20660 Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Notices 

11 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3A 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) (‘‘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 

Investment Company Units, listed and traded on 

the Exchange under NYSE Arca Equities Rule 

5.2(j)(3), 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. 

4The Commission has previously approved 

listing and trading on the Exchange of a number of 

actively managed funds under Rule 8.600. See, e.g., 

Securities Exchange Act Release Nos. 57801 (May 

8, 2008), 73 FR 27878 (May 14, 2008) (SR– 

NYSEArca–2008–31) (order approving Exchange 

listing and trading of twelve actively-managed 

funds of the WisdomTree Trust); 60460 (August 7, 

2009), 74 FR 41468 (August 17, 2009) (SR– 

NYSEArca–2009–55) (order approving listing of 

Dent Tactical ETF); 63076 (October 12, 2010), 75 FR 

63874 (October 18, 2010) (SR–NYSEArca–2010–79) 

(order approving Exchange listing and trading of 

Cambria Global Tactical ETF); 63802 (January 31, 

2011), 76 FR 6503 (February 4, 2011) (SR– 

NYSEArca–2010–118) (order approving Exchange 

listing and trading of the SiM Dynamic Allocation 

significant burden on competition; and 

(iii) by its terms, does not become 

operative for 30 days after the date of 

the filing, or such shorter time as the 

Commission may designate if consistent 

with the protection of investors and the 

public interest. NASDAQ believes that 

the proposed rule change does not 

significantly affect the protection of 

investors or the public interest because 

it adopts a provision that is already in 

effect on another market; will operate to 

minimize excessive messaging and 

therefore maximize system and intermarket stability; and is an order type 

that participants may elect to use but are 

not mandated to use. 

At any time within 60 days of the 

filing of the proposed rule change, the 

Commission summarily may 

temporarily suspend such rule change if 

it appears to the Commission that such 

action is necessary or appropriate in the 

public interest, for the protection of 

investors, or otherwise in furtherance of 

the purposes of the Act. If the 

Commission takes such action, the 

Commission shall institute proceedings 

to determine whether the proposed rule 

should be approved or 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 rulecomments@sec.gov. Please include File 

Number SR–NASDAQ–2012–041 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–NASDAQ–2012–041. 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 

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 

a.m. and 3 p.m. Copies of the filing also 

will 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–2012–041 and 

should be submitted on or before April 

26, 2012. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.11

Kevin M. O’Neill, 

Deputy Secretary. 

[FR Doc. 2012–8150 Filed 4–4–12; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–66696; File No. SR– 

NYSEArca–2012–24] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Notice of Filing of Proposed 

Rule Change Relating to Listing and 

Trading of AdvisorShares Global Echo 

ETF Under NYSE Arca Equities Rule 

8.600 

March 30, 2012. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 

(‘‘Exchange Act’’ or ‘‘Act’’) 1 and Rule 

19b–4 thereunder,2 notice is hereby 

given that, on March 16, 2012, NYSE 

Arca, Inc. (‘‘Exchange’’ or ‘‘NYSE Arca’’) 

filed with the Securities and Exchange 

Commission (‘‘Commission’’) the 

proposed rule change as described in 

Items I, II, and III below, which Items 

have been substantially prepared by the 

Exchange. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to list and 

trade the following under NYSE Arca 

Equities Rule 8.600 (‘‘Managed Fund 

Shares’’): AdvisorShares Global Echo 

ETF. The text of the proposed rule 

change is available at the Exchange, 

www.nyse.com, and 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, the 

self-regulatory organization included 

statements concerning the purpose of, 

and basis for, the proposed rule change 

and discussed any comments it received 

on the proposed rule change. The text 

of those statements may be examined at 

the places specified in Item IV below. 

The Exchange has prepared summaries, 

set forth in sections A, B, and C below, 

of the most significant parts 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 shares (‘‘Shares’’) of the following 

under NYSE Arca Equities Rule 8.600, 

which governs the listing and trading of 

Managed Fund Shares: 3 AdvisorShares 

Global Echo ETF (‘‘Fund’’).4 The Shares 


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Diversified Income ETF and SiM Dynamic 

Allocation Growth Income ETF). 

5The Trust is registered under the 1940 Act. On 

July 15, 2011, the Trust filed with the Commission 

Post-Effective Amendment No. 32 to Form N–1A 

under the Securities Act of 1933 (15 U.S.C. 77a), 

and under the 1940 Act relating to the Fund (File 

Nos. 333–157876 and 811–22110) (‘‘Registration 

Statement’’). The description of the operation of the 

Trust and the Fund herein is based, in part, on the 

Registration Statement. In addition, the 

Commission has issued an order granting certain 

exemptive relief to the Trust under the 1940 Act. 

See Investment Company Act Release No. 29291 

(May 28, 2010) (File No. 812–13677) (‘‘Exemptive 

Order’’). 

