SEC Division of Investment Management staff letter: Nuveen Virginia Premium Income Municipal Fund

EFFECTIVE AUGUST 1, 2021, THIS LETTER IS WITHDRAWN. Please consult the following web page for more information: https://www.sec.gov/divisions/investment/im-modified-withdrawn-staff-statements .

Securities Act of 1933 - Rule 415(a)(1)(x) and 415(a)(4) Nuveen Virginia Premium Income Municipal Fund

October 6, 2006

RESPONSE OF THE OFFICE OF CHIEF COUNSEL DIVISION OF INVESTMENT MANAGEMENT

IM Ref. No. 20052151327 Nuveen Virginia Premium Income Municipal Fund File No. 811-7490

Your letter of September 14, 2006, requests our assurance that we would not recommend enforcement action to the Commission under Section 5 or 6(a) of the Securities Act of 1933 ("Securities Act") if Nuveen Virginia Premium Income Municipal Fund ("Fund") conducts a delayed at the market public offering of its common shares pursuant to the shelf registration provisions of Rule 415(a)(1)(x) and Rule 415(a)(4) under the Securities Act, under the circumstances set forth in your letter.

You state that the Fund is a diversified, closed-end management investment company registered under the Investment Company Act of 1940 (the "Investment Company Act"). The Fund's investment adviser is Nuveen Asset Management, Inc. You further state that the Fund seeks to conduct a delayed at the market shelf offering of its common shares under Rule 415(a)(1)(x) and Rule 415(a)(4) so that the Fund may issue new shares when the Fund's shares are trading at a premium to net asset value ("NAV"). The Fund presently has no intention to register a traditional, non-shelf offering because of the risk that the market price of the Fund's shares will decline below NAV before the issue is completely sold.

You state that the Fund's common shares are registered under Section 12(b) of the Securities Exchange Act of 1934 ("Exchange Act"), and have been listed and traded on the New York Stock Exchange since the Fund's inception on March 18, 1993. You also represent that the Fund files with the Commission all information required of it under the Exchange Act and the Investment Company Act, including Forms N CSR and N-Q, and has filed all such reports on a timely basis over the last 12 calendar months. You note that the Fund's common shares closed as of December 31, 2005, at a 5.07% premium to the Fund's NAV, and over the 12 months ending March 31, 2006, had closed, weekly, at an average premium of approximately 7.85%.

Your request is similar to one made by the Pilgrim America Prime Rate Trust ("Pilgrim") in 1998. 1 The relief granted in the Pilgrim Letter was based, in part, on an undertaking by Pilgrim to file with the Commission, and mail to shareholders, quarterly reports that comply in all material respects with the disclosure requirements of Form 10-Q. You believe that recent enhancements in closed-end fund reporting requirements under the Exchange Act make unnecessary the additional quarterly reporting obligations imposed on Pilgrim. Specifically, you believe that the information required to be filed with the Commission under the Exchange Act, including the information required to be provided on new Forms N CSR and N-Q, provides a steady stream of high quality information about the Fund. You therefore seek our assurances that we will not recommend enforcement action under Section 5 or 6(a) of the Securities Act to the Commission if the Fund conducts a delayed at the market offering of its common shares pursuant to the shelf registration provisions of Rules 415(a)(1)(x) and 415(a)(4) without filing with the Commission, and sending to shareholders, quarterly reports that comply in all material respects with the disclosure requirements of Form 10-Q.

Based on the facts and representations made in your letter, we would not recommend enforcement action to the Commission under Section 5 or 6(a) of the Securities Act if the Fund conducts a delayed at the market public offering of its common shares pursuant to the shelf registration provisions of Rule 415(a)(1)(x) and Rule 415(a)(4) under the Securities Act without filing with the Commission, and sending to shareholders, quarterly reports that comply in all material respects with the disclosure requirements of Form 10 Q.

This response expresses the Division's position on enforcement action only and does not purport to express any legal conclusions on the question presented. Facts or representations different from those presented in your letter might require a different conclusion.

