[Federal Register Volume 79, Number 128 (Thursday, July 3, 2014)]
[Notices]
[Pages 38088-38098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-15610]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-72493; File No. SR-NASDAQ-2014-063]
Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing of Proposed Rule Change, as Modified by Amendment No.
1, Relating to the Listing and Trading of the Shares of the Arrow DWA
Balanced ETF, Arrow DWA Tactical ETF and Arrow DWA Tactical Yield ETF
of Arrow Investments Trust
June 27, 2014.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on June 23, 2014, The NASDAQ Stock Market LLC (``Nasdaq'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in in Items I
and II below, which Items have been prepared by Nasdaq. On June 26,
2014, the Exchange filed Amendment No. 1 to the proposed rule
change.\3\ The Commission is publishing this notice to solicit comments
on the proposed rule change, as modified by Amendment No. 1, from
interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ In Amendment No. 1, the Exchange clarifies that the Arrow
Investments Trust will issue and sell shares of the Arrow DWA
Balanced ETF, Arrow DWA Tactical ETF and Arrow DWA Tactical Yield
ETF only in aggregations of 100,000 shares.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
Nasdaq proposes to list and trade the shares of the Arrow DWA
Balanced ETF, Arrow DWA Tactical ETF and Arrow DWA Tactical Yield ETF
(each a ``Fund'' and, collectively, the ``Funds'') of Arrow Investments
Trust (the ``Trust'') under Nasdaq Rule 5735 (``Managed Fund
Shares'').\4\ The shares
[[Page 38089]]
of the Fund [sic] are collectively referred to herein as the
``Shares.''
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\4\ The Commission approved Nasdaq Rule 5735 in Securities
Exchange Act Release No. 57962 (June 13, 2008), 73 FR 35175 (June
20, 2008) (SR-NASDAQ-2008-039). The Funds would not be the first
actively-managed fund listed on the Exchange; see Securities
Exchange Act Release No. 66489 (February 29, 2012), 77 FR 13379
(March 6, 2012) (SR-NASDAQ-2012-004) (order approving listing and
trading of WisdomTree Emerging Markets Corporate Bond Fund).
Additionally, the Commission has previously approved the listing and
trading of a number of actively managed WisdomTree funds on NYSE
Arca, Inc. pursuant to Rule 8.600 of that exchange. See, e.g.,
Securities Exchange Act Release No. 64643 (June 10, 2011), 76 FR
35062 (June 15, 2011) (SR-NYSE Arca-2011-21) (order approving
listing and trading of WisdomTree Global Real Return Fund). The
Exchange believes the proposed rule change raises no significant
issues not previously addressed in those prior Commission orders.
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The text of the proposed rule change is available at
nasdaq.cchwallstreet.com, at Nasdaq's principal office, and at the
Commission's Public Reference Room.
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, Nasdaq included statements
concerning the purpose of, and basis for, the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. Nasdaq has prepared summaries, set forth in Sections A,
B, and C below, of the most significant aspects of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
The Exchange proposes to list and trade the Shares of the Funds
under Nasdaq Rule 5735, which governs the listing and trading of
Managed Fund Shares \5\ on the Exchange. The Funds will each be an
actively managed exchange-traded fund (``ETF''). The Shares will be
offered by the Trust, which was organized as a Delaware statutory trust
on August 2, 2011. The Trust is registered with the Commission as an
investment company and has filed a registration statement on Form N-1A
(``Registration Statement'') with the Commission.\6\ Each Fund is a
series of the Trust.
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\5\ A Managed Fund Share is a security that represents an
interest in an investment company registered under the Investment
Company Act of 1940 (15 U.S.C. 80a-1) (the ``1940 Act'') organized
as an open-end investment company or similar entity that invests in
a portfolio of securities selected by its investment adviser
consistent with its investment objectives and policies. In contrast,
an open-end investment company that issues Index Fund Shares, listed
and traded on the Exchange under Nasdaq Rule 5705, seeks 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.
\6\ See Post-Effective Amendment No. 7 to Registration Statement
on Form N-1A for the Trust (File Nos. 333-178164 and 811-22638). The
descriptions of the Funds and the Shares contained herein are based,
in part, on information in the Registration Statement.
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Description of the Shares and the Funds
Arrow Investment Advisors, LLC is the investment adviser
(``Adviser'') to the Funds. Northern Lights Distributors, LLC (the
``Distributor'') is the principal underwriter and distributor of each
Fund's Shares.\7\ Gemini Fund Services, LLC (``Administrator'') will
act as the administrator and transfer agent to the Funds. Brown
Brothers Harriman & Co. (``Custodian'') will act as the custodian and
transfer agent to the Funds.
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\7\ The Commission has issued an order granting certain
exemptive relief to the Trust under the 1940 Act (the ``Exemptive
Order''). See Investment Company Act Release No. 30127 (July 3,
2012) (File No. 812-13937), as supplemented December 6, 2012.
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Paragraph (g) of Rule 5735 provides that if the investment adviser
to the investment company issuing Managed Fund Shares is affiliated
with a broker-dealer, such investment adviser shall erect a ``fire
wall'' between the investment adviser and the broker-dealer with
respect to access to information concerning the composition and/or
changes to such investment company portfolio.\8\ In addition, paragraph
(g) further requires that personnel who make decisions on the open-end
fund's portfolio composition must be subject to procedures designed to
prevent the use and dissemination of material, non-public information
regarding the open-end fund's portfolio. Rule 5735(g) is similar to
Nasdaq Rule 5705(b)(5)(A)(i); however, paragraph (g) in connection with
the establishment of a ``fire wall'' between the investment adviser and
the broker-dealer reflects the applicable open-end fund's portfolio,
not an underlying benchmark index, as is the case with index-based
funds. The Adviser is not a broker-dealer. The Adviser is affiliated
with a broker-dealer, although it is not the Funds' distributor. The
Adviser has implemented a fire wall with respect to its broker-dealer
affiliate regarding access to information concerning the composition
and/or changes to the portfolio. In the event (a) the Adviser becomes
newly affiliated with a broker-dealer or registers as a broker-dealer,
or (b) any new adviser or sub-adviser is a registered broker-dealer or
becomes affiliated with a broker-dealer, it will implement a fire wall
with respect to its relevant personnel and/or such broker-dealer
regarding access to information concerning the composition and/or
changes to the portfolio and will be subject to procedures designed to
prevent the use and dissemination of material non-public information
regarding such portfolio.
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\8\ An investment adviser to an open-end fund is required to be
registered under the Investment Advisers Act of 1940 (the ``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.
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Arrow DWA Balanced ETF
The Fund's primary investment objective is to seek to achieve an
appropriate balance between long-term capital appreciation and capital
preservation.
