10850 Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Notices 

7 If a Fund has been in operation fewer than six 

months, the measured period will begin 

immediately following the Fund’s first public 

offering. 

8 If a Fund has been in operation fewer than five 

years, the measured period will begin immediately 

following the Fund’s first public offering. 

3. The Fund will post prominently a 

statement on its (or its Adviser’s) Web 

site containing the information in each 

19(a) Notice, including the disclosure 

required by condition B.1.(b) above, and 

maintain such information on such Web 

site for at least 24 months. 

D. Delivery of 19(a) Notices to Beneficial 

Owners 

If a broker, dealer, bank or other 

person (‘‘Financial Intermediary’’) holds 

common stock issued by a Fund in 

nominee name, or otherwise, on behalf 

of a beneficial owner, the Fund: 

1. 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; 

2. 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 

3. 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. 

E. Additional Board Determinations for 

Funds Whose Common Stock Trades at 

a Premium 

If: 

1. A Fund’s common stock has traded 

on the stock exchange on which it 

primarily trades 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 stock 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 

2. 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: 

(a) At the earlier of the next regularly 

scheduled meeting or within four 

months of the last day of such 12-week 

rolling period, the Board including a 

majority of the Independent Directors: 

(1) Will request and evaluate, and the 

Fund’s Adviser will furnish, such 

information as may be reasonably 

necessary to make an informed 

determination of whether the Plan 

should be continued or continued after 

amendment; 

(2) 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 stockholders, after 

considering the information in 

condition E.2.(a)(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 longterm total return in relation to the 

market price and NAV of the Fund’s 

common stock; and (C) the Fund’s 

current distribution rate, as described in 

condition E.2 above, compared with the 

Fund’s average annual taxable income 

or total return over the 2-year period, as 

described in condition E.2, 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 

(b) The Board will record the 

information it considers, including its 

consideration of the factors listed in 

condition E.2.(a)(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. 

F. Public Offerings 

A Fund will not make a public 

offering of the Fund’s common stock 

other than: 

1. A rights offering below NAV to 

holders of the Fund’s common stock; 

2. An offering in connection with a 

dividend reinvestment plan, merger, 

consolidation, acquisition, spin-off or 

reorganization of the Fund; or 

3. An offering other than an offering 

described in conditions F.1 and F.2 

above, provided that, with respect to 

such other offering: 

(a) 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,7

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; 8 and 

(b) The transmittal letter 

accompanying any registration 

statement filed with the Commission in 

connection with such offering discloses 

that the Fund has received an order 

under Section 19(b) to permit it to make 

periodic distributions of long-term 

capital gains with respect to its common 

stock as frequently as twelve times each 

year, and as frequently as distributions 

are specified by or determined in 

accordance with the terms of any 

outstanding preferred stock as such 

Fund may issue. 

G. Amendments to Rule 19b–1 

The requested order will expire on the 

effective date of any amendments to 

Rule 19b–1 that provide relief 

permitting certain closed-end 

investment companies to make periodic 

distributions of long-term capital gains 

with respect to their outstanding 

common stock as frequently as twelve 

times each year. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–4908 Filed 3–8–10; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

Sunshine Act Meeting 

Notice is hereby given, pursuant to 

the provisions of the Government in the 

Sunshine Act, Public Law 94–409, that 

the Securities and Exchange 

Commission will hold a Closed Meeting 

on Thursday, March 11, 2010 at 2 p.m. 

Commissioners, Counsel to the 

Commissioners, the Secretary to the 

Commission, and recording secretaries 

will attend the Closed Meeting. Certain 

staff members who have an interest in 

the matters also may be present. 

The General Counsel of the 

Commission, or his designee, has 

certified that, in his opinion, one or 

more of the exemptions set forth in 5 

U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) 

and 17 CFR 200.402(a)(3), (5), (7), 9(ii) 

and (10), permit consideration of the 

scheduled matters at the Closed 

Meeting. 

Commissioner Casey, as duty officer, 

voted to consider the items listed for the 

Closed Meeting in a closed session. 


sroberts on DSKD5P82C1PROD with NOTICES
Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Notices 10851 

1 15 U.S.C. 78s(b)(1). 

2 15 U.S.C. 78a. 

3 17 CFR 240.19b–4. 

4See NYSE Amex Rule 900.2NY(18). 

5See, e.g., NYSE Amex Rule 963NY Priority and 

Order Allocation Procedures—Open Outcry, 

963.1NY Complex Order Transactions, 964NY 

Display, Priority and Order Allocation—Trading 

Systems, and 980NY(b) Priority of Complex Orders 

in the Consolidated Book. 

6Market professionals have access to 

sophisticated trading systems that contain 

functionality not available to retail investors, 

including things such as continuously updated 

pricing models based on real-time streaming data, 

access to multiple markets simultaneously, and 

order and risk management tools. 

7For example, some Broker/Dealers provide 

professional customers with multi-screened trading 

stations equipped with trading technology that 

allows the trader to monitor and place orders on all 

seven options exchanges simultaneously. These 

trading stations also provide compliance filters, 

order management tools, the ability to place orders 

in the underlying securities, and market data feeds. 