6An investment adviser to an open-end fund is 

required to be registered under the Investment 

Advisers Act of 1940 (‘‘Advisers Act’’). As a result, 

the Adviser and Sub-Advisers and their 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. 

7The term ‘‘under normal market circumstances’’ 

includes, but is not limited to, the absence of 

extreme volatility or trading halts in the equities or 

fixed income 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 manmade disaster, act of God, armed conflict, act of 

terrorism, riot or labor disruption or any similar 

intervening circumstance. 

8The Fund may invest in equity securities of 

domestic and foreign companies, including 

common stocks, preferred stocks, warrants to 

acquire common stock, securities convertible into 

common stock, and investments in master limited 

partnerships. 

9The Fund generally will invest in sponsored 

ADRs, but it may invest up to 10% of total assets 

in unsponsored ADRs. 

10Underlying ETPs include Investment Company 

Units (as described in NYSE Arca Equities Rule 

5.2(j)(3)); Index-Linked Securities (as described in 

NYSE Arca Equities Rule 5.2(j)(6)); Portfolio 

Depositary Receipts (as described in NYSE Arca 

Equities Rule 8.100); Trust Issued Receipts (as 

described in NYSE Arca Equities Rule 8.200); 

Commodity-Based Trust Shares (as described in 

NYSE Arca Equities Rule 8.201); Currency Trust 

Shares (as described in NYSE Arca Equities Rule 

8.202); Commodity Index Trust Shares (as described 

in NYSE Arca Equities Rule 8.203); Trust Units (as 

described in NYSE Arca Equities Rule 8.500); 

Managed Fund Shares (as described in NYSE Arca 

Equities Rule 8.600); and closed-end funds. The 

Underlying ETPs all will be listed and traded in the 

U.S. on registered exchanges. The Fund may invest 

in the securities of Underlying ETPs registered 

under the 1940 Act consistent with the 

requirements of Section 12(d)(1) of the 1940 Act, or 

any rule, regulation, or order of the Commission or 

interpretation thereof. The Fund will only make 

such investments in conformity with the 

requirements of Section 817 of the Internal Revenue 

Code of 1986. The Underlying ETPs in which the 

Fund may invest will primarily be index-based 

exchange-traded funds that hold substantially all of 

their assets in securities representing a specific 

index. 

will be offered by AdvisorShares Trust 

(‘‘Trust’’), a statutory trust organized 

under the laws of the State of Delaware 

and registered with the Commission as 

an open-end management investment 

company.5 The investment adviser to 

the Fund is AdvisorShares Investments, 

LLC (‘‘Adviser’’). The Fund’s subadvisers (‘‘Sub-Advisers’’ and each a 

‘‘Sub-Adviser’’), which provide day-today portfolio management of the Fund, 

are First Affirmative Financial Network 

LLC; Reynders, McVeigh Capital 

Management, LLC; Baldwin Brothers 

Inc.; and Community Capital 

Management Inc. 

Foreside Fund Services, LLC 

(‘‘Distributor’’) is the principal 

underwriter and distributor of the 

Fund’s Shares. The Bank of New York 

Mellon Corporation serves as the 

administrator (‘‘Administrator’’), 

custodian, transfer agent, and fund 

accounting agent for the Fund. 

Commentary .06 to Rule 8.600 

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 brokerdealer with respect to access to 

information concerning the composition 

and/or changes to such investment 

company portfolio.6 In addition, 

Commentary .06 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. 

Commentary .06 to Rule 8.600 is similar 

to Commentary .03(a)(i) and (iii) to 

NYSE Arca Equities Rule 5.2(j)(3); 

however, Commentary .06 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. Neither 

the Adviser nor the Sub-Advisers are 

affiliated with a broker-dealer. In the 

event (a) the Adviser or the SubAdvisers become newly affiliated with a 

broker-dealer, or (b) any new adviser or 

sub-adviser becomes affiliated with a 

broker-dealer, it will implement a fire 

wall with respect to 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. 

Description of the Fund 

According to the Registration 

Statement, the Fund will seek to achieve 

long-term capital appreciation with an 

emphasis on absolute (positive) returns 

and low sensitivity to traditional 

financial market indices, such as the 

S&P 500 Index, over a full market cycle. 

The Fund will seek to achieve its 

investment objective by investing under 

normal market circumstances 7 at least 

80% of its total assets in the following 

securities: U.S. exchange-listed equity 

securities; 8 American Depository 

Receipts (‘‘ADRs’’); 9 fixed income 

securities (including municipal bonds); 

and exchange-traded products 

(‘‘Underlying ETPs’’) 10 that provide 

diversified exposure to various asset 

classes and market segments. 

The Fund will be a multi-manager, 

multi-strategy, broadly diversified, 

actively managed exchange-traded fund 

with a focus on ‘‘Sustainable Investing.’’ 

