No-Action Letter under:
Securities Exchange Act of 1934 - Rule 14a-8(b) and 14a-8(f)
Asia Tiger Fund, Inc.
January 31, 2002
Via First Class Mail
Cynthia G. Cobden, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
Re: The Asia Tigers Fund, Inc. (the "Fund")
Shareholder Proposals submitted by Analytical Asset Management, L.L.C.
Dear Ms. Cobden:
In letters dated October 23, 2001, and January 9, 2002, you requested confirmation that we would not recommend enforcement action to the Commission if the Fund omits from its proxy soliciting material for its 2002 annual meeting of shareholders (the "Proxy Materials") three shareholder proposals (the "Proposals") submitted by Analytical Asset Management, L.L.C. (the "Analytical"). The Proposals relate to 1) replacing the Fund's investment manager and its subsidiaries; 2) liquidating the Fund; and 3) nominating two candidates for election to the Fund's Board of Directors.
In support of your request, you assert that the Proposals may be omitted pursuant to Rule 14a-8 under the Securities Exchange Act of 1934 for failure to comply with, among other things, the information and eligibility requirements of Rule 14a-8(b)(1) and (b)(2).
Background
Your October 23 letter states that on September 12, 2001, the Fund received, under cover of one facsimile transmittal sheet, the Proposals and corresponding supporting statements. Also included in the facsimile transmission were separate cover letters, preceding each of the Proposals, signed either by one person, different persons or by the same person signing in different capacities. You indicate that on September 25, 2001, the Fund sent a notice to Analytical advising it that the submission apparently contained procedural and eligibility deficiencies. According to the Fund, Analytical failed to respond to the notice. In your October 23 letter, you requested confirmation that we would not recommend enforcement action to the Commission if the Fund omits the Proposals from its Proxy Materials.
We advised you that, because one or more of the Proposals may have, in fact, been submitted not by one proponent but, possibly by two or three separate proponents, separate notices should be sent to each of the potential proponents (the "Potential Proponents"). Your January 9, 2002 letter included copies of the separate notices that the Fund sent to the Potential Proponents on December 6, 2001. The notices asked for clarification of the identity of each Proposal's proponent and also set forth the potential procedural and eligibility deficiencies of the Proposals. You state that none of the Potential Proponents have responded to the December 6 notices.
You represent that none of the Potential Proponents is a registered owner of the Fund's securities. You contend that the Proposals may be excluded because, among other things, pursuant to the requirements of Rule 14a-8(b)(2), the Potential Proponents have not shown that they meet the Rule 14a-8(b)(1) eligibility requirements. Under Rule 14a-8 (f) (1), a company may exclude a proposal where the proponent fails to meet the eligibility requirements if the company, within 14 calendar days of receipt of the proposal, notifies the proponent in writing of any deficiency, and the proponent fails to address the deficiency within 14 days of receipt of the company's letter.
Conclusion
The Division will not recommend enforcement action to the Commission if the Fund excludes the Proposals from its Proxy Materials in reliance upon Rules 14a-8(b) and 14a-8(f). We note that the Potential Proponents appear to have failed to supply, within 14 days after receipt of the Fund's request, documentary support sufficiently evidencing that any of them satisfied the minimum ownership requirements for the one year period required by Rule 14a-8(b). Because our position is based upon the facts recited in your letters, different facts or conditions or additional facts or conditions may require a different conclusion. Further, this response only expresses our position on enforcement action under Rule 14a-8 and does not express any legal conclusion on the issues presented. In considering your request, we have not found it necessary to reach the other bases for omission upon which you rely.
In connection with the foregoing, your attention is directed to the attachment that sets forth a brief discussion of the Division's procedures regarding shareholder proposals.
Sincerely,
Dominic J. Minore
Senior Counsel
Attachment
cc: Analytical Asset Management, L.L.C.
1124 South Braddock Avenue, Suite B
Pittsburgh, PA 15218
Attention: Mr. Henry Laurent, Chief Investment Officer
Mr. Henry Laurent
c/o Analytical Asset Management, L.L.C.
