Investment Management Staff Issues of Interest

The staff in the Division of Investment Management occasionally identifies issues under the Investment Company Act, the Investment Advisers Act or other federal securities laws that may benefit from being highlighted generally for investment companies, investment advisers and their counsel. The staff is providing summaries of these issues below. The summaries are not intended as a comprehensive summary of all legal and compliance matters pertaining to the topics discussed herein.  Rather, these responses are intended as general guidance and should not be relied on as definitive.  The summaries are not rules, regulations or statements of the Commission, and the Commission has neither approved nor disapproved these summaries.

Questions regarding the Issues of Interest should be directed to (202) 551-6865.

Investment Advisers Act

• Advisory Contracts - Consent (June 15, 2012)
• Dodd-Frank Act Changes to Investment Adviser Registration Requirements — Preliminary Results (June 2012)
• Regulation of Investment Advisers: Outline and Staff Views (April 2012)
• Advisory Contracts - Transition for Newly Registered and Registering Advisers (March 30, 2012)
• Persons Who Provide Advice Solely Regarding Matters Not Concerning Securities (March 27, 2012)

Investment Company Act

• Advisory Contracts — Combined Investment Advisory and Service Fees (October 5, 2012)
• Funds Using Tender Option Bond (TOB) Financings (March 29, 2012)
• Business Development Companies — Auditor Verification of Securities Owned (March 12, 2012)
• Rule 18f-3 under the Investment Company Act — Removal of a Class (September 2, 2010)
• Rules 436 and 482 under the Securities Act (August 10, 2010)

Investment Advisers Act

Advisory Contracts — Consent

Section 205(a)(2) of the Advisers Act generally makes it unlawful for an SEC-registered adviser to enter into or perform any investment advisory contract unless the contract provides that no assignment of the contract shall be made by the adviser without client consent. The staff recently was asked for its views on when an investment adviser may obtain consent for these purposes with respect to the assignment of an advisory contract that involved two steps. In particular, the assignment involved a transfer of 100% of the adviser’s outstanding voting securities. The securities of the investment adviser were transferred first temporarily (in this case for one day) to an intermediate entity solely for tax purposes, and then to the ultimate purchaser. The requestor asked whether it could obtain consent to both steps in the transaction at the same time, rather than obtaining consent separately ( i.e., obtaining consent to the temporary transfer first, and then obtaining consent to the ultimate transfer).

We advised the investment adviser that it may be sufficient for the adviser to obtain consent to both steps in the transaction at the same time. We noted that regardless of whether the adviser obtains consent at the same time or separately, it must provide sufficient information to its clients to enable them to make an informed decision, and the opportunity for the clients to withhold consent. We also noted that we were taking no position relating to the tax issues raised by the inquiry.

In providing this guidance, we noted certain previously issued related guidance. In particular, the staff previously has clarified that Section 205(a)(2) does not prohibit an adviser’s assignment of an investment advisory contract without client consent. The section merely provides that the contract must contain the specified provision. (See American Century Companies, Inc./J.P. Morgan & co. Incorporated Staff No-Action Letter (12/23/1997) available at http://sec.gov/divisions/investment/noaction/1997/americancentury122397.pdf )

Thus, the assignment of a non-investment company advisory contract without obtaining client consent could constitute a breach of the advisory contract, but not a violation of Section 205(a)(2). [June 15, 2012].

Advisory Contracts — Transition for Newly Registered and Registering Advisers

Sections 205(a)(2) and (3) of the Advisers Act generally prohibit registered advisers, and advisers required to be registered, from entering into, extending, renewing, or performing under an advisory contract that fails to include the provisions specified by those sections. In general, this means that an advisory contract must provide that (i) the contract may not be assigned by a registered adviser without the consent of the client and (ii) the registered adviser, if a partnership, will notify its clients of any change in membership within a reasonable time after such change.

