Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Notices 57163 

1Applicants request that the order extend to any 

other existing or future registered open-end 

management investment companies and their series 

that are part of the same group of investment 

companies, as defined in section 12(d)(1)(G) of the 

Act, as VK Trust and are, or may in the future be, 

advised by the Adviser or any existing or future 

entity controlling, controlled by, or under common 

control with the Adviser. All entities that currently 

intend to rely on the requested order are named as 

applicants and any other entity that relies on the 

order in the future will comply with the terms and 

conditions of the application. 

invest in Other Investments as described 

in the application would not raise any 

of the concerns that the requirements of 

section 12(d)(1) were designed to 

address. 

Applicants’ Condition 

Applicants agree that any order 

granting the requested relief will be 

subject to the following condition: 

Applicants will comply with all 

provisions of rule 12d1–2 under the Act, 

except for paragraph (a)(2) to the extent 

that it restricts any Fund from investing 

in Other Investments as described in the 

application. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–23042 Filed 9–30–08; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28406; 812–13506] 

Van Kampen Retirement Strategy 

Trust, et al.; Notice of Application 

September 25, 2008. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of application for an 

order under section 12(d)(1)(J) of the 

Investment Company Act of 1940 

(‘‘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 

for an exemption from section 17(a) of 

the Act. 

SUMMARY OF THE APPLICATION: 

Applicants request an order that would 

permit certain registered open-end 

management investment companies to 

acquire shares of other registered openend management investment companies 

and unit investment trusts that are 

within and outside the same group of 

investment companies. 

APPLICANTS: Van Kampen Retirement 

Strategy Trust (‘‘VK Trust’’), Van 

Kampen Asset Management (‘‘VKAM’’ 

or ‘‘Adviser’’) and Morgan Stanley 

Investment Management Limited 

(‘‘MSIM Ltd.’’). 

FILING DATES: The application was filed 

on March 7, 2008 and amended on 

September 19, 2008. 

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 16, 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: VK Trust and VKAM, 

522 Fifth Avenue, New York, New York 

10036; MSIM Ltd., 25 Bank Street, 

Canary Wharf, London, United Kingdom 

E14 4AD. 

FOR FURTHER INFORMATION CONTACT: 

Emerson S. Davis, Sr., Senior Counsel, 

at (202) 551–6868, or Mary Kay Frech, 

Branch Chief, at (202) 551–6821 (Office 

of Investment Company Regulation, 

Division of Investment Management). 

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 Desk, 

100 F Street, NE., Washington, DC 

20549–0102 (telephone (202) 551–5850). 

Applicants’ Representations 

1. The VK Trust, organized as a 

Delaware statutory trust, is registered 

under the Act as an open-end 

management investment company. The 

VK Trust currently offers ten series, 

each with its own investment objective 

and policies (the ‘‘VK Funds’’).1 The 

Adviser, a wholly-owned subsidiary of 

Van Kampen Investments Inc., which is 

an indirect wholly-owned subsidiary of 

Morgan Stanley, is registered as an 

investment adviser under the 

Investment Advisers Act of 1940 (the 

‘‘Advisers Act’’). The Adviser serves as 

the investment adviser to each VK 

Fund. MSIM Ltd., a wholly-owned 

subsidiary of Morgan Stanley, is an 

investment adviser registered under the 

Advisers Act and serves as subadviser 

for certain VK Funds. 

2. Applicants request relief to permit 

certain VK Funds (each such VK Fund, 

a ‘‘Fund of Funds’’) to invest in: (a) 

other VK Funds (‘‘Affiliated Underlying 

Funds’’), and (b) registered open-end 

management investment companies and 

registered unit investment trusts 

(‘‘UITs’’) that are not part of the same 

‘‘group of investment companies’’ (as 

defined in section 12(d)(1)(G)(ii) of the 

Act) as the VK Funds (‘‘Unaffiliated 

Underlying Funds,’’ and together with 

the Affiliated Underlying Funds, the 

‘‘Underlying Funds’’). The Unaffiliated 

Underlying Funds may include UITs 

(‘‘Unaffiliated Trusts’’) and open-end 

management investment companies 

(‘‘Unaffiliated Funds’’) registered under 

the Act. The relief also would permit 

the Underlying Funds, their principal 

underwriter and any broker or dealer to 

sell the shares of the Underlying Funds 

to the Fund of Funds. Certain of the 

Unaffiliated Underlying Funds may 

have received exemptive relief to sell 

their shares on a national securities 

exchange at negotiated prices (‘‘ETFs’’). 

