Correspondence 0001104659-25-005301 from Pop Venture Fund (CIK 0002012830)
Pop Venture Fund (CIK 0002012830)
Date: Jan. 22, 2025 · CIK: 0002012830 · Accession: 0001104659-25-005301
AI Filing Summary & Sentiment
File numbers found in text: 333-278367, 811-23950
Letter
VIA EDGAR Securities and Exchange Commission Division of Investment Management 100 F Street, NE Washington, D.C. 20002 Re: The Pop Venture Fund (File Nos. 811-23950 and 333-278367)
Dear Mr. Brodsky and Ms. Hamilton:
On behalf of The Pop Venture Fund (the “Fund”) set forth below are the Fund’s responses to the comments provided by the staff (the “Staff”) of the Division of Investment Management of the U.S. Securities and Exchange Commission (the “SEC”) telephonically on January 15, 2025, January 16, 2025, and January 22, 2025 relating to the Fund’s Pre-Effective Amendment No. 4 to the Registration Statement on Form N-2 (File Nos. 811-23950 and 333-278367) (the “Registration Statement”) filed on January 10, 2025. The Staff’s comments are set forth below and are followed by the Fund’s responses. Capitalized terms used but not defined herein have the same meaning as set forth in the Registration Statement.
Comments Provided on January 15, 2025:
1. Comment: In connection with disclosure on page 1 of the filing, please confirm supplementally that the phrase “late-stage venture companies” would fall within the term “venture companies” as defined in that paragraph. Specifically, please confirm that “late-stage venture companies” are encompassed within the phrase “early through growth stage venture companies.”
Response: The Fund confirms that the phrase “late-stage venture companies” falls within the term “venture companies” as defined in that paragraph and also confirms that “late-stage venture companies” are encompassed within the phrase “early through growth stage venture companies.” The Fund has made corresponding updates to the Prospectus.
2. Comment: In connection with disclosure on page 5 discussing the contractual expense limitation, please revise the disclosure to reflect that the expense limitation will remain in
- 2 - January 22, 2025
effect for one year from the effective date of the Registration Statement. Please also disclose the duration of the expense limitation in the footnote to the fee table or alternatively, remove the waiver from the fee table and discuss it later in the Prospectus when the expense limitation is discussed.
Response: The Fund notes that this disclosure is contained in footnote #4 to the fee table in the prospectus. Nonetheless, the Fund has added additional disclosure to the prospectus.
3. Comment: The Staff notes that the filing refers to the Locker as a comprehensive screening, diligence and valuation software. If the reference to valuation here is in the context of Rule 2a-5, please consider clarifying that, in context of Rule 2a-5 compliance, the Locker will only be used as a means of collecting data from a private company.
Response: The Fund confirms that the reference to “valuation” in the description of the Locker as a “comprehensive screening, diligence and valuation software” is in the broad sense of the word “valuation” and not in the context of Rule 2a-5. The Fund has added disclosure noting that, in the context of compliance with Rule 2a-5, the Locker will only be used as a means of collecting data from Private Companies, not as a valuation tool.
4. Comment: In connection with the response to comment #35 in the Fund’s January 10, 2025 comment response letter, please consider disclosing the use of Houlihan Capital as the Valuation Consultant and their role and any other relevant information as appropriate.
Response: The Fund respectfully declines to make this change. The Board intends that a Valuation Consultant will always be used by the Fund as discussed in the Propsectus and as outlined in the Adviser’s Valuation Policies and Procedures. However, the Board desires to retain the flexibility to change Valuation Consultants without causing the Fund to have stale disclosure.
5. Comment: Also in connection with the response to comment #35 in the Fund’s January 10, 2025 comment response letter, the Staff notes that the response appears to indicate that, if there is a disagreement between the Valuation Consultant and the Valuation Designee, that the Valuation Consultant will make the final determination for the fair value for the holding in question. Please supplementally explain if this is accurate. And if so, please supplementally explain how this complies with Rule 2a-5 and, more specifically, the requirement under Rule 2a-5(b) that the Valuation Designee performs the fair value determination relating to any and all fund investments. The Staff may have additional comments based on the response provided.
Response: The Fund clarifies that if the Valuation Consultant disagrees with the Valuation Designee with respect to the fair value of the holding, the Valuation Consultant’s valuation and the Valuation Designee’s valuation would be presented to the Board. The Board would
- 3 - January 22, 2025
then make a determination in good faith as to the fair value to ascribe to the holding, consistent with the requirements of Rule 2a-5(b).
