Stone Harbor Emerging Markets Income Fund, et al.; Notice of Application, 59458-59462 [2011-24587]

Download as PDF 59458 Federal Register / Vol. 76, No. 186 / Monday, September 26, 2011 / Notices jlentini on DSK4TPTVN1PROD with NOTICES the CDSC, each Fund will comply with rule 22d–1 under the Act as if the Fund were an open-end investment company. Applicants’ Legal Analysis: Multiple Classes of Shares 1. Section 18(c) of the Act provides, in relevant part, that a closed-end investment company may not issue or sell any senior security if, immediately thereafter, the company has outstanding more than one class of senior security. Applicants state that the creation of multiple classes of Shares of the Funds may be prohibited by section 18(c). 2. Section 18(i) of the Act provides that each share of stock issued by a registered management investment company will be a voting stock and have equal voting rights with every other outstanding voting stock. Applicants state that permitting multiple classes of Shares of the Funds may violate section 18(i) of the Act because each class would be entitled to exclusive voting rights with respect to matters solely related to that class. 3. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction or any class or classes of persons, securities or transactions from any provision of the Act, or from any rule under the Act, if and to the extent such 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. Applicants request an exemption under section 6(c) from sections 18(c) and 18(i) to permit the Funds to issue multiple classes of shares. 4. Applicants submit that the proposed allocation of expenses and voting rights among multiple classes is equitable and will not discriminate against any group or class of shareholders. Applicants submit that the proposed arrangements would permit a Fund to facilitate the distribution of its Shares and provide investors with a broader choice of shareholder services. Applicants assert that the proposed closed-end investment company multiple class structure does not raise the concerns underlying section 18 of the Act to any greater degree than open-end investment companies’ multiple class structures that are permitted by rule 18f–3 under the Act. CDSCs 1. Applicants believe that the requested relief meets the standards of section 6(c) of the Act. Rule 6c–10 under the Act permits open-end investment companies to impose VerDate Mar<15>2010 17:37 Sep 23, 2011 Jkt 223001 CDSCs, subject to certain conditions. Applicants state that the CDSCs may be necessary for the Placement Agent to recover distribution costs. Applicants state that any CDSC imposed by the Funds will comply with rule 6c–10 under the Act as if the rule were applicable to closed-end investment companies. The Funds also will disclose CDSCs in accordance with the requirements of Form N–1A concerning CDSCs as if the Funds were open-end investment companies. Applicants further state that the Funds will apply the CDSC (and any waivers or scheduled variations of the CDSC) uniformly to all shareholders in a given class and consistently with the requirements of rule 22d–1 under the Act. Asset-Based Service and/or Distribution Fees 1. Section 17(d) of the Act and rule 17d–1 under the Act prohibit an affiliated person of a registered investment company or an affiliated person of such person, acting as principal, from participating in or effecting any transaction in connection with any joint enterprise or joint arrangement in which the investment company participates unless the Commission issues an order permitting the transaction. In reviewing applications submitted under section 17(d) and rule 17d–1, the Commission considers whether the participation of the investment company in a joint enterprise or joint arrangement is consistent with the provisions, policies and purposes of the Act, and the extent to which the participation is on a basis different from or less advantageous than that of other participants. 2. Rule 17d–3 under the Act provides an exemption from section 17(d) and rule 17d–1 to permit open-end investment companies to enter into distribution arrangements pursuant to rule 12b–1 under the Act. Applicants request an order under section 17(d) and rule 17d–1 under the Act to permit the Funds to impose asset-based service and/or distribution fees. Applicants have agreed to comply with rules 12b– 1 and 17d–3 as if those rules applied to closed-end investment companies. Applicants’ Condition: Applicants agree that any order granting the requested relief will be subject to the following condition: Each Fund will comply with the provisions of rules 6c–10, 12b–1, 17d– 3, 18f–3 and 22d–1 under the Act, as amended from time to time or replaced, as if those rules applied to closed-end management investment companies, and will comply with the NASD PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 Conduct Rule 2830, as amended from time to time, as if that rule applied to