May
29, 1997
RESPONSE OF THE OFFICE OF CHIEF COUNSEL
DIVISION OF
INVESTMENT MANAGEMENT
Re: Our Ref. No. 97-243-CC
Lamp
Technologies, Inc.
File No. 132-3
By letter dated May
6, 1997, you request assurance that the staff would not recommend that the
Commission take enforcement action if certain information concerning private
investment companies is posted on a web site administered by Lamp Technologies, Inc. ("Lamp"), under
the circumstances described below. Specifically, you request assurance that the
posting of information on the web site will not (i) involve any form of general
solicitation or general advertising on behalf of a participating fund within the
meaning of rule 502(c) of Regulation D under the Securities Act of 1933
("Securities Act"), (ii) constitute a public offering of securities by a
participating fund within the meaning of Section 3(c)(1) or section 3(c)(7) of
the Investment Company Act of 1940 ("Investment Company Act"), or (iii) cause
any investment adviser to a participating fund to be deemed to be holding itself
out generally to the public as an investment adviser within [*2] the meaning of Section 203(b)(3) of the
Investment Advisers Act of 1940 ("Advisers Act").
Facts
Lamp is engaged in the business of data
processing, software development and the creation and maintenance of web sites.
Lamp proposes to establish and administer a web site that will contain
information concerning funds excluded from regulation as investment companies
pursuant to Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act and
privately offered pursuant to Regulation D under the Securities Act ("private
funds"). n1 You represent that neither Lamp nor any of its affiliates will
operate or provide investment advisory services to any of the private funds
listed on the site. n2 The investment advisers of the private funds listed on
the web site may
be registered under the Advisers Act or they may be exempt from registration
pursuant to section 203(b)(3) of the Advisers Act. n3 You anticipate that
managers of the private funds will post both descriptive information (for
example, offering memoranda) and performance information relating to the funds
on the web site. You state that the web site is designed to streamline and
economize the transmission of private fund information [*3] among a select group of industry
professionals that in many cases already may have access to such information.
n1 Section 3(c)(1) excepts from the definition of investment
company any issuer (i) whose outstanding securities (other than short-term
paper) are beneficially owned by not more than 100 persons, and (ii) that is not
making and does not presently propose to make a public offering of its
securities. Section 3(c)(7) excepts from the definition of investment company
any issuer, the outstanding securities of which are owned exclusively by persons
who, at the time of acquisition of such securities, are "qualified purchasers"
(as defined in Section 2(a)(51) of the Act), and which is not making and does
not at that time propose to make a public offering of such securities.
n2 You also represent that Lamp is not a broker-dealer or
affiliated with a broker-dealer, no employee of Lamp is a registered
representative of a broker-dealer, and Lamp, its affiliates and their employees
will not in connection with the web site be involved in effecting transactions
in securities or assisting participants by negotiating transactions in
securities. You are not seeking assurance as to whether Lamp is required to be
registered as an investment adviser or broker-dealer in relation to the site.
Because Lamp's activities could raise issues concerning broker-dealer
registration, the Division of Market Regulation has asked us to inform you that
the representations made in Venture Listing Services, Inc. (pub. avail. June 15,
1994) appear to be relevant to the proposed activities. [*4]
n3 Section 203(b)(3), in
relevant part, provides an exemption from registration for any investment
adviser who during the preceding 12 months had fewer than 15 clients, and who
neither holds himself out generally to the public as an investment adviser nor
acts as an investment adviser to any registered investment company.
In
order to obtain access to the private fund information available on the web
site, a potential subscriber will be required to (i) complete a questionnaire
designed to allow Lamp to form a reasonable basis for determining that the
subscriber is an "accredited investor" within the meaning of Securities Act
Regulation D who has at least a $ 2 million investment portfolio, and (ii) pay a
subscription fee of approximately $ 500 per month. You represent that Lamp will
not be an agent of any subscriber to the web site. Subscribers who have
pre-qualified as accredited investors and who have paid the subscription fee
will receive a password permitting them access to the private fund information
posted on the web site. n4 You also represent that Lamp will require subscribers
to agree not to invest in any posted fund (other than funds in which the
subscriber or [*5] its
affiliates already invests, has already been solicited for or is already
actively considering an investment in) for 30 days following the subscriber's
qualification. You maintain that this waiting period, together with the
subscription fee and the fact that most private funds are only available to take
subscriptions on a quarterly or annual basis, ensure that subscribers do not
join to invest in any particular fund and that the qualification by Lamp of the
subscriber, therefore, is not deemed a solicitation for any particular fund.
n4 You represent that private funds posted on the web site and
their managers will not be given automatic access to the site by virtue of being
included in the database, but will be required to follow the normal subscription
procedure and pay the subscription fee. Moreover, subscribers must agree not to
deliver private fund information posted on the web site to anyone other than the
subscriber's authorized personnel and its professional advisers.
