1730 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices 

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. 

rolling period ending on the last trading 

day of each week); and 

B. The fund’s annualized distribution 

rate for such 12-week rolling period, 

expressed as a percentage of NAV as of 

the ending date of such 12-week rolling 

period, is greater than the fund’s average 

annual total return in relation to the 

change in NAV over the 2-year period 

ending on the last day of such 12-week 

rolling period; then: 

1. At the earlier of the next regularly 

scheduled meeting or within four 

months of the last day of such 12-week 

rolling period, the Board including a 

majority of the Independent Directors: 

(a) Will request and evaluate, and the 

Adviser will furnish, such information 

as may be reasonably necessary to make 

an informed determination of whether 

the Plan should be continued or 

continued after amendment; 

(b) Will determine whether 

continuation, or continuation after 

amendment, of the Plan is consistent 

with the fund’s investment objective(s) 

and policies and in the best interests of 

the fund and its shareholders, after 

considering the information in 

condition V.B.1.a above; including, 

without limitation: 

(1) Whether the Plan is accomplishing 

its purpose(s); 

(2) The reasonably foreseeable effects 

of the Plan on the fund’s long-term total 

return in relation to the market price 

and NAV of the fund’s common shares; 

and 

(3) The fund’s current distribution 

rate, as described in condition V.B 

above, compared with the fund’s 

average annual total return over the 2- 

year period, as described in condition 

V.B., or such longer period as the board 

deems appropriate; and 

(c) Based upon that determination, 

will approve or disapprove the 

continuation, or continuation after 

amendment, of the Plan; and 

2. The Board will record the 

information considered by it and the 

basis for its approval or disapproval of 

the continuation, or continuation after 

amendment, of the Plan in its meeting 

minutes, which must be made and 

preserved for a period of not less than 

six years from the date of such meeting, 

the first two years in an easily accessible 

place. 

VI. Public Offerings 

The fund will not make a public 

offering of the fund’s common shares 

other than: 

A. A rights offering below net asset 

value to holders of the fund’s common 

stock; 

B. An offering in connection with a 

dividend reinvestment plan, merger, 

consolidation, acquisition, spin-off or 

reorganization of the fund; or 

C. An offering other than an offering 

described in conditions VI.A and VI.B 

above, unless, with respect to such other 

offering: 

1. The fund’s average annual 

distribution rate for the six months 

ending on the last day of the month 

ended immediately prior to the most 

recent distribution declaration date,5

expressed as a percentage of NAV per 

share as of such date, is no more than 

1 percentage point greater than the 

fund’s average annual total return for 

the 5-year period ending on such date;6

and 

2. The transmittal letter 

accompanying any registration 

statement filed with the Commission in 

connection with such offering discloses 

that the fund has received an order 

under section 19(b) to permit it to make 

periodic distributions of long-term 

capital gains with respect to its common 

stock as frequently as twelve times each 

year, and as frequently as distributions 

are specified in accordance with the 

terms of any outstanding preferred stock 

that such fund may issue. 

VII. Amendments to Rule 19b–1 

The requested relief will expire on the 

effective date of any amendment to rule 

19b–1 that provides relief permitting 

certain closed-end investment 

companies to make periodic 

distributions of long-term capital gains 

with respect to their outstanding 

common stock as frequently as twelve 

times each year. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–440 Filed 1–12–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Investment Company Act Release No. 

28578; 812–13239] 

SunAmerica Focused Alpha Growth 

Fund, Inc., et al.; Notice of Application 

January 6, 2009. 

AGENCY: Securities and Exchange 

Commission (‘‘Commission’’). 

ACTION: Notice of application under 

section 6(c) of the Investment Company 

Act of 1940 (‘‘Act’’) for an exemption 

from section 19(b) of the Act and rule 

19b–1 under the Act. 

SUMMARY OF APPLICATION: Applicants 

request an order to permit certain 

closed-end investment companies to 

make periodic distributions of long-term 

capital gains with respect to their 

outstanding common stock as frequently 

as twelve times each year, and as 

frequently as distributions are specified 

by or in accordance with the terms of 

any outstanding preferred stock that 

such investment companies may issue. 

