Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 9449 

Any Acquiring Fund Subadvisor will 

waive fees otherwise payable to the 

Acquiring Fund Subadvisor, directly or 

indirectly, by the Acquiring 

Management Company in an amount at 

least equal to any compensation 

received from a Single-Tier Fund by the 

Acquiring Fund Subadvisor, or an 

affiliated person of the Acquiring Fund 

Subadvisor, other than any advisory fees 

paid to the Acquiring Fund Subadvisor 

or its affiliated person by a Single-Tier 

Fund, in connection with any 

investment by the Acquiring 

Management Company in such SingleTier Fund made at the direction of the 

Acquiring Fund Subadvisor. In the 

event that the Acquiring Fund 

Subadvisor waives fees, the benefit of 

the waiver will be passed through to the 

Acquiring Management Company. 

13. Any sales charges and/or service 

fees charged with respect to shares of an 

Acquiring Fund will not exceed the 

limits applicable to a fund of funds as 

set forth in NASD Conduct Rule 2830. 

14. Once an investment by an 

Acquiring Fund in the securities of a 

Single-Tier Fund exceeds the limit in 

Section 12(d)(1)(A)(i) of the Act, the 

board of directors or trustees of a Fund 

(‘‘Board’’), including a majority of the 

directors or trustees that are not 

‘‘interested persons’’ within the 

meaning of Section 2(a)(19) of the Act 

(‘‘independent trustees’’), will 

determine that any consideration paid 

by such Single-Tier Fund to an 

Acquiring Fund or Acquiring Fund 

Affiliate in connection with any services 

or transactions: (a) Is fair and reasonable 

in relation to the nature and quality of 

the services and benefits received by 

such Single-Tier Fund; (b) is within the 

range of consideration that such SingleTier Fund would be required to pay to 

another unaffiliated entity in connection 

with the same services or transactions; 

and (c) does not involve overreaching 

on the part of any person concerned. 

This condition does not apply with 

respect to any services or transactions 

between a Single-Tier Fund and its 

investment adviser(s), or any person 

controlling, controlled by, or under 

common control with such investment 

adviser. 

15. The Board, including a majority of 

the independent trustees, will adopt 

procedures reasonably designed to 

monitor any purchases of securities by 

a Single-Tier Fund in an Affiliated 

Underwriting once an investment by an 

Acquiring Fund in the securities of such 

Single-Tier Fund exceeds the limit of 

Section 12(d)(1)(A)(i) of the Act, 

including any purchases made directly 

from an Underwriting Affiliate. The 

Board will review these purchases 

periodically, but no less frequently than 

annually, to determine whether the 

purchases were influenced by the 

investment by the Acquiring Fund in 

the Single-Tier Fund. The Board will 

consider, among other things: (a) 

Whether the purchases were consistent 

with the investment objectives and 

policies of the Single-Tier Fund; (b) how 

the performance of securities purchased 

in an Affiliated Underwriting compares 

to the performance of comparable 

securities purchased during a 

comparable period of time in 

underwritings other than Affiliated 

Underwritings or to a benchmark such 

as a comparable market index; and (c) 

whether the amount of securities 

purchased by the Single-Tier Fund in 

Affiliated Underwritings and the 

amount purchased directly from an 

Underwriting Affiliate have changed 

significantly from prior years. The 

Board will take any appropriate actions 

based on its review, including, if 

appropriate, the institution of 

procedures designed to assure that 

purchases of securities in Affiliated 

Underwritings are in the best interests 

of shareholders of the Single-Tier Fund. 

16. Each Single-Tier Fund will 

maintain and preserve permanently in 

an easily accessible place a written copy 

of the procedures described in the 

preceding condition, and any 

modifications to such procedures, and 

will maintain and preserve for a period 

not less than six years from the end of 

the fiscal year in which any purchase in 

an Affiliated Underwriting occurred, the 

first two years in an easily accessible 

place, a written record of each purchase 

of securities in Affiliated Underwritings, 

once an investment by an Acquiring 

Fund in the Shares of the Single-Tier 

Fund exceeds the limit of Section 

12(d)(1)(A)(i) of the Act, setting forth 

from whom the securities were 

acquired, the identity of the 

underwriting syndicate’s members, the 

terms of the purchase, and the 

information or materials upon which 

the Board’s determinations were made. 