In pursuing its investment objective, the Fund will invest in other
ETFs \9\ that each invest primarily in domestic and foreign (including
emerging markets) (i) equity securities of any market capitalization,
(ii) fixed income securities of any credit quality, or (iii)
alternative assets. In addition, the Fund will invest in commodity
futures through a wholly-owned and controlled Cayman subsidiary (the
``Balanced Subsidiary''). The Fund defines ``equity securities'' to be
exchange-traded common and preferred stocks; and defines ``fixed income
securities'' to be bonds, notes or debentures; and defines
``alternative assets'' to be investments that are historically
uncorrelated to either equity or fixed income investments, which are
commodity futures, exchange-traded master limited partnerships
(``MLPs'') and real estate-related securities, which include foreign
and domestic exchange-traded real estate investment trusts (``REITs'')
or exchange-traded real estate operating companies (``REOCs''). The
Fund's fixed income securities may be rated below investment grade
(rated BB+ or lower by Standard & Poor's Ratings Services (``S&P'') or
comparably rated by another nationally recognized statistical rating
organization (``NRSRO''), also known as ``high yield'' or ``junk''
bonds, and in unrated debt securities determined by the Adviser to be
of comparable quality.
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\9\ The ETFs in which the Fund may invest include Index Fund
Shares and Portfolio Depositary Receipts (as described in Nasdaq
Rule 5705(a) and (b)) and Managed Fund Shares (as described in
Nasdaq Rule 5735).
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The Fund is a ``fund of funds,'' which means that it primarily
invests in ETFs; however, the Adviser may elect to invest directly in
the types of securities
[[Page 38090]]
described above. The Adviser may elect to make these direct investments
when it is cost effective for the Fund to do so (such as when the Fund
reaches a size sufficient to effectively purchase the underlying
securities held by the ETFs in which it invests, allowing the Fund to
avoid the costs associated with indirect investments). The Adviser uses
technical analysis to allocate the Fund's portfolio among the asset
classes described above.
Technical analysis is the method of evaluating securities by
analyzing statistics generated by market activity, such as past prices
and trading volume, in an effort to determine probable future prices.
Under normal market conditions,\10\ the Fund will invest:
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\10\ The term ``under normal market conditions'' as used herein
includes, but is not limited to, the absence of adverse market,
economic, political or other conditions, including extreme
volatility or trading halts in the securities markets or the
financial markets generally; operational issues causing
dissemination of inaccurate market information; or force majeure
type events such as systems failure, natural or man-made disaster,
act of God, armed conflict, act of terrorism, riot or labor
disruption or any similar intervening circumstance. In periods of
extreme market disturbance, the Fund may take temporary defensive
positions, by overweighting its portfolio in cash/cash-like
instruments; however, to the extent possible, the Adviser would
continue to seek to achieve the Fund's investment objective.
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From 25% to 65% in ETFs that invest in equity securities;
from 25% to 65% in ETFs that invest in fixed income
securities; and
from 10% to 40% in ETFs that invest in alternative assets.
The Fund will have the ability to invest up to 25% of its total
assets in the Balanced Subsidiary. The Balanced Subsidiary will invest
primarily in commodity futures, as well as fixed income securities and
cash equivalents, which are intended to serve as margin or collateral
for the Balanced Subsidiary's investments in commodity futures.
The Fund will invest in ETFs within specific asset classes when the
technical models used by the Adviser indicate a high probability that
the applicable asset classes and ETFs are likely to outperform the
applicable universe. The Fund will sell interests or reduce investment
exposure among an asset class or ETF when the technical models used by
the Adviser indicate that such asset class or ETF is likely to
underperform the applicable universe. The Fund may be more heavily
invested in fixed-income ETFs, cash positions and similar securities
when the technical models indicate these assets should significantly
outperform the equity and/or alternative asset classes.
In general, the Fund's investments in equity securities are
intended to achieve the capital appreciation component of its
investment objective and the Fund's investments in fixed income
securities are intended to achieve the capital preservation component
of its investment objective. Under normal market conditions, the
Adviser expects that the Fund will invest a combined minimum of 35% in
fixed-income securities and in alternative assets. The Fund's
investments in alternative assets are intended to enable the portfolio
to be less reliant on fixed-income investments for reducing volatility
and equities for increasing returns. The Adviser may engage in frequent
buying and selling of portfolio securities to achieve the Fund's
investment objective. The Fund will not invest in options or swaps.
The Fund seeks to achieve its investment objective by implementing
a proprietary technical asset allocation (``TAA'') model. The Adviser
will overweight asset classes, rotation strategies and underlying ETFs
exhibiting positive relative strength and underweight asset classes,
rotation strategies and underlying ETFs exhibiting negative relative
strength. In essence, TAA works by reallocating at different times in
response to the changing patterns of returns available in the markets.
This methodology does not attempt to predict the future; it simply
reacts to pattern changes in the marketplace at any given time. This
methodology allows the Fund to be adaptive to current market
conditions.
The tactical model relies on a number of technical indicators when
making allocation decisions for the Fund. The Adviser utilizes relative
strength as the primary technical indicator to tactically allocate
assets both within and across asset classes and rotation strategies.
The relative strength indicator is important because it adapts to the
changing market conditions. Relative strength measures the likelihood
that an ETF or a group of ETFs will outperform the appropriate base
index. When the indicator is moving up, it shows that the ETF or group
of ETFs is performing better than the base index. When the indicator is
moving down, it shows that the ETF or group of ETFs is performing worse
than the base index (i.e., not rising as fast or falling faster).
For example, in the sector rotation strategy, the Adviser creates a
sector-based index to compare all available sector ETFs for investment
in the Fund. The performance of each ETF is compared to the base index
and ranked. The Adviser generally purchases the ETFs that demonstrate
the highest-ranked relative strength and sells any positions that are
not included in that list.
The Adviser has discretion to add to or delete from the universe of
eligible ETFs for each strategy based on holdings, expense ratio,
volume, liquidity, new product availability and other factors that can
positively contribute to achieving the Fund's investment objectives.
Arrow DWA Tactical ETF
The Fund's primary investment objective is to seek to achieve long-
term capital appreciation with capital preservation as a secondary
objective.
In pursuing its investment objective, the Fund will invest in other
ETFs \11\ that each invest primarily in domestic and foreign (including
emerging markets) (i) equity securities of any market capitalization,
(ii) fixed-income securities of any credit quality, or (iii)
alternative assets. In addition, the Fund will invest in commodity
futures through a wholly-owned and controlled Cayman subsidiary (the
``Tactical Subsidiary''). The Fund defines equity securities to be
exchange-traded common and preferred stocks; and defines fixed-income
securities to be bonds, notes or debentures; and defines alternative
assets to be investments that are historically uncorrelated to either
equity or fixed income investments, which are commodity futures, MLPs
and real estate-related securities, which include foreign and domestic
REITs or REOCs. The Fund's fixed income securities may be rated below
investment grade (rated BB+ or lower by S&P or comparably rated by
another NRSRO, also known as ``high yield'' or ``junk'' bonds, and in
unrated debt securities determined by the Adviser to be of comparable
quality.
