Boulder Total Return Fund, Inc., et al.; Notice of Application, 63519-63523 [E8-25402]

Download as PDF Federal Register / Vol. 73, No. 207 / Friday, October 24, 2008 / Notices For the Nuclear Regulatory Commission. Andy Campbell, Acting Director, Division of Site and Environmental Reviews, Office of New Reactors. [FR Doc. E8–25381 Filed 10–23–08; 8:45 am] BILLING CODE 7590–01–P SECURITIES AND EXCHANGE COMMISSION Submission for OMB Review; Comment Request Upon written request, copies available from: U.S. Securities and Exchange Commission, Office of Investor Education and Advocacy, Washington, DC 20549–0213. jlentini on PROD1PC65 with NOTICES Extension: Rule 30b1–5, SEC File No. 270– 520, OMB Control No. 3235–0577. Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (‘‘Act’’) the U.S. Securities and Exchange Commission (‘‘Commission’’) has submitted to the Office of Management and Budget (‘‘OMB’’) a request for extension of the previously approved collection of information discussed below. The title for the collection of information is ‘‘Rule 30b1–5 (17 CFR 270.30b1–5) under the Investment Company Act of 1940 (15 U.S.C. 80a–1 et seq.), Quarterly Filing of Schedule of Portfolio Holdings of Registered Management Investment Companies.’’ Rule 30b1–5 under the Investment Company Act of 1940 requires registered management investment companies, other than small business investment companies registered on Form N–5, (17 CFR 239.24 and 274.5) to file a quarterly report via the Commission’s EDGAR system on Form N–Q (17 CFR 249.332 and 274.130), not more than 60 calendar days after the close of each first and third fiscal quarter, containing their complete portfolio holdings. The Commission estimates that there are 2,820 management investment companies and series that are governed by the rule. For purposes of this analysis, the burden associated with the requirements of Rule 30b1–5 has been included in the collection of information requirements of Form N–Q, rather than the rule. The collection of information under rule 30b1–5 is mandatory. The information provided under rule 30b1– 5 is not kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. VerDate Aug<31>2005 16:48 Oct 23, 2008 Jkt 217001 Please direct general comments regarding the above information to the following persons: (i) Desk Officer for the Securities and Exchange Commission, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or e-mail to: nfraser@omb.eop.gov; and (ii) Lewis W. Walker, Acting Director/ CIO, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, VA 22312; or send an e-mail to: PRA_Mailbox@sec.gov. Comments must be submitted to OMB within 30 days of this notice. Dated: October 20, 2008. Florence E. Harmon, Acting Secretary. [FR Doc. E8–25379 Filed 10–23–08; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 28442; 812–13077] Boulder Total Return Fund, Inc., et al.; Notice of Application October 20, 2008. Securities and Exchange Commission (‘‘Commission’’). ACTION: Notice of application under section 6(c) of the Investment Company Act of 1940 (‘‘Act’’) for an exemption from section 19(b) of the Act and rule 19b-1 under the Act. AGENCY: Applicants request an order to permit certain closed-end investment companies to make periodic distributions of long-term capital gains with respect to their outstanding common stock as frequently as twelve times each year, and as frequently as distributions are specified by or in accordance with the terms of any outstanding preferred stock that such investment companies may issue. APPLICANTS: Boulder Total Return Fund, Inc., Boulder Growth & Income Fund, Inc. and The Denali Fund Inc. (formerly, the Neuberger Berman Real Estate Income Fund) and Stewart West Indies Trading Company, Ltd. (doing business as Stewart Investment Advisers) and Boulder Investment Advisers, LLC (together, the ‘‘Advisers’’). FILING DATES: April 9, 2004, August 11, 2004, December 1, 2006, January 16, 2007 and August 22, 2008. HEARING OR NOTIFICATION OF HEARING: An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request SUMMARY OF APPLICATION: PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 63519 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 November 14, 2008, and should be accompanied by proof of service on 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, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090; Applicants, 2344 Spruce Street, Suite A, Boulder, CO 80302, Attention: Stephen C. Miller, Esq. or Joel L. Terwilliger, Esq. FOR FURTHER INFORMATION CONTACT: Wendy Friedlander, Senior Counsel, at (202) 551–6837, or James M. Curtis, Branch Chief, at (202) 551–6825 (Division of Investment Management, Office of Chief Counsel). 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 Room, 100 F Street, NE., Washington, DC 20549–1520 (telephone (202) 551–5850). Applicants’ Representations 1. Each fund is a registered closed-end management investment company organized as a Maryland corporation, and each has total return as its primary objective.1 The common shares issued by each fund are listed on the New York Stock Exchange, and the preferred shares are not listed on any exchange. Applicants believe that the shareholders of the funds are generally conservative, dividend-sensitive investors who desire current income periodically coupled with long-term capital appreciation and may favor a fixed distribution policy. 2. The Advisers are registered under the Investment Advisers Act of 1940 and are responsible for the overall management of the funds. The Advisers 1 Applicants request that any order issued granting the relief requested in the application also apply to any future closed-end investment company (‘‘future fund’’) that: (a) Is advised by the Advisers (including any successor in interest) or by any entity controlling, controlled by, or under common control (within the meaning of section 2(a)(9) of the Act) with the Advisers; and (b) complies with the terms and conditions of the requested order. A successor in interest is limited to entities that result from a reorganization into another jurisdiction or a change in the type of business organization. E:\FR\FM\24OCN1.SGM 24OCN1 jlentini on PROD1PC65 with NOTICES 63520 Federal Register / Vol. 73, No. 207 / Friday, October 24, 2008 / Notices are under common control and have the same principal portfolio manager. 3. Applicants represent that at a meeting held on July 28, 2008, the Board of Directors (the ‘‘Board’’) of each fund, including all of the directors who are not ‘‘interested persons’’ of the funds as defined in section 2(a)(19) of the Act (the ‘‘Independent Directors’’) requested, and the Advisers provided, such information as was reasonably necessary to inform the Boards regarding the possibility of adopting a periodic distribution policy involving the payment of capital gain dividends as often as monthly in any taxable year (a ‘‘Plan’’). 4. Applicants represent that at that July 28, 2008 meeting, the Boards determined that, prior to any fund or future fund adopting a Plan that relies on the requested order: (i) The Board and the Independent Directors will request, and the Advisers will provide, such information as is reasonably necessary to an informed determination of whether the Board should adopt a Plan; (ii) The Board and the Independent Directors will review (A) information regarding the purpose and terms of the Plan, the likely effects of the Plan on the fund’s long-term total return (in relation to market price and net asset value per common share) and the relationship between the fund’s distribution rate on its common shares under the Plan and its total return (in relation to net asset value per share); (B) whether the rate of distribution would exceed the fund’s expected total return in relation to its net asset value per share; and (C) any foreseeable material effects of the Plan on the fund’s long-term total return (in relation to market price and net asset value per share); and (iii) The Independent Directors will consider what conflicts of interest the Advisers and the affiliated persons of the Advisers and the fund might have with respect to the adoption or implementation of the Plan. Applicants represent that after considering such information the Board, including the Independent Directors, will approve the Plan with respect to the fund’s common shares provided that the Plan is consistent with the fund’s investment objectives and in the best interests of the fund’s common shareholders. 