The Brazilian Equity Fund, Inc., et al.; Notice of Application, 12909-12912 [E5-1133]
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Federal Register / Vol. 70, No. 50 / Wednesday, March 16, 2005 / Notices
(ADAMS) to communicate its ‘‘General
Statement of Policy and Procedure for
NRC Enforcement Actions—
Enforcement Policy,’’ to discontinue
publication of the paper document,
NUREG–1600, and to simplify the
official policy statement title. The NRC
is taking these actions because the
policy statement is available
electronically on the NRC public Web
site and is widely known as the ‘‘NRC
Enforcement Policy.’’
DATES: Comments on this initiative may
be submitted on or before April 15,
2005.
ADDRESSES: Submit written comments
to: Michael T. Lesar, Chief, Rules and
Directives Branch, Division of
Administrative Services, Office of
Administration, Mail Stop: T6D59, U. S.
Nuclear Regulatory Commission,
Washington, DC 20555–0001. Hand
deliver comments to: 11555 Rockville
Pike, Rockville, Maryland, between 7:30
a.m. and 4:15 p.m., Federal workdays.
Copies of comments received may be
examined at the NRC Public Document
Room, Room O1F21, 11555 Rockville
Pike, Rockville, MD. You may also email comments to nrcrep@nrc.gov.
FOR FURTHER INFORMATION CONTACT:
´
Renee Pedersen, Senior Enforcement
Specialist, Office of Enforcement, U.S.
Nuclear Regulatory Commission,
Washington, DC 20555–0001, (301) 415–
2742, e-mail rmp@nrc.gov.
SUPPLEMENTARY INFORMATION: The
Commission first published its ‘‘General
Statement of Policy and Procedure for
NRC Enforcement Actions—
Enforcement Policy,’’ (Enforcement
Policy) on October 7, 1980 (45 FR
66754). The Policy was codified as
Appendix C to Part 2 of Title 10 of the
Code of Federal Regulations to provide
widespread dissemination. However,
the Enforcement Policy has always
included a statement recognizing that it
is a policy statement and not a
regulation. An underlying basis of the
Enforcement Policy reflected throughout
it is that the determination of the
appropriate sanction requires the
exercise of discretion such that each
action is tailored to the particular
factual situation.
On June 30, 1995, the NRC announced
that it was removing the Enforcement
Policy from the Code of Federal
Regulations (60 FR 34380). This action
was part of an enforcement program
review, to avoid any interpretation that
the policy should be construed as a
regulation. To continue to ensure
widespread dissemination, the NRC
published the Enforcement Policy in its
NUREG-series publications as NUREG–
1600 and continued to publish revisions
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to the Enforcement Policy in the Federal
Register. NUREG–1600 was first
published in July of 1995. The last
complete revision that was issued as a
NUREG-series publication (NUREG–
1600) was dated May 1, 2000. However,
the Enforcement Policy has been revised
on multiple occasions (as published in
the Federal Register) without being
republished as a NUREG document.
The NRC maintains the current
Enforcement Policy on its Web site at
https://www.nrc.gov, select What We Do,
Enforcement, then Enforcement Policy.
The Enforcement Web site also includes
a history of the Enforcement Policy by
including and/or referencing the
Federal Register notice for each policy
revision since it was first published in
1980. This section of the Web site will
continue to be updated with any future
revisions to the Enforcement Policy.
Preparation and publication of the
NUREG is costly and consumes
resources, personnel, and paper. The
Commission believes that widespread
dissemination of the NRC’s Enforcement
Policy can now be accomplished more
effectively and efficiently by posting it
on the NRC public Web site and
maintaining it in ADAMS. Continuing
to publish material in hard copy when
the information is currently and
promptly available electronically is not
consistent with the Congressional
mandate to maximize the value of
Information Technology acquisitions
and the direction the NRC has taken
with its implementation of ADAMS.
The staff will continue to publish
revisions to the Enforcement Policy in
the Federal Register. Additionally, the
staff will continue its practice of
sending printed copies of the most
current Enforcement Policy to those
licensees and individuals being
considered for significant enforcement
action who may not have access to the
Web site; and to any interested
stakeholder upon request.
On July 13, 2000, the NRC made a
similar announcement in the Federal
Register proposing to discontinue
publishing NUREG–0940, ‘‘Enforcement
Actions: Significant Actions Resolved,’’
(65 FR 43383). The NRC only received
comments supporting this initiative.
For the above reasons, the
Commission believes that publication of
NUREG–1600 is no longer needed. In
addition, in keeping with plain English
initiatives, the staff believes that it is
appropriate to simplify the official title
from, ‘‘General Statement of Policy and
Procedure for NRC Enforcement
Actions—Enforcement Policy,’’ to ‘‘NRC
Enforcement Policy.’’
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12909
Dated at Rockville, MD, this 10th day of
March, 2005.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 05–5119 Filed 3–15–05; 8:45 am]
BILLING CODE 7590–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Investment Company Act Release No.
26781; 812–12901]
The Brazilian Equity Fund, Inc., et al.;
Notice of Application
March 9, 2005.
Securities and Exchange
Commission (‘‘Commission’’).
ACTION: Notice of an application under
section 17(b) of the Investment
Company Act of 1940 (the ‘‘Act’’) for an
exemption from section 17(a) of the Act
and under rule 17d–1 under the Act to
permit certain joint transactions.
AGENCY:
Applicants
request an order permitting the
proposed settlement of certain litigation
in which the applicants are named as
defendants.
