[Federal Register Volume 75, Number 125 (Wednesday, June 30, 2010)]
[Notices]
[Pages 37856-37860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15887]
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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 29331; File No. 812-13218]
Lazard Global Total Return and Income Fund, Inc., et al.; Notice
of Application
June 24, 2010.
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: Lazard Global Total Return and Income Fund, Inc.
(``LGI''), Lazard World Dividend & Income Fund, Inc. (``LOR'') (each, a
``Fund'') and Lazard Asset Management LLC (the ``Investment Adviser'').
Filing Dates: The application was filed on July 25, 2005 and
amended on
[[Page 37857]]
July 15, 2009, September 3, 2009, May 5, 2010 and June 8, 2010.
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 July 20, 2010, 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, 30 Rockefeller Plaza, New
York, New York 10112-6300, Contact: Brian D. Simon, Esq.
FOR FURTHER INFORMATION CONTACT: Emerson S. Davis, Senior Counsel, at
(202) 551-6868, or Julia K. Gilmer, 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. Each of LGI and LOR is a closed-end management investment
company registered under the Act.\1\ LGI's investment objective is
total return, consisting of capital appreciation and income. LOR's
investment objective is total return through a combination of
dividends, income and capital appreciation. The common shares issued by
LGI and LOR are listed on the NYSE. As of the date of the application,
LGI and LOR did not intend to issue any shares of preferred stock.
Applicants believe that the shareholders of LGI and LOR are generally
conservative, dividend-sensitive investors who desire current income
periodically.
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\1\ All existing registered closed-end investment companies that
currently intend to rely on the requested order are named as
applicants. Applicants request that the order also apply to each
registered closed-end investment company that in the future is
advised by the Investment Adviser (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 the Investment Adviser. Any closed-end investment company that
relies on the requested order in the future will comply with the
terms and conditions of the order and will satisfy each of the
representations in the application except that such representations
will be made in respect of actions by the board of trustees or
directors of such future fund and will be made at a future time.
LGI, LOR and as the context requires, such future funds, are
collectively referred to as the ``Funds'' and separately as a
``Fund''. A successor in interest is limited to an entity that
results from a reorganization into another jurisdiction or a change
in the type of business organization.
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2. The Investment Adviser, a subsidiary of Lazard Fr[egrave]res &
Co., is registered as an investment adviser under the Investment
Advisers Act of 1940. The Investment Adviser serves as investment
adviser to LGI and LOR.
3. Applicants state that on June 2, 2009 and August 20, 2009,
respectively, the boards of directors of LGI and LOR (each, a
``Board''), including a majority of the members of each Board who are
not ``interested persons'' as defined in section 2(a)(19) of the Act
(the ``Independent Directors''), reviewed information regarding the
purpose and terms of a proposed distribution policy, the relationship
between LGI's or LOR's distribution rate on its common shares under the
policy and its total return (in relation to net asset value per share),
whether the rate of distribution would exceed LGI's or LOR's expected
total return in relation to its net asset value per share and any
reasonably foreseeable material effects of such policy on LGI's or
LOR's long-term total return (in relation to market price and net asset
value per share). Applicants state that the Independent Directors of
LGI and LOR also considered what conflicts of interest the Investment
Adviser and the affiliated persons of the Investment Adviser and LGI
and LOR might have with respect to the adoption or implementation of
such policy. Applicants further state that after considering such
information, the Board, including the Independent Directors, approved a
distribution policy with respect to each of LGI's and LOR's common
shares (each a ``Plan'') and determined that such Plan is in the best
interests of each respective Fund's common shareholders.
4. Applicants state that the purpose of LGI's and LOR's Plans is to
make fixed periodic distributions to provide steady cash flow to LGI's
and LOR's shareholders. Under each Plan, each of LGI and LOR would
distribute to its respective common shareholders a periodic, level
distribution as frequently as monthly, based on a fixed amount per
share, a fixed percentage of market price or a fixed percentage of the
Fund's net asset value per common share, any of which may be adjusted
from time to time. Applicants state that the minimum annual
distribution rate with respect to LGI's and LOR's common stock would be
independent of performance during any particular period but would be
expected to correlate with such Fund's performance over time.
Applicants further explain that each distribution on the common shares
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 (``Code'')
for the calendar year.
