as 
applicable. Intra-day price information will also be available through 
subscription services, such as Bloomberg, Markit, and Thomson Reuters, 
which can be accessed by Authorized Participants and other investors. 
Specifically, the intra-day, closing and settlement prices of the 
portfolio securities and other Fund investments, including exchange-
listed equity securities (which include common stocks and ETFs), 
exchange-listed futures, and exchange-listed options, will be readily 
available from the national securities exchanges trading such 
securities, automated quotation systems, published or other public 
sources, and, with respect to OTC options, swaps, and forwards, from 
third party pricing sources, or on-line information services such as 
Bloomberg or Reuters. Price information regarding investment company 
securities and ETFs will be available from on-line information services 
and from the Web site for the applicable investment company security. 
The intra-day, closing and settlement prices of debt securities and 
money market instruments will be readily available from published and 
other public sources or on-line information services. Information 
regarding market price and trading volume of the Shares will be 
continually available on a real-time basis throughout the day on 
brokers' computer screens and other electronic services. Information 
regarding the previous day's closing price and trading volume 
information for the Shares will be published daily in the financial 
section of newspapers. The Fund's Web site will include a form of the 
prospectus for the Fund that may be downloaded and additional data 
relating to NAV and other applicable quantitative information.
---------------------------------------------------------------------------

    \66\ The Trust will generally value exchange-listed securities 
(which include common stocks and ETFs), exchange-listed options, and 
options on the NASDAQ-100 Index or NASDAQ-100 ETFs at market closing 
prices. Market closing price is generally determined on the basis of 
last reported sales prices on the applicable exchange, or if no 
sales are reported, based on the mid-point between the last reported 
bid and ask. The Trust will generally value exchange-listed futures 
at the settlement price determined by the applicable exchange. Non-
exchange-traded derivatives, including OTC options, swap 
transactions, and forward transactions, will normally be valued on 
the basis of quotations or equivalent indication of value supplied 
by a third-party pricing service or major market makers or dealers. 
Debt securities and money market instruments generally will be 
valued based on prices provided by third-party pricing services, 
which may use valuation models or matrix pricing to determine 
current value. Investment company securities (other than ETFs) will 
be valued at NAV. The Trust generally will use amortized cost to 
value fixed income or money market securities that have a remaining 
maturity of 60 days or less.
---------------------------------------------------------------------------

    The Commission also believes that the proposal to list and trade 
the Shares is reasonably designed to promote fair disclosure of 
information that may be necessary to price the Shares appropriately and 
to prevent trading when a reasonable degree of transparency cannot be 
assured. The Exchange will obtain a representation from the Fund that 
the NAV for the Fund will be calculated daily and will be made 
available to all market participants at the same time. The Exchange 
represents that it will halt or pause trading in the Shares under the 
conditions specified in NASDAQ Rules 4120 and 4121, including the 
trading pauses under NASDAQ Rules 4120(a)(11) and (12). Trading also 
may be halted because of market conditions or for reasons that, in the 
view of the Exchange, make trading in the Shares inadvisable.\67\ 
Trading in the Shares also will be subject to Rules 5705(b)(1)(B) and 
5705(b)(9)(B), which sets forth circumstances under which Shares of the 
Fund may be halted. In addition, if the IIV, the Index Value or the 
value of the Index Components is not being disseminated as required, 
the Exchange may halt trading during the day in which the disruption 
occurs; if the interruption persists past the day in which it occurred, 
the Exchange will halt trading no later than the beginning of the 
trading day following the interruption.
---------------------------------------------------------------------------

    \67\ These reasons may include: (1) The extent to which trading 
is not occurring in the securities or the financial instruments 
comprising the Disclosed Portfolio of the Fund; or (2) whether other 
unusual conditions or circumstances detrimental to the maintenance 
of a fair and orderly market are present. The Exchange represents 
that it may consider all relevant factors in exercising its 
discretion to halt or suspend trading in the Shares of the Fund.
---------------------------------------------------------------------------

    The Exchange states that it has a general policy prohibiting the 
distribution of material, non-public information by its employees. The 
Commission notes that the Index Provider is not registered as an 
investment adviser or broker dealer and is not affiliated with any 
broker-dealers, and the Adviser is not registered as a broker-dealer 
and is not affiliated with any broker-dealers.\68\ Prior to the 
commencement of trading, the Exchange will inform its members in an

[[Page 69973]]

