13276 Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Notices 

1 $63/hour figure for a Compliance Clerk is from 

SIFMA’s Office Salaries in the Securities Industry 

2008, modified by Commission staff to account for 

an 1800-hour work-year and multiplied by 2.93 to 

account for bonuses, firm size, employee benefits 

and overhead. 

1Applicants request that any relief granted 

pursuant to the application also apply to any other 

company of which UBS AG is or may become an 

affiliated person (together with the Applicants, the 

‘‘Covered Persons’’). 

contracts to certain employees of Texas 

institutions of higher education 

participating in the Texas Optional 

Retirement Program. There are 

approximately 100 registrants governed 

by Rule 6c–7. The burden of compliance 

with Rule 6c–7, in connection with the 

registrants obtaining from a purchaser, 

prior to or at the time of purchase, a 

signed document acknowledging the 

restrictions on redeemability imposed 

by Texas law, is estimated to be 

approximately 3 minutes of professional 

time per response for each of 

approximately 3000 purchasers 

annually (at an estimated $63 per 

hour),1 for a total annual burden of 150 

hours (at a total annual cost of $9,450). 

The estimate of average burden hours 

is made solely for the purposes of the 

Paperwork Reduction Act, and is not 

derived from a comprehensive or even 

a representative survey or study of the 

costs of Commission rules or forms. The 

Commission does not include in the 

estimate of average burden hours the 

time preparing registration statements 

and sales literature disclosure regarding 

the restrictions on redeemability 

imposed by Texas law. The estimate of 

burden hours for completing the 

relevant registration statements are 

reported on the separate PRA 

submissions for those statements. (See 

the separate PRA submissions for Form 

N–3 (17 CFR 274.11b) and Form N–4 (17 

CFR 274.11c).) 

The Commission requests written 

comments on: (a) Whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; (b) the accuracy of the 

agency’s estimate of the burden of the 

collection of information; (c) ways to 

enhance the quality, utility, and clarity 

of the information collected; and (d) 

ways to minimize the burden of the 

collection of information on 

respondents, including through the use 

of automated collection techniques or 

other forms of information technology. 

Consideration will be given to 

comments and suggestions submitted in 

writing within 60 days of this 

publication. 

Please direct your written comments 

to Charles Boucher, Director/CIO, 

Securities and Exchange Commission, 

C/O Shirley Martinson, 6432 General 

Green Way, Alexandria, VA 22312; or 

send an e-mail to: 

PRA_Mailbox@sec.gov. 

Dated: March 20, 2009. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–6723 Filed 3–25–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. IC—28652; 812–13645] 

UBS AG, et al.; Notice of Application 

and Temporary Order 

March 19, 2009. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Temporary order and notice of 

application for a permanent order under 

section 9(c) of the Investment Company 

Act of 1940 (‘‘Act’’). 

Summary of Application: Applicants 

have received a temporary order 

exempting them from section 9(a) of the 

Act, with respect to an injunction 

entered against UBS AG on March 19, 

2009 by the United States District Court 

for the District of Columbia 

(‘‘Injunction’’) until the Commission 

takes final action on an application for 

a permanent order. Applicants also have 

applied for a permanent order. 

Applicants: UBS AG; UBS Financial 

Services Inc. (‘‘UBSFS’’); UBS Fund 

Advisor, L.L.C. (‘‘UBSFA’’); UBS 

Willow Management, L.L.C. (‘‘UBS 

Willow’’), UBS Eucalyptus 

Management, L.L.C., UBS Tamarack 

Management, L.L.C., UBS Juniper 

Management, L.L.C., and UBS Enso 

Management, L.L.C. (collectively, 

‘‘UBSFA Advisers’’); UBS Global Asset 

Management (Americas) Inc. (‘‘UBS 

Global AM Americas’’); UBS Global 

Asset Management (US) Inc. (‘‘UBS 

Global AM US’’); and UBS IB CoInvestment 2001 GP Limited (‘‘ESC GP’’) 

(collectively, ‘‘Applicants’’).1

Filing Dates: The application was 

filed on March 19, 2009. Applicants 

have agreed to file an amendment 

during the notice period, the substance 

of which is reflected in this notice. 

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, U.S. Securities 

and Exchange Commission, 100 F 

Street, NE., Washington, DC 20549– 

1090; Applicants: UBS AG and ESC GP, 

c/o UBS Investment Bank, 677 

Washington Boulevard, Stamford, CT 

06901; UBSFS, 1200 Harbor Boulevard, 

Weehawken, NJ 07086; UBSFA and 

UBSFA Advisers, 51 West 52nd Street, 

23rd Floor, New York, NY 10019; UBS 

Global AM US, 51 West 52nd Street, 

16th Floor, New York, NY 10019; UBS 

Global AM Americas, One North 

Wacker Drive, Chicago, IL 60606. 

