Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Notices 46073 

a Fund under rule 12b–1 under the Act) 

received from a Fund by the Purchasing 

Fund Adviser, Trustee or Sponsor, or an 

affiliated person of the Purchasing Fund 

Adviser, Trustee or Sponsor, other than 

any advisory fees paid to the Purchasing 

Fund Adviser, Trustee or Sponsor, or its 

affiliated person by a Fund, in 

connection with the investment by the 

Purchasing Fund in the Fund. Any 

Purchasing Fund Sub-Adviser will 

waive fees otherwise payable to the 

Purchasing Fund Sub-Adviser, directly 

or indirectly, by the Purchasing 

Management Company in an amount at 

least equal to any compensation 

received from a Fund by the Purchasing 

Fund Sub-Adviser, or an affiliated 

person of the Purchasing Fund SubAdviser, other than any advisory fees 

paid to the Purchasing Fund SubAdviser or its affiliated person by the 

Fund, in connection with the 

investment by the Purchasing 

Management Company in a Fund made 

at the direction of the Purchasing Fund 

Sub-Adviser. In the event that the 

Purchasing Fund Sub-Adviser waives 

fees, the benefit of the waiver will be 

passed through to the Purchasing 

Management Company. 

14. Any sales charges and/or service 

fees charged with respect to shares of a 

Purchasing Fund will not exceed the 

limits applicable to a fund of funds as 

set forth in Conduct Rule 2830 of the 

NASD. 

15. Once an investment by a 

Purchasing Fund in the securities of a 

Fund exceeds the limit in section 

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

directors/trustees of a Fund (‘‘Board’’), 

including a majority of the disinterested 

Board members, will determine that any 

consideration paid by the Fund to a 

Purchasing Fund or a Purchasing 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 the 

Fund; (b) is within the range of 

consideration that the 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 Fund and its 

investment adviser(s), or any person 

controlling, controlled by, or under 

common control with such investment 

adviser(s). 

16. The Board, including a majority of 

the disinterested Board members, will 

adopt procedures reasonably designed 

to monitor any purchases of securities 

by a Fund in an Affiliated Underwriting 

once the investment by a Purchasing 

Fund in a 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 Purchasing Fund in a 

Fund. The Board will consider, among 

other things: (a) Whether the purchases 

were consistent with the investment 

objectives and policies of the 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 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 Fund. 

17. Each 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 of 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 a Purchasing 

Fund in shares of the 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. 

18. Before approving any advisory 

contract under section 15 of the Act, the 

board of directors or trustees of each 

Purchasing Management Company, 

including a majority of the disinterested 

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 

Fund in which the Purchasing 

Management Company may invest. 

These findings and their basis will be 

recorded fully in the minute books of 

the appropriate Purchasing Management 

Company. 

19. No Fund will acquire securities of 

any other 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, 

Acting Secretary. 

[FR Doc. E8–18151 Filed 8–6–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28349; 812–13507] 

Van Eck Associates Corporation, et al.; 

Notice of Application 

July 31, 2008. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of an application to 

amend a prior order under section 6(c) 

of the Investment Company Act of 1940 

(‘‘Act’’) to grant exemptions from 

sections 2(a)(32), 5(a)(1), 22(d), 22(e), 

and 24(d) of the Act and rule 22c–1 

under the Act, under section 12(d)(1)(J) 

of the Act for an exemption from 

sections 12(d)(1)(A) and (B) of the Act, 

and under sections 6(c) and 17(b) of the 

Act granting an exemption from sections 

17(a)(1) and (a)(2) of the Act. 

Summary of Application: Applicants 

request an order to amend a prior order 

that permits: (a) Series of an open-end 

management investment company that 

are based on equity or fixed-income 

indexes for which no entity that creates, 

compiles, sponsors, or maintains the 

indexes is or will be an affiliated 

person, or an affiliated person of an 

affiliated person, of any applicant, or 

any sub-adviser or promoter to a series, 

to issue shares that can be redeemed 

only in large aggregations; (b) secondary 

market transactions in shares to occur at 

negotiated prices; (c) dealers to sell 

shares to purchasers in the secondary 

market unaccompanied by a prospectus 

when prospectus delivery is not 

required by the Securities Act of 1933; 

(d) certain affiliated persons of the 

series to deposit securities into, and 

receive securities from, the series in 

connection with the purchase and 

redemption of large aggregations of 

shares; (e) under specified limited 


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46074 Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Notices 

1 Van Eck Associates Corporation, et al., 

Investment Company Act Release Nos. 27283 (Apr. 

