Federal Register / Vol. 74, No. 108 / Monday, June 8, 2009 / Notices 27209 

1WisdomTree Investments, Inc., et al., 

Investment Company Act Release Nos. 27324 (May 

18, 2006) (notice) and 27391 (June 12, 2006) (order), 

as amended by Investment Company Act Release 

Nos. 27976 (September 21, 2007) (notice) and 28015 

(October 17, 2007) (order) (together, the ‘‘Index 

Order’’). 

2WisdomTree Trust, et al., Investment Company 

Act Release Nos. 28147 (February 6, 2008) (notice) 

and 28174 (February 27, 2008) (order) (the ‘‘Active 

Order’’ and together with the Index Order, 

collectively ‘‘Prior Orders’’). The Prior Orders, 

among other things: (i) Permitted registered 

management investment companies and unit 

investment trusts that are not advised or sponsored 

by their investment adviser or an entity controlling, 

controlled by or under common control with their 

investment adviser, and not part of the same ‘‘group 

of investment companies’’ as defined in section 

12(d)(1)(G)(ii) of the Act as the Trust (‘‘Acquiring 

Funds’’), to acquire shares of the Funds (defined 

below) beyond the limits of section 12(d)(1)(A) of 

the Act; (ii) permitted each Fund and/or a broker 

to sell shares to an Acquiring Fund beyond the 

limits of section 12(d)(1)(B); and (iii) granted relief 

from sections 17(a)(1) and (2) to permit each Fund 

to sell its shares to, and redeem its shares from, an 

Acquiring Fund (‘‘Prior 12(d)(1) Relief’’). 

approved collection of information 

discussed below. 

Rule 20a–1 (17 CFR 270.20a–1) under 

the Investment Company Act of 1940 

(15 U.S.C. 80a–1 et seq.) requires that 

the solicitation of a proxy, consent, or 

authorization with respect to a security 

issued by a registered investment 

company (‘‘fund’’) be in compliance 

with Regulation 14A (17 CFR 240.14a– 

1 et seq.), Schedule 14A (17 CFR 

240.14a–101), and all other rules and 

regulations adopted under section 14(a) 

of the Securities Exchange Act of 1934 

(15 U.S.C. 78n(a)). It also requires a 

fund’s investment adviser, or a 

prospective adviser, to transmit to the 

person making a proxy solicitation the 

information necessary to enable that 

person to comply with the rules and 

regulations applicable to the 

solicitation. In addition, rule 20a–1 

instructs registered investment 

companies, that have made a public 

offering of securities and that hold 

security holder votes for which proxies, 

consents, or authorizations are not being 

solicited, to refer to the Commission’s 

rules governing information statements. 

Regulation 14A and Schedule 14A 

establish the disclosure requirements 

applicable to the solicitation of proxies, 

consents and authorizations. In 

particular, Item 22 of Schedule 14A 

contains extensive disclosure 

requirements for fund proxy statements. 

Among other things, it requires the 

disclosure of information about fund fee 

or expense increases, the election of 

directors, the approval of an investment 

advisory contract and the approval of a 

distribution plan. 

The Commission requires the 

dissemination of this information to 

assist investors in understanding their 

fund investments and the choices they 

may be asked to make regarding fund 

operations. The Commission does not 

use the information in proxies directly, 

but reviews proxy statement filings for 

compliance with applicable rules. 

It is estimated that funds file 

approximately 1,225 proxy solicitations 

annually with the Commission. That 

figure includes multiple filings by some 

funds. The total annual reporting and 

recordkeeping burden of the collection 

of information is estimated to be 

approximately 130,095 hours (1,225 

responses × 106.2 hours per response). 

Rule 20a–1 does not involve any 

recordkeeping requirements. Providing 

the information required by the rule is 

mandatory and information provided 

under the rule will not be kept 

confidential. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid 

control number. 