As a result of the Dodd-Frank Act changes to the Advisers Act, previously exempt advisers are now required to register with the Commission. Nevertheless, newly registering advisers may be operating under existing advisory contracts that were entered into when such advisers were neither registered nor required to be registered with the Commission. As a result, these advisory contracts may fail to include the specified provisions of sections 205(a)(2) and (3). Advisers may need to seek the consent of their clients to amend the advisory contracts to include these provisions. Obtaining the consent of clients in a timely fashion to amend all existing advisory contracts, however, may be impracticable for some advisers.

The Commission has previously sought to minimize the disruption to the contracts of newly registering advisers when such contracts were permissible at the time they were entered into. See e.g., Investment Advisers Act Release No. 2333 (Dec. 2, 2004) (the Commission adopted rules to grandfather pre-existing contractual arrangements providing for performance-based compensation that were entered into when the adviser was exempt from registration) and Investment Advisers Act Release No. 3372 (Feb. 15, 2011) (the Commission adopted rules to grandfather pre- existing performance fee contractual arrangements that satisfied the requirements of the rule at the time that the contract was entered into ).

Accordingly, the staff would not recommend enforcement action to the Commission under sections 205(a)(2) and (3) of the Advisers Act if an adviser that has applied for registration but was not registered, nor required to be registered, when it entered into its advisory contracts, did not amend an advisory contract to include the provisions required by sections 205(a)(2) and (3), provided that: (i) the adviser undertakes to operate and perform under the advisory contract as if it contained the provisions specified in sections 205(a)(2) and (3), (ii) the adviser discloses such undertaking to the client and, in the case of a private fund client, each investor (or independent representative of the investors) in such client, (iii) the advisory contract was entered into or last amended prior to the submission of the adviser’s application for registration; and (iv) any future amendment of the advisory contract would include the statutory provisions set forth in sections 205(a)(2) and (3). [March 30, 2012]

Persons Who Provide Advice Solely Regarding Matters Not Concerning Securities

The staff occasionally is asked about the status under the Investment Advisers Act of 1940 ("Advisers Act") and the Investment Company Act of 1940 ("Company Act") of persons who provide advice solely regarding matters that do not concern securities (collectively, "Non-Securities Matters," and such persons, "Non-Securities Advisers"), including commodities, diamonds, precious metals, coins, and stamps. The staff's analysis of the status of Non Securities Advisers under the Advisers and the Company Acts is set forth below.

An investment adviser, as defined in Section 202(a)(11) of the Advisers Act, generally is required to register with the Commission unless the adviser qualifies for an exemption under Section 203(b) of the Advisers Act or is prohibited from registering under Section 203A of the Advisers Act. Section 202(a)(11) defines "investment adviser," in relevant part, as "any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as part of a regular business, issues or promulgates analyses or reports concerning securities." A Non-Securities Adviser therefore is not an investment adviser as defined in Section 202(a)(11) and would not be required to register under the Advisers Act, even if the Non-Securities Adviser provides advice on Non-Securities Matters to an investment company registered under the Company Act ("RIC") or a company which has elected to be a business development company pursuant to Section 54 of the Company Act ("BDC"). The staff understands that many Non-Securities Advisers to RICs register under the Advisers Act as a precautionary matter because they are not certain that the advice they provide has not or would not concern securities.

A Non-Securities Adviser may meet the definition of investment adviser under Section 2(a)(20) of the Company Act. Section 2(a)(20) of the Company Act defines an investment adviser to an investment company, in part, to include a person who "regularly furnishes advice to such company with respect to the desirability of investing in, purchasing or selling securities or other property, or is empowered to determine what securities or other property shall be purchased or sold by such company." A Non-Securities Adviser to a RIC or a BDC that meets the definition in Section 2(a)(20) of the Company Act is subject to the provisions of the Company Act that apply to an investment adviser. These provisions include, among others, Section 15 of the Company Act governing the investment adviser's contract and Section 17 of the Company Act prohibiting certain affiliated transactions. [March 27, 2012]

