On October 7, 2020, the Securities and Exchange Commission (the "SEC") adopted Rule 12d1-4 under (the "Rule") the Investment Company Act of 1940 (the "1940 Act") and related amendments designed to put in place a comprehensive and streamlined regulatory framework for fund-of-funds arrangements.[1] This alert provides an overview of the recently adopted Rule and related rule and form amendments.
I. Background
Without exemptive relief or rules, funds investing in other funds are subject to stringent limits under section 12 of the 1940 Act.[2] These limits are meant to prevent arrangements that allow acquiring funds to benefit at the expense of acquired fund shareholders, as well as to alleviate concerns regarding the potential for duplicative and excessive shareholder fees and the formation of overly complex fund structures.[3]
Since the adoption of the section 12 limits on fund-of-funds investments, Congress has created multiple statutory exceptions that permit different types of fund-of-funds arrangements. In addition, the SEC has adopted exemptive rules and provided individual exemptive orders, and the staff has issued no-action letters. This combination of statutory exceptions, rules, orders, and interpretations has resulted in a regulatory regime under which substantially similar fund-of-funds arrangements are subject to different conditions.
II. Summary of New Regulatory Framework
To create a consistent and streamlined regulatory framework for fund-of-funds arrangements, the SEC adopted the Rule, rescinded Rule 12d1-2 under the 1940 Act and certain exemptive relief, withdrew certain staff letters, amended Rule 12d1-1 under the 1940 Act, and adopted related amendments to Form N-CEN. This new regulatory framework relies on broad control and voting conditions, as well as prohibitions on overly complex fund structures and duplicative fees and expenses, to prevent the exercise of any undue influence in fund-of-funds arrangements, all while permitting fund-of-funds structures that do not implicate the underlying concerns that led to the adoption of the section 12 limits. Notably, the SEC did not adopt the proposed 3% redemption limit that drew significant objections from the industry. The elements of the SEC’s new fund-of-funds framework are summarized below.
a. Rule 12d1-4 under the 1940 Act
The Rule permits a registered fund or business development company (“BDC”) (collectively referred to as “acquiring funds”) to acquire the securities of any other registered fund or BDC (collectively referred to as “acquired funds”) in excess of the limits set forth in section 12(d)(1) of the 1940 Act, subject to a consistent set of conditions (which are addressed in Section III below). The following table reflects the types of fund-of-funds arrangements that are permitted under new Rule 12d1-4:
| Acquiring Fund | Acquired Funds |
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Private funds and other unregistered investment companies, such as foreign funds, are not permitted to rely on the Rule as acquiring funds. As a result, private funds and other unregistered investment companies may acquire no more than 3% of a fund registered under the 1940 Act.[5]
In addition, the Rule provides an exemption from section 17(a) of the 1940 Act, which generally prohibits an affiliate of a fund (i.e., a first-tier affiliate), or an affiliate of such affiliate (i.e., a second-tier affiliate), from selling any security or other property to, or purchasing any security or other property from, the fund. Without this exemption, the Rule would be unworkable, because section 17(a) would prohibit: (i) a fund that holds 5% or more of an acquired fund’s securities from making any additional investments in the acquired fund;[6] and (ii) funds that are within the same fund group from investing in each other beyond the limits of section 12. Furthermore, the Rule provides an exemption from section 17(a) for the deposit and receipt of creation units by an acquiring fund that is a first- or second-tier affiliate of the acquired ETF solely by reason of: (i) holding, with the power to vote, 5% or more of the ETF’s shares; or (ii) holding, with the power to vote, 5% or more of any fund that is an affiliate of the ETF.
Notably, the Rule does not impose a 3% redemption limit on funds that rely on the Rule. As initially proposed, the Rule would have prohibited an acquiring fund that acquires more than 3% of an acquired fund’s outstanding shares from redeeming or submitting for redemption, or tendering for repurchase, more than 3% of the acquired fund’s total outstanding shares in any 30-day period (the “proposed redemption limit”). Industry feedback on the proposed redemption limit was not positive. Several commenters identified a number of concerns regarding the proposed redemption limit’s impact upon the liquidity of an acquiring fund’s portfolio, as well as operational issues that would impede compliance with the new liquidity risk management rule.[7] As a result of this feedback, the SEC decided to adopt, in lieu of the proposed redemption limit, a combination of conditions requiring: (i) that certain findings be made by the investment advisers of both the acquiring fund and the acquired fund in a fund-of-funds arrangement; and (ii) that both the acquiring fund and the acquired fund in a fund-of-funds arrangement enter into an agreement to memorialize the terms of the arrangement (including terms that serve as a basis for the required findings) when the acquiring and acquired funds do not have a common investment adviser. These conditions are discussed in Section III below.