Please direct general comments 

regarding the above information to the 

following persons: (i) Desk Officer for 

the Securities and Exchange 

Commission, Office of Management and 

Budget, Room 10102, New Executive 

Office Building, Washington, DC 20503 

or send an e-mail to Shagufta Ahmed at 

Shagufta_Ahmed@omb.eop.gov; and (ii) 

Charles Boucher, Director/CIO, 

Securities and Exchange Commission, 

C/O Shirley Martinson, 6432 General 

Green Way, Alexandria, VA 22312; or 

send an e-mail to: 

PRA_Mailbox@sec.gov. Comments must 

be submitted to OMB within 30 days of 

this notice. 

Dated: June 1, 2009. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–13258 Filed 6–5–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28755; File No. 812–13650] 

WisdomTree Investments, Inc., et al.; 

Notice of Application 

June 1, 2009. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of application to amend: 

(1) A prior order under section 6(c) of 

the Investment Company Act of 1940 

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

2(a)(32), 5(a)(1), 22(d), 22(e), and 24(d) 

of the Act and rule 22c–1 under the Act, 

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

for an exemption from sections 17(a)(1) 

and 17(a)(2) of the Act, and under 

section 12(d)(1)(J) for an exemption 

from sections 12(d)(1)(A) and 

12(d)(1)(B) of the Act;1 and (2) a prior 

order under section 6(c) of the Act, for 

an exemption from sections 2(a)(32), 

5(a)(1) and 22(d) of the Act and rule 

22c–1 under the Act, under sections 6(c) 

and 17(b) of the Act for an exemption 

from sections 17(a)(1) and 17(a)(2) of the 

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

Act exempting certain transactions from 

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

the Act.2

SUMMARY OF APPLICATION: Applicants 

request an order (‘‘Order’’) to amend the 

Prior Orders to modify a condition so 

that Acquiring Funds may rely on the 

Prior Orders to invest in the 

WisdomTree India Earnings Fund 

(‘‘India Fund’’) and additional series of 

the WisdomTree Trust (‘‘Future Funds’’) 

that invest all of their respective assets 

in wholly-owned subsidiaries as 

described in the application. Applicants 

also seek to amend the Index Order by 

deleting the relief granted from the 

requirements of section 24(d) of the Act 

and revising related terms and 

conditions of the applications for the 

Index Order (‘‘Index Applications’’). 

APPLICANTS: WisdomTree Investments, 

Inc. (‘‘WTI’’), WisdomTree Asset 

Management, Inc. (the ‘‘Advisor’’), and 

WisdomTree Trust (‘‘Trust’’). 

FILING DATES: The application was filed 

on April 3, 2009 and amended on April 

22, 2009, and May 26, 2009. 

HEARING OR NOTIFICATION OF HEARING: 

An order granting the requested relief 

will be issued unless the Commission 

orders a hearing. Interested persons may 

request a hearing by writing to the 

Commission’s Secretary and serving 

applicants with a copy of the request, 

personally or by mail. Hearing requests 

should be received by the Commission 

by 5:30 p.m. on June 26, 2009, and 

should be accompanied by proof of 

service on applicants, in the form of an 

affidavit or, for lawyers, a certificate of 

service. Hearing requests should state 

the nature of the writer’s interest, the 

reason for the request, and the issues 

contested. Persons who wish to be 

notified of a hearing may request 

notification by writing to the 

Commission’s Secretary. 

ADDRESSES: Secretary, U.S. Securities 

and Exchange Commission, 100 F 

Street, NE., Washington, DC 20549– 

1090. Applicants: 48 Wall Street, Suite 

1100, New York, NY 10005. 

FOR FURTHER INFORMATION CONTACT: 

Barbara T. Heussler, Senior Counsel, at 


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27210 Federal Register / Vol. 74, No. 108 / Monday, June 8, 2009 / Notices 

3The tax treaty between India and Mauritius 

exempts corporate residents of Mauritius from the 

Indian capital gains tax and enables them to pay a 

reduced dividend withholding tax. 

4Condition 18 of the Index Order and condition 

12 of the Active Order (collectively, ‘‘Condition 

18’’) state that: No Fund will acquire securities of 

any other investment company or company relying 

on Section 3(c)(1) or 3(c)(7) of the 1940 Act in 

excess of the limits contained in Section 12(d)(1)(A) 

of the Act. 