Analysis
The Commission has indicated that the
placement of private offering materials on a web site, without sufficient
procedures to limit access to accredited investors, would be inconsistent
[*6] with the
prohibition against general solicitation or advertising in rule 502(c) of
Regulation D. n5 In a no-action letter to IPOnet (pub. avail. July 26, 1996),
however, the staff of the Division of Corporation Finance stated that the
posting of a notice of a private offering on a web site would not be deemed a
"general solicitation" or "general advertising" within the meaning of Regulation
D when pre-qualification and password-protection procedures designed to limit
access to the web site were in place. n6
n5 See Use of Electronic
Media for Delivery Purposes, Securities Act Release No. 7233 (Oct. 6, 1995). The
Commission has requested comment whether the general solicitation prohibitions
should be relaxed for certain Regulation D offerings or sales to qualified
purchasers. See Securities Act Concepts and Their Effects on Capital Formation,
Securities Act Release No. 7314 (July 31, 1996) at text accompanying note 66.
n6 You note that, to ensure that the qualification of a
subscriber would not be deemed a solicitation for a particular offering, the
IPOnet letter required that subscribers not be permitted to participate in an
offering that was posted on the web site prior to the investor's qualification.
You maintain that this procedure is not practical in the case of private fund
offerings, which are made on a semi-continuous basis (quarterly or annually).
You therefore propose the 30-day waiting period described above to ensure that
subscribers do not join to invest in any particular private fund. [*7]
You maintain that the posting of
private fund information on the web site and the accessing of such information
by pre-qualified subscribers on a password-protected basis would not constitute
"general solicitation" or "general advertising" by any participating fund within
the meaning of Regulation D. You further maintain that the posting of private
fund related information on the web site, subject to the same procedures, would
not constitute a public offering of securities of any participating fund for
purposes of section 3(c)(1) or section 3(c)(7) of the Investment Company Act.
You note that, as a general matter, if an offer is public for purposes of the
Securities Act, it also would be public for purposes of section 3(c)(1) and,
presumably, section 3(c)(7). n7
n7 See, e.g., Gerard Rizzuti
(pub. avail. June 7, 1983).
In addition, you assert that an investment
adviser exempt from registration under section 203(b)(3) of the Advisers Act
should not, by virtue of posting private fund information on the web site
subject to the procedures described above, be deemed to be "holding itself out
generally to the public as an investment adviser." n8 You maintain that the web
site information [*8] will not
be "publicly available," because access to such information will be limited to a
select group of accredited investors through the pre-qualification procedures
and password-protection system. You represent that Lamp will require private
fund managers to agree to post only private fund related information on the web
site and to not offer other services (such as advisory services) or products on
the site. n9 You also maintain that the use of the site by unregistered
investment advisers is consistent with the safe harbor created by rule
203(b)(3)-1 under the Advisers Act, because the information listed on the site
will exclusively concern funds structured as limited partnerships that are
privately offered in compliance with Regulation D. n10
n8 The
Commission has stated that an adviser who uses a publicly available electronic
medium such as a web site to provide information about its services would not
qualify for the exemption from registration provided by section 203(b)(3) of the
Advisers Act. See Use of Electronic Media by Broker-Dealers, Transfer Agents,
and Investment Advisers for Delivery of Information, Securities Act Release No.
7288 (May
9, 1996), at text following note 32 (an investment adviser that advertises using
electronic media will be deemed to have offered its services to the public).
[*9]
n9 Cf. Munder Capital Management (pub. avail. May 17, 1996) (mutual fund related
documents available on a web site are not advertisements for the adviser's
advisory services unless they are "designed to maintain existing clients or
solicit new clients for the adviser").
n10 Rule 203(b)(3)-1(c)
provides that an investment adviser relying on the rule shall not be deemed to
be holding itself out generally to the public as an investment adviser, within
the meaning of section 203(b)(3), solely because it participates in a non-public
offering of limited partnership interests under the Securities Act.