APPLICANTS: The Brazilian Equity Fund,
Inc. (‘‘Fund’’), Credit Suisse Asset
Management, LLC (‘‘Adviser’’), Enrique
R. Arzac (‘‘Arzac’’), James J. Cattano
(‘‘Cattano’’), George W. Landau
(‘‘Landau’’), Martin M. Torino
(‘‘Torino’’) and Richard W. Watt
(‘‘Watt,’’ and together with Arzac,
Cattano, Landau and Torino, the
‘‘Director Applicants’’).
FILING DATES: The application was filed
on November 8, 2002 and amended on
February 15, 2005.
HEARING OR NOTIFICATION OF HEARING:
An order granting the application will
be issued unless the Commission orders
a hearing. Interested persons may
request a hearing by writing to the
Commission’s Secretary and serving
applicants with a copy of the request,
personally or by mail. Hearing requests
should be received by the Commission
by 5:30 p.m. on March 30, 2005, and
should be accompanied by proof of
service on the applicants, in the form of
an affidavit, or, for lawyers, a certificate
of service. Hearing requests should state
the nature of the writer’s interest, the
reason for the request, and the issues
contested. Persons who wish to be
notified of a hearing may request
notification by writing to the
Commission’s Secretary.
ADDRESSES: Secretary, Commission, 450
Fifth Street, NW., Washington, DC
SUMMARY OF APPLICATION:
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1. The Fund, a corporation organized
under the laws of the state of Maryland,
is a closed-end management investment
company registered under the Act.
Shares of the Fund trade on the New
York Stock Exchange (‘‘NYSE’’). The
Adviser, which is an investment adviser
registered under the Investment
Advisers Act of 1940, serves as the
Fund’s investment adviser.
2. The Adviser, the Fund, and certain
of the Fund’s current and former
directors (the ‘‘Director Defendants’’) are
defendants in a derivative and class
action lawsuit filed in the United States
District Court for the Southern District
of New York (‘‘District Court’’).1 The
action (‘‘Rights Offering Litigation’’),
which commenced in May 1997, arose
out of the Fund’s 1996 rights offering of
its common stock (‘‘Rights Offering’’). In
his derivative capacity, the plaintiff
alleged that, in approving the Rights
Offering, the Director Defendants put
the interests of the Adviser ahead of the
interests of the Fund’s shareholders,
thereby breaching their duties of loyalty
and due care to the shareholders of the
Fund. The class action claim included
similar assertions but alleged that the
Fund’s shareholders were injured
directly by the Director Defendants’
breach of their fiduciary duties.
Specifically, the complaint alleged
violations of section 36(b) of the Act
(derivatively against the Adviser),
section 36(a) of the Act (against all
defendants except the Fund), section 48
of the Act (against the Director
Defendants and the Fund), section 36(a)
of the Act (derivatively against all
defendants except the Fund), and for
breach of fiduciary duty at common law.
3. On September 15, 1997, the
defendants filed a motion to dismiss the
complaint in its entirety. The District
Court granted the motion to dismiss
with respect to all class action claims
and the section 36(b) claim, but denied
it with respect to all remaining
derivative claims. Thereafter, the Fund
named from among its directors who are
not ‘‘interested persons’’ of the Fund
within the meaning of section 2(a)(19) of
the Act (‘‘Independent Directors’’) two
directors who are not Director
Defendants to act as a special litigation
committee (‘‘Special Litigation
Committee’’) to investigate the matter
and determine whether any of the
claims asserted in the complaint ought
to be prosecuted on behalf of the Fund.
The Special Litigation Committee
concluded that the litigation should be
discontinued and filed a motion to
dismiss the complaint in the derivative
action. On September 15, 2000, the
District Court granted summary
judgment and dismissed all remaining
derivative claims on the basis of the
Special Litigation Committee’s
determination that continued
prosecution of the derivative action was
not in the best interests of the Fund or
its shareholders. The plaintiff appealed
this judgment on the grounds that the
District Court had erroneously
dismissed the class action claims in the
response to the original (September
1997) motion to dismiss. On February
28, 2002, the Second Circuit Court of
Appeals (‘‘Second Circuit’’) reversed the
decision of the District Court and
reinstated the class action claims,
predicating its decision on its
determination that the plaintiff had
shareholder standing under Maryland
state law to bring direct claims (as
opposed to derivative claims). The
Second Circuit left the Rights Offering
Litigation to the District Court on
remand.
4. In addition to the Rights Offering
Litigation, the Adviser is a defendant in
a separate action commenced on May
21, 1998 in the District Court (‘‘Fee
Litigation’’ 2 and together with the
Rights Offering Litigation, the
‘‘Actions’’). The initial complaint
alleged that in negotiating the
investment advisory fee with the
Independent Directors (who were
alleged to be not truly independent), the
Adviser violated its fiduciary duty
pursuant to section 36(b) of the Act.
5. The District Court dismissed the
initial complaint upon motion by the
Adviser, but gave the plaintiff leave to
replead. The amended complaint
restated the claim in the initial
complaint but added an additional
1 Robert Strougo v. Bassini, et al. (97 Civ. 3579)
(RWS).
2 Robert Strougo v. BEA Associates (98 Civ. 3725)
(RWS).
20549–0609; Applicants, c/o Credit
Suisse Asset Management, LLC, 466
Lexington Avenue, New York, NY
10017.
FOR FURTHER INFORMATION, CONTACT:
Courtney S. Thornton, Senior Counsel,
at (202) 551–6812, or Michael W.
Mundt, Senior Special Counsel, at (202)
551–6821 (Division of Investment
Management, Office of Investment
Company Regulation).
SUPPLEMENTARY INFORMATION: The
following is a summary of the
application. The complete application
may be obtained for a fee at the
Commission’s Public Reference Branch,
450 Fifth Street, NW., Washington, DC
20549–0102 (telephone (202) 942–8090).