5Applicants note that the Commission staff has 

permitted an open-end investment company to 

utilize a pass through investment vehicle in order 

to obtain favorable tax treatment without violating 

Section 12(d)(1) of the Act. See South Asia 

Portfolio, (1997 WL 107157) (Pub. avail. Mar. 12, 

1997). Applicants represent that the India Portfolio 

operates in a manner substantially similar to the 

pass through investment vehicle that is the subject 

of South Asia Portfolio no-action relief. 

6Section 3(a)(1) defines an ‘‘investment 

company’’ as any issuer that is or holds itself out 

as being engaged primarily, or proposes to engage 

primarily, in the business of investing, reinvesting, 

or trading in securities. Section 3(a)(1)(C) includes 

in the definition of an ‘‘investment company’’ any 

issuer that is engaged or proposes to engage in the 

business of investing, reinvesting, owning, holding, 

or trading in securities, and owns or proposes to 

acquire investment securities having a value 

exceeding 40% of the value of such issuer’s total 

assets on an unconsolidated basis. 

(202) 551–6990, or Michael W. Mundt, 

Assistant Director, at (202) 551–6820 

(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 via the Commission’s 

Web site by searching for the file 

number or an applicant using the 

Company name box, at http:// 

www.sec.gov/search/search.htm or by 

calling (202) 551–8090. 

Applicants’ Representations 

1. The Trust, a Delaware statutory 

trust registered under the Act as an 

open-end management investment 

company, is organized as a series fund 

with multiple series (the ‘‘Funds’’). 

WTI, a Delaware corporation with its 

principal offices in New York City, is 

the sole shareholder of the Advisor. WTI 

develops and maintains the proprietary 

stock index that serves as the basis for 

the India Fund. The Advisor is a 

Delaware corporation that is registered 

as an investment adviser under the 

Investment Advisers Act of 1940, as 

amended (‘‘Advisers Act’’). The 

Advisor, or an entity controlled by or 

under common control with the 

Advisor, will advise any Future Funds. 

BNY Investment Advisors (the 

‘‘Subadvisor’’) is registered as an 

investment adviser under the Advisers 

Act and serves as the subadvisor to the 

India Fund and its wholly-owned 

subsidiary, the WisdomTree India 

Investment Portfolio (‘‘India Portfolio’’). 

Any subadvisor for a Future Fund will 

be registered as an investment adviser 

under the Advisers Act and will not 

otherwise be an affiliated person of the 

Trust, the Advisor, or WTI. ALPS 

Distributors, Inc., a broker-dealer 

registered under the Securities 

Exchange Act of 1934, acts as distributor 

and principal underwriter of the India 

Fund and may perform such services for 

any Future Funds. 

2. The investment objective of the 

India Fund is to provide investment 

results that correspond generally to the 

price and yield performance, before fees 

and expenses, of its underlying index, 

the WisdomTree India Earnings Index 

(‘‘Underlying Index’’). The Underlying 

Index measures the performance of 

companies incorporated, listed and 

traded in India that are eligible for 

foreign investment and that meet 

specified liquidity and other criteria 

developed by WTI. The India Fund 

operates through the India Portfolio, a 

wholly-owned subsidiary organized in 

the Republic of Mauritius, in order to 

take advantage of favorable tax 

treatment by the Indian government 

pursuant to a taxation treaty between 

India and Mauritius.3 In seeking to 

achieve its investment objective, the 

India Fund invests all or substantially 

all of its assets in the India Portfolio. 

The India Portfolio invests directly in 

equity securities listed and traded in 

India using a ‘‘representative sampling’’ 

strategy with respect to its Underlying 

Index. Using this approach, the India 

Portfolio invests in a significant number 

of the component securities 

(‘‘Component Securities’’) of the 

Underlying Index, but usually not all 

the Component Securities. 

3. The applicants state that at least 

95% of the India Portfolio’s total assets 

(exclusive of collateral held from 

securities lending) are invested in the 

Component Securities of its Underlying 

Index. The India Portfolio is treated by 

the Trust as a ‘‘pass-through’’ entity for 

financial reporting and tax purposes, 

which means that the portfolio 

investments of the India Portfolio are 

treated as investments of the India Fund 

for financial reporting and tax purposes. 