Tara L. Royal Senior Counsel

Endnotes

1 Pilgrim America Prime Rate Trust (pub. avail. May 1, 1998) ("Pilgrim Letter"). As was the case with the Pilgrim Letter, you request relief to permit the Fund to offer its common stock under Rule 415(a)(1)(x). The relief we provide today applies equally to a closed-end fund's offering under Rule 415(a)(1)(x) of any securities, provided the closed-end fund would otherwise be eligible under the instructions to Form S-3 to conduct the type of offering it seeks to undertake (e.g., common stock, preferred stock, debt securities, and/or warrants).

Incoming Letter

The Incoming Letter is in Acrobat format.

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Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue, NW Morgan Lewis
Washington, DC 20004 COUNSELOBS AT LAW
Tel: 202.739.3000
Fax: 202.739.3001 ww.mor~anlewis.com
September 14,2006
Assistant Chief Counsel
Division of Investment Management
U.S. Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
Re: Proposal of Nuveen Virginia Premium Income Municipal Fund to Conduct a Delayed and Continuous Offering Pursuant to Rule 415(a)(l)(x) under the Securities Act of 1933 Dear Ms. Osterman:
On behalf of Nuveen Virginia Premium Income Multicipal Fund ("NPV"), we seek assurance that the staff of the Division of Investment Management ("the Staff') will not recommend enforcement action to the Securities and Exchange Cominission ("the Commission") under
Section 5 or 6(a) of the Securities Act of 1933, as amended ("the Securities Act"), if NPV
conducts a delayed at the market public offering of its common shares pursuant to the shelf registration provisions of Rule 415(a)(l)(x) and Rule 415(a)(4) under the Securities Act under the circumstances set forth in this letter. Background NPV is a diversified, closed-end management investment company registered under the Investment Company Act of 1940 (the "Investment Company Act"). NPV seeks to achieve its investment objective by investing in n~unicipal securities that are tax exempt for purposes of' kderal and Virginia inco~ite taxes. NPV's investment adviser is Nuveen Asset Management, Inc. ("NAM"). NPV's common shares are registered under Section lZ(b) of the Securities Exchange Act of 1934 ("the Exchange .Act): and have been listed and traded on the New York Pniiadeiphia Washington NewYork LosAngeies Miami Harrisburg Pinsburgh

Princeton NoRhernVirginia London B;uneir Frankfurt Tokyo

Morgan Lewis CODNIILORI hi LkY.
Assistant Chief Counsel
September 14,2006
Stock Exchange ("NYSE") since its inception on March 18, 1993. NPV's common shares closed as of December 3 1,2005 at a 5.07% premium to NPV's net asset value ("NAV"), and over tbe 12 months ending March 3 I, 2006 had closed, weekly, at an average premium of approximately
7.85941. NPV also has issued tax-exempt auctioned preferred shares, which trade weekly (7 day
reset) through the mechanism of a Dutch auction conducted by NPV's auction agent, Bankers Trust Company. Only NPV's common shares are the subject of this no-action request. NPV seeks to conduct an "at the market" offering of its common shares under Rule 415(a)(l)(x). Such an offering will allow NPV to issue new shares when NPV's shares are trading at a premium to NAV, and to invest the proceeds in additional municipal securities. NPV presently has no intention to register a traditional; non-shelf offering because of the risk that the market price of NPV's shares will decline below NAV and prevent the offering from being completed, given the prohibitions of Section 23(b) of the 1940 Act against closed-end funds selling common stock at a price less than NAV except through rights offering^.^ The Fund Board has determined that, in contrast to a non-shelf offering, SPV's ability to raise additional capital through an "at the market" offering of eomn~ol~ shares pursuailt to Rule 415 under the Securities Act is likely to benefit NPV's sharel~olders. Such an offering would increase the size of NPV and thus enable NPV to lower its expense ratio, increase its NAV per share because issuing new shares at a net price that is greater than NAV will he accretive (anti￾dilutive) to NAV per share, enable the portfolio manager to increase NPV's portfolio diversification, provide the manager with an expanded ability to capitalize 011attractive investment opportunities, and increase secondary market liquidity of NPV's common shares. NPV's at the market offering will be structured to minimize the impact of newly issued shares on the market price of NPV's shares. NAM personnel will confer regularly with NPV's sales agent, which will he a registered broker-dealer, to discuss market conditions and determine how many shares NPV should issue at any time. NAM will consider the expected benefits to NPV from such an offering as described in the preceding paragraph, trading volumes in its common shares, and its share price in the secondary market relative to its NAV. NAM will determine, and instruct the sales agent as to the daily amount of slyares to be sold and the minimum price at which shares can be sold. Consiste~~t with the requirements of Section 23(b) of the Investment Company Act, the sales agent will not be permitted to sell newly issued shares at a price per share lower than SPV's NAV plust in the case of securities sold on an agency. rather than a principal basis, the per share selling comn~ission paid by the fund. The sales agent will receive a selling con~mission based on the number and market price of shares sold. Since inception, NPV's common share price closed belo\s~ NAV (at a discount) as of the end of each of 86 weeks; the highest discount was 8.54%. i