Investment Company Act

Advisory Contracts — Combined Investment Advisory and Service Fees

The staff recently was asked for its views on the following situation: a fund had separate administration and advisory agreements and its board wanted to combine the terms of each agreement into a single “management agreement” without obtaining shareholder approval of the single agreement under Section 15(a) of the Investment Company Act of 1940. The contractual relationships would be adjusted so that a different entity (i.e., the adviser) would be responsible for providing fund administration services, but the nature and level of services would not decrease. The management agreement would provide for a management fee rate equal to the sum of the advisory fee rate assessed under the existing advisory agreement, and the fee rate payable under the existing administration agreement. The management agreement would be approved by the board of directors of the fund, including a majority of independent directors. The fund would provide written notice of the new arrangement to existing shareholders no later than the mailing of the fund’s next periodic (annual or semi-annual) report, and would include this notice in any prospectus delivered to prospective shareholders, until such time as the prospectus is amended to reflect the existence of the new agreement. The fund’s prospectus fee table would be updated to reflect the new fee rate as part of the fund’s “management fees,” and not as an “other expense” of the fund. A footnote to the fee table breaking out the fee rates attributable to the advisory and administration services also would be included.

The staff previously granted no-action relief to the Franklin Templeton Group of Funds in the reverse situation: the fund sought to unbundle a combined advisory and administration agreement without obtaining shareholder approval based on certain representations.¹ In Franklin Templeton, and in this situation, the proposed changes would not reduce or modify in any way the nature or level of the advisory or administration services provided to the fund, and the aggregate advisory and administration fee rate payable by the fund would not exceed the aggregate fee rate payable by the fund under its existing agreements. In Franklin Templeton, and in this situation, the funds asserted that the contractual change described should not require shareholder approval as shareholders would not be disadvantaged by the change and obtaining shareholder approval would not serve a useful purpose and would involve unnecessary costs.

In our view, this situation is consistent with Franklin Templeton. We note that any future material change to the management agreement, including any amendment that results in increasing the overall combined advisory and administrative fee rates for the fund, would require approval by shareholders in accordance with Section 15(a).

¹ See Franklin Templeton Group of Funds, Staff No-Action Letter (July 23, 1997).

Funds Using Tender Option Bond (TOB) Financings

An open-end or closed-end investment company ("fund") registered under the Investment Company Act of 1940 ("Investment Company Act") may seek to arrange a secured financing through a special purpose trust (“TOB trust”). In this arrangement, the fund deposits a tax-exempt or other bond into the TOB trust. The TOB trust issues two types of securities: floating rate notes (“floaters” or “TOBs”) and a residual security junior to the floaters (“inverse floater”). The TOB trust sells the floaters to money market funds or other investors and transfers the cash proceeds and the inverse floater to the fund. The fund typically purchases additional portfolio securities with the cash proceeds. The inverse floater entitles the fund to any value remaining after the TOB trust satisfies its obligations to the TOBs holders and allows the fund to call in the floaters and "collapse" the TOB trust. A third-party liquidity provider guarantees the TOB trust’s obligations on the floaters. 

This arrangement involves a borrowing by the fund and implicates section 18 of the Investment Company Act, which prohibits an open-end fund from issuing any “senior security,” except for a borrowing from a bank with 300% asset coverage, and generally requires a closed-end fund to have 300% asset coverage for any "senior security" that represents an indebtedness. Section 18(g) generally defines a "senior security" as "any bond, debenture, note, or similar obligation or instrument constituting a security and evidencing indebtedness,” and provides that "‘senior security representing indebtedness’ means any senior security other than stock.” The staff has addressed TOB financings under section 18 on multiple occasions in reviewing fund registration statements and in the context of other communications with various funds and their counsel. In particular, the staff's position is that a TOB financing involves the issuance of a senior security by a fund unless the fund segregates unencumbered liquid assets (other than the bonds deposited into the TOB trust) with a value at least equal to the amount of the floaters plus accrued interest, if any. [March 29, 2012] 