5. Prior to a Fund relying on the Order, the Fund's Board,
including a majority of its Independent Directors, will adopt policies
and procedures under rule 38a-1 under the Act that (a) are reasonably
designed to ensure that all notices sent to the Fund's shareholders
pursuant to section 19(a) of the Act, rule 19a-1 under the Act and
condition IV below (each a ``19(a) Notice'') include the disclosure
required by rule 19a-1 under the Act and by condition II.A. below, and
that all other written communications by the Fund or its agents
regarding distributions under the Fund's Plan include the disclosure
required by condition III.A. below and (b) that require each Fund to
keep records that demonstrate its compliance with all of the conditions
of the requested 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
[[Page 37858]]
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 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 a separate statement showing the sources of a
distribution (e.g., estimated net income, net short-term capital gains,
net long-term capital gains and/or return of capital) accompany any
distributions (or the confirmation of the reinvestment of
distributions) estimated to be sourced in part from capital gains or
capital. Applicants also state that the same information is, or will
be, included in each Fund's annual report to shareholders and on its
IRS Form 1099-DIV, which is sent to each common and preferred
shareholder who received distributions during a particular year
(including shareholders who have sold shares 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 will adopt compliance policies and procedures in
accordance with rule 38a-1 under the Act to ensure that all 19(a)
Notices and disclosures are sent to shareholders. Applicants argue that
rule 19a-1, the Plans and the compliance policies 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. Applicants also
state that compliance with each Fund's compliance procedures and
condition III set forth below will ensure that prospective shareholders
and third parties are provided with the same information. Accordingly,
applicants assert that continuing to subject the Funds to section 19(b)
and rule 19b-1 would afford shareholders no extra protection.
5. Applicants note that section 19(b) and rule 19b-1 also were
intended to prevent certain improper sales practices, including, in
particular, the practice of urging an investor to purchase shares of a
fund on the basis of an upcoming capital gains dividend (``selling the
dividend''), where the dividend would result in an immediate
corresponding reduction in NAV and would be in effect a taxable return
of the investor's capital. Applicants assert that the ``selling the
dividend'' concern should not apply to closed-end investment companies,
such as the Funds, which do not continuously distribute shares.
According to applicants, if the underlying concern extends to secondary
market purchases of shares of 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 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 if the Fund is permitted to pay relatively frequent dividends
on their common shares at a consistent rate, whether or not those
dividends contain an element of long-term capital gain.
7. Applicants assert that the application of rule 19b-1 to a Plan
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 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 normal and efficient operation of
a periodic distribution plan whenever that fund's realized net long-
term capital gains in any year exceed the total of the periodic
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 realized net long-term capital gains
otherwise could be available. To distribute all of a fund's long-term
capital gains within the limits in rule 19b-1, a fund may be required
to make total distributions in excess of the annual amount called for
by its periodic distribution plan, or to retain and pay taxes on the
anomalous 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
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
[[Page 37859]]
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.
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 to make periodic capital gain distributions (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 the order of the Commission granting the
requested relief will be subject to the following conditions:
I. 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.
II. Disclosures to Fund Shareholders: A. Each 19(a) Notice
disseminated to the holders of the Fund's common shares, in addition to
the information required by section19(a) and rule 19a-1:
1. Will provide, in a tabular or graphical format:
(a) The amount of the distribution, on a per common share basis,
together with the amounts of such distribution amount, on a per common
share basis and as a percentage of such distribution amount, from
estimated: (A) Net investment income; (B) net realized short-term
capital gains; (C) net realized long-term capital gains; and (D) return
of capital or other capital source;
(b) The fiscal year-to-date cumulative amount of distributions, on
a per common share basis, together with the amounts of such cumulative
amount, on a per common share basis and as a percentage of such
cumulative amount of distributions, from estimated: (A) Net investment
income; (B) net realized short-term capital gains; (C) net realized
long-term capital gains; and (D) return of capital or other capital
source;
(c) The average annual total return in relation to the change in
NAV for the 5-year period (or, if the Fund's history of operations is
less than five years, the time period commencing immediately following
the Fund's first public offering) ending on the last day of the month
ended immediately prior to the most recent distribution record date
compared to the current fiscal period's annualized distribution rate
expressed as a percentage of NAV as of the last day of the month prior
to the most recent distribution record date; and
(d) The cumulative total return in relation to the change in NAV
from the last completed fiscal year to the last day of the month prior
to the most recent distribution record date compared to the fiscal
year-to-date cumulative distribution rate expressed as a percentage of
NAV as of the last day of the month prior to the most recent
distribution record date.