Sustainable Investing generally refers to 

an investment methodology that takes 

into consideration economic, 

environmental, technology, and a 

variety of social factors when making 

investment decisions. Accordingly, the 

Fund is designed as a core allocation 

that proactively seeks Sustainable 

Investment-themed investment 

opportunities that may socially and 

environmentally benefit the earth, with 

a focus on water, clean energy, 

community development, innovation, 

and other sustainable themes across 

asset classes. Sustainable Investment 

themes that the Fund may pursue 

include, but are not limited to, the 

following: economic themes (corporate 

governance, risk and crisis management, 

community investment, energy 

efficiency, food, green building); 

environmental themes (air, water, 

earth); technology themes (mobility, 

renewable energy, technology, and 

access); and social themes (human 

health, such as occupational health and 

safety). 

The Fund will seek to achieve its 

investment objective by allocating a 

portion of the Fund’s assets to each of 

the Fund’s Sub-Advisers who will 

employ their respective investment 


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20662 Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Notices 

11This limitation does not apply to securities 

issued or guaranteed by federal agencies and/or 

U.S. government sponsored instrumentalities, such 

as the Government National Mortgage 

Administration (‘‘GNMA’’), the Federal Housing 

Administration (‘‘FHA’’), the Federal National 

Mortgage Association (‘‘FNMA’’), and the Federal 

Home Loan Mortgage Corporation (‘‘FHLMC’’). 

12Telephone conference between Michael 

Cavalier, Chief Counsel, NYSE Euronext and Kristie 

Diemer, Special Counsel, Division of Trading and 

Markets, Commission, on March 28, 2012, 

confirmed domestic equities strategies will apply to 

all Sub-Advisers. 

13The diversification standard is set forth in 

Section 5(b)(1) of the 1940 Act. 

strategies to generate absolute returns 

over a full market cycle. Generally, a 

full market cycle consists of a bull 

market followed by a bear market and a 

return to a bull market, or vice versa. 

Initially, an equal proportion of the 

Fund’s assets will be allocated to each 

Sub-Adviser to obtain the desired 

exposure to the strategies described 

below. The allocation among SubAdvisers will vary over time in response 

to a variety of factors including 

prevailing market conditions. The 

Adviser has designated First Affirmative 

Financial Network, LLC to allocate and 

monitor the allocation of the Fund’s 

assets to each Sub-Adviser to ensure 

that the Fund’s portfolio maintains the 

proper investment exposure to seek to 

achieve its investment objective. Each 

Sub-Adviser will seek to identify and 

invest either directly or indirectly 

through other Underlying ETPs in 

securities of companies that are making 

a positive impact in the world and 

reflect Sustainable Investment themes, 

including corporate sustainability. The 

Fund’s investments in companies that 

practice corporate sustainability will 

provide an additional layer of 

diversification because such 

investments are designed to increase 

long-term shareholder value. Companies 

focused on corporate sustainability also 

can provide more attractive risk return 

profiles for investors, and can leverage 

various other Sustainable Investment 

themes. 

The Fund may take both long and 

short positions in any of these 

investments. The Fund may invest up to 

65% (and intends to always invest at 

least 15%) of its net assets in domestic 

and foreign fixed income securities. The 

Fund may invest in securities of any 

capitalization range and may employ 

one or more investment styles (from 

growth to value) at any time as 

necessary to seek to achieve the Fund’s 

investment objective. 

Each Sub-Adviser will determine 

whether to buy or sell an investment for 

the Fund’s portfolio by applying one or 

more of the following strategies: 

Core Strategies 

Æ Fixed Income Strategies. Fixed 

income strategies consist of investment 

strategies that invest primarily in debt 

securities of domestic and foreign 

governments, agencies, 

instrumentalities, municipalities and 

companies of all maturities and 

qualities (including ‘‘junk bonds’’ and 

up to 15% of total assets in defaulted 

debt securities), TIPS (Treasury Inflation 

Protected Securities), and Underlying 

ETPs that provide exposure to fixed 

income securities or strategies. 85% or 

more of the Fund’s investments in fixed 

income strategies will be in investment 

grade debt securities. Debt securities of 

foreign governments are sometimes 

referred to as sovereign debt obligations 

and may be issued or guaranteed by 

foreign governments or their agencies. 

The Fund may invest up to 10% of total 

assets in mortgage-backed securities or 

other asset-backed securities.11 Fixed 

income strategies also may involve 

hedging through the use of investments 

in other Underlying ETPs to enhance 

risk-adjusted return. 

