[Federal Register Volume 78, Number 127 (Tuesday, July 2, 2013)]
[Notices]
[Pages 39789-39793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15841]
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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 30580; File No. 812-13637]
The Dreyfus Corporation, et al.; Notice of Application
June 26, 2013.
AGENCY: Securities and Exchange Commission (``Commission'').
ACTION: Notice of an application under section 6(c) of the Investment
Company Act of 1940 (``Act'') for an exemption from section 15(a) of
the Act and rule 18f-2 under the Act, as well as from certain
disclosure requirements.
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SUMMARY: Summary of Application: Applicants request an order that
would amend and supersede a prior order (the ``Non-Affiliated Sub-
Adviser Order'') \1\ that permits them to enter into and materially
amend subadvisory agreements for certain multi-managed funds with non-
affiliated sub-advisers without shareholder approval and grants relief
from certain disclosure requirements. The requested order would permit
applicants to enter into, and amend, such agreements with Wholly-Owned
Sub-Advisers (as defined below) and non-affiliated sub-advisers without
shareholder approval.
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\1\ Strategic Funds, Inc., et al., Investment Company Act
Release Nos. 29064 (Nov. 30, 2009) (notice) and 29097 (Dec. 23,
2009) (order).
Applicants: BNY Mellon Funds Trust (``BNY Mellon Funds''), Strategic
Funds, Inc. (``Strategic Funds''), The Dreyfus/Laurel Funds, Inc.
(``Dreyfus/Laurel Funds'') (each, an ``Investment Company'' and
together, the ``Investment Companies'') and The Dreyfus Corporation
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(``Dreyfus'').
DATES: Filing Dates: The application was filed on March 2, 2009, and
amended on April 14, 2009, December 27, 2012, May 1, 2013 and June 21,
2013.
Hearing or Notification of Hearing: An order granting the application
will be issued unless the Commission orders a hearing. Interested
persons may request a hearing by writing to the Commission's Secretary
and serving applicants with a copy of the request, personally or by
mail. Hearing requests should be received by the Commission by 5:30
p.m. on 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
[[Page 39790]]
notification by writing to the Commission's Secretary.
ADDRESSES: Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange
Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants,
200 Park Avenue, New York, New York 10166.
FOR FURTHER INFORMATION CONTACT: Emerson S. Davis, Sr., Senior
Attorney, at (202) 551-6868, 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 Investment Company is organized as a Massachusetts business
trust or a Maryland corporation and is registered with the Commission
as an open-end management investment company under the Act. Each
Investment Company offers one or more series of shares (each a
``Series'' and collectively, ``Series'') with its own distinct
investment objectives, policies and restrictions. Each Series has, or
will have, as its investment adviser, Dreyfus or another investment
adviser controlling, controlled by or under common control with Dreyfus
or its successors (each, an ``Adviser'' and, collectively with the
Series and the Investment Companies, the ``Applicants'').\2\ Dreyfus, a
New York corporation, is a wholly-owned subsidiary and the primary
mutual fund business of The Bank of New York Mellon Corporation, a
global financial services company focused on helping clients manage and
service their financial assets, operating in 36 countries and serving
more than 100 markets.\3\
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\2\ Each Adviser is, or will be, registered with the Commission
as an investment adviser under the Investment Advisers Act of 1940,
as amended (``Advisers Act''). For purposes of the requested order,
``successor'' is limited to an entity that results from
reorganization into another jurisdiction or a change in the type of
business organization.
\3\ Applicants request that the relief apply to the Applicants,
as well as to any future Series and any other existing or future
registered open-end management investment company or series thereof
that is advised by an Adviser, uses the multi-manager structure
described in the application, and complies with the terms and
conditions of the application (``Sub-Advised Series''). All
registered open-end investment companies that currently intend to
rely on the requested order are named as Applicants. All Series that
currently are, or that currently intend to be, Sub-Advised Series
are identified in the application. Any entity that relies on the
requested order will do so only in accordance with the terms and
conditions contained the application. The requested relief will not
extend to any sub-adviser, other than a Wholly-Owned Sub-Adviser,
who is an affiliated person, as defined in Section 2(a)(3) of the
1940 Act, of the Sub-Advised Series or of the Adviser, other than by
reason of serving as a sub-adviser to one or more of the Sub-Advised
Series or another investment company registered under the 1940 Act
for which the Adviser serves as investment adviser (``Affiliated
Sub-Adviser'').