7, 2006) (notice) and 27311 (May 2, 2006) (order), 

subsequently amended by Van Eck Associates 

Corporation, et al., Investment Company Act 

Release Nos. 27694 (Jan 31, 2007) (notice) and 

27742 (Feb. 27, 2007) (order), subsequently 

amended by Van Eck Associates Corporation, et al., 

Investment Company Act Release Nos. 28007 (Sept. 

28, 2007) (notice) and 28021 (Oct. 24, 2007) (order). 

2Applicants request that the amended order 

apply to any future series of the Trust that operate 

in substantially similar fashion to the New Funds 

and are based on indexes for which the Adviser 

may be deemed a sponsor due to licensing 

arrangements that are substantially identical to 

those described in the application (‘‘Future 

Funds’’). Any Future Fund will comply with the 

terms and conditions of the Prior Order as amended 

by the application. 

3The Hard Assets Indexes for the New Funds are 

The RogersTM Van Eck Hard Assets Producers 

IndexSM, The RogersTM Van Eck Hard Assets 

Producers Liquid IndexSM, The RogersTM Van Eck 

Agricultural Producers IndexSM, The RogersTM Van 

Eck Energy Producers IndexSM, and The RogersTM

Van Eck Metals Producers IndexSM. 

4The Adviser is responsible for paying all fees 

associated with the license of the Hard Assets 

Indexes from the Index Provider. The licensing 

arrangements involving the Hard Assets Indexes, 

including the VE Name License, will not directly 

or indirectly affect the fees and expenses of a New 

Fund. 

circumstances, certain series to pay 

redemption proceeds more than seven 

days after the tender of shares; and (f) 

certain registered management 

investment companies and unit 

investment trusts outside of the same 

group of investment companies as the 

series to acquire shares of the series 

(‘‘Prior Order’’).1 Applicants seek to 

amend the Prior Order in order to offer 

five new series (the ‘‘New Funds’’) 

based on equity securities indexes for 

which the investment adviser may be 

deemed a sponsor. 

Applicants: Van Eck Associates 

Corporation (‘‘Adviser’’), Market Vectors 

ETF Trust (‘‘Trust’’), and Van Eck 

Securities Corporation (‘‘Distributor’’). 

Filing Dates: The application was 

filed on March 10, 2008, and amended 

on July 10, 2008 and July 29, 2008. 

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 requested relief 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 August 22, 2008, 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 may request 

notification of a hearing by writing to 

the Commission’s Secretary. 

ADDRESSES: Secretary, U.S. Securities 

and Exchange Commission, 100 F 

Street, NE., Washington, DC 20549–

1090. Applicants, c/o the Distributor, 99 

Park Avenue, 8th Floor, New York, NY 

10016. 

FOR FURTHER INFORMATION CONTACT: 

Laura J. Riegel, Senior Counsel, at (202) 

551–6873, or Michael W. Mundt, 

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 (tel. 202–551–5850). 

Applicants’ Representations 

1. The Trust is an open-end 

management investment company 

registered under the Act and organized 

as a Delaware statutory trust. The Trust 

is organized as a series fund with 

multiple series. The Adviser, an 

investment adviser registered under the 

Investment Advisers Act of 1940 

(‘‘Advisers Act’’), will serve as 

investment adviser to the New Funds. 

The Adviser may retain sub-advisers 

(‘‘Sub-Advisers’’) to manage the assets 

of a New Fund. Any Sub-Adviser will 

be registered under the Advisers Act. 

The Distributor, a broker-dealer 

registered under the Securities 

Exchange Act of 1934, will serve as the 

principal underwriter and distributor of 

the New Funds’ shares. 