Applicants’ Representations
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claim under Section 36(a) of the Act
asserting that the Adviser was liable for
breach of duty for negotiating an
advisory agreement with directors who
were allegedly not independent. The
Adviser filed a motion to dismiss the
amended complaint, but the District
Court denied the motion subject to the
plaintiff adding the Fund as a nominal
defendant. The plaintiff subsequently
filed a second amended complaint to
add the Fund as a defendant. The
defendants moved for summary
judgment, and the District Court granted
the motion on February 28, 2002. The
plaintiff filed a notice of appeal of the
judgment of the District Court on March
28, 2002.
6. Applicants state that, due to the
inherent uncertainties of litigation, as
well as the additional costs and
expenses that would be necessary to
further litigate the Actions, all parties to
the Actions reached a settlement on
September 12, 2002, following extensive
settlement discussions. The settlement
involves three separate agreements: A
settlement agreement between the
plaintiff and the defendants that has
been approved by the District Court
(‘‘Settlement Agreement’’); an agreement
among the Fund, the Adviser, and Gulf
Insurance Company (‘‘Gulf’’) relating to
insurance coverage for certain expenses
in connection with the litigation and
settlement of the Actions (‘‘Insurance
Settlement Agreement’’); and an
agreement between the Fund and the
Adviser to share insurance proceeds and
certain expenses in connection with the
litigation and settlement of the Actions
(‘‘Settlement Costs Sharing
Agreement’’). The complete terms and
conditions of the proposed settlement
were presented to and unanimously
approved by the Fund’s board of
directors, including all of the
Independent Directors, at a meeting
held on June 27, 2002. In evaluating the
settlement and throughout the
settlement negotiation and evaluation
process, the Independent Directors were
advised by independent legal counsel.
7. The District Court approved the
Settlement Agreement on April 7, 2003
and entered an order approving the
Settlement Agreement on April 9, 2003.
The principal terms and conditions of
the Settlement Agreement are as
follows:
a. The Fund will be liquidated and its
net assets distributed to shareholders.
b. Class members in the Rights
Offering Litigation will be entitled to
receive either $1.00 or $0.25 per share
(‘‘Settlement Payments’’), depending on
whether they exercised their rights in
the Rights Offering. The Settlement
Payments have been fixed at $253,922.
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c. Plaintiff was to apply to the District
Court for an award of attorneys’ fees and
related amounts, not to exceed $735,000
plus reimbursement of expenses not
exceeding $75,000, and a compensatory
award not to exceed $15,000. Following
an objection made by a Fund
shareholder to the plaintiff’s requested
attorneys’ fees, the amount awarded by
the District Court was fixed at $500,000
plus $70,561 of disbursements, together
with the $15,000 compensatory award,
for a total award of $585,561
(collectively, ‘‘Plaintiff’s Fees and
Expenses’’).
d. The consummation of the
Settlement Agreement is subject to
certain other conditions including: (i)
The Fund shareholder class shall have
been certified for settlement by the
District Court; (ii) the Fund’s
shareholders shall have duly approved
the liquidation of the Fund, subject to
the satisfaction of certain conditions;
and (iii) the Adviser shall not have been
terminated as adviser to the Fund by a
shareholder vote. These conditions
currently are satisfied.
8. The Fund and the Adviser asserted
the right to insurance coverage from
Gulf under an errors and omissions
policy insuring both the Adviser and the
Fund against certain losses, liabilities,
and related defense costs. Gulf has
agreed to fund the settlement of the
Actions and to pay a portion of the
defense costs incurred by the Adviser
and the Fund in connection with the
Actions.
9. Under the Insurance Settlement
Agreement, which has not been
reviewed or approved by the District
Court, Gulf has agreed to reimburse: (a)
The Fund and the Adviser for the
Plaintiff’s Fees and Expenses in the
amount of $585,561; (b) the Fund and
the Adviser for $253,922 to fund the
Settlement Payments plus mailing and
related expenses (estimated to be
$25,000); and (c) $514,720 of certain
costs and attorneys’ fees billed to the
Adviser, the Fund and the Director
Defendants for defense of the Actions
(‘‘Defense Fee’’) on or prior to December
31, 2001, and 87.5% of certain costs and
fees billed to the Adviser, the Fund and
the Director Defendants in connection
with the litigation and settlement of the
Actions after December 31, 2001. Any
legal fees and expenses incurred in
connection with the liquidation of the
Fund (currently estimated at $103,350)
will be borne by the Fund to the extent
they are not paid by Gulf, and any legal
fees and expenses incurred in
connection with the Application
(currently estimated at $75,000) will be
split equally between the Fund and the
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Adviser, to the extent they are not paid
by Gulf.
10. Applicants state that the
Settlement Costs Sharing Agreement
was the result of extensive negotiation
between the Independent Directors and
the Adviser. Pursuant to the Settlement
Costs Sharing Agreement, which has not
been reviewed or approved by the
District Court, the Adviser and the Fund
have agreed to share in equal parts the
12.5% portion of the certain costs and
fees they have incurred or will incur in
connection with the litigation and
settlement of the Actions after December
31, 2001, that are not paid by Gulf. In
addition, under the Settlement Costs
Sharing Agreement:
a. The Adviser and the Fund agreed
to bear equally any portion of the
Settlement Payments not reimbursed by
Gulf, although it has since been
determined that Gulf’s contribution will
be sufficient to satisfy all claims.
b. The Adviser and the Fund have
agreed that the Defense Fee will be
payable $507,360 to the Adviser and
$7,360 to the Fund. In consideration for
this payment, the Adviser has agreed to
waive any and all rights to
indemnification from the Fund for the
approximately $1.01 million in certain
costs and fees incurred by it in
connection with the Fee Litigation prior
to December 31, 2001.3 In addition, as
consideration for receiving from Gulf
87.5% of certain of the Adviser’s
additional costs and fees in connection
with the Actions after December 31,
2001, the Adviser has agreed to waive
any and all rights to indemnification
from the Fund for any such costs and
fees not paid by Gulf.
c. The Adviser and the Fund also
have agreed that all costs and fees not
otherwise reimbursed by Gulf associated
with (i) liquidating the Fund will be
borne by the Fund, and (ii) applying for
and obtaining the order requested by the
application (‘‘Order’’) will be shared
equally by the Adviser and the Fund.