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2. The Adviser serves as the investment adviser to each Series
pursuant to an investment advisory agreement with the applicable
Investment Company (``Investment Management Agreement''). The
Investment Management Agreement for each existing Series was approved
by the board of trustees/directors of the applicable Investment Company
(the ``Board''), including a majority of the members of the Board who
are not ``interested persons,'' as defined in section 2(a)(19) of the
Act, of the Series or the Adviser (``Independent Board Members'') and
by the shareholders of that Series as required by sections 15(a) and
15(c) of the Act and rule 18f-2 thereunder. The terms of the Investment
Management Agreements comply with section 15(a) of the Act. Each other
Investment Management Agreement will comply with section 15(a) of the
Act and will be similarly approved.
3. Under the terms of each Investment Management Agreement, the
Adviser, subject to the supervision of the applicable Board, provides
continuous investment management of the assets of each Series.\4\ The
Adviser provides investment management of each Series' portfolio in
accordance with the investment objectives and policies of the Series.
For its services to each Series under the applicable Investment
Management Agreement, the Adviser receives an investment management fee
from that Series based on either the average net assets of that Series
or that Series' investment performance over a particular period
compared to a benchmark. Each Investment Management Agreement permits
the Adviser, subject to the approval of the applicable Board, including
a majority of the Independent Board Members, to enter into investment
sub-advisory agreements with one or more Sub-Advisers to manage all or
a portion of the assets of a Sub-Advised Series.\5\
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\4\ The Adviser may engage EACM Advisors LLC (``EACM''), its
affiliate and an investment adviser registered under the Advisers
Act, or any other affiliated or non-affiliated entity registered as
an investment adviser under the Advisers Act (each, a ``Portfolio
Allocation Manager'') to assist the Adviser in evaluating and
recommending Sub-Advisers for a Sub-Advised Series and recommending
the portion of a Sub-Advised Series' assets to be managed by each
Sub-Adviser, as well as monitoring and evaluating the performance of
Sub-Advisers for a Sub-Advised Series and recommending whether a
Sub-Adviser should be terminated by a Sub-Advised Series. However,
it is the Adviser's overall responsibility to select, subject to the
review and approval of the Board, one or more Sub-Advisers to manage
all or part of a Sub-Advised Series' assets, determine what portion
of that Sub-Advised Series' assets to be managed by any given Sub-
Adviser, review the Sub-Advisers' performance and recommend whether
Sub-Advisers should be terminated.
\5\ As used herein, a ``Sub-Adviser'' is (1) an indirect or
direct ``wholly-owned subsidiary'' (as such term is defined in the
Act) of the Adviser for that Series, or (2) a sister company of the
Adviser for that Series that is an indirect or direct ``wholly-owned
subsidiary'' (as such term is defined in the Act) of the same
company that, indirectly or directly, wholly owns the Adviser (each
of (1) and (2) a ``Wholly-Owned Sub-Adviser'' and collectively, the
``Wholly-Owned Sub-Advisers''), or (3) not an ``affiliated person''
(as such term is defined in section 2(a)(3) of the Act) of the
Series, applicable Investment Company, or the Adviser, except to the
extent that an affiliation arises solely because the sub-adviser
serves as a Sub-Adviser to a Series (each a ``Non-Affiliated Sub-
Adviser'').