APPLICANTS: SunAmerica Focused 

Alpha Growth Fund, Inc. (‘‘FGF’’), 

SunAmerica Focused Alpha Large-Cap 

Fund, Inc. (‘‘FGI’’) and AIG SunAmerica 

Asset Management Corp. (the 

‘‘Adviser’’). 

FILING DATES: October 17, 2005 and 

September 2, 2008. 

HEARING OR NOTIFICATION OF HEARING: 

An order granting the application will 

be issued unless the Commission orders 

a hearing. Interested persons may 

request a hearing by writing to the 

Commission’s Secretary and serving 

applicants with a copy of the request, 

personally or by mail. Hearing requests 

should be received by the Commission 

by 5:30 p.m. on February 2, 2009, and 

should be accompanied by proof of 

service on applicants, in the form of an 

affidavit or, for lawyers, a certificate of 

service. Hearing requests should state 

the nature of the writer’s interest, the 

reason for the request, and the issues 

contested. Persons who wish to be 

notified of a hearing may request 

notification by writing to the 

Commission’s Secretary. 

ADDRESSES: Secretary, Securities and 

Exchange Commission, 100 F Street, 

NE., Washington, DC 20549–1090; 

Applicants, c/o AIG SunAmerica Asset 

Management Corp., Harborside 

Financial Center, 3200 Plaza 5, Jersey 

City, NJ 07311–4992, Attention: Gregory 

N. Bressler. 

FOR FURTHER INFORMATION CONTACT: 

Wendy Friedlander, Senior Counsel, at 

(202) 551–6837, or James M. Curtis, 

Branch Chief, at (202) 551–6825 

(Division of Investment Management, 

Office of Chief Counsel). 

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). 

Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices 1731 

1Applicants request that any order issued 

granting the relief requested in the application also 

apply to any closed-end investment company 

(‘‘fund’’) that in the future: (a) Is advised by the 

Adviser (including any successor in interest) or by 

any entity controlling, controlled by, or under 

common control (within the meaning of section 

2(a)(9) of the Act) with the Adviser; and (b) 

complies with the terms and conditions of the 

requested order. A successor in interest is limited 

to entities that result from a reorganization into 

another jurisdiction or a change in the type of 

business organization. 

Applicants’ Representations 

1. FGF and FGI are registered closedend management investment companies 

organized as Maryland corporations, 

and each has capital growth as its 

investment objective.1 The common 

stock of FGF and FGI are listed on the 

New York Stock Exchange. FGF and FGI 

have not issued preferred stock. 

Applicants believe that the stockholders 

of FGF and FGI are generally 

conservative, dividend-sensitive 

investors who desire current income 

periodically and may favor a fixed 

distribution policy. 

2. The Adviser is a Delaware 

corporation and is registered as an 

investment adviser under the 

Investment Advisers Act of 1940. The 

Adviser is the investment adviser for 

FGF and FGI and provides investment 

advice and management services to 

other mutual funds and accounts. The 

Adviser is a wholly-owned subsidiary of 

American International Group, Inc. 

3. Applicants represent that prior to 

May 30, 2007, the Board of Directors 

(the ‘‘Boards’’) of FGF and FGI, 

including a majority of the members of 

each of the Boards who are not 

‘‘interested persons’’ of each fund (the 

‘‘Independent Directors’’) as defined in 

section 2(a)(19) of the Act, requested 

information, and the Adviser provided, 

such information as was reasonably 

necessary for the Boards to determine 

whether FGF or FGI should adopt a 

proposed distribution policy. 

4. Applicants represent that at a 

meeting on May 30, 2007, the Directors 

reviewed the information regarding the 

purpose and terms of a proposed 

distribution policy, the likely effects of 

such policy on each fund’s long-term 

total return (in relation to market price 

and net asset value (‘‘NAV’’) per 

common share) and the relationship 

between such fund’s distribution rate on 

its common stock under the policy and 

the fund’s total return on NAV per 

share. Applicants state that the 

Independent Directors of each fund also 

considered what conflicts of interest the 

Adviser and the affiliated persons of the 

Adviser and each fund might have with 

respect to the adoption or 

implementation of such policy. 