4. Applicants represent that the purpose of the Plan would be to permit the fund to distribute over the course of each year, through periodic distributions as nearly equal as practicable and any required special distributions, an amount closely approximating the total taxable income VerDate Aug<31>2005 16:48 Oct 23, 2008 Jkt 217001 of the fund during such year and, if so determined by its Board, all or a portion of the returns of capital paid by portfolio companies to the fund during such year. Applicants represent that, under the Plan, the fund would distribute to its common shareholders a fixed monthly percentage of the market price of the fund’s common shares at a particular point in time or a fixed monthly percentage of net asset value per share at a particular time or a fixed monthly amount, any of which may be adjusted from time to time. Applicants represent that under the Plan the minimum annual distribution rate with respect to the fund’s common shares would be independent of the fund’s performance during any particular period but would be expected to correlate with the fund’s performance over time. Except for extraordinary distributions and potential increases or decreases in the final dividend periods in light of the fund’s performance for the entire calendar year and to enable the fund to comply with the distribution requirements of Subchapter M of the Internal Revenue Code of 1986 (the ‘‘Code’’) for the calendar year, each distribution on the common shares would be at the stated rate then in effect. 5. Applicants represent that at the July 28, 2008 meeting, each Board adopted policies and procedures under rule 38a–1 that: (i) Are reasonably designed to ensure that, when a Plan is adopted, all notices required to be sent to the fund’s shareholders pursuant to section 19(a) of the Act, rule 19a–1 thereunder and condition IV below (each a ‘‘Notice’’) will include the disclosure required by rule 19a–1 and by condition II(A) below, and that all other written communications by the funds or their agents described in condition III(A) below about the distributions under the Plan will include the disclosure required by condition III(A) below; and (ii) When a Plan is adopted, will require the respective fund to keep records that demonstrate its compliance with all of the conditions of the Order and that are necessary for the fund to form the basis for, or demonstrate the calculation of, the amounts disclosed in its Notices. Applicants represent that the records of the actions of the Board of Directors of each fund shall summarize the basis for approval of the Plan, including its consideration of the factors described above. Such records will be maintained for a period of at least six years from the date of such meeting, the first two years in an easily accessible place, or for such PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 longer period as may otherwise be required by law. Applicants’ Legal Analysis 1. Section 19(b) generally makes it unlawful for any registered investment company to make long-term capital gains distributions more than once each year. Rule 19b–1 limits the number of capital gains dividends, as defined in section 852(b)(3)(C) of the Code (‘‘distributions’’), that a fund may make with respect to any one taxable year to one, plus a supplemental ‘‘clean up’’ distribution made pursuant to section 855 of the Code not exceeding 10% of the total amount distributed for the year, plus one additional capital gain dividend made in whole or in part to avoid the excise tax under section 4982 of the Code. 2. Section 6(c) provides that the Commission may, by order upon application, conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of the Act, if and to the extent that the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. 3. Applicants state that one of the concerns underlying section 19(b) and rule 19b–1 is that shareholders might be unable to differentiate between regular distributions of capital gains and distributions of investment income. Applicants state, however, that rule 19a–1 effectively addresses this concern by requiring that a separate statement showing the sources of a distribution (e.g., estimated net income, net shortterm capital gains, net long-term capital gains and/or return of capital) accompany any distributions (or the confirmation of the reinvestment of distributions) estimated to be sourced in part from capital gains or capital. Applicants state that the same information also is included in each fund’s annual reports to shareholders and on its IRS Form 1099–DIV, which is sent to each common and preferred shareholder who received distributions during the year. 4. Applicants further state that each fund will make the additional disclosures required by the conditions set forth below, and each of them has adopted compliance policies and procedures in accordance with rule 38a–1 to ensure that all required notices and disclosures are sent to shareholders. Applicants argue that by providing the information required by section 19(a) and rule 19a–1, and by complying with E:\FR\FM\24OCN1.SGM 24OCN1 jlentini on PROD1PC65 with NOTICES Federal Register / Vol. 73, No. 207 / Friday, October 24, 2008 / Notices the procedures adopted under each Plan and the conditions listed below, the funds would ensure that each fund’s shareholders are provided sufficient information to understand that their periodic distributions are not tied to the fund’s net investment income (which for this purpose is the fund’s taxable income other than from capital gains) and realized capital gains to date, and may not represent yield or investment return. Applicants also state that compliance with each fund’s compliance procedures and condition III set forth below will ensure that prospective shareholders and third parties are provided with the same information. Accordingly, applicants assert that continuing to subject the funds to section 19(b) and rule 19b–1 would afford shareholders no extra protection. 5. Applicants note that section 19(b) and rule 19b–1 also were intended to prevent certain improper sales practices, including, in particular, the practice of urging an investor to purchase shares of a fund on the basis of an upcoming capital gains dividend (‘‘selling the dividend’’), where the dividend would result in an immediate corresponding reduction in NAV and would be in effect a taxable return of the investor’s capital. Applicants assert that the ‘‘selling the dividend’’ concern should not apply to closed-end investment companies, such as the funds, which do not continuously distribute shares. According to Applicants, if the underlying concern extends to secondary market purchases of shares of closed-end funds that are subject to a large upcoming capital gains dividend, adoption of a Plan actually helps minimize the concern by avoiding, through periodic distributions, any buildup of large end-of-the-year distributions. 6. Applicants also note that common shares of closed-end funds that invest primarily in equity securities often trade in the marketplace at a discount to their net NAV. Applicants believe that this discount may be reduced for closed-end funds that pay relatively frequent dividends on their common shares at a consistent rate, whether or not those dividends contain an element of longterm capital gain. 7. Applicants assert that the application of rule 19b–1 to a Plan actually could have an undesirable influence on portfolio management decisions. Applicants state that, in the absence of an exemption from rule 19b– 1, the implementation of a Plan imposes pressure on management (i) not to realize any net long-term capital gains until the point in the year that the fund VerDate Aug<31>2005 16:48 Oct 23, 2008 Jkt 217001 can pay all of its remaining distributions in accordance with rule 19b–1, and (ii) not to realize any long-term capital gains during any particular year in excess of the amount of the aggregate pay-out for the year (since as a practical matter excess gains must be distributed and accordingly would not be available to satisfy pay-out requirements in following years), notwithstanding that purely investment considerations might favor realization of long term gains at different times or in different amounts. Applicants thus assert that the limitation on the number of capital gain distributions that a fund may make with respect to any one year imposed by rule 19b–1, may prevent the efficient operation of a Plan whenever that fund’s realized net long-term capital gains in any year exceed the total of the periodic distributions that may include such capital gains under the rule. 8. In addition, Applicants assert that rule 19b–1 may cause fixed regular periodic distributions under a Plan to be funded with returns of capital 2 (to the extent net investment income and realized short-term capital gains are insufficient to fund the distribution), even though realized net long-term capital gains otherwise could be available. To distribute all of a fund’s long-term capital gains within the limits in rule 19b–1, a fund may be required to make total distributions in excess of the annual amount called for by its Plan, or to retain and pay taxes on the excess amount. Applicants thus assert that the requested order would minimize these effects of rule 19b–1 by enabling the funds to realize long-term capital gains as often as investment considerations dictate without fear of violating rule 19b–1. 