55568 Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 

1Applicants request relief with respect to existing 

and future series of the Trust and any other existing 

or future registered open-end management 

investment company or series thereof that: (a) Is 

advised by the Adviser or a person controlling, 

controlled by, or under common control with the 

Adviser or its successors; (b) uses the management 

structure described in the application; and (c) 

complies with the terms and conditions of the 

application (collectively, the ‘‘Funds’’). For 

purposes of the requested order, ‘‘successor’’ is 

limited to an entity or entities that result from a 

reorganization into another jurisdiction or a change 

in the type of business organization. The only 

existing registered open-end management 

investment company that currently intends to rely 

on the requested order is named as an applicant. If 

the name of any Fund contains the name of a 

Subadviser (as defined below), the name of the 

Adviser or the name of the entity controlling, 

controlled by, or under common control with the 

Adviser that serves as the primary adviser to the 

Fund will precede the name of the Subadviser. 

above condition only so long as the 

amount of Triangle’s total consolidated 

assets invested in assets other than (a) 

securities issued by Triangle SBIC or (b) 

securities similar to those in which 

Triangle SBIC invests, does not exceed 

10%. 

For the Commission, by the Division of 

Investment Management, pursuant to 

delegated authority. 

Jill M. Peterson, 

Assistant Secretary. 

[FR Doc. E8–22508 Filed 9–24–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28382; 812–13514] 

Trust for Professional Managers, et al.; 

Notice of Application 

September 19, 2008. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of an application under 

section 6(c) of the Investment Company 

Act of 1940 (‘‘Act’’) for an exemption 

from section 15(a) of the Act and rule 

18f–2 under the Act, as well as from 

certain disclosure requirements. 

SUMMARY OF APPLICATION: Applicants 

request an order that would permit them 

to enter into and materially amend 

subadvisory agreements without 

shareholder approval and would grant 

relief from certain disclosure 

requirements. 

APPLICANTS: Trust for Professional 

Managers (the ‘‘Trust’’) and Ascentia 

Capital Partners, LLC (the ‘‘Adviser’’). 

FILING DATES: The application was filed 

on March 31, 2008, and amended on 

August 14, 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 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 October 14, 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 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, 615 East Michigan 

Street, Milwaukee, WI 53202. 

FOR FURTHER INFORMATION CONTACT: 

Steven I. Amchan, Attorney Adviser, at 

(202) 551–6826, or Mary Kay Frech, 

Branch Chief, at (202) 551–6821 

(Division of Investment Management, 

Office of Investment Company 

Regulation). 

SUPPLEMENTARY INFORMATION: The 

following is a summary of the 

application. The complete application 

may be obtained for a fee at the 

Commission’s Public Reference Room, 

100 F Street, NE, Washington, DC 

20549–1520 (telephone (202) 551–5850). 

Applicants’ Representations 

1. The Trust, a Delaware statutory 

trust organized as a series investment 

company, is registered under the Act as 

an open-end management investment 

company and currently offers 22 series, 

one of which, Ascentia Alternative 

Strategies Fund, is advised by the 

Adviser (the ‘‘Fund’’).1 The Adviser, a 

limited liability company organized 

under Nevada law, is registered as an 

investment adviser under the 

Investment Advisers Act of 1940 

(‘‘Advisers Act’’), and serves as 

investment adviser to the Fund under 

an investment advisory agreement with 

the Trust (‘‘Advisory Agreement’’) that 

has been approved by the shareholders 

of the Fund and the Trust’s board of 

trustees (‘‘Board’’), including a majority 

of the trustees who are not ‘‘interested 

persons,’’ as defined in section 2(a)(19) 

of the Act, of either the Trust or the 

Adviser (‘‘Independent Trustees’’). 

2. Under the terms of the Advisory 

Agreement, the Adviser provides the 

Fund with overall management services 

and continuously reviews, supervises 

and administers the Fund’s investment 

program, subject to the supervision of, 

and policies established by, the Board. 

For the investment management 

services it provides to the Fund, the 

Adviser receives the fee specified in the 

Advisory Agreement from the Fund. 