5. Applicants state that at another 

meeting on August 27, 2007, the Boards 

of FGF and FGI, including the 

Independent directors, approved a 

revised distribution policy with respect 

to its fund’s common stock (‘‘Plan’’) and 

determined that such Plan is consistent 

with such fund’s investment objectives 

and in the best interest of such fund’s 

common stockholders. 

4. Applicants state that the purpose of 

each of the proposed Plans would be to 

permit each fund to distribute over the 

course of each year periodic and level 

distributions that would be independent 

of the fund’s performance during any 

particular period but that would be 

expected to correlate with the fund’s 

performance over time. Applicants 

explain that each distribution would be 

at the stated rate then in effect, except 

for extraordinary distributions and 

potential increases or decreases in the 

final dividend periods in light of the 

fund’s performance for the entire 

calendar year and to enable the fund to 

comply with the distribution 

requirements of Subchapter M of the 

Internal Revenue Code of 1986 (the 

‘‘Code’’) for the calendar year. 

Applicants state that the Boards of the 

funds will periodically review the 

amount of potential distributions in 

light of the investment experience of 

each fund, and may modify or terminate 

the fund’s Plan at any time. 

5. Applicants state that at the August 

27, 2007 meeting, the Boards of FGF and 

FGI each also adopted policies and 

procedures under rule 38a–1 under the 

Act that are reasonably designed to 

ensure that all notices sent to FGF and 

FGI shareholders with distributions 

under the Plan (‘‘Notices’’) comply with 

condition II below, and that all other 

written communications by FGF and 

FGI or its agents regarding distributions 

under the Plan include the disclosure 

required by condition III below. 

Applicants state that the Boards of FGF 

and FGI each also adopted policies and 

procedures at that meeting that require 

FGF and FGI to keep records that 

demonstrate each fund’s compliance 

with all of the conditions of the 

requested order and that are necessary 

for each fund to form the basis for, or 

demonstrate the calculation of, the 

amounts disclosed in its 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 total amount distributed for the year, 

plus one additional capital gain 

dividend made in whole or in part to 

avoid the excise tax under section 4982 

of the Code. 

2. Section 6(c) provides that the 

Commission may, by order upon 

application, conditionally or 

unconditionally exempt any person, 

security, or transaction, or any class or 

classes of persons, securities or 

transactions, from any provision of the 

Act, if and to the extent that the 

exemption is necessary or appropriate 

in the public interest and consistent 

with the protection of investors and the 

purposes fairly intended by the policy 

and provisions of the Act. 

3. Applicants state that the one of the 

concerns underlying section 19(b) and 

rule 19b–1 is that shareholders might be 

unable to differentiate between regular 

distributions of capital gains and 

distributions of investment income. 

Applicants state, however, that rule 

19a–1 effectively addresses this concern 

by requiring that a separate statement 

showing the sources of a distribution 

(e.g., estimated net income, net shortterm capital gains, net long-term capital 

gains and/or return of capital) 

accompany any distributions (or the 

confirmation of the reinvestment of 

distributions) estimated to be sourced in 

part from capital gains or capital. 

Applicants state that the same 

information also is included in FGF’s 

and FGI’s annual reports to shareholders 

and on their IRS Forms 1099–DIV, 

which are sent to each common and 

preferred shareholder who received 

distributions during the year. 

4. Applicants further state that each of 

FGF and FGI will make the additional 

disclosures required by the conditions 

set forth below, and each of them has 

adopted compliance policies and 

procedures in accordance with rule 

38a–1 to ensure that all required Notices 

and disclosures are sent to shareholders. 

Applicants argue that by providing the 

information required by section 19(a) 

and rule 19a–1, and by complying with 

the procedures adopted under each Plan 

and the conditions listed below, the 

funds would ensure that each fund’s 

shareholders are provided sufficient 

information to understand that their 

periodic distributions are not tied to the 

fund’s net investment income (which 

for this purpose is the fund’s taxable 

income other than from capital gains) 

and realized capital gains to date, and 

may not represent yield or investment 

return. Accordingly, applicants assert 

1732 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices 

2Returns of capital as used in the application 

means return of capital for financial accounting 

purposes and not for tax accounting purposes. 

3Applicants state that a future fund that relies on 

the requested order will satisfy each of the 

representations in the application except that such 

representations will be made in respect of actions 

by the board of directors of such future fund and 

will be made at a future time. 