11. Applicants state that in
considering whether to approve the
terms of the settlement, the Board,
advised by independent legal counsel,
3 Pursuant to the investment advisory agreement
between the Adviser and the Fund (‘‘Advisory
Agreement’’), the Adviser is entitled to (i)
indemnification from the Fund for any losses
arising from matters to which the Advisory
Agreement relates (provided the Adviser has not
engaged in ‘‘disabling conduct’’ (i.e., willful
misfeasance, bad faith or gross negligence)), and (ii)
advances from the Fund for payment of reasonable
expenses in connection with the matter as to which
it is seeking indemnification, provided certain
requirements are met. Accordingly, applicants state
that the Adviser’s waiver of its right to
indemnification will result in a significant
measurable economic benefit to the Fund and a
significant economic cost to the Adviser.
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12911
reviewed and discussed at length the
expected benefits to shareholders from
the liquidation and dissolution of the
Fund, including the realization by
shareholders of their investment in the
Fund at net asset value. The Board also
reviewed information about the
investment outlook for the Fund and the
possible delisting of the Fund’s shares
from the NYSE as a result of the steady
deterioration of the Fund’s average
market capitalization at that time. In
approving the terms upon which the
Fund participated in the settlement
arrangements, the Board considered a
number of factors, including: (i) The
possibility that the Fund would have to
reimburse the Adviser for additional
legal expenses if the plaintiff appealed
the District Court’s granting of the
Adviser’s motion for summary judgment
in the Fee Litigation; (ii) the conclusion
by the Special Litigation Committee that
there was no basis on the merits to
institute an action against the Adviser in
the Rights Offering Litigation; (iii) the
re-institution by the Second Circuit of
the class action claims in the Rights
Offering Litigation, which could entail
considerable legal expenses to defend;
and (iv) the fact that under the terms of
the settlement, most of the settlement
costs would be absorbed by Gulf, and
the Fund would be relieved of
substantial reimbursement obligations
to the Adviser. The Board also noted
that extensive negotiations had been
conducted between the Adviser and
Gulf and between the Fund and the
Adviser and concluded that the terms
agreed upon were as favorable to the
Fund as possible, short of commencing
an action against Gulf to seek further
recovery.
Applicants’ Legal Analysis
1. Section 17(a)(1) of the Act generally
prohibits an affiliated person of a
registered investment company, or an
affiliated person of an affiliated person,
from selling any securities or other
property to the company. The Adviser is
an affiliated person of the Fund within
the meaning of section 2(a)(3)(E) of the
Act, which defines an affiliated person
of an investment company to include
any investment adviser to that
investment company. Applicants state
that the release by the Adviser of its
right to indemnification (pursuant to the
Advisory Agreement) from the Fund for
fees and expenses incurred by the
Adviser in the defense of the Actions in
consideration of the Settlement Costs
Sharing Agreement could be viewed as
a sale of a property right by the Adviser
to the Fund.
2. Section 17(b) of the Act authorizes
the Commission to exempt a proposed
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transaction from section 17(a) provided
that the terms of the transaction,
including the consideration to be paid
or received, are fair and reasonable and
do not involve overreaching on the part
of any person concerned, and the
proposed transaction is consistent with
the policy of the registered investment
company as recited in its registration
statement and with the general purposes
of the Act.
3. Section 17(d) of the Act and rule
17d–1 under the Act generally prohibit
an affiliated person of a registered
investment company, or affiliated
persons of an affiliated person, when
acting as principal, from effecting any
transaction in which the company is a
joint or joint and several participant
unless permitted by Commission order
upon application. Applicants state that
because the Adviser and the Director
Applicants are affiliated persons of the
Fund,4 the proposed settlement could
be deemed a transaction or arrangement
prohibited by section 17(d) and rule
17d–1. In considering an application for
an order under rule 17d–1, the
Commission must determine whether
the participation of the investment
company in a joint enterprise or joint
arrangement is consistent with the
provisions, policies and purposes of the
Act and the extent to which the
company’s participation would be on a
basis different from or less advantageous
than that of the other participants.
4. Applicants believe that the relative
benefits from the proposed settlement to
the Fund markedly outweigh its
contributions to the settlement, and that
the Fund’s participation in the proposed
settlement is on terms that are at least
as favorable to the Fund as to the
Adviser and the Director Applicants.
Under the terms of the proposed
settlement, the Fund’s contributions are
limited to the following: (a) 6.25% (50%
of 12.5%) of the costs and fees incurred
after December 31, 2001 in connection
with the litigation and settlement of the
Actions (the balance being paid by Gulf
and the Adviser); (b) 50% of the costs
associated with obtaining the Order
after any contribution by Gulf; and (c)
the costs associated with liquidating the
Fund after any contribution by Gulf.
The Fund will make no contribution in
respect of the Settlement Payments and
will be relieved of any payment
obligations to the class members in the
Rights Offering Litigation. In addition,
as noted above, the Fund will be
relieved of its obligation to indemnify
4 Each Director Applicant is an affiliated person
of the Fund pursuant to section 2(a)(3)(D) of the
Act, which defines an ‘‘affiliated person’’ of another
person to include any director of such other person.
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the Adviser for the legal fees and
expenses it has incurred in connection
with the Actions.