all closed-end management investment companies. For the Commission, by the Division of Investment Management, under delegated authority. Elizabeth M. Murphy, Secretary. [FR Doc. 2011–24589 Filed 9–23–11; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Investment Company Act Release No. 29791; File No. 812–13867] Stone Harbor Emerging Markets Income Fund, et al.; Notice of Application September 16, 2011. Securities and Exchange Commission (‘‘Commission’’). ACTION: Notice of application under section 6(c) of the Investment Company Act of 1940 (‘‘Act’’) for an exemption from section 19(b) of the Act and rule 19b–1 under the Act. AGENCY: 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 stock as frequently as monthly in any one taxable 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: Stone Harbor Emerging Markets Income Fund (the ‘‘Current Fund’’) and Stone Harbor Investment Partners LP (‘‘Stone Harbor’’ or the ‘‘Adviser’’). Filing Dates: The application was filed on February 9, 2011 and amended on May 27, 2011 and September 13, 2011. 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 October 11, 2011, 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 E:\FR\FM\26SEN1.SGM 26SEN1 Federal Register / Vol. 76, No. 186 / Monday, September 26, 2011 / Notices 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, 31 West 52nd Street, 16th Floor, New York, New York 10019, Contact: Adam J. Shapiro, Esq. FOR FURTHER INFORMATION CONTACT: Keith A. Gregory, Senior Counsel, at (202) 551–6815, or Mary Kay Frech, Branch Chief, at (202) 551–6821 (Division of Investment Management, Office of Investment Company Regulation). The following is a summary of the application. The complete application may be obtained via the Commission’s Web site by searching for the file number, or for an applicant using the Company name box, at http:// www.sec.gov/search/search.htm, or by calling (202) 551–8090. Applicants’ Representations: 1. The Current Fund is a closed-end management investment company registered under the Act and is organized as a Massachusetts business trust.1 The Current Fund’s investment objective is total return, consisting of income and capital appreciation. The common shares of the Current Fund are listed on the New York Stock Exchange. The Current Fund currently does not intend to issue any shares of preferred stock, but may do so in the future. Applicants believe that investors in the common shares of the Current Fund may prefer an investment vehicle that provides regular/monthly distributions and a steady cash flow. 2. Stone Harbor, a registered investment adviser under the Investment Advisers Act of 1940, as amended (‘‘Advisers Act’’), acts as the Current Fund’s investment adviser. Each future Investment Adviser to a jlentini on DSK4TPTVN1PROD with NOTICES SUPPLEMENTARY INFORMATION: 1 Applicants request that any order issued granting the relief requested in the application also apply to any registered closed-end investment company currently advised or to be advised in the future by Stone Harbor (including any successor in interest) or by an entity controlling, controlled by or under common control (within the meaning of section 2(a)(9) of the Act) with Stone Harbor (such entities, together with Stone Harbor, the ‘‘Investment Advisers’’) that decides in the future to rely on the requested relief. Any closed-end investment company that relies on the order in the future will comply with the terms and conditions of the application (such investment companies together with the Current Fund, the ‘‘Funds,’’ and with the Investment Advisers, the ‘‘Applicants’’). All existing Funds currently intending to rely on the order have been named as Applicants. 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 Mar<15>2010 17:37 Sep 23, 2011 Jkt 223001 Fund will be registered under the Advisers Act. 3. Applicants state that, prior to a Fund’s implementing a distribution plan in reliance on the order, the board of trustees (the ‘‘Board’’) of the Fund, including a majority of the trustees who are not ‘‘interested persons,’’ of such Fund as defined in section 2(a)(19) of the Act (the ‘‘Independent Trustees’’), shall have requested, and the Adviser shall have provided, such information as is reasonably necessary to make an informed determination of whether the Board should adopt a proposed distribution policy. In particular, the Board and the Independent Trustees shall have reviewed information regarding the purpose and terms of a proposed distribution policy, the likely effects of such policy on such Fund’s long-term total return (in relation to market price and its net asset value per common share (‘‘NAV’’)) and the relationship between such Fund’s distribution rate on its common shares under the policy and such Fund’s total return (in relation to NAV); whether the rate of distribution would exceed such Fund’s expected total return in relation to its NAV; and any foreseeable material effects of such policy on such Fund’s long-term total return (in relation to market price and NAV). The Independent Trustees shall also have considered what conflicts of interest the Adviser and the affiliated persons of the Adviser and each such Fund might have with respect to the adoption or implementation of such policy. Applicants state that, only after considering such information shall the Board, including the Independent Trustees, of a Fund approve a distribution policy with respect to such Fund’s common shares (the ‘‘Plan’’) and in connection with such approval shall have determined that such Plan is consistent with a Fund’s investment objectives and in the best interests of a Fund’s common shareholders. 