Each Fund of Funds may also invest in 

other securities and financial 

instruments that are not issued by 

registered investment companies and 

which are consistent with its investment 

objective. Applicants state that each 

Fund of Funds seeks to provide, in a 

single investment vehicle, an asset 

allocation strategy designed for 

investors planning to retire on or about 

a specific year or to provide income for 

investors who have already retired. 

Applicants’ Legal Analysis 

A. Section 12(d)(1) 

1. Section 12(d)(1)(A) of the Act 

prohibits a registered investment 

company from acquiring shares of an 

investment company if the securities 

represent more than 3% of the total 

outstanding voting stock of the acquired 

company, more than 5% of the total 

assets of the acquiring company, or, 

together with the securities of any other 

investment companies, more than 10% 

of the total assets of the acquiring 

company. Section 12(d)(1)(B) of the Act 

prohibits a registered open-end 

investment company, its principal 

underwriter and any broker or dealer 

from selling the shares of the investment 

company to another investment 

company if the sale will cause the 

acquiring company to own more than 

3% of the acquired company’s voting 

stock, or if the sale will cause more than 

10% of the acquired company’s voting 

stock to be owned by investment 

companies generally. 


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2An Unaffiliated Fund, including an ETF, would 

retain its right to reject an initial investment by a 

Fund of Funds in excess of the limit in section 

12(d)(1)(A)(i) of the Act by declining to execute the 

Participation Agreement. 

2. Section 12(d)(1)(J) 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 provision of section 12(d)(1) if the 

exemption is consistent with the public 

interest and the protection of investors. 

Applicants seek an exemption under 

section 12(d)(1)(J) of the Act from the 

limitations of sections 12(d)(1)(A) and 

(B) to the extent necessary to permit the 

Funds of Funds to acquire shares of the 

Underlying Funds in excess of the limits 

set forth in section 12(d)(1)(A) of the Act 

and to permit the Underlying Funds, 

their principal underwriters and any 

broker or dealer to sell their shares to 

the Funds of Funds in excess of the 

limits set forth in section 12(d)(1)(B) of 

the Act. 

3. Applicants state that the proposed 

arrangement will not give rise to the 

policy concerns underlying sections 

12(d)(1)(A) and (B), which include 

concerns about undue influence by a 

fund of funds or its affiliated persons 

over underlying funds, excessive 

layering of fees, and overly complex 

fund structures. Accordingly, applicants 

believe that the requested exemption is 

consistent with the public interest and 

the protection of investors. 

4. Applicants state that the proposed 

arrangement will not result in undue 

influence by a Fund of Funds or its 

affiliated persons over the Underlying 

Funds. The concern about undue 

influence does not arise in connection 

with a Fund of Funds’ investment in the 

Affiliated Underlying Funds, since they 

are part of the same group of investment 

companies. To limit the control that a 

Fund of Funds or its affiliated persons 

may have over an Unaffiliated 

Underlying Fund, applicants submit 

that: (a) The Adviser; any person 

controlling, controlled by or under 

common control with the Adviser; and 

any investment company and any issuer 

that would be an investment company 

but for section 3(c)(1) or section 3(c)(7) 

of the Act advised or sponsored by the 

Adviser or any person controlling, 

controlled by or under common control 

with the Adviser (collectively, the 

‘‘Group’’); and (b) MSIM Ltd. and any 

investment adviser to a Fund of Funds 

that meets the definition in section 

2(a)(20)(B) of the Act (‘‘Subadviser’’); 

any person controlling, controlled by or 

under common control with the 

Subadviser; and any investment 

company and any issuer that would be 

an investment company but for section 

3(c)(1) or 3(c)(7) of the Act (or portion 

of such investment company or issuer) 

advised or sponsored by the Subadviser 

or any person controlling, controlled by 

or under common control with the 

Subadviser (collectively, the 

‘‘Subadviser Group’’) will not control 

(individually or in the aggregate) an 

Unaffiliated Underlying Fund within 

the meaning of section 2(a)(9) of the Act. 

