Securities Exchange Act of 1934
Exemptive and No-Action Letter: First Trust Exchange-Traded Fund IV and Tender Offer for Shares of Funds
Response of the Office of Mergers and Acquisitions
Division of Corporation Finance
June 21, 2012
Via Facsimile and U.S. Mail
Suzanne M. Russell, Esq.
Chapman and Cutler LLP
111 West Monroe Street
Chicago, IL 60603
Re: First Trust Exchange-Traded Fund IV and Tender Offer for Shares of Funds
Dear Ms. Russell:
We are responding to your letter requesting exemptive and no-action relief dated June 21, 2012 and addressed to Michele M. Anderson and Peggy Kim as supplemented by telephone conversations with the staff. To avoid having to recite or summarize the facts set forth in your letter, our response is attached to the enclosed photocopy of your correspondence. Unless otherwise noted, capitalized terms in this letter have the same meaning as in your June 21, 2012 correspondence.
On the basis of the representations made and the facts presented in your June 21, 2012 letter, the United States Securities and Exchange Commission (“Commission”) hereby grants an exemption from Rule 14e-5 under the Exchange Act. The exemption from Rule 14e-5 permits any person acting as a dealer-manager of a tender offer for a security in which the Requesting Fund invests to either redeem Requesting Fund Shares in “creation unit” size aggregations to the Requesting Fund for a redemption basket that may include a security subject to the tender offer and/or purchase Requesting Fund Shares in the secondary market during such tender offer.
In addition, on the basis of the representations made and the facts presented in your June 21, 2012 letter, the staff of the Division of Corporation Finance will not recommend that the Commission take enforcement action under Rule 14e-5 if a broker-dealer acting as a dealer-manager of a tender offer for any securities in which the Requesting Fund invests purchases such securities in the secondary market for the purpose of tendering them to purchase one or more Creation Units of Requesting Fund Shares, as described in your letter.
In granting this relief, we note in particular that:
- any bids, purchases or redemptions by dealer-managers would not be effected for the purpose of facilitating a tender offer;
- any purchases of a portfolio security by a dealer-manager during a tender offer will be effected as adjustments to a basket of securities in the ordinary course of business as a result of a change in the composition of a Requesting Fund’s portfolio; and
- except for the relief specifically granted herein, any person acting as a dealer-manager of a tender offer will comply with Rule 14e-5.
The foregoing exemptive and no-action relief is based solely on the representations and the facts presented in your letter, as supplemented by telephone conversations with the Commission staff. The relief granted is strictly limited to the application of the rule listed above to the transactions described in your letter. You should discontinue these transactions pending further consultations with the staff if any of the facts or representations set forth in your letter change. In addition, this position is subject to modification or revocation if at any time the Commission or the Division of Corporation Finance determines that such action is necessary or appropriate in furtherance of the purposes of the Exchange Act.
We also direct your attention to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Sections 10(b) and 14(e) of the Exchange Act, and Rule 10b-5 thereunder. The participants in the transactions contemplated by your letter must comply with these and any other applicable provisions of the federal securities laws. The Division of Corporation Finance expresses no view on any other questions that may be raised by these transactions, including but not limited to, the adequacy of disclosure concerning and the applicability of any other federal or state laws to such transactions.
For the Commission,
By the Division of Corporation Finance
pursuant to delegated authority,
Michele M. Anderson
Chief, Office of Mergers and Acquisitions
The Incoming Letter is in Acrobat format.