Æ Equity Strategies. Equity strategies 

will consist of both domestic and 

international/emerging markets 

strategies. The domestic equity 

strategies will seek to invest in 

securities of companies that the SubAdvisers believe will outperform other 

equity securities over the long term.12

The international/emerging markets 

equity strategies will seek to invest in 

securities of undervalued international 

companies through ADRs that provide 

the Fund with exposure to businesses 

outside of the U.S. and that are 

attractively priced relative to their 

economic fundamentals. Both U.S. and 

international investments will be 

selected using fundamental analysis of 

factors such as earnings, cash flows, and 

valuations based upon them, and will be 

diversified among the economic and 

industry sectors in the S&P 500® Index, 

the Morgan Stanley Capital 

International (‘‘MSCI’’) All Country 

World Index, MSCI Europe, Australasia 

and Far East Index, and MSCI Emerging 

Markets Index. 

Alternative Strategies 

Æ Long/Short and Hedging Strategies. 

Alternative strategies will consist of 

strategies that combine short sales of 

equities (including shares of Underlying 

ETPs) or purchase of shares of inverse 

Underlying ETPs. As such, long/short 

strategies may utilize securities that 

seek to track indexes on markets, 

sectors, strategies, and/or industries to 

hedge against potential adverse 

movements in security prices. The Fund 

may implement multiple variations of 

long/short and hedging strategies. The 

basic long/short equity strategies 

generally will seek to increase net long 

exposure in a bull market and decrease 

net long exposure, by holding high 

concentrations in cash or investing 

100% short in a bear market. 

Other Investments 

The Fund may enter into repurchase 

agreements with financial institutions, 

which may be deemed to be loans. The 

Fund will follow certain procedures 

designed to minimize the risks inherent 

in such agreements. These procedures 

will include effecting repurchase 

transactions only with large, wellcapitalized, and well-established 

financial institutions whose condition 

will be continually monitored by the 

Sub-Advisers. In addition, the value of 

the collateral underlying the repurchase 

agreement will always be at least equal 

to the repurchase price, including any 

accrued interest earned on the 

repurchase agreement. The Fund may 

enter into reverse repurchase 

agreements without limit as part of the 

Fund’s investment strategy. Reverse 

repurchase agreements involve sales by 

the Fund of portfolio assets 

concurrently with an agreement by the 

Fund to repurchase the same assets at a 

later date at a fixed price. 

The Fund, or Underlying ETPs in 

which it invests, may invest in U.S. 

government securities and U.S. Treasury 

zero-coupon bonds. The Fund, or 

Underlying ETPs in which it invests, 

may invest in shares of real estate 

investment trusts (‘‘REITs’’). 

Diversification. The Fund may not (i) 

with respect to 75% of its total assets, 

purchase securities of any issuer (except 

securities issued or guaranteed by the 

U.S. Government, its agencies or 

instrumentalities or shares of 

investment companies) if, as a result, 

more than 5% of its total assets would 

be invested in the securities of such 

issuer; or (ii) acquire more than 10% of 

the outstanding voting securities of any 

one issuer.13

Concentration. The Fund may not 

invest 25% or more of its total assets in 

the securities of one or more issuers 

conducting their principal business 

activities in the same industry or group 

of industries. This limitation does not 

apply to investments in securities 

issued or guaranteed by the U.S. 

Government, its agencies or 

instrumentalities, or shares of 

investment companies. The Fund will 

not invest 25% or more of its total assets 


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Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Notices 20663 

14See 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). 

15A 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 Securities Act of 1933). 

16 17 CFR 240.10A–3. 

17The Bid/Ask Price of the Fund is determined 

using the mid-point 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 Fund and 

its service providers. 

18Under accounting procedures followed by the 

Fund, trades made on the prior business day (‘‘T’’) 

will be booked and reflected in NAV on the current 

business day (‘‘T+1’’). Accordingly, the Fund will 

be able to disclose at the beginning of the business 

day the portfolio that will form the basis for the 

NAV calculation at the end of the business day. 

in any investment company that so 

concentrates.14

The Fund will not purchase illiquid 

securities.15 Further, in accordance with 

the Exemptive Order, the Fund will not 

invest in options, futures, or swaps. The 

Fund’s investments will be consistent 

with the Fund’s investment objective 

and will not be used to enhance 

leverage. 

Except for Underlying ETPs that may 

hold non-U.S. issues, the Fund will not 

otherwise invest in non-U.S. issues. 

To respond to adverse market, 

economic, political, or other conditions, 

the Fund may invest 100% of its total 

assets, without limitation, in highquality debt securities and money 

market instruments either directly or 

through Underlying ETPs. The Fund 

may be invested in these instruments for 

extended periods, depending on the 

Sub-Advisers’ assessment of market 

conditions. These debt securities and 

money market instruments include 

shares of other mutual funds, 

commercial paper, certificates of 

deposit, bankers’ acceptances, U.S. 

Government securities, repurchase 

agreements, and bonds that are BBB or 

higher. While the Fund is in a defensive 

position, the opportunity to achieve its 

investment objective will be limited. 