Based on the use of procedures designed to limit access to the web site
information to a select group of accredited investors, we do not believe that
the proposed posting of private fund information on the web site would
constitute a public offering of securities by a participating fund within the
meaning of section 3(c)(1) or section 3(c)(7) of the Investment Company Act. n11
In addition, based on the use of procedures designed to limit access to the web
site information to a select group of accredited investors and your
representation that Lamp will require private fund [*10] managers to agree to post only private
fund related information on the web site and to not offer other services or
products on the site, we do not believe that an investment adviser who posts
only private fund information on the web site would be "holding itself out
generally to the public" as an investment adviser within the meaning of section
203(b)(3) of the Advisers Act.
n11 We note that, while access to
the web site would be limited to accredited investors, section 3(c)(7) funds
would be required to limit sales of securities to "qualified purchasers," as
defined in section 2(a)(51) of the Act.
We therefore would not recommend
that the Commission take enforcement action if Lamp posts information concerning
private funds on a web site that is password-protected and accessible only to
subscribers who are predetermined by Lamp to be accredited investors. n12
n12 We note that there may be other, equally effective,
procedures designed to restrict access to web site information that would not
cause a private fund to be unable to rely on section 3(c)(1) or section 3(c)(7)
of the Investment Company Act or a private fund manager to be unable to rely on
section 203(b)(3) of the Advisers Act. [*11]
The Division of Corporation
Finance has asked us to inform you that the qualification of accredited
investors in the manner described and the posting of a notice concerning a
private fund on a web site that is password-protected and accessible only to
subscribers who are predetermined by Lamp to be accredited investors would not
involve a "general solicitation" or "general advertising" within the meaning of
rule 502(c) of Securities Act Regulation D. In reaching this conclusion, the
Division notes that (i) both the invitation to complete the questionnaire used
to determine whether an investor is accredited and the questionnaire itself will
be generic in nature and will not reference any specific funds posted or to be
posted on the password-protected web site; (ii) the password-protected web site
will be available to a particular investor only after Lamp has made the
determination that the particular potential investor is accredited; and (iii) a
potential investor may
purchase securities only after the waiting period described in your letter. In
this regard, the Division takes no position as to whether the information
obtained by Lamp is sufficient to form a reasonable basis for believing [*12] an investor to be accredited.
These positions are based on the facts and circumstances set forth in
your letter. Any different facts or circumstances may require a different conclusion. n13
n13 We take this opportunity to express our view that we also
would not object if similar screening procedures were used by the publisher of a
private fund directory distributed in paper, rather than electronic, format.
Natalie S. Bej
Special Counsel
INQUIRY-1:
SIDLEY & AUSTIN
A PARTNERSHIP INCLUDING
PROFESSIONAL CORPORATIONS
ONE FIRST NATIONAL PLAZA
CHICAGO,
ILLINOIS 60603
TELEPHONE 312: 853-7000
TELEX 25-4364
FACSIMILE 312: 853-7036
FOUNDED 1866
WRITER'S DIRECT
NUMBER
(312) 853-2140
May 6, 1997
John
O'Hanlon, Esq.
Assistant Chief Counsel
Office of the General Counsel
Division of Investment Management
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Martin
Dunn, Esq.
Chief Counsel
Division of Corporation Finance
Securities
and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Lamp
Technologies, Inc.
No-Action Request
Gentlemen: [*13]
On behalf of this firms client, Lamp Technologies, Inc. ("Lamp"), we
are writing to request that the Division of Investment Management and the
Division of Corporation Finance confirm to us that they will not recommend that
the Securities and Exchange Commission (the "SEC") take any enforcement action
against Lamp or any participating hedge fund manager or investment adviser if
certain information concerning hedge funds is posted on a World Wide Web site
administered by Lamp, which site will be password-protected and accessible only
to subscribers who have been pre-qualified by Lamp as accredited investors as
defined in SEC Rule 501(a) and qualified eligible participants as defined in
Commodity Futures Trading Commission ("CFTC") Rule 4.7. We seek assurance that
the proposed activity will not (a) involve any form of general solicitation or
general advertising on behalf of any hedge fund within the meaning of Rule
502(c) under the Securities Act of 1933 (the "Securities Act"), (b) constitute a
public offering of securities by any hedge fund within the meaning of Section
3(c)(1) or Section 3(c)(7) of the Investment Company Act of 1940 (the "Company
Act"), or (c) cause any investment [*14]
adviser to a participating hedge fund to be deemed to be holding itself out
generally to the public within the meaning of Section 203(b)(3) of the
Investment Advisers Act of 1940 (the "Advisers Act").