9. Applicants state that Revenue Ruling 89–81 under the Code requires that a fund that has both common stock and preferred stock outstanding designate the types of income, e.g., investment income and capital gains, in the same proportion as the total distributions distributed to each class for the tax year. To satisfy the proportionate designation requirements of Revenue Ruling 89–81, whenever a fund has realized a long term capital gain with respect to a given tax year, the fund must designate the required proportionate share of such capital gain to be included in common and preferred stock dividends. Applicants state that although rule 19b–1 allows a fund some flexibility with respect to the frequency of capital gains distributions, a fund 2 Returns of capital as used in the application means return of capital for financial accounting purposes and not for tax accounting purposes. PO 00000 Frm 00097 Fmt 4703 Sfmt 4703 63521 might use all of the exceptions available under the rule for a tax year and still need to distribute additional capital gains allocated to the preferred stock to comply with Revenue Ruling 89–81. 10. Applicants assert that the potential abuses addressed by section 19(b) and rule 19b–1 do not arise with respect to preferred stock issued by a closed-end fund. Applicants assert that such distributions are either fixed or are determined in periodic auctions by reference to short-term interest rates rather than by reference to performance of the issuer, and Revenue Ruling 89– 81 determines the proportion of such distributions that are comprised of the long-term capital gains. 11. Applicants also submit that the ‘‘selling the dividend’’ concern is not applicable to preferred stock, of which the funds have issued, and which entitles a holder to no more than a periodic dividend at a fixed rate or the rate determined by the market, and, like a debt security, is priced based upon its liquidation value, dividend rate, credit quality, and frequency of payment. Applicants state that investors buy preferred shares for the purpose of receiving payments at the frequency bargained for, and do not expect the liquidation value of their shares to change. 12. Applicants request an order under section 6(c) granting an exemption from the provisions of section 19(b) and rule 19b–1 to permit each fund to distribute periodic capital gains dividends (as defined in section 852(b)(3)(C) of the Code) as often as monthly in any one taxable year in respect of its common shares and as often as specified by or determined in accordance with the terms thereof in respect of its preferred shares.3 Applicants’ Conditions Applicants agree that, with respect to each fund seeking to rely on the order, the order will be subject to the following conditions: I. Compliance Review and Reporting The fund’s chief compliance officer will: (a) Report to the fund Board, no less frequently than once every three months or at the next regularly scheduled quarterly board meeting, whether (i) the fund and the fund’s Advisers have complied with the conditions to the requested order, and (ii) a Material Compliance Matter, as 3 Applicants state that a future fund that relies on the requested order will satisfy each of the representations in the application except that such representations will be made in respect of actions by the board of directors of such future fund and will be made at a future time. E:\FR\FM\24OCN1.SGM 24OCN1 63522 Federal Register / Vol. 73, No. 207 / Friday, October 24, 2008 / Notices jlentini on PROD1PC65 with NOTICES defined in rule 38a–1(e)(2), has occurred with respect to compliance with such conditions; and (b) review the adequacy of the policies and procedures adopted by the fund no less frequently than annually. II. Disclosures to Fund Shareholders A. Each Notice to the holders of the fund’s common shares, in addition to the information required by section 19(a) and rule 19a–1: 1. Will provide, in a tabular or graphical format: (a) The amount of the distribution, on a per share basis, together with the amounts of such distribution amount, on a per share basis and as a percentage of such distribution amount, from estimated: (A) Net investment income; (B) net realized short-term capital gains; (C) net realized long-term capital gains; and (D) return of capital or other capital source; (b) The fiscal year-to-date cumulative amount of distributions, on a per share basis, together with the amounts of such cumulative amount, on a per share basis and as a percentage of such cumulative amount of distributions, from estimated: (A) Net investment income; (B) net realized short-term capital gains; (C) net realized long-term capital gains; and (D) return of capital or other capital source; (c) The average annual total return in relation to the change in NAV for the 5year period (or, if the fund’s history of operations is less than five years, the time period commencing immediately following the fund’s first public offering) ending on the last day of the month prior to the most recent distribution declaration date compared to the current fiscal period’s annualized distribution rate expressed as a percentage of NAV as of the last day of the month prior to the most recent distribution declaration date; and (d) The cumulative total return in relation to the change in NAV from the last completed fiscal year to the last day of the month prior to the most recent distribution declaration date compared to the fiscal year-to-date cumulative distribution rate expressed as a percentage of NAV as of the last day of the month prior to the most recent distribution declaration date. Such disclosure shall be made in a type size at least as large and as prominent as the estimate of the sources of the current distribution; and 2. Will include the following disclosure: (a) ‘‘You should not draw any conclusions about the fund’s investment performance from the amount of this distribution or from the terms of the fund’s Plan’’; VerDate Aug<31>2005 16:48 Oct 23, 2008 Jkt 217001 (b) ‘‘The fund estimates that it has distributed more than its income and net realized capital gains; therefore, a portion of your distribution may be a return of capital. A return of capital may occur for example, when some or all of the money that you invested in the fund is paid back to you. A return of capital distribution does not necessarily reflect the fund’s investment performance and should not be confused with ‘yield’ or ‘income’’’; and (c) ‘‘The amounts and sources of distributions reported in this Notice are only estimates and are not being provided for tax reporting purposes. The actual amounts and sources of the amounts for [accounting and] tax reporting purposes will depend upon the fund’s investment experience during the remainder of its fiscal year and may be subject to changes based on tax regulations. The fund will send you a Form 1099 DIV for the calendar year that will tell you how to report these distributions for federal income tax purposes.’’ Such disclosure shall be made in a type size at least as large as and as prominent as any other information in the Notice and placed on the same page in close proximity to the amount and the sources of the distribution. B. On the inside front cover of each report to shareholders under rule 30e– 1 under the Act, the fund will: 1. Describe the terms of the Plan (including the fixed amount or fixed percentage of the distributions and the frequency of the distributions); 2. Include the disclosure required by condition II.A.2(a) above; 3. State, if applicable, that the Plan provides that the Board may amend, suspend or terminate the Plan at any time without prior notice to fund shareholders; and 4. Describe any reasonably foreseeable circumstances that might cause the fund to suspend or terminate the Plan and any reasonably foreseeable consequences of such suspension or termination. C. Each report provided to shareholders under rule 30e–1 and each prospectus filed with the Commission on Form N–2 under the Act, will provide the fund’s total return in relation to changes in NAV in the financial highlights table and in any discussion about the fund’s total return. III. Disclosure to Shareholders, Prospective Shareholders and Third Parties A. The fund will include the information contained in the relevant Notice, including the disclosure required by condition II.A.2 above, in PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 any written communication (other than a Form 1099) about the Plan or distributions under the Plan by the fund, or shareholder, prospective shareholder or third-party information provider; B. The fund will issue, contemporaneously with the issuance of any Notice, a press release containing the information in the Notice and will file with the Commission the information contained in such Notice, including the disclosure required by condition II.A.2 above, as an exhibit to its next filed Form N–CSR; and C. The fund will post prominently a statement on its (or its adviser’s) Web site containing the information in each Notice, including the disclosure required by condition II.A.2 above, and will maintain such information on such Web site for at least 24 months. IV. Delivery of 19(a) Notices to Beneficial Owners If a broker, dealer, bank or other person (‘‘financial intermediary’’) holds common stock issued by the fund in nominee name, or otherwise, on behalf of a beneficial owner, the fund: (a) Will request that the financial intermediary, or its agent, forward the Notice to all beneficial owners of the fund’s shares held through such financial intermediary; (b) will provide, in a timely manner, to the financial intermediary, or its agent, enough copies of the Notice assembled in the form and at the place that the financial intermediary, or its agent, reasonably requests to facilitate the financial intermediary’s sending of the Notice to each beneficial owner of the fund’s shares; and (c) upon the request of any financial intermediary, or its agent, that receives copies of the Notice, will pay the financial intermediary, or its agent, the reasonable expenses of sending the Notice to such beneficial owners. V. Additional Board Determinations for Funds Whose Shares Trade at a Premium If: A. The fund’s common shares have traded on the exchange that they primarily trade on at the time in question at an average premium to NAV equal to or greater than 10%, as determined on the basis of the average of the discount or premium to NAV of the fund’s common shares as of the close of each trading day over a 12-week rolling period (each such 12-week rolling period ending on the last trading day of each week); and B. The fund’s annualized distribution rate for such 12-week rolling period, expressed as a percentage of NAV as of E:\FR\FM\24OCN1.SGM 24OCN1 Federal Register / Vol. 73, No. 207 / Friday, October 24, 2008 / Notices jlentini on PROD1PC65 with NOTICES the ending date of such 12-week rolling period is greater than the fund’s average annual total return in relation to the change in NAV over the 2-year period ending on the last day of such 12-week rolling period; then: 1. At the earlier of the next regularly scheduled meeting or within four months of the last day of such 12-week rolling period, the Board including a majority of the Independent Directors: (a) Will request and evaluate, and the fund’s adviser will furnish, such information as may be reasonably necessary to make an informed determination of whether the Plan should be continued or continued after amendment; (b) Will determine whether continuation, or continuation after amendment, of the Plan is consistent with the fund’s investment objective(s) and policies and in the best interests of the fund and its shareholders, after considering the information in condition V.B.1.a above; including, without limitation: (1) Whether the Plan is accomplishing its purpose(s); (2) The reasonably foreseeable effects of the Plan on the fund’s long-term total return in relation to the market price and NAV of the fund’s common shares; and (3) The fund’s current distribution rate, as described in condition V.B above, compared with the fund’s average annual taxable income or total return over the 2-year period, as described in condition V.B, or such longer period as the Board deems appropriate; and (c) Based upon that determination, will approve or disapprove the continuation, or continuation after amendment, of the Plan; and 2. The Board will record the information considered by it and the basis for its approval or disapproval of the continuation, or continuation after amendment, of the Plan in its meeting minutes, which must be made and preserved for a period of not less than six years from the date of such meeting, the first two years in an easily accessible place. above, unless, with respect to such other offering: 1. The fund’s average annual distribution rate for the six months ending on the last day of the month ended immediately prior to the most recent distribution declaration date,4 expressed as a percentage of NAV per share as of such date, is no more than 1 percentage point greater than the fund’s average annual total return for the five-year period ending on such date; 5 and 2. The transmittal letter accompanying any registration statement filed with the Commission in connection with such offering discloses that the fund has received an order under section 19(b) to permit it to make periodic distributions of long-term capital gains with respect to its common stock as frequently as twelve times each year, and as frequently as distributions are specified by or determined in accordance with the terms of any outstanding preferred stock that such fund may issue. VI. Public Offerings The fund will not make a public offering of the fund’s common shares other than: A. A rights offering below NAV to holders of the fund’s common stock; B. An offering in connection with a dividend reinvestment plan, merger, consolidation, acquisition, spin off or reorganization of the fund; or C. An offering other than an offering described in conditions VI.A and VI.B October 20, 2008. VerDate Aug<31>2005 16:48 Oct 23, 2008 Jkt 217001 VII. Amendments to Rule 19b–1 The requested order will expire on the effective date of any amendments to rule 19b–1 that provide relief permitting certain closed-end investment companies to make periodic distributions of long-term capital gains with respect to their outstanding common stock as frequently as twelve times each year. For the Commission, by the Division of Investment Management, under delegated authority. Florence E. Harmon, Acting Secretary. [FR Doc. E8–25402 Filed 10–23–08; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 28441, 812–13497] The Zweig Total Return Fund, Inc., et al.; Notice of Application Securities and Exchange Commission (‘‘Commission’’). ACTION: Notice of application under section 6(c) of the Investment Company Act of 1940 (‘‘Act’’) for an exemption AGENCY: 4 If the fund has been in operation fewer than two years, the measured period will begin immediately following the fund’s first public offering. 5 If the fund has been in operation fewer than five years, the measured period will begin immediately following the fund’s first public offering. PO 00000 Frm 00099 Fmt 4703 Sfmt 4703 63523 from section 19(b) of the Act and rule 19b–1 under the Act. Applicants request an Order to permit certain closed-end investment companies to make periodic distributions of long-term capital gains with respect to their outstanding common stock as frequently as twelve times each year, and as frequently as distributions are specified by or in accordance with the terms of any outstanding preferred stock that such investment company may issue. APPLICANTS: The Zweig Total Return Fund, Inc. (‘‘ZTR’’), The Zweig Fund, Inc. (‘‘ZF’’) and Phoenix/Zweig Advisers LLC (the ‘‘Adviser’’). FILING DATES: February 14, 2008 and July 30, 2008. 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 November 14, 2008, and should be accompanied by proof of service on 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, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090. Applicants, c/o George R. Aylward, President, Phoenix/Zweig Advisors LLC, 900 Third Avenue, New York, NY 10022. FOR FURTHER INFORMATION CONTACT: Wendy Friedlander, Senior Counsel, at (202) 551–6837, or James M. Curtis, Branch Chief, at (202) 551–6825 (Division of Investment Management, Office of Chief Counsel). 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 Room, 100 F Street, NE., Washington, DC 20549–1520 (telephone: (202) 551– 5850). SUMMARY OF APPLICATION: Applicants’ Representations 1. Each of ZTR and ZF is a diversified closed-end management investment company registered under the Act and E:\FR\FM\24OCN1.SGM 24OCN1