By treating the India Portfolio as a passthrough entity, the India Fund complies 

with (and any Future Fund will comply 

with) the representation in the 

applications for the Index Order to 

invest at least 80% of its total assets in 

Component Securities and investments 

that have economic characteristics that 

are substantially identical to the 

economic characteristics of the 

Component Securities of its Underlying 

Index. 

4. The Prior 12(d)(1) Relief is subject 

to a condition that effectively prevents 

an Acquiring Fund from investing in a 

Fund if the Fund invests in another 

investment company in excess of the 

limits of section 12(d)(1)(A) of the Act.4

The India Fund currently invests in a 

wholly-owned subsidiary, India 

Portfolio, in excess of the limits of 

section 12(d)(1)(A) in reliance on certain 

no-action positions of the staff.5 The 

applicants seek to amend Condition 18 

of the Prior Orders so the Acquiring 

Funds may invest in the India Fund and 

in Future Funds that invest their 

respective assets in a wholly-owned 

subsidiary in a manner substantially 

similar to the India Fund. 

5. Applicants also seek to amend the 

Index Order to delete the relief 

previously granted from section 24(d) of 

the Act. In addition, applicants seek to 

amend the terms and conditions of the 

applications for the Prior Orders (‘‘Prior 

Applications’’) to provide that all 

representations and conditions 

contained in the Prior Applications and 

the current application that require a 

Fund to disclose particular information 

in the Fund’s prospectus (‘‘Prospectus’’) 

and/or annual report shall be effective 

with respect to the Fund until the time 

that the Fund complies with the 

disclosure requirements adopted by the 

Commission in Investment Company 

Act Release No. 28584 (Jan. 13, 2009) 

(‘‘Summary Prospectus Rule’’). 

Applicants state that such amendment 

is warranted because the Commission’s 

amendments to Form N–1A with regard 

to exchange-traded funds as part of the 

Summary Prospectus Rule reflect the 

Commission’s view with respect to the 

appropriate types of prospectus and 

annual report disclosures for an 

exchange-traded fund. 

Applicants’ Legal Analysis 

1. 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) of the 

Act if the exemption is consistent with 

the public interest and the protection of 

investors. Because the India Portfolio 

invests up to 100% of its assets in 

securities issued by Indian companies, 

applicants state that the India Portfolio 

could be viewed as an investment 

company as defined in section 3(a) of 

the Act.6 Therefore, the India Fund’s 

investment in the India Portfolio could 

be viewed as causing the India Fund to 


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Federal Register / Vol. 74, No. 108 / Monday, June 8, 2009 / Notices 27211 

7All representations and conditions contained in 

this application and the Prior Applications that 

require a Fund to disclose particular information in 

the Fund’s Prospectus and/or annual report shall 

remain effective with respect to the Fund until the 

time that the Fund complies with the disclosure 

requirements contained in the Summary Prospectus 

Rule. 

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

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

fail to comply with Condition 18 of the 

Prior Orders. 

2. Applicants state that the concerns 

that sections 12(d)(1) was designed to 

prevent about undue influence, 

excessive layering of fees and overly 

complex structures, are not present in 

the India Portfolio and other passthrough investment vehicles used solely 

for purposes of achieving favorable tax 

treatment. Applicants represent that the 

India Fund is the sole legal and 

beneficial owner of the India Portfolio, 

thus eliminating any concerns regarding 

pyramiding of voting control; the 

Advisor and Subadvisor direct the 

portfolio management of both the India 

Fund and the India Portfolio, which is 

a pass-through investment vehicle, thus 

eliminating concerns over any undue 

influence of the Advisor or Subadvsior; 

and there is no layering of fees as a 

result of the India Fund operating 

through the India Portfolio. Applicants 

further represent that any Future Fund 

will operate through a wholly-owned 

investment vehicle that qualifies for 

pass-through tax and accounting 

treatment in a manner similar to that of 

the India Fund. Applicants believe that 

given the absence of section 12(d)(1) 

concerns in this structure, it will not 

create any additional section 12(d)(1) 

concerns if Acquiring Funds are 

permitted to acquire shares of the India 

Fund and any Future Fund subject to 

the terms and conditions of the Prior 

12(d)(1) Relief, as amended by this 

application. 

