# SECURITIES AND EXCHANGE COMMISSION > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Asec%3A7eb0e23d0fc525f2 ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text UNITEDSTATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 DJVISIONOF INVESTMENT MANAGEMENT Stuart H. Coleman, Esq. Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY 10038-4982 Re: May 5,2010 The Swiss Helvetia Fund, Inc: - Shareholder Proposal of Mr. Walter S. Baer Dear Mr. Coleman: In a letter dated April 2, 2010, you notified the Securities and Exchange Commission ("Commission") ofthe intent of The Swiss Helvetia Fund, Inc., ("Fund") to omit from its 2010 proxy materials a shareholder proposal ("Proposal") and supporting statement ("Supporting Statement") submitted by Walter S. Baer ("Proponent"). We also received a letter from the Proponent opposing your request to exclude his Proposal and Supporting Statement. The Proposal asks the Fund's board of directors to take the steps necessary to adopt an interval fund structure, whereby the Fund would conduct periodic tender offers at least semiannually for at least 10% of currently outstanding common shares at a price of at least 98% ofnet asset value. 1 You argue that the Proposal may be excluded because: pUI:suant to Rule 14a­ 8(i)(10) under the Securities Exchange Act of 1934, it has been substantially implemented in that the board of directors has considered and rejected the adoption of an interval fund structure, including a structure based on the terms contained in the Proposal; pursuant to Rule 14a-8(i)(7), it deals with a matter relating to the Fund's ordinary business operations; pursuant to Rules 14a-8(i)(2) and (i)(6), it would constitute a violation of law and is beyond the authority of the board to submit to shareholders a proposal that it deems to be against shareholders' best interest; and, pursuant to Rule 14a­ 8(i)(3), it is contrary to other proxy rules or regulations that permit the exclusion of proposals that are vague and indefinite. You further argue that certain portions of the Proponent's Supporting Statement are false or misleading pursuant to Rule 14a-9 and may be excluded pursuant to Rule 14a-8(i)(3). We are unable to concur in your view that the Fund may exclude the Proposal pursuant to Rules 14a-8 (i)(2), (i)(3), (i)(6), (i)(7), or (i)(10). Further, we are unable to You state that the Fund and the Proponent both agree that the Proposal is precatory and only reconunends that the board take action to convert the Fund to an interval fimd structure. Stuart H. Coleman, Esq. May 5, 2010 Page 2 concur in your view that portions ofthe Supporting Statement rise to the level ofbeing materially false or misleading. We note that the Fund will have an opportunity to include it its proxy statement arguments reflecting its own point ofview on the Proposal. See Rule 14a-8(m)(1); Division of Corporation Finance, Staff Legal Bulletin 14B, Section B (Sept. 15,2004). Accordingly, we do not believe that the Fund may omit the Proposal or portions of the Proponent's Supporting Statement pursuant to Rules 14a-8 (i)(2), (i)(3), (i)(6), (i)(7), or (i)(10). We note that the Fund did not file its statement of objections to including the Proposal in its proxy materials at least 80 calendar days before the date on which it will file definitive proxy materials as required by Rule 14a-8(j)(l). We have considered your rationale for the delay, but do not agree to a waiver of the 80-day requirement. Attached is a description ofthe informal procedures the Division of Investment Management follows in responding to shareholder proposals. If you have any questions or comments concerning this matter, please call me at (202) 551-6970. Sincerely, ~~ Maryllole Senior Counsel cc: Walter S. Baer DIVISION OF INVESTMENT MANAGEMENT INFORMAL PROCEDURES REGARDING SHAREHOLDER PROPOSALS The Divi~ion of.Investment Management believes that its responsibility with respect to matters arising under Rule 14a-S [17 CFR 240.14a-S], as with other matters under the proxy rules, is to aid those who must comply with the rule by offering informal advice and suggestions and to determine, initially, whether or not it may be appropriate in a particular matter to recommend enforcement action to the Commission. In connection with a shareholder proposal urider Rule 14a-8, the Division's staff considers the information furnished to it by an investment company in 'support of its intention to exclude the proposals from the investment company's proxy material, as well as any information furnished by the proponent or the proponent's representative. The staff will always consider information concerning alleged violations of the statutes administered by the Commission, including argument as to whether or not activities proposed to be taken would violate the statute or rule involved. The receipt by the staff of such information, however, should not be construed as changing the staff's informal procedures and proxy review into a formal or adversary procedure. The determinations reached by the staff in connection with a shareholder proposal submitted to the Division under Rule 14a~S do not and cannot purport to "adjudicate" the merits of an investment company's position with respect to the proposal. Only a court, such as a u.S. District Court, can decide whether an investment company is obligated to include shareholder proposals in its proxy materials. Accordingly, a discretionary determination not to recommend or take. Commission enforcement action, does'not preclude a proponent, or any shareholder of an investment company, from pursuing any rights he or she may have against the investment company in court, should the management omit the proposal from the investment company's proxy materials. STROOCK By Email Ii. stuait H. Coleman Direct Dial 212.806.6049 Direct Fax 212.806.9049 scoleman@Stroock.com April 2, 2010 i j I Securities and Exchange Commission Division ofInvestment Management Office of Chief Counsel . 100 F Street, N.E. Washington, DC 20549 Re: I, .,If I ! I i The Swiss Helvetia Fund, Inc.