6. Comment: The Staff notes that the language in Article IV, Section 4.3 of the Fund’s Amended and Restated Declaration of Trust appears to waive officer and trustee fiduciary duties. The Staff understands that Delaware law permits a fund to eliminate or alter fiduciary duties of trustees or other persons and replace them with standards set forth in the Declaration of Trust. Revisions eliminating or altering fiduciary duties of a fund’s trustees or officers are inconsistent with the federal securities laws and the SEC’s express views of such persons’ fiduciary duties. Please add a provision to the Declaration of Trust or otherwise modify the document to clarify that, notwithstanding anything to the contrary in Declaration of Trust, nothing in that document modifying, restricting or eliminating the duties or liabilities of trustees or officers of the trust shall apply to or in any way limit the duties, including state law fiduciary duties, of loyalty and care, or liabilities of such persons with respect to matters arising under the federal securities laws.
Response: The Fund respectfully notes that Section 4.3 of the Declaration of Trust already includes the following statement: “Except as required by federal law, including the 1940 Act, neither the Trustees nor any officer of the Trust shall owe any fiduciary duty (whether arising at law or in equity) to the Trust or any Series or Class or any Shareholder (emphasis added).”
However, the Fund has amended its Declaration of Trust to include the following statement in Article IV, Section 4.3: “Notwithstanding any other provision in this Declaration of Trust to the contrary, nothing in this Declaration of Trust modifying, restricting or eliminating the duties or liabilities of Trustees or officers of the Trust shall apply to or in any way limit the duties, including state law fiduciary duties, of loyalty and care, or liabilities of such persons with respect to matters arising under the federal securities laws.” The Fund confirms that the Board has approved the amendment to the Declaration of Trust and that the this amendment is reflected in the Second Amended and Restated Declaration of Trust filed with Pre-Effective Amendment 4 to the Fund’s Registration Statement.
7. Comment: The Staff notes that language in Article VIII, section 8.9(a)(iii) requires that prior to commencement of a derivative action, the complaining shareholder must make a written demand on the Trustees. Please disclose this provision in an appropriate location in the Prospectus.
Response: The Fund confirms that the requested updates have been made.
8. Comment: With respect to the below provisions of the Fund’s Declaration of Trust, the Staff requests that language be added to the Declaration of Trust making it clear that the provisions do not apply to claims arising under the federal securities laws. With respect to the below
- 4 - January 22, 2025
provisions, the Staff also requests that Fund disclose these provisions in the prospectus, noting there as well that the provisions don’t apply to claims arising under the federal securities laws.
1. Section 8.9(a)(iv): “Shares representing at least ten percent (10%) of the outstanding Shares of the Trust or the affected Series or Class must join in initiating the derivative action.”
2. Section 8.9(c): “If the demand has been properly made hereunder, and a majority of the independent Trustees have considered the merits of the claim and have determined that maintaining a suit would not be in the best interests of the Trust or the affected Series or Class, as applicable, the demand shall be rejected and the Complaining Shareholders shall not be permitted to maintain a derivative action unless they first sustain the burden of proof to the court that the decision of the Trustees not to pursue the requested action was not a good faith exercise of their business judgment on behalf of the Trust.”
3. Section 8.9(e): “Each Complaining Shareholder whose demand is rejected pursuant to paragraph (c) above shall be responsible, jointly and severally, for the costs and expenses (including attorneys’ fees) incurred by the Trust in connection with the Trust’s consideration of the demand if a court determines that the demand was made without reasonable cause or for an improper purpose.”
4. Section 8.9(g): “In addition to all suits, claims or other actions (collectively, “claims”) that under applicable law must be brought as derivative claims, each Shareholder agrees that any claim that affects all Shareholders of the Trust or any Class or Series equally, that is, proportionately based on their number of Shares in the Trust or Class or Series, as well as any claim where the matters alleged (if true) would give rise to a claim by the Trust, must be brought as a derivative claim subject to this Section 8.9 irrespective of whether such claim involves a violation of the Shareholders’ rights under this Declaration of Trust or any other alleged violation of contractual or individual rights that might otherwise give rise to a direct claim.”
Response: The Fund confirms that the requested updates to the prospectus have been made. The Fund also confirms that it has added a statement to the Declaration of Trust that the provisions of Section 8.9 do not apply to claims arising under the federal securities laws and that the Board has approved the amendment to the Declaration of Trust. These amendments are reflected in the Second Amended and Restated Declaration of Trust filed with Pre-Effective Amendment 4 to the Fund’s Registration Statement.