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\11\ The ETFs in which the Fund may invest include Index Fund
Shares and Portfolio Depositary Receipts (as described in Nasdaq
Rule 5705(a) and (b)) and Managed Fund Shares (as described in
Nasdaq Rule 5735).
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The Fund is a ``fund of funds,'' which means that it primarily
invests in ETFs; however, the Adviser may elect to invest directly in
the types of securities described above. The Adviser may elect to make
these direct investments when it is cost effective for the Fund to do
so (such as when the Fund reaches a size sufficient to effectively
purchase the underlying securities held by the ETFs in which it
invests, allowing the Fund to avoid the costs associated with indirect
investments). The Adviser uses technical analysis to allocate the
Fund's assets among the asset classes described above.
[[Page 38091]]
Technical analysis is the method of evaluating securities by
analyzing statistics generated by market activity, such as past prices
and trading volume, in an effort to determine probable future prices.
Under normal market conditions, the Fund will invest:
From 0% to 100% of its assets in ETFs that invest in
equity securities;
From 0% to 100% of its assets in ETFs that invest in
fixed-income securities; and
From 0% up to 90% of its assets in ETFs that invest in
alternative assets.
The Fund will have the ability to invest up to 25% of its total
assets in the Tactical Subsidiary. The Tactical Subsidiary will invest
primarily in commodity futures, as well as fixed-income securities and
cash equivalents, which are intended to serve as margin or collateral
for the Tactical Subsidiary's investments in commodity futures.
The Fund will invest in ETFs within specific asset classes when the
technical models used by the Adviser indicate a high probability that
the applicable asset classes and ETFs are likely to outperform the
applicable universe. The Fund will sell interests or reduce investment
exposure among an asset class or ETF when the technical models used by
the Adviser indicate that such asset class or ETF is likely to
underperform the applicable universe. The Fund may invest more heavily
in fixed-income ETFs, cash positions and similar securities when the
technical models indicate these assets should significantly outperform
the equity and/or alternative asset classes.
In general, the Fund's investments in equity securities are
intended to achieve the capital appreciation component of the Fund's
investment objectives. At times, the Fund may invest in fixed-income
securities in order to achieve the capital preservation component of
the Fund's investment objectives. The Fund's investments in alternative
assets are intended to enable the portfolio to be less reliant on
fixed-income investments for reducing volatility and equities for
increasing returns. The Adviser may engage in frequent buying and
selling of portfolio securities to achieve the Fund's investment
objectives. The Fund will not invest in options or swaps.
The Fund seeks to achieve its investment objectives by implementing
a proprietary TAA model. The Adviser will overweight asset classes,
rotation strategies and underlying ETFs exhibiting positive relative
strength and underweight asset classes, rotation strategies and
underlying ETFs exhibiting negative relative strength.
The tactical model relies on a number of technical indicators when
making allocation decisions for the Fund. The Adviser utilizes relative
strength as the primary technical indicator to tactically allocate
assets both within and across asset classes and rotation strategies.
The relative strength indicator is important because it adapts to the
changing market conditions. Relative strength measures the likelihood
that an ETF or a group of ETFs will outperform the appropriate base
index. When the indicator is moving up, it shows that the ETF or group
of ETFs is performing better than the base index. When the indicator is
moving down, it shows that the ETF or group of ETFs is performing worse
than the base index (i.e., not rising as fast or falling faster).
For example, in the sector rotation strategy, the Adviser creates a
sector-based index to compare all available sector ETFs for investment
in the Fund. The performance of each ETF is compared to the base index
and ranked. The Adviser generally purchases the ETFs that demonstrate
the highest-ranked relative strength and sells any positions that are
not included in that list.
The Adviser has discretion to add to or subtract from the universe
of eligible ETFs for each strategy based on holdings, expense ratio,
volume, liquidity, new product availability and other factors that can
positively contribute to achieving the Fund's investment objectives.
The Subsidiaries
Each of the Balanced Fund and Tactical Fund have the ability to
invest up to 25% of its total assets in the Balanced Subsidiary and the
Tactical Subsidiary, respectively (each a ``Subsidiary''; together, the
``Subsidiaries''). Each Subsidiary will invest primarily in commodity
futures, as well as fixed-income securities and cash equivalents, which
are intended to serve as margin or collateral for each Subsidiary's
investments in commodity futures. Each Subsidiary may have both long
and short positions in commodities futures. However, for a given
commodity, each Subsidiary will have a net long exposure. Each
Subsidiary will also be advised by the Adviser.\12\ Each Subsidiary
will initially consider investing in the commodities futures contracts
set forth in the following table. The table also provides each
instrument's trading hours, exchange and ticker symbol. The table is
subject to change.
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\12\ Neither Subsidiary will be registered under the 1940 Act
nor will be directly subject to its investor protections, except as
noted in the Registration Statement. However, each Subsidiary will
be wholly-owned and controlled by the applicable Fund and will be
advised by the Adviser. Therefore, each Fund's ownership and control
of their respective Subsidiary will prevent the applicable
Subsidiary from taking action contrary to the interests of the Fund
or its shareholders. The Board of Trustees of the Trust (the
``Board'') will have oversight responsibility for the investment
activities of each Fund, including its expected investment in the
applicable Subsidiary, and the Fund's role as the sole shareholder
of the applicable Subsidiary. The Adviser will receive no additional
compensation for managing the assets of each Subsidiary. Each
Subsidiary will also enter into separate contracts for the provision
of custody, transfer agency, and accounting agent services with the
same or with affiliates of the same service providers that provide
those services to the Funds.
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\13\ The exchange codes listed are Bloomberg shorthand codes for
the corresponding exchanges. The New York Board of Trade is
currently owned by the ICE Futures Exchange; Bloomberg continues to
use NYB as its shorthand code for certain contracts formerly traded
on the New York Board of Trade.
\14\ All of the exchanges are ISG members except for the London
Metal Exchange (``LME''). The LME falls under the jurisdiction of
the United Kingdom Financial Conduct Authority (``FCA''). The FCA is
responsible for ensuring the financial stability of the exchange
members' businesses, whereas the LME is largely responsible for the
oversight of day-to-day exchange activity, including conducting the
arbitration proceedings under the LME arbitration regulations.
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Bloomberg Contract ticker
Commodity exchange code Exchange name \14\ Trading hours (generic Bloomberg
\13\ (eastern time) ticker)
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Cattle, Live/Choice Average..... CME.............. Chicago Mercantile 18:00-17:00....... LC.
Exchange.
Cocoa........................... NYB.............. ICE Futures 04:00-14:00....... CC.
Exchange.
Cotton/1\1/16\``................ NYB.............. ICE Futures 21:00-14:30....... CT.
Exchange.
Feeder Cattle................... CME.............. Chicago Mercantile 18:00-17:00....... FC.
Exchange.
Coffee `C'/Colombian............ NYB.............. ICE Futures 03:30-14:00....... KC.
Exchange.