5. Applicants also propose to prevent 

a Fund of Funds and its affiliated 

entities from taking advantage of an 

Unaffiliated Underlying Fund with 

respect to transactions between the 

entities by precluding a Fund of Funds 

and its Adviser, Subadviser, promoter, 

principal underwriter and any person 

controlling, controlled by or under 

common control with any of these 

entities (each, a ‘‘Fund of Funds 

Affiliate’’) from causing any existing or 

potential investment by the Fund of 

Funds in an Unaffiliated Underlying 

Fund to influence the terms of any 

services or transactions between the 

Fund of Funds or a Fund of Funds 

Affiliate and the Unaffiliated 

Underlying Fund or its investment 

adviser(s), sponsor, promoter, principal 

underwriter and any person controlling, 

controlled by or under common control 

with any of these entities (each, an 

‘‘Unaffiliated Underlying Fund 

Affiliate’’). In addition, no Fund of 

Funds or Fund of Funds Affiliate 

(except to the extent it is acting in its 

capacity as an investment adviser to an 

Unaffiliated Fund or sponsor to an 

Unaffiliated Trust) will cause an 

Unaffiliated Underlying Fund to 

purchase a security in an offering of 

securities during the existence of an 

underwriting or selling syndicate of 

which a principal underwriter is an 

officer, director, member of an advisory 

board, Adviser, Subadviser, or employee 

of the Fund of Funds, or a person of 

which any such officer, director, 

member of an advisory board, Adviser, 

Subadviser, or employee is an affiliated 

person (each, an ‘‘Underwriting 

Affiliate,’’ except any person whose 

relationship to the Unaffiliated 

Underlying Fund is covered by section 

10(f) of the Act is not an Underwriting 

Affiliate). An offering of securities 

during the existence of an underwriting 

or selling syndicate of which a principal 

underwriter is an Underwriting Affiliate 

is an ‘‘Affiliated Underwriting.’’ 

6. To further ensure that an 

Unaffiliated Fund understands the 

implications of an investment by a Fund 

of Funds under the requested order, 

prior to its investment in the shares of 

an Unaffiliated Fund in excess of the 

limit in section 12(d)(1)(A)(i), a Fund of 

Funds and the Unaffiliated Fund will 

execute an agreement stating, without 

limitation, that their boards of directors 

or trustees and their investment advisers 

understand the terms and conditions of 

the order and agree to fulfill their 

responsibilities under the order 

(‘‘Participation Agreement’’). Applicants 

note that an Unaffiliated Underlying 

Fund (other than an ETF whose shares 

are purchased by a Fund of Funds in the 

secondary market) will retain the right 

to reject any investment by a Fund of 

Funds.2

7. Applicants do not believe that the 

proposed arrangement will involve 

excessive layering of fees. With respect 

to investment advisory fees, applicants 

state that, prior to approval of any 

investment advisory contract under 

section 15 of the Act, the board of 

trustees (‘‘Board’’) of each Fund of 

Funds, including a majority of the 

trustees who are not ‘‘interested 

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

of the Act (‘‘Disinterested Trustees’’), 

will find that the advisory fees charged 

under the advisory contract are based on 

services provided that are in addition to, 

rather than duplicative of, services 

provided pursuant to any Underlying 

Fund’s advisory contract(s). Applicants 

further state that the Adviser will waive 

fees otherwise payable to it by the Fund 

of Funds in an amount at least equal to 

any compensation (including fees 

received pursuant to a plan adopted by 

an Unaffiliated Fund under rule 12b–1 

under the Act) received by the Adviser 

or an affiliated person of the Adviser 

from an Unaffiliated Underlying Fund, 

other than any advisory fees paid to the 

Adviser or its affiliated person by an 

Unaffiliated Fund, in connection with 

the investment by the Fund of Funds in 

the Unaffiliated Underlying Fund. 

8. Applicants state that the proposed 

arrangement will not create an overly 

complex fund structure. Applicants note 

that an Underlying Fund will be 

prohibited from acquiring securities of 

any investment company or company 

relying on section 3(c)(1) or 3(c)(7) of 

the Act in excess of the limits contained 

in section 12(d)(1)(A), except to the 

extent that such Underlying Fund: (a) 

Receives securities of another 

investment company as a dividend or as 

a result of a plan of reorganization of a 

company (other than a plan devised for 

the purpose of evading section 12(d)(1) 

of the Act); or (b) acquires (or is deemed 

to have acquired) securities of another 

investment company pursuant to 

exemptive relief from the Commission 

permitting such Underlying Fund to: (i) 

Acquire securities of one or more 

investment companies for short-term 

cash management purposes, or (ii) 


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3Applicants acknowledge that receipt of 

compensation by (a) an affiliated person of a Fund 

of Funds, or an affiliated person of such person, for 

the purchase by the Fund of Funds of shares of an 

Underlying Fund or (b) an affiliated person of an 

Underlying Fund, or an affiliated person of such 

person, for the sale by the Underlying Fund of its 

shares to a Fund of Funds may be prohibited by 

section 17(e)(1) of the Act. The Participation 

Agreement also will include this acknowledgement. 