4. Applicants state that the purpose of a Plan would be to permit a 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 such Fund during such year and, if so determined by its Board, all or a portion of the return of capital paid by portfolio companies to such Fund during such year. It is anticipated that under the Plan of a Fund, such Fund would distribute to its respective common shareholders a fixed monthly percentage of the market price of such Fund’s common shares at a particular point in time or a fixed monthly PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 59459 percentage of NAV at a particular time or a fixed monthly amount, any of which may be adjusted from time to time. It is anticipated that under a Plan, the minimum annual distribution rate with respect to such Fund’s common shares would be independent of a Fund’s performance during any particular period but would be expected to correlate with a Fund’s performance over time. Except for extraordinary distributions and potential increases or decreases in the final dividend periods in light of a Fund’s performance for an entire calendar year and to enable a Fund to comply with the distribution requirements of Subchapter M of the Internal Revenue Code (‘‘Code’’) for the fiscal year, it is anticipated that each distribution on the common shares would be at the stated rate then in effect. 5. Applicants state that prior to the implementation of a Plan for a Fund, the Board shall have adopted policies and procedures under rule 38a–1 under the Act that: (i) Are reasonably designed to ensure that all notices required to be sent to the Fund’s shareholders pursuant to section 19(a) of the Act, rule 19a–1 thereunder and condition 4 below (each a ‘‘19(a) Notice’’) include the disclosure required by rule 19a–1 under the Act and by condition 2(a) below, and that all other written communications by the Fund or its agents regarding distributions under the Plan include the disclosure required by condition 3(a) below; and (ii) require the Fund to keep records that demonstrate its compliance with all of the conditions of the order and that are necessary for such 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 every twelve months. 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, in relevant part, that the Commission may exempt any person or transaction from any provision of the Act to the extent that such exemption is necessary or appropriate in the public interest and E:\FR\FM\26SEN1.SGM 26SEN1 jlentini on DSK4TPTVN1PROD with NOTICES 59460 Federal Register / Vol. 76, No. 186 / Monday, September 26, 2011 / Notices consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. 3. Applicants state that one of the concerns leading to the enactment of section 19(b) and adoption of rule 19b– 1 was 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 distributions (or the confirmation of the reinvestment thereof) estimated to be sourced in part from capital gains or capital be accompanied by a separate statement showing the sources of the distribution (e.g., estimated net income, net shortterm capital gains, net long-term capital gains and/or return of capital). Applicants state that similar information is included in the Funds’ annual reports to shareholders and on the Internal Revenue Service 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 of the Funds will make the additional disclosures required by the conditions set forth below, and each of them has adopted or will adopt compliance policies and procedures in accordance with rule 38a–1 under the Act 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 procedures adopted under the Plan and the conditions listed below, each Fund’s shareholders would be provided sufficient information to understand that their periodic distributions are not tied to a Fund’s net investment income and realized capital gains to date, and may not represent yield or investment return. 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 submit that the ‘‘selling the dividend’’ concern should not apply to closed-end investment companies, such as the Funds, which do not continuously distribute shares. VerDate Mar<15>2010 17:37 Sep 23, 2011 Jkt 223001 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 periodic distribution plan actually helps minimize the concern by avoiding, through periodic distributions, any buildup of large endof-the-year distributions. 