Soybeans/No. 2 Yellow........... CBT.............. Chicago Board of 20:00-14:15....... S.
Trade.
Soybean Meal/48% Protein........ CBT.............. Chicago Board of 20:00-14:15....... SM.
Trade.
[[Page 38092]]
Soybean Oil/Crude............... CBT.............. Chicago Board of 20:00-14:15....... BO.
Trade.
Corn/No. 2 Yellow............... CBT.............. Chicago Board of 20:00-14:15....... C.
Trade.
Wheat/No. 2 Hard Winter......... KCB.............. Kansas City Board 20:00-14:15....... KW.
of Trade.
Wheat/No. 2 Soft Red............ CBT.............. Chicago Board of 20:00-14:15....... W.
Trade.
Sugar 11/World Raw..... NYB.............. ICE Futures 02:30-14:00....... SB.
Exchange.
Hogs, Lean/Average Iowa/S Minn.. CME.............. Chicago Mercantile 18:00-17:00....... LH.
Exchange.
Crude Oil, WTI/Global Spot...... NYM.............. New York Mercantile 18:00-17:15....... CL.
Exchange.
Crude Oil, Brent/Global Spot.... ICE.............. ICE Futures 20:00-18:00....... CO.
Exchange.
NY Harb ULSD.................... NYM.............. New York Mercantile 18:00-17:15....... HO.
Exchange.
Gas-Oil-Petroleum............... ICE.............. ICE Futures 20:00-18:00....... QS.
Exchange.
Natural Gas, Henry Hub.......... NYM.............. New York Mercantile 18:00-17:15....... NG.
Exchange.
Gasoline, Blendstock (RBOB)..... NYM.............. New York Mercantile 18:00-17:15....... XB.
Exchange.
Gold............................ CMX.............. COMEX.............. 18:00-17:15....... GC.
Silver.......................... CMX.............. COMEX.............. 18:00-17:15....... SI.
Platinum........................ NYM.............. New York Mercantile 18:00-17:15....... PL.
Exchange.
Copper High Grade/Scrap No. 2 CMX.............. COMEX.............. 18:00-17:15....... HG.
Wire.
Aluminum, LME Primary 3 Month LME.............. London Metal 15:00-14:45....... LA.
Rolling Forward. Exchange.
Lead, LME Primary 3 Month LME.............. London Metal 15:00-14:45....... LL.
Rolling Forward. Exchange.
Nickel, LME Primary 3 Month LME.............. London Metal 15:00-14:45....... LN.
Rolling Forward. Exchange.
Tin, LME Primary 3 Month Rolling LME.............. London Metal 15:00-14:45....... LT.
Forward. Exchange.
Zinc, LME Primary 3 Month LME.............. London Metal 15:00-14:45....... LX.
Rolling Forward. Exchange.
----------------------------------------------------------------------------------------------------------------
As U.S. and London exchanges list additional contracts, as
currently listed contracts on those exchanges gain sufficient liquidity
or as other exchanges list sufficiently liquid contracts, the Adviser
will include those contracts in the list of possible investments of the
Subsidiaries. The list of commodities futures and commodities markets
considered for investment can and will change over time.
By investing in commodities futures indirectly through the
applicable Subsidiary, each of the Balanced Fund and the Tactical Fund
will obtain exposure to the commodities markets within the federal tax
requirements that apply to the Fund. Investment in each Subsidiary is
expected to provide the applicable Fund with exposure to the
commodities markets within the limitations of the federal tax
requirements of Subchapter M of the Code.
Because each of the Balanced Fund and the Tactical Fund may invest
up to 25% of its assets in its respective Subsidiary, such Fund may be
considered to be investing indirectly in some of those investments
through its Subsidiary. For that reason, references to each of the
Balanced Fund and Tactical Fund may also include its Subsidiary. When
viewed on a consolidated basis, each Subsidiary will be subject to the
same investment restrictions and limitations, and follow the same
compliance policies and procedures, as the applicable Fund.
Commodities Regulation
The Commodity Futures Trading Commission (``CFTC'') has recently
adopted substantial amendments to CFTC Rule 4.5 relating to the
permissible exemptions and conditions for reliance on exemptions from
registration as a commodity pool operator. As a result of the
instruments that will be indirectly held by each of the Balanced Fund
and the Tactical Fund, the Adviser has registered as a commodity pool
operator \15\ and is also a member of the National Futures Association
(``NFA''). Each of the Balanced Fund, Tactical Fund and the
Subsidiaries are subject to regulation by the CFTC and NFA and
additional disclosure, reporting and recordkeeping rules imposed upon
commodity pools.
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\15\ As defined in Section 1a(11) of the Commodity Exchange Act.
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Arrow DWA Tactical Yield ETF
The Fund's primary investment objective is to seek high current
income with an appropriate balance between long-term capital
appreciation and capital preservation.
In pursuing its investment objective, the Fund will invest in other
ETFs that each invest in domestic and foreign (including emerging
markets) (i) equity securities of any market capitalization or (ii)
fixed-income securities of any credit quality. The Fund also invests
indirectly in these asset classes through various exchange-traded
products (``ETPs''),\16\ exchange-traded closed-end funds and directly
through individual securities. In order to mitigate the settlement risk
of the foreign denominated securities in which it invests due to
currency fluctuations, the Fund may also invest in Spot Forex futures
with up to 25% of the Fund's assets. The Fund will not invest in
options or swaps.
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\16\ The ETPs in which the Fund may invest include exchange-
traded currency trusts (as described in Nasdaq Rule 5711(e)) and
exchange-traded notes (``ETNs'') (as described in Nasdaq Rule 5730).
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The Fund defines equity securities to be exchange-traded common and
preferred stocks and REITs, and defines fixed-income securities to be
bonds, notes and debentures.
The Fund will maintain two income strategies that focus on (i)
securities that generate ``high beta yield,'' consisting of securities
correlated to equities based on a proprietary methodology, and (ii)
securities that generate ``low beta yield'', consisting of securities
less correlated to equities based on a proprietary methodology,
respectively. Beta is a measure of the price volatility, or risk, of a
security or a portfolio in comparison to the market as a whole. A
security's correlation to equities is a measure of the performance
similarity of the security to the S&P 500 index. The high beta strategy
is a composite of securities that are selected based on
[[Page 38093]]
their credit and equity risk premiums characteristics. The low beta
yield strategy is a composite of securities that are selected based on
their inflation, interest and credit risk characteristics. The Fund
uses a proprietary selection methodology designed to identify
securities that demonstrate strong relative strength characteristics
within each strategy. The Fund will then utilize a quantitative
methodology that relies on economic and fundamental factors to
tactically underweight and overweight the income strategies.
The Fund will, under normal market conditions, invest as follows:
From 20% to 80% in the Low Beta (LB). The LB will be
comprised of equity and fixed income securities, including exchanged
traded products that invest in international and domestic securities;
and
From 20% to 80% in the High Beta (HB). The HB will be in
equity and fixed income securities, including exchanged traded products
that invest in international and domestic securities.
