[Federal Register Volume 78, Number 250 (Monday, December 30, 2013)]
[Rules and Regulations]
[Pages 79298-79299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-31172]
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 230 and 270
[Release No. 33-9503; IC-30845]
Securities Exempted; Distribution of Shares by Registered Open-
End Management Investment Company; Applications Regarding Joint
Enterprises or Arrangements and Certain Profit-Sharing Plans
AGENCY: Securities and Exchange Commission.
ACTION: Final rule; technical amendments.
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SUMMARY: The Securities and Exchange Commission (``Commission'') is
correcting outdated cross-references in rule 602 under the Securities
Act of 1933 (``Securities Act'') and rule 12b-1 under the Investment
Company Act of 1940 (``Investment Company Act'') and correcting an
inadvertent error in rule 17d-1 under the Investment Company Act as
published in the Federal Register on January 22, 2003.
DATES: Effective December 30, 2013.
FOR FURTHER INFORMATION CONTACT: Daniel K. Chang, Senior Counsel, or
Thoreau Bartmann, Branch Chief, at (202) 551-6792, Investment Company
Rulemaking Office, Division of Investment Management, U.S. Securities
and Exchange Commission, 100 F Street NE., Washington, DC 20549-8549.
SUPPLEMENTARY INFORMATION:
I. Background
A. Rule 602
In December 1958, the Commission adopted Regulation E under the
Securities Act, which exempts from registration small offerings by
small business investment companies registered under the Investment
Company Act.\1\ Regulation E was amended in 1984 to increase the size
of offerings that may be made under the regulation, and include as
exempted issuers certain investment companies who elect to be treated
as business development companies under the Investment Company Act.\2\
The purpose of the 1984 amendments was to increase the ability of small
business investment companies and business development companies to
raise capital.
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\1\ Regulation E--Exemption for Securities of Small Business
Investment Companies, 23 FR 10484 (Dec. 30, 1958).
\2\ Amendments to the Offering Exemption Under Regulation E of
the Securities Act of 1933, 49 FR 35342 (Sept. 7, 1984).
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As part of Regulation E, rule 602 establishes conditions under
which securities issued by small business investment companies or
business development companies may be exempt from registration under
the Securities Act. Rule 602(c)(3) provides that the exemption is not
available for the securities of any issuer if any of its affiliated
directors, officers, principal security holders, investment advisers,
or underwriters has been ``subject to an order of the Commission
entered pursuant to section 203(d) or (e) of the Investment Advisers
Act of 1940.'' \3\
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\3\ Section 203 of the Investment Advisers Act of 1940
(``Advisers Act'') requires certain investment advisers to register
with the Commission, and gives the Commission broad enforcement
authority over them. In particular, current section 203(e)
authorizes the Commission, by order, to censure, place limitations
on the activities, functions, or operations of, suspend, or revoke
the registration of any investment adviser if the Commission makes
certain findings with regards to that adviser. Current section
203(f) allows the Commission, by order, to censure, suspend, bar, or
place limitations on the activities of any person associated or
seeking to become associated with an investment adviser or certain
other entities if the Commission makes certain findings with regards
to that person.
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In 1970, the Investment Company Amendments Act was enacted and,
among other things, redesignated sections 203(d) and (e) of the
Advisers Act as sections 203(e) and (f), respectively.\4\ To correct
this cross-reference, this technical amendment to rule 602(c)(3) will
replace the cross-reference to paragraphs (d) and (e) of section 203 of
the Advisers Act with a cross-reference to paragraphs (e) and (f).
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\4\ Investment Company Amendments Act of 1970, Public Law 91547,
84 Stat. 1413 (Dec. 14, 1970).
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B. Rule 12b-1
In 1980, the Commission adopted rule 12b-1 under the Investment
Company Act to permit a fund that meets certain conditions to use fund
assets to pay for distribution of securities of which it is the issuer.
Among other requirements, the fund must have a written plan describing
all material aspects of the proposed distribution financing.
Rule 12b-1(g) provides certain conditions for plans that cover more
than one series or class of shares, but further provides that paragraph
(g) does not affect the rights of any purchase class under rule 18f-
3(e)(2)(iii).\5\
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\5\ Current rule 18f-3(f)(2)(iii) provides certain rights for
shareholders of purchase classes in funds that are acquired as part
of a merger.
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On January 2, 2001, the Commission adopted amendments to certain
exemptive rules under the Investment Company Act and, among other
things, redesignated paragraph (e) of rule 18f-3 as paragraph (f). To
correct this cross-reference, this technical amendment to rule 12b-1(g)
will replace the cross-reference to rule 18f-3(e)(2)(iii) with a cross-
reference to rule 18f-3(f)(2)(iii).
C. Rule 17d-1
In January 2003, the Commission adopted amendments to certain rules
under the Investment Company Act to, among other things, expand the
exemptions for investment companies (``funds'') to engage in
transactions with ``portfolio affiliates''--companies that are
affiliated with the fund solely as the result of the fund (or an
affiliated fund) controlling them or owning more than five percent of
their voting securities.\6\ The amendments were designed to permit
transactions between funds and certain affiliated persons under
circumstances where it was unlikely that the affiliate would be in a
position to take advantage of the fund.
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\6\ Transactions of Investment Companies With Portfolio and
Subadvisory Affiliates, Investment Company Act Release No. 25888
(Jan. 14, 2003) [68 FR 3142 (Jan. 22, 2003)] (``Adopting Release'').