1124 South Braddock Avenue, Suite B
Pittsburgh, PA 15218
Dr. Gunduz Caginalp
1124 South Braddock Avenue, Suite B
Pittsburgh, PA 15218
Incoming Letter - 1
212-455-7744
C_Cobden@stblaw.com
Via Federal Express
January 9, 2002
Re: The Asia Tigers Fund, Inc. - Omission
of Shareholder Proposals in Proxy Material Pursuant
to Rule 14a-8 of the Securities and Exchange Act of 1934
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Attention: Office of Disclosure and Review, Division of Investment Management
Ladies and Gentlemen:
As counsel to The Asia Tigers Fund, Inc. (the "Fund"), we are writing in connection with our letter to you dated October 23, 2001, in which we seek confirmation that the Staff (the "Staff") of the Securities and Exchange Commission will not recommend enforcement action if the Fund omits from its proxy statement and form of proxy for its 2002 Annual Meeting of Stockholders (the "Proxy Materials") the three stockholder proposals and supporting statements (together, the "Proposals") submitted to the Fund in a September 12, 2001 facsimile from Analytical Asset Management, L.L.C. ("Analytical"). Pursuant to Rule 14a-8(j)(2) under the Securities Exchange Act of 1934 (the "1934 Act"), enclosed are six copies of each of the following:
- this letter;
- the Fund's December 6, 2001 letter to Analytical pursuant to Rule 14a-8(f), which sets forth the procedural and eligibility deficiencies of the Proposals (attached as Exhibit A);
- the Fund's December 6, 2001 letter to Mr. Henry F. Laurent pursuant to Rule 14a-8(f), which sets forth the procedural and eligibility deficiencies of the Proposals (attached as Exhibit B);
- the Fund's December 6, 2001 letter to Dr. Gunduz Caginalp pursuant to Rule 14a-8(f), which sets forth the procedural and eligibility deficiencies of the Proposals (attached as Exhibit C);
At the request of Domenic Minore, the Fund notified each of Analytical, Mr. Laurent and Dr. Caginalp separately of the procedural and eligibility deficiencies identified by the Fund (as described in detail below). Each letter was delivered by overnight mail on December 11, 2001. (A copy of each delivery confirmation is attached as Exhibit D). To date, none of Analytical, Mr. Laurent or Dr. Caginalp have responded to any of the Fund's letters. Because each of Analytical, Mr. Laurent and Dr. Caginalp has failed to cure the procedural and eligibility defects within the time period prescribed by Rule 14a-8(f)(1), we believe the Fund may exclude the Proposals from the Fund's Proxy Materials.
Bases of Exclusion
I. Rule 14a-8(b) — Requisite Ownership and Intent to Continue Ownership
Rule 14a-8(b) provides that in order for a stockholder to be eligible to submit a proposal for inclusion in the Fund's proxy, he must have continuously held at least $2,000, or 1%, of a Fund's securities for at least one year by the date it submitted the proposal. However, because none of Analytical, Mr. Laurent or Dr. Caginalp are registered owners of the Fund's securities, each is required to provide evidence of such ownership as set forth under Rule 14a-8(b)(2). Additionally, each of Analytical, Mr. Laurent and Dr. Caginalp must provide the Fund with a written statement that it/he will continue to hold the securities through the date of the Fund's 2002 Annual Meeting of Stockholders. Each of Analytical, Mr. Laurent and Dr. Caginalp has failed to satisfy these requirements. Accordingly, we believe the Proposals may be excluded under Rule 14a-8(b).
II. Rule 14a-8(c) — Submission Of More Than One Proposal
Rule 14a-8(c) limits a shareholder to one proposal for a particular shareholders meeting. As noted above, Analytical's September 12, 2001 facsimile contains three separate proposals for inclusion in the Fund's Proxy Materials. Because it is not clear who the proponent(s) of each of the Proposals is (are), in its December 6, 2001 letter, the Fund asked each of Analytical, Mr. Laurent and Dr. Caginalp to confirm which of the Proposals each intended to submit and indicated that it would carefully consider the proposal(s). However, the Fund has not received any responses to its December 6, 2001 letters and, therefore, we believe that the Proposals may be excluded under Rule 14a-8(c).