The Fund expects to be a ``fund of funds,'' which means that it
primarily invests in ETFs and also in ETPs and closed-end funds;
however, the Adviser may elect to invest directly in the asset classes
described above. The Adviser may elect to make these direct investments
when it is cost effective for the Fund to do so (such as when the Fund
reaches a size sufficient to effectively purchase the underlying
securities held by the ETFs, ETPs or closed-end Funds in which it
invests, allowing the Fund to avoid the costs associated with indirect
investments).
All Funds
Each Fund will not invest 25% or more of the value of its total
assets in securities of issuers in any one industry.\17\ Each Fund may
hold up to an aggregate amount of 15% of its net assets in illiquid
assets (calculated at the time of investment). Each 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 order to
maintain adequate liquidity if, through a change in values, net assets,
or other circumstances, more than 15% of a 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.\18\
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\17\ See Form N-1A, Item 9. The Commission has taken the
position that a fund is concentrated if it invests more than 25% of
the value of its total assets in any one industry. See, e.g.,
Investment Company Act Release No. 9011 (October 30, 1975), 40 FR
54241 (November 21, 1975).
\18\ The Commission has stated that long-standing Commission
guidelines have required open-end funds to hold no more than 15% of
their net assets in illiquid securities and other illiquid assets.
See Investment Company Act Release No. 28193 (March 11, 2008), 73 FR
14618 (March 18, 2008), footnote 34. See also, Investment Company
Act Release No. 5847 (October 21, 1969), 35 FR 19989 (December 31,
1970) (Statement Regarding ``Restricted Securities''); Investment
Company Act Release No. 18612 (March 12, 1992), 57 FR 9828 (March
20, 1992) (Revisions of Guidelines to Form N-1A). A fund's portfolio
security is illiquid if it cannot be disposed of in the ordinary
course of business within seven days at approximately the value
ascribed to it by the fund. See Investment Company Act Release No.
14983 (March 12, 1986), 51 FR 9773 (March 21, 1986) (adopting
amendments to Rule 2a-7 under the 1940 Act); Investment Company Act
Release No. 17452 (April 23, 1990), 55 FR 17933 (April 30, 1990)
(adopting Rule 144A under the 1933 Act).
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In certain situations or market conditions, a Fund may temporarily
depart from its normal investment policies and strategies provided that
the alternative is consistent with the Fund's investment objective and
is in the best interest of the Fund. For example, a Fund may hold a
higher than normal proportion of its assets in cash in times of extreme
market stress. The Funds may borrow money from a bank as permitted by
the 1940 Act or other governing statute, by applicable rules
thereunder, or by Commission or other regulatory agency with authority
over the Funds, but only for temporary or emergency purposes. The use
of temporary investments is not a part of a principal investment
strategy of the Funds.
The Funds will be classified as ``non-diversified'' investment
companies under the 1940 Act.\19\ The Funds intend to qualify for and
to elect treatment as a separate regulated investment company under
Subchapter M of the Internal Revenue Code.\20\
---------------------------------------------------------------------------
\19\ The diversification standard is set forth in Section
5(b)(1) of the 1940 Act (15 U.S.C. 80a-5).
\20\ 26 U.S.C. 851.
---------------------------------------------------------------------------
Each Fund's investments and each Subsidiary's investments will be
consistent with its respective investment objective and although
certain derivative investments will have a leveraging effect on the
Funds and Subsidiaries, the Funds and Subsidiaries will not seek
leveraged returns (e.g., 2X or -3X).
Purchasing and Redeeming Creation Units
The Trust will issue and sell Shares of the Funds only in
aggregations of 100,000 Shares (``Creation Units'') on a continuous
basis through the Distributor, without a sales load (but subject to
transaction fees), at their net asset value (``NAV'') next determined
after receipt of an order, on any business day, in proper form. The NAV
of a Fund will be determined once each business day, normally as of the
close of trading of the New York Stock Exchange (``NYSE''), generally,
4:00 p.m. Eastern time.
Only authorized participants may purchase or redeem any Creation
Units. An ``Authorized Participant'' is either a broker-dealer or other
participant in the Continuous Net Settlement System (``Clearing
Process'') of the National Securities Clearing Corporation (``NSCC'')
or a participant in the Depository Trust Company (``DTC'') with access
to the DTC system (``DTC Participant'') that has executed an agreement
(``Participant Agreement'') with the Distributor that governs
transactions in each Fund's Creation Units.
The consideration for a Creation Unit generally consists of the in-
kind deposit of designated securities (``Deposit Securities'') and an
amount of cash in U.S. dollars (``Cash Component''). Together, the
Deposit Securities and the Cash Component constitute the ``Portfolio
Deposit.'' The consideration received in connection with the redemption
of a Creation Unit generally consists of an in-kind basket of
designated securities (``Redemption Securities'') and the Cash
Component. Together, the Redemption Securities and the Cash Component
constitute the ``Redemption Basket.''
The Cash Component compensates for any differences between the net
asset value per Creation Unit and the Deposit Securities or Redemption
Securities. Thus, the Cash Component is equal to the difference between
(x) the net asset value per Creation Unit of each Fund and (y) the
market value of the Deposit Securities or Redemption Securities. If (x)
is more than(y), the Authorized Participant will receive the Cash
Component from the applicable Fund. If (x) is less than (y), the
Authorized Participant will pay the Cash Component to the applicable
Fund.
On each Business Day, prior to the opening of business on the
Exchange (currently 9:30 a.m., Eastern Time), the Adviser through the
Custodian makes available through NSCC the name and amount of each
Deposit Security in the current Portfolio Deposit (based on information
at the end of the previous Business Day) for each Fund and the
(estimated) Cash Component, effective through and including the
previous Business Day, per Creation Unit. The Deposit Securities
announced are
[[Page 38094]]
applicable, subject to any adjustments as described below, to purchases
of Creation Units until the next announcement of Deposit Securities.
If the Redemption Securities on a Business Day are different from
the Deposit Securities, prior to the opening of business on the
Exchange, the Adviser through the Custodian makes available through
NSCC the name and amount of each Redemption Security in the current
Redemption Basket (based on information at the end of the previous
Business Day) for a Fund and the (estimated) Cash Component, effective
through and including the previous Business Day, per Creation Unit.
The Trust will reserve the right to permit or require the
substitution of an amount of cash (i.e., a ``cash-in-lieu'') amount to
be added to the Cash Component to replace any Deposit Security or
Redemption Security that may not be available in sufficient quantity
for delivery or which might not be eligible for trading by an
Authorized Participant or the investor for which it is acting or other
relevant reason. To the extent the Trust effects the purchase or
redemption of Shares in cash, such transactions will be effected in the
same manner for all Authorized Participants.