-Intention to Omit Stockholder Proposal of Mr. Walter S. Baer I I I I Ladies and Gentlemen: I I In accordance wi:th Rule 14a-8G) under the Securities Exchange Act of1934, as amended, I we hereby give notice on behalf of The Swiss Helvetia Fund, Inc., a non-diversified, closed-end management investment company incorporated in Maryland (the "Fund"), of the Fund's intention to omit ~m its proxy statement and proxy card (the "Proxy Materials") for its 2010 Annual Meeting of Stockholders (the "Meeting") the stockholder proposal and the statement supporting the proposal (together, the "Proposal") submitted to the Fund by Mr. Walter S. Baer (the "Proponent") under cover ofa letter dated December 16, 2009. A copy ofthe Proposal is attached as ExlribitAand a copy ofall correspondence between the Fund and the Propo~ent conc~rning the Proposal is attached as Exhibit B. II I I ! I ; We believe that 'the Proposal may be excluded, among other reasons, under Rule 14a­ 8(i)(10) because it has been substantially implemented. On behalfofthe Fund, we hereby respectfully request that the staff (the "Staffll) ofthe Securities and Exchange·Comnllssion (the "Commission") express its intention not to recommend enforcement action if the Proposal is excluded from the Fund's Proxy Materials for the reasons set forth herein. i Ii f i i I i The Proposal r f I The Proposal asks the Board of Directors of the Fund (the "Board") to take the steps necessary to adopt an interval fund structure, pursuant to which the Fund would conduct I ! ; j 1 j ,! NY 72597251v4 sntOOCl\ I''54°° FAX 212.8.06.6006 WWW.Sl·kOOCK.COM i· ! April 2, 2010 Page 2 repurchase offers on, at minimum, a semi-annual basis for at least 10% ofthe Fund's then­ outstanding shares ofcommon stock ata price ofat least 98% of the Fund's net asset value. 1 Corresponde~ce with the· Proponent; Board Meeting to Consider the Proposal The following chart summarizes the correspondence between the Fund and the Proponent, the :full content ofwhich is included as Exhibit B to this letter. Date (SentIReceived by the Fund) 12/2812009 Sender Proponent Letter Content Initial Proposal Noteworthv Tonics Proposal failed to comply with all of the procedural requirements of Rule 14a-8(b) Propon~t Letter from Broker Content did not satisfy Rule 14a­ .. 8(b) (Received) 01/0412010 (Received) I i i 01/08/2010 Fund (Sent) 01/1212010 Proponent Notification of Proposal Defects under Rule 14a­ 8 (b) Letter from Broker (Received) I Letter provided instruction on method and time to cure procedural defects; Notified Proponent of subsequent letter identifying substantive ~efects of the Proposal I ! ! j ! !i, Cured Ru1e 14a-8(b) defects i . I i I. 01/2212010 (Sent) FuIid Notification of Cited specific provisions ofRule Proposal Defects 14a-8(i) and provided rationale for under Rule 14a.-8(i) .exclusion; Suggested mew.s to amend or withdraw Proposal 0112912010 (Received) Proponent Resubmission of Proposal Clarification by Proponent that' Proposal was precatory; No other proposed revisions to Proposal i Ii ~ i I i\ After receiving the Proponent's response onJanuary 29,2010, the Board dete:mrined that in light of the pendency of the preparation of the Fund's Proxy Materials, it would consider the Proposal as if the Proposal (i) had been submitted to and approved by ·the Fund's ·Although not referenced explicitly in the Proposal, the oilly way for the Fund lawfully.to conduct the periodic repurchases conte1:npJated by the Proponent is for the Fund to convert from a closed-end fund ro 311 interval fund and operate in compliance with Rule 23c-3 under the Investment Company Act of 1940, as amelided (the "1940 Act"). NY·72597251v4 STROOCK '" STIIOOCK lit LAVAN ·LLl' • NEW "YOIlK • LOS ANCELES • MIAMI I SO MAIDEN LANE. NEW YOIl!>. N"Y 1003 8-~9B2 TH 212. 806.S4-00 f:\X 212.806.6006 WWW.STIIOOCK.COM ., I I ApD12, 2010 Page 3 stockholders at the Meeting and (ii) did not contain any of the deficiencies identified previously to the Proponent. Among other benefits, this approach eliminated the cost and burden of seeking a stockholder vote ou the Proposal On Febroary 25, 2010~ the Board convened a duly authorized special meeting for the purpose of determining whether the adoption of an interval fund structure, in4uding'a structure based on the terms contained in the Proposal, was in the Fund's best interest. After considerab'le discussion and review ofmaterials prepared specifically for the meeting, hIc1uding information prepared by an independent .third party :financial services :firm engaged by the Fund, the Board concluded that converting to an interval fund, including on the terms contained in the Proposal, was not in the best interest of the Fund and its stockholders. The Fund then promptly notified the Proponent of the outcome of the Board's considerations. A copy of the minutes of that meeting is attached as' Exhibit C. Date (SentlReceived by the Fund) 03/02/2010 Sender Fund Letter Content Notification of Board Meeting Proponent Resubmission of PropOsal (Sent) 03/03/2010 (Received) Noteworthv TODics ·Notified. Proponent offormal Board consideration ofProposal; Requested withdrawal of-Proposal. Prop~nent declined Fund's request to withdraw the Proposal Although the FUI;ld has made an ongoing effort to assist the Proponent in identifying the Proposal's procedural and substantive deficiencies under Rule 14a-8, and then convened a special Board meeting to perform t;q.e very acts the Proposal requests, ~e Proponent continues to refuse to withdraw or amend the Proposal Requests Again, we respectfully request that the Staff confinns that it will not recommend any enforcement action if the Fund omits the Proposal from its Proxy Materials for the reasons set forth herein, including that the Proposal has been substantially implemented. .In addition, as the Fund and the Board each has spent a significant amount oftime and cost attempting to address the Proponent's concerns in advance ofsubmitting this request, we hereby request that the Staff Waive the 80 calendar day filing requirement for good cause pursuant-to the authority provided under Rille 14a-86l The Fund has attempted to work with Proponent on an ongoing basis in an effort to cure procedm:al defects in the Proposal and then to identify and, as appropriate, revise the terms of the Proposal After the Proporient provided clarification that he was submitting a precatory request, the Board convened a special meeting to consider the Proposal. The Fund was" unable to file a no- NY 72597251v4 STRODCK & STROOCK & LAVAN ttl' • N£W yonK • LOS ANGELES. M1Ahll 180 M.-\IDEN LANE, IHW YORK, NY 100]3-4982 ·TEI. ~ 1 ~.S06.S400 fAX 212.806.6006 WWW.STROOCK.COM April 2, 2010 Page 4 action request at least 80 days in advance of the :filing of its Proxy Materials as it was attempting to work with the Proponent to revise his Proposal and, once the Fund was notified that the Proponent did not wish to revise his proposal, needed time to prepare materials requested by the Board in connection with the special Boaid meeting held on February 25, 2010. As the Fund and the Proponent now agree the Proposal is precatory in nature,· the Fund believes it is inappropriate to include the Proposal in its Proxy Materials, as the Bo~d has considered the Proposal and determined not to submit a non-preca~ory proposal to adopt an interval fund structure to the Fund's stockholders. Primary GroUnds for Excluding the Prop.osal Pursuant to Rule 14a-8 '1. Rule 14a-8(t)(10)-Substantially Implemented Rule 14a~8(i)(iO) permits the exciusion ofa shareholder proposal from a company's proxy materials where the proposal has been rendered moot. To be rendered moot a proposal must have been "substantially