Macquarie Global Infrastructure Total Return Fund Inc., et al.; Notice of Application, 1726-1730 [E9-440]

Download as PDF 1726 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices and Exchange Commission (the ‘‘Commission’’) has submitted to the Office of Management and Budget a request for extension of the previously approved collection of information discussed below. Rule 17f–1 (17 CFR 270.17f–1) under the Investment Company Act of 1940 (the ‘‘Act’’) (15 U.S.C. 80a) is entitled: ‘‘Custody of Securities with Members of National Securities Exchanges.’’ Rule 17f–1 provides that any registered management investment company (‘‘fund’’) that wishes to place its assets in the custody of a national securities exchange member may do so only under a written contract that must be ratified initially and approved annually by a majority of the fund’s board of directors. The written contract also must contain certain specified provisions. In addition, the rule requires an independent public accountant to examine the fund’s assets in the custody of the exchange member at least three times during the fund’s fiscal year. The rule requires the written contract and the certificate of each examination to be transmitted to the Commission. The purpose of the rule is to ensure the safekeeping of fund assets. Commission staff estimates that each fund makes 1 response and spends an average of 3.5 hours annually in complying with the rule’s requirements. Commission staff estimates that on an annual basis it takes: (i) 0.5 hours for the board of directors 1 to review and ratify the custodial contracts; and (ii) 3 hours for the fund’s controller to assist the fund’s independent public auditors in verifying the fund’s assets. Approximately 5 funds rely on the rule annually, with a total of 5 responses.2 Thus, the total annual hour burden for rule 17f–1 is approximately 17.5 hours.3 Funds that rely on rule 17f–1 generally use outside counsel to prepare the custodial contract for the board’s review and to transmit the contract to the Commission. Commission staff estimates the cost of outside counsel to perform these tasks for a fund each year 1 Estimates of the number of hours are based on conversations withrepresentatives of mutual funds that comply with the rule. The actual number of hours may vary significantly depending on individual fund assets. The hour burden for rule 17f–1 does not include preparing the custody contract because that would be part of customary and usual business practice. 2 Based on a review of Form N–17f–1 filings in 2006 and2007, the Commission staff estimates that an average of 5 funds rely on rule 17f–1 each year. 3 This estimate is based on the following calculation: (5 respondents × 3.5 hours = 17.5 hours). The annual burden for rule 17f–1 does not include time spent preparing Form N–17f–1. The burden for Form N–17f–1 is included in a separate collection of information. VerDate Nov<24>2008 19:10 Jan 12, 2009 Jkt 217001 is $800.4 Funds also must have an independent public accountant verify the fund’s assets three times each year and prepare the certificate of examination. Commission staff estimates the annual cost for an independent public accountant to perform this service is $4000.5 Therefore, the total annual cost burden for a fund that relies on rule 17f–1 would be approximately $4800.6 As noted above, the staff estimates that 5 funds rely on rule 17f–1 each year, for an estimated total annualized cost burden of $24,000.7 The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. Compliance with the collections of information required by rule 17f–1 is mandatory for funds that place their assets in the custody of a national securities exchange member. Responses will not be 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 control number. 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 send an e-mail to: Shagufta_Ahmed@omb.eop.gov; and (ii) Charles Boucher, 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: January 7, 2009. Florence E. Harmon, Deputy Secretary. [FR Doc. E9–444 Filed 1–12–09; 8:45 am] BILLING CODE 8011–01–P 4 This estimate is based on the following calculation: (2 hours of outside counsel time × $400 = $800). The staff has estimated the average cost of outside counsel at $400 per hour, based on information received from funds, fund intermediaries, and their counsel. 5 This estimate is based on information received from fundrepresentatives estimating the aggregate annual cost of an independent public accountant’s periodic verification of assets and preparation of the certificate of examination. 6 This estimate is based on the following calculation: ($800 + $4000 =$4800). 7 This estimate is based on the following calculation: (5 funds × $4800 =$24,000). PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 28579; 812–13397] Macquarie Global Infrastructure Total Return Fund Inc., et al.; Notice of Application January 6, 2009. 