17. Before approving any advisory 

contract under Section 15 of the Act, the 

board of directors or trustees of each 

Acquiring Management Company, 

including a majority of the independent 

directors or trustees, will find that the 

advisory fees charged under such 

contract are based on services provided 

that will be in addition to, rather than 

duplicative of, the services provided 

under the advisory contract(s) of any 

Single-Tier Fund in which the 

Acquiring Management Company may 

invest. These findings and their basis 

will be recorded fully in the minute 

books of the appropriate Acquiring 

Management Company. 

18. No Single-Tier Fund will acquire 

securities of any investment company or 

companies relying on Sections 3(c)(1) or 

3(c)(7) of the Act in excess of the limits 

contained in Section 12(d)(1)(A) of the 

Act. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–4602 Filed 3–3–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

Sunshine Act Meeting 

Notice is hereby given, pursuant to 

the provisions of the Government in the 

Sunshine Act, Public Law 94–409, that 

the Securities and Exchange 

Commission will hold a Closed Meeting 

on Thursday, March 5, 2009 at 2 p.m. 

Commissioners, Counsel to the 

Commissioners, the Secretary to the 

Commission, and recording secretaries 

will attend the Closed Meeting. Certain 

staff members who have an interest in 

the matters also may be present. 

The General Counsel of the 

Commission, or his designee, has 

certified that, in his opinion, one or 

more of the exemptions set forth in 5 

U.S.C. 552b(c)(5), (7), 9(B) and (10) and 

17 CFR 200.402(a)(5), (7), 9(ii) and (10), 

permit consideration of the scheduled 

matters at the Closed Meeting. 

Commissioner Casey, as duty officer, 

voted to consider the items listed for the 

Closed Meeting in closed session and 

determined that no earlier notice thereof 

was possible. 

The subject matter of the Closed 

Meeting scheduled for Thursday, March 

5, 2009 will be: 

Institution and settlement of injunctive 

actions; 

Institution and settlement of 

administrative proceedings of an 

enforcement nature; 

Other matters relating to enforcement 

proceedings. 

At times, changes in Commission 

priorities require alterations in the 

scheduling of meeting items. 

For further information and to 

ascertain what, if any, matters have been 

added, deleted or postponed, please 

contact: 

The Office of the Secretary at (202) 

551–5400. 

9450 Federal Register / Vol. 74, No. 41 / Wednesday, March 4, 2009 / Notices 

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

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4 15 U.S.C. 78s(b)(3)(A)(iii). 

5 17 CFR 240.19b–4(f)(6). 

6Amendment No. 1 removed unnecessary 

language regarding the operative date of the 

proposed rule change. 

7See SR–NYSE–2009–14 (submitted on February 

5, 2009). 

8See Securities Exchange Act Release No. 58673 

(September 29, 2008), 73 FR 57707 (October 3, 

2008) (SR–NYSE–2008–60 and SR–Amex 2008–62) 

(approving the Merger). 

9 15 U.S.C. 78f. 

10See Securities Exchange Act Release No. 58705 

(October 1, 2008), 73 FR 58995 (October 8, 2008) 

(SR–Amex 2008–63) (approving the Equities 

Relocation). 

11See Securities Exchange Act Release No. 58705 

(October 1, 2008), 73 FR 58995 (October 8, 2008) 

(SR–Amex 2008–63); Securities Exchange Act 

Release No. 58833 (October 22, 2008), 73 FR 64642 

(October 30, 2008) (SR–NYSE–2008–106); 

Securities Exchange Act Release No. 58839 (October 

23, 2008), 73 FR 64645 (October 30, 2008) (SR– 

NYSEALTR–2008–03); Securities Exchange Act 

Release No. 59022 (November 26, 2008), 73 FR 

73683 (December 3, 2008) (SR–NYSEALTR–2008– 

10); and Securities Exchange Act Release No. 59027 

(November 28, 2008), 73 FR 73681 (December 3, 

2008) (SR–NYSEALTR–2008–11). 

12See Securities Exchange Act Release No. 59096 

(December 12, 2008), 73 FR 77085 (December 18, 

2008) (SR–FINRA–2008–044). 

Dated: February 26, 2009. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. E9–4564 Filed 3–3–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59451; File No. SR– 

NYSEALTR–2009–10] 

Self-Regulatory Organizations; Notice 

of Filing and Immediate Effectiveness 

of Proposed Rule Change and 

Amendment No. 1 Thereto by NYSE 

Alternext US LLC Amending Rule 472– 

NYSE Alternext Equities 

(Communications With the Public) 

February 25, 2009. 