implemented by the issuer," but need not have been "fully effected." See Securities Exchange Act Release No. 20091 '(August 16, 1983) (adopting changes to Ru1:e 14a-8). The Staffhas indicated that, in order for a proposal to have been "substantially implemented," the company must have actually taken steps·to implement the proposal. See Brazilian Equity Fund, Inc. (May 8, 1998); The Growth Fund oESpain, Inc. (May 8,1998) (sharehQlder proposal using mandatory language requiring closed-end fund to adopt interval fund status could be excluded); The Emerging Mexico Fund, Inc. (May 8, 1998) (shareholder proposal recommending that the fund's board convert dosed-end fund to an open-end fund). a The Commission clarified the meaning of "substantially implemented" in its 1997 proposing release addressing Rule 14a-8, in which it stated that "{i]t is insufficient for the company to have merely considered the proposal, unless the proposal clearly seeks only consideration by the company, and not necessarily implementation." (italics added) Securities Exchange Act Release No. 39093 (September 19, 1997) (proposing changes to Rule 14a­ 8). See also Securities E;xchange Act Release No. 40018 (May 21, 1998) (adopting changes 20091 (August ' 16,1983). TheFund to Rule. 14a-8); Securities Exchange Act Release No.. and the Proponent agree the Proposal is precatory and onJr recommends that the Board take action to covert the Fund to an interval fund structure. As the Board considered the The Proposal is worded as a request for the Board to take certain actions-namely, all steps necessary to adopt an interval fund structure. As a matter ofprocess, before the Fund could convert to an interval fund, two sequential steps must occur: fust, the Board must conclude, that it is in the ~t interest ofthe Fund to do so and, second, the necessary stockholder approval must be sought and obtained.. As such, the first action is that the Board must consider whether adopting such a structure is in the Fund's best interest. If the Board concludes it is, the Board must submit a proposal to stockholders. If the Board concludes it is not; the Board cannot lawfully submit a. proposal ~ sU;ckholders and the process ends. NY 72597251v4 . Sl ROOCK & STROOCK lie LAV.~N LLI' • ,NEW YORK. LOS ANCELbS • MIAMI 180 MAIDEN LoUIE, NEW YORK. NY 10038-4982 TH ~D.806.54QQ FAX 212.806.6Q06 W\\lW.STROO~K.COM April 2, 2010 Page: 5 Proposal and concluded that the conversion is not in the best mtercit of the Fund and its stockholders, the Fund believeS that the Proposal bas been substantially implemented because the Board is no~ able to take further ac;tion wlthout possibly violating its fiduciary duties, as discussed in greater detail herein. As such, the Fund has taken all necessary steps . 'to i:i:nplement the Proposal and may now exclude it from'its Proxy Materials pursuant to Rule 14a-8(i)(10). Alternatively, ifthe Proponent now believes the wording ofthe Proposal would mandate further Board action, then the Proposal is ilotprecatory and may be excluded purSuant to Rule 14a-8(i)(1) UIider the Exchange Act. On several occasions, the Staffhas taken the position that stockholder proposals that mandate action by a board ofdirectors constitute an unlawful intrusion on the board's discreti.onary authority, and may be omitted from a company's proxy materials under Rule 14a-8(i)(1). See Clemente Global Grwth Fund;, Inc. (January 14, .1998) (shareholder proposal phrased in mandatory terms to convert a closed-end fund to an open-end fund could be omitted from the fund's proxy materials unless cast as a request); Templeton Global Income Fund. Inc. (December 19, 1996) (same); The Growth Fund of Spain. Inc. (March 15, 1996); The Salomon Brothers Fund Inc. . Ganuary 24, 1992) (shareholder proposal mandating that the fund's board convert a closed­ end fund to an open-end fund could be omitted). Additional Grounds for Excluding the ProposalPursuant to Rule 14a-8 1. Rule 14a-8~)(7)-Management Functions Rule 14a-8(i)(7) permits the exclusion of a shareholder proposal from a company's proxy materials if it deals with a matter relating to the company's ordinary business operations. The Staffhas stated that, in deciding whether a shareholder proposal is excludable under Rule 14a-8(i)(7), it will consider, on a case-by-case basis, whether the proposal deals with a matter relating to a company's ordinary business operations, taking into account factors such as the nature of the proposal and the circumstances of the company. See Staff Legal Bulletin No. 14E (CF) (October 27, 2009). The Staffhas de~cribed the policy underlying the ordinary business exclusion as resting on two principal considerations: (1) whether the subject matter of the proposal relates to tasks ·that "are so fundamental to management's ability to run a company on a day-to-day basis that they could not, as a practical matter, be subject to direct shareholder oversight," and (2) "the degree to which the proposal seeks to "micro-manage" the company by probing too deeply into matters of a complex nature , UPQ.l;L. which shatehplders, as a group, would not be in a position to make an informed judgment." Securities Exchange Act Release No. 40018 (May 21, 1998). In a position we believe has been superseded, the Staff, of the Division of Investment Management stated that a proposal to convert a closed-end fund to an interval fund does not deal with the ordinary business operations ofa fund.. See The Growth Fund ofSpain, NY 72597251v4 STaOOe& !{ STaOOCK & LAV"~N LLP • NEW Y~lIK • LOS l\NGELIoS • MIAMI 1 SO MAIDEN LANE. !\llW YOllK: ~y I0038':'498~ 'tEL ~ 12. 806-'5400 FAX z·, ;2.806,6006 W\VW.STlIOOCK. COM Apri12,2010 P~e6 Inc. (March 15, 1996). More ,recently, however, the Staff of the Division of Corporate Finance has taken a different position on analogous facts. See, e.g., Medstone International. Inc. (May 1,2003) (exclusion ofproposal to implement share repurchase program); Vishay Intertechnology, Inc, (March 23, 2009) (exclusion of proposal to have company make irrevocable exchange offer); Cleco Corporation (January 21, 2003) (exclusion ofproposal to redeem all outstanding shares ofpreferred stock). Specifically, th~ Staffofthe Division of Corporate Finance has stated that th~ decision whether to repurchase shares ofa company's outstanding stock is an "integralpart ofthe [c]ompany's capital raising, capital management and financing activities and clearly a matt~r relating to i.ts ordinary business. The isSuance and repurchase of a corporation's securities as part of its overall capital structure and financing activity is a fundamental· aspect ofthe business and affairs ofa corporation to be managed.by the .