6. Applicants also note that the common stock of closed-end funds generally tends to trade in the marketplace at a discount to their NAVs. Applicants believe that this discount may be reduced if the Funds are permitted to pay relatively frequent dividends on their common shares at a consistent rate, whether or not those dividends contain an element of capital gain. 7. Applicants assert that the application of rule 19b–1 to a Plan actually could have an inappropriate influence on portfolio management decisions. Applicants state that, in the absence of an exemption from rule 19b– 1, the adoption 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 assert that by limiting the number of capital gain distributions that a fund may make with respect to any one year, rule 19b– 1 may prevent the normal and efficient operation of a periodic distribution plan whenever that fund’s net realized longterm capital gains in any year exceed the total of the periodic distributions that may include such capital gains under the rule. 8. Applicants also assert that rule 19b–1 may force 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 shortterm capital gains are insufficient to fund the distribution), even though net realized long-term capital gains otherwise would be available. To 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 00082 Fmt 4703 Sfmt 4703 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 assert that the requested order would minimize these anomalous 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 seeks to qualify as a regulated investment company under the Code and 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 dividends distributed to each class for the tax year. To satisfy the proportionate designation requirements of Revenue Ruling 89–81, whenever a fund has realized a long-term capital gain with respect to a given tax year, the fund must designate the required proportionate share of such capital gain to be included in common and preferred stock dividends. Applicants state that although rule 19b–1 allows a fund some flexibility with respect to the frequency of capital gains distributions, a fund might use all of the exceptions available under the rule for a tax year and still need to distribute additional capital gains allocated to the preferred stock to comply with Revenue Ruling 89–81. 10. Applicants assert that the potential abuses addressed by section 19(b) and rule 19b–1 do not arise with respect to preferred stock issued by a closed-end fund. Applicants assert that such distributions are either fixed or 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 longterm 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, 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. E:\FR\FM\26SEN1.SGM 26SEN1 jlentini on DSK4TPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 186 / Monday, September 26, 2011 / Notices 12. Applicants request an order under section 6(c) of the Act granting an exemption from the provisions of section 19(b) of the Act and rule 19b– 1 thereunder to permit each Fund to distribute periodic capital gain 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. 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: 1. Compliance Review and Reporting: The 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 such conditions; and (b) review the adequacy of the policies and procedures adopted by the Board no less frequently than annually. 2. 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 section19(a) and rule 19a– 1: (i) Will provide, in a tabular or graphical format: (1) 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; (2) 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; (3) 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 VerDate Mar<15>2010 17:37 Sep 23, 2011 Jkt 223001 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 (4) 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 (ii) will include the following disclosure: (1) ‘‘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’’; (2) ‘‘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’ ’’ 3; and (3) ‘‘The amounts and sources of distributions reported in this 19(a) Notice are only estimates and are not being provided for tax reporting purposes. The actual amounts and sources of the amounts for 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. 3 The disclosure in condition 2(a)(ii)(2) 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 00083 Fmt 4703 Sfmt 4703 59461 (b) On the inside front cover of each report to shareholders under rule 30e– 1 under the Act, the Fund will: (i) Describe the terms of the Plan (including the fixed amount or fixed percentage of the distributions and the frequency of the distributions); (ii) include the disclosure required by condition 2(a)(ii)(1) above; (iii) 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 (iv) 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. 