The Advisory Agreement also permits 

the Adviser, subject to the approval of 

the Board and Fund shareholders, to 

enter into investment subadvisory 

agreements (‘‘Subadvisory Agreements’’) 

with one or more subadvisers 

(‘‘Subadvisers’’). The Adviser has 

entered into Subadvisory Agreements 

with various Subadvisers to provide 

investment advisory services to the 

Fund. Each Subadviser is, and every 

future Subadviser will be, registered as 

an investment adviser under the 

Advisers Act. The Adviser monitors and 

evaluates the Subadvisers and 

recommends to the Board their hiring, 

retention or termination. Subadvisers 

recommended to the Board by the 

Adviser are selected and approved by 

the Board, including a majority of the 

Independent Trustees. Each Subadviser 

has discretionary authority to invest the 

assets or a portion of the assets of a 

particular Fund. The Adviser 

compensates each Subadviser out of the 

fees paid to the Adviser under the 

Advisory Agreement. 

3. Applicants request an order to 

permit the Adviser, subject to Board 

approval, to enter into and materially 

amend Subadvisory Agreements 

without obtaining shareholder approval. 

The requested relief will not extend to 

any Subadviser who is an affiliated 

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

the Act, of the Trust or of the Adviser, 

other than by reason of serving as a 

Subadviser to one or more Funds 

(‘‘Affiliated Subadviser’’). 

4. Applicants also request an 

exemption from the various disclosure 

provisions described below that may 

require the Funds to disclose fees paid 

by the Adviser to each Subadviser. An 

exemption is requested to permit the 

Trust to disclose for each Fund (as both 

a dollar amount and as a percentage of 

the Fund’s net assets): (a) The aggregate 

fees paid to the Adviser and any 

Affiliated Subadviser; and (b) the 

aggregate fees paid to Subadvisers other 

than Affiliated Subadvisers (‘‘Aggregate 

Fee Disclosure’’). Any Fund that 

employs an Affiliated Subadviser will 

provide separate disclosure of any fees 

paid to the Affiliated Subadviser. 

Applicants’ Legal Analysis 

1. Section 15(a) of the Act provides, 

in relevant part, that it is unlawful for 

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Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 55569 

any person to act as an investment 

adviser to a registered investment 

company except pursuant to a written 

contract that has been approved by a 

vote of a majority of the company’s 

outstanding voting securities. Rule 18f– 

2 under the Act provides that each 

series or class of stock in a series 

investment company affected by a 

matter must approve that matter if the 

Act requires shareholder approval. 

2. Form N–1A is the registration 

statement used by open-end investment 

companies. Item 14(a)(3) of Form N–1A 

requires disclosure of the method and 

amount of the investment adviser’s 

compensation. 

3. Rule 20a–1 under the Act requires 

proxies solicited with respect to an 

investment company to comply with 

Schedule 14A under the Securities 

Exchange Act of 1934 (‘‘1934 Act’’). 

Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) 

and 22(c)(9) of Schedule 14A, taken 

together, require a proxy statement for a 

shareholder meeting at which the 

advisory contract will be voted upon to 

include the ‘‘rate of compensation of the 

investment adviser,’’ the ‘‘aggregate 

amount of the investment adviser’s 

fees,’’ a description of the ‘‘terms of the 

contract to be acted upon,’’ and, if a 

change in the advisory fee is proposed, 

the existing and proposed fees and the 

difference between the two fees. 

4. Form N–SAR is the semi-annual 

report filed with the Commission by 

registered investment companies. Item 

48 of Form N–SAR requires investment 

companies to disclose the rate schedule 

for fees paid to their investment 

advisers, including the Subadvisers. 

5. Regulation S–X sets forth the 

requirements for financial statements 

required to be included as part of 

investment company registration 

statements and shareholder reports filed 

with the Commission. Sections 

6–07(2)(a), (b), and (c) of Regulation S– 

X require that investment companies 

include in their financial statements 

information about investment advisory 

fees. 

6. Section 6(c) of the Act provides that 

the Commission may exempt any 

person, security, or transaction or any 

class or classes of persons, securities, or 

transactions from any provisions of the 

Act, or from any rule thereunder, if such 

exemption is necessary or appropriate 

in the public interest and consistent 

with the protection of investors and the 

purposes fairly intended by the policy 

and provisions of the Act. Applicants 

state that their requested relief meets 

this standard for the reasons discussed 

below. 

