RegAlert2001-09-28
Added · Updated
SEC Division of Investment Management staff letter: Lincoln National Convertible Securities Fund, Inc. - Walter S. Baer
The SEC staff declines to provide assurance that Lincoln National Convertible Securities Fund, Inc. may omit a shareholder proposal from its 2001 proxy materials under Rule 14a-8(i)(2) or Rule 14a-8(i)(3) of the Exchange Act. The staff determines that the proposal, which requires annual shareholder voting on the investment advisory agreement, does not conflict with Section 15 of the Investment Company Act of 1940 because the board retains the independent right to approve continuance. Furthermore, the staff concludes the proposal is not substantially similar to past proposals to terminate the agreement, as Section 15(a)(3) votes cannot be overruled by the board while Section 15(a)(2) allows board approval regardless of shareholder votes.
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DIVISION OF
INVESTMENT MANAGEMENT
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David F. Connor, Vice President . 01032878 . April 5, 200 I Delaware Investments One Commerce Square Philadelphia, PA 19103 RE: Lincoln National Convertible Securities Fund, Inc. PROCESSED File No. 811- 04659 Shareholder Proposal of Opportunity Partners, L.P. MAY 0 4 2om THOM~uNp flNANCIAl Dear Mr. Connor:
In a letter dated January 7, 2001, you notified the staff of the Securities and Exchange Commission that Lineoln National Convertible Securities Fund, Inc. proposes to omit from its year 2001 proxy soliciting materials a shareholder proposal submitted by Opportunity Partners, L.P. The proposal states:
RESOLVED: The following by-law shall be adopted: "The investment advisory agreement shall be submitted to shareholders for a vote in 2002 and every year thereafter. Ifthe shareholders do not approve continuance of the advisory contract, the board of directors may subsequently approve "its continuance if not inconsistent with state or federal law. The provisions of this by-law may only be amended, added to, rescinded or repealed by the shareholders." You request our assurance that we would not recommend enforcement action ifthe fund omits the proposal in reliance on Rule 14a-8(i)(2) under the Securities Exchange Act of 1934 (the "Exchange Act"), which permits a company to exclude a shareholder proposal that would, if implemented, cause the company to violate any state, federal, or foreign law to which it is subject. 1 You further believe that the fund may omit the proposal in reliance on Rule 14a-8(i)(3) under the Exchange Act, which permits the exclusion of a shareholder proposal that is contrary to any of the Commission's proxy rules. 1 In connection with this request, we also received and considered a January 16, 2001, letter submitted to the staff by Opportunity Partners, L.P. ~:.. CK6
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