Morgan Lewis COUXIEloPI AT LAW
Assistant Ch~efCounsel
September 14. 2006
Discussion
Rule 415(a) under the Securities Act allows issuers to register certain offerings on a delayed or continuous basis ("shelf offering"). Rule 415(a)(4) pennits an issuer to register an "at the market" offering of equity securities where the offering comes within Rule 4 15(a)( 1)(x). An "at the market" offering means "an offering of securities into an existing trading market for outstanding shares of the same class at other than a fixed price.. .."' We believe KPV is permitted to conduct an "at the market" offering under Rule 41 j(a)(l)(x). Rule 415(a)(l)(x) applies to securities "registered (or qualified to be registered) on Fom~ S-3 or Form F-3 which are to be offered and sold on a continuous or delayed basis" by or on behalf of the registrant. As a closed-end management investment company, NPV is required to use Form N-2 to register its securities and, therefore, cannot and will not use Form S-3. However, because KPV and the offering will meet the requirements of Form S-3, we believe KPV's shares are "qualitied io be registered" on Form S-3. A. Form S-3 Eligibility
1. Regstrant Requirements
NPV satisfies the registrant requirements outlined in Instruction f.A of Form S-3.' NPV is organized in Massachusetts and has its principal business operations in the United 2 See Rule 415(a)(4) promulgated under the Securities Act. On June 29,2005, as part of its reforms of the regulation of public offerings ("Securities Offering Reforms"), the SEC approved amendments to Rule 41 5(a)(4) to remove certain restrictioris on at the market offering, but retained the Form S-3/F-3 eligibility requirement. Securities Act Release No. 8591 (July 19, 2005). 2 Instruction 1.A. requires, in perti~ient part:
1. The registrant is organized under the laws of the United State:: or any State or Territory
or the District of Columbia arid has its principal business operations in the United States or its territories.
2. The registrant has a class of securities registered pursuant lo Section i2(bj of rhe
Securities Exchange Act of 1934 ("Excllange Act") or a class of equity securities registered pursuant to Section l?(g) oi'the Exchange Act or is required to file repons pursuant to Section 15(d) of the Exchange Act.
3. The registrant: (a) has been subject to the requirements of Section 12 or 15id) of the
Exchange Act and has filed all the material required to be tiled pursuant to Sections 13, (continued).

