Eaton Vance Enhanced Equity Income Fund, et al.; Notice of Application, 7500-7504 [E9-3232]

Agencies

• SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 74, Number 30 (Tuesday, February 17, 2009)]
[Notices]
[Pages 7500-7504]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-3232]


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

SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 28616; 812-13586]


Eaton Vance Enhanced Equity Income Fund, et al.; Notice of 
Application

February 10, 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 registered closed-end investment companies to make periodic 
distributions of long-term capital gains with respect to their 
outstanding common shares 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 shares that such investment 
companies may issue.
    Applicants: Eaton Vance Enhanced Equity Income Fund, Eaton Vance 
Enhanced Equity Income Fund II, Eaton Vance Risk-Managed Diversified 
Equity Income Fund, Eaton Vance Tax-Managed Buy-Write Income Fund, 
Eaton Vance Tax-Managed Buy-Write Opportunities Fund, Eaton Vance Tax-
Managed Diversified Equity Income Fund, Eaton Vance Tax-Managed Global 
Buy-Write Opportunities Fund, Eaton Vance Tax-Managed Global 
Diversified Equity Income Fund (the ``Current Funds'') and Eaton Vance 
Management (``Eaton Vance'').
    Filing Dates: The application was filed on October 10, 2008 and 
amended on January 9, 2009 and February 9, 2009.
    Hearing or Notification of Hearing: An order granting the 
application will be issued unless the Commission orders a hearing. 
Interested persons may request a hearing by writing to the Commission's 
Secretary and serving applicants with a copy of the request, personally 
or by mail. Hearing requests should be received by the Commission by 
5:30 p.m. on March 9, 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, U.S. Securities and Exchange Commission, 100 F 
Street, NE., Washington, DC 20549-1090; Applicants, Eaton Vance 
Building, 255 State Street, Boston, MA 02109.

FOR FURTHER INFORMATION CONTACT: Jean Minarick, Senior Counsel, at 
(202) 551-6811, or Julia Kim Gilmer, Branch Chief, at (202) 551-6821 
(Office of Investment Company Regulation, Division of Investment 
Management).

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 Current Fund is a registered closed-end management 
investment company organized as a Massachusetts business trust.\1\ The 
common shares of the Current Funds are listed on the New York Stock 
Exchange. Applicants believe that the investors in the common shares of 
the Current Funds may prefer an investment vehicle that provides 
monthly distributions and a steady cash flow. Although the Current 
Funds have no current intention to do so, each Current Fund is 
authorized to issue preferred shares.
---------------------------------------------------------------------------

    \1\ Applicants request that any order issued granting the relief 
requested in the application also apply to any closed-end investment 
company currently advised or to be advised in the future by Eaton 
Vance (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 Eaton Vance 
(collectively, with Eaton Vance, the ``Investment Advisers'') that 
decides in the future to rely on the requested relief. Any Fund that 
relies on the requested order will comply with the terms and 
conditions of the application (such investment companies together 
with the Current Funds, the ``Funds''). A successor in interest is 
limited to an entity that results from a reorganization into another 
jurisdiction or a change in the type of business organization. All 
registered closed-end investment companies that currently intend to 
rely on the order are named as applicants.
---------------------------------------------------------------------------

    2. Eaton Vance is registered under the Investment Advisers Act of 
1940 and acts as the Current Funds' investment adviser and 
administrator and is responsible for the overall management of the 
Current Funds. Each Fund will be advised by an Investment Adviser that 
is registered under the Advisers Act.
    3. Applicants state that the Board of Trustees (the ``Board'') of 
each Current Fund, including a majority of the members of each of the 
Boards who are not ``interested persons'' of each Current Fund as 
defined in section 2(a)(19) of the Act (the ``Independent Trustees''), 
has requested and considered, and Eaton Vance provided, information 
regarding the purpose and terms of a proposed distribution policy, the 
likely effects of such policy on the Current Fund's long-term total 
return (in relation to market price and net asset value per common 
share (``NAV'')) and the relationship between the Current Funds' 
distribution rate on their common shares under the policy and the 
Current Funds' total return (in relation to NAV). Applicants state that 
the Independent Trustees of each Current Fund also considered what 
conflicts of interest Eaton Vance and its affiliated persons and the 
Current Funds might have with respect to the adoption or implementation 
of such policy. Applicants further state that after considering such 
information the Boards, including the Independent Trustees, of the 
Current Funds approved a distribution policy and related plan with 
respect to the Current Funds' common shares (the ``Plan'') and 
determined that such Plan is consistent with the Current Funds' 
investment objectives and in the best interests of the Current Funds' 
common shareholders.
    4. Applicants state that the purpose of the Plan of each Current 
Fund is to permit the Current 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 Current 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 Current Fund 
during such year. Applicants represent that each Current Fund would 
distribute to its common shareholders a fixed monthly percentage of the 
market price of the Current Fund's common shares at a particular point 
in time or a fixed monthly percentage of NAV at a particular time or a 
fixed monthly amount under the Plan, any of which may be adjusted from 
time to time. Applicants state that the minimum annual distribution 
rate

[[Page 7501]]

with respect to a Current Fund's common shares under the Plan would be 
independent of the Current Fund's performance during any particular 
period but would be expected to correlate with the Current Fund's 
performance over time. Applicants explain that except for extraordinary 
distributions and potential increases or decreases in the final 
distribution periods in light of the Current Funds' performance for the 
entire calendar year and to enable the Current Funds 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 the Board of each Current Fund adopted 
policies and procedures under rule 38a-1 under the Act that are 
reasonably designed to ensure that all notices required to be sent to 
the Current Fund's shareholders pursuant to section 19(a) of the Act, 
rule 19a-1 under the Act and condition IV (``19(a) Notices'') comply 
with condition II below, and that all other written communications by a 
Current Fund or its agents regarding distributions under the Plan 
include the disclosure required by condition III below. Applicants 
state that the Board of each Current Fund also adopted policies and 
procedures that require the Current Fund to keep records that 
demonstrate the Current Fund's compliance with all of the conditions of 
the requested order and that are necessary for each Current Fund to 
form the basis for, or demonstrate the calculation of, the amounts 
disclosed in its 19(a) Notices.