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 FGF and FGI, which 

do not continuously distribute shares. 

According to Applicants, if the 

underlying concern extends to 

secondary market purchases of shares of 

closed-end funds that are subject to a 

large upcoming capital gains dividend, 

adoption of a Plan actually helps 

minimize the concern by avoiding, 

through periodic distributions, any 

buildup of large end-of-the-year 

distributions. 

6. Applicants also note that common 

shares of closed-end funds that invest 

primarily in equity securities often trade 

in the marketplace at a discount to their 

NAV. Applicants believe that this 

discount may be reduced for closed-end 

funds that pay relatively frequent 

dividends on their common shares at a 

consistent rate, whether or not those 

dividends contain an element of longterm capital gain. 

7. Applicants assert that the 

application of rule 19b–1 to a Plan 

actually could have an undesirable 

influence on portfolio management 

decisions. Applicants state that, in the 

absence of an exemption from rule 19b– 

1, the implementation of a Plan imposes 

pressure on management (i) not to 

realize any net long-term capital gains 

until the point in the year that the fund 

can pay all of its remaining distributions 

in accordance with rule 19b–1, and (ii) 

not to realize any long-term capital 

gains during any particular year in 

excess of the amount of the aggregate 

pay-out for the year (since as a practical 

matter excess gains must be distributed 

and accordingly would not be available 

to satisfy pay-out requirements in 

following years), notwithstanding that 

purely investment considerations might 

favor realization of long-term gains at 

different times or in different amounts. 

Applicants thus assert that the 

limitation on the number of capital gain 

distributions that a fund may make with 

respect to any one year imposed by rule 

19b–1, may prevent the efficient 

operation of a Plan whenever that fund’s 

realized net long-term capital gains in 

any year exceed the total of the periodic 

distributions that may include such 

capital gains under the rule. 

8. In addition, Applicants assert that 

rule 19b–1 may cause fixed regular 

periodic distributions under a Plan to be 

funded with returns of capital 2 (to the 

extent net investment income and 

realized short-term capital gains are 

insufficient to fund the distribution), 

even though realized net long-term 

capital gains otherwise could be 

available. To distribute all of a fund’s 

long-term capital gains within the limits 

in rule 19b–1, a fund may be required 

to make total distributions in excess of 

the annual amount called for by its Plan, 

or to retain and pay taxes on the excess 

amount. Applicants thus assert that the 

requested order would minimize these 

effects of rule 19b–1 by enabling the 

funds to realize long-term capital gains 

as often as investment considerations 

dictate without fear of violating rule 

19b–1. 

9. Applicants state that Revenue 

Ruling 89–81 under the Code requires 

that a fund that has both common stock 

and preferred stock outstanding 

designate the types of income, e.g., 

investment income and capital gains, in 

the same proportion as the total 

distributions distributed to each class 

for the tax year. To satisfy the 

proportionate designation requirements 

of Revenue Ruling 89–81, whenever a 

fund has realized a long-term capital 

gain with respect to a given tax year, the 

fund must designate the required 

proportionate share of such capital gain 

to be included in common and preferred 

stock dividends. Applicants state that 

although rule 19b–1 allows a fund some 

flexibility with respect to the frequency 

of capital gains distributions, a fund 

might use all of the exceptions available 

under the rule for a tax year and still 

need to distribute additional capital 

gains allocated to the preferred stock to 

comply with Revenue Ruling 89–81. 

10. Applicants assert that the 

potential abuses addressed by section 

19(b) and rule 19b–1 do not arise with 

respect to preferred stock issued by a 

closed-end fund. Applicants assert that 

such distributions are fixed or 

determined in periodic auctions by 

reference to short-term interest rates 

rather than by reference to performance 

of the issuer and Revenue Ruling 89–81 

determines the proportion of such 

distributions that are comprised of the 

long-term capital gains. 

11. Applicants also submit that the 

‘‘selling the dividend’’ concern is not 

applicable to preferred stock, which 

entitles a holder to no more than a 

periodic dividend at a fixed rate or the 

rate determined by the market, and, like 

a debt security, is priced based upon its 

liquidation value, credit quality, and 

frequency of payment. Applicants state 

that investors buy preferred shares for 

the purpose of receiving payments at the 

frequency bargained for, and do not 

expect the liquidation value of their 

shares to change. 

