Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Notices 58687 

1Applicants request that the order extend to any 

future series of the Trust, and 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)(ii) of the Act, as the Trust and 

are, or may in the future be, advised by the Adviser 

or any other investment adviser controlling, 

controlled by, or under common control with the 

Adviser (included in the term, ‘‘Funds’’). The Trust 

is the only registered investment company that 

currently intends to rely on the requested order. 

Any other entity that relies on the order in the 

future will comply with the terms and conditions 

of the application. 

specific information, as well as portions 

of the Governors’ Decision, should 

remain confidential. 

In its Request, the Postal Service 

provides an analysis of the contract 

which, among other things, concludes 

that it is consistent with 39 U.S.C. 

3633(a) and 39 CFR 3015.7(c). The 

analysis notes that the contract is not 

risk free, but concludes that the risks are 

manageable. See Attachment to 

Governors’ Decision. 

II. Notice of Filings 

The Commission establishes Docket 

Nos. MC2008–8 and CP2008–26 for 

consideration of the Request pertaining 

to the Priority Mail Contract 1 product 

and the related contract. In keeping with 

practice, these dockets are addressed on 

a consolidated basis for purposes of this 

order; however, future filings should be 

made in the specific docket in which 

issues being addressed pertain. 

Interested persons may submit 

comments on whether the Postal 

Service’s filings in the captioned 

dockets are consistent with the policies 

of 39 U.S.C. 3632, 3633, or 3642. 

Comments are due no later than October 

9, 2008. The public portions of these 

filings can be accessed via the 

Commission’s Web site (http:// 

www.prc.gov). 

The Commission appoints Michael 

Ravnitzky to serve as Public 

Representative in the captioned filings. 

III. Ordering Paragraphs 

It is ordered: 

1. The Commission establishes Docket 

Nos. MC2008–8 and CP2008–26 for 

consideration of the matters raised in 

each docket. 

2. The Commission, pursuant to 39 

U.S.C. 505, appoints Michael Ravnitzky 

to serve as officer of the Commission 

(Public Representative) to represent the 

interests of the general public in these 

proceedings. 

3. Comments by interested persons in 

these proceedings are due no later than 

October 9, 2008. 

4. The Secretary shall arrange for 

publication of this order in the Federal 

Register. 

By the Commission. 

Steven W. Williams, 

Secretary. 

[FR Doc. E8–23733 Filed 10–6–08; 8:45 am] 

BILLING CODE 7710–FW–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28429; 812–13530] 

Aberdeen Asset Management Inc. and 

Aberdeen Funds, et al.; Notice of 

Application 

September 30, 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 series of registered openend management investment companies 

to acquire shares of other registered 

open-end management investment 

companies and unit investment trusts 

that are within or outside the same 

group of investment companies. 

Applicants: Aberdeen Funds (the 

‘‘Trust’’) and Aberdeen Asset 

Management Inc. (the ‘‘Adviser’’). 

Filing Dates: The application was 

filed on May 8, 2008. Applicants have 

agreed to file an amendment during the 

notice period, the substance of which is 

reflected herein. 

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 27, 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: Adviser, 1735 Market 

Street, 37th Floor, Philadelphia, PA 

19103; Trust, 5 Tower Bridge, 300 Barr 

Harbor Drive, Ste. 300, West 

Conshohocken, PA 19428. 