Information Circular of the special characteristics and risks 
associated with trading the Shares. The Financial Industry Regulatory 
Authority (``FINRA''), on behalf of the Exchange,\69\ will communicate 
as needed regarding trading in the Shares, exchange-listed equity 
securities, ETFs, futures contracts, and exchange-traded options 
contracts with other markets and other entities that are members of the 
Intermarket Surveillance Group (``ISG''), and FINRA, on behalf of the 
Exchange, may obtain trading information regarding trading in the 
Shares, exchange-listed equity securities, ETFs, futures contracts, and 
exchange-traded options contracts from such markets and other entities. 
In addition, the Exchange may obtain information regarding trading in 
the Shares, exchange-listed equity securities, ETFs, futures contracts, 
and exchange-traded options contracts from markets and other entities 
that are members of ISG or with which the Exchange has in place a 
comprehensive surveillance sharing agreement.\70\ All exchange-listed 
equity securities, ETFs, futures contracts and options held by the Fund 
will be traded on U.S. exchanges, all of which are members of ISG or 
are exchanges with which the Exchange has in place a comprehensive 
surveillance sharing agreement. In addition, FINRA, on behalf of the 
Exchange, is able to access, as needed, trade information for certain 
fixed income securities held by the Fund reported to FINRA's Trade 
Reporting and Compliance Engine.
---------------------------------------------------------------------------

    \68\ See supra note 19 and accompanying text. The Exchange 
states that an investment adviser to an open-end fund is required to 
be registered under the Investment Advisers Act of 1940 (``Advisers 
Act''). As a result, the Adviser and its related personnel are 
subject to the provisions of Rule 204A-1 under the Advisers Act 
relating to codes of ethics. This Rule requires investment advisers 
to adopt a code of ethics that reflects the fiduciary nature of the 
relationship to clients as well as compliance with other applicable 
securities laws. Accordingly, procedures designed to prevent the 
communication and misuse of non-public information by an investment 
adviser must be consistent with Rule 204A-1 under the Advisers Act. 
In addition, Rule 206(4)-7 under the Advisers Act makes it unlawful 
for an investment adviser to provide investment advice to clients 
unless such investment adviser has (i) adopted and implemented 
written policies and procedures reasonably designed to prevent 
violation, by the investment adviser and its supervised persons, of 
the Advisers Act and the Commission rules adopted thereunder; (ii) 
implemented, at a minimum, an annual review regarding the adequacy 
of the policies and procedures established pursuant to subparagraph 
(i) above and the effectiveness of their implementation; and (iii) 
designated an individual (who is a supervised person) responsible 
for administering the policies and procedures adopted under 
subparagraph (i) above.
    \69\ The Exchange states that FINRA surveils trading on the 
Exchange pursuant to a regulatory services agreement. The Exchange 
is responsible for FINRA's performance under this regulatory 
services agreement.
    \70\ For a list of the current members of ISG, see 
www.isgportal.org. The Exchange notes that not all components of the 
portfolio for the Fund may trade on markets that are members of ISG 
or with which the Exchange has in place a comprehensive surveillance 
sharing agreement.
---------------------------------------------------------------------------

    The Exchange deems the Shares to be equity securities, thus 
rendering trading in the Shares subject to the Exchange's existing 
rules governing the trading of equity securities. In support of this 
proposal, the Exchange has made representations, including:
    (1) The Exchange has appropriate rules to facilitate transactions 
in the Shares during all trading sessions.\71\
---------------------------------------------------------------------------

    \71\ See NASDAQ Rule 5705(b)(7) (describing the three trading 
sessions on the Exchange: Regular Market Session trading will occur 
between 9:30 a.m. and either 4:00 p.m. or 4:15 p.m. for each series 
of Index Fund Shares, as specified by NASDAQ). In addition, NASDAQ 
may designate each series of Index Fund Shares for trading during a 
Pre-Market Session beginning at 4:00 a.m. and/or a Post-Market 
Session ending at 8:00 p.m.
---------------------------------------------------------------------------

    (2) The Shares will be subject to Rule 5705, which sets forth the 
initial and continued listing criteria applicable to Index Fund Shares.
    (3) Trading in the Shares will be subject to the existing trading 
surveillances, administered by both NASDAQ and also FINRA on behalf of 
the Exchange, which are designed to detect violations of Exchange rules 
and applicable federal securities laws. The Exchange represents that 
these procedures are adequate to properly monitor Exchange trading of 
the Shares in all trading sessions and to deter and detect violations 
of Exchange rules and applicable federal securities laws.
    (4) Prior to the commencement of trading, the Exchange will inform 
its members in an Information Circular of the special characteristics 
and risks associated with trading the Shares. Specifically, the 
Information Circular will discuss the following: (a) The procedures for 
purchases and redemptions of Shares in Creation Units (and that Shares 
are not individually redeemable); (b) NASDAQ Rule 2111A, which imposes 
suitability obligations on NASDAQ members with respect to recommending 
transactions in the Shares to customers; (c) how information regarding 
the Index Value and Intraday Indicative Value will be disseminated; (d) 
the risks involved in trading the Shares during the Pre-Market and 
Post-Market Sessions when an updated Index Value and Intraday 
Indicative Value will not be calculated or publicly disseminated; (e) 
the requirement that members deliver a prospectus to investors 
purchasing newly issued Shares prior to or concurrently with the 
confirmation of a transaction; and (f) trading information.
    (5) For initial and continued listing, the Fund must be in 
compliance with Rule 10A-3 under the Exchange Act.\72\
---------------------------------------------------------------------------