3. Disclosure to Shareholders, Prospective Shareholders and Third Parties: (a) The Fund will include the information contained in the relevant 19(a) Notice, including the disclosure required by condition 2(a)(ii) 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) The Fund will issue, contemporaneously with the issuance of any 19(a) Notice, a press release containing the information in the 19(a) Notice and will file with the Commission the information contained in such 19(a) Notice, including the disclosure required by condition 2(a)(ii) above, as an exhibit to its next filed Form N–CSR; and (c) The Fund will post prominently a statement on its (or the Investment Adviser’s) website containing the information in each 19(a) Notice, including the disclosure required by condition 2(a)(ii) above, and will maintain such information on such website for at least 24 months. 4. Delivery of 19(a) Notices to Beneficial Owners: If a broker, dealer, bank or other person (‘‘financial intermediary’’) holds common shares 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 19(a) Notice to all beneficial E:\FR\FM\26SEN1.SGM 26SEN1 jlentini on DSK4TPTVN1PROD with NOTICES 59462 Federal Register / Vol. 76, No. 186 / Monday, September 26, 2011 / Notices 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. 5. Additional Board Determinations for Funds Whose Shares Trade at a Premium: If: (a) The 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 12week 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: (i) 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: (1) 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; (2) 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 5(b)(i)(1) above; including, without limitation: (A) Whether the Plan is accomplishing its purpose(s); (B) the reasonably foreseeable material effects of the Plan on the Fund’s long-term total return in relation VerDate Mar<15>2010 17:37 Sep 23, 2011 Jkt 223001 to the market price and NAV of the Fund’s common shares; and (C) the Fund’s current distribution rate, as described in condition 5(b) above, compared with the Fund’s average annual taxable income or total return over the 2-year period, as described in condition 5(b), or such longer period as the Board deems appropriate; and (3) based upon that determination, will approve or disapprove the continuation, or continuation after amendment, of the Plan; and (ii) The Board will record the information considered by it, including its consideration of the factors listed in condition 5(b)(i)(2) 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. 6. Public Offerings: The Fund will not make a public offering of the Fund’s common shares other than: (a) A rights offering below NAV to holders of the Fund’s common 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 6(a) and 6(b) above, provided that, with respect to such other offering: (i) the Fund’s annualized distribution rate for the six months ending on the last day of the month ended immediately prior to the most recent distribution record date,4 expressed as a percentage of NAV 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; 5 and (ii) 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 by or determined in accordance with the 4 If the Fund has been in operation fewer than six months, the measured period will begin immediately following the Fund’s first public offering. 5 If the Fund has been in operation fewer than five years, the measured period will begin immediately following the Fund’s first public offering. PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 terms of any outstanding preferred shares as such Fund may issue. 7. Amendments to Rule 19b–1: The requested order 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 shares as frequently as twelve times each year. For the Commission, by the Division of Investment Management, under delegated authority. Elizabeth M. Murphy, Secretary. [FR Doc. 2011–24587 Filed 9–23–11; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–65352; File No. SR–BYX– 2011–022] Self-Regulatory Organizations; BATS Y–Exchange, Inc.; Notice of Filing of Proposed Rule Change To Amend and Restate the Amended and Restated Bylaws of BATS Global Markets, Inc. September 19, 2011. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the ‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on September 7, 2011, BATS Y–Exchange, Inc. (the ‘‘Exchange’’ or ‘‘BYX’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange is filing with the Commission a proposal to amend the bylaws of the Exchange’s sole stockholder, BATS Global Markets, Inc. The text of the proposed rule change is available at the Exchange’s Web site at http://www.batstrading.com, at the principal office of the Exchange, and at the Commission’s Public Reference Room. 1 15 2 17 E:\FR\FM\26SEN1.SGM U.S.C. 78s(b)(1). CFR 240.19b–4. 26SEN1

