SEC Company Response from Invesco DB Commodity Index Tracking Fund (DBC) (CIK 0001328237) (DBC) — Dec 1, 2005
Invesco DB Commodity Index Tracking Fund (DBC) (CIK 0001328237)
Date: Dec. 1, 2005 · CIK: 0001328237 · Accession: 0001193125-05-235098
AI Filing Summary & Sentiment
File numbers found in text: 333-125325
Letter
United States Securities and Exchange Commission Re: DB Commodity Index Tracking Fund DB Commodity Index Tracking Master Fund Pre-Effective Amendment No. 4 to Registration Statement, filed on October 26, 2005, File No. 333-125325
Dear Ms. Garnett:
Thank you for your comment letter of November 28, 2005 addressed to Kevin Rich of DB Commodity Services LLC (the “Managing Owner”) regarding the captioned registration statement (the “Registration Statement”) for DB Commodity Index Tracking Fund (the “Fund”) and DB Commodity Index Tracking Master Fund (the “Master Fund”). This letter responds on behalf of the Managing Owner to the questions and comments you raised. Each of your numbered questions and comments is set forth below in italics, with our response immediately following. Capitalized terms used but not defined in this letter have the meaning given in the prospectus forming a part of the Registration Statement.
General
1. Please confirm that Authorized Participants acting as underwriters will distribute this prospectus in connection with their sales and please reflect this in your disclosure.
Ms. Karen J. Garnett
December 1, 2005
Response:
Based on telephone conversations between James Munsell of our office and Michael McTiernan of your office on November 29, 2005, in response to the foregoing comment we have added a clause to the third sentence under the heading “Plan of Distribution – Likelihood of Becoming a Statutory Underwriter” as set forth and underlined below:
“An Authorized Participant, other broker-dealer firm or its client will be deemed a statutory underwriter, and thus will be subject to the prospectus-delivery and liability provisions of the Securities Act, if it purchases a Basket from the Fund, breaks the basket down into its constituent Shares and sells the Shares to its customers; or if it chooses to couple the creation of a supply of new Shares with an active selling effort involving solicitation of secondary market demand for Shares.”
As discussed in our September 13, 2005 response to the first numbered comment in your comment letter of August 25, 2005, the recitals to the Form of Participant Agreement (exhibit 4.3 to the Registration Statement) further caution Authorized Participants that their activities as such may cause them to be statutory underwriters pursuant to the Securities Act. Additionally, Section 2 of the Form of Participant Agreement requires each Authorized Participant to represent that such Authorized Participant is a registered broker-dealer and a member in good standing of the National Association of Securities Dealers, Inc. (the “NASD”) or is exempt therefrom and to covenant that such Authorized Participant will comply with all applicable federal (and other) laws, rules and regulations (including, in the case of NASD members, the rules and regulations of the NASD), including, without limitation, the prospectus delivery requirements of Section 5 of the Securities Act and all applicable rules of Securities and Exchange Commission (the “SEC”). On the basis of the foregoing, we can confirm the Managing Owner has reasonable grounds to expect that Authorized Participants will distribute prospectuses in accordance with applicable provisions of the Securities Act and applicable rules of the SEC.
Plan of Distribution, page 72
2. Please include disclosure relating to the prospectus-delivery obligations of dealers who are neither Authorized Participants nor “underwriters” but are nonetheless participating in a distribution, and thus dealing with shares that are part of an “unsold allotment” within the meaning of Section 4(3)(C) of the Securities Act.
Response:
Based on telephone conversations between James Munsell of our office and Michael McTiernan of your office on November 29, 2005, in response to the
Ms. Karen J. Garnett
December 1, 2005
foregoing comment we have revised the disclosure under the heading “Plan of Distribution – Likelihood of Becoming a Statutory Underwriter” to include the following paragraph:
“Dealers who are neither Authorized Participants nor “underwriters” but are participating in a distribution (as contrasted to ordinary secondary trading transactions), and thus dealing with Shares that are part of an “unsold allotment” within the meaning of section 4(3)(C) of the Securities Act, would be unable to take advantage of the prospectus delivery exemption provided by section 4(3) of the Securities Act.”
* * *
We have not filed an Amendment No. 5 to the Registration Statement concurrently with the filing of this letter. We anticipate that Amendment No. 5 will be filed shortly, and that the changes set forth in this letter, along with other changes which, individually and in the aggregate, we do not consider to be material, will be reflected in Amendment No. 5.
If you have any further questions or comments, please do not hesitate to call me at 212 839 5458 or call my associate, Jim Munsell, at 212 839 5609.
Very truly yours,
/s/ Michael J. Schmidtberger
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Response Letter
SIDLEY AUSTIN
BROWN & WOOD LLP
BEIJING
BRUSSELS
CHICAGO
DALLAS
GENEVA
HONG KONG
LONDON
787 SEVENTH AVENUE
NEW YORK, NEW YORK 10019
TELEPHONE 212 839 5300
FACSIMILE 212 839 5599
www.sidley.com
FOUNDED 1866
LOS ANGELES
NEW YORK
SAN FRANCISCO
SHANGHAI
SINGAPORE
TOKYO
WASHINGTON, D.C.