Morgan Lewis co~ri~io~i AT LAW
Elizabeth G. Ostennan
.4ssistant Chief Counsel
September 14, 2006
States. Addittonally, NPV's common shares are registered pursuant to Section 12(b) of the Exchange Act. Instruction 1.A.3 requires registrants to have been subject to Section 12 or 15(d) of the Exchange Act and to have filed all material required by Sections 13, 14 or 15(d) for the 12 calendar month period preceding the filing of a registration statement and to have filed in a timely manner all reports required to be filed during the 12 calendar month and any portion of a month immediately preceding the filing of the registration statement. U'hiie NPV has been subject to the requirements of Section 12 of the Exchange Act for more than I2 months, it is also subject to the Investment Company Act. Section 30(d) of the Investment Company Act requires the Con~tnissionto issue rules and regulations pem~itting the filing of periodic reports filed under
Section 30(a) and (b) under the Investment Company Act in lieu of reports and documents
14 or 15(d) for a period of at least twelve calendar months immediately preceding the filing of the registration statenlent on this Form; and (b) has filed in a timely manner ail reports required to be filed during the twelve calendar months and any portion ofa month immediately preceding the filing of the registration statement [other than certain Forms 8- K reports] . If the registrant has used (during the twelve calendar months and any portion of a month immediately preceding the filing of the registration statement) Rule l2b-25(b) under the Exchange Act with respect to a report or a portion of a report, that report or portion thereof has actually heen filed within the time period prescribed by the Rule.
5. Neither the registrant nor any of its consolidated or unconsolidated subsidiaries have,
since the end of the last fiscal year for which certified financial statements of the registrant and its consolidated subsidiaries were included in a report tiled pursuant to
Section 13(a) or 15(d) of the Exchange Act: (a) failed to pay any dividend or sinking fund
installment on preferred stock; or (b) defaulted (i) on any installnient or installments on indebtedness for borrowed money, or (ii) oti any rental on one or more long term leases, which defaults in the aggregate are material to the financial position of the registrant and its consolidated and unconsolidated subsidiaries, taken as a whole. .. .
8. E/ectr.oriic.,/iii~ig.~: 111addition to szatisfying the foregoing conditions, a
registrant subject to the electronic filing requirements of Rule 101 of Reguiation S-T ($232.101 of this chapter) shall have filed with the Commission all required electronic fiiings, including confirming electronic copies ofdocumer~ts subniitted in paper pursuant to a hardship exemption as provided by Rule 201 or Rule 202(d) of Reguiation S-T ($232.201 or $232.202(d) of this chapter).

i
Morgan Lewis COUKIEIOII.5 AT LAW
Elizabeth G. Ostem~an
Ass~stant Chief Counsel
September 13,2006 required under Section 13 or 15(d) of the Exchange ~ct.' Thus, as a registered management investment company, NPV is required to file reports on Forms N-CSR, in satisfaction of the requirement to file annual and quarterly reports pursuant to Section l3(a) or 15(d) of the Exchange Act. Rule 30d-I under the Investment Company Act. Additionally, Rule 13a￾13(b)(l) under the Exchange Act excludes investment companies that are required to file semi￾annual reports on Form N-SAR under Rule 30bl-1 of the Investment Company Act from the quarterly reporting obligation of Rule 13a-13 of the Exchange Act. Accordingly, NPV files Forms N-SAR, N-CSR, and N-Q. ' NPV has filed all such reports on a timely basis over the last 12 calendar months and up to the present. In Pilgrim America Prime Rate Trust (May 1, 1998), 1998 SEC No-Act LEXIS 552, the Pilgrim America Prime Rate Trust, a closed-end management investment company (the "Pilgrim Fund). requested no-action relief to conduct an "at the market" offering under Rule 415(a)(l)(x). In its response? the Staff, agreed that "an issuer that meets the standards of Rule 415(a)(l)(x), including the requirements enumerated in Form S-3, should not be precluded from conducting a shelf offering under subparagraph (x) merely because it is a closed-end fu11d." Id.at [12]. The staff indicated, however, that "the filing of Form N-SAR twice a year, without more," did not satisfy disclosure concerns "about the quality of current information to the public" in the context of shelfofferings. at *16. The Staffbelieved that the filing of quarterly reports that materially complied with the disclosure requirements of Form 10-Q and the prompt amendment of a registration statement to reflect material changes "would satisfy the Commission's concerns about the quality of current information to the public." We believe the additional quarterly reporting obligations imposed on a closed-end fund's eligibility to rely on Rule 415(a)(l)(x) by the Pilgrim letter are no longer necessary to ensure that the Rule's requirement for current information is satisfied. Subsequent to Piigrim, the Con~mission significantly enhanced the Exchange Act reporting for closed-end fuilds when it Registered closed-end funds, like other registrants, are subject to the proxy and tender offer provisions of Section 14 of the Excl~ange Act. subject to limited exemptions. NPV has filed during the last 12 calendar months and up to the present. and will file. with the Commission on a timely basis all required proxy and tender offer materials. The SEC recently required registered investn~enr companies, excluding small business invest~nen~ conlpanies, to file quarterly portfolio disclosures on Fom~ X-Q. &Securities Act Release go. 33-8393 (Febn~ary27; 2003). CVe note that in adopting this new foml. which is filed under the Exchange Act and the Investment Company Act, and which requires financial infomlation and the certification of the fund's chief executive
and chief financial officers, the Comn~ission chose not to incltlde a requirement for quarterly financia! statements.