5. Applicants state that the
participation by the Director Applicants
in the proposed settlement is also
consistent with the provisions of section
17(d) and rule 17d–1. As part of the
Settlement Agreement, the Director
Applicants will be released from any
liability in connection with the Rights
Offering Litigation. Although the
Director Applicants’ legal expenses
incurred in connection with the Rights
Offering Litigation have been paid by
the Fund, the Fund is obligated under
its articles of incorporation and by-laws
(and, in the case of the Independent
Directors, under separate
indemnification agreements with each
such Director) to pay those expenses
regardless of whether the Actions are
settled, provided the Director
Applicants have not engaged in willful
misfeasance, bad faith, gross negligence
or reckless disregard of their duties.
Furthermore, the proposed settlement is
predicated upon the settlement of both
Actions in their entirety. Consequently,
if the Director Applicants could not
participate, applicants state that the
proposed settlement in all likelihood
would not be consummated, and the
Fund would continue to incur legal fees
and expenses in connection with its
indemnification of the Director
Applicants.
6. Applicants represent that the
liquidation of the Fund cannot occur
without settlement of the Actions.
Applicants state that the liquidation of
the Fund will benefit shareholders
because it will enable them to realize
immediately the full net asset value of
their shares. Applicants note that at the
Fund’s annual meeting of shareholders
held on January 16, 2003, the holders of
a majority of the Fund’s outstanding
shares voted in favor of the Fund’s
liquidation. Applicants also assert that
the continued litigation of the Actions
would be detrimental to both the Fund
and its shareholders because of the costs
and expenses to the Fund in connection
with its defense of the Actions.
7. Accordingly, applicants submit that
the terms of the proposed settlement,
including the consideration to be paid
or received, are fair and reasonable and
do not involve overreaching and that the
proposed transaction is consistent with
the policy of the Fund and with the
general purposes of the Act. Applicants
further submit that the Fund’s
participation in the proposed settlement
would not be on a basis different from
or less advantageous than that of the
other participants.
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For the Commission, by the Division of
Investment Management, under delegated
authority.
J. Lynn Taylor,
Assistant Secretary.
[FR Doc. E5–1133 Filed 3–15–05; 8:45 am]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
Sunshine Act Meeting
FEDERAL REGISTER CITATION OF PREVIOUS
ANNOUNCEMENT: 70 FR 11720, March 9,
2005.
Closed meeting.
450 Fifth Street, NW.,
Washington, DC.
STATUS:
PLACE:
DATE AND TIME OF PREVIOUSLY ANNOUNCED
MEETING: Monday, March 14, 2005, at
3:30 p.m.
Cancellation of
meeting.
The closed meeting scheduled for
Monday, March 14, 2005, has been
cancelled.
For further information please contact
the Office of the Secretary at (202) 942–
7070.
CHANGE IN THE MEETING:
Dated: March 11, 2005.
Jonathan G. Katz,
Secretary.
[FR Doc. 05–5267 Filed 3–11–05; 4:16 pm]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–51337; File No. SR–Amex–
2004–109]
Self-Regulatory Organizations;
American Stock Exchange LLC; Notice
of Filing and Order Granting
Accelerated Approval of a Proposed
Rule Change and Amendment Nos. 1,
2 and 3 Thereto Relating to Split Price
Priority
March 9, 2005.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on December
23, 2004, the American Stock Exchange
LLC (‘‘Amex’’ or the ‘‘Exchange’’) filed
with the Securities and Exchange
Commission (‘‘Commission’’) the
proposed rule change as described in
Items I and II below, which Items have
been prepared by the Amex. On
February 4, 2005, the Amex amended
the proposed rule change (‘‘Amendment
1 15
2 17
E:\FR\FM\16MRN1.SGM
U.S.C. 78s(b)(1).
CFR 240.19b–4.
16MRN1
]]>Agencies
[Federal Register Volume 70, Number 50 (Wednesday, March 16, 2005)]
[Notices]
[Pages 12909-12912]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-1133]
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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 26781; 812-12901]
The Brazilian Equity Fund, Inc., et al.; Notice of Application
March 9, 2005.
AGENCY: Securities and Exchange Commission (``Commission'').
ACTION: Notice of an application under section 17(b) of the Investment
Company Act of 1940 (the ``Act'') for an exemption from section 17(a)
of the Act and under rule 17d-1 under the Act to permit certain joint
transactions.
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Summary of Application: Applicants request an order permitting the
proposed settlement of certain litigation in which the applicants are
named as defendants.
Applicants: The Brazilian Equity Fund, Inc. (``Fund''), Credit Suisse
Asset Management, LLC (``Adviser''), Enrique R. Arzac (``Arzac''),
James J. Cattano (``Cattano''), George W. Landau (``Landau''), Martin
M. Torino (``Torino'') and Richard W. Watt (``Watt,'' and together with
Arzac, Cattano, Landau and Torino, the ``Director Applicants'').
Filing Dates: The application was filed on November 8, 2002 and
amended on February 15, 2005.
Hearing or Notification of Hearing: An order granting the application
will be issued unless the Commission orders a hearing. Interested
persons may request a hearing by writing to the Commission's Secretary
and serving applicants with a copy of the request, personally or by
mail. Hearing requests should be received by the Commission by 5:30
p.m. on March 30, 2005, and should be accompanied by proof of service
on the applicants, in the form of an affidavit, or, for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.
ADDRESSES: Secretary, Commission, 450 Fifth Street, NW., Washington, DC
[[Page 12910]]
20549-0609; Applicants, c/o Credit Suisse Asset Management, LLC, 466
Lexington Avenue, New York, NY 10017.