[c]ompany's [b]oard of[d]ireetors." Medstone International Inc. (May 1, '2003), The Fund respectfully submits that the more recent views of the Staff of the Division of Corporate Financ~ with respect to the management ofthe capital structure ofan operating company are generally applicable to a closed-end fund's capital structure as well. The Staff of the Division of Corporate Finance has determined that the repurchase ora company's .securities as part of its overall capital structure is fundamental to management of the company and should not be the subject ofa stockholder proposal. ·As the Proposal seeks to have the Board make a detennination about the method, timing and amount ofrepurchases of the Fund's shares, the Fund. believes it should be able to exclude the entire Proposal under Rule 14a-8(i)(7). i ( ! ! !i . ( i !I i! ! ! 1 I I Even if the Staffconcludes that the entire Proposal D,lay not be omitted pursuant to Rule 14a-8(i)(7), the F1,lnd believes thatthe.terms ofthe repurchase offers under the Proposal are excludable from the Fund's Proxy Materials, as the determination ofthe fixed interval for the repurchase offers ("at least sem-annually... ") and the setting of the amount of each repurchase offer ("at least 10% of currently outstanding common shares") relates to the ordinary business operations of the FuncL The Staff has determined previously that the interval periods and amounts ofrepurchase offers by an interval fund relate to the conduct ofa :fu;nd's ordinary business. See Templeton Dragon Fund Gune 11, 1997) (fund may omit parts ofa stockholder proposal to adopt interval :fund structure relating to interval between repurchase offers and the amount ofthe repurchase offer). Additionally, Rule 23c-3(a)(3) requires a fund's board ofdirectors to have the fleXibility to set, in·its discretion, the amount . of a repurchase offer each time an offer is made. The Sta~ has stated previously that the determination ofthe repurchase offer amount relates to the conduct ofthe fund's ordinary business operations. rd. NY 72597251v4 STROOCIl. Ii: STROOCK III.&S • MIAMI 130 MAIJ>EI\ L!.!'IE, NEW Y01\K, NY 10038-4982 T1:L 2 J 2.8n6.$400 F:\~ 212.806.60Q6 WWW.STROOCK.COM I ! ii I ! !~ Apri12,2010 Page 7 2. Rule 14a-8(i)(2}-Violation ojIAW and ~e 14a-8(i)(6;'-:-Absence ojPowerlAuthority The rationale for excluding the Proposal under Rilles 14a-8(i)(2) and 14a-8(i)(6) is grounded in the fact that the Board has a fiduciary duty to act in the best int~rest of the Fund. Prior to submitting a proposal to the Fund's stockholders to approve the conversion, the Board is required, acting as a fiduciarY, to conclude that operating as an interval fund under Rme 23c-3 is in the Fund's best interest. The Staffhas stated in granting prior no­ action relief that it believes directors have a federal fiduciary duty in considering interval fund status. See Growth Fund ofSpain, Inc. (March 15, 1996).3 Rule 14a-8(i)(2)-Violation ojLaw . Rille 14a-8(i)(2) permits a company to exclude a stockholder proposal that would violate any state, federal or foreign law to which it is subject, including the 1940 Act. 4 If the Proponent intends the Proposal to require :further action by the Board, including but not limited to, submitting a proposal to a stockholder vote to approve the conversion, the Proposal woilld cause the Board to violates its fiduciary duties under federal law as the Board has concluded that the conversion is not in the best interest of the Fund and its stockholders. As a secondary matter, the Proposal's terms seek to require the Board to cause the Fund to make, at minimum, semi-annl,lal repurchases of10% ofthe Fund's shares. These provisions alSo preempt the Board's ability to exercise its discretion~ required explicidy by Rule 23c-3-to detennine when Fund shares shoUld be repurchased and the amount of each repurchase. The Staffhas considered the possibility that a company may exclude proposals that may cause a board ofdirectors to violate i~ fiduciary duties, even ifpart ofthe proposal may'be precatory in nature. See Templeton Global Income Fund, Inc. (December 19, 1996). . . 3 The Staff cites to the following precedent in its response to the fund's request for no-action assurance: Guide 2 ofForm N-2, including footnote 5; footnote 88 to Section rn.A ofChapter 11 ofthe Division ofIIIvestrnent Management United States Securities and Exchange Commission, Protecting Investoxs: ~ Half Century of Investment Company Regulation (May 1992); footnotes 61 and 62 to Investment Company Act Release No. 18869 (July 28,1992) (proposing Rule 23c-3» Section 36(a) ofthe 1940 Act authorizes the Commission to "bring an action in the proper district court of the United States...aIleging that a person [serving an investment company in various capacities. including director] has e}lgaged in. .. or is about to engage in any act or practice constituting a breach of fiduciary duty involving personal misconduct...Ifsuch allegations are established, the. court may enjoin such person from acting in any or all such capacities either pennanendy or temporarily and award such injunctive and other relief against such person as may be reasonable and appropriate in the circumstances...". NY 72597251v4 STROOC1t l(j,Hn(> F.\X zll.So6.6no6 wWW.SLRO.)L:K.CCll>j April 2; 2010 Page-10 Fund over the last five years, it is materially misleading to draw a direct comparison from the oper:ttions of the Comparison Funds to the interval fund structure described in the Proposal. The Proposal would require the Fun~ to conduct at least semi-annual repurchases for at least l00A ofits outstanding shares. Neither ofthe Comparison Funds has operated under that structUre during the prior five years. In addition, The India Fund has conducted several rights offerings to raise additional capital, which has more thai? offiet the amount of. shares repurchased since 2003. There _is no support for the Proposal's comparison between the Comparison Funds and the Fund, given their different interval fund structUres, with respect to the purported effect on a fund's discount or any resulting increase in shareholder value. In fact, the Fund believes it is materially misleading to draw the comparison' as the Fund's ID:terval fund structure under the Proposal is materially different from the structures of the C9mparison Funds. As sUch, the Fund believes that portion ofthe supporting statement may be omitted under Rule 14a-8(i)(3). I I I i * * * In accordance with Rule 14a-8(j), the Fund is contemporaneously notifying the Proponent, by copy of this letter and related exhilJits, of its intention to omit the Proposal from its Proxy Materials. As detailed in the correspondence included in Exhibit B, the Fund has previously notified the Proponent of its intention to omit the Proposal and submit this request for no-action relief. ­ Pursuant to StaffLegalBulletin No. 14D (CF),-Shareholder Proposals (November 7, 2008), Question C, we have submitted this letter and the related exhibits to the Commission via email to shareholdelJ1roposals@Sec.gov. The Fund acknowledges