b. Rescission of Rule 12d1-2; Amendment of Rule 12d1-1
The SEC rescinded Rule 12d1-2, which permits funds that primarily invest in funds within the same fund group to invest in unaffiliated funds and non-fund assets. With the rescission of Rule 12d1-2, a fund currently relying on section 12(d)(1)(G) of the 1940 Act[8] will no longer have flexibility to: (i) acquire the securities of other funds that are not part of the same fund group; or (ii) invest directly in stocks, bonds, and other securities. Instead, acquiring funds will have flexibility to invest in different types of funds and other asset classes under Rule 12d1-4.
Rescinding Rule 12d1-2 without further SEC action would mean that a fund currently relying on section 12(d)(1)(G) would no longer be able to acquire the securities of unaffiliated money market funds in reliance on Rule 12d1-1. As a result, the SEC adopted an amendment to Rule 12d1-1 to allow such funds to continue to invest in unaffiliated money market funds.
c. Rescission of Exemptive Relief; Withdrawal of Staff Letters
With limited exceptions, the SEC rescinded exemptive relief permitting fund-of-funds arrangements that fall within the scope of the Rule. Fund-of-funds exemptive relief that falls outside the scope of the Rule, as well as portions of fund-of-funds exemptive orders that grant relief from 1940 Act provisions outside the scope of the Rule, remains in place. The SEC also withdrew related no-action letters.
d. Amendments to Form N-CEN
The SEC amended Form N-CEN to require funds and UITs to report whether they are relying on the Rule or the statutory exception in section 12(d)(1)(G).
e. Effective Date
The Rule will be effective 60 days after publication in the Federal Register, but, in order to facilitate a transition period, the compliance date for the amendments to Form N-CEN will be 425 days after publication in the Federal Register. Further, the rescission of Rule 12d1-2 and the exemptive orders referenced above will be effective one year from the effective date of the Rule.
III. Conditions
The Rule includes conditions designed to prevent the abuses that historically were associated with fund-of-funds arrangements that led Congress to enact section 12(d)(1). The conditions, each of which is discussed below, are based on conditions found in prior fund-of-funds exemptive orders and suggestions from commenters on the rule’s initial proposing release.
a. Control Conditions
i. Ownership: “The acquiring fund and its advisory group will not control (individually or in the aggregate) an acquired fund…”[9]
“Control” is defined under the 1940 Act as the power to exercise a controlling influence over the management or policies of a fund, unless such power is solely the result of an official position with such fund.[10] There are rebuttable presumptions that any fund or advisory group that, directly or indirectly, beneficially owns more than 25% of the voting securities of a fund controls the fund, and that any fund or advisory group that does not own 25% does not control the acquired fund.[11] Therefore, an acquiring fund could make a substantial investment (i.e., up to 25% of the acquired fund’s shares measured at the time of investment) in an acquired fund without losing its ability to rely on the Rule.
To assess “control,” the Rule requires an acquiring fund to aggregate its holdings in an acquired fund with those across the acquiring fund’s advisory group. The Rule defines “advisory group” to mean either: “(1) an acquiring fund’s investment adviser or depositor, and any person controlling, controlled by, or under common control with such investment adviser or depositor; or (2) an acquiring fund’s investment sub-adviser and any person controlling, controlled by, or under common control with such investment sub-adviser.”[12] The SEC recognized in the Adopting Release that, in light of this broad definition, advisory groups may need to restructure information barriers to permit entities within the advisory group to share the necessary information to comply with the Rule.
ii. Voting Influence
In the Adopting Release, the SEC notes that, as a component of its fiduciary duty, an investment adviser ought to consider the voting requirements in the conditions set forth below when determining whether, and how much, an acquiring fund should invest in an acquired fund in reliance on the Rule.