Agencies

[Federal Register Volume 73, Number 207 (Friday, October 24, 2008)]
[Notices]
[Pages 63519-63523]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25402]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 28442; 812-13077]


Boulder Total Return Fund, Inc., et al.; Notice of Application

October 20, 2008.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of application under section 6(c) of the Investment 
Company Act of 1940 (``Act'') for an exemption from section 19(b) of 
the Act and rule 19b-1 under the Act.

-----------------------------------------------------------------------

SUMMARY OF APPLICATION: Applicants request an order to permit certain 
closed-end investment companies to make periodic distributions of long-
term capital gains with respect to their outstanding common stock as 
frequently as twelve times each year, and as frequently as 
distributions are specified by or in accordance with the terms of any 
outstanding preferred stock that such investment companies may issue.

Applicants: Boulder Total Return Fund, Inc., Boulder Growth & Income 
Fund, Inc. and The Denali Fund Inc. (formerly, the Neuberger Berman 
Real Estate Income Fund) and Stewart West Indies Trading Company, Ltd. 
(doing business as Stewart Investment Advisers) and Boulder Investment 
Advisers, LLC (together, the ``Advisers'').

Filing Dates: April 9, 2004, August 11, 2004, December 1, 2006, January 
16, 2007 and August 22, 2008.

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 November 14, 2008, and should be accompanied by proof of 
service on 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, Securities and Exchange Commission, 100 F Street, 
NE., Washington, DC 20549-1090; Applicants, 2344 Spruce Street, Suite 
A, Boulder, CO 80302, Attention: Stephen C. Miller, Esq. or Joel L. 
Terwilliger, Esq.

FOR FURTHER INFORMATION CONTACT: Wendy Friedlander, Senior Counsel, at 
(202) 551-6837, or James M. Curtis, Branch Chief, at (202) 551-6825 
(Division of Investment Management, Office of Chief Counsel).

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 Room, 100 F Street, NE., Washington, DC 
20549-1520 (telephone (202) 551-5850).

Applicants' Representations

    1. Each fund is a registered closed-end management investment 
company organized as a Maryland corporation, and each has total return 
as its primary objective.\1\ The common shares issued by each fund are 
listed on the New York Stock Exchange, and the preferred shares are not 
listed on any exchange. Applicants believe that the shareholders of the 
funds are generally conservative, dividend-sensitive investors who 
desire current income periodically coupled with long-term capital 
appreciation and may favor a fixed distribution policy.
---------------------------------------------------------------------------

    \1\ Applicants request that any order issued granting the relief 
requested in the application also apply to any future closed-end 
investment company (``future fund'') that: (a) Is advised by the 
Advisers (including any successor in interest) or by any entity 
controlling, controlled by, or under common control (within the 
meaning of section 2(a)(9) of the Act) with the Advisers; and (b) 
complies with the terms and conditions of the requested order. A 
successor in interest is limited to entities that result from a 
reorganization into another jurisdiction or a change in the type of 
business organization.
---------------------------------------------------------------------------

    2. The Advisers are registered under the Investment Advisers Act of 
1940 and are responsible for the overall management of the funds. The 
Advisers

[[Page 63520]]