the Staff's long-standing practice of issuing ncraction responses that pernrit stockholders to make revisions that are minor in nature and do not alter the substance of the proposal. See Asia Pacific Fund. Inc. Guly 22, 2004); Division of Corporate Finance StaffBulletin No. 14 Guly 13, 2001). lithe Staffwere to pernrit the Proponent to amend the Proposal to address the various grounds for exclusion discussed above, the Staffwould be permitting the alteration of the substance of the Proposal. The Fund believes this would constitute a significant departure from the Staff's long-standing tender offe~. One of the primary reasons the fimd cited for the need to switch to semi-annual repurchases was the substantial reduction in the fund's asset base and increase in expense ratio. Exceptfor the first year it op=ted as an interval fuDd, The Asia Tigexs Fund has never offered to repurchase more than 5% ofits then-outstanding shares. The India Fund has conducted sexi:ri-annual repurchase offexs since its conversion to an interval fund. Except for the first repurchase offer in September 2003, the India Fund has Dever offered to repurchase more than 5% ofits then-outstanding shares. In addition, Since its conveISion to _an interval fimd, The India Fund has conducted three substantial rights offerings in 2005, . 2006 and 2009. Those ~ghts offerings raised approximately $250 million, $448 million and $415 million, respectively. NY 72597251v4 STnooCK .. STROOCK .. LAVAN LLI' • NEW YO~J( • LOS JlNCElES • MIAMI I SO MAIDEN LANE •. rlSw YORK. NY IQ031l-498z- ·rF.L 212.806.54-00 FAX 2.1:1..801),6006 \VWW.STROOCIt.COM j- ! Ii I ! I I I II I, April 2, 2010 Page 11 policy and practice: In the alternative, to the extent the Staff believes that minor revisions to the Proposal are possible. the Fund believes that any revis~d Proposal would continue to be excludable under Rule 14a-8(i}(10), given the Board's consideration of adoptipg an interval fund structure at its meeting on February 25, 2010. Ifthe Staffdisagrees with the Fund's conclusions regarding the omission ofthe Proposal, or if any additional submissions· are desired in support of the Fund's position, we would appreciate an opportunity to meet with the Staff or to speak with the Staffby telephon~ prior to the issuance ofthe Rule 14a-8(j) responSe. Ifyou have any questions regarding this reguest, or need any additional infonnation, please telephone the undersigned at (212) 806.6049. Very truly yours, Stuart H. Coleman Enclosures NY 72597251v4 STROOClt .. S'fROOCK .. LAVAN LLI' • NEW YORK' I.OS ANCEI.ES • MI ... MI 180 ~lAIOEN 1.... !'lE. NEW YORK. NY 10038-4982 ~·£I. :1.12.8.06.$400 FAX 212.806.6006 \VWW.STROOCK.COM ExmBIT A­ STOCKHOLDER PROPOSAL . .......... Walter S. Baer Inc. The Swiss Helvetia Fund, 1270 Avenue ofthe Americas, Suite 400 . New York, New York 10020 Attn: ·Secreiary of the Fund December 16,2009 I have been the beneficial owner ofshares ofThe Swiss Helvetia Fund, Inc. ("Fund") continuously for at least one year with a xmirket value ofat least $2000. I intend to hold these shares continuously until1he next meeting ofshareholders. Pursuant to Rule 14a-8 of the . Securities Exchange Act of 1934, I hereby submit the propo~aI and supporting statement . shown below for inclusion in the Fund proxy materials for the next meeting of shareholders. .I intend to present this proposal personally or through an authorized representative at that meeting. . . Please feel free to contact me by email; or phone ( if representatives ofthe Fund or its Board ofDirectors would like to discuss Uns proposal. WalterS. Eaer REsOLVED: The shar~holders ofThe Swiss Helvetia Fund, Inc. ("Fund") ask the·Board of Directors to:take the steps necessary to adopt an interval fund structure, whereby the Fund will conduct periodic tender offers. at least semiannually for at least 1O%~of cuttently outstanding commo~ shares at a price of.at least 98% ofnet asset value (NAV): SUPPOlITlNG STATEMENT: During 2009, our Fund has significantly underperformed the overall Swiss market both on a share price and NAV basis. Moreover, the FUI'1d's shares persistently trade at a double-digit discount from NAV, which has averaged more ~ 13% over the past five years. One proven way to .!educe tb,e discount is for the Fund to adopt an interval fund structure, in which the Fund conducts periodic tender offers for its shares at a price at or near NAV. This approach has been succe~ "implemented by other closed-end funds) such as.The Asia Tigers Fund and The India Fund, whose discounts under interval fund strUctures have averaged below 6% over the same five-year period. . What has worked for The Asia Tigers Fund and The India Fund will, in my opiniOJ;1, also woi;k for our Fund to reduce the .discount and Substantially increase shareholder value:. I I I EXHIBITB CORRESPONDENCE WITH PROPONENT .1 r i I I I . 1 i i i I I -- The Swiss Helvetia Fund, Inc. 1210AvenueofilieAmericas, Suite 400 NewYork, New York 10020 AtIn: Secretary of the Fund December 16,2009 I have been the beneficial oWner ofshares ofThe SwiSs Helvetia F~d, Inc. ("Fund") continuously for at least 000 year with a market value of at least $2000. I intend to hold these shares continuously until the next 'meeting ofsharehQlders. Pursuant to Rule 14a-8 of the . Securities Exchange Act of 1934, I hereby submit the proPosal and supporting statement . shown below for inclusiOIi in the Fund proxy materials for the next meeting pf shareholders. I intend to present this proposal personally or through an authorized representative at that meeting. . Please feel free to contact me by email \ _ _ \J! phone , representatives ofthe Fund or its Board ofDirectors would like to discuss this proposal. Yours very truly, .~ Walter s. :Baer RESOLVED: The s1lan;holders of The swiSs Helvetia Fund, Inc. ("Fund") ask the Board Of Directors to .take the steps necessary to adopt an interval fund structure, whereby the Fund will conduct periodic tender offers. at least semiannuallY for at least 1O%.of C1ll'rentIy outstanding commo~ shares at a price of.at least 98% ofnet asset value (NJ\.V): SUPPORTING STATEMENT: During 2009, our Fund has significantly underperformed the overall Swiss market both on a share price and NAV basis. Moreover, the Food's shares persistently trade at a doubl~digit discount from NAV, which has averaged more than 13% over the past five years. One proven way to .reduce tb,e discount.is. for the Fund to adop~ an interval fund structure, in which the Fund conducts periodic tender offers for its shares at a price at or near NAV. This approach has been succes~ b:nplemented by other closed-end funds, such as The Asia Tigers Fund and The India Fund, whose discounts under interval fund structures have averaged below 6% over 1he same five-year period. What has worked for The Asia Tigers Fund and The India Fund will"in my opWap, also wm:k for our Fund to reduce the.discount and substantially increase shareholder value. . . " , ~ ? ' _. = I I j. I ~... . '-~ . - ..!.