Morgan Lewis
COUNIBL0)IS AT LAW
Assistant Chlef Counsel
September 14, 2006 adopted Fornis N-CSR and ~-~."~hile the staff in 1998 was concerned that "the filing of Form N-SAR twice a year, without more," was inadequate to meet the current information requirement, the expanded annual and semi-annual information called for by Form N-CSR, including the certifications by the principal executive and financial oCficers of the fund required by the Sarbanes-Oxley Act of 2002, and the quarterly position listings and other current financial information provided by Form N-Q. address the shortcomings of the Form N-SAR in a way that is tailored to the needs of investors in registered investment companies. Thus, NPV believes that these new reporting requirements provide "a steady stream of high quality corporare information continually furnished to the market and broadly digested, synthesized and disseminated" that satisfies the Commission's disclosure concerns in connection with shelf offerings.' NPV has filed this information on a timely basis over the prior 12 calendar inoiiths and continuing to the present and will continue to file those reports on a timely basis going forward. Accordingly, we do not believe that the staff need impose additional reporting obligations as a condition to a closed-end fund's reliance on Rule 41 5(a)(l)(x) and Rule 41 5(a)(4) to conduct shelf and at-the-market offerings. Similarly, Nuveen does not propose to comply with the additional conditions imposed by the Pilgrim letter, including that the quarterly information be provided to shareholders. Delivery of such information is not a requirement even for Form 10-Q filers. As required by Instruction I.A.5, NPV has not, since the end of the last fiscal year for which certified financial statements were included in a report filed pursuant to Section 13(a) or 15(d) of the Exchange Act, (a) failed to pay any dividend or sinking fund installment on preferred stock? or (b) defaulted (i) on any installment for indebtedness for borrowed money or (ii) on any rental on long term leases.
2. Transaction Requirements
NPV's offering will meet the transaction requirements of Form S-3. As required by Fomi S-3, Instruction I.B.l, the offering will be for cash by or on behalf of NPV, and the aggregate market value of voting and non-voting colnnlon equity held by non-affiliates of NPV is $75 million or more. '4s of June 30,2006, the value of the public float in NPV's common shares was $127.4 million. The amount of the public float indicates that there is widespread market folloxring of LfPV. Securities .4ct Release Xo. 8393 (February 2?,2004)(adoption of Form X-Q); Exchange Act Release No. 47262 (January 2?,2003)(adoprion ofFom1 N-CSR). &Securities Act Release 33-6499, 1983SEC LEXIS 315,

Section I at *3 (November 17, 1983).

0

Morgan Lewis COL1Nlfl.ORI AT LAW
Assistant Chief Counsel
September 14. 2006
Based on the foregoing, NPV believes its shares are qualified to be registered on Form S-3. B. Compliance with other Rule 415(a) Reauirements NPV's offering will satisfy the at-the-market offering requirements of Rule 41 5(a)(4) NPV's offering will comply with Rule 415(a)(3). As required under this subparagraph, NPV will fu~~iish the undertakings required by Item 34.4 of Form 5-2. Conclusion 1Ve believe the requested relief will enable NPV to raise capital in a manner that benefits KPV's shareholders. Accordingly, we seek the staffs assurance that it will not recommend enforcemelit action to the Commission if NPV registers and sells its common shares on a delayed or continuous basis pursuant to Rule 415(a)(l)(x) under the Securities Act as set forth in this letter. We have enclosed seven copies of this no-action request for your convenience. Please cotitact the undersigned at (202) 739-5420, or Thomas S. Harman at (202) 739-5662, with questio~is or coninients regarding this letter. Sincerely,