4Applicants note that a Fund of Funds generally 

would purchase and sell shares of an Unaffiliated 

Underlying Fund that operates as an ETF through 

secondary market transactions at market prices 

rather than through principal transactions with the 

Unaffiliated Underlying Fund at net asset value. 

Applicants would not rely on the requested relief 

from section 17(a) for such secondary market 

transactions. To the extent that a Fund of Funds 

purchases or redeems shares from an Unaffiliated 

Underlying Fund that is an ETF and an affiliated 

person of the Fund of Funds in exchange for a 

basket of specified securities as described in the 

application for the exemptive order upon which the 

ETF relies, applicants also request relief from 

section 17(a) for those transactions. 

engage in interfund borrowing and 

lending transactions. Applicants also 

represent that a Fund of Funds’ 

prospectus and sales literature will 

contain clear, concise, ‘‘plain English’’ 

disclosure designed to inform investors 

of the unique characteristics of the 

proposed Fund of Funds structure, 

including, but not limited to, its 

expense structure and the additional 

expenses of investing in Underlying 

Funds. 

B. Section 17(a) 

1. Section 17(a) of the Act generally 

prohibits sales or purchases of securities 

between a registered investment 

company and any affiliated person of 

the company. Section 2(a)(3) of the Act 

defines an ‘‘affiliated person’’ of another 

person to include (a) Any person 

directly or indirectly owning, 

controlling, or holding with power to 

vote, 5% or more of the outstanding 

voting securities of the other person; (b) 

any person 5% or more of whose 

outstanding voting securities are 

directly or indirectly owned, controlled, 

or held with power to vote by the other 

person; and (c) any person directly or 

indirectly controlling, controlled by, or 

under common control with the other 

person. 

2. Applicants state that the Funds of 

Funds and the Affiliated Underlying 

Funds might be deemed to be under 

common control of the Adviser and 

therefore affiliated persons of one 

another. Applicants also state that the 

Funds of Funds and the Underlying 

Funds might be deemed to be affiliated 

persons of one another if a Fund of 

Funds acquires 5% or more of an 

Underlying Fund’s outstanding voting 

securities. In light of these and other 

possible affiliations, section 17(a) could 

prevent an Underlying Fund from 

selling shares to and redeeming shares 

from a Fund of Funds. 

3. Section 17(b) of the Act authorizes 

the Commission to grant an order 

permitting a transaction otherwise 

prohibited by section 17(a) if it finds 

that (a) The terms of the proposed 

transaction are fair and reasonable and 

do not involve overreaching on the part 

of any person concerned; (b) the 

proposed transaction is consistent with 

the policies of each registered 

investment company involved; and (c) 

the proposed transaction is consistent 

with the general purposes of the Act. 

Section 6(c) of the Act permits the 

Commission to exempt any person, 

security or transactions or any class or 

classes of persons, securities or 

transactions, from any provision of the 

Act 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. 

4. Applicants submit that the 

proposed structure satisfies the 

standards for relief under sections 17(b) 

and 6(c) of the Act.3 Applicants state 

that the terms upon which an 

Underlying Fund will sell its shares to 

or purchase its shares from a Fund of 

Funds will be based on the net asset 

value of each Underlying Fund.4

Applicants state that the proposed 

investment will be consistent with the 

policies of each Fund of Funds and 

Underlying Fund, and with the general 

purposes of the Act. 

Applicants’ Conditions 

Applicants agree that any order 

granting the requested relief shall be 

subject to the following conditions: 

1. The members of the Group will not 

control (individually or in the aggregate) 

an Unaffiliated Underlying Fund within 

the meaning of section 2(a)(9) of the Act. 