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: Macquarie Global Infrastructure Total Return Fund Inc. (the ‘‘Fund’’) and Macquarie Capital Investment Management LLC (the ‘‘Adviser’’). FILING DATES: June 15, 2007 and September 10, 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 February 2, 2009, 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, 125 West 55th Street, New York, NY 10019, attention Richard C. Butt. 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). E:\FR\FM\13JAN1.SGM 13JAN1 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices 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). SUPPLEMENTARY INFORMATION: Applicants’ Representations 1. The Fund is a registered closed-end management investment company organized as a Maryland corporation that has total return and capital appreciation as its investment objectives.1 The common shares issued by the Fund are listed on the New York Stock Exchange. The Fund has not issued preferred stock but may do so in the future. Applicants believe that the Fund’s stockholders are generally conservative, dividend-sensitive investors who desire current income periodically and may favor a fixed distribution policy. 2. The Adviser is registered under the Investment Advisers Act of 1940 and is responsible for the overall management of the Fund. The Adviser is a subsidiary of MIHI LLC, which is an indirect subsidiary of Macquarie Group Limited, which provides, with its affiliated entities, international financial and investment banking services. 3. Applicants represent that prior to adopting any distribution policy in reliance on the requested order, the Fund’s Board of Directors (the ‘‘Board’’), including a majority of the members of the Board who are not ‘‘interested persons’’ of the Fund (the ‘‘Independent Directors’’) as defined in section 2(a)(19) of the Act, will request, and the Adviser will provide, such information as is reasonably necessary for the Board to make an informed decision of whether the Fund should adopt a distribution policy. Applicants represent that, in particular, the Board and the Independent Directors will review information regarding the purpose and terms of a proposed distribution policy, the likely effects of such policy on the Fund’s long-term total return (in relation to market price and net asset value (‘‘NAV’’) per common share) and the relationship between the Fund’s distribution rate on its common shares 1 Applicants request that any order issued granting the relief requested in the application also apply to any closed-end investment company (‘‘fund’’) that in the future: (a) Is advised by the Adviser (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 Adviser; 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. VerDate Nov<24>2008 19:10 Jan 12, 2009 Jkt 217001 under the policy and the Fund’s total return on NAV per share. Applicants state that the Independent Directors also will consider what conflicts of interest the Adviser and the affiliated persons of the Adviser and the Fund might have with respect to the adoption or implementation of such policy. Applicants further state that after considering such information the Board, including the Independent Directors may approve a distribution policy and related plan (a ‘‘Plan’’) with respect to the Fund’s common shares if they determine that such policy and Plan would be consistent with the Fund’s investment objectives and in the best interests of the Fund’s common shareholders. 4. Applicants state that the purpose of the Plan would be to permit the Fund to distribute to its stockholders as frequently as monthly a fixed percentage of the Fund’s market price or a fixed percentage of the Fund’s NAV per share, any of which may be adjusted from time to time. Applicants state that, under the Plan, the minimum annual distribution rate with respect to the Fund’s common stock 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. Applicants further state that, 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, as amended (the ‘‘Code’’), each distribution on the common stock would be at the stated rate then in effect. 5. Applicants state that the Board also will adopt policies and procedures under rule 38a–1 under the Act that will be reasonably designed to ensure that all notices sent to stockholders with distributions under the Plan (‘‘Notices’’) comply with condition II below, and that all other written communications by the Fund or its agents regarding distributions under the Plan include the disclosure required by condition III below. Applicants state that the Board also will adopt policies and procedures that will require the Fund to keep records that demonstrate the Fund’s compliance with all of the conditions of the requested 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 state that such records will be maintained for a period of at least six PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 1727 years from the date of the Board meeting at which the Plan is adopted, the first two years in an easily accessible place, or 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 the 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 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 the Fund will make the additional disclosures required by the conditions set forth below, and will adopt 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 E:\FR\FM\13JAN1.SGM 13JAN1 1728 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices required by section 19(a) and rule 19a– 1, and by complying with the procedures adopted under the Plan and the conditions listed below, the Fund will ensure that its 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 the 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 Fund 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, 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 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 VerDate Nov<24>2008 19:10 Jan 12, 2009 Jkt 217001 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. 