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U.S. Securities and Exchange Commission

Securities Exchange Act of 1934 Section 14 and Rule 14a-8(i)(7)
American Capital, Ltd.

February 5, 2009

Cydonii V. Fairfax
Two Bethesda Metro Center, 14th Floor
Bethesda, MD 20814


American Capital, Ltd.
File No. 814-00149
Shareholder Proposal of Massachusetts Laborers' Pension Fund

Dear Ms. Fairfax:

In a letter dated January 14, 2009, you notified the Securities and Exchange Commission ("Commission") of the intent of American Capital, Ltd. (the "Company") to exclude from its 2009 proxy soliciting materials a shareholder proposal (the "Proposal") submitted by the Massachusetts Laborers' Pension Fund ("Proponent"). The Proposal is contained in a letter from the Proponent dated December 1, 2008. The Proposal provides:

Resolved: That the shareholders of American Capital, Ltd. ("Company") hereby request that the Board of Directors adopt and disclose a written and detailed succession planning policy, including the following specific features:

  • The Board of Directors will review the plan annually;
  • The Board will develop criteria for the CEO position which will reflect the Company's business strategy and will use a formal assessment process to evaluate candidates;
  • The Board will identify and develop internal candidates:
  • The Board will begin non-emergency CEO succession planning at least 3 years before an expected transition and will maintain an emergency succession plan that is reviewed annually;
  • The Board will annually produce a report on its succession plan to shareholders.

You request our assurance that we would not recommend enforcement action to the Commission if the Company excludes the Proposal in reliance on Rule 14a-8(i)(7) under the Securities Exchange Act of 1934 because it relates to the Company's ordinary business operations.

There appears to be some basis for your view that the Proposal may be excluded pursuant to Rule 14a-8(i)(7). See, e.g., Whole Foods Market, Inc. (pub. avail. Nov. 25, 2008). Accordingly, we would not recommend enforcement action against the Company if it omits the Proposal from its 2009 proxy materials in reliance upon Rule 14a-8(i)(7).

Attached is a description of the informal procedures the Division follows in responding to shareholder proposals. If you have any questions or comments regarding this matter, please feel free to contact me at (202) 551-6970.


Mary A. Cole
Senior Counsel


Thomas P.V. Masiello
Executive Director
Massachusetts Laborers' Pension Fund
14 New England Executive Park, Suite 200
P.O. Box 4000
Burlington, MA 01803-0900

Incoming Letter

The Incoming Letter is in Acrobat format.


Modified: 02/06/2009