Such disclosure shall be made in a type size at least as large and
as prominent as the estimate of the sources of the current
distribution; and
2. Will include the following disclosure:
(a) ``You should not draw any conclusions about the Fund's
investment performance from the amount of this distribution or from the
terms of the Fund's Plan'';
(b) ``The Fund estimates that it has distributed more than its
income and net realized capital gains; therefore, a portion of your
distribution may be a return of capital. A return of capital may occur,
for example, when some or all of the money that you invested in the
Fund is paid back to you. A return of capital distribution does not
necessarily reflect the Fund's investment performance and should not be
confused with `yield' or `income' '' \3\; and
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\3\ The disclosure in condition II.A.2.(b) will be included only
if the current distribution or the fiscal year-to-date cumulative
distributions are estimated to include a return of capital.
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(c) ``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:
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 each
prospectus filed with the Commission on Form N-2 under the Act, will
provide the Fund's total return in relation to changes in NAV in the
financial highlights table and in any discussion about the Fund's total
return.
III. Disclosure to Shareholders, Prospective Shareholders and Third
Parties: A. Each Fund will include the information contained in the
relevant 19(a) Notice, including the disclosure required by condition
II.A.2 above, in any written communication (other than a communication
on Form 1099) about the Plan or distributions under the Plan by the
Fund, or agents that the Fund has authorized to make such communication
on the Fund's behalf, to any Fund common shareholder, prospective
common shareholder or third-party information provider;
B. 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
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
Investment Adviser's) Web site containing the information in each 19(a)
Notice, including the disclosure required by condition II.A.2 above,
and will maintain such information on such Web site for at least 24
months.
IV. Delivery of 19(a) Notices to Beneficial Owners: If a broker,
dealer, bank or other person (``financial intermediary'') holds common
stock
[[Page 37860]]
issued by a Fund in nominee name, or otherwise, on behalf of a
beneficial owner, the Fund: (a) Will request that the financial
intermediary, or its agent, forward the 19(a) Notice to all beneficial
owners of the Fund's shares held through such financial intermediary;
(b) will provide, in a timely manner, to the financial intermediary, or
its agent, enough copies of the 19(a) Notice assembled in the form and
at the place that the financial intermediary, or its agent, reasonably
requests to facilitate the financial intermediary's sending of the
19(a) Notice to each beneficial owner of the Fund's shares; and (c)
upon the request of any financial intermediary, or its agent, that
receives copies of the 19(a) Notice, will pay the financial
intermediary, or its agent, the reasonable expenses of sending the
19(a) Notice to such beneficial owners.
V. Additional Board Determinations for Funds Whose Shares Trade at
a Premium: If: A. A 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 Investment Adviser will
furnish, such information as may be reasonably necessary to make an
informed determination of whether the Plan should be continued or
continued after amendment;
(b) Will determine whether continuation, or continuation after
amendment, of the Plan is consistent with the Fund's investment
objective(s) and policies and in the best interests of the Fund and its
shareholders, after considering the information in condition V.B.1.(a)
above; including, without limitation:
(1) Whether the Plan is accomplishing its purpose(s);
(2) The reasonably foreseeable material effects of the Plan on the
Fund's long-term total return in relation to the market price and NAV
of the Fund's common shares; and
(3) The Fund's current distribution rate, as described in condition
V.B above, compared with the Fund's average annual taxable income or
total return over the 2-year period, as described in condition V.B, or
such longer period as the Board deems appropriate; and
(c) Based upon that determination, will approve or disapprove the
continuation, or continuation after amendment, of the Plan; and
2. The Board will record the information considered by it,
including its consideration of the factors listed in condition
V.B.1.(b) above, and the basis for its approval or disapproval of the
continuation, or continuation after amendment, of the Plan in its
meeting minutes, which must be made and preserved for a period of not
less than six years from the date of such meeting, the first two years
in an easily accessible place.
VI. Public Offerings: A Fund will not make a public offering of the
Fund's common shares other than:
A. A rights offering below NAV to holders of the Fund's common
shares;
B. An offering in connection with a dividend reinvestment plan,
merger, consolidation, acquisition, spin-off or reorganization of the
Fund; or
C. An offering other than an offering described in conditions VI.A
and VI.B above, provided that, with respect to such other offering:
1. The Fund's 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
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; \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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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 by or determined in
accordance with the terms of any outstanding preferred stock that such
Fund may issue.
VII. 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. 2010-15887 Filed 6-29-10; 8:45 am]
BILLING CODE 8010-01-P