-.,..-. ·I.. .,~··_:._..-----. __ ...... ~_._- E*TRADE Securities LLC P.O. Box 1542 M.;:rrifili!ld, VA 22116-1542 E*TRADE FI N A NC'IALo www.etrade.com . .• " ... J..:"ji.) .,~. 0. _ •• :~. "0 Member ANRA/SIPC I". ", ::; • I>fi~1rii~~r;il' 2oo~F"'" .' .:.\.... : •••.• : ;.f>o '" .-:.~.:J :..: :.:.",.".";' .0.".. . WaIterl3ae:;.·· '~.;.., .. ' . . Re: ~. '. ~:" ... .;. E*TRADE Securities AccOl.mt Walter Baer Revocable Trust Dear Mr. Baer. - This letter is in response to your request received on December 15. 2009, .for written confumation of ymp- ownership of Swiss Helvetica Fund (SWZ) shares in the above referenced E*TRADE Securities Trust ACcOlmt~ . Please allow this letter to serve as confirmation that Walter Baer is beneficial owner of slJares of Swiss Helvetica Food (SWZ) with a market value of over $2.000.00 as of Friday's market close (December 18, 2009). 'We can also confirm that Mr. Baer has owned these shares continuously for at.l~ one year p~or to October 30, 2009. . or Need help have additional questions? Feel free to visit our Online Service Center 24 hours a Clay.·7 days a week. You can quickly find the answer to common 'questions, track the progress of yo~. ~~~Re. ~quests, and seryice your accounts with the click of your mouse. Please visit litfps:fltis:etrad6{co'mleltlwelcome/oscinstructions, or simply type your keywords or questions in the search box on the top right ofour website and click "Go". . " you have any further E*TRADE is committed to providing quality customer service. Should . questions, plt TEL ;>1;>.806.5400 PAX 2I2.806~6oo6 WWW.STltOOCK.COM. - .. .- -'-~"_."--'-'-'.'- -"-" ... _--.--_.- . .-..---- ..... -_ ..--_..•._--­ The SEC's roles require that your response to this letter be postmarked or transmitted electronically no .later than 14 calendar days from the date you receive this letter. Please address any response to the Secretary of the Fund at The Swiss Helvetia Fund, Inc., 1270 Avenue of the Americas, Suite 400, New York, New York 10020. In addition to this letter outlining the procedural deficiencies of the Proposal, we will be sendIng you a subsequent letter outlining certain substantive reasons under Rille 14a-8 that we believe would permit the Fund to exclude the Proposal from its proxy statement to stockholders in connection with the 2010 Annual Meeting of Stockholders. Ifyou have any'questions with respect to the foregoing, please contact me at 212.806.6049. Sincerely, Stuart H.- Coleman cc: RudolfMillisits, ChiefExecutive Officer ofthe Fund Samuel B. Witt, ill, Esq., Chairman ofthe Board ofDirectors ofthe Fund William G. Farrar, Esq., Counsel to the Independent Directors ofthe Fund 2 . STnOOCl{ " STaOOC\( 3-*Cottec1ed Lct'tbrJ'* ..' . ....0; ..' ~ .Dear. MJ;", I(acr. :".ffiig I~~t~ i;~ j.n resPQos.e·.t'6·your xeq'Ue.. ;or siriJPly t}~ youd:cyiV-bras of 'que~liorisil" . th~ s.eiir;ch box 0n;th~·t~p ti&ht of-our We?sILc {lnd".diyk: '~G.~. :. . E""TI?ADE is commilled to .p(ovi~liJlg quylily cus.toincr .sei-\;ib~i ShQ~.l~. YPl;! 'ha~'e;: any··.fi}rlhlT C]u€s(ion~ .. p1ea.~e i;ortact (l·Financial·S.erv-i.ce /i.:>~~j.lltt; :t!.t :Ls.Q0,2Si2331. 'l-:Q'O ~~ t~ n~.i.dntgh1 {£1j"seyen days' a week.:. . .Sin.cery;:/y, . r-> 0~~~ Mella· Trav.eroS 'C6t:J:e1,'POn~~Dce Specialist nij1ini6,.DE·SceunUes I).(.~ STROOCK January 22, 2010 Stuart H. Coleman Direct Dial 212.806.6049 Direct Fax 2i2.806.9049 scoleman@s.troock.coi:n Mr. Walter S. Baer Re: The Syriss Helvetia Fund, Inc. Dear Mr. Baer: I am writing to inform you. ofdeficiencies that will permit our client, The Swiss Helvetia Fund, Inc. (the "Fund"), to exclude from its proxy statement and fonn ofproxyforits 2010 Annual Meeting of Stockholders (together, the "2010 ProXy Materials") your proposal received by the Fund on December 28, 2009 (the "Proposal"). In an effort to conserve the time and resources ofthe staffofthe Securities and Exchange Commission (the "SEC") and to avoid unnecessaty costs to the Fund and its stockholders, we advise you ofthese defects in advance ofour deadline·to submit the Fund's no-action request to exclude the Proposal from the 2010 Proxy Materials to permit you either to withdraw the Proposal or correct it, where you believe possible. The Proposal . . The Proposal would require the Fund's Board ofDirectors (the IIBoardll) "to take the steps . necessary to adopt interval fund structure, whereby the Fund will conduct periodic tender offers at least semiannually for at least 10% ofcurrentlY outstanding common: shares at a price ofat least 98% ofnet asset value (N"AV}.I' The only way for the Fund lawfully to conduct the periodic repurchases you contemplate is for it to comply with Rule 23c-3 under the Investment Company Act of1940, as amended (the "1940 Act"). The Proposal contains elements not peni:rltted by Rule 23c-3. . an The principal probiem with the Proposal arises because the Board is required, acting as a fiduciary, to conclude that operating ~ an interval fund under Rule 23c-3 is in the Fund's best interest. The Proposal would strip impermissibly the Board ofits discretion to make this judgment and to make similar necessa1.Y judgmenrs about the frequency ofrepurchase offers and their respective amounts. . . Rule 23~-3also requires separately that the Fund's stockholders (based on the larger vote commonly known as a "1940 Act Majority Vote") approve a fundamental investment NY 72496934v6 STROOClt .. STROOCK .. LAVAN l-l-P • NEW YO 11K • LOS ANGELES. MIAMI 180 MAIDBN LANE, NI>W YORK, NY 10038-4982 TEL 212.806.5400 FAX 216:806.6006 WWW.STBOOCK.COM January 22, 2010 Page 2 policy permitting the Fund to operate as an interval fund. This policy ma.y not be submitted for stockholder approVal unless and until. the Board has made the determination descnbed above. The Board has not made that determination and it may not do so in the ,future because, based on the facts relevant at the time of consideration, the Board may properly and reasonably conclude that operating as an interval fund is not in the Fund's best interest. As a' separate matter, even if the Board was· able to make the necessary determination and submitted a properly constructed proposal to the Fund's stockholders, no assurance can be given that a sufficient nUmber of stockholders would vote "FORII the propos~. , In addition, the Proposal se~ to require the Board to cause the Fund to make, at miniIllllITI., (i) semi-annual repurchases of (ii) 10% of the Fund's shares. These provisions also preempt the Board's ability to exercise its discretion-as required by Rule 23c-3--to determine when Fund shares should be repurchased and the amount of each repurchase. ReasQns to Exclude the Proposal ! I I If I I I The Proposal, as worded, can be excJnded from the 2010 ProXy Materials pursuant to Rnle 14a-8(i) for the following principal reasons: . Rule 14a-8(i)0)-ManagementFuncti.ons. Rule 14a-8(i)(7) permits the Fund to excJnde the Proposal because it deals witli. a matter relating to its ordinary business operations.1 The decision whetherto repurchase shares ofthe Fund's outstanding common stock (that is, the decision to adopt interval fund structure)' is an integral part of the Fund's capital management and clearly a matter relating to its ordinarY business. 