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4. Applicants request an order to permit the Adviser, subject to
the approval of the Board, including a majority of the Independent
Board Members, to, without obtaining shareholder approval: (i) Select
Sub-Advisers to manage all or a portion of the assets of a Series and
enter into Sub-Advisory Agreements (as defined below) with the Sub-
Advisers, and (ii) materially amend Sub-Advisory Agreements with the
Sub-Advisers.\6\
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\6\ Shareholder approval will continue to be required for any
other sub-adviser change (not otherwise permitted by rule or other
action of the Commission or staff) and material amendments to an
existing sub-advisory agreement with any sub-adviser other than a
Non-Affiliated Sub-Adviser or a Wholly-Owned Sub-Adviser (all such
changes referred to as ``Ineligible Sub-Adviser Changes'').
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5. Pursuant to each Investment Management Agreement, the Adviser
has overall responsibility for the management and investment of the
assets of each Sub-Advised Series; these responsibilities include
recommending the removal or replacement of Sub-Advisers, determining
the portion of that Sub-Advised Series' assets to be managed by any
given Sub-Adviser and reallocating those assets as necessary from time
to time.\7\
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\7\ The Adviser has entered into an agreement with EACM to act
as Portfolio Allocation Manager in respect of Dreyfus Select
Managers Small Cap Growth Fund and Dreyfus Select Managers Small Cap
Value Fund.
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6. The Adviser has entered into sub-advisory agreements with Sub-
Advisers (``Sub-Advisory Agreements'') to provide investment management
services to the Sub-Advised Series.\8\ The
[[Page 39791]]
terms of each Sub-Advisory Agreement comply fully with the requirements
of section 15(a) of the Act and were approved by the applicable Board,
including a majority of the Independent Board Members, and, to the
extent that the Non-Affiliated Sub-Adviser Order did not apply, the
shareholders of the Sub-Advised Series in accordance with sections
15(a) and 15(c) of the Act and rule 18f-2 thereunder. The Sub-Advisers,
subject to the supervision of the Adviser and oversight of the
applicable Board, make the day-to-day investment decisions for the Sub-
Advised Series. The Adviser will compensate each Sub-Adviser out of the
fee paid to the Adviser under the relevant Investment Management
Agreement.
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\8\ If the name of any Sub-Advised Series contains the name of a
Sub-adviser, the name of the Adviser that serves as the primary
adviser to the Sub-Advised Series, or a trademark or trade name that
is owned by or publicly used to identity that Adviser, will precede
the name of the Sub-Adviser.
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7. Sub-Advised Series will inform shareholders of the hiring of a
new Sub-Adviser pursuant to the following procedures (``Modified Notice
and Access Procedures''): (a) Within 90 days after a new Sub-Adviser is
hired for any Sub-Advised Series, that Sub-Advised Series will send its
shareholders either a Multi-manager Notice or a Multi-manager Notice
and Multi-manager Information Statement; \9\ and (b) the Sub-Advised
Series will make the Multi-manager Information Statement available on
the Web site identified in the Multi-manager Notice no later than when
the Multi-manager Notice (or Multi-manager Notice and Multi-manager
Information Statement) is first sent to shareholders, and will maintain
it on that Web site for at least 90 days. In the circumstances
described in the application, a proxy solicitation to approve the
appointment of new Sub-Advisers provides no more meaningful information
to shareholders than the proposed Multi-manager Information Statement.
Applicants state that each Board would comply with the requirements of
sections 15(a) and 15(c) of the Act before entering into or amending
Sub-Advisory Agreements.
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\9\ A ``Multi-manager Notice'' will be modeled on a Notice of
Internet Availability as defined in rule 14a-16 under the Securities
Exchange Act of 1934 (``Exchange Act''), and specifically will,
among other things: (a) Summarize the relevant information regarding
the new Sub-Adviser; (b) inform shareholders that the Multi-manager
Information Statement is available on a Web site; (c) provide the
Web site address; (d) state the time period during which the Multi-
manager Information Statement will remain available on that Web
site; (e) provide instructions for accessing and printing the Multi-
manager Information Statement; and (f) instruct the shareholder that
a paper or email copy of the Multi-manager Information Statement may
be obtained, without charge, by contacting the Sub-Advised Series.