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In accordance with Rule 14a-8(j) under the 1934 Act, the Fund is contemporaneously notifying each of Analytical, Mr. Laurent and Dr. Caginalp by copy of this letter, of its intention to omit the Proposals from the Fund's Proxy Materials.
On behalf of the Fund, we hereby respectfully request that the Staff express its intention not to recommend enforcement action if the Proposals are excluded from the Fund's Proxy Materials for the reasons set forth above. If the Staff disagrees with the Fund's conclusions regarding omission of the Proposals, or if any additional submissions are desired in support of the Fund's position, we would appreciate an opportunity to speak to you by telephone prior to the issuance of the Staff's Rule 14a-8(j) response. If you have any questions regarding this request, or need any additional information, please telephone the undersigned at (212) 455-7744.
Please acknowledge receipt of this letter and the enclosed materials by stamping the enclosed copy of this letter and returning it to us in the pre-paid and addressed envelope provided herein.
Very truly yours,
Cynthia G. Cobden
Enclosures
cc: Mr. Domenic Minore (via facsimile)
Exhibit A
The Fund's December 6, 2001 Letter to Analytical Asset Management, L.L.C.
Exhibit B
The Fund's December 6, 2001 Letter to Mr. Henry F. Laurent
Exhibit C
The Fund's December 6, 2001 Letter to Dr. Gunduz Caginalp
Exhibit D
UPS Delivery Confirmations
Incoming Letter - 2
212-455-7744
C_Cobden@stblaw.com
Via Federal Express
October 23, 2001
Re: The Asia Tigers Fund, Inc. - Omission
of Shareholder Proposal in Proxy Material Pursuant
to Rule 14a-8 of the Securities and Exchange Act of 1934
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Attention: Office of Disclosure and Review, Division of Investment Management
Ladies and Gentlemen:
As counsel to The Asia Tigers Fund, Inc. (the "Fund"), a closed-end, non-diversified management investment company registered under the Investment Company Act of 1940 (the "1940 Act"), we are writing to seek confirmation that the Staff (the "Staff") of the Securities and Exchange Commission will not recommend enforcement action if the Fund omits from its proxy statement and form of proxy for its 2002 Annual Meeting of Stockholders (the "Proxy Materials") the three stockholder proposals and supporting statements (together, the "Proposals") submitted to the Fund in a September 12, 2001 facsimile from Analytical Asset Management, L.L.C., 1124 South Braddock Avenue, Suite B, Pittsburgh, PA 15218 ("Analytical"). Pursuant to Rule 14a-8(j)(2) under the Securities Exchange Act of 1934 (the "1934 Act"), enclosed are six copies of each of the following:
- this letter;
- the Fund's September 25, 2001 letter to Analytical pursuant to Rule 14a-8(f), which sets forth the procedural and eligibility deficiencies of the Proposals (attached as Exhibit A);
- Analytical's September 12, 2001 facsimile, which contains the Proposals (attached as Exhibit B).
The Fund expects to file its definitive Proxy Materials in January and intends to omit the Proposal for the reasons set forth herein.
Introduction
The Fund received Analytical's Proposals by a single facsimile on September 12, 2001,1 which was signed by Mr. Henry F. Laurent, Chief Investment Officer of Analytical. In its facsimile, Analytical submitted three proposals which, briefly summarized, are as follows: (1) termination of the Fund's investment manager; (2) nomination of Mr. Laurent and Dr. Gunduz Caginalp as candidates for the Board of Directors of the Fund; and (3) liquidation of the Fund.
Upon receipt of Analytical's facsimile, the Fund reviewed the Proposals and identified a number of procedural and eligibility deficiencies which are described in detail below.