are under common control and have the same principal portfolio manager.
    3. Applicants represent that at a meeting held on July 28, 2008, 
the Board of Directors (the ``Board'') of each fund, including all of 
the directors who are not ``interested persons'' of the funds as 
defined in section 2(a)(19) of the Act (the ``Independent Directors'') 
requested, and the Advisers provided, such information as was 
reasonably necessary to inform the Boards regarding the possibility of 
adopting a periodic distribution policy involving the payment of 
capital gain dividends as often as monthly in any taxable year (a 
``Plan'').
    4. Applicants represent that at that July 28, 2008 meeting, the 
Boards determined that, prior to any fund or future fund adopting a 
Plan that relies on the requested order:
    (i) The Board and the Independent Directors will request, and the 
Advisers will provide, such information as is reasonably necessary to 
an informed determination of whether the Board should adopt a Plan;
    (ii) The Board and the Independent Directors will review (A) 
information regarding the purpose and terms of the Plan, the likely 
effects of the Plan on the fund's long-term total return (in relation 
to market price and net asset value per common share) and the 
relationship between the fund's distribution rate on its common shares 
under the Plan and its total return (in relation to net asset value per 
share); (B) whether the rate of distribution would exceed the fund's 
expected total return in relation to its net asset value per share; and 
(C) any foreseeable material effects of the Plan on the fund's long-
term total return (in relation to market price and net asset value per 
share); and
    (iii) The Independent Directors will consider what conflicts of 
interest the Advisers and the affiliated persons of the Advisers and 
the fund might have with respect to the adoption or implementation of 
the Plan.
    Applicants represent that after considering such information the 
Board, including the Independent Directors, will approve the Plan with 
respect to the fund's common shares provided that the Plan is 
consistent with the fund's investment objectives and in the best 
interests of the fund's common shareholders.
    4. Applicants represent that the purpose of the Plan would be to 
permit the fund to distribute over the course of each year, through 
periodic distributions as nearly equal as practicable and any required 
special distributions, an amount closely approximating the total 
taxable income of the fund during such year and, if so determined by 
its Board, all or a portion of the returns of capital paid by portfolio 
companies to the fund during such year. Applicants represent that, 
under the Plan, the fund would distribute to its common shareholders a 
fixed monthly percentage of the market price of the fund's common 
shares at a particular point in time or a fixed monthly percentage of 
net asset value per share at a particular time or a fixed monthly 
amount, any of which may be adjusted from time to time. Applicants 
represent that under the Plan the minimum annual distribution rate with 
respect to the fund's common shares would be independent of the fund's 
performance during any particular period but would be expected to 
correlate with the fund's performance over time. Except for 
extraordinary distributions and potential increases or decreases in the 
final dividend periods in light of the fund's performance for the 
entire calendar year and to enable the fund to comply with the 
distribution requirements of Subchapter M of the Internal Revenue Code 
of 1986 (the ``Code'') for the calendar year, each distribution on the 
common shares would be at the stated rate then in effect.
    5. Applicants represent that at the July 28, 2008 meeting, each 
Board adopted policies and procedures under rule 38a-1 that:
    (i) Are reasonably designed to ensure that, when a Plan is adopted, 
all notices required to be sent to the fund's shareholders pursuant to 
section 19(a) of the Act, rule 19a-1 thereunder and condition IV below 
(each a ``Notice'') will include the disclosure required by rule 19a-1 
and by condition II(A) below, and that all other written communications 
by the funds or their agents described in condition III(A) below about 
the distributions under the Plan will include the disclosure required 
by condition III(A) below; and
    (ii) When a Plan is adopted, will require the respective fund to 
keep records that demonstrate its compliance with all of the conditions 
of the Order and that are necessary for the fund to form the basis for, 
or demonstrate the calculation of, the amounts disclosed in its 
Notices.
    Applicants represent that the records of the actions of the Board 
of Directors of each fund shall summarize the basis for approval of the 
Plan, including its consideration of the factors described above. Such 
records will be maintained for a period of at least six years from the 
date of such meeting, the first two years in an easily accessible 
place, or for such longer period as may otherwise be required by law.

Applicants' Legal Analysis

    1. Section 19(b) generally makes it unlawful for any registered 
investment company to make long-term capital gains distributions more 
than once each year. Rule 19b-1 limits the number of capital gains 
dividends, as defined in section 852(b)(3)(C) of the Code 
(``distributions''), that a fund may make with respect to any one 
taxable year to one, plus a supplemental ``clean up'' distribution made 
pursuant to section 855 of the Code not exceeding 10% of the total 
amount distributed for the year, plus one additional capital gain 
dividend made in whole or in part to avoid the excise tax under section 
4982 of the Code.
    2. Section 6(c) provides that the Commission may, by order upon 
application, conditionally or unconditionally exempt any person, 
security, or transaction, or any class or classes of persons, 
securities or transactions, from any provision of the Act, if and to 
the extent that the exemption is necessary or appropriate in the public 
interest and consistent with the protection of investors and the 
purposes fairly intended by the policy and provisions of the Act.
    3. Applicants state that one of the concerns underlying section 
19(b) and rule 19b-1 is that shareholders might be unable to 
differentiate between regular distributions of capital gains and 
distributions of investment income. Applicants state, however, that 
rule 19a-1 effectively addresses this concern by requiring that a 
separate statement showing the sources of a distribution (e.g., 
estimated net income, net short-term capital gains, net long-term 
capital gains and/or return of capital) accompany any distributions (or 
the confirmation of the reinvestment of distributions) estimated to be 
sourced in part from capital gains or capital. Applicants state that 
the same information also is included in each fund's annual reports to 
shareholders and on its IRS Form 1099-DIV, which is sent to each common 
and preferred shareholder who received distributions during the year.
    4. Applicants further state that each fund will make the additional 
disclosures required by the conditions set forth below, and each of 
them has adopted compliance policies and procedures in accordance with 
rule 38a-1 to ensure that all required notices and disclosures are sent 
to shareholders. Applicants argue that by providing the information 
required by section 19(a) and rule 19a-1, and by complying with

[[Page 63521]]

the procedures adopted under each Plan and the conditions listed below, 
the funds would ensure that each fund's shareholders are provided 
sufficient information to understand that their periodic distributions 
are not tied to the fund's net investment income (which for this 
purpose is the fund's taxable income other than from capital gains) and 
realized capital gains to date, and may not represent yield or 
investment return. Applicants also state that compliance with each 
fund's compliance procedures and condition III set forth below will 
ensure that prospective shareholders and third parties are provided 
with the same information. Accordingly, applicants assert that 
continuing to subject the funds to section 19(b) and rule 19b-1 would 
afford shareholders no extra protection.
    5. Applicants note that section 19(b) and rule 19b-1 also were 
intended to prevent certain improper sales practices, including, in 
particular, the practice of urging an investor to purchase shares of a 
fund on the basis of an upcoming capital gains dividend (``selling the 
dividend''), where the dividend would result in an immediate 
corresponding reduction in NAV and would be in effect a taxable return 
of the investor's capital. Applicants assert that the ``selling the 
dividend'' concern should not apply to closed-end investment companies, 
such as the funds, which do not continuously distribute shares. 
According to Applicants, if the underlying concern extends to secondary 
market purchases of shares of closed-end funds that are subject to a 
large upcoming capital gains dividend, adoption of a Plan actually 
helps minimize the concern by avoiding, through periodic distributions, 
any buildup of large end-of-the-year distributions.
    6. Applicants also note that common shares of closed-end funds that 
invest primarily in equity securities often trade in the marketplace at 
a discount to their net NAV. Applicants believe that this discount may 
be reduced for closed-end funds that pay relatively frequent dividends 
on their common shares at a consistent rate, whether or not those 
dividends contain an element of long-term capital gain.
    7. Applicants assert that the application of rule 19b-1 to a Plan 
actually could have an undesirable influence on portfolio management 
decisions. Applicants state that, in the absence of an exemption from 
rule 19b-1, the implementation of a Plan imposes pressure on management 
(i) not to realize any net long-term capital gains until the point in 
the year that the fund can pay all of its remaining distributions in 
accordance with rule 19b-1, and (ii) not to realize any long-term 
capital gains during any particular year in excess of the amount of the 
aggregate pay-out for the year (since as a practical matter excess 
gains must be distributed and accordingly would not be available to 
satisfy pay-out requirements in following years), notwithstanding that 
purely investment considerations might favor realization of long term 
gains at different times or in different amounts. Applicants thus 
assert that the limitation on the number of capital gain distributions 
that a fund may make with respect to any one year imposed by rule 19b-
1, may prevent the efficient operation of a Plan whenever that fund's 
realized net long-term capital gains in any year exceed the total of 
the periodic distributions that may include such capital gains under 
the rule.
    8. In addition, Applicants assert that rule 19b-1 may cause fixed 
regular periodic distributions under a Plan to be funded with returns 
of capital \2\ (to the extent net investment income and realized short-
term capital gains are insufficient to fund the distribution), even 
though realized net long-term capital gains otherwise could be 
available. To distribute all of a fund's long-term capital gains within 
the limits in rule 19b-1, a fund may be required to make total 
distributions in excess of the annual amount called for by its Plan, or 
to retain and pay taxes on the excess amount. Applicants thus assert 
that the requested order would minimize these effects of rule 19b-1 by 
enabling the funds to realize long-term capital gains as often as 
investment considerations dictate without fear of violating rule 19b-1.
---------------------------------------------------------------------------