12. Applicants request an order under 

section 6(c) granting an exemption from 

the provisions of section 19(b) and rule 

19b–1 to permit each fund’s common 

stock to distribute periodic capital gains 

dividends (as defined in section 

852(b)(3)(C) of the Code) as often as 

monthly in any one taxable year in 

respect of its common shares and as 

often as specified by or determined in 

accordance with the terms thereof in 

respect of its preferred shares.3

Applicants’ Conditions 

Applicants agree that, with respect to 

each fund seeking to rely on the order, 

the order will be subject to the following 

conditions: 

I. Compliance Review and Reporting 

The fund’s chief compliance officer 

will: (a) report to the fund Board, no less 

frequently than once every three months 

or at the next regularly scheduled 

quarterly board meeting, whether (i) the 

fund and the Adviser have complied 

with the conditions to the requested 

order, and (ii) a Material Compliance 

Matter, as defined in rule 38a–1(e)(2), 

has occurred with respect to compliance 

with such conditions; and (b) review the 

adequacy of the policies and procedures 

adopted by the fund no less frequently 

than annually. 

II. Disclosures to Fund Shareholders 

A. Each Notice to the holders of the 

fund’s common shares, in addition to 

the information required by section 

19(a) and rule 19a–1: 

1. Will provide, in a tabular or 

graphical format: 

(a) The amount of the distribution, on 

a per common share basis, together with 

the amounts of such distribution 

amount, on a per common share basis 

and as a percentage of such distribution 

amount, from estimated: (A) Net 

investment income; (B) net realized 

Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices 1733 

4This disclosure will be included only if the 

current distribution or the fiscal year-to-date 

cumulative distributions are estimated to include a 

return of capital. 

short-term capital gains; (C) net realized 

long-term capital gains; and (D) return 

of capital or other capital source; 

(b) the fiscal year-to-date cumulative 

amount of distributions, on a per 

common share basis, together with the 

amounts of such cumulative amount, on 

a per common share basis and as a 

percentage of such cumulative amount 

of distributions, from estimated: (A) Net 

investment income; (B) net realized 

short-term capital gains; (C) net realized 

long-term capital gains; and (D) return 

of capital or other capital source; 

(c) the average annual total return in 

relation to the change in NAV for the 5- 

year period (or, if the fund’s history of 

operations is less than five years, the 

time period commencing immediately 

following the fund’s first public 

offering) ending on the last day of the 

month prior to the most recent 

distribution declaration date compared 

to the current fiscal period’s annualized 

distribution rate expressed as a 

percentage of NAV as of the last day of 

the month prior to the most recent 

distribution declaration date; and 

(d) the cumulative total return in 

relation to the change in NAV from the 

last completed fiscal year to the last day 

of the month prior to the most recent 

distribution declaration date compared 

to the fiscal year-to-date cumulative 

distribution rate expressed as a 

percentage of NAV as of the last day of 

the month prior to the most recent 

distribution declaration date. 

Such disclosure shall be made in a 

type size at least as large and as 

prominent as the estimate of the sources 

of the current distribution; and 

2. will include the following 

disclosure: 

(a) ‘‘You should not draw any 

conclusions about the fund’s investment 

performance from the amount of this 

distribution or from the terms of the 

fund’s Plan’’; 

(b) ‘‘The fund estimates that it has 

distributed more than its income and 

net realized capital gains; therefore, a 

portion of your distribution may be a 

return of capital. A return of capital may 

occur for example, when some or all of 

the money that you invested in the fund 

is paid back to you. A return of capital 

distribution does not necessarily reflect 

the fund’s investment performance and 

should not be confused with ‘yield’ or 

‘income’’’; 4 and 

(c) ‘‘The amounts and sources of 

distributions reported in this Notice are 

only estimates and are not being 

provided for tax reporting purposes. The 

actual amounts and sources of the 

amounts for [accounting and] tax 

reporting purposes will depend upon 

the fund’s investment experience during 

the remainder of its fiscal year and may 

be subject to changes based on tax 

regulations. The fund will send you a 

Form 1099–DIV for the calendar year 

that will tell you how to report these 

distributions for federal income tax 

purposes.’’ 