FOR FURTHER INFORMATION CONTACT: Jean 

Minarick, Senior Counsel, at (202) 551– 

6811, or Marilyn Mann, 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 Room, 

100 F Street, NE., Washington, DC 

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

Applicants’ Representations 

1. The Trust, a Delaware statutory 

trust, is registered under the Act as an 

open-end management investment 

company and offers multiple series, 

each of which has its own distinct 

investment objectives and policies 

(‘‘Funds’’).1 The Trust currently offers 

26 Funds. The Aberdeen Optimal 

Allocations Fund: Defensive; Aberdeen 

Optimal Allocations Fund: Moderate; 

Aberdeen Optimal Allocations Fund: 

Moderate Growth; Aberdeen Optimal 

Allocations Fund: Growth; and 

Aberdeen Optimal Allocations Fund: 

Specialty (collectively, the ‘‘Optimal 

Allocation Funds’’) are the only Funds 

that currently intend to rely on the 

requested relief. Shares of the Optimal 

Allocation Funds are offered directly to 

the public and may be offered to 

insurance company separate accounts 

(‘‘Separate Accounts’’) that fund 

variable annuity and variable life 

insurance contracts (‘‘Variable 

Contracts’’) issued by insurance 

companies that are not affiliates of the 

Adviser. The Separate Accounts may be 

registered under the Act (‘‘Registered 

Separate Accounts’’), or unregistered 

thereunder (‘‘Unregistered Separate 

Accounts’’). 

2. The Adviser is a Delaware 

corporation and a registered investment 

adviser under the Investment Advisers 

Act of 1940, and serves as investment 

adviser to each Fund. The Adviser is a 

wholly owned subsidiary of Aberdeen 

Asset Management PLC. 

3. Applicants request relief to permit: 

(a) Certain Funds (each a ‘‘Fund of 

Funds’’) to acquire shares of registered 

open-end management investment 

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58688 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Notices 

companies (the ‘‘Unaffiliated Funds’’) 

and unit investment trusts 

(‘‘Unaffiliated Trusts,’’ and together 

with the Unaffiliated Funds, the 

‘‘Unaffiliated Underlying Funds’’) that 

are not part of the same ‘‘group of 

investment companies’’ as defined in 

section 12(d)(1)(G)(ii) of the Act; (b) the 

Unaffiliated Funds, their principal 

underwriters and any broker or dealer 

(‘‘Broker’’) registered under the 

Securities Exchange Act of 1934 to sell 

their shares to the Fund of Funds; (c) 

the Funds of Funds to acquire shares of 

certain other Funds (the ‘‘Affiliated 

Funds,’’ and together with the 

Unaffiliated Underlying Funds, the 

‘‘Underlying Funds’’); and (d) the 

Affiliated Funds, their principal 

underwriters and any Brokers to sell 

their shares to the Fund of Funds. 

Certain of the Unaffiliated Underlying 

Funds have obtained exemptions from 

the Commission to permit their shares 

to be listed and traded 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 

are consistent with its investment 

objective and restrictions. Any 

investment adviser to a Fund of Funds 

that meets the definition of section 

2(a)(20)(A) of the Act is referred to as 

‘‘Fund of Funds’ Adviser.’’ 

Applicants’ Legal Analysis 

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. 

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 Unaffiliated Funds 

and Affiliated Funds, their principal 

underwriters and any Broker 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 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 Fund of Funds’ Adviser 

and any person controlling, controlled 

by or under common control with the 

Fund of Funds’ Adviser, 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 Fund of 

Funds’ Adviser or any person 

controlling, controlled by or under 

common control with the Fund of 

Funds’ Adviser (collectively, the 

‘‘Group’’); and (b) any investment 

adviser within the meaning of section 

2(a)(20)(B) of the Act to a Fund of Funds 

(‘‘Fund of Funds’ Sub-Adviser’’), any 

person controlling, controlled by or 

under common control with the Fund of 

Funds’ Sub-Adviser, and any 

investment company or 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 

Fund of Funds’ Sub-Adviser or any 

person controlling, controlled by or 

under common control with the Fund of 

Funds’ Sub-Adviser (collectively, the 

‘‘Sub-Adviser 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 further state that 

