Securities Exchange Act of 1934 - Section 14(a) and Rule 14a-8(i)(8)
|Re:||TS&W/Claymore Tax-Advantaged Balanced Fund — Omission of Shareholder Proposal Submitted by The Denali Fund Inc. Pursuant to Rule 14a-8|
Dear Mr. Hale:
In a letter dated March 24, 2009, you notified the Securities and Exchange Commission ("Commission") of the intent of TS&W/Claymore Tax-Advantaged Balanced Fund (the "Trust") to exclude from its 2009 proxy soliciting materials a shareholder proposal (the "Proposal") submitted by The Denali Fund Inc. (the "Proponent"). The Proposal is contained in a letter from the Proponent dated February 18, 2009. The Proposal states:
Pursuant to the provisions of the Fund's by-laws and other organizational documents including the Fund's declaration of trust, The Denali Fund Inc. ("DNY"), whose address is set forth above, hereby notifies the Fund that it intends to nominate:
Richard I. Barr as a director of the Fund to fill the Class II trustee vacancy which represents holders of the Fund's issued and outstanding Preferred Shares at the Fund's 2009 annual meeting of shareholders, including any adjournment, postponement, rescheduling, or continuation thereof (the "Annual Meeting"). Mr. Barr's address is 2344 Spruce Street, Suite A, Boulder, Colorado, 80302. Enclosed with this letter is Mr. Barr's resume and written consent to serve as trustee for the Fund. Mr. Barr will make himself available for interviews with the Fund's nominating committee at its convenience and complete any requested questionnaires or other documents necessary and related to his nomination as an Independent Trustee to represent the holders of Preferred Shares.
You request our assurance that we would not recommend enforcement action to the Commission if the Trust excludes the Proposal because the Proposal relates to the election for membership on the company's board of directors or analogous governing body in violation of Rule 14a-8(i)(8) under the Securities Exchange Act.
There appears to be some basis for your view that the Proposal may be excluded pursuant to Rule 14a-8(i)(8) as relating to the election to the Trust's board of trustees. See, e.g., Midwest Banc Holdings, Inc. (pub. avail. Jan. 15, 2009); Transmeta Corp. (pub. avail. June 25, 2008); and Fonix Corp. (pub. avail. Nov. 27, 2007). Accordingly, we will not recommend enforcement action to the Commission if the Trust omits the submission from its proxy materials in reliance on Rule 14a-8(i)(8).
Attached is a description of the informal procedures the Division follows in responding to shareholder proposals. If you have any questions or comments concerning this matter, please call me at (202) 551-6945.
John M. Ganley
|cc:||Joel L. Terwilliger, Esq.|
|Associate General Counsel, The Denali Fund Inc.|
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