Facts
Lamp is engaged in the businesses of data
processing, software development and the creation and maintenance of web sites.
n1 Lamp proposes to establish and administer a home page and other linked pages
(collectively, the "Site") on the World Wide Web which will contain regularly
updated information concerning hedge funds. Neither Lamp nor any of its
affiliates will operate or provide investment advisory services to any of the
hedge funds listed on the Site. Further, Lamp will not be an agent of any posted
hedge fund or hedge fund manager, nor will Lamp be an agent of any subscriber to
the Site. Lamp anticipates that the Site will be of value primarily to
investment and financial professionals, such as fund-of-funds managers
(including an affiliate of Lamp), hedge fund managers, broker-dealers, large
family investment offices, fund administrators and accounting firms. These
investment and financial professionals currently expend significant resources
compiling and maintaining [*15] hedge
fund information internally and the Site is primarily intended to give such
professionals an outside alternative that will improve the quality and
timeliness of hedge fund information in a cost-effective manner. At the same
time, because of the centralizing function of the Site, the managers of the
posted hedge funds will be spared the inefficiency of transmitting the same
information to all such professionals individually.
n1 Lamp
currently is not registered with the SEC or CFTC in any capacity. Lamp is not a
broker-dealer or affiliated with a broker-dealer, no Lamp employee is a
registered representative of a broker-dealer, and Lamp, its affiliates and their
employees will not in connection with the Site be involved in effecting
transactions in securities or assisting participants by negotiating transactions
in securities. We are not seeking assurance from the SEC as to whether Lamp
needs to be registered as an investment adviser or broker-dealer in relation to
the Site.
The hedge funds listed on the Site will be exempt from
registration as investment companies pursuant to Section 3(c)(1) or Section
3(c)(7) of the Company Act and will be privately offered pursuant [*16] to SEC Regulation D under the Securities
Act. The participating hedge funds will include funds closed to new capital and
funds currently accepting new capital. The investment advisers of the listed
hedge funds may
be either registered as investment advisers under the Advisers Act or exempt
from registration pursuant to Section 203(b)(3) of the Advisers Act. Each hedge
fund (or its manager or adviser) will pay Lamp a nominal fee to administer the
Site, primarily for the convenience of providing a central clearing point for
information which the hedge fund managers would otherwise send individually to
numerous entities. The fee paid by a hedge fund will be unrelated to whether a
fund is open or closed to new investment or to the performance of or sales of
interests by a fund. Each hedge fund manager will have exclusive control over
the content of information regarding its hedge fund downloaded to the Site,
although hedge fund managers may delegate the mechanical data entry
function to Lamp or another service provider. Lamp anticipates that hedge fund
managers will post both descriptive information (possibly including the fund's
offering memorandum) and performance-related information. [*17] Lamp will require participating hedge
fund managers to agree to post only hedge fund related information on the Site
and not to offer other services or products on the Site. The Site is not
generally intended as a mechanism for distributing required documents (e.g.,
Form ADV Part II) and notices under the Advisers Act, but each hedge fund
manager will undertake to make any deliveries of such required documents in
accordance with SEC Release No. 33-7289, dated May 9, 1996. The Site will also have an
interactive capability designed to allow subscribers to conduct searches of the
hedge fund data using user-selected criteria (e.g., all equity managers with
over $ 100 million under management and a five-year record). To facilitate user
searches, Lamp will organize the posted data in logical form and will perform
certain mathematical functions, such as computing return and volatility
statistics, for all hedge funds.