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In implementing these amendments, the Adopting Release renumbered
the paragraphs of rule 17d-1 and also added a cross-reference in
paragraph (d)(6) of the rule to rule 17a-6, a related rule dealing with
exemptions for transactions with portfolio affiliates that was also
amended by the Adopting Release.\7\ However, the text of rule 17d-
1(d)(6) as published in the ``Text of Rule and Form Amendments''
section of the Adopting Release, and subsequently in
[[Page 79299]]
the Federal Register, included an incorrect cross-reference to
paragraph (d)(5)(iii) of the rule instead of (d)(5)(ii). In addition,
the rule as published in the Code of Federal Regulations inadvertently
omitted three paragraphs (i.e., (d)(6)(i)-iii)) that should have
followed immediately after paragraph (d)(6) of rule 17d-1.
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\7\ The cross-reference to rule 17a-6 was intended to conform
provisions in paragraph (d)(6) of rule 17d-1 to similar provisions
in rule 17a-6 in order to make them consistent with regards to which
entities are considered prohibited participants for purposes of
affiliate transactions. See Transactions of Investment Companies
With Portfolio and Subadvisory Affiliates, Investment Company Act
Release No. 25557 (April 30, 2002) [67 FR 31081 (May 8, 2002)] at
n.30 and accompanying text.
The renumbering of the paragraphs of rule 17d-1 reflected the
deletion of a condition in the rule that limited a fund to
committing no more than five percent of its assets to a joint
enterprise with a portfolio affiliate. See Adopting Release, supra
note 1, at n.12.
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This technical amendment to rule 17d-1(d)(6) corrects the internal
cross-reference to paragraph (d)(5)(ii) instead of (d)(5)(iii) and
restores the inadvertently omitted paragraphs of the rule text.
List of Subjects in 17 CFR Parts 230 and 270
Investment companies; Reporting and recordkeeping requirements;
Securities.
Text of Amendment
For reasons set forth in the preamble, Title 17, Chapter II of the
Code of Federal Regulations is amended as follows:
PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
0
1. The authority for part 230 continues to read, in part, as follows:
Authority: 15 U.S.C. 77b, 77b note, 77c, 77d, 77d note, 77f,
77g, 77h, 77j, 77r, 77s, 77z-3, 77sss, 78c, 78d, 78j, 78l, 78m, 78n,
78o, 78o-7 note, 78t, 78w, 78ll(d), 78mm, 80a-8, 80a-24, 80a-28,
80a-29, 80a-30, and 80a-37, and Pub. L. 112-106, sec. 201(a), 126
Stat. 313 (2012), unless otherwise noted.
* * * * *
0
2. Section 230.602 is amended by revising paragraph (c)(3) to read as
follows:
Sec. 230.602 Securities exempted.
* * * * *
(c) * * *
(3) Is subject to an order of the Commission entered pursuant to
section 15(b) or 15A(1) of the Securities Exchange Act of 1934 (15
U.S.C. 78o(b) or 78o-3(1)); has been found by the Commission to be a
cause of any such order which is still in effect; or is subject to an
order of the Commission entered pursuant to section 203(e) or (f) of
the Investment Advisers Act of 1940 (15 U.S.C. 80b-3(e) or (f));
* * * * *
PART 270--RULES AND REGULATIONS, INVESTMENT COMPANY ACT OF 1940
0
3. The authority citation for part 270 continues to read, in part, as
follows:
Authority: 15 U.S.C. 80a-1 et seq., 80a-34(d), 80a-37, and 80a-
39, unless otherwise noted.
* * * * *
0
4. Section 270.12b-1 is amended by revising paragraph (g) to read as
follows:
Sec. 270.12b-1 Distribution of shares by registered open-end
management investment company.
* * * * *
(g) If a plan covers more than one series or class of shares, the
provisions of the plan must be severable for each series or class, and
whenever this rule provides for any action to be taken with respect to
a plan, that action must be taken separately for each series or class
affected by the matter. Nothing in this paragraph (g) shall affect the
rights of any purchase class under Sec. 270.18f-3(f)(2)(iii).
* * * * *
0
5. Section 270.17d-1 is amended by revising paragraph (d)(6) to read as
follows:
Sec. 270.17d-1 Applications regarding joint enterprises or
arrangements and certain profit-sharing plans.
* * * * *
(d) * * *
(6) The receipt of securities and/or cash by an investment company
or a controlled company thereof and an affiliated person of such
investment company or an affiliated person of such person pursuant to a
plan of reorganization: Provided, That no person identified in Sec.
270.17a-6(a)(1) or any company in which such a person has a direct or
indirect financial interest (as defined in paragraph (d)(5)(ii) of this
section):
(i) Has a direct or indirect financial interest in the corporation
under reorganization, except owning securities of each class or classes
owned by such investment company or controlled company;
(ii) Receives pursuant to such plan any securities or other
property, except securities of the same class and subject to the same
terms as the securities received by such investment company or
controlled company, and/or cash in the same proportion as is received
by the investment company or controlled company based on securities of
the company under reorganization owned by such persons; and
(iii) Is, or has a direct or indirect financial interest in any
person (other than such investment company or controlled company) who
is:
(A) Purchasing assets from the company under reorganization; or
(B) Exchanging shares with such person in a transaction not in
compliance with the standards described in this paragraph (d)(6).
* * * * *
Dated: December 24, 2013.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2013-31172 Filed 12-27-13; 8:45 am]
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