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No-Action Letter under:
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| 1 | The 2002 Annual Meeting is scheduled to be held within 30 calendar days of the anniversary of the 2001 annual stockholder's meeting, which was held February 16, 2001. |
| 2 | See Bull & Bear U.S. Government Securities Fund, Inc. (available October 8, 1998) (stockholder proposal received eighteen days after deadline may be omitted); Bristol-Myers Squibb Company (available February 5, 1998) (stockholder proposal received three days after deadline may be omitted); Peco Energy Company (available December 29, 1994) (stockholder proposal received one day after deadline may be omitted); Lockheed Corporation (available February 6, 1991) (stockholder proposal received one day after deadline may be omitted); Knight-Ridder, Inc. (available December 26, 1990) (stockholder proposal received one day after deadline may be omitted). |
DIRECT DIAL: (617) 951-7485
LFRASER@ROPESGRAY.COM
November 20, 2001
BY FEDERAL EXPRESS
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Attention: Office of Disclosure and Review, Division of Investment Management
Re: The Asia Tigers Fund Inc. -- Shareholder Proposal Submitted
Pursuant to Rule 14a-8 under the Securities Exchange Act of 1934
Ladies and Gentlemen:
As counsel to President and Fellows of Harvard College ("Harvard"), we are writing to respond to the letter to you dated November 15, 2001 from Cynthia G. Cobden of Simpson Thacher & Bartlett, a copy of which is attached hereto (the "Letter"). The Letter seeks your confirmation that the Securities and Exchange Commission will not recommend enforcement action if The Asia Tigers Fund Inc. (the "Fund") omits from its proxy statement and form of proxy for its 2002 Annual Meeting of Stockholders (the "Proxy Materials") a shareholder proposal and supporting statement (together, the "Proposal") submitted by Harvard to the Fund on October 31, 2001.
As described in the Letter, the proxy materials for the Fund's 2001 annual meeting of stockholders identified September 14, 2001 as the deadline for submitting shareholder proposals to be included in the Proxy Materials. Harvard intended to submit the Proposal to the Fund by hand on or about that date. However, following the tragic events of September 11, 2001, Harvard was unable to deliver the Proposal to the Fund's principal executive offices, which were located at One World Financial Center, 200 Liberty Street, New York, New York 10281.
Timothy W. Diggins of this office called the Securities and Exchange Commission on September 14, 2001 to discuss how Harvard should proceed. While he did not specifically mention Harvard or the Fund by name, Mr. Diggins described the situation to Mr. Jonathan Ingram and Mr. Michael Coco of the Staff of the Commission's Division of Corporate Finance. Messrs. Ingram and Coco told Mr. Diggins that, if an issuer's principal executive offices were located below 14th Street in New York City on September 11, 2001, and the deadline for submitting a shareholder proposal to that issuer under Rule 14a-8 under the Securities Exchange Act of 1934, as amended ("Rule 14a-8"), was on or after that date, then the proposal should be submitted to that issuer as soon as practicable after the announced relocation of the issuer's principal executive offices. Messrs. Ingram and Coco told Mr. Diggins that they had consulted with members of the Staff of the Division of Investment Management, who had expressed their general agreement with this view.
Harvard learned in October that the Fund's offices had been relocated to the offices of Simpson Thacher & Bartlett, 425 Lexington Avenue, Room 1303, New York, New York 10017-3954, and thereafter submitted the Proposal to that address.
Harvard was prepared to file the Proposal during the period between September 11 and September 14. It was physically unable to do so. In light of the severe dislocation caused by the events of September 11 and the fact that the Fund does not even intend to file definitive proxy materials until January, Harvard strongly urges the Commission Staff to deny the Fund's request. Harvard believes that the tragic events of September 11 should not be used to thwart shareholder democracy.
If you have any questions, or would like to receive any additional information, please feel free to contact the undersigned at (617) 951-7485.