    \2\ Returns of capital as used in the application means return 
of capital for financial accounting purposes and not for tax 
accounting purposes.
---------------------------------------------------------------------------

    9. Applicants state that Revenue Ruling 89-81 under the Code 
requires that a fund that has both common stock and preferred stock 
outstanding designate the types of income, e.g., investment income and 
capital gains, in the same proportion as the total distributions 
distributed to each class for the tax year. To satisfy the 
proportionate designation requirements of Revenue Ruling 89-81, 
whenever a fund has realized a long term capital gain with respect to a 
given tax year, the fund must designate the required proportionate 
share of such capital gain to be included in common and preferred stock 
dividends. Applicants state that although rule 19b-1 allows a fund some 
flexibility with respect to the frequency of capital gains 
distributions, a fund might use all of the exceptions available under 
the rule for a tax year and still need to distribute additional capital 
gains allocated to the preferred stock to comply with Revenue Ruling 
89-81.
    10. Applicants assert that the potential abuses addressed by 
section 19(b) and rule 19b-1 do not arise with respect to preferred 
stock issued by a closed-end fund. Applicants assert that such 
distributions are either fixed or are determined in periodic auctions 
by reference to short-term interest rates rather than by reference to 
performance of the issuer, and Revenue Ruling 89-81 determines the 
proportion of such distributions that are comprised of the long-term 
capital gains.
    11. Applicants also submit that the ``selling the dividend'' 
concern is not applicable to preferred stock, of which the funds have 
issued, and which entitles a holder to no more than a periodic dividend 
at a fixed rate or the rate determined by the market, and, like a debt 
security, is priced based upon its liquidation value, dividend rate, 
credit quality, and frequency of payment. Applicants state that 
investors buy preferred shares for the purpose of receiving payments at 
the frequency bargained for, and do not expect the liquidation value of 
their shares to change.
    12. Applicants request an order under section 6(c) granting an 
exemption from the provisions of section 19(b) and rule 19b-1 to permit 
each fund to distribute periodic capital gains dividends (as defined in 
section 852(b)(3)(C) of the Code) as often as monthly in any one 
taxable year in respect of its common shares and as often as specified 
by or determined in accordance with the terms thereof in respect of its 
preferred shares.\3\
---------------------------------------------------------------------------

    \3\ Applicants state that a future fund that relies on the 
requested order will satisfy each of the representations in the 
application except that such representations will be made in respect 
of actions by the board of directors of such future fund and will be 
made at a future time.
---------------------------------------------------------------------------

Applicants' Conditions

    Applicants agree that, with respect to each fund seeking to rely on 
the order, the order will be subject to the following conditions:

I. Compliance Review and Reporting

    The fund's chief compliance officer will: (a) Report to the fund 
Board, no less frequently than once every three months or at the next 
regularly scheduled quarterly board meeting, whether (i) the fund and 
the fund's Advisers have complied with the conditions to the requested 
order, and (ii) a Material Compliance Matter, as

[[Page 63522]]

defined in rule 38a-1(e)(2), has occurred with respect to compliance 
with such conditions; and (b) review the adequacy of the policies and 
procedures adopted by the fund no less frequently than annually.

II. Disclosures to Fund Shareholders

    A. Each Notice to the holders of the fund's common shares, in 
addition to the information required by section 19(a) and rule 19a-1:
    1. Will provide, in a tabular or graphical format:
    (a) The amount of the distribution, on a per share basis, together 
with the amounts of such distribution amount, on a per share basis and 
as a percentage of such distribution amount, from estimated: (A) Net 
investment income; (B) net realized short-term capital gains; (C) net 
realized long-term capital gains; and (D) return of capital or other 
capital source;
    (b) The fiscal year-to-date cumulative amount of distributions, on 
a per share basis, together with the amounts of such cumulative amount, 
on a per share basis and as a percentage of such cumulative amount of 
distributions, from estimated: (A) Net investment income; (B) net 
realized short-term capital gains; (C) net realized long-term capital 
gains; and (D) return of capital or other capital source;
    (c) The average annual total return in relation to the change in 
NAV for the 5-year period (or, if the fund's history of operations is 
less than five years, the time period commencing immediately following 
the fund's first public offering) ending on the last day of the month 
prior to the most recent distribution declaration date compared to the 
current fiscal period's annualized distribution rate expressed as a 
percentage of NAV as of the last day of the month prior to the most 
recent distribution declaration date; and
    (d) The cumulative total return in relation to the change in NAV 
from the last completed fiscal year to the last day of the month prior 
to the most recent distribution declaration date compared to the fiscal 
year-to-date cumulative distribution rate expressed as a percentage of 
NAV as of the last day of the month prior to the most recent 
distribution declaration date.

Such disclosure shall be made in a type size at least as large and as 
prominent as the estimate of the sources of the current distribution; 
and
    2. Will include the following disclosure:
    (a) ``You should not draw any conclusions about the fund's 
investment performance from the amount of this distribution or from the 
terms of the fund's Plan'';
    (b) ``The fund estimates that it has distributed more than its 
income and net realized capital gains; therefore, a portion of your 
distribution may be a return of capital. A return of capital may occur 
for example, when some or all of the money that you invested in the 
fund is paid back to you. A return of capital distribution does not 
necessarily reflect the fund's investment performance and should not be 
confused with `yield' or `income'''; and
    (c) ``The amounts and sources of distributions reported in this 
Notice are only estimates and are not being provided for tax reporting 
purposes. The actual amounts and sources of the amounts for [accounting 
and] tax reporting purposes will depend upon the fund's investment 
experience during the remainder of its fiscal year and may be subject 
to changes based on tax regulations. The fund will send you a Form 1099 
DIV for the calendar year that will tell you how to report these 
distributions for federal income tax purposes.''