Agencies

[Federal Register Volume 76, Number 186 (Monday, September 26, 2011)]
[Notices]
[Pages 59458-59462]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24587]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 29791; File No. 812-13867]


Stone Harbor Emerging Markets Income Fund, et al.; Notice of 
Application

September 16, 2011.
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 
registered closed-end investment companies to make periodic 
distributions of long-term capital gains with respect to their 
outstanding common stock as frequently as monthly in any one taxable 
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: Stone Harbor Emerging Markets Income Fund (the ``Current 
Fund'') and Stone Harbor Investment Partners LP (``Stone Harbor'' or 
the ``Adviser'').

Filing Dates: The application was filed on February 9, 2011 and amended 
on May 27, 2011 and September 13, 2011.

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 October 11, 2011, 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

[[Page 59459]]

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, 31 West 52nd Street, 16th 
Floor, New York, New York 10019, Contact: Adam J. Shapiro, Esq.

FOR FURTHER INFORMATION CONTACT: Keith A. Gregory, Senior Counsel, at 
(202) 551-6815, or Mary Kay Frech, Branch Chief, at (202) 551-6821 
(Division of Investment Management, Office of Investment Company 
Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained via the 
Commission's Web site by searching for the file number, or for an 
applicant using the Company name box, at http://www.sec.gov/search/search.htm, or by calling (202) 551-8090.
    Applicants' Representations:
    1. The Current Fund is a closed-end management investment company 
registered under the Act and is organized as a Massachusetts business 
trust.\1\ The Current Fund's investment objective is total return, 
consisting of income and capital appreciation. The common shares of the 
Current Fund are listed on the New York Stock Exchange. The Current 
Fund currently does not intend to issue any shares of preferred stock, 
but may do so in the future. Applicants believe that investors in the 
common shares of the Current Fund may prefer an investment vehicle that 
provides regular/monthly distributions and a steady cash flow.
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    \1\ Applicants request that any order issued granting the relief 
requested in the application also apply to any registered closed-end 
investment company currently advised or to be advised in the future 
by Stone Harbor (including any successor in interest) or by an 
entity controlling, controlled by or under common control (within 
the meaning of section 2(a)(9) of the Act) with Stone Harbor (such 
entities, together with Stone Harbor, the ``Investment Advisers'') 
that decides in the future to rely on the requested relief. Any 
closed-end investment company that relies on the order in the future 
will comply with the terms and conditions of the application (such 
investment companies together with the Current Fund, the ``Funds,'' 
and with the Investment Advisers, the ``Applicants''). All existing 
Funds currently intending to rely on the order have been named as 
Applicants. 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. Stone Harbor, a registered investment adviser under the 
Investment Advisers Act of 1940, as amended (``Advisers Act''), acts as 
the Current Fund's investment adviser. Each future Investment Adviser 
to a Fund will be registered under the Advisers Act.
    3. Applicants state that, prior to a Fund's implementing a 
distribution plan in reliance on the order, the board of trustees (the 
``Board'') of the Fund, including a majority of the trustees who are 
not ``interested persons,'' of such Fund as defined in section 2(a)(19) 
of the Act (the ``Independent Trustees''), shall have requested, and 
the Adviser shall have provided, such information as is reasonably 
necessary to make an informed determination of whether the Board should 
adopt a proposed distribution policy. In particular, the Board and the 
Independent Trustees shall have reviewed information regarding the 
purpose and terms of a proposed distribution policy, the likely effects 
of such policy on such Fund's long-term total return (in relation to 
market price and its net asset value per common share (``NAV'')) and 
the relationship between such Fund's distribution rate on its common 
shares under the policy and such Fund's total return (in relation to 
NAV); whether the rate of distribution would exceed such Fund's 
expected total return in relation to its NAV; and any foreseeable 
material effects of such policy on such Fund's long-term total return 
(in relation to market price and NAV). The Independent Trustees shall 
also have considered what conflicts of interest the Adviser and the 
affiliated persons of the Adviser and each such Fund might have with 
respect to the adoption or implementation of such policy. Applicants 
state that, only after considering such information shall the Board, 
including the Independent Trustees, of a Fund approve a distribution 
policy with respect to such Fund's common shares (the ``Plan'') and in 
connection with such approval shall have determined that such Plan is 
consistent with a Fund's investment objectives and in the best 
interests of a Fund's common shareholders.
    4. Applicants state that the purpose of a Plan would be to permit a 
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 such Fund during such year and, if so determined by its Board, all 
or a portion of the return of capital paid by portfolio companies to 
such Fund during such year. It is anticipated that under the Plan of a 
Fund, such Fund would distribute to its respective common shareholders 
a fixed monthly percentage of the market price of such 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, any of which may be 
adjusted from time to time. It is anticipated that under a Plan, the 
minimum annual distribution rate with respect to such Fund's common 
shares would be independent of a Fund's performance during any 
particular period but would be expected to correlate with a Fund's 
performance over time. Except for extraordinary distributions and 
potential increases or decreases in the final dividend periods in light 
of a Fund's performance for an entire calendar year and to enable a 
Fund to comply with the distribution requirements of Subchapter M of 
the Internal Revenue Code (``Code'') for the fiscal year, it is 
anticipated that each distribution on the common shares would be at the 
stated rate then in effect.
    5. Applicants state that prior to the implementation of a Plan for 
a Fund, the Board shall have adopted policies and procedures under rule 
38a-1 under the Act that: (i) Are reasonably designed to ensure that 
all notices required to be sent to the Fund's shareholders pursuant to 
section 19(a) of the Act, rule 19a-1 thereunder and condition 4 below 
(each a ``19(a) Notice'') include the disclosure required by rule 19a-1 
under the Act and by condition 2(a) below, and that all other written 
communications by the Fund or its agents regarding distributions under 
the Plan include the disclosure required by condition 3(a) below; and 
(ii) require the Fund to keep records that demonstrate its compliance 
with all of the conditions of the order and that are necessary for such 
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 every twelve months. 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, in relevant part, that the Commission may 
exempt any person or transaction from any provision of the Act to the 
extent that such exemption is necessary or appropriate in the public 
interest and