7. Applicants assert that the 

shareholders rely on the Adviser’s 

experience to select one or more 

Subadvisers best suited to achieve the 

Fund’s investment objectives. 

Applicants assert that, from the 

perspective of the investor, the role of 

the Subadvisers is comparable to that of 

the individual portfolio managers 

employed by traditional investment 

company advisory firms. Applicants 

state that requiring shareholder 

approval of each Subadvisory 

Agreement would impose costs and 

unnecessary delays on the Funds, and 

may preclude the Adviser from acting 

promptly in a manner considered 

advisable by the Board. Applicants note 

that the Advisory Agreement and any 

Subadvisory Agreement with an 

Affiliated Subadviser will remain 

subject to section 15(a) of the Act and 

rule 18f–2 under the Act. 

8. Applicants assert that many 

Subadvisers use a ‘‘posted’’ rate 

schedule to set their fees. Applicants 

state that while Subadvisers are willing 

to negotiate fees that are lower than 

those posted on the schedule, they are 

reluctant to do so where the fees are 

disclosed to other prospective and 

existing customers. Applicants submit 

that the requested relief will encourage 

potential Subadvisers to negotiate lower 

subadvisory fees with the Adviser. 

Applicants’ Conditions 

Applicants agree that any order 

granting the requested relief will be 

subject to the following conditions: 

1. Before a Fund may rely on the 

order requested in the application, the 

operation of the Fund in the manner 

described in the application will be 

approved by a majority of the Fund’s 

outstanding voting securities, as defined 

in the Act, or, in the case of a Fund 

whose public shareholders purchase 

shares on the basis of a prospectus 

containing the disclosure contemplated 

by condition 2 below, by the sole initial 

shareholder before offering the Fund’s 

shares to the public. 

2. The prospectus for each Fund will 

disclose the existence, substance, and 

effect of any order granted pursuant to 

the application. Each Fund will hold 

itself out to the public as employing the 

management structure described in the 

application. The prospectus will 

prominently disclose that the Adviser 

has ultimate responsibility (subject to 

oversight by the Board) to oversee the 

Subadvisers and recommend their 

hiring, termination, and replacement. 

3. Within 90 days of the hiring of any 

new Subadviser, the affected Fund’s 

shareholders will be furnished all 

information about the new Subadviser 

that would be included in a proxy 

statement, except as modified to permit 

Aggregate Fee Disclosure. This 

information will include Aggregate Fee 

Disclosure and any change in such 

disclosure caused by the addition of the 

new Subadviser. To meet this 

obligation, a Fund will provide 

shareholders within 90 days of the 

hiring of a new Subadviser with an 

information statement meeting the 

requirements of Regulation 14C, 

Schedule 14C, and Item 22 of Schedule 

14A under the 1934 Act, except as 

modified by the order to permit 

Aggregate Fee Disclosure. 

4. The Adviser will not enter into a 

Subadvisory Agreement with any 

Affiliated Subadviser without that 

agreement, including the compensation 

to be paid thereunder, being approved 

by the shareholders of the applicable 

Fund. 

5. At all times, at least a majority of 

the Board will be Independent Trustees, 

and the nomination of new or additional 

Independent Trustees will be placed 

within the discretion of the thenexisting Independent Trustees. 

6. When a Subadviser change is 

proposed for a Fund with an Affiliated 

Subadviser, the Board, including a 

majority of the Independent Trustees, 

will make a separate finding, reflected 

in the applicable Board minutes, that 

such change is in the best interests of 

the Fund and its shareholders and does 

not involve a conflict of interest from 

which the Adviser or the Affiliated 

Subadviser derives an inappropriate 

advantage. 

7. Independent legal counsel, as 

defined in rule 0–1(a)(6) under the Act, 

will be engaged to represent the 

Independent Trustees. The selection of 

such counsel will be within the 

discretion of the then existing 

Independent Trustees. 

8. The Adviser will provide the 

Board, no less frequently than quarterly, 

with information about the profitability 

of the Adviser on a per-Fund basis. The 

information will reflect the impact on 

profitability of the hiring or termination 

of any Subadviser during the applicable 

quarter. 