1. Open-End Funds and UITs: “If the acquiring fund and its advisory group, in the aggregate, (A) hold more than 25% of the outstanding voting securities of an acquired fund that is a registered open-end management investment company or registered unit investment trust as a result of a decrease in the outstanding voting securities of the acquired fund,… each of those holders will vote its securities in the same proportion as the vote of all other holders of such securities…”
Notwithstanding the Rule’s 25% ownership limit (discussed above), the Rule nevertheless contemplates a scenario whereby an acquiring fund and its advisory group could establish collective control of an acquired fund through no action of their own. This may occur as a result of other shareholders redeeming their shares in the acquired fund, thereby increasing the collective ownership percentage of the acquiring fund and its advisory group. In such a circumstance, the Rule would not require the acquiring fund to dispose of acquired fund shares; rather, the acquiring fund and other entities within its advisory group may not rely on the Rule to acquire additional shares of the acquired fund. Once the acquiring fund and its advisory group establish collective ownership of more than 25% of an acquired fund, the acquiring fund and its advisory group will have to vote their shares in the same proportion as the votes of all other shareholders of the acquired fund (i.e., mirror voting).
2. Closed-End Funds: “If the acquiring fund and its advisory group, in the aggregate,… (B) hold more than 10% of the outstanding voting securities of an acquired fund that is a registered closed-end management investment company or business development company, each of those holders will vote its securities in the same proportion as the vote of all other holders of such securities…”[13]
In light of heightened concerns relating to aggressive activism and other forms of undue influence, the SEC adopted a lower ownership threshold for triggering the Rule’s voting condition in the closed-end fund context. With respect to closed-end funds, the Rule will require mirror voting if an acquiring fund and its advisory group hold more than 10% of the voting securities of a closed-end fund.
3. Requirement to Seek Voting Instructions: “In [any circumstance] where all holders of the outstanding voting securities of the acquired fund are required by [Rule 12d1-4] or otherwise under section 12(d)(1) to vote securities of the acquired fund in the same proportion as the vote of all other holders of such securities, the acquiring fund will seek instructions from its security holders with regard to the voting of all proxies with respect to such acquired fund securities and vote such proxies only in accordance with such instructions…”[14]
Where the Rule or section 12(d)(1) of the 1940 Act requires all of the security holders of an acquired fund to engage in mirror voting, and it would not be possible for every shareholder to engage in mirror voting, the acquiring fund(s) holding shares in the acquired fund must use pass-through voting. This condition may be triggered in instances where an acquired fund is offered solely to acquiring funds that rely on the rule, and each of the acquiring funds (together with their advisory groups) own enough of the acquired fund to trigger the mirror voting requirement. In such a circumstance, rather than having each acquiring fund and their respective advisory groups mirror each other’s votes, the Rule requires the acquiring fund’s shares to be “passed-through” to the acquiring funds’ shareholders for voting purposes.
iii. Exceptions from the Control Conditions: The control conditions applicable to funds-of funds arrangements under the Rule are not applicable if:
1. “The acquiring fund is in the same group of investment companies as an acquired fund;”[15] or
2. “The acquiring fund’s investment sub-adviser or any person controlling, controlled by, or under common control with such investment sub-adviser acts as an acquired fund’s investment adviser or depositor.”[16]
In the Adopting Release, the SEC noted that, in circumstances where an investment adviser manages both the acquiring fund and the acquired fund, it is unlikely that the investors in the acquiring fund would exert undue influence and use their vote to pursue initiatives that are inconsistent with the long-term interests of investors in the acquired fund.
b. Findings Conditions
The Rule requires the investment advisers of funds relying on the Rule to make certain evaluations and findings that are tailored to the specific concerns that underlie section 12(d)(1) of the 1940 Act. The Rule also requires: (i) tailored findings regarding acquiring UITs due to their unique structure; and (ii) certifications regarding separate accounts funding variable insurance contracts. In addition, where the acquiring fund and acquired fund in a fund-of-funds structure do not have the same investment adviser, such funds will be required to enter into a fund-of-funds investment agreement. Each of these conditions is discussed further below.
i. Management Companies
1. Acquiring Fund Findings: “If the acquiring fund is a management company [(i.e., not a UIT or separate account)], prior to the initial acquisition of an acquired fund in excess of the limits in section 12(d)(1)(A)(i) of the [1940] Act, the acquiring fund’s investment adviser must evaluate the complexity of the structure and fees and expenses associated with the acquiring fund’s investment in the acquired fund, and find that the acquiring fund’s fees and expenses do not duplicate the fees and expenses of the acquired fund…”[17]
In the Adopting Release, the SEC noted that, in evaluating the complexity of a fund-of-funds structure, an acquiring fund’s adviser should consider: (i) the complexity of the acquiring fund’s investment in an acquired fund relative to the complexity of direct investments in assets similar to the acquired fund’s holdings; (ii) whether the resulting structure would make it difficult for shareholders to appreciate the acquiring fund’s exposures and risks or circumvent the acquiring fund’s investment restrictions and limitations; and (iii) whether the acquired fund invests in other funds, which may create additional complexity.