FOR FURTHER INFORMATION CONTACT: John 

Yoder, Senior Counsel, at 202–551– 

6878, or Marilyn Mann, Branch Chief, at 

202–551–6821 (Division of Investment 

Management, Office of Investment 

Company Regulation). 

SUPPLEMENTARY INFORMATION: The 

following is a temporary order and 

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 (tel. 202– 

551–5850). 

Applicants’ Representations 

1. UBS AG is a company established 

under the laws of Switzerland that 

directly or through its subsidiaries 

provides global wealth management, 

securities and retail and commercial 

banking services. Each of the Applicants 

is either directly or indirectly controlled 

by UBS AG. UBS AG and ESC GP 

provide investment advisory services to 

employees’ securities companies 

(‘‘ESCs’’), as defined in section 2(a)(13) 

of the Act, which provide investment 

opportunities for highly compensated 

key employees, officers, directors and 

current consultants of UBS AG and its 

affiliates. UBSFS, UBSFA, UBSFA 

Advisers and UBS Global AM Americas 

are registered as investment advisers 

under the Investment Advisers Act of 

1940 (‘‘Advisers Act’’) and currently 

serve as investment advisers to 

registered management investment 

companies (‘‘Funds’’). UBSFS is 

registered as a broker-dealer under the 

Securities Exchange Act of 1934 

Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Notices 13277 

2Securities and Exchange Commission v. UBS 

AG, Judgment as to UBS AG, 1:09–CV–00316 

(D.D.C.) (entered March 19, 2009). 

(‘‘Exchange Act’’) and acts as depositor 

and principal underwriter to various 

registered unit investment trusts 

(‘‘UITs’’). UBS Global AM US is 

registered as a broker-dealer under the 

Exchange Act and as an investment 

adviser under the Advisers Act and 

serves as principal underwriter to 

various open-end Funds. 

2. On March 19, 2009, the United 

States District Court for the District of 

Columbia entered a judgment, which 

included the Injunction, against UBS 

AG (‘‘Judgment’’) in a matter brought by 

the Commission.2 The Commission 

alleged in the complaint (‘‘Complaint’’) 

that UBS AG violated section 15(a) of 

the Exchange Act and section 203(a) of 

the Advisers Act by acting as an 

unregistered broker-dealer and 

investment adviser. The Complaint 

alleged that UBS AG, largely through 

individuals known as client advisers, 

used United States jurisdictional means 

to provide cross-border brokerage and 

investment advisory services to 

thousands of United States clients. The 

Complaint further alleged that this 

cross-border business was serviced 

primarily from Switzerland. The 

Complaint further alleged that at all 

times UBS AG was aware that it could 

provide these services to United States 

cross-border clients only through an 

entity registered with the Commission 

as a broker-dealer or investment adviser. 

Without admitting or denying any of the 

allegations in the Complaint, except as 

to jurisdiction, UBS AG consented to 

the entry of the Injunction, the payment 

of disgorgement and certain 

undertakings to take various remedial 

actions. 

Applicants’ Legal Analysis 

1. Section 9(a)(2) of the Act, in 

relevant part, prohibits a person who 

has been enjoined from engaging in or 

continuing any conduct or practice in 

connection with the purchase or sale of 

a security, or in connection with 

activities as an underwriter, broker or 

dealer, from acting, among other things, 

as an investment adviser or depositor of 

any registered investment company or a 

principal underwriter for any registered 

open-end investment company, 

registered unit investment trust, or 

registered face-amount certificate 

company. Section 9(a)(3) of the Act 

makes the prohibition in section 9(a)(2) 

applicable to a company, any affiliated 

person of which has been disqualified 

under the provisions of section 9(a)(2). 

Section 2(a)(3) of the Act defines 

‘‘affiliated person’’ to include, among 

others, any person directly or indirectly 

controlling, controlled by, or under 

common control, with the other person. 

Applicants state that UBS AG is an 

affiliated person of each of the other 

Applicants within the meaning of 

section 2(a)(3). Applicants state that, as 

a result of the Injunction, they would be 

subject to the prohibitions of section 

9(a). 

2. Section 9(c) of the Act provides that 

the Commission shall grant an 

application for exemption from the 

disqualification provisions of section 

9(a) of the Act if it is established that 

these provisions, as applied to 

Applicants, are unduly or 

disproportionately severe or that the 

conduct of the Applicants has been such 

as not to make it against the public 

interest or the protection of investors to 

grant the exemption. Applicants have 

filed an application pursuant to section 

9(c) seeking a temporary and permanent 

order exempting the Applicants and the 

other Covered Persons from the 

disqualification provisions of section 

9(a). 