Business Development Companies — Auditor Verification of Securities Owned

Under section 30(g) of the Investment Company Act and the Commission's Accounting Series Release No. 118 (Dec. 23, 1970), the certificate of independent public accountants ("auditor") contained in the financial statements of investment companies registered under the Investment Company Act must include a statement "that such independent public accountants have verified securities owned, either by actual examination, or by receipt of a certificate from the custodian." Although section 59 of the Investment Company Act does not make section 30(g) applicable to business development companies ("BDCs"), a BDC's auditor plays an important role under the Investment Company Act in preventing a BDC's assets from being lost, misused or misappropriated. Therefore, the staff believes that it is a best practice for a BDC to have its auditor verify all of the securities owned by the BDC, either by actual examination or by receipt of a certificate from the custodian, and affirmatively state in the audit opinion whether the auditor has confirmed the existence of all such securities. [March 12, 2012]

Rule 18f-3 under the Investment Company Act — Removal of a Class

Section 18(f)(1) generally prohibits a registered open-end investment company or series thereof (“Fund”) from issuing any “senior security.” Section 18(g) of the Investment Company Act defines “senior security,” in relevant part, as “any class of a stock having priority over any other class as to distribution of assets or payment of dividends.” Section 18(i) generally requires that every share of stock issued by a Fund “shall be a voting stock and have equal voting rights with every other outstanding voting stock.”

Rule 18f-3 under the Investment Company Act provides a conditional exemption from sections 18(f)(1) and 18(i) of the Investment Company Act to permit a Fund to issue more than one class of voting stock, each subject to certain different expenses and rights as specified in the rule, provided that each class in all other respects has the same rights and obligations as each other class. Rule 18f-3(f)(1) states that a Fund may offer a class of shares with an exchange privilege providing that the shares may be exchanged for certain securities of another Fund. Rule 18f-3(f) permits a Fund, subject to certain conditions, to offer a class of shares that converts to shares of another class of the same Fund. Nothing in rule 18f-3 permits a Fund with multiple classes of shares to separate a class from the other classes and merge that class into another Fund.

The staff is aware of a provision in the organizational documents of certain Funds that purports to authorize each Fund’s board of directors or trustees to designate any class of the Fund as a separate series (the “Provision”). The Provision is intended to facilitate the merger of the series created from the designated class into another Fund. The staff takes the view that the Provision conflicts with sections 18(f)(1) and 18(i) of the Investment Company Act. The staff believes that a Fund’s designation of any or all classes as separate series pursuant to the Provision creates differences in the rights and obligations of the classes not permitted by rule 18f-3, thus making the rule unavailable to the Fund. [September 2, 2010]

Rules 436 and 482 under the Securities Act

The staff has been asked whether an investment company registered under the Investment Company Act of 1940 ("Investment Company Act") or a company that has elected to be treated as a business development company under the Investment Company Act (each, a "Fund") may include ratings information from a nationally recognized statistical rating organization ("NRSRO") about securities issued by the Fund in an advertisement that complies with Rule 482 under the Securities Act of 1933 ("Securities Act") without including a written consent of the NRSRO that assigned the rating in the registration statement for the Fund's securities.

Rule 436 under the Securities Act, which generally requires the filing of written consents of experts ("Written Consents"), applies to an expert's report or opinion quoted or summarized in a prospectus or a registration statement. Rule 405 under the Securities Act defines "prospectus" as "a prospectus meeting the requirements of section 10(a) of the [Securities] Act," unless the context otherwise requires. An advertisement that complies with Rule 482 is a prospectus under Section 10(b), rather than Section 10(a), of the Securities Act. Pursuant to Rule 482(h), an advertisement that complies with Rule 482 need not be filed as part of the Fund's registration statement. Therefore, Rule 436 does not require a Fund to file a Written Consent for an expert's report or opinion quoted or summarized in a Rule 482 advertisement that is not filed as part of the Fund's registration statement. A Fund would be required to file a Written Consent for an expert's report or opinion quoted or summarized in a Rule 482 advertisement that is filed as part of the Fund's registration statement. [August 10, 2010]

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