FOR FURTHER INFORMATION, CONTACT: Courtney S. Thornton, Senior Counsel,
at (202) 551-6812, or Michael W. Mundt, Senior Special Counsel, at
(202) 551-6821 (Division of Investment Management, Office of Investment
Company Regulation).
SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained for a fee at the
Commission's Public Reference Branch, 450 Fifth Street, NW.,
Washington, DC 20549-0102 (telephone (202) 942-8090).
Applicants' Representations
1. The Fund, a corporation organized under the laws of the state of
Maryland, is a closed-end management investment company registered
under the Act. Shares of the Fund trade on the New York Stock Exchange
(``NYSE''). The Adviser, which is an investment adviser registered
under the Investment Advisers Act of 1940, serves as the Fund's
investment adviser.
2. The Adviser, the Fund, and certain of the Fund's current and
former directors (the ``Director Defendants'') are defendants in a
derivative and class action lawsuit filed in the United States District
Court for the Southern District of New York (``District Court'').\1\
The action (``Rights Offering Litigation''), which commenced in May
1997, arose out of the Fund's 1996 rights offering of its common stock
(``Rights Offering''). In his derivative capacity, the plaintiff
alleged that, in approving the Rights Offering, the Director Defendants
put the interests of the Adviser ahead of the interests of the Fund's
shareholders, thereby breaching their duties of loyalty and due care to
the shareholders of the Fund. The class action claim included similar
assertions but alleged that the Fund's shareholders were injured
directly by the Director Defendants' breach of their fiduciary duties.
Specifically, the complaint alleged violations of section 36(b) of the
Act (derivatively against the Adviser), section 36(a) of the Act
(against all defendants except the Fund), section 48 of the Act
(against the Director Defendants and the Fund), section 36(a) of the
Act (derivatively against all defendants except the Fund), and for
breach of fiduciary duty at common law.
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\1\ Robert Strougo v. Bassini, et al. (97 Civ. 3579) (RWS).
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3. On September 15, 1997, the defendants filed a motion to dismiss
the complaint in its entirety. The District Court granted the motion to
dismiss with respect to all class action claims and the section 36(b)
claim, but denied it with respect to all remaining derivative claims.
Thereafter, the Fund named from among its directors who are not
``interested persons'' of the Fund within the meaning of section
2(a)(19) of the Act (``Independent Directors'') two directors who are
not Director Defendants to act as a special litigation committee
(``Special Litigation Committee'') to investigate the matter and
determine whether any of the claims asserted in the complaint ought to
be prosecuted on behalf of the Fund. The Special Litigation Committee
concluded that the litigation should be discontinued and filed a motion
to dismiss the complaint in the derivative action. On September 15,
2000, the District Court granted summary judgment and dismissed all
remaining derivative claims on the basis of the Special Litigation
Committee's determination that continued prosecution of the derivative
action was not in the best interests of the Fund or its shareholders.
The plaintiff appealed this judgment on the grounds that the District
Court had erroneously dismissed the class action claims in the response
to the original (September 1997) motion to dismiss. On February 28,
2002, the Second Circuit Court of Appeals (``Second Circuit'') reversed
the decision of the District Court and reinstated the class action
claims, predicating its decision on its determination that the
plaintiff had shareholder standing under Maryland state law to bring
direct claims (as opposed to derivative claims). The Second Circuit
left the Rights Offering Litigation to the District Court on remand.
4. In addition to the Rights Offering Litigation, the Adviser is a
defendant in a separate action commenced on May 21, 1998 in the
District Court (``Fee Litigation'' \2\ and together with the Rights
Offering Litigation, the ``Actions''). The initial complaint alleged
that in negotiating the investment advisory fee with the Independent
Directors (who were alleged to be not truly independent), the Adviser
violated its fiduciary duty pursuant to section 36(b) of the Act.
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\2\ Robert Strougo v. BEA Associates (98 Civ. 3725) (RWS).
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5. The District Court dismissed the initial complaint upon motion
by the Adviser, but gave the plaintiff leave to replead. The amended
complaint restated the claim in the initial complaint but added an
additional claim under Section 36(a) of the Act asserting that the
Adviser was liable for breach of duty for negotiating an advisory
agreement with directors who were allegedly not independent. The
Adviser filed a motion to dismiss the amended complaint, but the
District Court denied the motion subject to the plaintiff adding the
Fund as a nominal defendant. The plaintiff subsequently filed a second
amended complaint to add the Fund as a defendant. The defendants moved
for summary judgment, and the District Court granted the motion on
February 28, 2002. The plaintiff filed a notice of appeal of the
judgment of the District Court on March 28, 2002.
6. Applicants state that, due to the inherent uncertainties of
litigation, as well as the additional costs and expenses that would be
necessary to further litigate the Actions, all parties to the Actions
reached a settlement on September 12, 2002, following extensive
settlement discussions. The settlement involves three separate
agreements: A settlement agreement between the plaintiff and the
defendants that has been approved by the District Court (``Settlement
Agreement''); an agreement among the Fund, the Adviser, and Gulf
Insurance Company (``Gulf'') relating to insurance coverage for certain
expenses in connection with the litigation and settlement of the
Actions (``Insurance Settlement Agreement''); and an agreement between
the Fund and the Adviser to share insurance proceeds and certain
expenses in connection with the litigation and settlement of the
Actions (``Settlement Costs Sharing Agreement''). The complete terms
and conditions of the proposed settlement were presented to and
unanimously approved by the Fund's board of directors, including all of
the Independent Directors, at a meeting held on June 27, 2002. In
evaluating the settlement and throughout the settlement negotiation and
evaluation process, the Independent Directors were advised by
independent legal counsel.