Creations and Redemptions 

The Fund will issue and redeem 

Shares on a continuous basis at the net 

asset value (‘‘NAV’’) only in a large 

specified number of shares called a 

‘‘Creation Unit.’’ The Shares are 

‘‘created’’ at their NAV by market 

makers, large investors, and institutions 

only in block-size Creation Units of at 

least 50,000 Shares. A ‘‘creator’’ will 

enter into an authorized participant 

agreement (‘‘Participant Agreement’’) 

with the Distributor or use a Depository 

Trust Company (‘‘DTC’’) participant 

who has executed a Participant 

Agreement (‘‘Authorized Participant’’), 

and deposit into the Fund a portfolio of 

securities closely approximating the 

holdings of the Fund and a specified 

amount of cash, together totaling the 

NAV of the Creation Unit(s), in 

exchange for 50,000 Shares of the Fund 

(or multiples thereof). 

Shares may be redeemed only in 

Creation Units at their NAV next 

determined after receipt of a redemption 

request in proper form by a Fund 

through the Administrator and only on 

a business day. The redemption 

proceeds for a Creation Unit generally 

will consist of a portfolio of securities 

closely approximating the holdings of 

the Fund and a specified amount of 

cash, as announced by the 

Administrator on the business day of 

the request for redemption received in 

proper form, plus cash in an amount 

equal to the difference between the NAV 

of the Shares being redeemed, as next 

determined after a receipt of a request 

in proper form, and the value of such 

portfolio of securities. Orders to create 

and redeem Shares must be placed with 

the Administrator by 3 p.m., Eastern 

Time (‘‘E.T.’’). 

Net Asset Value 

The NAV per Share of the Fund will 

be computed by dividing the value of 

the net assets of the Fund (i.e., the value 

of its total assets less total liabilities) by 

the total number of Shares of the Fund 

outstanding, rounded to the nearest 

cent. Expenses and fees, including 

without limitation, the management, 

administration, and distribution fees, 

will be accrued daily and taken into 

account for purposes of determining 

NAV. The NAV per Share for the Fund 

will be calculated by the Administrator 

and determined as of the close of the 

regular trading session on the New York 

Stock Exchange (‘‘NYSE’’) (ordinarily 4 

p.m., E.T.) on each day that the NYSE 

is open. 

In computing the Fund’s NAV, the 

Fund’s securities holdings will be 

valued based on their last readily 

available market price. Price 

information on listed securities, 

including Underlying ETPs, will be 

taken from the exchange where the 

security is primarily traded. Securities 

regularly traded in an over-the-counter 

market will be valued at the latest 

quoted sales price on the primary 

exchange or national securities market 

on which such securities are traded. 

Securities not listed on an exchange or 

national securities market, or securities 

in which there was no last reported 

sales price, will be valued at the most 

recent bid price. Other portfolio 

securities and assets for which market 

quotations are not readily available will 

be valued based on fair value as 

determined in good faith by the SubAdvisers in accordance with procedures 

adopted by the Fund’s Board of 

Trustees. 

The Shares will conform to the initial 

and continued listing criteria under 

NYSE Arca Equities Rule 8.600. The 

Exchange represents that, for initial 

and/or continued listing, the Fund will 

be in compliance with Rule 10A–3 

under the Exchange Act,16 as provided 

by NYSE Arca Equities Rule 5.3. A 

minimum of 100,000 Shares 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. 

Availability of Information 

The Fund’s Web site 

(www.advisorshares.com), which will be 

publicly available prior to the public 

offering of Shares, will include a form 

of the prospectus for the Fund that may 

be downloaded. The Fund’s Web site 

will include additional quantitative 

information updated on a daily basis, 

including, for the Fund, (1) daily trading 

volume, the prior business day’s 

reported closing price, NAV and midpoint of the bid/ask spread at the time 

of calculation of such NAV (‘‘Bid/Ask 

Price’’),17 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 Core Trading Session on the 

Exchange, the Fund will disclose on its 

Web site the Disclosed Portfolio as 

defined in NYSE Arca Equities Rule 

8.600(c)(2) that will form the basis for 

the Fund’s calculation of NAV at the 

end of the business day.18

On a daily basis, the Adviser will 

disclose on the Fund’s Web site for each 

portfolio security or other financial 

instrument of the Fund the following 

information: ticker symbol (if 

applicable), name of security or 

financial instrument, number of shares 


Tkelley on DSK3SPTVN1PROD with NOTICES
20664 Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Notices 

19Currently, it is the Exchange’s understanding 

that several major market data vendors display and/ 

or make widely available Portfolio Indicative 

Values published on CTA or other data feeds. 

20See NYSE Arca Equities Rule 7.12, 

Commentary .04. 

21For a list of the current members of ISG, see 

www.isgportal.org. The Exchange notes that not all 

components of the Disclosed Portfolio for the Fund 

may trade on markets that are members of ISG or 

with which the Exchange has in place a 

comprehensive surveillance sharing agreement. 

or dollar value of other securities and 

financial instruments held in the 

portfolio, and percentage weighting of 

the security or financial instrument in 

the portfolio. The Web site information 

will be publicly available at no charge. 