condition 2 below precludes a Fund of 

Funds or the Fund of Funds’ Adviser, 

any Fund of Funds’ Sub-Adviser, 

promoter or principal underwriter of a 

Fund of Funds, as well as any person 

controlling, controlled by, or under 

common control with any of those 

entities (each, a ‘‘Fund of Funds 

Affiliate’’) from taking advantage of an 

Unaffiliated Underlying Fund with 

respect to transactions between a Fund 

of Funds or a Fund of Funds Affiliate 

and the Unaffiliated Underlying Fund or 

its investment adviser(s), sponsor, 

promoter, and principal underwriter 

and any person controlling, controlled 

by or under common control with any 

of those entities (each, an ‘‘Unaffiliated 

Fund Affiliate’’). 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 any underwriting or selling 

syndicate of which a principal 

underwriter is an officer, director, 

trustee, advisory board member, Fund of 

Funds’ Adviser, Fund of Funds’ SubAdviser or employee of the Fund of 

Funds, or a person of which any such 

officer, director, trustee, Fund of Funds’ 

Adviser, Fund of Funds’ Sub-Adviser, 

member of an advisory board, 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 any 

underwriting or selling syndicate of 

which a principal underwriter is an 

Underwriting Affiliate is an ‘‘Affiliated 

Underwriting.’’ 

6. To further assure that an 

Unaffiliated Fund understands the 

implications of a Fund of Funds’ 

investment under the requested 

exemptive relief, prior to its investment 

in the shares of an Unaffiliated Fund in 

excess of the limit in section 

12(d)(1)(A)(i) of the Act, a Fund of 

Funds and the Unaffiliated Fund will 

execute an agreement stating, without 

limitation, that their boards of directors 

or trustees (‘‘Boards’’) 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 

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Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Notices 58689 

2An Unaffiliated Fund, including an ETF, would 

retain its right to reject any initial investment by a 

Fund of Funds in excess of the limits in section 

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

Participation Agreement with the Fund of Funds. 

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 rather than through 

principal transactions with the Unaffiliated 

Underlying Fund. To the extent that a Fund of 

Funds purchases or redeems shares from an ETF 

that is an affiliated person, or an affiliated person 

of 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. 

Unaffiliated Fund (other than an ETF 

whose shares are purchased by a Fund 

of Funds in the secondary market) will 

retain its right at all times 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. To assure that 

the advisory fees are not duplicative, 

applicants state that, in connection with 

the approval of any advisory contract 

under section 15 of the Act, the 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 

(‘‘Independent 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 a Fund of Funds’ Adviser will 

waive fees otherwise payable to it by a 

Fund of Funds in an amount at least 

equal to any compensation (including 

fees received pursuant to any plan 

adopted by an Unaffiliated Fund 

pursuant to rule 12b–1 under the Act) 

received from an Unaffiliated 

Underlying Fund by the Fund of Funds’ 

Adviser, or an affiliated person of the 

Fund of Funds’ Adviser, other than any 

advisory fees paid to the Fund of Funds’ 

Adviser or an affiliated person of the 

Fund of Funds’Adviser by the 

Unaffiliated Underlying Fund, in 

connection with the investment by the 

Fund of Funds in the Unaffiliated 

Underlying Fund. 

8. Applicants state that with respect 

to Registered Separate Accounts that 

invest in a Fund of Funds, no sales load 

will be charged at the Fund of Funds 

level or at the Underlying Fund level. 

Other sales charges and service fees, as 

defined in Rule 2830 of the Conduct 

Rules of the National Association of 

Securities Dealers (‘‘NASD Conduct 

Rule 2830’’), will only be charged at the 

Fund of Funds level or at the 

Underlying Fund level, not both. With 

respect to other investments in a Fund 

of Funds, 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. 

9. Applicants represent that each 

Fund of Funds will represent in the 

Participation Agreement that no 

insurance company sponsoring a 

Registered Separate Account funding 

Variable Contracts will be permitted to 

invest in the Fund of Funds unless the 

insurance company has certified to the 

Fund of Funds that the aggregate of all 

fees and charges associated with each 

contract that invests in the Fund of 

Funds, including fees and charges at the 

separate account, Fund of Funds, and 

Underlying Fund levels, are reasonable 

in relation to the services rendered, the 

expenses expected to be incurred, and 

the risks assumed by the insurance 

company. 