Because the hedge fund managers
themselves will be responsible for all posted information concerning the hedge
funds, a legend substantially as follows will also be prominently displayed:
THE INFORMATION INCLUDED IN THIS REPOSITORY IS THE RESPONSIBILITY
OF THE RESPECTIVE [*18] HEDGE
FUND MANAGERS. LAMP
TECHNOLOGIES, INC. HAS NOT TAKEN ANY STEPS TO VERIFY THE ADEQUACY,
ACCURACY OR COMPLETENESS OF ANY INFORMATION. NEITHER LAMP TECHNOLOGIES, INC., ITS AFFILIATES
NOR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES MAKES ANY
WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER, AND NONE OF THESE PARTIES
SHALL BE LIABLE FOR ANY LOSSES, DAMAGES, COSTS OR EXPENSES, OF EVERY KIND AND
DESCRIPTION, RELATING TO THE ADEQUACY, ACCURACY OR COMPLETENESS OF ANY
INFORMATION ON THIS REPOSITORY OR THE USE OF INFORMATION ON THIS REPOSITORY.
The entities Lamp intends to solicit to become subscribers to the Site
primarily constitute a select group of financially sophisticated investment and
financial professionals which may already monitor and gather
information from a wide range of hedge funds. Each subscriber will be
pre-qualified by Lamp as an "accredited investor" under SEC Rule 501(a) and a
"qualified eligible participant" ("QEP") under CFTC Rule 4.7 (essentially an
accredited investor which has at least a $ 2 million investment portfolio). In
order to be pre-qualified, a potential subscriber must complete a questionnaire
designed to enable Lamp to form a reasonable [*19] basis for believing that such potential
subscriber is both an accredited investor and a QEP. The questionnaire will be
generic in nature (i.e., it will not reference any of the particular hedge funds
included on the Site). After review of the questionnaire by Lamp, an eligible
entity will receive the opportunity to become a subscriber to the Site at a
substantial fee (currently anticipated at approximately $ 500 per month). Each
subscriber will receive a password permitting such subscriber continuous access
to the hedge fund information contained on the Site. Access to the non-generic
information posted on the Site, including the names of the posted hedge funds
and their advisers, will be restricted to such subscribers. n2 Each subscriber
will agree not to deliver hedge fund information posted on the Site to anyone
other than the subscriber's authorized personnel and its professional advisers.
n2 Posted hedge funds and their managers will not be given access
to the Site by virtue of such posting. Instead, they must follow the normal
subscription procedure and pay the subscription fee.
Legal Analysis
Rule 502(c) under the
Securities Act
We believe that the posting [*20] of hedge fund information on the Site and
the accessing of such information by qualified subscribers on a
password-protected basis will not constitute "any form of general solicitation
or general advertising" by any participating hedge fund under SEC Rule 502(c).
This conclusion follows from the primary purpose of the Site (i.e., efficient
information transmission rather than marketing), the pre-qualification of all
subscribers and the limited number and type of subscribers (i.e., those market
professionals willing to pay the substantial fee).
In reaching this
conclusion, we have also relied upon the IPONET no-action letter (pub. avail.
July 26, 1996) ("IPONET"), in which the Division of Corporation Finance
expressed its opinion that the operation of a World Wide Web site which posted
private offerings for a fee would not be deemed a general solicitation or
general advertising. The Site, as proposed by Lamp, will operate in a manner
similar to the site proposed in IPONET, as investors will be pre-qualified prior
to gaining access to a password-protected page on which information concerning
privately-offered hedge funds will be posted. In the present instance, as in
IPONET, (i) both [*21] the
invitation to complete the pre-qualifying questionnaire and the questionnaire
itself will be generic in nature and will not reference any specific funds
posted or to be posted, (ii) the password protected pages containing non-generic
information will be available to a prospective subscriber only after Lamp has
determined that the prospective investor is qualified and (iii) there will be a
waiting period prior to the time that a new subscriber may purchase securities of a posted
hedge fund. On the last point, IPONET investors were only granted access to
transactions posted after the investor's qualification. That procedure is not
practical here given the open-ended (i.e., continuous quarterly or annual sales)
nature of many hedge funds, so instead Lamp will require subscribers to agree
not to invest in any posted hedge fund (other than funds the subscriber or its
affiliates already invests in, has already been solicited for or is already
actively considering an investment in) for thirty days after the subscriber's
qualification. This waiting period (together with the substantial fee and the
fact that most hedge funds are only available to take subscriptions on a
quarterly or annual [*22] basis)
should be sufficient to insure that subscribers do not join to invest in any
particular hedge fund (and thus that the qualification by Lamp of such
subscriber is not deemed a solicitation for any particular hedge fund).