See Securities Exchange Act Releases 59287 

(January 23, 2009), 74 FR 5694 (January 30, 2009) 

(SR–ISE–2006–26) (order approving International 

Securities Exchange (‘‘ISE’’) proposal to introduce 

priority customer and professional orders) and 

57254 (February 1, 2008), 73 FR 7345(February 7, 

2008) (SR–ISE–2006–26) (notice of ISE proposal to 

introduce priority customer and professional 

orders) at note 8, See also Securities Exchange Act 

Release 61198 (December 17, 2009), 74 FR 68880 

(December 29, 2009) (SR–CBOE–2009–078) (order 

approving CBOE proposal to introduce Professional 

Customers). 

8Market Makers enter quotes based on the 

theoretical value of the option, which moves with 

various factors in their pricing models, such as the 

value of the underlying security. Professional 

customers place and cancel orders in relation to an 

option’s theoretical value in much the same manner 

as a Market Maker. This is evidenced by the entry 

of limit orders that join the best bid or offer and 

by a very high rate of orders that are entered and 

cancelled. In contrast, retail investors who enter 

orders as part of an investment strategy (such as a 

buy/write or directional trade) most frequently 

enter marketable orders or limit orders that they do 

not cancel and replace. See, e.g., Securities 

Exchange Act Release 57254 at note 9. 

The subject matter of the Closed 

Meeting scheduled for Thursday, March 

11, 2010 will be: Formal order of 

investigation; institution and settlement 

of injunctive actions; institution and 

settlement of administrative 

proceedings; an adjudicatory matter; 

and other matters relating to 

enforcement proceedings. 

At times, changes in Commission 

priorities require alterations in the 

scheduling of meeting items. 

For further information and to 

ascertain what, if any, matters have been 

added, deleted or postponed, please 

contact: The Office of the Secretary at 

(202) 551–5400. 

Dated: March 4, 2010. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. 2010–5053 Filed 3–5–10; 11:15 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–61629; File No. SR– 

NYSEAmex–2010–18) 

Self-Regulatory Organizations; NYSE 

Amex LLC; Notice of Filing of 

Proposed Rule Change Relating to the 

Designation of a ‘‘Professional 

Customer’’ 

March 2, 2010. 

Pursuant to Section 19(b)(1) 1 of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’) 2 and Rule 19b–4 thereunder,3

notice is hereby given that, on February 

25, 2010, NYSE Amex LLC (‘‘NYSE 

Amex’’ or the ‘‘Exchange’’) filed with the 

Securities and Exchange Commission 

(the ‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

prepared by the self-regulatory 

organization. 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 proposes to designate 

any Customer that places more than 390 

orders in listed options per day on 

average during a calendar month for its 

own beneficial account(s) as a 

‘‘Professional Customer.’’ The text of the 

proposed rule change is attached as 

Exhibit 5 to the 19b–4 form. A copy of 

this filing is available on the Exchange’s 

Web site at http://www.nyse.com, at the 

Exchange’s principal office and at the 

Commission’s Public Reference Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

self-regulatory organization included 

statements concerning the purpose of, 

and basis for, the proposed rule change 

and discussed any comments it received 

on the proposed rule change. The text 

of those statements may be examined at 

the places specified in Item IV below. 

The Exchange has prepared summaries, 

set forth in sections A, B, and C below, 

of the most significant parts of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

Under NYSE Amex rules, a 

‘‘Customer’’ is an individual or 

organization that is not a Broker/ 

Dealer.4 This term is used in specific 

NYSE Amex rules that provide certain 

marketplace advantages to Customer 

orders over non-customer orders (e.g., 

orders for the account of ATP holders or 

broker/dealers). In particular, under 

NYSE Amex rules, subject to certain 

exceptions, (i) Customer orders are 

given priority over non-customer orders 

and Market-Maker quotes at the same 

price,5 and (ii) ATP holders are 

generally not charged a transaction fee 

for the execution of Customer orders. 

The purpose of providing these 

marketplace advantages to Customer 

orders is to attract retail investor order 

flow to the Exchange by leveling the 

playing field for retail investors over 

market professionals6 and to provide 

competitive pricing. 

With respect to these NYSE Amex 

marketplace advantages, the Exchange 

does not believe the definition of 

Customer versus a non-Customer 

properly distinguishes between nonprofessional retail investors and certain 

professionals. The Exchange believes 

that providing marketplace advantages 

based upon whether the order is for the 

account of a participant that is a 

registered Broker/Dealer is no longer 

appropriate in today’s marketplace 

because some non-broker-dealer 

individuals and entities have access to 

information and technology that enables 

them to professionally trade listed 

options in the same manner as a broker 

or dealer in securities.7 These 

individual traders and entities 

(collectively, ‘‘Professional Customers’’) 

have the same technological and 

informational advantages over retail 

investors as broker-dealers trading for 

their own account, which enables them 

to compete effectively with brokerdealer orders and market maker quotes 

for execution opportunities in the NYSE 

Amex marketplace.8

The Exchange therefore does not 

believe that it is consistent with fair 

competition for these professional 

account holders to continue to receive 

the same marketplace advantages as 

retail investors over Broker/Dealers 

trading on NYSE Amex. Moreover, 

because Customer orders at the same 

price are executed in time priority, retail 

investors are prevented from fully 

benefiting from the priority advantage 

when Professional Customers are 

afforded Customer order priority. 

Accordingly, the Exchange is seeking 

to adopt a new term that will be used 

to more appropriately provide NYSE 

Amex marketplace advantages to retail 

investors on NYSE Amex. Under the 

proposal, a ‘‘Professional Customer’’ will 


sroberts on DSKD5P82C1PROD with NOTICES