10. Applicants state that the proposed 

arrangement will not create an overly 

complex fund structure because 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 in certain circumstances 

identified in condition 12 below. 

Applicants also represent that a Fund of 

Funds’ prospectus and sales literature 

will contain clear, concise, ‘‘plain 

English’’ disclosure designed to inform 

investors about the unique 

characteristics of the proposed 

arrangement, including, but not limited 

to, the 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 its affiliated persons or 

affiliated persons of such persons. 

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 Funds may be 

deemed to be under common control of 

the Fund of Funds’ Adviser and 

therefore affiliated persons of one 

another. Applicants also state that a 

Fund of Funds and the Underlying 

Funds may be deemed to be affiliated 

persons of each other if a Fund of Funds 

acquires 5% or more of an Underlying 

Fund’s outstanding voting securities. In 

light of these possible affiliations, 

section 17(a) could prevent an 

Underlying Fund from selling shares to 

and redeeming shares from a Fund of 

Funds.3

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 concerned; 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 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 transactions satisfy the 

requirements for relief under sections 

17(b) and 6(c) of the Act as the terms are 

fair and reasonable and do not involve 

overreaching. 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 also state 

that the proposed transactions 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. 

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58690 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Notices 

The members of a Sub-Adviser 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 a Sub-Adviser 

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 Sub-Adviser Group (except 

for any member of the Group or the SubAdviser Group that is a Separate 

Account) 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 a Sub-Adviser Group with 

respect to an Unaffiliated Underlying 

Fund for which the Fund of Funds’ SubAdviser or a person controlling, 

controlled by, or under common control 

with the Fund of Funds’ Sub-Adviser 

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). 

A Registered Separate Account will 

seek voting instructions from its 

Variable Contract holders and will vote 

its shares of an Unaffiliated Underlying 

Fund in accordance with the 

instructions received and will vote 

those shares for which no instructions 

were received in the same proportion as 

the shares for which instructions were 

received. An Unregistered Separate 

Account will either (i) 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; or (ii) seek voting 

instructions from its Variable Contract 

holders and vote its shares in 

accordance with the instructions 

received and vote those shares for 

which no instructions were received in 

the same proportion as the shares for 

which instructions were received. 

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 

Fund Affiliate. 

3. The Board of each Fund of Funds, 

including a majority of the Independent 

Trustees, will adopt procedures 

reasonably designed to assure that the 

Funds of Funds’ Adviser and any Fund 

of Funds’ Sub-Adviser to the Fund of 

Funds 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 

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 Independent 

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 Independent 

Trustees, will adopt procedures 

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 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 an Unaffiliated Fund 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. 

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 of securities in an 

Affiliated Underwriting 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 an 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 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 

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Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Notices 58691 

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 reliance on the requested 

order and subsequently in connection 

with the approval of any investment 

advisory contract under section 15 of 

the Act, the Board of each Fund of 

Funds, including a majority of the 

Independent 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 Fund in which the Fund of 

Funds may invest. Such 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 Funds of Funds’ Adviser will 

waive fees otherwise payable to it by a 

Fund of Funds in an amount at least 

equal to any compensation (including 

fees received pursuant to any plan 

adopted by an Unaffiliated Fund 

pursuant to rule 12b–1 under the Act) 

received from an Unaffiliated 

Underlying Fund by the Funds of 

Funds’ Adviser, or an affiliated person 

of the Fund of Funds’ Adviser, other 

than any advisory fees paid to the Fund 

of Funds’ Adviser or its affiliated person 

by the Unaffiliated Fund, in connection 

with the investment by the Fund of 

Funds in the Unaffiliated Underlying 

Fund. Any Fund of Funds’ Sub-Adviser 

will waive fees otherwise payable to the 

Fund of Funds’ Sub-Adviser, directly or 

indirectly, by the Fund of Funds in an 

amount at least equal to any 

compensation received from an 

Unaffiliated Underlying Fund by the 

Fund of Funds’ Sub-Adviser, or an 

affiliated person of the Fund of Funds’ 