In addition, a basket composition file, 

which includes the security names and 

share quantities required to be delivered 

in exchange for Fund Shares, together 

with estimates and actual cash 

components, will be publicly 

disseminated daily prior to the opening 

of the NYSE via the National Securities 

Clearing Corporation. The basket 

represents one Creation Unit of the 

Fund. 

Investors can also obtain the Trust’s 

Statement of Additional Information 

(‘‘SAI’’), the Fund’s Shareholder 

Reports, and its Form N–CSR and Form 

N–SAR, filed twice a year. The Trust’s 

SAI and Shareholder Reports are 

available free upon request from the 

Trust, 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 trading volume of the 

Shares will be continually available on 

a real-time basis throughout the day on 

brokers’ computer screens and other 

electronic services. Information 

regarding the previous day’s closing 

price and trading volume information 

for the Shares will be published daily in 

the financial section of newspapers. 

Price information for the ADRs, debt 

and equity securities held by the Fund, 

including foreign equity securities, and 

Underlying ETPs will be available 

through major market data vendors or 

securities exchanges listing and trading 

such securities. Quotation and last-sale 

information for the Shares will be 

available via the Consolidated Tape 

Association (‘‘CTA’’) high-speed line. In 

addition, the Portfolio Indicative Value, 

as defined in NYSE Arca Equities Rule 

8.600(c)(3), will be widely disseminated 

by one or more major market data 

vendors at least every 15 seconds during 

the Core Trading Session.19 The 

dissemination of the Portfolio Indicative 

Value, together with the Disclosed 

Portfolio, will allow investors to 

determine the value of the underlying 

portfolio of the Fund on a daily basis 

and will provide a close estimate of that 

value throughout the trading day. 

Additional information regarding the 

Trust and the Shares, including 

investment strategies, risks, creation and 

redemption procedures, fees, portfolio 

holdings disclosure policies, 

distributions, and taxes is included in 

the Registration Statement. All terms 

relating to the Fund that are referred to, 

but not defined in, this proposed rule 

change are defined in the Registration 

Statement. 

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 Fund.20 Trading in Shares of the 

Fund will be halted if the circuit breaker 

parameters in NYSE Arca Equities Rule 

7.12 have been reached. Trading also 

may be halted because of market 

conditions or for reasons that, in the 

view of the Exchange, make trading in 

the Shares inadvisable. These may 

include: (1) The extent to which trading 

is not occurring in the securities and/or 

the financial instruments comprising 

the Disclosed Portfolio of the Fund; or 

(2) whether other unusual conditions or 

circumstances detrimental to the 

maintenance of a fair and orderly 

market are present. Trading in the 

Shares will be subject to NYSE Arca 

Equities Rule 8.600(d)(2)(D), which sets 

forth circumstances under which Shares 

of the Fund may be halted. 

Trading Rules 

The Exchange deems the Shares to be 

equity securities, thus rendering trading 

in the Shares subject to the Exchange’s 

existing rules governing the trading of 

equity securities. Shares will trade on 

the NYSE Arca Marketplace from 4 a.m. 

to 8 p.m., E.T. in accordance with NYSE 

Arca Equities Rule 7.34 (Opening, Core, 

and Late Trading Sessions). The 

Exchange has appropriate rules to 

facilitate transactions in the Shares 

during all trading sessions. As provided 

in NYSE Arca Equities Rule 7.6, 

Commentary .03, the minimum price 

variation (‘‘MPV’’) for quoting and entry 

of orders in equity securities traded on 

the NYSE Arca Marketplace is $0.01, 

with the exception of securities that are 

priced less than $1.00 for which the 

MPV for order entry is $0.0001. 

Surveillance 

The Exchange intends to utilize its 

existing surveillance procedures 

applicable to derivative products (which 

include Managed Fund Shares) to 

monitor trading in the Shares. 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. 

The Exchange’s current trading 

surveillance focuses on detecting 

securities trading outside their normal 

patterns. 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. 

The Exchange may obtain information 

via the Intermarket Surveillance Group 

(‘‘ISG’’) from other exchanges that are 

members of ISG or with which the 

Exchange has entered into a 

comprehensive surveillance sharing 

agreement.21 All equity securities, 

Underlying ETPs, and sponsored ADRs 

held by the Fund will be listed on 

securities exchanges, all of which are 

members of ISG. 

In addition, the Exchange also has a 

general policy prohibiting the 

distribution of material, non-public 

information by its employees. 

Information Bulletin 

Prior to the commencement of 

trading, the Exchange will inform its 

Equity Trading Permit (‘‘ETP’’) Holders 

in an Information Bulletin (‘‘Bulletin’’) 

of the special characteristics and risks 

associated with trading the Shares. 