3. Applicants believe that they meet 

the standards for exemption specified in 

section 9(c). Applicants state that the 

prohibitions of section 9(a) as applied to 

them would be unduly and 

disproportionately severe and that the 

conduct of Applicants has been such as 

not to make it against the public interest 

or the protection of investors to grant 

the requested exemption from section 

9(a). 

4. Applicants state that the alleged 

conduct giving rise to the Injunction did 

not involve any of the Applicants acting 

in the capacity of investment adviser, 

sub-adviser or depositor to any 

registered investment company or ESC, 

or in the capacity of principal 

underwriter for any open-end Fund or 

UIT (‘‘Fund Service Activities’’). 

Applicants note that none of the current 

or former directors, officers, or 

employees of the Applicants (other than 

UBS AG) had any knowledge of, or had 

any involvement in, the conduct alleged 

in the Complaint. Applicants further 

state that the personnel at UBS AG who 

were involved in the violations alleged 

in the Complaint have had no and will 

not have any future involvement in 

Fund Service Activities. 

5. Applicants state that the inability of 

the Applicants to engage in Fund 

Service Activities would result in 

potentially severe financial hardships 

for the registered investment companies 

they serve and the registered investment 

companies’ shareholders or unitholders. 

Applicants state that they will distribute 

written materials, including an offer to 

meet in person to discuss the materials, 

to the boards of directors of the Funds 

(the ‘‘Boards’’), including the directors 

who are not ‘‘interested persons,’’ as 

defined in section 2(a)(19) of the Act, of 

the Funds, and their independent legal 

counsel as defined in rule 0–1(a)(6) 

under the Act, if any, regarding the 

Injunction, any impact on the Funds, 

and the application. Applicants state 

that they will provide the Boards with 

all information concerning the 

Injunction and the application that is 

necessary for the Funds to fulfill their 

disclosure and other obligations under 

the federal securities laws. 

6. Applicants also state that, if they 

were barred from providing Fund 

Service Activities to registered 

investment companies and ESCs, the 

effect on their businesses and 

employees would be severe. Applicants 

state that they have committed 

substantial resources to establishing an 

expertise in providing Fund Service 

Activities. Applicants further state that 

prohibiting them from providing Fund 

Service Activities would not only 

adversely affect their businesses, but 

would also adversely affect over 425 

employees that are involved in those 

activities. Applicants also state that 

disqualifying UBS AG and ESC GP from 

continuing to provide investment 

advisory services to ESCs is not in the 

public interest or in furtherance of the 

protection of investors. Because the 

ESCs have been formed for the benefit 

of key employees, officers, directors and 

current consultants of UBS AG and its 

affiliates, it would not be consistent 

with the purposes of the ESC provisions 

of the Act to require another entity not 

affiliated with UBS AG to manage the 

ESCs. In addition, participants in the 

ESCs have subscribed for interests in the 

ESCs with the expectation that the ESCs 

would be managed by an affiliate of 

UBS AG. 

7. Applicants state that UBS AG and 

certain other Applicants have 

previously received orders under 

section 9(c), as described in greater 

detail in the application. 

Applicants’ Condition 

Applicants agree that any order 

granting the requested relief will be 

subject to the following condition: 

Any temporary exemption granted 

pursuant to the application shall be 

without prejudice to, and shall not limit 

the Commission’s rights in any manner 

with respect to, any Commission 

investigation of, or administrative 

proceedings involving or against, 

Covered Persons, including without 

limitation, the consideration by the 

Commission of a permanent exemption 

13278 Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Notices 

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

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4See Securities Exchange Release No. 54767 

(November 16, 2006), 71 FR 67680 (November 22, 

2006) (SR–NYSE–04–69). 

5 15 U.S.C. 78f. 

6 15 U.S.C. 78a 

7 15 U.S.C. 78f(b)(4). 

from section 9(a) of the Act requested 

pursuant to the application or the 

revocation or removal of any temporary 

exemptions granted under the Act in 

connection with the application. 

Temporary Order: 

The Commission has considered the 

matter and finds that the Applicants 

have made the necessary showing to 

justify granting a temporary exemption. 

Accordingly, 

It is hereby ordered, pursuant to 

section 9(c) of the Act, that Applicants 

and any other Covered Persons are 

granted a temporary exemption from the 

provisions of section 9(a), solely with 

respect to the Injunction, subject to the 

condition in the application, from 

March 19, 2009, until the Commission 

takes final action on their application 

for a permanent order. 