Section 3(c)(1) and Section 3(c)(7) of the Company Act
We further believe that the posting of certain hedge fund information on
the Site, as described above, will not constitute a public offering for any
participating hedge fund for purposes of Section 3(c)(1) or Section 3(c)(7) of
the Company Act. The basis of this belief is the same as that set forth above
for Securities Act purposes, and we note that the Division of Investment
Management has generally interpreted the non-public offering requirement of
Section 3(c)(1) as consistent with the "private offering" restrictions of
Regulation D (see, e.g., C. Evans Patterson no-action letter
(pub. avail. May
8, 1988)).
Section 203(b)(3) of the Advisers Act
Certain of the investment advisers to hedge funds that utilize the Site
will be registered with the SEC under the Advisers Act. However, Lamp would
prefer to also allow participation by unregistered advisers relying upon the
exemption provided by Section [*23]
203(b)(3) of the Advisers Act. In that regard, we believe that such an adviser
should not be deemed to be "holding itself out generally to the public as an
investment adviser" by virtue of posting hedge fund information on the Site.
We believe this conclusion follows from the primary purpose of the Site
and the nature, limited number and pre-qualification of potential subscribers.
We understand that an adviser holds itself out to the public through the
indiscriminate use of business cards or telephone listings. We are also aware
that the SEC has recently declared in Release No. 33-7288 that "if an adviser
uses a publicly available electronic medium such as a World Wide Web site to
provide information about its services, the adviser would not quality for the
exemption from registration in section 203(b)(3) of the Advisers Act." The Site
information, however, will not be "publicly available." Access to the Site will
be strictly limited through a password-protection system to financially
sophisticated subscribers who have been pre-qualified by Lamp as accredited
investors and QEPs. Lamp anticipates that the subscribers to the Site will be
investment and financial professionals such as [*24] fund-of-funds managers, hedge fund
managers, broker-dealers, large family investment offices, fund administrators
and accountants which may
already have access to most, if not all, of the hedge funds listed on the Site.
The Site is simply designed to streamline and economize the transmission of
information among a select group of industry professionals which may
already have access to such information. Furthermore, the managers/investment
advisers of the hedge funds posted on the Site will generally manage only one or
a few hedge funds and will generally not be seeking new investment advisory
clients.
We also believe that the use of the Site by an unregistered
investment adviser is within the safe harbor created by SEC Rule 203(b)(3)-1,
which provides, in relevant part, that "any person relying on this rule shall
not be deemed to be holding itself out generally to the public as an investment
adviser, within the meaning of section 203(b)(3), solely because it participates
in a non-public offering of limited partnership interests under the Securities
Act of 1933." The information listed on the Site will exclusively concern hedge
funds, which are structured as limited partnerships or [*25] other collective investment vehicles.
Each hedge fund manager will be required to represent to Lamp that the fund will
be privately offered in strict compliance with SEC Regulation D. The subscribers
to the Site will all be accredited investors eligible to participate in
Regulation D private placements. Finally, as discussed above, the subscriber
qualification process and the password-protection feature will be designed to
satisfy Regulation D requirements (as illustrated in IPONET). Consequently, it
is our belief that the unregistered advisers which post hedge fund information
on the Site are covered by Rule 203(b)(3)-1, and thus will not be deemed to be
holding themselves out generally to the public as investment advisers solely by
virtue of such activity.
Conclusion
Because access to the Site will be restricted to a select group of
subscribers who have been pre-qualified through the use of a generic
questionnaire as accredited investors and QEPs, we believe that the posting of
information concerning hedge funds on the Site will not (a) involve any form of
general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act, (b) constitute [*26] a public offering of securities within
the meaning of Section 3(c)(1) or Section 3(c)(7) of the Company Act, or (c)
cause any unregistered investment adviser to hold itself out generally to the
public within the meaning of Section 203(b)(3) of the Advisers Act. We
respectfully request your confirmation that you will not recommend that the SEC
take any enforcement action on the foregoing basis if the Site is established
and operated as described above.
Pursuant to SEC Release No. 33-6269, we
herewith enclose seven copies of this no-action request.
Please contact
the undersigned at (312) 853-2140 with any comments or questions you may
have.
Sincerely,
William D. Kerr