Dividend and Income Fund
April 13, 2020
Omission of Shareholder Proposal Submitted by Alison Pampinella
April 10, 2020
Thomas A. DeCapo, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
500 Boylston Street
Boston, MA 02116
Re: Dividend and Income Fund
Securities and Exchange Act of 1934
Omission of Shareholder Proposal Submitted by Alison Pampinella Pursuant to Rule 14a-8
Dear Mr. DeCapo:
In a letter dated February 21, 2020, on behalf of the Dividend and Income Fund (the “Fund”), you requested confirmation from the staff of the Division of Investment Management that it would not recommend enforcement action to the Securities and Exchange Commission (the “Commission”) if a shareholder proposal and supporting statement (the “Proposal”) submitted by Alison Pampinella (the “Proponent”) is excluded from the proxy materials for the Fund’s 2020 Annual Meeting (the “Proxy Materials”). We have also received supplemental correspondence from you dated March 4, 2020, March 24, 2020, and April 10, 2020, and correspondence from Phillip Goldstein dated March 2, 2020, March 9, 2020, March 12, 2020, and March 28, 2020. The Proposal provides:
RESOLVED: The Fund’s rigged election bylaw should be replaced with the following one: “The nominees that receive the most votes cast at a meeting at which a quorum is present shall be elected as Trustees.”
The Fund argues that the Proposal may be excluded from the proxy statement, as permitted by Rule 14a-8(b)(1) under the Securities Exchange Act of 1934, as amended, because the Proponent does not hold securities entitled to be voted on the Proposal. You represent that the Proponent holds securities that are entitled to vote only on certain matters, which do not include the subject of the Proposal. Rule 14a-8(b) requires that in order to be eligible to have a proposal included in a company’s proxy materials, a shareholder must hold “securities entitled to be voted on the proposal.”
Based on the information you provided, there appears to be a basis for your view that the Proposal may be excluded in reliance on Rule 14a-8(b)(1). Accordingly, we will not recommend action to the Commission if the Fund excludes the Proposal from its Proxy Materials in reliance on Rule 14a-8(b)(1). In reaching this position, we have not found it necessary to address the alternative bases for omission of the Proposal upon which the Fund relies.
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 feel free to contact me at (202) 551-3250.
/s/ Raymond A. Be
Raymond A. Be
cc: Alison Pampinella