- 5 - January 22, 2025
Comments Provided on January 16, 2025:
9. Comment: In connection with the response to comment #34 in the Fund’s January 10, 2025 comment response letter, the Staff notes that the cost approach is a specific type of approach in ASC 820 and is defined as a valuation approach that reflects the amount that would be required currently to replace the service capacity of the asset, also referred to as current
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filename1.htm
ROPES
& GRAY LLP
191
NORTH WACKER DRIVE
32nd
FLOOR
CHICAGO,
ILLINOIS 60606-4302
WWW.ROPESGRAY.COM
January 22, 2025 Paulita
A. Pike
T +1 312 845 1212
paulita.pike@ropesgray.com
VIA
EDGAR
Mr. Aaron
Brodsky and Ms. Lauren Hamilton
Securities and Exchange Commission
Division
of Investment Management
100 F Street, NE
Washington, D.C. 20002
Re: The
Pop Venture Fund (File Nos. 811-23950 and 333-278367)
Dear
Mr. Brodsky and Ms. Hamilton:
On
behalf of The Pop Venture Fund (the “Fund”) set forth below are the Fund’s responses to the comments provided by the
staff (the “Staff”) of the Division of Investment Management of the U.S. Securities and Exchange Commission (the “SEC”)
telephonically on January 15, 2025, January 16, 2025, and January 22, 2025 relating to the Fund’s Pre-Effective Amendment No. 4 to
the Registration Statement on Form N-2 (File Nos. 811-23950 and 333-278367) (the “Registration Statement”) filed on
January 10, 2025. The Staff’s comments are set forth below and are followed by the Fund’s responses. Capitalized terms
used but not defined herein have the same meaning as set forth in the Registration Statement.
Comments
Provided on January 15, 2025:
1. Comment:
In connection with disclosure on page 1 of the filing, please confirm supplementally
that the phrase “late-stage venture companies” would fall within the term “venture
companies” as defined in that paragraph. Specifically, please confirm that “late-stage
venture companies” are encompassed within the phrase “early through growth stage
venture companies.”
Response:
The Fund confirms that the phrase “late-stage venture companies” falls within the term “venture companies” as
defined in that paragraph and also confirms that “late-stage venture companies” are encompassed within the phrase “early
through growth stage venture companies.” The Fund has made corresponding updates to the Prospectus.
2. Comment:
In connection with disclosure on page 5 discussing the contractual expense limitation,
please revise the disclosure to reflect that the expense limitation will remain in
- 2 - January 22, 2025
effect
for one year from the effective date of the Registration Statement. Please also disclose
the duration of the expense limitation in the footnote to the fee table or alternatively,
remove the waiver from the fee table and discuss it later in the Prospectus when the expense
limitation is discussed.
Response:
The Fund notes that this disclosure is contained in footnote #4 to the fee table in the prospectus.
Nonetheless, the Fund has added additional disclosure to the prospectus.
3. Comment:
The Staff notes that the filing refers to the Locker as a comprehensive screening, diligence
and valuation software. If the reference to valuation here is in the context of Rule 2a-5,
please consider clarifying that, in context of Rule 2a-5 compliance, the Locker will
only be used as a means of collecting data from a private company.
Response:
The Fund confirms that the reference to “valuation” in the description of the
Locker as a “comprehensive screening, diligence and valuation software” is in
the broad sense of the word “valuation” and not in the context of Rule 2a-5.
The Fund has added disclosure noting that, in the context of compliance with Rule 2a-5,
the Locker will only be used as a means of collecting data from Private Companies, not as
a valuation tool.
4. Comment:
In connection with the response to comment #35 in the Fund’s January 10, 2025
comment response letter, please consider disclosing the use of Houlihan Capital as the Valuation
Consultant and their role and any other relevant information as appropriate.
Response:
The Fund respectfully declines to make this change. The Board intends that a Valuation Consultant
will always be used by the Fund as discussed in the Propsectus and as outlined in the Adviser’s
Valuation Policies and Procedures. However, the Board desires to retain the flexibility to
change Valuation Consultants without causing the Fund to have stale disclosure.
5. Comment:
Also in connection with the response to comment #35 in the Fund’s January 10,
2025 comment response letter, the Staff notes that the response appears to indicate that,
if there is a disagreement between the Valuation Consultant and the Valuation Designee, that
the Valuation Consultant will make the final determination for the fair value for the holding
in question. Please supplementally explain if this is accurate. And if so, please supplementally
explain how this complies with Rule 2a-5 and, more specifically, the requirement under
Rule 2a-5(b) that the Valuation Designee performs the fair value determination
relating to any and all fund investments. The Staff may have additional comments based on
the response provided.
Response:
The Fund clarifies that if the Valuation Consultant disagrees with the Valuation Designee
with respect to the fair value of the holding, the Valuation Consultant’s valuation
and the Valuation Designee’s valuation would be presented to the Board. The Board would
- 3 - January 22, 2025
then
make a determination in good faith as to the fair value to ascribe to the holding, consistent
with the requirements of Rule 2a-5(b).