2. The applicants are currently 

permitted to offer series of the Trust 

based on equity or fixed-income 

securities indexes for which no entity 

that creates, compiles, sponsors, or 

maintains the indexes is or will be an 

‘‘affiliated person’’ (as such term is 

defined in section 2(a)(3) of the Act), or 

an affiliated person of an affiliated 

person, of the Trust, the Adviser, the 

Distributor, promoter, or any SubAdviser to the series (‘‘unaffiliated 

indexes’’) in reliance on the Prior Order 

(‘‘Current Funds’’). Applicants seek to 

amend the Prior Order to permit the 

Trust to offer the New Funds based on 

indexes for which the Adviser may be 

deemed a sponsor due to licensing 

arrangements between the Adviser and 

the Index Provider (defined below).2

3. The underlying indexes of the New 

Funds are rules-based, capitalizationweighted, float adjusted indexes 

comprised of equity securities of 

companies engaged in the production of 

certain commodities, including, but not 

limited to, industrial metals, energy 

products, precious metals and 

agricultural products (the ‘‘Hard Assets 

Indexes’’).3 Each Hard Assets Index has 

been created and will be compiled, 

sponsored, and maintained by SNetwork Global Indexes, LLC (the 

‘‘Index Provider’’). The Index Provider 

has created each Hard Assets Index in 

collaboration with James Beeland 

Rogers, Jr. (‘‘Rogers’’), the owner of 

Beeland Interests, Inc. (‘‘Beeland’’). 

None of the Index Provider, Rogers or 

Beeland is or will be an affiliated 

person, as defined in section 2(a)(3) of 

the Act, or an affiliated person of an 

affiliated person, of the Trust, the 

Adviser, any Sub-Adviser, the 

Distributor, or a promoter of a New 

Fund. 

4. The Adviser has entered into a 

licensing agreement with the Index 

Provider pursuant to which the Adviser 

will pay a licensing fee to the Index 

Provider for use of the Hard Assets 

Indexes in connection with the New 

Funds. The Adviser has also granted the 

Index Provider a license to use the ‘‘Van 

Eck’’ name in connection with each 

Hard Assets Index (‘‘VE Name 

License’’).4 Applicants state that the 

Index Provider will pay the Adviser a 

share of the revenues earned from the 

licensing of each Hard Assets Index in 

exchange for the grant of the VE Name 

License. Applicants assert that, as a 

result of the VE Name License 

arrangements, the Adviser may be 

deemed a sponsor of the Hard Assets 

Indexes and the New Funds would be 

unable to rely on the Prior Order 

without amendment. 

5. Applicants note that the restriction 

that the Prior Order apply only to series 

based on unaffiliated indexes is 

designed to address potential conflicts 

of interest. Applicants state that the 

potential conflicts relating to the 

possible manipulation of the Hard 

Assets Indexes are addressed through 

policies and procedures that require the 

Hard Assets Indexes to be transparent. 

Applicants state that the Index Provider 

will maintain a publicly available Web 

site on which it will publish the basic 

concept of each Hard Assets Index and 

disclose the composition and 

methodology for each Hard Assets Index 

(the ‘‘Index Composition Methodology), 

in addition to the components and 

weighting of the components of each 

Hard Assets Index. Applicants note that 

the identity and weightings of the 


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Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Notices 46075 

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

2 17 CFR 240.19b–4. 

3 In connection with the series of mergers (the 

‘‘Mergers’’), the Exchange has submitted related 

rule filings concerning changes to its corporate 

governance structure. See SR–Amex–2008–62 

(defining Mergers). The Exchange intends to submit 

additional rule filings addressing its rules and 

procedures for certain legacy disciplinary matters, 

equity listing requirements and procedures, and 

ETF delisting rules. The NYSE and the Financial 

Industry Regulatory Authority, Inc. (‘‘FINRA’’) will 

also be submitting companion filings concerning 

membership issues, and the NYSE will be 

submitting a related rule filing to amend NYSE Rule 

18. 

4See SR–Amex–2008–62. 

5The term ‘‘U.S. Regulated Subsidiary’’ is defined 

under Article VII, Section 7.3(G) of the Bylaws of 

NYSE Euronext. 

6 15 U.S.C. 78f. 

7See SR–Amex–2008–62. For the avoidance of 

doubt, NYSE Alternext U.S. LLC will be a separate 

self regulatory organization from NYSE Euronext’s 

European-market subsidiary, NYSE Alternext. 

component securities will be readily 

ascertainable by a third party because 

the Index Composition Methodology 

will be publicly available. 