7. The District Court approved the Settlement Agreement on April 7,
2003 and entered an order approving the Settlement Agreement on April
9, 2003. The principal terms and conditions of the Settlement Agreement
are as follows:
a. The Fund will be liquidated and its net assets distributed to
shareholders.
b. Class members in the Rights Offering Litigation will be entitled
to receive either $1.00 or $0.25 per share (``Settlement Payments''),
depending on whether they exercised their rights in the Rights
Offering. The Settlement Payments have been fixed at $253,922.
[[Page 12911]]
c. Plaintiff was to apply to the District Court for an award of
attorneys' fees and related amounts, not to exceed $735,000 plus
reimbursement of expenses not exceeding $75,000, and a compensatory
award not to exceed $15,000. Following an objection made by a Fund
shareholder to the plaintiff's requested attorneys' fees, the amount
awarded by the District Court was fixed at $500,000 plus $70,561 of
disbursements, together with the $15,000 compensatory award, for a
total award of $585,561 (collectively, ``Plaintiff's Fees and
Expenses'').
d. The consummation of the Settlement Agreement is subject to
certain other conditions including: (i) The Fund shareholder class
shall have been certified for settlement by the District Court; (ii)
the Fund's shareholders shall have duly approved the liquidation of the
Fund, subject to the satisfaction of certain conditions; and (iii) the
Adviser shall not have been terminated as adviser to the Fund by a
shareholder vote. These conditions currently are satisfied.
8. The Fund and the Adviser asserted the right to insurance
coverage from Gulf under an errors and omissions policy insuring both
the Adviser and the Fund against certain losses, liabilities, and
related defense costs. Gulf has agreed to fund the settlement of the
Actions and to pay a portion of the defense costs incurred by the
Adviser and the Fund in connection with the Actions.
9. Under the Insurance Settlement Agreement, which has not been
reviewed or approved by the District Court, Gulf has agreed to
reimburse: (a) The Fund and the Adviser for the Plaintiff's Fees and
Expenses in the amount of $585,561; (b) the Fund and the Adviser for
$253,922 to fund the Settlement Payments plus mailing and related
expenses (estimated to be $25,000); and (c) $514,720 of certain costs
and attorneys' fees billed to the Adviser, the Fund and the Director
Defendants for defense of the Actions (``Defense Fee'') on or prior to
December 31, 2001, and 87.5% of certain costs and fees billed to the
Adviser, the Fund and the Director Defendants in connection with the
litigation and settlement of the Actions after December 31, 2001. Any
legal fees and expenses incurred in connection with the liquidation of
the Fund (currently estimated at $103,350) will be borne by the Fund to
the extent they are not paid by Gulf, and any legal fees and expenses
incurred in connection with the Application (currently estimated at
$75,000) will be split equally between the Fund and the Adviser, to the
extent they are not paid by Gulf.
10. Applicants state that the Settlement Costs Sharing Agreement
was the result of extensive negotiation between the Independent
Directors and the Adviser. Pursuant to the Settlement Costs Sharing
Agreement, which has not been reviewed or approved by the District
Court, the Adviser and the Fund have agreed to share in equal parts the
12.5% portion of the certain costs and fees they have incurred or will
incur in connection with the litigation and settlement of the Actions
after December 31, 2001, that are not paid by Gulf. In addition, under
the Settlement Costs Sharing Agreement:
a. The Adviser and the Fund agreed to bear equally any portion of
the Settlement Payments not reimbursed by Gulf, although it has since
been determined that Gulf's contribution will be sufficient to satisfy
all claims.
b. The Adviser and the Fund have agreed that the Defense Fee will
be payable $507,360 to the Adviser and $7,360 to the Fund. In
consideration for this payment, the Adviser has agreed to waive any and
all rights to indemnification from the Fund for the approximately $1.01
million in certain costs and fees incurred by it in connection with the
Fee Litigation prior to December 31, 2001.\3\ In addition, as
consideration for receiving from Gulf 87.5% of certain of the Adviser's
additional costs and fees in connection with the Actions after December
31, 2001, the Adviser has agreed to waive any and all rights to
indemnification from the Fund for any such costs and fees not paid by
Gulf.
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\3\ Pursuant to the investment advisory agreement between the
Adviser and the Fund (``Advisory Agreement''), the Adviser is
entitled to (i) indemnification from the Fund for any losses arising
from matters to which the Advisory Agreement relates (provided the
Adviser has not engaged in ``disabling conduct'' (i.e., willful
misfeasance, bad faith or gross negligence)), and (ii) advances from
the Fund for payment of reasonable expenses in connection with the
matter as to which it is seeking indemnification, provided certain
requirements are met. Accordingly, applicants state that the
Adviser's waiver of its right to indemnification will result in a
significant measurable economic benefit to the Fund and a
significant economic cost to the Adviser.
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c. The Adviser and the Fund also have agreed that all costs and
fees not otherwise reimbursed by Gulf associated with (i) liquidating
the Fund will be borne by the Fund, and (ii) applying for and obtaining
the order requested by the application (``Order'') will be shared
equally by the Adviser and the Fund.
11. Applicants state that in considering whether to approve the
terms of the settlement, the Board, advised by independent legal
counsel, reviewed and discussed at length the expected benefits to
shareholders from the liquidation and dissolution of the Fund,
including the realization by shareholders of their investment in the
Fund at net asset value. The Board also reviewed information about the
investment outlook for the Fund and the possible delisting of the
Fund's shares from the NYSE as a result of the steady deterioration of
the Fund's average market capitalization at that time. In approving the
terms upon which the Fund participated in the settlement arrangements,
the Board considered a number of factors, including: (i) The
possibility that the Fund would have to reimburse the Adviser for
additional legal expenses if the plaintiff appealed the District
Court's granting of the Adviser's motion for summary judgment in the
Fee Litigation; (ii) the conclusion by the Special Litigation Committee
that there was no basis on the merits to institute an action against
the Adviser in the Rights Offering Litigation; (iii) the re-institution
by the Second Circuit of the class action claims in the Rights Offering
Litigation, which could entail considerable legal expenses to defend;
and (iv) the fact that under the terms of the settlement, most of the
settlement costs would be absorbed by Gulf, and the Fund would be
relieved of substantial reimbursement obligations to the Adviser. The
Board also noted that extensive negotiations had been conducted between
the Adviser and Gulf and between the Fund and the Adviser and concluded
that the terms agreed upon were as favorable to the Fund as possible,
short of commencing an action against Gulf to seek further recovery.