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 aggregate 
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 
distinguish between frequent distributions of capital gains and 
dividends from 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 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 is 
included in the Current Funds' annual reports to shareholders and IRS 
Form 1099-DIV, which is sent to each common and preferred shareholder 
who received distributions during a particular year.
    4. Applicants further state that each Fund will make the additional 
disclosures required by the conditions set forth below, and the Current 
Funds have adopted compliance policies and procedures in accordance 
with rule 38a-1 to ensure that all required 19(a) 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 the Plans or the distribution policy and related plan 
adopted by a Fund, the conditions in Section V. below and the 
compliance policy and procedures, each Fund's shareholders would be 
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 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 a closed-end fund that is subject to a 
large upcoming capital gains distribution, adoption of a periodic 
distribution 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 the funds' NAV. Applicants believe that this discount may 
be reduced for the Funds if they are permitted to 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 
or a distribution policy and related plan adopted by a Fund 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 periodic distribution 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 gains distributions that a fund may make with respect to any 
one year imposed by rule 19b-1, may prevent the efficient operation of 
a periodic distribution plan whenever that fund's realized net long-
term capital gains in any year exceed the total of the periodic

[[Page 7502]]

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 periodic distribution 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 periodic distribution 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 shares and preferred shares 
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 share 
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 shares 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 
shares 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 shares, which entitles a holder 
to no more than a periodic dividend at a fixed rate or the rate 
determined by the market, and, like debt securities, are priced based 
upon their 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 pursuant to section 6(c) granting 
an exemption from section 19(b) and rule 19b-1 to permit each Fund to 
make periodic long-term capital gains distributions (as described 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 the 
Fund's 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 trustees of such future Fund and will be 
made at a future time.
---------------------------------------------------------------------------

Applicants' Conditions

    Applicants agree that any order of the Commission granting the 
requested relief will be subject to the following conditions:
    I. Compliance Review and Reporting: Each Fund's chief compliance 
officer will: (a) report to the Fund's Board, no less frequently than 
once every three months or at the next regularly scheduled quarterly 
Board meeting, whether (i) the Fund and its Investment Adviser have 
complied with the conditions of the order, and (ii) a material 
compliance matter (as defined in rule 38a-1(e)(2) under the Act) has 
occurred with respect to compliance with such conditions; and (b) 
review the adequacy of the policies and procedures adopted by the Board 
no less frequently than annually.

II. Disclosures to Fund Shareholders

    A. Each 19(a) Notice disseminated 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 
ended immediately prior to the most recent distribution record 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 record 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 record 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 record 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
---------------------------------------------------------------------------

    \4\ The disclosure in this condition II.A.2.(b) will be included 
only if the current distribution or the fiscal year-to-date 
cumulative distributions are estimated to include a return of 
capital.
---------------------------------------------------------------------------

    (c) ``The amounts and sources of distributions reported in this 
19(a) Notice are only estimates and are not being provided for tax 
reporting

[[Page 7503]]

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 19(a) 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 under the 
Act 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. Each Fund will include the information contained in the relevant 
19(a) Notice, including the disclosure required by condition II.A.2 
above, in any written communication (other than a communication on 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. Each Fund will issue, contemporaneously with the issuance of any 
19(a) Notice, a press release containing the information in the 19(a) 
Notice and file with the Commission the information contained in such 
19(a) Notice, including the disclosure required by condition II.A.2 
above, as an exhibit to its next filed Form N-CSR; and
    C. Each Fund will post prominently a statement on its (or the 
Investment Adviser's) web site containing the information in each 19(a) 
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 
shares issued by a 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 19(a) 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 19(a) 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 
19(a) 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 19(a) Notice, will pay the financial 
intermediary, or its agent, the reasonable expenses of sending the 
19(a) Notice to such beneficial owners.
    V. Special Board Review for Funds Whose Common Shares Trade at a 
Premium: If:
    A. a Fund's common shares have traded on the stock 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 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 Trustees:
    (a) Will request and evaluate, and the Fund's Investment 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 is 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 material 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 to 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, 
including its consideration of the factors listed in condition V.B.1.b 
above, 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: A 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 
shares;
    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, provided that, 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 record date,\5\ expressed as a percentage of NAV as 
of such date, is no more than 1 percentage point greater than the 
Fund's average

[[Page 7504]]

annual total return for the 5-year period ending on such date;\6\ and
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 shares as frequently as twelve times each year, and as 
frequently as distributions are specified in accordance with the terms 
of any outstanding preferred shares as such Fund may issue.
    VIII. 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 shares 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. E9-3232 Filed 2-13-09; 8:45 am]
BILLING CODE 8011-01-P