The SEC further noted that, in evaluating the fees associated with an acquiring fund’s investment in an acquired fund, the acquiring fund’s investment adviser should consider: (i) whether the acquired fund’s advisory fees are for services that are in addition to, rather than duplicative of, the adviser’s own services to the acquiring fund; and (ii) other fees and expenses, such as sales charges, recordkeeping fees, sub-transfer agency fee, and fees for other administrative services.
2. Acquired Fund Findings: “If the acquired fund is a management company [(i.e., not a UIT or separate account)], prior to the initial acquisition of an acquired fund in excess of the limits in section 12(d)(1)(A)(i) of the [1940] Act, the acquired fund’s investment adviser must find that any undue influence concerns associated with the acquiring fund’s investment in the acquired fund are reasonably addressed and, as part of this finding, the investment adviser must consider at a minimum the following items: (1) [t]he scale of contemplated investments by the acquiring fund and any maximum investment limits; (2) [t]he anticipated timing of redemption requests by the acquiring fund;(3) [w]hether and under what circumstances the acquiring fund will provide advance notification of investments and redemptions; and (4) [t]he circumstances under which the acquired fund may elect to satisfy redemption requests in kind rather than in cash and the terms of any such redemptions in kind…”[18]
In the Adopting Release, the SEC noted that the list of factors to be considered by an acquired fund’s investment adviser, as enumerated in this condition, is not exhaustive, and that the acquired fund’s adviser should consider any other factor relevant under the circumstances.
- With respect to the requirement to consider the scale of contemplated investments by the acquiring fund in the acquired fund and any maximum investment limits, the SEC noted that the acquired fund’s adviser may determine: (i) that certain levels of investment by an acquiring fund are appropriate in light of the acquired fund’s operations; or (ii) that acquiring fund investments above a certain level would raise undue influence concerns because of the adverse effects of a potential large-scale redemption on the acquired fund and its investors.
- With respect to the requirement to consider the anticipated timing of acquiring fund redemption requests, the SEC noted that the acquired fund’s investment adviser may consider the potential impacts of immediate, large-scale redemption requests and determine that the undue influence concerns regarding an acquiring fund’s investment would be reasonably addressed only if the acquiring fund commits to submitting redemption requests over multiple days.
- With respect to the requirement to consider whether, and under what circumstances, the acquiring fund will be required to provide advance notification of investments and redemptions, the SEC noted that the acquired fund’s investment adviser may request or require that the acquiring fund provide advance notice of a large redemption before entering into a fund-of-funds investment agreement.
- With respect to the requirement to consider whether redemptions will be made in in kind, the SEC noted that the acquired fund’s investment adviser may consider whether to established a certain redemption threshold that must be met before redeeming shares in kind.
The SEC further noted that, in making its findings, an acquired fund’s investment adviser would need to consider any other relevant regulatory requirements, as well as the acquired fund’s liquidity risk management.
3. Board Reporting: “The investment adviser to each acquiring or acquired management company must report its evaluation, finding, and the basis for its evaluations or findings required by paragraphs [1 and 2 above], as applicable, to the fund’s board of directors, no later than the next regularly scheduled board of directors meeting.”[19]
ii. Unit Investment Trust Finding: “If the acquiring fund is a [UIT] and the date of initial deposit of portfolio securities into the UIT occurs after the effective date of [Rule 12d1-4], the UIT’s principal underwriter or depositor must evaluate the complexity of the structure associated with the UIT’s investment in acquired funds and, on or before such date of initial deposit, find that the UIT’s fees and expenses do not duplicate the fees and expenses of the acquired funds that the UIT holds or will hold at the date of deposit.”[20]
The required finding for a UIT differs from those of traditional funds, because: (i) a UIT is unmanaged and its portfolio fixed; and (ii) acquiring UITs typically raise different fee and expense concerns than traditional fund structures. In the Adopting Release, the SEC explained that, at the time of a UIT’s creation, its principal underwriter should consider the planned structure of the UIT’s holdings, noting that, if the UIT tracks an index, the determination should consider the index design, and whether the index design is likely to lead to the UIT holding acquired funds with duplicative fees or overly complex structures.