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 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 00067 Fmt 4703 Sfmt 4703 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 fixed or 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, 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, 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 the Fund’s common stock 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 Adviser have complied with the conditions to the requested order, and (ii) a Material Compliance Matter, as defined in rule 38a–1(e)(2), has occurred with respect to 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\13JAN1.SGM 13JAN1 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices 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 common share basis, together with the amounts of such distribution amount, on a per common 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 common share basis, together with the amounts of such cumulative amount, on a per common 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 Nov<24>2008 19:10 Jan 12, 2009 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’ ’’; 4 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 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 terminate the Plan and any reasonably foreseeable consequences of such termination. C. Each report provided to shareholders under rule 30e–1 and in 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 4 This disclosure will be included only if the current distribution or the fiscal year-to-date cumulative distributions are estimated to include a return of capital. PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 1729 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 agents that the fund has authorized to make such communication on the fund’s behalf, to any fund common shareholder, prospective common 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 the 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 E:\FR\FM\13JAN1.SGM 13JAN1 1730 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices 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 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 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 total return over the 2year 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. 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,5 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 5-year period ending on such date;6 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 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 net asset value to holders of the fund’s common stock; B. An offering in connection with a dividend reinvestment plan, merger, AGENCY: Securities and Exchange Commission (‘‘Commission’’). VerDate Nov<24>2008 19:10 Jan 12, 2009 Jkt 217001 VII. Amendments to Rule 19b–1 The requested relief will expire on the effective date of any amendment to rule 19b–1 that provides 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, Deputy Secretary. [FR Doc. E9–440 Filed 1–12–09; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 28578; 812–13239] SunAmerica Focused Alpha Growth Fund, Inc., et al.; Notice of Application January 6, 2009. 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. SunAmerica Focused Alpha Growth Fund, Inc. (‘‘FGF’’), SunAmerica Focused Alpha Large-Cap Fund, Inc. (‘‘FGI’’) and AIG SunAmerica Asset Management Corp. (the ‘‘Adviser’’). APPLICANTS: October 17, 2005 and September 2, 2008. FILING DATES: 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 February 2, 2009, 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 AIG SunAmerica Asset Management Corp., Harborside Financial Center, 3200 Plaza 5, Jersey City, NJ 07311–4992, Attention: Gregory N. Bressler. 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). 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). SUPPLEMENTARY INFORMATION: 5 If the fund has been in operation fewer than six months, the measured period will begin immediately following the fund’s first public offering. 6 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 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\13JAN1.SGM 13JAN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 74, Number 8 (Tuesday, January 13, 2009)]
[Notices]
[Pages 1726-1730]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-440]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 28579; 812-13397]


