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Frequently Asked Questions About Proxy Disclosure Enhancements Transition for Registered Investment Companies

The staff of the Division of Investment Management has prepared these responses to frequently asked questions about the transition for registered investment companies under rule and form amendments contained in the Securities and Exchange Commission’s recently issued Proxy Disclosure Enhancements Release Nos. 33-9089, 34-61175, IC-29092 (December 16, 2009). The Release amends Schedule 14A and Forms N-1A, N-2, and N-3 for management investment companies registered under the Investment Company Act of 1940 (“funds”), effective February 28, 2010.

These responses represent the views of the staff of the Division of Investment Management regarding how the effective date applies to the filing of proxy statements, as well as registration statements and post-effective amendments under the Securities Act of 1933 and the Investment Company Act. They are not a rule, regulation, or statement of the Commission. Further, the Commission has neither approved nor disapproved this information.

The Division of Corporation Finance has issued related Compliance and Disclosure Interpretations with respect to the Proxy Disclosure Enhancements Release.

Question 1

Question: The Proxy Disclosure Enhancements Release amends Schedule 14A and Forms N-1A, N-2, and N-3 for funds, effective February 28, 2010. How does the effective date apply to an existing fund’s proxy statements and Investment Company Act and Securities Act registration statements and post-effective amendments to registration statements?

Answer: If an existing fund’s fiscal year ends on or after December 20, 2009, any Securities Act or Investment Company Act registration statement or post-effective amendment to an existing registration statement must comply with the form amendments if filed on or after February 28, 2010.

If an existing fund’s fiscal year ends on or after December 20, 2009, any proxy statement must be in compliance with the new proxy disclosure requirements if filed on or after February 28, 2010. If the fund is required to file a preliminary proxy statement and expects to file its definitive proxy statement on or after February 28, 2010, then the preliminary proxy statement must be in compliance with the new proxy disclosure requirements, even if filed before February 28, 2010.

If a fund’s fiscal year ends before December 20, 2009, the fund’s registration statements and post-effective amendments and its proxy statements will not be required to be in compliance with the new disclosure requirements unless they are filed after the end of the fund’s 2010 fiscal year, even if filed on or after February 28, 2010.

Question 2

Question: If an existing fund has multiple series with different fiscal year ends, how does the effective date apply to the fund’s post-effective amendments to Investment Company and Securities Act registration statements?

Answer: If an existing fund has multiple series, and the fiscal year of any series ends on or after December 20, 2009, any post-effective amendment to the fund’s existing registration statement must comply with the form amendments if the amendment is filed on or after February 28, 2010, and the amendment is filed to make changes that affect a series with a fiscal year that ends on or after December 20, 2009.

Question 3

Question: How does the February 28, 2010 effective date affect a new fund?

Answer: If the new fund first files its registration statement on or after December 20, 2009, compliance with the amendments would be required for the registration statement to be declared effective on or after February 28, 2010.

If an existing fund adds a new series by filing a post-effective amendment on or after December 20, 2009, compliance with the amendments would be required for the registration statement to be declared effective or become effective automatically on or after February 28, 2010.

Question 4

Question: May a fund that is not required to comply with the new disclosure requirements do so on a voluntary basis?

Answer: Yes, a fund may provide the new disclosures on a voluntary basis and may provide some of the new disclosures without having to comply with all of the new requirements.

Question 5

Question: May an existing registered open-end management investment company make the changes necessary to comply with the new form requirements by filing an amendment pursuant to rule 485(b) under the Securities Act?

Answer: The staff would not object if an existing fund files a post-effective amendment, complying with the new disclosure requirements, pursuant to rule 485(b), provided that any other changes to the post-effective amendment meet the conditions for immediate effectiveness under the rule.

 

http://www.sec.gov/divisions/investment/guidance/
icproxydisclosuretransition.htm


Modified: 01/19/2010