Securities and Exchange Commission (“Commission”).
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 The Mexico Fund, Inc., a closed-end investment company, to make periodic distributions of long-term capital gains with respect to its outstanding common stock as frequently as twelve times each year.
Applicants: The Mexico Fund, Inc. (“Fund”) and Impulsora del Fondo Mexico, S.C. (“Adviser”).
Filing Dates: November 21, 2007, June 26, 2008, and July 14, 2008. Applicants have agreed to file an amendment during the notice period, the substance of which is reflected in the notice.
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 August 11, 2008, 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.
Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants, Sander Bieber, Esq., Dechert LLP, 1775 I Street, NW., Washington, DC 20006.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Wendy Friedlander, Senior Counsel, at (202) 551-6837, or James M. Curtis, Start Printed Page 43271Branch Chief, at (202) 551-6825 (Division of Investment Management, Office of Chief Counsel).End Further Info End Preamble Start Supplemental Information
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549-1520 (telephone (202) 551-5850).
Applicants represent that they will comply with the representations and conditions in this Application before they rely on the order requested.
1. Applicants represent that the Fund is a registered closed-end investment company registered under the Act. The Fund's investment objective is long-term capital appreciation. The common stock issued by the Fund is listed on the New York Stock Exchange. The Fund has not issued preferred stock. Applicants believe that the Fund's stockholders include investors who desire steady distributions of cash and who will appreciate that the Fund wishes to implement a practice of providing regular distributions pursuant to a plan of distribution as described below.
2. Applicants represent that the Adviser, which is organized as a Mexican “sociedad civil” governed by the Federal Civil Code of Mexico, is registered under the Investment Advisers Act of 1940. The Adviser is responsible for the overall management of the Fund and currently has no investment advisory clients other than the Fund.
3. Applicants represent that the Fund's Board of Directors (“Board”), including a majority of the directors who are not interested persons, as defined in section 2(a)(19) of the Act (each an “Independent Director”), will adopt a plan (“Plan”) to make periodic level distributions with respect to its common stock, based upon a fixed percentage of the Fund's net asset value (“NAV”) or market price per share of its common stock or at least a minimum fixed dollar amount per year. Applicants represent that the Board will request, and the Adviser will provide, such information as is reasonably necessary to an informed determination of whether the Board should adopt the Plan. In particular, the Board and the Independent Directors will review information regarding the purpose and terms of the Plan, the likely effects of the Plan on the Fund's long-term total return (in relation to market price and NAV per common share) and the relationship between the Fund's distribution rate on its common stock under the Plan and the Fund's total return (in relation to NAV per share); whether the rate of distribution would exceed the Fund's expected total return in relation to its NAV per share; and any foreseeable material effects of such Plan on the Fund's long-term total return (in relation to market price and NAV per share). The Independent Directors also will consider what conflicts of interest the Adviser and the affiliated persons of the Adviser and the Fund might have with respect to the adoption or implementation of such Plan. Applicants represent that after considering such information the Board, including the Independent Directors, will approve the Plan with respect to the Fund's common stock provided that the Board, including the Independent Directors, determine that the Plan is consistent with the Fund's investment objectives and in the best interests of the Fund's common stockholders.
4. Applicants represent that the purpose of the Plan would be to permit the Fund to provide its stockholders with a level, periodic distribution. Applicants represent that under the Plan, the Fund would distribute to its common stockholders a fixed percentage of the market price of the Fund's common stock or a fixed percentage of NAV per share or a fixed amount per share which percentage or amount may be adjusted from time to time. Applicants state that the minimum annual distribution rate with respect to the Fund's common stock under the Plan would be independent of the Fund's performance during any particular period but would be expected to correlate with the Fund's performance over time. Applicants explain that each distribution on the common stock 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 expect that over time the NAV distribution rate with respect to the Fund's common stock will approximately equal the Fund's total return on NAV.
5. Applicants state that the Board also will adopt policies and procedures under rule 38a-1 under the Act that are reasonably designed to ensure that all notices sent to Fund stockholders with distributions under the Plan (“Notices”) comply with condition II below, and that all other written communications by the Fund or its agents regarding distributions under the Plan will include the disclosure required by condition III below. Applicants state that the Board also will adopt policies and procedures that will require the Fund to keep records that demonstrate the Fund's compliance with all of the conditions of the requested order and that are necessary for the Fund to form the basis for, or demonstrate the calculation of, the amounts disclosed in its Notice.
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 stockholders 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 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 state that the same information also is included in the Fund's annual reports to stockholders and on its IRS Form 1099-DIV, which is sent to each stockholder who received distributions during the year. Start Printed Page 43272
4. Applicants further state that the Fund will make the additional disclosures required by the conditions set forth below, and the Fund will adopt compliance policies and procedures in accordance with rule 38a-1 to ensure that all required Notices and disclosures are sent to stockholders. 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, the Fund would ensure that its stockholders 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 the Fund's compliance procedures and condition III set forth below will ensure that prospective stockholders and third parties are provided with the same information. Accordingly, applicants assert that continuing to subject the Fund to section 19(b) and rule 19b-1 would afford stockholders 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 Fund, which do not continuously distribute shares. According to Applicants, if the underlying concern extends to secondary market purchases of stock 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 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.
7. In addition, Applicants assert that rule 19b-1 may cause fixed regular periodic distributions under the Plan to be funded with returns of capital  (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 Fund to realize long-term capital gains as often as investment considerations dictate without fear of violating rule 19b-1.
8. 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 stock.
Applicants agree that 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's 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 Stockholders:
A. Each Notice to the holders of the Fund's common stock, 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 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 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 Start Printed Page 43273portion 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’ ”; 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 stockholders 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 stockholders; 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 stockholders 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 Stockholders, Prospective Stockholders 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 stockholder, prospective common stockholder 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 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 stock; 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 if the Fund's Common Stock Trades at a Premium:
A. The Fund's common stock has traded on the exchange it primarily trades 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 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 stockholders, 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 stock 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, expressed as a percentage of NAV per share as of such date, is no more than Start Printed Page 432741 percentage point greater than the fund's average annual total return for the 5-year period ending on such date; 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.
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.Start Signature
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Florence E. Harmon,
1. Returns of capital as used in the application means return of capital for financial accounting purposes and not for tax accounting purposes.Back to Citation
[FR Doc. E8-16867 Filed 7-23-08; 8:45 am]
BILLING CODE 8010-01-P