Macquarie Global Infrastructure Total Return Fund Inc., et al.; 
Notice of Application

January 6, 2009.
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.

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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: Macquarie Global Infrastructure Total Return Fund Inc. (the 
``Fund'') and Macquarie Capital Investment Management LLC (the 
``Adviser'').

Filing Dates: June 15, 2007 and September 10, 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 February 2, 2009, 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, 125 West 55th Street, New 
York, NY 10019, attention Richard C. Butt.

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).

[[Page 1727]]


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. The Fund is a registered closed-end management investment 
company organized as a Maryland corporation that has total return and 
capital appreciation as its investment objectives.\1\ The common shares 
issued by the Fund are listed on the New York Stock Exchange. The Fund 
has not issued preferred stock but may do so in the future. Applicants 
believe that the Fund's stockholders are generally conservative, 
dividend-sensitive investors who desire current income periodically and 
may favor a fixed distribution policy.
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    \1\ Applicants request that any order issued granting the relief 
requested in the application also apply to any closed-end investment 
company (``fund'') that in the future: (a) Is advised by the Adviser 
(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 Adviser; 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.
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    2. The Adviser is registered under the Investment Advisers Act of 
1940 and is responsible for the overall management of the Fund. The 
Adviser is a subsidiary of MIHI LLC, which is an indirect subsidiary of 
Macquarie Group Limited, which provides, with its affiliated entities, 
international financial and investment banking services.
    3. Applicants represent that prior to adopting any distribution 
policy in reliance on the requested order, the Fund's Board of 
Directors (the ``Board''), including a majority of the members of the 
Board who are not ``interested persons'' of the Fund (the ``Independent 
Directors'') as defined in section 2(a)(19) of the Act, will request, 
and the Adviser will provide, such information as is reasonably 
necessary for the Board to make an informed decision of whether the 
Fund should adopt a distribution policy. Applicants represent that, in 
particular, the Board and the Independent Directors will review 
information regarding the purpose and terms of a proposed distribution 
policy, the likely effects of such policy on the Fund's long-term total 
return (in relation to market price and net asset value (``NAV'') per 
common share) and the relationship between the Fund's distribution rate 
on its common shares under the policy and the Fund's total return on 
NAV per share. Applicants state that the Independent Directors also 
will consider what conflicts of interest the Adviser and the affiliated 
persons of the Adviser and the Fund might have with respect to the 
adoption or implementation of such policy. Applicants further state 
that after considering such information the Board, including the 
Independent Directors may approve a distribution policy and related 
plan (a ``Plan'') with respect to the Fund's common shares if they 
determine that such policy and Plan would be consistent with the Fund's 
investment objectives and in the best interests of the Fund's common 
shareholders.
    4. Applicants state that the purpose of the Plan would be to permit 
the Fund to distribute to its stockholders as frequently as monthly a 
fixed percentage of the Fund's market price or a fixed percentage of 
the Fund's NAV per share, any of which may be adjusted from time to 
time. Applicants state that, under the Plan, the minimum annual 
distribution rate with respect to the Fund's common stock 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. 
Applicants further state that, 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, as amended (the 
``Code''), each distribution on the common stock would be at the stated 
rate then in effect.
    5. Applicants state that the Board also will adopt policies and 
procedures under rule 38a-1 under the Act that will be reasonably 
designed to ensure that all notices sent to stockholders with 
distributions under the Plan (``Notices'') comply with condition II 
below, and that all other written communications by the Fund or its 
agents regarding distributions under the Plan include the disclosure 
required by condition III below. Applicants state that the Board also 
will adopt policies and procedures that will require the Fund to keep 
records that demonstrate the Fund's compliance with all of the 
conditions of the requested 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 state that such records will be 
maintained for a period of at least six years from the date of the 
Board meeting at which the Plan is adopted, the first two years in an 
easily accessible place, or 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 the 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 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 the Fund will make the additional 
disclosures required by the conditions set forth below, and will adopt 
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

[[Page 1728]]

required by section 19(a) and rule 19a-1, and by complying with the 
procedures adopted under the Plan and the conditions listed below, the 
Fund will ensure that its 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 the 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 Fund 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, 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 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.
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    \2\ Returns of capital as used in the application means return 
of capital for financial accounting purposes and not for tax 
accounting purposes.
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    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 fixed or 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, 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, 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 
the Fund's common stock 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\
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    \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.
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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 Adviser have complied with the conditions to the requested order, 
and (ii) a Material Compliance Matter, as defined in rule 38a-1(e)(2), 
has occurred with respect to

[[Page 1729]]

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 common share basis, 
together with the amounts of such distribution amount, on a per common 
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 common share basis, together with the amounts of such cumulative 
amount, on a per common 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' ''; \4\ and
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    \4\ This disclosure will be included only if the current 
distribution or the fiscal year-to-date cumulative distributions are 
estimated to include a return of capital.
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    (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 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 terminate the Plan and any reasonably foreseeable 
consequences of such termination.
    C. Each report provided to shareholders under rule 30e-1 and in 
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 agents that the fund has 
authorized to make such communication on the fund's behalf, to any fund 
common shareholder, prospective common 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 the 
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

[[Page 1730]]

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 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 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 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 net asset value 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,\5\ 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 5-year 
period ending on such date;\6\ and
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    \5\ If the fund has been in operation fewer than six months, the 
measured period will begin immediately following the fund's first 
public offering.
    \6\ If the fund has been in operation fewer than five years, the 
measured period will begin immediately following the fund's first 
public offering.
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    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 in accordance with the terms 
of any outstanding preferred stock that such fund may issue.

VII. Amendments to Rule 19b-1

    The requested relief will expire on the effective date of any 
amendment to rule 19b-1 that provides 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,
Deputy Secretary.
 [FR Doc. E9-440 Filed 1-12-09; 8:45 am]
BILLING CODE 8011-01-P

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