9. Whenever a Subadviser is hired or 

terminated, the Adviser will provide the 

Board with information showing the 

expected impact on the profitability of 

the Adviser. 

10. The Adviser will provide general 

management services to each Fund, 

including overall supervisory 

responsibility for the general 

management and investment of the 

Fund’s assets and, subject to review and 

approval of the Board, will: (a) Set each 

Fund’s overall investment strategies; (b) 

evaluate, select and recommend 

Subadvisers to manage all or part of a 

mstockstill on PROD1PC66 with NOTICES

55570 Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Notices 

1Each Participant executed the proposed 

amendment. The Participants are the American 

Stock Exchange LLC; Boston Stock Exchange, Inc.; 

Chicago Board Options Exchange, Incorporated; 

Chicago Stock Exchange, Inc.; Financial Industry 

Regulatory Authority, Inc., International Securities 

Exchange, LLC; The NASDAQ Stock Market LLC 

(‘‘NASDAQ’’); National Stock Exchange, Inc.; New 

York Stock Exchange LLC; NYSE Arca, Inc.; and 

Philadelphia Stock Exchange, Inc. 

2 17 CFR 240.608. 

3 15 U.S.C. 78k–1. 

4See Securities Exchange Act Release Nos. 10787 

(May 10, 1974), 39 FR 17799 (order approving CTA 

Plan); 15009 (July 28, 1978), 43 FR 34851 (August 

7, 1978) (order temporarily approving CQ Plan); and 

16518 (January 22, 1980), 45 FR 6521 (order 

permanently approving CQ Plan). The most recent 

restatement of both Plans was in 1995. The CTA 

Plan, pursuant to which markets collect and 

disseminate last sale price information for nonNASDAQ listed securities, is a ‘‘transaction 

reporting plan’’ under Rule 601 under the Act, 17 

CFR 242.601, and a ‘‘national market system plan’’ 

under Rule 608 under the Act, 17 CFR 242.608. The 

CQ Plan, pursuant to which markets collect and 

disseminate bid/ask quotation information for listed 

securities, is a ‘‘national market system plan’’ under 

Rule 608 under the Act, 17 CFR 242.608. 

5See Securities Exchange Act Release No. 51808 

(June 9, 2005), 70 FR 37496 (June 29, 2005). 

6See Securities Exchange Act Release No. 58358 

(August 13, 2008), 73 FR 49225 (‘‘Notice’’). 

7Some Plan amendments do not require a 

unanimous vote; therefore not every Participant 

would have to execute the amendment. 

8The Commission notes that the vote of the 

Participants would concern the exact wording of 

conforming language, but not the change 

implemented by the Commission. 

9See supra note 5. 

10The Commission has considered the proposed 

amendments’ impact on efficiency, competition, 

and capital formation. 15 U.S.C. 78c(f). 

11 15 U.S.C. 78k–1(a)(1). 

12 17 CFR 240.608. 

Fund’s assets; (c) when appropriate, 

allocate and reallocate a Fund’s assets 

among multiple Subadvisers; (d) 

monitor and evaluate the performance 

of Subadvisers; and (e) implement 

procedures reasonably designed to 

ensure that the Subadvisers comply 

with each Fund’s investment objective, 

policies and restrictions. 

11. No trustee or officer of the Trust, 

or director or officer of the Adviser, will 

own directly or indirectly (other than 

through a pooled investment vehicle 

that is not controlled by such person) 

any interest in a Subadviser, except for: 

(a) Ownership of interests in the 

Adviser or any entity that controls, is 

controlled by, or is under common 

control with the Adviser; or (b) 

ownership of less than 1% of the 

outstanding securities of any class of 

equity or debt of a publicly traded 

company that is either a Subadviser or 

an entity that controls, is controlled by, 

or is under common control with a 

Subadviser. 

12. Each Fund will disclose in its 

registration statement the Aggregate Fee 

Disclosure. 

13. The requested order will expire on 

the effective date of rule 15a–5 under 

the Act, if adopted. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

J. Lynn Taylor, 

Assistant Secretary. 