A copy of this letter is being provided to the Fund by overnight courier. In accordance with Rule 14a-8(k), we are enclosing six additional copies of this letter. Please acknowledge receipt of this letter by stamping one of the enclosed copies and returning it to our courier.
Very truly yours,
Leigh R. Fraser
Enclosure
cc: The Asia Tigers Fund Inc.
c/o Simpson Thacher & Bartlett
425 Lexington Avenue, Room 1303
New York, New York 10017-3954
Ms. Cynthia G. Cobden
Mr. Jonathan Ingram
Mr. Michael Coco
Mr. Michael S. Pradko
Mr. Steven A. Alperin
Mr. Timothy W. Diggins
212-455-7744
C_Cobden@stblaw.com
VIA FEDERAL EXPRESS
November 28, 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"), we are writing to respond to the letter to you dated November 20, 2001 from Leigh R. Fraser of Ropes & Gray (the "Letter"). The Letter was submitted to you in response to our letter to you dated November 15, 2001, in which we seek confirmation that 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 stockholder proposal and supporting statement (the "Proposal") submitted to the Fund in an undated letter from the President and Fellows of Harvard College, c/o Harvard Management Company, Inc. ("Harvard") on October 31, 2001.
The Letter states that Harvard was prepared to file the Proposal during the period September 11 to September 14, 2001 and learned in October of the relocation of the Fund's offices and the change in the Fund's mailing address.
The Fund issued a press release on September 26, 2001 announcing the change in the Fund's mailing address due to the events that occurred in New York on September 11, 2001. Harvard's Proposal was submitted to the Fund on October 31, 2001, 35 days after the Fund's press release was issued. A copy of the Fund's press release announcing the change in the Fund's mailing address is attached as Exhibit A.
In addition, Advantage Advisers, Inc. ("Advantage Advisers"), the Fund's investment manager, has an office in Boston. Prior to September 11, 2001, Harvard directly contacted persons in the Boston office of Advantage Advisers, including the Fund's portfolio manager, in connection with the Fund. The operation of the Boston office of Advantage Advisers was unaffected by the events that occurred in New York on September 11, 2001. Harvard maintains that it intended to submit the Proposal to the Fund on or before September 14, 2001, but was "physically unable to do so." Nevertheless, we believe that, given the uncertainty created by the events of September 11, 2001, Harvard had two reasonable alternatives available. First, Harvard could have contacted the Fund at its temporary address promptly after the September 26 press release. Second, Harvard could have contacted any of the persons in the Boston office of Advantage Advisers with which Harvard was familiar and had previously communicated, promptly after September 11, 2001 in order to ask how to submit its Proposal in a timely manner to the Fund.
Accordingly, we continue to believe that Harvard's Proposal is untimely and should be excluded from the Fund's Proxy Materials.
If you have any questions, or need any additional information, please telephone the undersigned at (212) 455-7744.
A copy of this letter is being provided to Harvard by overnight courier. In accordance with Rule 14a-8(j)(2), we are enclosing six additional copies of this letter. Please acknowledge receipt of this letter by stamping the enclosed copy of this letter and returning it to us in the pre-paid and addressed enveloped provided herein.
Very truly yours,
Cynthia G. Cobden
Enclosures
cc: Mr. Jonathan Ingram
Mr. Michael Coco
Mr. Domenic Minore
Ms. Leigh Fraser
DIRECT DIAL: (617) 951-7485
LFRASER@ROPESGRAY.COM
December 5, 2001
BY HAND DELIVERY
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Attention: Office of Disclosure and Review, Division of Investment Management
Re: The Asia Tigers Fund Inc. -- Shareholder Proposal Submitted
Pursuant to Rule 14a-8 under the Securities Exchange Act of 1934
Ladies and Gentlemen:
As counsel to President and Fellows of Harvard College ("Harvard"), we are writing to respond to the letter to the Commission dated November 28, 2001 from Cynthia G. Cobden of Simpson Thacher & Bartlett, a copy of which is attached hereto (the "Letter"). In the Letter, the Asia Tigers Fund, Inc. (the "Fund") seeks your confirmation that the Commission staff will not recommend enforcement action if the Fund omits from its proxy statement and form of proxy for its 2002 Annual Meeting of Stockholders a shareholder proposal and supporting statement submitted by Harvard to the Fund on October 31, 2001.