Specifically, the Bulletin will discuss 

the following: (1) The procedures for 

purchases and redemptions of Shares in 

Creation Unit aggregations (and that 

Shares are not individually redeemable); 

(2) NYSE Arca Equities Rule 9.2(a), 

which imposes a duty of due diligence 

on its ETP Holders to learn the essential 

facts relating to every customer prior to 

trading the Shares; (3) the risks involved 

in trading the Shares during the 

Opening and Late Trading Sessions 

when an updated Portfolio Indicative 

Value will not be calculated or publicly 

disseminated; (4) how information 

regarding the Portfolio Indicative Value 

is disseminated; (5) the requirement that 

ETP Holders 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 Bulletin will 

reference that the Fund is subject to 

various fees and expenses described in 

the Registration Statement. The Bulletin 

will discuss any exemptive, no-action, 

and interpretive relief granted by the 


Tkelley on DSK3SPTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Notices 20665 

22 15 U.S.C. 78f(b)(5). 

Commission from any rules under the 

Exchange Act. The Bulletin will also 

disclose that the NAV for the Shares 

will be calculated after 4 p.m., E.T. each 

trading day. 

2. Statutory Basis 

The basis under the Exchange Act for 

this proposed rule change is the 

requirement under Section 6(b)(5) 22

that an exchange have rules that are 

designed to prevent fraudulent and 

manipulative acts and practices, to 

promote just and equitable principles of 

trade, to remove impediments to, and 

perfect the mechanism of a free and 

open market and, in general, to protect 

investors and the public interest. 

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 NYSE Arca Equities 

Rule 8.600. 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. 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. Price information for 

the ADRs, debt and equity securities 

held by the Fund, including foreign 

equity securities, and Underlying ETPs 

will be available through major market 

data vendors or securities exchanges 

listing and trading such securities. All 

equity securities, Underlying ETPs, and 

sponsored ADRs held by the Fund are 

listed on securities exchanges, all of 

which are members of ISG. The listing 

and trading of such securities is subject 

to rules of the exchanges on which they 

are listed and traded, as approved by the 

Commission. The Fund will not 

purchase illiquid securities. Further, the 

Fund will not invest in options, futures, 

or swaps. The Fund’s investments will 

be consistent with the Fund’s 

investment objective and will not be 

used to enhance leverage. Except for 

Underlying ETPs that may hold nonU.S. issues and for ADRs, the Fund will 

not otherwise invest in non-U.S. issues. 

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 Fund 

and the Shares, thereby promoting 

market transparency. Quotation and 

last-sale information for the Shares will 

be available via the CTA high-speed 

line. In addition, the Portfolio Indicative 

Value will be widely disseminated at 

least every 15 seconds during the Core 

Trading Session by one or more major 

market data vendors. On each business 

day, before commencement of trading in 

Shares in the Core Trading Session on 

the Exchange, the Fund will disclose on 

its Web site the Disclosed Portfolio that 

will form the basis for the Fund’s 

calculation of NAV at the end of the 

business day. On a daily basis, the 

Adviser will disclose for each portfolio 

security or other financial instrument of 

the Fund the following information: 

ticker symbol (if applicable), name of 

security or financial instrument, number 

of shares or dollar value of other 

securities and financial instruments 

held in the portfolio, and percentage 

weighting of the security or financial 

instrument in the portfolio. The Web 

site for the Fund will include a form of 

the prospectus for the Fund that may be 

downloaded, and additional data 

relating to NAV and other applicable 

quantitative information, updated on a 

daily basis. Moreover, prior to the 

commencement of trading, the Exchange 

will inform its ETP Holders in an 

Information Bulletin of the special 

characteristics and risks associated with 

trading the Shares. Trading in Shares of 

the Fund will be halted if the circuit 

breaker parameters in NYSE Arca 

Equities Rule 7.12 have been reached or 

because of market conditions or for 

reasons that, in the view of the 

Exchange, make trading in the Shares 

inadvisable. Trading in the Shares will 

be subject to NYSE Arca Equities Rule 

8.600(d)(2)(D), which sets forth 

circumstances under which Shares of 

the Fund may be halted. In addition, as 

noted above, investors will have ready 

access to information regarding the 

Fund’s holdings, the Portfolio 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 activelymanaged exchange-traded product that 

will enhance competition among market 

participants, to the benefit of investors 

and the marketplace. As noted above, 

the Exchange has in place surveillance 

procedures relating to trading in the 

Shares and 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 addition, as noted above, 

investors will have ready access to 

information regarding the Fund’s 

holdings, the Portfolio Indicative Value, 

the Disclosed Portfolio, and quotation 

and last-sale information for the Shares. 

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. 

C. Self-Regulatory Organization’s 

Statement on Comments on the 

Proposed Rule Change Received From 

Members, Participants, or Others 

No written comments were solicited 

or received with respect to the proposed 

rule change. 