[FR Doc. E8–22507 Filed 9–24–08; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58585; File No. SR–CTA/ 

CQ–2008–02] 

Consolidated Tape Association; Order 

Approving the Twelfth Substantive 

Amendment to the Second 

Restatement of the Consolidated Tape 

Association Plan and the Eighth 

Substantive Amendment to the 

Restated Consolidated Quotation Plan 

September 18, 2008. 

I. Introduction 

On June 19, 2008, the Consolidated 

Tape Association (‘‘CTA’’) Plan and 

Consolidated Quotation (‘‘CQ’’) Plan 

participants (‘‘Participants’’) 1 filed with 

the Securities and Exchange 

Commission (‘‘Commission’’) pursuant 

to Rule 608 2 under the Securities 

Exchange Act of 1934 (‘‘Act’’) 3 a 

proposal to amend the CTA and CQ 

Plans (collectively, the ‘‘Plans’’) 4 to: (1) 

Permit ministerial amendments to the 

Plans to be submitted to the 

Commission under the signature of the 

Chairman of CTA/CQ Operating 

Committee, rather than by means of 

each Participant’s execution of a Plan 

amendment; (2) accommodate recent 

changes to the names and addresses of 

certain Participants; and (3) change the 

Plans’ references to Commission rules to 

reflect the re-designation of rules by 

Regulation NMS 5 (‘‘Amendments’’). 

The proposed Amendments were 

published for comment in the Federal 

Register on August 20, 2008.6 No 

comment letters were received in 

response to the Notice. This order 

approves the Amendments. 

II. Description of the Proposal 

Currently, both Plans require each 

Participant to execute most 

amendments 7 to the Plans before the 

amendments can be filed with the 

Commission. The Participants propose 

to amend the Plans to permit the 

submission to the Commission of 

ministerial amendments to the Plans 

under the signature of the Chairman of 

the CTA/CQ Operating Committee, in 

lieu of requiring each Participant’s 

signature indicating that it has executed 

the amendment as required by Section 

IV(b) of the CTA Plan and Section IV(c) 

of the CQ Plan. 

The categories of ministerial Plan 

amendments that the Participants may 

submit under the signature of the 

Chairman include amendments to the 

Plans that pertain solely to one or more 

of the following: 

(1) Admitting a new Participant into 

the Plans; 

(2) Changing the name or address of 

a Participant; 

(3) Incorporating a change that the 

Commission has implemented by rule 

and that requires no conforming 

language to the text of the Plans (e.g., 

the Commission rule establishing the 

Advisory Committee); 

(4) Incorporating a change (i) that the 

Commission has implemented by rule, 

(ii) that requires conforming language to 

the text of the Plans (e.g., the 

Commission rule amending the revenue 

allocation formula), and (iii) that a 

majority of all Participants has voted to 

approve; 8

(5) Incorporating a purely technical 

change, such as correcting an error or an 

inaccurate reference to a statutory 

provision, or removing language that 

has become obsolete (e.g., language 

regarding the Intermarket Trading 

System Plan). 

In addition, the Participants propose 

to amend the Plans to reflect changes in 

the corporate names of the Chicago 

Board Options Exchange, Incorporated 

(formerly, Chicago Board Options 

Exchange, Inc.) (‘‘CBOE’’), the Financial 

Industry Regulatory Authority, Inc. 

(formerly, the National Association of 

Securities Dealers, Inc.), and National 

Securities Exchange, Inc. (formerly, 

National Securities Exchange), as well 

as changes in the street address of 

CBOE. 

The Participants further propose to 

change references in the Plans to 

Commission rules to reflect the redesignation of certain Commission rules 

as a result of Regulation NMS.9

III. Discussion 

After careful review, the Commission 

finds that the Amendments to the Plans 

are consistent with the requirements of 

the Act and the rules and regulations 

thereunder,10 and, in particular, Section 

11A(a)(1) of the Act 11 and Rule 608 

thereunder 12 in that they are necessary 

or appropriate in the public interest, for 

the protection of investors and the 

maintenance of fair and orderly markets, 

to remove impediments to, and perfect 

the mechanisms of, a national market 

mstockstill on PROD1PC66 with NOTICES