2 an Similarly, the SEC has determined that the terms of the repurchase'offers that the Fund would be required to conduct pursuant to Rule 23c-3 fall within the ordinary business 3 " operations of the Fund. Rule 14a-8(i)(2)=-Violation ofLaw. Pursuant to Rule 14a-8(i)(2), the 'Fund can exclude proposals that would violate state, federal or foreign law to which it is subject, any 1 Amendments to Rules on Shareholder Proposals, Securities Exchange Act Release No. 23200, 1998 WL 254809 (May 21, 1998). 2 The Division ofCorpo:rate Finance has taken the view that stockhokier proposals requesting companies to implement share repurchase programs, offer to repurc:!lllSe and exchange one class ofcOIPIIlonstock:for another, and redeem. preferred stock were excludable under Rule 14a-8(i)(7). See, fur example. Medstone International, Inc.• 2003 WL 2013182, SEC :tq'o-Action Letter (May 1. 2003) (exclusion of Eroposal to implements1me repurchase program), VlShay Intertecbnology, Inc., 2009 WL 890016, SEC No-Action ~er (March 23, 2009) (exclusion ofproposal to have company make in:evoc;lble exchange , offer), 3:Q.d CIeco Corporation, 2003"WI. 194455. SEC No-Action Letter aanuary21. 2003) (exclusion ofproposal to redeem. all outstanding shares ofpreferred stock). ' 3 Templeton Dragon Fund, Inc., 1997 SEC No-Act. Letter LEXIS 675 anne 11. 19~7). NY 72496934v6 STROOCK !>l STROOCIt 1'1 LO\VAN LLP • NBW YORK. LOS ANGOlSS • MIAMI 180 MAID.N LANS, NEW YORK, NY I0038~oJ.98~ 'fEL 2I2.806:S400 fMc 212.806.6006 WWW.STl\OOCK.COM ,) January 22, 2010 Page 3 including Delaware state law and the 1940 Act. The defects identified above are cause to exclude the Proposal under Rule 14a-8(i)(2). I I Rule 14a-8(i)(3bViolation of Proxy Rules· and Rule 14a-9-False or Misleading Statements. Pursuant to Rule 14a-8(i)(3), the Fund can exclude a proposal or supporting statement if the proposal or supporting statement-or portiqns thereof-is contrary to any of the SEC's proxy rules, including Rule 14a-9, which prohibits materially £Use or misleading statements in proxy solicitation materials. Under these !=illes, the.Fund also can exclud:e a proposal-or language in a proposal--that is vagu.e and indefinite.4 . I : j i ! I Certainly, directing the Board to take action it lawfully cannot take constitutes such grounds. Similarly, language in the supporting statement-including its failure to identify circumstances where repurchase offers may be suspended, postponed or otherwise limited by the Fund's Bottd-renders portions ofthe supporting statement "false and misleading." 5 * * * We, urge you to consider our position and to consult as you deem necessary with your own advisers, recognizing that we are not your counsel. We are voluntarily providing you with the opportunity to make any revisions to the Proposal, in light ofthe Fund's views, as you feel appropriate. Please notify us no later than February 1, 2010 of any revisions to the Proposal, as we will need to take th.em into consideration should the Fund decide to file a no-acti.o~·request with the SEC. We will evaluate any 'revisions or amendtnentsto th.e Proposal in light ofpublic SEC guidance on amendments to stockholder proposals Under Rule 14a-8, and, on behalf of the Fund, take such action as the Board and management believe is appropriate. Stuart H. Coleman cc:. Rudo]fMillisits, ChiefExecutive Officer of the Fund Samuel B. Witt, III, Esq., Chaiiman ofthe Board ofDirectors of the Fund William G. Fan41', Esq., Counsel to the Independent Directors of the Fund 4 T. Row.e Price Group, Inc., 2003 WL 161102, SEC No-Action Lette:c (Tanuary 15, 2003) (permitting the company to exclude a proposal that was vague and indefinite, whereby stockh~ldcrs"VOting on the proposal would not be a.ble to determine with reasonable certainty what is being voted on). 5 Templeton Dragon Fund, Inc., 1997 SEC No:-Act. Letter LEXIS 675 (Tune 11, 1997). NY 72496934v6 STnOOCR " STl\OO~K !'l LAVAN LLP • NEW YORK. LOS ANGlilES • UIA/oil 180 MAIDEN LANB, NaW YOR", NY 10038-4982 'TEL 212.806.$400 PAX 2t2.80G.GoolS WWW.STROOCK.COM i I I ,f I Walter S. Baer Stuart H. Coleman Stroock, Stroock & Lavan LLP 180 Maiden Lap.e New York, New York 10038 JanlWY 29, 2010 Dear Mr. Coleman: I am responding to your letter of January 22,2010 alleging "deficiencies" in my shareholder proposal ofDecember 16,2009 submitted to The SWiss I:Ielvetia Fund, inc. ("Fund''), and advising me "either to withdraw the Proposal or correct it, where you believe possible." I first want to restate what I said in my earlier letter emailed on January 9, 2010: "1 hope that we will be able to work together to perfect the wording ofmy proposal, ifnecessary, or otherwise resolve such issues without Unnecessarily bothering the SEC or burdening the. Fund's shareholders with further legal expenses." I would very much like to do this, but your January 22lt?tter seems to misconstrue entirely the nature ofmy proposal. You say my proposal "would require the Fund's Board ofDirectors (the ''Board'') to take the steps necessary to adopt an interv81 fund structure, ..." In fact, my proposal (copy attached) says "The shareholders ask the Board ofDirectors to take the steps necessary to adopt an interval fund structure, " The words ask and require have quite different meanings, and my use ofthe word "ask" should clearly indicate that this is a precatory proposal for the Board's consideration. However, ifyou think the word "ask" is unclear or too belligerent, I would be willing to substitute "request" for "ask" in the proposal. Let me now turn to the three "Reasons to Exclude the Proposal" stated in your letter: Management Functions. "Rule 14a-8(i)(7) permits the Fund to exclude the Proposal because it deals with a matter relating t~ its normal business operations." It is hard for me to believe that anymie would seriously consider adoption ofan interval fmid structure to be an ordinary business operation; but if that is your position, I certainly dispute it. Rule 14a-8(i)(2) - Violation ofLaw. I assume this refers to your misconstruing the proposal . as requiring Board action, which I've discussed above. Otherwise, I have no idea what law(s) you believe would be violated, or why, so I have no idea how to respond. . . Rule 14a-8(i)(3) - Violation ofProxy Rules and Rule 14a-9 - False or Misleading Statements Your letter doesn't ide:ntify what wording in the proposal or supporting statement you find objectionable. If you did so mdicate, I'd try to respond with the goal offmding language that .if you is mutually acceptable. Please feel free to call me at think further discussion cotild help us reach that goal. Sincerely, Walter S. Baer froposal submitted to The Swiss Helvetia Fund, Inc. on December 16. 