The Investment Company Institute (“ICI”) recently published a sample form of fund of funds investment agreement (the “Form Agreement”) to assist registered investment companies and business development companies (“Registered Funds”) desiring to operate as funds of funds in compliance with the new Rule 12d1-4 under the Investment Company Act of 1940, as amended (the “1940 Act”). Rule 12d1-4, which was adopted by the SEC on October 7, 2020,[i] permits a Registered Fund to acquire the securities of another Registered Fund in excess of the limits found in section 12(d)(1) of the 1940 Act without acquiring an exemptive order, provided that certain conditions are met. The Form Agreement is intended to help Registered Funds implement the new rule (including its condition that acquiring Registered Funds who do not share an investment adviser with the acquired fund enter into a fund of funds investment agreement memorializing the terms of their fund of funds arrangement prior to exceeding the investment limitations under section 12(d)(1)). To this end, the Form Agreement includes annotations that are intended to highlight certain issues and to assist in customizing the Form Agreement.
Copies of the Form Agreement and ICI’s memorandum regarding the Form Agreement are available online to persons with ICI user accounts[ii] through the following link.