iii. Separate Accounts Funding Variable Insurance Contracts: “With respect to a separate account funding variable insurance contracts that invests in an acquiring fund, the acquiring fund must obtain a certification from the insurance company offering the separate account that the insurance company has determined that the fees and expenses borne by the separate account, acquiring fund, and acquired fund, in the aggregate, are consistent with the standard set forth in section 26(f)(2)(A) of the [1940] Act.”[21]
Section 26(f)(2)(A) of the 1940 Act provides that the fees and expenses borne by a variable insurance contract, in the aggregate, must be reasonable in relation to the services rendered, the expenses expected to be incurred, and the risks assumed by the insurance company. Several commenters on the Rule’s initial proposal highlighted that an acquiring fund’s investment adviser may have limited ability to obtain or compel the required certification from an unaffiliated insurance company.
b. Investment Agreement Condition
In the Adopting Release, the SEC notes that the purpose of the condition requiring fund-of-funds investment agreements is to empower funds relying on the Rule to negotiate and tailor appropriate terms to protect their respective interests in a fund-of-funds arrangement.
i. Fund-of-Funds Investment Agreement: “Unless the acquiring fund’s investment adviser acts as the acquired fund’s investment adviser and such adviser is not acting as the sub-adviser to either fund, the acquiring fund must enter into an agreement with the acquired fund effective for the duration of the funds’ reliance on this section, which must include the following: (A) [a]ny material terms regarding the acquiring fund’s investment in the acquired fund necessary to make the findings required [pursuant to the conditions for management companies and UITs set forth above]; (B) [a] termination provision whereby either the acquiring fund or acquired fund may terminate the agreement subject to advance written notice no longer than 60 days; and (C) [a] requirement that the acquired fund provide the acquiring fund with information on the fees and expenses of the acquired fund reasonably requested by the acquiring fund.”[22]
This condition will allow both acquiring and acquired funds to set contractual terms that will facilitate the evaluations and findings required under the Rule for traditional funds and UITs. The SEC noted that fund-of-funds investment agreements will also provide a mechanism for acquired funds to limit acquiring funds’ investments in reliance on the Rule and to arm themselves with other tools they desire to protect against potential undue influence from acquiring funds. The SEC further noted that such agreements are material contracts not made in the ordinary course of business and, as such, must be filed as an exhibit to the registration statement of each fund that is a party to such agreement.
c. Complex Fund Structure Conditions
In the Adopting Release, the SEC notes that complex multi-tier fund structures could lead to excessive fees and investor confusion. As a result, the Rule conditions generally restrict fund-of-funds arrangements to two tiers. The Rule, however, also includes exceptions to the two-tier limitation that are limited in scope and designed to capture circumstances that do not raise the concerns underlying section 12(d)(1).
i. Prohibition on Three-Tier Fund Structures: “No investment company may rely on section 12(d)(1)(G) of the [1940] Act or [Rule 12d1-4] to purchase or otherwise acquire, in excess of the limits in section 12(d)(1)(A) of the [1940] Act, the outstanding voting securities of an investment company (a “second-tier fund”) that relies on this section to acquire the securities of an acquired fund, unless the second-tier fund makes investments permitted by [the exceptions set forth below]…”[23]
This condition is designed to prevent an acquiring fund from also being an acquired fund under the Rule or under section 12(d)(1)(G) of the 1940 Act, except in limited circumstances, which are discuss below.
ii. Limitations on Acquired Funds’ Acquisition of Other Funds: “No acquired fund may purchase or otherwise acquire the securities of an investment company or private fund if immediately after such purchase or acquisition, the securities of investment companies and private funds owned by the acquired fund have an aggregate value in excess of 10 percent of the value of the total assets of the acquired fund…”
This condition provides flexibility for acquired funds to invest in private funds, structured finance vehicles, central funds, ETFs and other investment funds up to a 10% limit (the “10% Bucket”), regardless of the purpose and size of the investment in any one fund. Under the Rule, an acquired fund might utilize the 10% Bucket for cash management purposes outside of investments made in reliance on Rule 12d1-1, to equitize cash, or for any other portfolio management purposes. In the Adopting Release, the SEC noted that, where an acquired fund relies on the 10% Bucket to invest in an underlying fund in excess of the section 12(d)(1) limits, the acquired fund and underlying funds must comply with the conditions of the Rule as both acquiring and acquired funds, respectively, or operate pursuant to another exemption.
iii. Exceptions to Prohibition on Three-Tier Fund Structures: “[An acquired fund may invest, in addition to investments held in the 10% Bucket,] in: (A) [r]eliance on section 12(d)(1)(E) of the Act; (B) [r]eliance on § 270.12d1-1; (C) [a] subsidiary that is wholly-owned and controlled by the acquired fund; (D) [s]ecurities received as a dividend or as a result of a plan of reorganization of a company; or (E) [s]ecurities of another investment company received pursuant to exemptive relief from the [SEC] to engage in interfund borrowing and lending transactions.”[24]
In addition to the 10% Bucket, the Rule provides additional exceptions for three-tier fund structures designed to capture circumstances where an acquired fund may invest in another fund to efficiently manage uninvested cash, to address specific regulatory or tax limitations, or to facilitate certain transactions.
