Download - Practising Law Institute

Prospectus Disclosure and Delivery Requirements § 4:4.1[B] Rule 485A normal annual amendment to a fund’s registration statement,which merely updates the financial statements and makes a variety ofother non-material changes, will become effective immediately uponfiling pursuant to Rule 485(b) under the 1933 Act if the appropriatebox is checked on the cover page of Form N-1A. 31 To take advantage ofthis procedure, the fund must certify on the signature page that theamendment meets all of the requirements of Rule 485(b). In addition,if counsel to the fund has prepared or reviewed the amendment,counsel must furnish to the Commission at the time the amendmentis filed a written representation that the amendment does not containdisclosures that would render it ineligible to become effective underRule 485(b). A fund that fails to submit or post a required interactivedata exhibit will lose its right to use Rule 485(b) until the submissionor posting is completed.If immediate effectiveness under Rule 485(b) is not availablebecause of the materiality of the revisions, a fund has two otheroptions. Rule 485(a)(2) provides for automatic effectiveness seventyfivedays after filing, if the purpose of the filing is to add informationabout a new series of the fund; the fund may designate a later effectivedate that may be up to ninety-five days after filing. Otherwise,Rule 485(a)(1) provides for automatic effectiveness sixty days afterfiling (or on a later date designated by the fund which may be up toeighty days after filing). 32 If an earlier effective date is necessary, theSEC staff will cooperate in appropriate circumstances to accelerate theeffective date of the registration statement pursuant to section 8(a) ofthe 1933 Act and Rule 461 under the Act (which requires a writtenacceleration request by the fund and its underwriter). In allcases, automatic effectiveness is subject to the Commission staff ’sability to request the fund to voluntarily file a delaying amendmentif disclosure matters remain to be worked out, or ultimately theCommission’s ability to issue a stop order under section 8(b) of the1933 Act preventing effectiveness of the amendment.31. Rule 485(b) also permits the fund to designate an effective date that iswithin thirty days after the filing date. This procedure is often used toprovide adequate time to print revised prospectuses in advance and getthem into the hands of a distributor’s network of offices for use on andafter the effective date.32. The Commission staff noted in its 1994 “generic comment letter”: “It isthe staff’s position that the first day after filing is the day following theday of filing, not the day of filing. Thus, for a post-effective amendmentfiled on November 1, sixty days after filing is December 31 (notDecember 30). . . .”(Mutual Fund Reg., Rel. #9, 6/11)4–31