A ``Multi-manager Information Statement'' will meet the
requirements of Regulation 14C, Schedule 14C and Item 22 of Schedule
14A under the Exchange Act for an information statement, except as
modified by the order to permit Aggregate Fee Disclosure, as defined
below. Multi-manager Information Statements will be filed with the
Commission via the EDGAR system.
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8. Applicants also request an order exempting the Sub-Advised
Series from certain disclosure obligations that may require the
Applicants to disclose fees paid by the Adviser to each Sub-
Adviser.\10\ Applicants seek relief to permit each Sub-Advised Series
to disclose (as a dollar amount and a percentage of the Sub-Advised
Series' net assets): (a) The aggregate fees paid to the Adviser and any
Wholly-Owned Sub-Advisers; (b) the aggregate fees paid to Non-
Affiliated Sub-Advisers; and (c) the fee paid to each Affiliated Sub-
Adviser (collectively, the ``Aggregate Fee Disclosure'').
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\10\ Applicants are not requesting any relief with respect to
any fee paid to the Portfolio Allocation Managers.
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Applicants' Legal Analysis
1. Section 15(a) of the Act states, in part, that it is unlawful
for any person to act as an investment adviser to a registered
investment company ``except pursuant to a written contract, which
contract, whether with such registered company or with an investment
adviser of such registered company, has been approved by the vote of a
majority of the outstanding voting securities of such registered
company.'' Rule 18f-2 under the Act states that any ``matter required
to be submitted . . . to the holders of the outstanding voting
securities of a series company shall not be deemed to have been
effectively acted upon unless approved by the holders of a majority of
the outstanding voting securities of each class or series of stock
affected by such matter.'' Further, rule 18(f)-2(c)(1) under the Act
provides that a vote to approve an investment advisory contract
required by section 15(a) of the Act ``shall be deemed to be
effectively acted upon with respect to any class or series of
securities of such registered investment company if a majority of the
outstanding voting securities of such class or series vote for the
approval of such matter.''
2. Form N-1A is the registration statement used by open-end
investment companies. Item 19(a)(3) of Form N-1A requires a registered
investment company to disclose in its statement of additional
information the method of computing the ``advisory fee payable'' by the
investment company, including the total dollar amounts that the
investment company ``paid to the adviser (aggregated with amounts paid
to affiliated advisers, if any), and any advisers who are not
affiliated persons of the adviser, under the investment advisory
contract for the last three fiscal years.''
3. Rule 20a-1 under the Act requires proxies solicited with respect
to a registered investment company to comply with Schedule 14A under
the Exchange Act. Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and
22(c)(9) of Schedule 14A, taken together, require a proxy statement for
a shareholder meeting at which the advisory contract will be voted upon
to include the ``rate of compensation of the investment adviser,'' the
``aggregate amount of the investment adviser's fee,'' a description of
the ``terms of the contract to be acted upon,'' and, if a change in the
advisory fee is proposed, the existing and proposed fees and the
difference between the two fees.
4. Regulation S-X sets forth the requirements for financial
statements required to be included as part of a registered investment
company's registration statement and shareholder reports filed with the
Commission. Sections 6-07(2)(a), (b), and (c) of Regulation S-X require
a registered investment company to include in its financial statement
information about the investment advisory fees.
5. Section 6(c) of the Act provides that the Commission by order
upon application may conditionally or unconditionally exempt any
person, security, or transaction or any class or classes of persons,
securities, or transactions from any provisions of the Act, or from any
rule thereunder, if such exemption is necessary or appropriate in the
public interest and consistent with the protection of investors and the
purposes fairly intended by the policy and provisions of the Act.
Applicants state that their requested relief meets this standard for
the reasons discussed below.