[[Page 59460]]

consistent with the protection of investors and the purposes fairly 
intended by the policy and provisions of the Act.
    3. Applicants state that one of the concerns leading to the 
enactment of section 19(b) and adoption of rule 19b-1 was 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 distributions (or the confirmation of the 
reinvestment thereof) estimated to be sourced in part from capital 
gains or capital be accompanied by a separate statement showing the 
sources of the distribution (e.g., estimated net income, net short-term 
capital gains, net long-term capital gains and/or return of capital). 
Applicants state that similar information is included in the Funds' 
annual reports to shareholders and on the Internal Revenue Service 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 of the Funds will make the 
additional disclosures required by the conditions set forth below, and 
each of them has adopted or will adopt compliance policies and 
procedures in accordance with rule 38a-1 under the Act 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 procedures adopted 
under the Plan and the conditions listed below, each Fund's 
shareholders would be provided sufficient information to understand 
that their periodic distributions are not tied to a Fund's net 
investment income and realized capital gains to date, and may not 
represent yield or investment return. 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 submit that the ``selling the 
dividend'' concern should not apply to closed-end investment companies, 
such as the Funds, which do not continuously distribute shares. 
According to Applicants, if the underlying concern extends to secondary 
market purchases of shares of closed-end funds that are subject to a 
large upcoming capital gains dividend, adoption of a 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 the common stock of closed-end funds 
generally tends to trade in the marketplace at a discount to their 
NAVs. Applicants believe that this discount may be reduced if the Funds 
are permitted to pay relatively frequent dividends on their common 
shares at a consistent rate, whether or not those dividends contain an 
element of capital gain.
    7. Applicants assert that the application of rule 19b-1 to a Plan 
actually could have an inappropriate influence on portfolio management 
decisions. Applicants state that, in the absence of an exemption from 
rule 19b-1, the adoption 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 assert that by limiting the number of capital gain 
distributions that a fund may make with respect to any one year, rule 
19b-1 may prevent the normal and efficient operation of a periodic 
distribution plan whenever that fund's net realized long-term capital 
gains in any year exceed the total of the periodic distributions that 
may include such capital gains under the rule.
    8. Applicants also assert that rule 19b-1 may force 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 net realized long-term capital gains 
otherwise would 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 assert that the requested order would 
minimize these anomalous 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 seeks to qualify as a regulated investment 
company under the Code and 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 dividends 
distributed to each class for the tax year. To satisfy the 
proportionate designation requirements of Revenue Ruling 89-81, 
whenever a fund has realized a long-term capital gain with respect to a 
given tax year, the fund must designate the required proportionate 
share of such capital gain to be included in common and preferred stock 
dividends. Applicants state that although rule 19b-1 allows a fund some 
flexibility with respect to the frequency of capital gains 
distributions, a fund might use all of the exceptions available under 
the rule for a tax year and still need to distribute additional capital 
gains allocated to the preferred stock to comply with Revenue Ruling 
89-81.
    10. Applicants assert that the potential abuses addressed by 
section 19(b) and rule 19b-1 do not arise with respect to preferred 
stock issued by a closed-end fund. Applicants assert that such 
distributions are either fixed or 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 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, 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.