All orders to create Creation Unit aggregations must be received by
the Distributor no later than the earlier of (i) 4:00 p.m. Eastern Time
or (ii) the closing time of the bond markets and/or the regular trading
session on the Exchange, in each case, on the date such order is placed
in order for creations of Creation Unit aggregations to be effected
based on the NAV of Shares of a Fund as next determined on such date
after receipt of the order in proper form.
In order to redeem Creation Units of a Fund, an Authorized
Participant must submit an order to redeem for one or more Creation
Units. All such orders must be received by the Distributor in proper
form no later than the earlier of (i) 4:00 p.m. Eastern Time or (ii)
the closing time of the bond markets and/or the regular trading session
on the Exchange, in order to receive that day's closing NAV per Share.
Net Asset Value
The Administrator calculates each Fund's NAV at the close of
regular trading (normally 4:00 p.m., Eastern Time) every day that the
NYSE is open. NAV is calculated by deducting all of a Fund's
liabilities from the total value of its assets and dividing the result
by the number of Shares outstanding, rounding to the nearest cent. All
valuations are subject to review by the Trust's Board or its delegate.
In determining NAV, expenses are accrued and applied daily and
securities and other assets for which market quotations are readily
available are valued at market value. The NAV for a Fund will be
calculated and disseminated daily. The value of a Fund's portfolio
securities is based on market value when market quotations are readily
available.
Exchange-traded securities, such as common and preferred stocks,
ETFs, ETPs, ETNs, closed-end funds, REITs, MLPs, REOCs and similar
instruments, generally are valued by using market quotations, but may
be valued on the basis of prices furnished by a pricing service when
the Adviser believes such prices accurately reflect the fair market
value of such securities. Securities that are traded on any stock
exchange or on Nasdaq are generally valued by the pricing service at
the last quoted sale price. Lacking a last sale price, an equity
security is generally valued by the pricing service at its last bid
price. When market quotations are not readily available, when the
Adviser determines that the market quotation or the price provided by
the pricing service does not accurately reflect the current market
value, or when restricted or illiquid securities are being valued, such
securities are valued as determined in good faith by the Adviser. If a
security's market price is not readily available, the security will be
valued at fair value as determined by the Trust's Fair Value Committee
in accordance with the Trust's valuation policies and procedures
approved by the Board. The values of assets denominated in foreign
currencies are converted into U.S. dollars based on the mean of the
current bid and asked prices by major banking institutions and currency
dealers.
Bonds, notes, debentures or similar instruments are valued by a
pricing service when the Fund's Adviser believes such prices are
accurate and reflect the fair market value of such securities. If the
Adviser decides that a price provided by the pricing service does not
accurately reflect the fair market value of the securities, when prices
are not readily available from a pricing service, or when restricted or
illiquid securities are being valued, securities are valued at fair
value as determined in good faith by the Fund's Adviser, subject to
review by the Board of Trustees. Short-term investments in fixed income
securities with maturities of less than 60 days when acquired, or which
subsequently are within 60 days of maturity, are valued by using the
amortized cost method of valuation.
Futures contracts listed for trading on a futures exchange or board
of trade for which market quotations are readily available are valued
at the last quoted sales price or, in the absence of a sale, at the
mean of the last bid and ask prices.
The Subsidiaries will be valued at their NAV at the close of
regular trading (normally 4:00 p.m., Eastern time) every day that the
NYSE is open. NAV is calculated by deducting all of a Subsidiary's
liabilities from the total value of its assets and dividing the result
by the number of shares of the Subsidiary outstanding, rounding to the
nearest cent. The total value of the assets of each Subsidiary is
determined using the same valuation policy as the Funds.
Even when market quotations are available, they may be stale or
unreliable because the validity of market quotations appears to be
questionable; the number of quotations is such as to indicate that
there is a thin market in the security; a significant event occurs
after the close of a market but before a Fund's NAV calculation that
may affect a security's value; or the Adviser is aware of any other
data that calls into question the reliability of market quotations such
as issuer-specific events, which may include a merger or insolvency,
events which affect a geographical area or an industry segment, such as
political events or natural disasters, or market events, such as a
significant movement in the U.S. market. Where market quotations are
not readily available, including where the Adviser determines that the
closing price of the security is unreliable, the Adviser will value the
security at fair value in good faith using procedures approved by the
Board. Fair value pricing involves subjective judgments and it is
possible that a fair value determination for a security is materially
different than the value that could be realized upon the sale of the
security.
Because foreign markets may be open on different days than the days
during which a shareholder may purchase Shares, the value of a Fund's
investments may change on days when shareholders are not able to
purchase Shares.
Availability of Information
The Funds' Web site (www.arrowshares.com), which will be publicly
available prior to the public offering of Shares, will include a form
of the prospectus for the Funds that may be downloaded. The Web site
will include each Fund's ticker, Cusip and exchange information along
with additional quantitative information updated on a daily basis,
including, for
[[Page 38095]]
each Fund: (1) daily trading volume, the prior business day's reported
NAV and closing price, mid-point of the bid/ask spread at the time of
calculation of such NAV (the ``Bid/Ask Price'') \21\ and a calculation
of the premium and discount of the Bid/Ask Price against the NAV; and
(2) data in chart format displaying the frequency distribution of
discounts and premiums of the daily Bid/Ask Price against the NAV,
within appropriate ranges, for each of the four previous calendar
quarters. On each business day, before commencement of trading in
Shares in the Regular Market Session \22\ on the Exchange, the Funds
will disclose on their Web site the identities and quantities of the
portfolio of securities and other assets (the ``Disclosed Portfolio''
as defined in Nasdaq Rule 5735(c)(2)) held by each Fund that will form
the basis for the Fund's calculation of NAV at the end of the business
day.\23\ The Disclosed Portfolio will include, as applicable, the
names, quantity, percentage weighting and market value of securities
and other assets held by each Fund and each Subsidiary and the
characteristics of such assets. The Web site and information will be
publicly available at no charge.
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\21\ The Bid/Ask Price of each Fund will be determined using the
midpoint of the highest bid and the lowest offer on the Exchange as
of the time of calculation of the Fund's NAV. The records relating
to Bid/Ask Prices will be retained by the Funds and their service
providers.
\22\ See Nasdaq Rule 4120(b)(4) (describing the three trading
sessions on the Exchange: (1) Pre-Market Session from 4 a.m. to 9:30
a.m. Eastern Time; (2) Regular Market Session from 9:30 a.m. to 4
p.m. or 4:15 p.m. Eastern Time; and (3) Post-Market Session from 4
p.m. or 4:15 p.m. to 8 p.m. Eastern Time).
\23\ Under accounting procedures to be followed by the Funds,
trades made on the prior business day (``T'') will be booked and
reflected in NAV on the current business day (``T+1'').
Notwithstanding the foregoing, portfolio trades that are executed
prior to the opening of the Exchange on any business day may be
booked and reflected in NAV on such business day. Accordingly, the
Funds 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.