6. Applicants assert that the shareholders expect the Adviser,
subject to review and approval of the applicable Board, to select the
Sub-Advisers who are in the best position to achieve the Sub-Advised
Series' investment objective. Applicants assert that, from the
perspective of the shareholder, the role of the Sub-Advisers is
substantially equivalent to the role of the individual portfolio
managers employed by an investment adviser to a traditional investment
company. Applicants believe that permitting the Adviser to perform the
duties for which the shareholders of the Sub-Advised Series are paying
the Adviser--the selection, supervision and evaluation of the Sub-
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Advisers--without incurring unnecessary delays or expenses is
appropriate in the interest of the Sub-Advised Series' shareholders and
will allow such Sub-Advised Series to operate more efficiently.
Applicants state that each Investment Management Agreement will
continue to be fully subject to section 15(a) of the Act and rule 18f-2
under the Act and approved by the applicable Board, including a
majority of the Independent Board Members, in the manner required by
sections 15(a) and 15(c) of the Act. Applicants are not seeking an
exemption with respect to the Investment Management Agreements or any
agreement with a Portfolio Allocation Manager.
7. Applicants assert that disclosure of the individual fees that
the Adviser would pay to the Sub-Advisers of Sub-Advised Series that
operate under the multi-manager structure described in the application
would not serve any meaningful purpose. Applicants contend that the
primary reasons for requiring disclosure of individual fees paid to
Sub-Advisers are to inform shareholders of expenses to be charged by a
particular Sub-Advised Series and to enable shareholders to compare the
fees to those of other comparable investment companies. Applicants
believe that the requested relief satisfies these objectives because
the advisory fee paid to the Adviser will be fully disclosed and,
therefore, shareholders will know what the Sub-Advised Series' fees and
expenses are and will be able to compare the advisory fees a Sub-
Advised Series is charged to those of other investment companies.
Applicants assert that the requested relief would benefit shareholders
of the Sub-Advised Series because it would improve the Adviser's
ability to negotiate the fees paid to Sub-Advisers. The Adviser's
ability to negotiate with the various Sub-Advisers would be adversely
affected by public disclosure of fees paid to each Sub-Adviser. If the
Adviser is not required to disclose the Sub-Advisers' fees to the
public, the Adviser may be able to negotiate rates that are below a
Sub-Adviser's ``posted'' amounts. Applicants submit that the relief
will also encourage Sub-Advisers to negotiate lower sub-advisory fees
with the Adviser if the lower fees are not required to be made public.
8. For the reasons discussed above, Applicants submit that the
requested relief meets the standards for relief under section 6(c) of
the Act. Applicants state that the operation of the Sub-Advised Series
in the manner described in the application must be approved by
shareholders of a Sub-Advised Series before that Sub-Advised Series may
rely on the requested relief. In addition, Applicants state that the
proposed conditions to the requested relief are designed to address any
potential conflicts of interest, including any posed by the use of
Wholly-owned Sub-Advisers, and provide that shareholders are informed
when Sub-Advisers are hired. Applicants assert that conditions 6, 7, 10
and 11 are designed to provide the Board with sufficient independence
and the resources and information it needs to monitor and address any
conflicts of interest with affiliated person of the Adviser, including
Wholly-Owned Sub-Advisers. Applicants state that, accordingly, they
believe the requested relief is necessary or appropriate in the public
interest and consistent with the protection of investors and the
purposes fairly intended by the policy and provisions of the Act.
Applicants' Conditions
Applicants agree that any order granting the requested relief will
be subject to the following conditions: \11\
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\11\ Applicants will only comply with conditions 8, 9 and 12 if
they rely on the relief that would allow them to provide Aggregate
Fee Disclosure.
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1. Before a Sub-Advised Series may rely on the order requested in
the application, the operation of the Sub-Advised Series in the manner
described in the application, including the hiring of Wholly-Owned Sub-
Advisers, will be, or has been, approved by a majority of the Sub-
Advised Series' outstanding voting securities as defined in the Act,
or, in the case of a new Sub-Advised Series whose public shareholders
purchase shares on the basis of a prospectus containing the disclosure
contemplated by condition 2 below, by the sole initial shareholder
before offering the Sub-Advised Series' shares to the public.