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

Securities Exchange Act of 1934 (the 

‘‘Act’’) 2 and Rule 19b–4 thereunder,3

notice is hereby given that, on February 

5, 2009, NYSE Alternext US LLC (the 

‘‘Exchange’’ or ‘‘NYSE Alternext’’) filed 

with the Securities and Exchange 

Commission (the ‘‘Commission’’) the 

proposed rule change as described in 

Items I and II, below, which Items have 

been prepared by the self-regulatory 

organization. The Exchange filed the 

proposal as a ‘‘non-controversial’’ 

proposed rule change pursuant to 

Section 19(b)(3)(A)(iii) of the Act 4 and 

Rule 19b–4(f)(6) thereunder.5 NYSE 

Alternext filed Amendment No. 1 to the 

proposed rule change on February 12, 

2009.6 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 amend 

Rule 472–NYSE Alternext Equities to 

conform with proposed amendments to 

corresponding NYSE Rule 472 

submitted in a companion filing by the 

New York Stock Exchange LLC 

(‘‘NYSE’’).7

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 the 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The purpose of the proposed rule 

change is to amend Rule 472–NYSE 

Alternext Equities to conform with 

proposed amendments to corresponding 

NYSE Rule 472, submitted in a 

companion filing by the NYSE, which 

itself conforms with amendments to 

corresponding FINRA Incorporated 

NYSE Rule 472 recently filed by FINRA 

and approved by the Commission. 

Background 

As described more fully in a related 

rule filing,8 NYSE Euronext acquired 

The Amex Membership Corporation 

(‘‘AMC’’) pursuant to an Agreement and 

Plan of Merger, dated January 17, 2008 

(the ‘‘Merger’’). In connection with the 

Merger, the Exchange’s predecessor, the 

American Stock Exchange LLC 

(‘‘Amex’’), a subsidiary of AMC, became 

a subsidiary of NYSE Euronext called 

NYSE Alternext US LLC, and continues 

to operate as a national securities 

exchange registered under Section 6 of 

the Act.9 The effective date of the 

Merger was October 1, 2008. 

In connection with the Merger, on 

December 1, 2008, the Exchange 

relocated all equities trading conducted 

on the Exchange legacy trading systems 

and facilities located at 86 Trinity Place, 

New York, New York, to trading systems 

and facilities located at 11 Wall Street, 

New York, New York (the ‘‘Equities 

Relocation’’). The Exchange’s equity 

trading systems and facilities at 11 Wall 

Street (the ‘‘NYSE Alternext Trading 

Systems’’) are operated by the NYSE on 

behalf of the Exchange.10

As part of the Equities Relocation, 

NYSE Alternext adopted NYSE Rules 1– 

1004, subject to such changes as 

necessary to apply the Rules to the 

Exchange, as the NYSE Alternext 

Equities Rules to govern trading on the 

NYSE Alternext Trading Systems.11 The 

NYSE Alternext Equities Rules, which 

became operative on December 1, 2008, 

are substantially identical to the current 

NYSE Rules 1–1004 and the Exchange 

continues to update the NYSE Alternext 

Equities Rules as necessary to conform 

with rule changes to corresponding 

NYSE Rules filed by the NYSE. 

Proposed Conforming Amendments to 

NYSE Alternext Equities Rules 

As noted above, the Exchange 

proposes to amend Rule 472—NYSE 

Alternext Equities to conform with 

proposed amendments to corresponding 

NYSE Rule 472 submitted in a 

companion filing by the NYSE. As 

discussed in more detail below, the 

NYSE is filing the proposed rule change 

to harmonize NYSE Rule 472 with 

changes to corresponding Incorporated 

NYSE Rule 472 recently filed by the 

Financial Industry Regulatory 

Authority, Inc. (‘‘FINRA’’) and approved 

by the Commission.12 The Exchange is 

proposing to adopt the NYSE’s proposed 

rule change in the form that it was filed 

with the Commission, subject to such 

technical changes as are necessary to 

apply the changes to the Exchange. The 

Exchange further proposes that the 

operative date of the rule change be the 

same as the operative date of the NYSE’s 

proposed rule change, on which this 

filing is based. 

FINRA amended NASD Rules 2210 

(Communications with the Public) and 

2211 (Institutional Sales Material and 

Correspondence) and FINRA 

Incorporated NYSE Rule 472 

(Communications with the Public) to 

remove, in certain circumstances, the