Applicants' Legal Analysis
1. Section 17(a)(1) of the Act generally prohibits an affiliated
person of a registered investment company, or an affiliated person of
an affiliated person, from selling any securities or other property to
the company. The Adviser is an affiliated person of the Fund within the
meaning of section 2(a)(3)(E) of the Act, which defines an affiliated
person of an investment company to include any investment adviser to
that investment company. Applicants state that the release by the
Adviser of its right to indemnification (pursuant to the Advisory
Agreement) from the Fund for fees and expenses incurred by the Adviser
in the defense of the Actions in consideration of the Settlement Costs
Sharing Agreement could be viewed as a sale of a property right by the
Adviser to the Fund.
2. Section 17(b) of the Act authorizes the Commission to exempt a
proposed
[[Page 12912]]
transaction from section 17(a) provided that the terms of the
transaction, including the consideration to be paid or received, are
fair and reasonable and do not involve overreaching on the part of any
person concerned, and the proposed transaction is consistent with the
policy of the registered investment company as recited in its
registration statement and with the general purposes of the Act.
3. Section 17(d) of the Act and rule 17d-1 under the Act generally
prohibit an affiliated person of a registered investment company, or
affiliated persons of an affiliated person, when acting as principal,
from effecting any transaction in which the company is a joint or joint
and several participant unless permitted by Commission order upon
application. Applicants state that because the Adviser and the Director
Applicants are affiliated persons of the Fund,\4\ the proposed
settlement could be deemed a transaction or arrangement prohibited by
section 17(d) and rule 17d-1. In considering an application for an
order under rule 17d-1, the Commission must determine whether the
participation of the investment company in a joint enterprise or joint
arrangement is consistent with the provisions, policies and purposes of
the Act and the extent to which the company's participation would be on
a basis different from or less advantageous than that of the other
participants.
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\4\ Each Director Applicant is an affiliated person of the Fund
pursuant to section 2(a)(3)(D) of the Act, which defines an
``affiliated person'' of another person to include any director of
such other person.
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4. Applicants believe that the relative benefits from the proposed
settlement to the Fund markedly outweigh its contributions to the
settlement, and that the Fund's participation in the proposed
settlement is on terms that are at least as favorable to the Fund as to
the Adviser and the Director Applicants. Under the terms of the
proposed settlement, the Fund's contributions are limited to the
following: (a) 6.25% (50% of 12.5%) of the costs and fees incurred
after December 31, 2001 in connection with the litigation and
settlement of the Actions (the balance being paid by Gulf and the
Adviser); (b) 50% of the costs associated with obtaining the Order
after any contribution by Gulf; and (c) the costs associated with
liquidating the Fund after any contribution by Gulf. The Fund will make
no contribution in respect of the Settlement Payments and will be
relieved of any payment obligations to the class members in the Rights
Offering Litigation. In addition, as noted above, the Fund will be
relieved of its obligation to indemnify the Adviser for the legal fees
and expenses it has incurred in connection with the Actions.
5. Applicants state that the participation by the Director
Applicants in the proposed settlement is also consistent with the
provisions of section 17(d) and rule 17d-1. As part of the Settlement
Agreement, the Director Applicants will be released from any liability
in connection with the Rights Offering Litigation. Although the
Director Applicants' legal expenses incurred in connection with the
Rights Offering Litigation have been paid by the Fund, the Fund is
obligated under its articles of incorporation and by-laws (and, in the
case of the Independent Directors, under separate indemnification
agreements with each such Director) to pay those expenses regardless of
whether the Actions are settled, provided the Director Applicants have
not engaged in willful misfeasance, bad faith, gross negligence or
reckless disregard of their duties. Furthermore, the proposed
settlement is predicated upon the settlement of both Actions in their
entirety. Consequently, if the Director Applicants could not
participate, applicants state that the proposed settlement in all
likelihood would not be consummated, and the Fund would continue to
incur legal fees and expenses in connection with its indemnification of
the Director Applicants.
6. Applicants represent that the liquidation of the Fund cannot
occur without settlement of the Actions. Applicants state that the
liquidation of the Fund will benefit shareholders because it will
enable them to realize immediately the full net asset value of their
shares. Applicants note that at the Fund's annual meeting of
shareholders held on January 16, 2003, the holders of a majority of the
Fund's outstanding shares voted in favor of the Fund's liquidation.
Applicants also assert that the continued litigation of the Actions
would be detrimental to both the Fund and its shareholders because of
the costs and expenses to the Fund in connection with its defense of
the Actions.
7. Accordingly, applicants submit that the terms of the proposed
settlement, including the consideration to be paid or received, are
fair and reasonable and do not involve overreaching and that the
proposed transaction is consistent with the policy of the Fund and with
the general purposes of the Act. Applicants further submit that the
Fund's participation in the proposed settlement would not be on a basis
different from or less advantageous than that of the other
participants.
For the Commission, by the Division of Investment Management,
under delegated authority.
J. Lynn Taylor,
Assistant Secretary.
[FR Doc. E5-1133 Filed 3-15-05; 8:45 am]
BILLING CODE 8010-01-P
