[Federal Register Volume 74, Number 55 (Tuesday, March 24, 2009)]
[Notices]
[Pages 12407-12408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6391]
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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 28650; 812-13538]
ING Investments, LLC, et al.; Notice of Application
March 17, 2008.
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 rule 12d1-2(a)
under the Act.
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Summary of Application: Applicants request an order to permit funds of
funds relying on rule 12d1-2 under the Act to invest in certain
financial instruments.
Applicants: ING Investments, LLC (``IIL''), Directed Services, LLC
(``DSL''), ING Investment Management Co. (``IIM''), ING Funds
Distributor, LLC (``IFD'') and ING Investors Trust, ING Partners, Inc.,
ING Mutual Funds, ING Series Funds, Inc., and ING Strategic Allocation
Portfolios, Inc. (collectively, the ``Trusts'').
Filing Dates: The application was filed on June 4, 2008, and
amended on March 13, 2009.
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 April 13, 2009 and should be accompanied by proof of
service on applicants, in the form of an affidavit or, for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.
ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street,
NE., Washington, DC 20549-1090; Applicants, c/o Huey P. Falgout, Jr.,
ING Investments, LLC, 7337 E. Doubletree Ranch Road, Scottsdale, AZ
85258.
FOR FURTHER INFORMATION CONTACT: Lewis Reich, Senior Counsel, at (202)
551-6919, or Janet M. Grossnickle, Assistant Director, at (202) 551-
6821 (Division of Investment Management, Office of Investment Company
Regulation).
SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained for a fee at the
Commission's Public Reference Room, 100 F Street, NE., Washington, DC
20549-1520 (telephone (202) 551-5850).
Applicants' Representations
1. ING Investors Trust is organized as a Massachusetts business
trust. ING Mutual Funds is organized as a Delaware statutory trust.
Each of the other Trusts is organized as a Maryland corporation. Each
Trust is registered
[[Page 12408]]
under the Act as an open-end management investment company. Each of
IIL, DSL and IIM and is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, and currently serves as an
investment adviser or sub-adviser to existing series of the Trust. IFD,
a Delaware corporation, is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (``Exchange Act''). IFD
currently serves as the distributor of the existing series of the
Trust. The Trusts and each existing or future registered open-end
management investment company or series thereof that is in the same
group of investment companies, as defined in section 12(d)(1)(G)(ii) of
the Act, as the Trusts and that is advised by IIL, DSL or IIM or any
entity controlling, controlled by or under common control with IIL, DSL
or IIM (the ``Advisers''), together with series of the Trusts are
referred to as the ``Funds.'' Applicants request the exemption to the
extent necessary to permit any Fund that may invest in other funds in
reliance on Section 12(d)(1)(G) of the Act, and which is also eligible
to invest in securities (as defined in section 2(a)(36) of the Act) in
reliance on rule 12d1-2 under the Act, to also invest, to the extent
consistent with its investment objective, policies, strategies and
limitations, in financial instruments that may not be securities within
the meaning of section 2(a)(36) of the Act (``Other Investments'').\1\
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\1\ Every existing entity that currently intends to rely on the
requested order is named as an applicant. Any existing or future
entity that relies on the order in the future will do so only in
accordance with the terms and condition in the application.
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2. Consistent with its fiduciary obligations under the Act, each
Fund's board of trustees or directors will review the advisory fees
charged by the Fund's investment adviser to ensure that they are based
on services provided that are in addition to, rather than duplicative
of, services provided pursuant to the advisory agreement of any
investment company in which the Fund may invest.
Applicants' Legal Analysis
1. Section 12(d)(1)(A) of the Act provides that no registered
investment company (``acquiring company'') may acquire securities of
another investment company (``acquired company'') if such securities
represent more than 3% of the acquired company's outstanding voting
stock or more than 5% of the acquiring company's total assets, or if
such securities, together with the securities of other investment
companies, represent more than 10% of the acquiring company's total
assets. Section 12(d)(1)(B) of the Act provides that no registered
open-end investment company may sell its securities to another
investment company if the sale will cause the acquiring company to own
more than 3% of the acquired company's voting stock, or cause more than
10% of the acquired company's voting stock to be owned by investment
companies.
2. Section 12(d)(1)(G) of the Act provides that section 12(d)(1)
will not apply to securities of an acquired company purchased by an
acquiring company if: (i) the acquiring company and acquired company
are part of the same group of investment companies; (ii) the acquiring
company holds only securities of acquired companies that are part of
the same group of investment companies, government securities, and
short-term paper; (iii) the aggregate sales loads and distribution-
related fees of the acquiring company and the acquired company are not
excessive under rules adopted pursuant to section 22(b) or section
22(c) of the Act by a securities association registered under section
15A of the Exchange Act or by the Commission; and (iv) the acquired
company has a policy that prohibits it from acquiring securities of
registered open-end management investment companies or registered unit
investment trusts in reliance on section 12(d)(1)(F) or (G) of the Act.
3. Rule 12d1-2 under the Act permits a registered open-end
investment company or a registered unit investment trust that relies on
section 12(d)(1)(G) of the Act to acquire, in addition to securities
issued by another registered investment company in the same group of
investment companies, government securities, and short-term paper: (1)
Securities issued by an investment company that is not in the same
group of investment companies, when the acquisition is in reliance on
section 12(d)(1)(A) or 12(d)(1)(F) of the Act; (2) securities (other
than securities issued by an investment company); and (3) securities
issued by a money market fund, when the investment is in reliance on
rule 12d1-1 under the Act. For the purposes of rule 12d1-2,
``securities'' means any security as defined in section 2(a)(36) of the
Act.
4. Section 6(c) of the Act provides that the Commission may exempt
any person, security, or transaction from any provision of the Act, or
from any rule under the Act, 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 policies and
provisions of the Act.
5. Applicants state that the proposed arrangement would comply with
the provisions of rule 12d1-2 under the Act, but for the fact that the
Funds may invest a portion of their assets in Other Investments.
Applicants request an order under section 6(c) of the Act for an
exemption from rule 12d1-2(a) to allow the Funds to invest in Other
Investments. Applicants assert that permitting the Funds to invest in
Other Investments as described in the application would not raise any
of the concerns that the requirements of section 12(d)(1) were designed
to address.
Applicants' Condition
Applicants agree that the order granting the requested relief will
be subject to the following condition:
Applicants will comply with all provisions of rule 12d1-2 under the
Act, except for paragraph (a)(2) to the extent that it restricts any
Fund from investing in Other Investments as described in the
application.
For the Commission, by the Division of Investment Management,
under delegated authority.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-6391 Filed 3-23-09; 8:45 am]
BILLING CODE 8010-01-P