2. The prospectus for each Sub-Advised Series will disclose the
existence, substance, and effect of any order granted pursuant to the
application. Each Sub-Advised Series will hold itself out to the public
as employing the multi-manager structure described in the application.
Each prospectus will prominently disclose that the Adviser has the
ultimate responsibility, subject to oversight by the applicable Board,
to oversee the Sub-Advisers and recommend their hiring, termination and
replacement.
3. The Adviser will provide general management services to a Sub-
Advised Series, including overall supervisory responsibility for the
general management and investment of the Sub-Advised Series' assets.
Subject to review and approval of the applicable Board, the Adviser
will (a) set a Sub-Advised Series' overall investment strategies, (b)
evaluate, select, and recommend Sub-Advisers to manage all or a portion
of a Sub-Advised Series' assets, and (c) implement procedures
reasonably designed to ensure that Sub-Advisers comply with a Sub-
Advised Series' investment objective, policies and restrictions.
Subject to review by the applicable Board, the Adviser will (a) when
appropriate, allocate and reallocate a Sub-Advised Series' assets among
multiple Sub-Advisers; and (b) monitor and evaluate the performance of
Sub-Advisers.
4. A Sub-Advised Series will not make any Ineligible Sub-Adviser
Changes without the approval of the shareholders of the applicable Sub-
Advised Series.
5. Sub-Advised Series will inform shareholders of the hiring of a
new Sub-Adviser within 90 days after the hiring of the new Sub-Adviser
pursuant to the Modified Notice and Access Procedures.
6. At all times, at least a majority of the applicable Board will
be Independent Board Members, and the selection and nomination of new
or additional Independent Board Members will be placed within the
discretion of the then-existing Independent Board Members.
7. Independent legal counsel, as defined in rule 0-1(a)(6) under
the Act, will be engaged to represent the Independent Board Members.
The selection of such counsel will be within the discretion of the
then-existing Independent Board Members.
8. The Adviser will provide the applicable Board, no less
frequently than quarterly, with information about the profitability of
the Adviser on a per Sub-Advised Series basis. The information will
reflect the impact on profitability of the hiring or termination of any
sub-adviser during the applicable quarter.
9. Whenever a Sub-Adviser is hired or terminated, the Adviser will
provide the applicable Board with information showing the expected
impact on the profitability of the Adviser.
10. Whenever a Sub-Adviser change is proposed for a Sub-Advised
Series with an Affiliated Sub-Adviser or a Wholly-Owned Sub-Adviser,
the applicable Board, including a majority of the Independent Board
Members, will make a separate finding, reflected in the applicable
Board minutes, that such change is in the best interests of the Sub-
Advised Series and its shareholders, and does not involve a conflict of
interest from which the
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Adviser or the Affiliated Sub-Adviser or Wholly-Owned Sub-Adviser
derives an inappropriate advantage.
11. No board member or officer of a Sub-Advised Series, or
director, manager, or officer of the Adviser, will own directly or
indirectly (other than through a pooled investment vehicle that is not
controlled by such person), any interest in a Sub-Adviser, except for
(i) ownership of interests in the Adviser or any entity, except a
Wholly-Owned Sub-Adviser, that controls, is controlled by, or is under
common control with the Adviser; or (ii) ownership of less than 1% of
the outstanding securities of any class of equity or debt of a publicly
traded company that is either a Sub-Adviser or an entity that controls,
is controlled by, or is under common control with a Sub-Adviser.
12. Each Sub-Advised Series will disclose the Aggregate Fee
Disclosure in its registration statement.
13. In the event the Commission adopts a rule under the Act
providing substantially similar relief to that requested in the
application, the requested order will expire on the effective date of
that rule.
For the Commission, by the Division of Investment Management,
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-15841 Filed 7-1-13; 8:45 am]
BILLING CODE 8011-01-P