---------------------------------------------------------------------------
In addition, for the Funds, an estimated value, defined in Rule
5735(c)(3) as the ``Intraday Indicative Value,'' that reflects an
estimated intraday value of each Fund's portfolio, will be
disseminated. Moreover, the Intraday Indicative Value, available on the
NASDAQ OMX Information LLC proprietary index data service \24\ will be
based upon the current value for the components of the Disclosed
Portfolio and will be updated and widely disseminated by one or more
major market data vendors and broadly displayed at least every 15
seconds during the Regular Market Session. Information regarding the
ETFs, other ETPs, futures, equity securities, fixed income securities
and other investments held by the Funds and Subsidiaries will be
available from on-line information services such as Bloomberg.
---------------------------------------------------------------------------
\24\ 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.
---------------------------------------------------------------------------
The dissemination of the Intraday Indicative Value, together with
the Disclosed Portfolio, will allow investors to determine the value of
the underlying portfolio of each Fund on a daily basis and will provide
a close estimate of that value throughout the trading day.
Intraday, executable price quotations on the securities and other
assets held by the Funds and Subsidiaries, will be available from major
broker-dealer firms or on the exchange on which they are traded, as
applicable. Intraday 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:
(a) pricing information for exchange-traded securities such as common
and preferred stocks, ETFs, ETPs, ETNs, closed-end funds, futures
contracts, REITs, MLPs, and REOCs will be publicly available from the
Web sites of the exchanges on which they trade, on public financial Web
sites, and through subscription services such as Bloomberg and Thompson
Reuters; and (b) pricing information regarding debt securities
(including high yield fixed-income securities, bonds, notes and
debentures will be available through subscription services such as
Markit, Bloomberg and Thompson Reuters.
Investors will also be able to obtain the Funds' Statement of
Additional Information (``SAI''), the Funds' annual and semi-annual
shareholder reports (``Shareholder Reports''), and their Form N-CSR and
Form N-SAR, filed twice a year. The Fund's SAI and Shareholder Reports
will be available free upon request from the Funds, and those documents
and the Form N-CSR and Form N-SAR may be viewed on-screen or downloaded
from the Commission's Web site at www.sec.gov. Information regarding
market price and volume of the Shares will be continually available on
a real-time basis throughout the day on brokers' computer screens and
other electronic services. The previous day's closing price and trading
volume information for the Shares will be published daily in the
financial section of newspapers. 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 and any
underlying exchange-traded products.
Additional information regarding the Funds and the Shares,
including investment strategies, risks, creation and redemption
procedures, fees, portfolio holdings disclosure policies, distributions
and taxes will be included in the Registration Statement. All terms
relating to a Fund that are referred to, but not defined in, this
proposed rule change are defined in the Registration Statement.
Initial and Continued Listing
The Shares will be subject to Rule 5735, which sets forth the
initial and continued listing criteria applicable to Managed Fund
Shares. The Exchange represents that, for initial and/or continued
listing, the Funds must be in compliance with Rule 10A-3 \25\ under the
Act. A minimum of 100,000 Shares of each Fund will be outstanding at
the commencement of trading on the Exchange. The Exchange will obtain a
representation from the issuer of the Shares that the NAV per Share
will be calculated daily and that the NAV and the Disclosed Portfolio
will be made available to all market participants at the same time.
---------------------------------------------------------------------------
\25\ See 17 CFR 240.10A-3.
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Trading Halts
With respect to trading halts, the Exchange may consider all
relevant factors in exercising its discretion to halt or suspend
trading in the Shares of the Funds. Nasdaq will halt 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 may be halted because of market conditions or for reasons that,
in the view of the Exchange, make trading in the Shares inadvisable.
These may include: (1) The extent to which trading is not occurring in
the securities and other assets constituting the Disclosed Portfolio of
the Funds; or (2) whether other unusual conditions or circumstances
detrimental to the maintenance of a fair and orderly market are
present. Trading in the Shares also will be subject to Rule
5735(d)(2)(D), which sets forth circumstances under which Shares of the
Funds may be halted.
[[Page 38096]]
Trading Rules
Nasdaq deems the Shares to be equity securities, thus rendering
trading in the Shares subject to Nasdaq's existing rules governing the
trading of equity securities. Nasdaq will allow trading in the Shares
from 4:00 a.m. until 8:00 p.m. Eastern Time. The Exchange has
appropriate rules to facilitate transactions in the Shares during all
trading sessions. As provided in Nasdaq Rule 5735(b)(3), the minimum
price variation for quoting and entry of orders in Managed Fund Shares
traded on the Exchange is $0.01.
Surveillance
The Exchange represents that trading in the Shares will be subject
to the existing trading surveillances, administered by both Nasdaq and
also the Financial Industry Regulatory Authority (``FINRA'') on behalf
of the Exchange, which are designed to detect violations of Exchange
rules and applicable federal securities laws.\26\ 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.
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\26\ 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.
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The surveillances referred to above generally focus on detecting
securities trading outside their normal patterns, which could be
indicative of manipulative or other violative activity. When such
situations are detected, surveillance analysis follows and
investigations are opened, where appropriate, to review the behavior of
all relevant parties for all relevant trading violations.
FINRA, on behalf of the Exchange, will communicate as needed
regarding trading information it can obtain relating to the Shares and
other exchange-traded securities and instruments held by the Fund with
other markets and other entities that are members of the Intermarket
Surveillance Group (``ISG'') \27\ and FINRA may obtain trading
information regarding trading in the Shares and exchange-traded
securities and instruments held by the Fund from such markets and other
entities. In addition, the Exchange may obtain information regarding
trading in the Shares and exchange-traded securities and instruments
held by the Fund from markets and other entities that are members of
ISG, which includes all U.S. national securities and certain futures
exchanges, or are parties to a comprehensive surveillance sharing
agreement. Moreover, FINRA, on behalf of the Exchange, will be able to
access, as needed, trade information for certain fixed income
securities held by each Fund reported to FINRA's TRACE. At all times,
90% of each Fund's exchange-traded assets will be securities that trade
in markets that are members of the ISG, which includes all U.S.
national securities and certain futures exchanges, or are parties to a
comprehensive surveillance sharing agreement.
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\27\ For a list of the current members of ISG, see
www.isgportal.org. The Exchange notes that not all components of the
Disclosed Portfolio may trade on markets that are members of ISG or
with which the Exchange has in place a comprehensive surveillance
sharing agreement.
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In addition, the Exchange also has a general policy prohibiting the
distribution of material, non-public information by its employees.
Information Circular
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: (1) The procedures for purchases
and redemptions of Shares in Creation Units (and that Shares are not
individually redeemable); (2) Nasdaq Rule 2111A, which imposes
suitability obligations on Nasdaq members with respect to recommending
transactions in the Shares to customers; (3) how and by whom
information regarding the Intraday Indicative Value and Disclosed
Portfolio is disseminated; (4) the risks involved in trading the Shares
during the Pre-Market and Post-Market Sessions when an updated Intraday
Indicative Value will not be calculated or publicly disseminated; (5)
the requirement that members deliver a prospectus to investors
purchasing newly issued Shares prior to or concurrently with the
confirmation of a transaction; and (6) trading information.