2009 RESOLVED: The shareholders ofThe Swiss Helvetia Fund, Inc. (''Fund'') ask the Board of Directors to take the steps necessary to adopt an interval fund structure, whereby the Fund will conduct periodic tender offers at least semiannually for adeast 10% of currently outstanding commo~ shares at a price of at least 98% of net asset value (NAV). SUPPORTING STATEMENT: During 2009. our FtIlld has significantly underperfonned the overall Swiss market both on a share price and NAV basis. Moreover, the Fund's shares persistently trade at a double-digit discount from NAV, which has averaged more than 13% over the past five years. One proven Way to reduce the discoUnt is for ~e Fund to adopt an interval fund structure, in which the Fund conducts periodic tender offers for its shares at a price at or near NAV. This approach has been successfully implemented by other closed-end' funds. such as The Asia Tigers Fund and The India Fund, whose discounts under interval fund structures have averaged below 6% over the same five-year period. What has worked for The Asia Tigers Fund and The India Fund will, in my opinion, also work for our Fund to reduce the discount and substantially increase shareholder value. STROOCK March 2, 2010 Stuart H. Coleman Direct Dial 212.806.6049 Direct Fax 212.806.9049 scoleman@stroockcom Mr. Walter S. Baer Re: The Swiss Helvetia Fund, Inc. Dear Mr. Baer. I am writing tci inform you that the Board ofDirectors (the "Boai:d") ofThe Swiss Helvetia .Fund, Inc. (the "Fund") met on February 25, 2010 to consider the .substance .of your proposal received by the Fund on December 28, 2009 (the "Proposal"), which has been the topic of our .correspondence over the last several weeks. As a matter ofprocess, before the Fund could convert to an interval fund, two sequential steps must occur: first, the Board must conclude that it is in the best interest ofthe Fund and its stockholders to do so ·and, second, the necessary. stockholder approval must be sought and obtained.1 Accordingly, the Board determined that light ofthe pendency ofthe preparation ofthe Fund's proxy statement for its 2010 Annual Meeting ofStockholders, it should consider your Proposal as ifit (1) had been submitted to and approved by the Fund's .stockholders at the 2010 Annual Me~ting ofStockholders and (ii) did not contain any of the deficiencies we identified previously. Doing so would enable the Fund to include a non-precatory proposal in its proxy statement if the Board determined tl;tat converting to an interval fund was in the best interest of the Fund and its stockholders. At its meeting on the 25th,· at which it was assisted by Fund counsel, the Board took the first necessary step and considered converting to an interval fund, After considerable discussion and review of materials prepared specifically for the ·meeting, including information prepared by an independent third party financial services fum engaged by the Fund, the Directors concluded that conversion to an interval fund,· including pursuant to the terms contained in your Proposal, was not in the best interest of the Fund and its stockholders. 1 Under the applicable rules of the Securities and Exchange Commission, impleIJientation of an ~terval fund structure requires the adoption of a "fundamental investment policy," which requires stockholder apprOV2l subsequent to the necessary Board determinations.. NY 72601214v5 STllOOCK .. STllOOCIC .. LAVAN LLP • NJlW YOllX • LOS ANCELES • MIAMI 180 MAII>EN LANE, ) (.t,; "Stu01rt H.Coleman" , "Ruedl HIIII,M:s" cRMlmsltsCswz.cam>. -sam MU G.Famtr" ~'f"~~ "Ryan Stoops- , ~ 1 FIle (141KB) -wllIbltn • Coleman let Dear Ms. Runyon. I am responding to the lettar dated Januery 8, 2010 from Sluarl H. Coleman Ihat was attached to your emaR message. Mr. Colemen's letter states that the letter (dated December 21, 2009) from E'Trade F1nanclal whIch I forwarded to The Swiss Helvetia Fund,lnc. ('Fund" or 'SWZ'), and which the Fund received on JanuaIY 4.2010. does nol edequalely "verify my ownership of Fund shares In accoldance with the requirements under Rule 14a·8(b).' The narerenced E"Trada letter does contain a clerice' error, In that" refers to my ownership of shares 01 the Fund "for atleast one year prior to Odober 30, 2009" instead of "for at least one year prior 10 December 16, 2009" which Is the dale my proposal was wrltten. I wli therefore ask E'Trade to send a corrected Jener directly to tha Secretary of the Fund. as Mr. Coleman has requesled. Howev.... Mr. Coleman's letter further says that "There Is no proof In thIslE"TredeJ letter that your [sic] own sheres • ooneficlally or reconl • of 'The Swiss Helvetica Fund, Inc: • because the E'Trade letter refers to 'Swlss Helvetica Fund (SWZ)" rather than "The Swiss Helvetica Fund, Inc.' Thls Is a silly example of legal pedantry that doesn't seem to me somelhlng Strock would be proud of. The facts are these: mona then five years a90, I purchased shanas of "The SwIss Helvetica Fund. Inc." (aka 'Swlss Helvetica Fund' or 'SWZ- or 'Fund') valued at mona than $2000; and I ha'/e held these shares continuously up to now, which Includes 'at least one year prior to' October 30, 2009. December 16. 2009. or any of the other dales men~oned in Mr. Coloman's letler. FinaDy, Mr. Colemen's letter says "w. will be s.ndlng you a subsequent letter outlining certain subs1anllve' Issues regerdlng my proposal. I hope thai we will be abl. to work together 10 perted the wording of my proposal, if necessary. or othe>wlsa resolve such issues wllhout unnecessarily bothering the SEC or bunlening the Fund's shareholders with further legal expenses. Sincerely, Waher S. Baer .- On FrI, 118110. Runyan, Nicole M. wrote: From: Runyan, Nicole M. Subject: The Swiss Helveha Fund, Inc.-Deflclency NoUflcaUon To 0 Cc: ·CoIeman. Stuartt- , 'Ruedi Mftllslts' , 'Sam W1tt"• • • • • • • ·Farrar. WlDiam G." Date: Friday. JanuaIY 8.2010.2:36 PM Mr. Baer. Alt8ched is a copy or a lelter on behalf of The Swiss Helvetia Fund, Inc.. notifying you of certain procedural deflclencles under Rule 140-8 of the Securities Exchange Act or 1934, as emended, contained in your proposal received by the Fund on December 28, 2009, as supplemented by your letter received on January 4,2010. A hald copy 01 this letter also is beln9 senlto your ettentlon by FedE><. Regards, Nicole Runyan Nicole M. Runyan ~troock & Stroock & Lavan LLP 180 Malden Lane New York, New York 10038 T: 212.806.6443 . F: 212.806.7143 nrunyan@slroock.com --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Asec%3A7eb0e23d0fc525f2. Public record. Not legal advice.