In particular, under the Rule, an acquired fund may:
- Invest all of its assets in a master fund in reliance on section 12(d)(1)(E);
- Invest in affiliated and unaffiliated money market funds in excess of the limits of section 12(d)(1);
- Invest in wholly owned subsidiaries, which are typically organized under the laws of a non-U.S. jurisdiction in order to invest in commodity-related instruments and certain other instruments for tax and other reasons; and
- Receive fund shares as a dividend or as a result of a plan of reorganization.
Furthermore, this condition will not prevent other funds from acquiring the voting securities of an acquiring fund in amounts of 3% or less, which, as the SEC notes, effectively creates a type of three-tier structure that does not raise the concerns that section 12(d)(1) was designed to prevent.
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[1] See Fund of Funds Arrangements, Investment Company Act Release No. 34045 (Oct. 7, 2020) (“Adopting Release”).
[2] Section 12(d)(1)(A) of the 1940 Act prohibits a registered fund (and companies, including funds, it controls) from: (i) acquiring more than 3% of another fund’s outstanding voting securities; (ii) investing more than 5% of its total assets in any one fund; or (iii) investing more than 10% of its total assets in funds generally. In addition, section 12(d)(1)(B) of the 1940 Act prohibits a registered open-end fund, and any principal underwriter thereof or broker-dealer, from knowingly selling securities to any other fund if, after the sale, the acquiring fund would: (i) together with companies it controls, own more than 3% of the acquired fund’s outstanding voting securities; or (ii) together with other funds (and companies they control), own more than 10% of the acquired fund’s outstanding voting securities.
[3] See Adopting Release at 7.
[4] Unlisted closed-end funds include interval funds, which are closed-end funds that offer to repurchase their shares at periodic intervals.
[5] Sections 3(c)(1) and 3(c)(7) of the 1940 Act subject private funds to a 3% limit on investments in registered funds.
[6] See section 2(a)(3) of the 1940 Act. If an acquiring fund holds 5% or more of the outstanding voting shares of an acquired fund, the acquiring fund is an “affiliate” of the acquired fund and the acquired fund is an “affiliate” of the acquiring fund.
[7] See Rule 22e-4 under the 1940 Act.
[8] Section 12(d)(1)(G) allows a registered open-end fund or UIT to acquire an unlimited amount of shares of other open-end funds and UITs that are in the same “group of investment companies.”
[9] Rule 12d1-4(b)(1)(i).
[10] See section 2(a)(9) of the 1940 Act.
[11] See id. The Adopting Release notes that a determination of control is not based solely on ownership of voting securities of a company and depends on the facts and circumstances of the particular situation. The SEC notes in the release that it has long held that “controlling influence” includes, in addition to voting power, a dominating persuasiveness of one or more persons, the act or process that is effective in checking or directing action or exercising restraint or preventing free action, and the latent existence of power to exert a controlling influence. Therefore, if facts and circumstances gave an acquiring fund and its advisory group the power to exercise a controlling influence over the acquired fund’s management or policies, the acquiring fund and other funds in its advisory group would not be able to rely on the Rule, even if the fund and its advisory group owned 25% or less of the acquired fund’s voting securities. See Adopting Release at 36-37.
[12] Rule 12d1-4(d).
[13] Rule 12d1-4(b)(1)(ii).
[14] Rule 12d1-4(b)(1)(ii).
[15] Rule 12d1-4(b)(1)(iii)(A).
[16] Rule 12d1-4(b)(1)(iii)(B).
[17] Rule 12d1-4(b)(2)(i)(A).
[18] Rule 12d1-4(b)(2)(i)(B).
[19] Rule 12d1-4(b)(2)(i)(C).
[20] Rule 12d1-4(b)(2)(ii).
[21] Rule 12d1-4(b)(2)(iii).
[22] Rule 12d1-4(b)(2)(iv).
[23] Rule 12d1-4(b)(3)(i).
[24] Rule 12d1-4(b)(3)(ii).
Contacts
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Marco E. Adelfio
Retired PartnerInvestment Managment