By the Commission. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–6655 Filed 3–25–09; 8:45 am] 

BILLING CODE 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59608; File No. SR–NYSE– 

2009–31] 

Self-Regulatory Organizations; Notice 

of Filing of Proposed Rule Change by 

New York Stock Exchange LLC 

Amending the Listed Company Manual 

Section 902.08 To Establish an Initial 

Listing Fee and an Annual Listing Fee 

for Securities Listed Under Section 

102.03 and Traded on the NYSE Bonds 

System 

March 19, 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 March 

16, 2009, New York Stock Exchange 

LLC (‘‘NYSE’’ or the ‘‘Exchange’’) filed 

with the Securities and Exchange 

Commission (the ‘‘Commission’’) the 

proposed rule change as described in 

Items I, II, and III below, which Items 

have been prepared by the selfregulatory organization. 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 the 

Listed Company Manual (the ‘‘Manual’’) 

Section 902.08 to establish an initial 

listing fee and an annual listing fee for 

all securities listed under Section 

102.03 and traded on NYSE BondsSM 

system (‘‘NYSE Bonds’’). The text of the 

proposed rule change is available on the 

Exchange’s Web site (http:// 

www.nyse.com), at the Exchange’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, 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 amend the 

Listed Company Manual (the ‘‘Manual’’) 

Section 902.08 to establish an initial 

listing fee and an annual listing fee for 

all securities listed under Section 

102.03 and traded on NYSE BondsSM 

system (‘‘NYSE Bonds’’). Specifically, 

the Exchange seeks to implement an 

initial listing fee of $5,000 and an 

annual listing fee of $5,000 for the 

securities listed in Section 102.03 of the 

Manual. 

I. Background 

Currently, the Exchange imposes a 

$15,000 listing fee for bonds and other 

fixed income debt securities that list on 

the Exchange pursuant to Section 

102.03 of the Manual. Specifically, the 

Exchange charges the $15,000 listing fee 

to non-NYSE issuers. 

NYSE issuers, however, are not 

charged any listing fee for these bonds 

and other fixed income debt securities. 

In November 2006, the Exchange filed a 

proposed rule change establishing rules 

for the trading of unlisted debt 

securities on NYSE Bonds.4

Specifically, this filing established 

NYSE Rules 1400 and 1401 in 

connection with the NYSE Exemption 

Request. As a result of the November 

2006 rule filing, NYSE issuers were 

permitted to trade their unlisted bonds 

on the Exchange. Non-NYSE issuers, 

however, would not be permitted to 

trade their bonds on NYSE Bonds unless 

they were listed on the Exchange. 

II. Proposed Amendments 

The Exchange now proposes to amend 

the listing fees for NYSE and non-NYSE 

issuers. Under amended Section 902.08 

of the Manual, the initial listing fee for 

non-NYSE issuers of bonds and other 

fixed income debt securities that list on 

the Exchange pursuant to Section 

102.03 of the Manual will be a flat fee 

of $5,000. The annual listing fee for 

these bonds and other fixed income debt 

securities will also be $5,000.00. If an 

NYSE issuer opts to have its bonds or 

other fixed income debt securities listed 

on the Exchange, the NYSE issuer will 

be subject to the $5,000 initial listing fee 

and $5,000 annual listing fee. These fees 

will cover administrative and regulatory 

costs incurred by the Exchange. If an 

NYSE issuer does not choose to have its 

bonds or other fixed income debt 

securities listed on the Exchange, then 

the NYSE issuer is exempt from paying 

any listing fees but may still trade its 

bonds on the Exchange. 

Because revenue is needed to pay for 

the operation and regulation of these 

listings, the Exchange has determined 

that the proposed $5,000 initial and 

$5,000 annual listing fees provide an 

attractive pricing strategy to its 

customers and is sufficient for covering 

the Exchange’s costs to provide its 

services to the issuers. 

U.S. Government issues are exempt 

from securities registration under the 

Securities and Exchange Act of 1934. 

Because these U.S. Government issues 

are not subject to the Acts’ listing 

requirements, the Exchange is not 

required to perform an administrative 

and regulatory review of these listed 

bonds. Accordingly, U.S. Government 

issues will continue to list on the 

Exchange free of charge, as set forth in 

Section 902.08 of the Manual. 

2. Statutory Basis 

The Exchange believes that the 

proposed rule change is consistent with 

the provisions of Section 6 5 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’) 6 in general and Section 6(b)(4) of 

the Act 7 in particular, in that it is 

designed to provide for the equitable 

allocation of reasonable dues, fees and 

other charges among its members and 

other persons using its facilities. The