Such disclosure shall be made in a 

type size at least as large as and as 

prominent as any other information in 

the Notice and placed on the same page 

in close proximity to the amount and 

the sources of the distribution. 

B. On the inside front cover of each 

report to shareholders under rule 30e– 

1 under the Act, the fund will: 

1. Describe the terms of the Plan 

(including the fixed amount or fixed 

percentage of the distributions and the 

frequency of the distributions); 

2. include the disclosure required by 

condition II.A.2.a above; 

3. state, if applicable, that the Plan 

provides that the Board may amend or 

terminate the Plan at any time without 

prior notice to fund shareholders; and 

4. describe any reasonably foreseeable 

circumstances that might cause the fund 

to terminate the Plan and any 

reasonably foreseeable consequences of 

such termination. 

C. Each report provided to 

shareholders under rule 30e–1 and in 

each prospectus filed with the 

Commission on Form N–2 under the 

Act, will provide the fund’s total return 

in relation to changes in NAV in the 

financial highlights table and in any 

discussion about the fund’s total return. 

III. Disclosure to Shareholders, 

Prospective Shareholders and Third 

Parties 

A. The fund will include the 

information contained in the relevant 

Notice, including the disclosure 

required by condition II.A.2 above, in 

any written communication (other than 

a Form 1099) about the Plan or 

distributions under the Plan by the 

fund, or agents that the fund has 

authorized to make such 

communication on the fund’s behalf, to 

any fund common shareholder, 

prospective common shareholder or 

third-party information provider; 

B. The fund will issue, 

contemporaneously with the issuance of 

any Notice, a press release containing 

the information in the Notice and will 

file with the Commission the 

information contained in such Notice, 

including the disclosure required by 

condition II.A.2 above, as an exhibit to 

its next filed Form N–CSR; and 

C. The fund will post prominently a 

statement on its (or the Adviser’s) Web 

site containing the information in each 

Notice, including the disclosure 

required by condition II.A.2 above, and 

will maintain such information on such 

Web site for at least 24 months. 

IV. Delivery of 19(a) Notices to 

Beneficial Owners 

If a broker, dealer, bank or other 

person (‘‘financial intermediary’’) holds 

common stock issued by the fund in 

nominee name, or otherwise, on behalf 

of a beneficial owner, the fund: (a) Will 

request that the financial intermediary, 

or its agent, forward the Notice to all 

beneficial owners of the fund’s shares 

held through such financial 

intermediary; (b) will provide, in a 

timely manner, to the financial 

intermediary, or its agent, enough 

copies of the Notice assembled in the 

form and at the place that the financial 

intermediary, or its agent, reasonably 

requests to facilitate the financial 

intermediary’s sending of the Notice to 

each beneficial owner of the fund’s 

shares; and (c) upon the request of any 

financial intermediary, or its agent, that 

receives copies of the Notice, will pay 

the financial intermediary, or its agent, 

the reasonable expenses of sending the 

Notice to such beneficial owners. 

V. Additional Board Determinations for 

Funds Whose Shares Trade at a 

Premium 

If: 

A. The fund’s common shares have 

traded on the exchange that they 

primarily trade on at the time in 

question at an average premium to NAV 

equal to or greater than 10%, as 

determined on the basis of the average 

of the discount or premium to NAV of 

the fund’s common shares as of the 

close of each trading day over a 12-week 

rolling period (each such 12-week 

rolling period ending on the last trading 

day of each week); and 

B. The fund’s annualized distribution 

rate for such 12-week rolling period, 

expressed as a percentage of NAV as of 

the ending date of such 12-week rolling 

period, is greater than the fund’s average 

annual total return in relation to the 

change in NAV over the 2-year period 

ending on the last day of such 12-week 

rolling period; then: 

1. At the earlier of the next regularly 

scheduled meeting or within four 

months of the last day of such 12-week 

rolling period, the Board including a 

majority of the Independent Directors: 

(a) Will request and evaluate, and the 

Adviser will furnish, such information 

1734 Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Notices 

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. 