The members of a Subadviser Group 

will not control (individually or in the 

aggregate) an Unaffiliated Underlying 

Fund within the meaning of section 

2(a)(9) of the Act. If, as a result of a 

decrease in the outstanding voting 

securities of an Unaffiliated Underlying 

Fund, the Group or the Subadviser 

Group, each in the aggregate, becomes a 

holder of more than 25% of the 

outstanding voting securities of the 

Unaffiliated Underlying Fund, then the 

Group or the Subadviser Group will 

vote its shares of the Unaffiliated 

Underlying Fund in the same 

proportion as the vote of all other 

holders of the Unaffiliated Underlying 

Fund’s shares. This condition will not 

apply to the Subadviser Group with 

respect to an Unaffiliated Underlying 

Fund for which the Subadviser or a 

person controlling, controlled by, or 

under common control with the 

Subadviser acts as the investment 

adviser within the meaning section 

2(a)(20)(A) of the Act (in the case of an 

Unaffiliated Fund) or as the sponsor (in 

the case of an Unaffiliated Trust). 

2. No Fund of Funds or Fund of 

Funds Affiliate will cause any existing 

or potential investment by the Fund of 

Funds in an Unaffiliated Underlying 

Fund to influence the terms of any 

services or transactions between the 

Fund of Funds or a Fund of Funds 

Affiliate and the Unaffiliated 

Underlying Fund or an Unaffiliated 

Underlying Fund Affiliate. 

3. Each Fund of Funds Board, 

including a majority of the Disinterested 

Trustees, will adopt procedures 

reasonably designed to ensure that the 

Adviser and the Subadviser are 

conducting the investment program of 

the Fund of Funds without taking into 

account any consideration received by 

the Fund of Funds or Fund of Funds 

Affiliate from an Unaffiliated 

Underlying Fund or an Unaffiliated 

Underlying Fund Affiliate in connection 

with any services or transactions. 

4. Once an investment by a Fund of 

Funds in the securities of an 

Unaffiliated Fund exceeds the limit of 

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

Board of the Unaffiliated Fund, 

including a majority of the Disinterested 

Trustees, will determine that any 

consideration paid by the Unaffiliated 

Fund to a Fund of Funds or a Fund of 

Funds 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 Unaffiliated Fund; (b) is 

within the range of consideration that 

the Unaffiliated 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 an Unaffiliated 

Fund and its investment adviser(s), or 

any person controlling, controlled by, or 

under common control with such 

investment adviser(s). 

5. No Fund of Funds or Fund of 

Funds Affiliate (except to the extent it 

is acting in its capacity as an investment 

adviser to an Unaffiliated Fund or 

sponsor to an Unaffiliated Trust) will 

cause an Unaffiliated Underlying Fund 

to purchase a security in any Affiliated 

Underwriting. 

6. The Board of an Unaffiliated Fund, 

including a majority of the Disinterested 

Trustees, will adopt procedures 


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reasonably designed to monitor any 

purchases of securities by the 

Unaffiliated Fund in an Affiliated 

Underwriting once an investment by a 

Fund of Funds in the securities of the 

Unaffiliated 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 of the Unaffiliated Fund will 

review these purchases periodically, but 

no less frequently than annually, to 

determine whether the purchases were 

influenced by the investment by the 

Fund of Funds in shares of the 

Unaffiliated Fund. The Board of the 

Unaffiliated Fund will consider, among 

other things: (a) Whether the purchases 

were consistent with the investment 

objectives and policies of the 

Unaffiliated 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 Unaffiliated Fund in 

Affiliated Underwritings and the 

amount purchased directly from an 

Underwriting Affiliate have changed 

significantly from prior years. The 

Board of the Unaffiliated Fund will take 

any appropriate actions based on its 

review, including, if appropriate, the 

institution of procedures designed to 

ensure that purchases of securities in 

Affiliated Underwritings are in the best 

interests of shareholders. 

7. Each Unaffiliated 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 

from an Affiliated Underwriting 

occurred, the first two years in an easily 

accessible place, a written record of 

each purchase made once an investment 

by a Fund of Funds in the securities of 

an Unaffiliated 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 determinations of the Board of the 

Unaffiliated Fund were made. 