3. Applicants submit that the 

proposed amendment to Condition 18 of 

the Prior Orders addresses the concerns 

underlying the limits in section 12(d)(1) 

of the Act and that the requested 

exemption is consistent with the public 

interest and the protection of investors. 

Applicants state that all representations 

contained in the relevant Prior 

Applications relating to the operation of 

the India Fund will remain in effect and 

will apply to any Future Funds. 

Section 24(d) of the Act: 

4. Applicants seek to amend the Index 

Order to delete the relief granted from 

section 24(d) of the Act. Applicants 

state that the deletion of the exemption 

from section 24(d) that was granted in 

the Index Order is warranted because 

the adoption of the Summary 

Prospectus Rule should supplant any 

need by a Fund to use a product 

description. The deletion of the relief 

granted with respect to section 24(d) of 

the Act from the Index Order also will 

result in the deletion of related 

discussion in the Index Applications, 

revision of the Index Applications to 

delete references to product 

descriptions, including in the 

conditions, and the deletion of 

condition 6 to the Index Order. 

Conditions 

Applicants agree that any Order of the 

Commission granting the requested 

relief will be subject to the same 

conditions as those imposed by the 

Prior Orders, except for Condition 18 to 

the Prior Orders, which will be 

amended as follows: 

No Fund will acquire securities of any 

investment company or company relying on 

Section 3(c)(1) or 3(c)(7) of the Act in excess 

of limits contained in Section 12(d)(1)(A) of 

the Act, other than the India Portfolio or any 

similar wholly-owned subsidiary. 

In addition, with respect to the Index 

Order, condition 6 will be deleted and 

conditions 4 and 7 will be amended as 

follows: 7

4. The Web site for each Fund, which will 

be publicly accessible at no charge, will 

contain the following information, on a per 

Share basis, for each Fund: (a) the prior 

Business Day’s NAV and the reported closing 

price, and a calculation of the premium or 

discount of such price against such NAV; and 

(b) data in chart format displaying the 

frequency distribution of discounts and 

premiums of the daily closing price against 

the NAV, within appropriate ranges, for each 

of the four previous calendar quarters. 

7. Each Fund’s Prospectus will clearly 

disclose that, for purposes of the Act, 

Shares are issued by the Funds and that 

the acquisition of Shares by investment 

companies is subject to the restrictions 

of section 12(d)(1) of the Act, except as 

permitted by an exemptive order that 

permits registered investment 

companies to invest in a Fund beyond 

the limits of section 12(d)(1), subject to 

certain terms and conditions, including 

that the registered investment company 

enter into an agreement with the Fund 

regarding the terms of the investment. 

For the Commission, by the Division of 

Investment Management, pursuant to 

delegated authority. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–13204 Filed 6–5–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–60018; File No. SR–CBOE– 

2009–031] 

Self-Regulatory Organizations; 

Chicago Board Options Exchange, 

Incorporated; Notice of Filing of 

Proposed Rule Change Amending 

CBOE Rules Relating to the Penny 

Pilot Program 

June 1, 2009. 

Pursuant to Section 19(b)(1) 1 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’) 2 and Rule 19b–4 thereunder,3

notice is hereby given that, on May 28, 

2009, the Chicago Board Options 

Exchange, Incorporated (‘‘CBOE’’ or the 

‘‘Exchange’’) filed with the Securities 

and Exchange Commission (the 

‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

prepared by the Exchange. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange is proposing to amend 

CBOE rules relating to the Penny Pilot 

Program. The text of the rule proposal 

is available on the Exchange’s Web site 

(http://www.cboe.org/legal), at the 

Exchange’s Office of the Secretary and 

at the Commission’s Public Reference 

Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

self-regulatory organization included 

statements concerning the purpose of 

and basis for the proposed rule change 

and discussed any comments it received 

on the proposed rule change. The text 

of these statements may be examined at 

the places specified in Item IV below. 

CBOE has prepared summaries, set forth 

in sections A, B, and C below, of the 

most significant parts of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

CBOE proposes to extend and expand 

the Penny Pilot Program, which 


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