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

2 17 CFR 240.19b–4. 

as may be reasonably necessary to make 

an informed determination of whether 

the Plan should be continued or 

continued after amendment; 

(b) will determine whether 

continuation, or continuation after 

amendment, of the Plan is consistent 

with the fund’s investment objective(s) 

and policies and in the best interests of 

the fund and its shareholders, after 

considering the information in 

condition V.B.1.a above; including, 

without limitation: 

(1) Whether the Plan is accomplishing 

its purpose(s); 

(2) the reasonably foreseeable effects 

of the Plan on the fund’s long-term total 

return in relation to the market price 

and NAV of the fund’s common shares; 

and 

(3) the fund’s current distribution 

rate, as described in condition V.B 

above, compared to with the fund’s 

average annual total return over the 2- 

year period, as described in condition 

V.B, or such longer period as the board 

deems appropriate; and 

(c) based upon that determination, 

will approve or disapprove the 

continuation, or continuation after 

amendment, of the Plan; and 

2. The Board will record the 

information considered by it and the 

basis for its approval or disapproval of 

the continuation, or continuation after 

amendment, of the Plan in its meeting 

minutes, which must be made and 

preserved for a period of not less than 

six years from the date of such meeting, 

the first two years in an easily accessible 

place. 

VI. Public Offerings 

The fund will not make a public 

offering of the fund’s common shares 

other than: 

A. a rights offering below NAV to 

holders of the fund’s common stock; 

B. an offering in connection with a 

dividend reinvestment plan, merger, 

consolidation, acquisition, spin-off or 

reorganization of the fund; or 

C. an offering other than an offering 

described in conditions VI.A and VI.B 

above, unless, with respect to such other 

offering: 

1. the fund’s average annual 

distribution rate for the six months 

ending on the last day of the month 

ended immediately prior to the most 

recent distribution declaration date,5

expressed as a percentage of NAV per 

share as of such date, is no more than 

1 percentage point greater than the 

fund’s average annual total return for 

the 5-year period ending on such date; 6

and 

2. the transmittal letter accompanying 

any registration statement filed with the 

Commission in connection with such 

offering discloses that the fund has 

received an order under section 19(b) to 

permit it to make periodic distributions 

of long-term capital gains with respect 

to its common stock as frequently as 

twelve times each year, and as 

frequently as distributions are specified 

in accordance with the terms of any 

outstanding preferred stock that such 

fund may issue. 

VII. Amendments to Rule 19b–1 

The requested relief will expire on the 

effective date of any amendment to rule 

19b–1 that provides relief permitting 

certain closed-end investment 

companies to make periodic 

distributions of long-term capital gains 

with respect to their outstanding 

common stock as frequently as twelve 

times each year. 

For the Commission, by the Division of 

Investment Management, under delegated 

authority. 

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–416 Filed 1–12–09; 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, Pub. L. 94–409, that the 

Securities and Exchange Commission 

will hold a Closed Meeting on 

Thursday, January 15, 2009 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 closed session. 

The subject matter of the Closed 

Meeting scheduled for Thursday, 

January 15, 2009 will be: 

formal orders of investigation; 

institution and settlement of injunctive 

actions; 

institution and settlement of 

administrative proceedings of an 

enforcement nature; 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: January 8, 2009. 

Elizabeth M. Murphy, 

Secretary. 

[FR Doc. E9–462 Filed 1–12–09; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59211; File No. SR–BSE– 

2008–56] 

Self-Regulatory Organizations; Boston 

Stock Exchange, Inc.; Notice of Filing 

of Proposed Rule Change Relating to 

BOX Rules Governing Doing Business 

With the Public 

January 7, 2009. 

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

Securities Exchange Act of 1934 

(‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on December 

9, 2008, the Boston Stock Exchange, Inc. 

(‘‘BSE’’ or ‘‘Exchange’’) filed with the 

Securities and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I, II, and 

III below, which Items have been 

substantially prepared by the selfregulatory 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 amend 

Chapter XI of the Boston Options 

Exchange (‘‘BOX’’) Rules by replacing 

the term ‘‘Registered Options and 

Security Futures Principal’’ (‘‘ROSFP’’) 

with ‘‘Registered Options Principal’’ 

(‘‘ROP’’), to modify the confirmation 

disclosure requirements to remain