In addition, the Information Circular will advise members, prior to
the commencement of trading, of the prospectus delivery requirements
applicable to the Fund. Members purchasing Shares from the Fund for
resale to investors will deliver a prospectus to such investors. The
Information Circular will also discuss any exemptive, no-action and
interpretive relief granted by the Commission from any rules under the
Act.
Additionally, the Information Circular will reference that the Fund
is subject to various fees and expenses described in the Registration
Statement. The Information Circular will also disclose the trading
hours of the Shares of the Fund and the applicable NAV calculation time
for the shares. The Information Circular will disclose that information
about the Shares of the Fund will be publicly available on the
Distributor's Web site.
2. Statutory Basis
Nasdaq believes that the proposal is consistent with Section 6(b)
of the Act \28\ in general and Section 6(b)(5) of the Act \29\ in
particular in that it is designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to foster cooperation and coordination with
persons engaged in facilitating transactions in securities, and to
remove impediments to and perfect the mechanism of a free and open
market and a national market system.
---------------------------------------------------------------------------
\28\ 15 U.S.C. 78f.
\29\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
The Exchange believes that the proposed rule change is designed to
prevent fraudulent and manipulative acts and practices in that the
Shares will be listed and traded on the Exchange pursuant to the
initial and continued listing criteria in Nasdaq Rule 5735. The
Exchange has in place surveillance procedures that are adequate to
properly monitor trading in the Shares in all trading sessions and to
deter and detect violations of Exchange rules and applicable federal
securities laws. At all times, 90% of each Fund's exchange-traded
assets will be securities that trade in markets that are members of the
ISG, which includes all U.S. national securities and certain futures
exchanges, or are parties to a comprehensive surveillance sharing
agreement. The Exchange may obtain information via ISG from other
exchanges that are members of ISG or with which the Exchange has
entered into a comprehensive surveillance sharing agreement. In
pursuing its investment objective, the Balanced Fund and the Tactical
Fund seek to achieve their respective investment objectives by
investing in ETFs that each invest primarily in domestic and foreign
(including emerging markets) (i) equity securities of any market
capitalization, (ii) fixed income securities of any credit quality, or
(iii) alternative assets. In addition, each of the Balanced Fund and
the Tactical Fund invests in commodity futures through its respective
Subsidiary. In pursuing its investment objective, the Tactical Yield
Fund invests in ETFs that each invest primarily in domestic and foreign
[[Page 38097]]
(including emerging markets) (i) equity securities of any market
capitalization, and (ii) fixed income securities of any credit quality.
The Funds will not invest 25% or more of the value of its total
assets in securities of issuers in any one industry.\30\ The Funds may
hold up to an aggregate amount of 15% of its net assets in illiquid
assets (calculated at the time of investment).
---------------------------------------------------------------------------
\30\ See supra note 17.
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Each of the Balanced Fund and Tactical Fund has the ability to
invest up to 25% of its total assets in the Balanced Subsidiary and the
Tactical Subsidiary, respectively. Each Subsidiary will invest
primarily in commodity futures, as well as fixed income securities and
cash equivalents, which are intended to serve as margin or collateral
for the subsidiary's investments in commodity futures. Each Subsidiary
may have both long and short positions in commodities futures. However,
for a given commodity, each Subsidiary will have a net long exposure.
The Adviser is not a broker-dealer, but the Adviser is affiliated
with a broker-dealer and has implemented a ``fire wall'' with respect
to such broker-dealer regarding access to information concerning the
composition and/or changes to the Funds' portfolio. In addition, as
required by paragraph (g) of Nasdaq Rule 5735, Adviser personnel who
make decisions on each Fund's portfolio composition will be subject to
procedures designed to prevent the use and dissemination of material,
non-public information regarding the each Fund's portfolio. The Funds'
investments will be consistent with the Funds' investment objectives
and, although certain derivative investments will have a leveraging
effect on the Funds and Subsidiaries, the Funds and Subsidiaries will
not seek leveraged returns (e.g., 2X or -3X).
The proposed rule change is designed to promote just and equitable
principles of trade and to protect investors and the public interest in
that the Exchange will obtain a representation from the issuer of the
Shares that the NAV per Share will be calculated daily and that the NAV
and the Disclosed Portfolio will be made available to all market
participants at the same time. In addition, a large amount of
information is publicly available regarding the Funds and the Shares,
thereby promoting market transparency.
The Intraday Indicative Value, available on the NASDAQ OMX
Information LLC proprietary index data service will be widely
disseminated by one or more major market data vendors and broadly
displayed at least every 15 seconds during the Regular Market Session.
The dissemination of the Intraday Indicative Value, together with the
Disclosed Portfolio, will allow investors to determine the value of the
underlying portfolio of each Fund on a daily basis and will provide a
close estimate of that value throughout the trading day. 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, and quotation
and last sale information for the Shares will be available via Nasdaq
proprietary quote and trade services. Intraday, executable price
quotations of the securities and other assets held by the Funds will be
available from major broker-dealer firms or on the exchange on which
they are traded, if applicable. Intraday price information is available
through subscription services, such as Bloomberg, Markit and Thomson
Reuters, which can be accessed by Authorized Participants and other
investors.
Trading in Shares of the Funds will be halted under the conditions
specified in Nasdaq Rule 4120(a)(11) have been reached or because of
market conditions or for reasons that, in the view of the Exchange,
make trading in the Shares inadvisable, and trading in the Shares will
be subject to Nasdaq Rule 5735(d)(2)(D), which sets forth circumstances
under which Shares of the Funds may be halted. In addition, as noted
above, investors will have ready access to information regarding the
Funds' holdings, the Intraday Indicative Value, the Disclosed
Portfolio, and quotation and last sale information for the Shares.
The proposed rule change is designed to perfect the mechanism of a
free and open market and, in general, to protect investors and the
public interest in that it will facilitate the listing and trading of
an additional type of actively-managed exchange-traded product that
will enhance competition among market participants, to the benefit of
investors and the marketplace.
For the above reasons, Nasdaq believes the proposed rule change is
consistent with the requirements of Section 6(b)(5) of the Act.
B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Exchange believes that
the proposed rule change will facilitate the listing and trading of an
additional type of actively-managed exchange-traded fund that will
enhance competition among market participants, to the benefit of
investors and the marketplace.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others
Written comments were neither solicited nor received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period up to 90 days (i) as the
Commission may designate if it finds such longer period to be
appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
(A) by order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
File Number SR-NASDAQ-2014-063 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2014-063. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the
[[Page 38098]]
Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for Web site viewing and printing in
the Commission's Public Reference Room, 100 F Street, NE., Washington,
DC 20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of such filing will also be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-NASDAQ-2014-063 and should
be submitted on or before July 24, 2014.
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\31\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\31\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-15610 Filed 7-2-14; 8:45 am]
BILLING CODE 8011-01-P