6. In addition, although the Index 

Provider may change the rules of the 

Index Composition Methodology in the 

future, applicants state that any change 

to the Index Composition Methodology 

would not take effect until the Index 

Provider has given the Calculation 

Agent (defined below) and the public at 

least 60 days prior written notice of the 

change, disclosed on the Web site of the 

Index Provider. The ‘‘Calculation 

Agent’’ is the entity that will implement 

the Index Composition Methodology, 

calculate and maintain the Hard Assets 

Indexes, and calculate and disseminate 

the values of the Hard Assets Indexes. 

The Calculation Agent is not and will 

not be an affiliated person (as defined in 

the Act), or an affiliated person of an 

affiliated person, of the Trust, the 

Adviser, any Sub-Adviser, the 

Distributor, or a promoter of a New 

Fund. 

7. Applicants also state that the 

Adviser and the Index Provider have 

adopted policies and procedures 

designed to prevent the dissemination 

and improper use of non-public 

information in a manner similar to 

firewalls. The Adviser has adopted 

written policies and procedures in 

accordance with rule 206(4)–7 under the 

Advisers Act, including procedures 

designed to prevent and detect the 

misuse of material non-public 

information and its Code of Ethics, as 

required under rule 17j–1 under the Act 

and rule 204A–1 under the Advisers 

Act, which contains provisions 

reasonably necessary to prevent Access 

Persons (as defined in rule 17j–1) from 

trading on the basis of, improperly 

disseminating or otherwise engaging in 

any improper use of nonpublic 

information. Applicants state that the 

Index Provider has adopted a code of 

ethics forbidding its personnel, 

including Rogers, from trading on the 

basis of, improperly disseminating or 

otherwise engaging in any improper use 

of nonpublic information. 

8. Applicants state that the New 

Funds will operate in a manner 

identical to the operation of the Current 

Funds under the Prior Order, except as 

specifically noted by applicants (and 

summarized in this notice). The New 

Funds will comply with all of the terms 

and conditions of the Prior Order as 

amended by the present application. 

Applicants believe that the requested 

relief continues to meet the necessary 

exemptive standards. 

For the Commission, by the Division of 

Investment Management, pursuant to 

delegated authority. 

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–18149 Filed 8–6–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58265; File No. SR–Amex–

2008–63] 

Self-Regulatory Organizations; 

American Stock Exchange LLC; Notice 

of Filing of Proposed Rule Change 

Relating to the Relocation of Equities 

Trading After the Acquisition of the 

Exchange by NYSE Euronext 

July 30, 2008. 

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 July 28, 

2008, the American Stock Exchange LLC 

(‘‘the Amex’’ or the ‘‘Exchange’’) 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 is submitting this rule 

filing in order to implement the 

relocation (the ‘‘Equities Relocation’’) of 

all equities trading conducted on or 

through the Amex’s systems and 

facilities to the trading systems and 

facilities operated by NYSE Market, Inc., 

(‘‘NYSE’’) in connection with the 

acquisition of the Amex’s parent 

corporation, The Amex Membership 

Corporation, by NYSE Euronext. In 

connection with such acquisition, the 

Amex will be renamed NYSE Alternext 

U.S. LLC (‘‘NYSE Alternext’’). 

The text of the proposed rule change 

is available at the Amex’s principal 

office, the Commission’s Public 

Reference Room, and http:// 

www.amex.com. 

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 

Amex 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 these 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 aspects of such statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

In order to implement the Equities 

Relocation, the Exchange proposes to 

amend its existing rules as needed and 

to adopt, subject to such changes as are 

necessary to apply the rules to the 

Exchange, NYSE Rules 1–1004 

applicable to transactions conducted on 

NYSE systems and facilities and 

governing the off-floor conduct of 

members and member organizations.3

Background and Post-Merger Structure 

As described more fully in the rule 

filing concerning the Mergers,4 upon 

completion of the Mergers, the Amex 

will become one of the U.S. Regulated 

Subsidiaries 5 of NYSE Euronext and 

will continue to operate as a national 

securities exchange registered under 

Section 6 of the Act.6 Following the 

Mergers, the name of the new exchange 

will be NYSE Alternext U.S. LLC.7

Following the Mergers, the Exchange 

will relocate all equities trading 

currently conducted on the Exchange 

legacy trading systems and facilities 

located at 86 Trinity Place, New York, 


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