Such disclosure shall be made in a type size at least as large as and 
as prominent as any other information in the Notice and placed on the 
same page in close proximity to the amount and the sources of the 
distribution.
    B. On the inside front cover of each report to shareholders under 
rule 30e-1 under the Act, the fund will:
    1. Describe the terms of the Plan (including the fixed amount or 
fixed percentage of the distributions and the frequency of the 
distributions);
    2. Include the disclosure required by condition II.A.2(a) above;
    3. State, if applicable, that the Plan provides that the Board may 
amend, suspend or terminate the Plan at any time without prior notice 
to fund shareholders; and
    4. Describe any reasonably foreseeable circumstances that might 
cause the fund to suspend or terminate the Plan and any reasonably 
foreseeable consequences of such suspension or termination.
    C. Each report provided to shareholders under rule 30e-1 and each 
prospectus filed with the Commission on Form N-2 under the Act, will 
provide the fund's total return in relation to changes in NAV in the 
financial highlights table and in any discussion about the fund's total 
return.

III. Disclosure to Shareholders, Prospective Shareholders and Third 
Parties

    A. The fund will include the information contained in the relevant 
Notice, including the disclosure required by condition II.A.2 above, in 
any written communication (other than a Form 1099) about the Plan or 
distributions under the Plan by the fund, or shareholder, prospective 
shareholder or third-party information provider;
    B. The fund will issue, contemporaneously with the issuance of any 
Notice, a press release containing the information in the Notice and 
will file with the Commission the information contained in such Notice, 
including the disclosure required by condition II.A.2 above, as an 
exhibit to its next filed Form N-CSR; and
    C. The fund will post prominently a statement on its (or its 
adviser's) Web site containing the information in each Notice, 
including the disclosure required by condition II.A.2 above, and will 
maintain such information on such Web site for at least 24 months.

IV. Delivery of 19(a) Notices to Beneficial Owners

    If a broker, dealer, bank or other person (``financial 
intermediary'') holds common stock issued by the fund in nominee name, 
or otherwise, on behalf of a beneficial owner, the fund: (a) Will 
request that the financial intermediary, or its agent, forward the 
Notice to all beneficial owners of the fund's shares held through such 
financial intermediary; (b) will provide, in a timely manner, to the 
financial intermediary, or its agent, enough copies of the Notice 
assembled in the form and at the place that the financial intermediary, 
or its agent, reasonably requests to facilitate the financial 
intermediary's sending of the Notice to each beneficial owner of the 
fund's shares; and (c) upon the request of any financial intermediary, 
or its agent, that receives copies of the Notice, will pay the 
financial intermediary, or its agent, the reasonable expenses of 
sending the Notice to such beneficial owners.

V. Additional Board Determinations for Funds Whose Shares Trade at a 
Premium

    If:
    A. The fund's common shares have traded on the exchange that they 
primarily trade on at the time in question at an average premium to NAV 
equal to or greater than 10%, as determined on the basis of the average 
of the discount or premium to NAV of the fund's common shares as of the 
close of each trading day over a 12-week rolling period (each such 12-
week rolling period ending on the last trading day of each week); and
    B. The fund's annualized distribution rate for such 12-week rolling 
period, expressed as a percentage of NAV as of

[[Page 63523]]

the ending date of such 12-week rolling period is greater than the 
fund's average annual total return in relation to the change in NAV 
over the 2-year period ending on the last day of such 12-week rolling 
period; then:
    1. At the earlier of the next regularly scheduled meeting or within 
four months of the last day of such 12-week rolling period, the Board 
including a majority of the Independent Directors:
    (a) Will request and evaluate, and the fund's adviser will furnish, 
such information as may be reasonably necessary to make an informed 
determination of whether the Plan should be continued or continued 
after amendment;
    (b) Will determine whether continuation, or continuation after 
amendment, of the Plan is consistent with the fund's investment 
objective(s) and policies and in the best interests of the fund and its 
shareholders, after considering the information in condition V.B.1.a 
above; including, without limitation:
    (1) Whether the Plan is accomplishing its purpose(s);
    (2) The reasonably foreseeable effects of the Plan on the fund's 
long-term total return in relation to the market price and NAV of the 
fund's common shares; and
    (3) The fund's current distribution rate, as described in condition 
V.B above, compared with the fund's average annual taxable income or 
total return over the 2-year period, as described in condition V.B, or 
such longer period as the Board deems appropriate; and
    (c) Based upon that determination, will approve or disapprove the 
continuation, or continuation after amendment, of the Plan; and
    2. The Board will record the information considered by it and the 
basis for its approval or disapproval of the continuation, or 
continuation after amendment, of the Plan in its meeting minutes, which 
must be made and preserved for a period of not less than six years from 
the date of such meeting, the first two years in an easily accessible 
place.

VI. Public Offerings

    The fund will not make a public offering of the fund's common 
shares other than:
    A. A rights offering below NAV to holders of the fund's common 
stock;
    B. An offering in connection with a dividend reinvestment plan, 
merger, consolidation, acquisition, spin off or reorganization of the 
fund; or
    C. An offering other than an offering described in conditions VI.A 
and VI.B above, unless, with respect to such other offering:
    1. The fund's average annual distribution rate for the six months 
ending on the last day of the month ended immediately prior to the most 
recent distribution declaration date,\4\ expressed as a percentage of 
NAV per share as of such date, is no more than 1 percentage point 
greater than the fund's average annual total return for the five-year 
period ending on such date; \5\ and
---------------------------------------------------------------------------

    \4\ If the fund has been in operation fewer than two years, the 
measured period will begin immediately following the fund's first 
public offering.
    \5\ If the fund has been in operation fewer than five years, the 
measured period will begin immediately following the fund's first 
public offering.
---------------------------------------------------------------------------

    2. The transmittal letter accompanying any registration statement 
filed with the Commission in connection with such offering discloses 
that the fund has received an order under section 19(b) to permit it to 
make periodic distributions of long-term capital gains with respect to 
its common stock as frequently as twelve times each year, and as 
frequently as distributions are specified by or determined in 
accordance with the terms of any outstanding preferred stock that such 
fund may issue.

VII. Amendments to Rule 19b-1

    The requested order will expire on the effective date of any 
amendments to rule 19b-1 that provide relief permitting certain closed-
end investment companies to make periodic distributions of long-term 
capital gains with respect to their outstanding common stock as 
frequently as twelve times each year.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Florence E. Harmon,
Acting Secretary.
 [FR Doc. E8-25402 Filed 10-23-08; 8:45 am]
BILLING CODE 8011-01-P