6. Comment:
The Staff notes that the language in Article IV, Section 4.3 of the Fund’s
Amended and Restated Declaration of Trust appears to waive officer and trustee fiduciary
duties. The Staff understands that Delaware law permits a fund to eliminate or alter fiduciary
duties of trustees or other persons and replace them with standards set forth in the Declaration
of Trust. Revisions eliminating or altering fiduciary duties of a fund’s trustees or
officers are inconsistent with the federal securities laws and the SEC’s express views
of such persons’ fiduciary duties. Please add a provision to the Declaration of Trust
or otherwise modify the document to clarify that, notwithstanding anything to the contrary
in Declaration of Trust, nothing in that document modifying, restricting or eliminating the
duties or liabilities of trustees or officers of the trust shall apply to or in any way limit
the duties, including state law fiduciary duties, of loyalty and care, or liabilities of
such persons with respect to matters arising under the federal securities laws.
Response:
The Fund respectfully notes that Section 4.3 of the Declaration of Trust already includes
the following statement: “Except as required by federal law, including the 1940
Act, neither the Trustees nor any officer of the Trust shall owe any fiduciary duty (whether
arising at law or in equity) to the Trust or any Series or Class or any Shareholder
(emphasis added).”
However,
the Fund has amended its Declaration of Trust to include the following statement in Article IV,
Section 4.3: “Notwithstanding any other provision in this Declaration of Trust
to the contrary, nothing in this Declaration of Trust modifying, restricting or eliminating
the duties or liabilities of Trustees or officers of the Trust shall apply to or in any way
limit the duties, including state law fiduciary duties, of loyalty and care, or liabilities
of such persons with respect to matters arising under the federal securities laws.”
The Fund confirms that the Board has approved the amendment to the Declaration of Trust and
that the this amendment is reflected in the Second Amended and Restated Declaration of Trust
filed with Pre-Effective Amendment 4 to the Fund’s Registration Statement.
7. Comment:
The Staff notes that language in Article VIII, section 8.9(a)(iii) requires that
prior to commencement of a derivative action, the complaining shareholder must make a written
demand on the Trustees. Please disclose this provision in an appropriate location in the
Prospectus.
Response:
The Fund confirms that the requested updates have been made.
8. Comment:
With respect to the below provisions of the Fund’s Declaration of Trust, the Staff
requests that language be added to the Declaration of Trust making it clear that the provisions
do not apply to claims arising under the federal securities laws. With respect to the below
- 4 - January 22, 2025
provisions,
the Staff also requests that Fund disclose these provisions in the prospectus, noting there
as well that the provisions don’t apply to claims arising under the federal securities
laws.
1.
Section 8.9(a)(iv): “Shares representing at least ten percent (10%) of the outstanding Shares of the Trust or the affected
Series or Class must join in initiating the derivative action.”
2.
Section 8.9(c): “If the demand has been properly made hereunder, and a majority of the independent Trustees have considered
the merits of the claim and have determined that maintaining a suit would not be in the best interests of the Trust or the affected Series or
Class, as applicable, the demand shall be rejected and the Complaining Shareholders shall not be permitted to maintain a derivative action
unless they first sustain the burden of proof to the court that the decision of the Trustees not to pursue the requested action was not
a good faith exercise of their business judgment on behalf of the Trust.”
3.
Section 8.9(e): “Each Complaining Shareholder whose demand is rejected pursuant to paragraph (c) above shall be responsible,
jointly and severally, for the costs and expenses (including attorneys’ fees) incurred by the Trust in connection with the Trust’s
consideration of the demand if a court determines that the demand was made without reasonable cause or for an improper purpose.”
4.
Section 8.9(g): “In addition to all suits, claims or other actions (collectively, “claims”) that under applicable
law must be brought as derivative claims, each Shareholder agrees that any claim that affects all Shareholders of the Trust or any Class or
Series equally, that is, proportionately based on their number of Shares in the Trust or Class or Series, as well as any claim
where the matters alleged (if true) would give rise to a claim by the Trust, must be brought as a derivative claim subject to this Section 8.9
irrespective of whether such claim involves a violation of the Shareholders’ rights under this Declaration of Trust or any other
alleged violation of contractual or individual rights that might otherwise give rise to a direct claim.”
Response:
The Fund confirms that the requested updates to the prospectus have been made. The Fund also
confirms that it has added a statement to the Declaration of Trust that the provisions of
Section 8.9 do not apply to claims arising under the federal securities laws and that
the Board has approved the amendment to the Declaration of Trust. These amendments are reflected
in the Second Amended and Restated Declaration of Trust filed with Pre-Effective Amendment
4 to the Fund’s Registration Statement.
- 5 - January 22, 2025
Comments
Provided on January 16, 2025:
9. Comment:
In connection with the response to comment #34 in the Fund’s January 10, 2025
comment response letter, the Staff notes that the cost approach is a specific type of approach
in ASC 820 and is defined as a valuation approach that reflects the amount that would be
required currently to replace the service capacity of the asset, also referred to as current