By letter dated September 25, 2001, the Fund notified Analytical of these procedural and eligibility deficiencies. The letter was delivered by overnight mail and signed for by M. Thomas on September 26, 2001. (A copy of the delivery confirmation is attached as Exhibit C). To date, Analytical has not responded to the Fund's letter. Because Analytical has failed to cure its procedural and eligibility defects within the time period prescribed by Rule 14a-8(f)(1), we believe the Fund may exclude the Proposals from the Fund's Proxy Materials.
Bases of Exclusion
III. Rule 14a-8(b) — Requisite Ownership and Intent to Continue Ownership
Rule 14a-8(b) provides that in order for Analytical to be eligible to submit a proposal for inclusion in the Fund's proxy, it must have continuously held at least $2,000, or 1%, of a Fund's securities for at least one year by the date it submitted the Proposals. However, because Analytical is not a registered owner of the Fund's securities, it is required to provide evidence of such ownership as set forth under Rule 14a-8(b)(2).2 Additionally, Analytical must provide the Fund with a written statement that it will continue to hold the securities through the date of the Fund's 2002 Annual Meeting of Stockholders.
Analytical has failed to satisfy either of these requirements under Rule 14a-8(b). In its September 25, 2001 letter, the Fund requested Analytical provide written proof of the requisite ownership of the Fund's securities and a written statement of its intent to continue ownership of the Fund's securities. To date, the Fund has not received a response from Analytical with respect to these requirements. Accordingly, we believe the Proposals may be excluded under Rule 14a-8(b).
IV. Rule 14a-8(c) — Submission Of More Than One Proposal
Rule 14a-8(c) limits a shareholder to one proposal for a particular shareholders meeting. As noted above, Analytical's September 12, 2001 facsimile contains three separate proposals for inclusion in the Fund's Proxy Materials. On September 25, 2001, the Fund notified Analytical of this one proposal limitation, and indicated that it would carefully consider any single proposal Analytical might chose to resubmit. However, Analytical has not responded to the Fund's September 25, 2001 letter and, therefore, we believe that the Analytical's Proposals may be excluded under Rule 14a-8(c).
V. Rule 14a-8(d) — More Than 500 Words
Rule 14a-8(d) provides that a "proposal, including any accompanying supporting statement, may not exceed 500 words." Analytical's proposals, in aggregate, exceed this limitation. By its September 25, 2001 letter, the Fund advised Analytical that it could not act upon Analytical's Proposals, as written, because they exceeded the 500 word limitation. Because Analytical has failed to respond to the Fund's letter, we believe that Analytical's Proposals may also be excluded under Rule 14a-8(d).
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In accordance with Rule 14a-8(j) under the 1934 Act, the Fund is contemporaneously notifying Analytical, by copy of this letter, of its intention to omit the Proposals from the Fund's Proxy Materials.
On behalf of the Fund, we hereby respectfully request that the Staff express its intention not to recommend enforcement action if the Proposals are excluded from the Fund's Proxy Materials for the reasons set forth above. If the Staff disagrees with the Fund's conclusions regarding omission of the Proposals, or if any additional submissions are desired in support of the Fund's position, we would appreciate an opportunity to speak to you by telephone prior to the issuance of the Staff's Rule 14a-8(j) response. If you have any questions regarding this request, or need any additional information, please telephone the undersigned at (212) 455-7744.
Please acknowledge receipt of this letter and the enclosed materials by stamping the enclosed copy of this letter and returning it to us in the pre-paid and addressed envelope provided herein.
Very truly yours,
Cynthia G. Cobden
Enclosure
Exhibit A
The Fund's September 25, 2001 Letter
Exhibit B
Analytical's Proposals
Exhibit C
Fedex Delivery Confirmation
Endnotes
1 We note that the letter was improperly addressed to the fund at "One World Trade Center" rather than to its proper address at "One World Financial Center," however the letter was subsequently forwarded to the fund.
2 Similarly, neither Mr. Laurent nor Dr. Caginalp are registered owners of Fund securities.
http://www.sec.gov/divisions/investment/noaction/asiatiger013102.htm