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 (i) 

as the Commission may designate up to 

90 days of such date 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 rulecomments@sec.gov. Please include File 

Number SR–NYSEArca–2012–24 on the 

subject line. 


Tkelley on DSK3SPTVN1PROD with NOTICES
20666 Federal Register / Vol. 77, No. 66 / Thursday, April 5, 2012 / Notices 

23 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3NASDAQ previously stated that it would file a 

proposed rule change to make the NLS pilot fees 

permanent. NASDAQ has also informed 

Commission staff that it is consulting with FINRA 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–NYSEArca–2012–24. 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 

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 Section, 100 F Street NE., 

Washington, DC 20549, on official 

business days between 10 a.m. and 3 

p.m. Copies of the filing will also be 

available for inspection and copying at 

the NYSE’s principal office and on its 

Internet Web site at www.nyse.com. 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–NYSEArca–2012–24 and 

should be submitted on or before April 

26, 2012. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.23

Kevin M. O’Neill, 

Deputy Secretary. 

[FR Doc. 2012–8149 Filed 4–4–12; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–66706; File No. SR– 

NASDAQ–2012–045] 

Self-Regulatory Organizations; The 

NASDAQ Stock Market LLC; Notice of 

Filing and Immediate Effectiveness of 

Proposed Rule Change To Extend the 

Fee Pilot Program for NASDAQ Last 

Sale 

March 30, 2012. 

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 March 28, 

2012, The NASDAQ Stock Market LLC 

(‘‘NASDAQ’’ or the ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (‘‘Commission’’) a 

proposed rule change as described in 

Items I, II, and III below, which Items 

have been prepared by the Exchange. 

The Commission is publishing this 

notice to solicit comments on the 

proposed rule change from interested 

persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

NASDAQ is proposing to extend for 

three months the fee pilot pursuant to 

which NASDAQ distributes the 

NASDAQ Last Sale (‘‘NLS’’) market data 

products. NLS allows data distributors 

to have access to real-time market data 

for a capped fee, enabling those 

distributors to provide free access to the 

data to millions of individual investors 

via the internet and television. 

Specifically, NASDAQ offers the 

‘‘NASDAQ Last Sale for NASDAQ’’ and 

‘‘NASDAQ Last Sale for NYSE/Amex’’ 

data feeds containing last sale activity in 

US equities within the NASDAQ Market 

Center and reported to the FINRA/ 

NASDAQ Trade Reporting Facility 

(‘‘FINRA/NASDAQ TRF’’), which is 

jointly operated by NASDAQ and the 

Financial Industry Regulatory Authority 

(‘‘FINRA’’). The purpose of this 

proposal is to extend the existing pilot 

program for three months, from April 1, 

2012 to June 30, 2012. 

This pilot program supports the 

aspiration of Regulation NMS to 

increase the availability of proprietary 

data by allowing market forces to 

determine the amount of proprietary 

market data information that is made 

available to the public and at what 

price. During the pilot period, the 

program has vastly increased the 

availability of NASDAQ proprietary 

market data to individual investors. 

Based upon data from NLS distributors, 

NASDAQ believes that since its launch 

in July 2008, the NLS data has been 

viewed by over 50,000,000 investors on 

Web sites operated by Google, 

Interactive Data, and Dow Jones, among 

others. 

The text of the proposed rule change 

is below. Proposed new language is 

italicized; proposed deletions are in 

brackets. 

* * * * * 

7039. NASDAQ Last Sale Data Feeds 

(a) For a three month pilot period 

commencing on [January] April 1, 2012, 

NASDAQ shall offer two proprietary 

data feeds containing real-time last sale 

information for trades executed on 

NASDAQ or reported to the NASDAQ/ 

FINRA Trade Reporting Facility. 

(1)–(2) No change. 

(b)–(c) No change. 

* * * * * 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

self-regulatory organization included 

statements concerning the purpose of, 

and basis for, the proposed rule change 

and discussed any comments it received 

on the proposed rule change. The text 

of those statements may be examined at 

the places specified in Item III below. 

The Exchange has prepared summaries, 

set forth in sections A, B, and C below, 

of the most significant parts of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and the 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

Prior to the launch of NLS, public 

investors that wished to view market 

data to monitor their portfolios 

generally had two choices: (1) pay for 

real-time market data or (2) use free data 

that is 15 to 20 minutes delayed. To 

increase consumer choice, NASDAQ 

proposed a pilot to offer access to realtime market data to data distributors for 

a capped fee, enabling those distributors 

to disseminate the data at no cost to 

millions of internet users and television 

viewers. NASDAQ now proposes a 

three-month extension of that pilot 

program, subject to the same fee 

structure as is applicable today.3


Tkelley on DSK3SPTVN1PROD with NOTICES