8. Prior to its investment in shares of 

an Unaffiliated Fund in excess of the 

limit in section 12(d)(1)(A)(i) of the Act, 

the Fund of Funds and the Unaffiliated 

Fund will execute a Participation 

Agreement stating, without limitation, 

that their boards of directors or trustees 

and their investment advisers 

understand the terms and conditions of 

the order and agree to fulfill their 

responsibilities under the order. At the 

time of its investment in shares of an 

Unaffiliated Fund in excess of the limit 

in section 12(d)(1)(A)(i), a Fund of 

Funds will notify the Unaffiliated Fund 

of the investment. At such time, the 

Fund of Funds will also transmit to the 

Unaffiliated Fund a list of the names of 

each Fund of Funds Affiliate and 

Underwriting Affiliate. The Fund of 

Funds will notify the Unaffiliated Fund 

of any changes to the list as soon as 

reasonably practicable after a change 

occurs. The Unaffiliated Fund and the 

Fund of Funds will maintain and 

preserve a copy of the order, the 

Participation Agreement, and the list 

with any updated information for the 

duration of the investment and for a 

period of not less than six years 

thereafter, the first two years in an 

easily accessible place. 

9. Prior to approving any investment 

advisory contract under section 15 of 

the Act, each Fund of Funds Board, 

including a majority of the Disinterested 

Trustees, will find that the advisory fees 

charged under the advisory contract are 

based on services provided that are in 

addition to, rather than duplicative of, 

services provided under the advisory 

contract(s) of any Underlying Funds in 

which the Fund of Funds may invest. 

This finding, and the basis upon which 

the finding was made, will be recorded 

fully in the minute books of the 

appropriate Fund of Funds. 

10. The Adviser will waive fees 

otherwise payable to it by the Fund of 

Funds in an amount at least equal to any 

compensation (including fees received 

pursuant to a plan adopted by an 

Unaffiliated Fund under rule 12b–1 

under the Act) received by the Adviser, 

or an affiliated person of the Adviser, 

from an Unaffiliated Underlying Fund, 

other than any advisory fees paid to the 

Adviser or an affiliated person of the 

Adviser by the Unaffiliated Fund, in 

connection with the investment by the 

Fund of Funds in the Unaffiliated 

Underlying Fund. Any Subadviser will 

waive fees otherwise payable to the 

Subadviser, directly or indirectly, by the 

Fund of Funds in an amount at least 

equal to any compensation received by 

the Subadviser, or an affiliated person of 

the Subadviser, from an Unaffiliated 

Underlying Fund, other than any 

advisory fees paid to the Subadviser or 

an affiliated person of the Subadviser by 

the Unaffiliated Fund, in connection 

with the investment by the Fund of 

Funds in the Unaffiliated Underlying 

Fund made at the direction of the 

Subadviser. In the event that the 

Subadviser waives fees, the benefit of 

the waiver will be passed through to the 

Fund of Funds. 

11. No Underlying Fund will acquire 

securities of any other investment 

company or company relying on section 

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, except to the 

extent that such Underlying Fund: (a) 

Receives securities of another 

investment company as a dividend or as 

a result of a plan of reorganization of a 

company (other than a plan devised for 

the purpose of evading section 12(d)(1) 

of the Act); or (b) acquires (or is deemed 

to have acquired) securities of another 

investment company pursuant to 

exemptive relief from the Commission 

permitting such Underlying Fund to: (i) 

Acquire securities of one or more 

investment companies for short-term 

cash management purposes, or (ii) 

engage in interfund borrowing and 

lending transactions. 

12. Any sales charges and/or service 

fees charged with respect to shares of a 

Fund of Funds will not exceed the 

limits applicable to funds of funds set 

forth in NASD Conduct Rule 2830. 

For the Commission, by the Division of 

Investment Management, pursuant to 

delegated authority. 

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–23043 Filed 9–30–08; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–58630; File No. 4–443] 

Joint Industry Plan; Order Granting 

Permanent Approval to Amendment 

No. 2 to the Plan for the Purpose of 

Developing and Implementing 

Procedures Designed To Facilitate the 

Listing and Trading of Standardized 

Options 

September 24, 2008. 

I. Introduction 

On August 12, 2008, August 18, 2008, 

August 15, 2008, August 13, 2008, 

August 8, 2008, August 14, 2008, 

August 14, 2008, and August 18, 2008, 

the American Stock Exchange LLC 

(‘‘Amex’’), the Boston Stock Exchange, 

Inc. (‘‘BSE’’), Chicago Board Options 

Exchange, Incorporated (‘‘CBOE’’), the 

International Securities Exchange, LLC 

(‘‘ISE’’), The NASDAQ Stock Market 

LLC (‘‘Nasdaq’’), NYSE Arca Inc. 


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