WRITER’S DIRECT NUMBER
(212) 839-5458
WRITER’S E-MAIL ADDRESS
mschmidtberger@sidley.com
December 1, 2005
Karen J. Garnett (Mail Stop 4561)
Assistant Director
United States Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549
Re:
DB Commodity Index Tracking Fund
DB Commodity Index Tracking Master Fund
Pre-Effective Amendment No. 4 to Registration Statement, filed on
October 26, 2005, File
No. 333-125325
Dear Ms. Garnett:
Thank you for your comment letter of November 28, 2005 addressed to Kevin Rich of DB Commodity Services LLC (the “Managing
Owner”) regarding the captioned registration statement (the “Registration Statement”) for DB Commodity Index Tracking Fund (the “Fund”) and DB Commodity Index Tracking Master Fund (the “Master Fund”). This letter
responds on behalf of the Managing Owner to the questions and comments you raised. Each of your numbered questions and comments is set forth below in italics, with our response immediately following. Capitalized terms used but not defined in this
letter have the meaning given in the prospectus forming a part of the Registration Statement.
General
1.
Please confirm that Authorized Participants acting as underwriters will distribute this prospectus in connection with their sales and please reflect this in your disclosure.
Ms. Karen J. Garnett
December 1, 2005
Response:
Based on telephone conversations between James Munsell of our office and Michael McTiernan of your office on
November 29, 2005, in response to the foregoing comment we have added a clause to the third sentence under the heading “Plan of Distribution – Likelihood of Becoming a Statutory Underwriter” as set forth and underlined
below:
“An Authorized Participant, other broker-dealer
firm or its client will be deemed a statutory underwriter, and thus will be subject to the prospectus-delivery and liability provisions of the Securities Act, if it purchases a Basket from the Fund, breaks the basket down into its constituent
Shares and sells the Shares to its customers; or if it chooses to couple the creation of a supply of new Shares with an active selling effort involving solicitation of secondary market demand for Shares.”
As discussed in our September 13, 2005 response to the first numbered
comment in your comment letter of August 25, 2005, the recitals to the Form of Participant Agreement (exhibit 4.3 to the Registration Statement) further caution Authorized Participants that their activities as such may cause them to be
statutory underwriters pursuant to the Securities Act. Additionally, Section 2 of the Form of Participant Agreement requires each Authorized Participant to represent that such Authorized Participant is a registered broker-dealer and a member in
good standing of the National Association of Securities Dealers, Inc. (the “NASD”) or is exempt therefrom and to covenant that such Authorized Participant will comply with all applicable federal (and other) laws, rules and regulations
(including, in the case of NASD members, the rules and regulations of the NASD), including, without limitation, the prospectus delivery requirements of Section 5 of the Securities Act and all applicable rules of Securities and Exchange
Commission (the “SEC”). On the basis of the foregoing, we can confirm the Managing Owner has reasonable grounds to expect that Authorized Participants will distribute prospectuses in accordance with applicable provisions of the Securities
Act and applicable rules of the SEC.
Plan of Distribution, page 72
2.
Please include disclosure relating to the prospectus-delivery obligations of dealers who are neither Authorized Participants nor “underwriters” but are nonetheless
participating in a distribution, and thus dealing with shares that are part of an “unsold allotment” within the meaning of Section 4(3)(C) of the Securities Act.
Response:
Based on telephone conversations between James Munsell of our office and
Michael McTiernan of your office on November 29, 2005, in response to the
2
Ms. Karen J. Garnett
December 1, 2005
foregoing comment we have revised the disclosure under the heading “Plan of Distribution – Likelihood of Becoming a Statutory Underwriter” to
include the following paragraph:
“Dealers who are neither
Authorized Participants nor “underwriters” but are participating in a distribution (as contrasted to ordinary secondary trading transactions), and thus dealing with Shares that are part of an “unsold allotment” within the meaning
of section 4(3)(C) of the Securities Act, would be unable to take advantage of the prospectus delivery exemption provided by section 4(3) of the Securities Act.”
*
* *
We have not filed an Amendment No. 5 to the Registration Statement concurrently with the filing of this letter. We
anticipate that Amendment No. 5 will be filed shortly, and that the changes set forth in this letter, along with other changes which, individually and in the aggregate, we do not consider to be material, will be reflected in Amendment
No. 5.
If you have any further questions or comments,
please do not hesitate to call me at 212 839 5458 or call my associate, Jim Munsell, at 212 839 5609.
Very truly yours,
/s/ Michael J. Schmidtberger
Michael J. Schmidtberger
Enclosure
cc:
Kevin Rich
Gregory Collett
3