In its earlier letter to the Commission dated November 15, 2001, the Fund had argued that Harvard's proposal should be excluded as untimely because it was not received by the Fund by September 14, 2001, the deadline for submission of proposals for inclusion in the Fund's proxy materials. Harvard had made clear in its cover letter to the Fund accompanying the proposal that Harvard was submitting its proposal following the September 14 deadline due to the dislocation caused by the events of September 11.
The Fund now makes two new arguments. First, it argues that it had issued a press release on September 26 announcing its new mailing address and that Harvard's proposal was not timely submitted after that date. While Harvard regularly monitors developments relating to its investees, it did not, however, become aware of that press release until October 8, when Harvard first read the relevant Bloomberg report. The Fund did not file the press release with the Commission on Form 8-K, nor did it notify shareholders by mail or other direct communication of its new address.
Once Harvard had actual notice of the change, it acted promptly to submit the proposal, which required a review of the Fund's then current situation to assure continued appropriateness of the arguments, data and factors included in the proposal that Harvard had been prepared to file in September. These matters included investment and stock performance information, market conditions in both the U.S. and Asia, and any intervening efforts by the Fund to eliminate its extreme discount. As a result of this review, Harvard in fact made changes to the supporting statement which it had originally drafted.
Harvard had been prepared to file its proposal in September on a timely basis. Given that Harvard had no way of knowing when the Fund would announce the reopening of its principal office, Harvard simply could not have been in a position to responsibly file immediately upon learning of the reopening. Harvard's counsel had consulted the Commission staff specifically in order to ensure its ability to file as soon as practicable after the Fund's offices had reopened. Harvard believes that it was entitled to a reasonable period of time - which did not result in any substantial prejudice to the Fund - to review and resubmit its proposal to the Fund after learning of the Fund's new address.
The Fund's argument that Harvard should have contacted the Boston office of the Fund's adviser in order to submit the proposal appears disingenuous at best. Harvard has little doubt but that if it had attempted to submit a proposal through the adviser's Boston office, the Fund would now be arguing that the proposal had not been properly submitted, just as the Fund is now arguing that it is untimely. Harvard had no reason to believe - and was given no reason to believe - that this office had any authority to act on behalf of or bind the Fund as to this matter. Furthermore, in employing hindsight to say that Harvard should have used active efforts to try to submit its proposal, the Fund has lost sight of an important part of the recent picture. The interests of the nation and the capital markets dictated that businesses affected by the September 11 tragedy be given every opportunity to reestablish themselves on their own time schedules. While it remained unaware of the Fund's status and location, Harvard would not, and would not be seen to, press a proposal to terminate the Fund's adviser.
Harvard has acted reasonably and promptly at all times in attempting to submit its proposal under the difficult circumstances presented by the tragic events of September. The Fund should not be able to use those events to its benefit to exclude Harvard's proposal.
If you have any questions, or would like to receive any additional information, please feel free to contact the undersigned at (617) 951-7485.
A copy of this letter is being provided to the Fund by overnight courier. In accordance with Rule 14a-8(k), we are enclosing six additional copies of this letter. Please acknowledge receipt of this letter by stamping one of the enclosed copies and returning it to our courier.
Very truly yours,
Leigh R. Fraser
Enclosure
cc: The Asia Tigers Fund Inc.
c/o Simpson Thacher & Bartlett
425 Lexington Avenue, Room 1303
New York, New York 10017-3954
Ms. Cynthia G. Cobden
Mr. Jonathan Ingram
Mr. Michael Coco
Mr. Michael S. Pradko
Mr. Steven A. Alperin
Mr. Timothy W. Diggins
http://www.sec.gov/divisions/investment/noaction/asiatiger122801.htm
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