[[Page 59461]]

    12. Applicants request an order under section 6(c) of the Act 
granting an exemption from the provisions of section 19(b) of the Act 
and rule 19b-1 thereunder to permit each Fund to distribute periodic 
capital gain 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.
    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:
    1. Compliance Review and Reporting: The 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 such conditions; and (b) review the adequacy 
of the policies and procedures adopted by the Board no less frequently 
than annually.
    2. 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 section19(a) 
and rule 19a-1:
    (i) Will provide, in a tabular or graphical format:
    (1) 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;
    (2) 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;
    (3) 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
    (4) 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
    (ii) will include the following disclosure:
    (1) ``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'';
    (2) ``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' '' \3\; and
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    \3\ The disclosure in condition 2(a)(ii)(2) 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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    (3) ``The amounts and sources of distributions reported in this 
19(a) Notice are only estimates and are not being provided for tax 
reporting purposes. The actual amounts and sources of the amounts for 
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:
    (i) Describe the terms of the Plan (including the fixed amount or 
fixed percentage of the distributions and the frequency of the 
distributions);
    (ii) include the disclosure required by condition 2(a)(ii)(1) 
above;
    (iii) 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
    (iv) 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.
    3. Disclosure to Shareholders, Prospective Shareholders and Third 
Parties:
    (a) The Fund will include the information contained in the relevant 
19(a) Notice, including the disclosure required by condition 2(a)(ii) 
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) The Fund will issue, contemporaneously with the issuance of any 
19(a) Notice, a press release containing the information in the 19(a) 
Notice and will file with the Commission the information contained in 
such 19(a) Notice, including the disclosure required by condition 
2(a)(ii) above, as an exhibit to its next filed Form N-CSR; and
    (c) The Fund will post prominently a statement on its (or the 
Investment Adviser's) website containing the information in each 19(a) 
Notice, including the disclosure required by condition 2(a)(ii) above, 
and will maintain such information on such website for at least 24 
months.
    4. Delivery of 19(a) Notices to Beneficial Owners: If a broker, 
dealer, bank or other person (``financial intermediary'') holds common 
shares 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 19(a) Notice to all beneficial

[[Page 59462]]

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.
    5. Additional Board Determinations for Funds Whose Shares Trade at 
a Premium:
    If:
    (a) The 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:
    (i) 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:
    (1) 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;
    (2) 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 5(b)(i)(1) 
above; including, without limitation:
    (A) Whether the Plan is accomplishing its purpose(s);
    (B) 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
    (C) the Fund's current distribution rate, as described in condition 
5(b) above, compared with the Fund's average annual taxable income or 
total return over the 2-year period, as described in condition 5(b), or 
such longer period as the Board deems appropriate; and
    (3) based upon that determination, will approve or disapprove the 
continuation, or continuation after amendment, of the Plan; and
    (ii) The Board will record the information considered by it, 
including its consideration of the factors listed in condition 
5(b)(i)(2) 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.
    6. Public Offerings: The Fund will not make a public offering of 
the Fund's common shares other than:
    (a) A rights offering below NAV to holders of the Fund's common 
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 6(a) 
and 6(b) above, provided that, with respect to such other offering:
    (i) the Fund's annualized distribution rate for the six months 
ending on the last day of the month ended immediately prior to the most 
recent distribution record date,\4\ expressed as a percentage of NAV 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; \5\ and
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    \4\ If the Fund has been in operation fewer than six months, the 
measured period will begin immediately following the Fund's first 
public offering.
    \5\ If the Fund has been in operation fewer than five years, the 
measured period will begin immediately following the Fund's first 
public offering.
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    (ii) 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 by or determined in 
accordance with the terms of any outstanding preferred shares as such 
Fund may issue.
    7. Amendments to Rule 19b-1:
    The requested order 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 shares as 
frequently as twelve times each year.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-24587 Filed 9-23-11; 8:45 am]
BILLING CODE 8011-01-P