Sub-Adviser, other than any advisory 

fees paid to the Fund of Funds’ SubAdviser or its affiliated person by an 

Unaffiliated Fund, in connection with 

the investment by the Fund of Funds in 

the Unaffiliated Underlying Fund made 

at the direction of the Fund of Funds’ 

Sub-Adviser. In the event that the Fund 

of Funds’ Sub-Adviser waives fees, the 

benefit of the waiver will be passed 

through to the Fund of Funds. 

11. With respect to Registered 

Separate Accounts that invest in a Fund 

of Funds, no sales load will be charged 

at the Fund of Funds level or at the 

Underlying Fund level. Other sales 

charges and service fees, as defined in 

NASD Conduct Rule 2830, if any, will 

be charged at the Fund of Funds level 

or at the Underlying Fund level, not 

both. With respect to other investments 

in a Fund of Funds, 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. 

12. 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. 

For the Commission, by the Division of 

Investment Management, pursuant to 

delegated authority. 

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–23691 Filed 10–6–08; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. IC–28431; 812–13540] 

Eaton Vance Floating-Rate Income 

Trust, et al.; Notice of Application 

October 2, 2008. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of application for an 

order under section 6(c) of the 

Investment Company Act of 1940 

(‘‘Act’’) for an exemption from sections 

18(a)(1)(A) and (B) of the Act. 

APPLICANTS: Eaton Vance Floating-Rate 

Income Trust, Eaton Vance Senior 

Floating-Rate Trust, Eaton Vance Senior 

Income Trust, Eaton Vance Credit 

Opportunities Fund, and Eaton Vance 

Limited Duration Income Fund (each, a 

‘‘Fund’’ and collectively, ‘‘Funds’’). 

SUMMARY OF APPLICATION: Applicants 

request an order (‘‘Order’’) granting an 

exemption from sections 18(a)(1)(A) and 

(B) of the Act for a two-year period 

immediately following the date of the 

Order. The Order would permit each 

Fund to issue debt securities subject to 

asset coverage of 200% that would be 

used to refinance all of the Fund’s 

issued and outstanding auction 

preferred shares (‘‘APS Shares’’). The 

Order also would permit each Fund to 

declare dividends or any other 

distributions on, or purchase, capital 

stock during the term of the Order, 

provided that any class of senior 

securities representing indebtedness has 

asset coverage of at least 200% after 

deducting the amount of such 

transaction. 

FILING DATES: The application was filed 

on June 10, 2008, and amended on July 

2, 2008, July 29, 2008, and September 2, 

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 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 who wish to be 

notified of a hearing may request 

notification by writing to the 

Commission’s Secretary. 

ADDRESSES: Secretary, Securities and 

Exchange Commission, 100 F Street, 

NE., Washington, DC 20549–1090. 

Applicants: c/o Frederick S. Marius, 

Chief Legal Officer, Eaton Vance 

Management, 255 State Street, Boston, 

MA 02109. 

FOR FURTHER INFORMATION CONTACT: 

Courtney S. Thornton, Senior Counsel, 

at (202) 551–6812, or Janet M. 

Grossnickle, Assistant Director, at (202) 

942–6821 (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 SEC’s 

Public Reference Room, 100 F Street, 

NE., Washington, DC 20549–1520 (tel. 

202–551–5850). 

Applicants’ Representations 

1. Each of the Funds is organized as 

a Massachusetts business trust and is a 

closed-end management investment 

company registered under the Act. Each 

Fund is advised by Eaton Vance 

Management (‘‘Eaton Vance’’) and has 

issued and outstanding a class of 

common shares and a class of one or 

more series of APS Shares. 

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