    \72\ 17 CFR 240.10A-3.
---------------------------------------------------------------------------

    (6) At least 80% of the Fund's total assets (exclusive of 
collateral held from securities lending, if any) will be invested in 
the component securities of the Index. The Fund will seek a correlation 
of 0.95 or better between its performance and the performance of its 
Index. A figure of 1.00 would represent perfect correlation. All 
options included in the Index will be listed and traded on a U.S. 
national securities exchange.
    (7) The Fund's investments in swaps, futures contracts, forward 
contracts and options will be consistent with the Fund's investment 
objective and with the requirements of the 1940 Act. To limit the 
potential risk associated with such transactions, the Fund will 
segregate or ``earmark'' assets determined to be liquid by the Adviser 
in accordance with procedures established by the Trust's Board of 
Trustees and in accordance with the 1940 Act (or, as permitted by 
applicable regulation, enter into certain offsetting positions) to 
cover its obligations arising from such transactions. These procedures 
have been adopted consistent with Section 18 of the 1940 Act and 
related Commission guidance. In addition, the Fund will include 
appropriate risk disclosure in its offering documents, including 
leveraging risk. Leveraging risk is the risk that certain transactions 
of the Fund, including the Fund's use of derivatives, may give rise to 
leverage, causing the Fund to be more volatile than if it had not been 
leveraged. To mitigate leveraging risk, the Adviser will segregate or 
``earmark'' liquid assets or otherwise cover the transactions that may 
give rise to such risk. The Fund may not invest in leveraged or inverse 
leveraged (e.g., 2X, -2X, 3X, or -3X) ETFs or options on such ETFs. The 
Fund's investments will be consistent with its investment objective and 
will not be used to provide multiple returns of a benchmark or to 
produce leveraged returns.
    (8) The Fund will transact only with swap dealers that have in 
place an ISDA agreement with the Fund. Where practicable, the Fund 
intends to invest in Cleared Swaps. The Fund will attempt to limit 
counterparty risk in non-cleared swap, forward, and OTC option 
contracts by entering into such contracts only with counterparties the 
Adviser believes are creditworthy and by limiting the Fund's exposure 
to each counterparty. The Adviser will monitor the creditworthiness of 
each counterparty and the Fund's exposure to each counterparty on an 
ongoing basis. The Fund will seek, where possible, to use 
counterparties, as applicable, whose financial status is such that the 
risk of default is reduced. The Adviser will evaluate the 
creditworthiness of counterparties on an ongoing basis. In addition to 
information provided by credit agencies, the Adviser will evaluate each 
approved counterparty using various methods of analysis, such as, for 
example, the counterparty's liquidity in the event of default, the 
counterparty's reputation, the Adviser's past experience with the 
counterparty, and the counterparty's share of market participation.
    (9) The Fund may hold up to an aggregate amount of 15% of its net 
assets in illiquid assets (calculated at the time of investment) deemed 
illiquid by the Adviser, consistent with Commission guidance.
    (10) A minimum of 100,000 Shares for the Fund will be outstanding 
at the

[[Page 69974]]

commencement of trading on the Exchange.
    (11) The Fund will include appropriate risk disclosure in its 
offering documents, which will be available on the Commission's Web 
site and on the Fund's Web site, www.realityshares.com.
    This approval order is based on all of the Exchange's 
representations, including those set forth above and in the Notice, and 
the Exchange's description of the Fund.
    For the foregoing reasons, the Commission finds that the proposed 
rule change, as modified by Amendments No. 1 and No. 2 thereto, is 
consistent with Section 6(b)(5) of the Act \73\ and the rules and 
regulations thereunder applicable to a national securities exchange.
---------------------------------------------------------------------------

    \73\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\74\ that the proposed rule change (SR-Nasdaq-2014-038), as 
modified by Amendments No. 1 and No. 2 thereto, be, and it hereby is, 
approved.
---------------------------------------------------------------------------

    \74\ Id.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\75\
---------------------------------------------------------------------------

    \75\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-27711 Filed 11-21-14; 8:45 am]
BILLING CODE 8011-01-P


