

[Federal Register: December 31, 2007 (Volume 72, Number 249)]
[Notices]               
[Page 74370-74372]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de07-95]                         

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 28083; 812-13464]

 
Millennium India Acquisition Company Inc.; Notice of Application

December 21, 2007.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTIONS: Notice of application for an order under section 6(c) of the 
Investment Company Act of 1940 (the ``Act'') granting an exemption from 
section 12(d)(3) of the Act.

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    Applicant: Millennium India Acquisition Company Inc. 
(``Applicant'').
    Summary of Application: Applicant seeks an order under section 6(c) 
of the Act to permit Applicant to invest in the securities of two 
issuers that each derives more than 15% of its gross revenues from 
securities related activities as defined in rule 12d3-1(d)(1) under the 
Act, in excess of the limitations in rule 12d3-1(b).
    Filing Dates: The application was filed on December 18, 2007, and 
amended on December 21, 2007.
    Hearing or Notification of Hearing: An order granting the requested 
relief will be issued unless the Commission orders a hearing. 
Interested persons may request a hearing by writing to the Commission's 
Secretary and serving Applicant with a copy of the request, personally 
or by mail. Hearing requests should be received by the Commission by 
5:30 p.m. on January 15, 2008, and should be accompanied by proof of 
service on Applicant, in the form of an affidavit or, for lawyers, a 
certificate of service. Hearing requests should state the nature of the 
writer's interest, the reason for the request, and the issues 
contested. Persons who wish to be notified of a hearing may request 
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street, 
NE, Washington, DC, 20549-1090. Applicant, c/o Mr. F. Jacob Cherian, 
Millennium India Acquisition Company Inc., 330 East 38th Street, New 
York, NY 10016.

FOR FURTHER INFORMATION CONTACT: Jean E. Minarick, Senior Counsel, at 
(202) 551-6811, or Janet M. Grossnickle, Branch Chief, at (202) 551-
6821 (Division of Investment Management, Office of Investment Company 
Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained for a fee at the 
Commission's Public Reference Branch, 100 F Street, NE., Washington, DC 
20549-0102 (tel. 202-551-5850).

Applicant's Representations

    1. Applicant, a Delaware corporation, is registered as a non-
diversified, closed-end management investment company under the Act. 
Applicant was formed in March 2006 as a special purpose acquisition 
company to serve as a vehicle to effect a merger, asset acquisition or 
other business combination with one or more businesses that have 
operations primarily in India.
    2. SMC Global Securities Limited (``SMC'') and SAM Global 
Securities Limited (``SAM''), together with their respective 
subsidiaries, comprise the SMC Group of Companies (the ``SMC Group''). 
The SMC Group, which is based in New Delhi, India, provides various 
financial services, including equities and commodities brokerage, 
mutual fund and initial public offering distribution, and depository 
and clearing services. More than 15% of SMC's and SAM's gross revenues 
are derived from ``securities related activities'' as defined in rule 
12d3-1(d)(1) under the Act.\1\
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    \1\ Subparagraph (d)(1) of rule 12d3-1 defines ``securities 
related activities'' to mean a person's activities as a broker, 
dealer, underwriter, or investment adviser to a registered 
investment company.
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    3. On May 12, 2007, Applicant entered into two substantially 
identical share subscription agreements (the ``Subscription 
Agreements'') to invest in 14.9% of the equity securities of each of 
SMC and SAM, subject to shareholder approval and other conditions (the 
``Acquisition Transaction'').\2\ In addition, Applicant has entered 
into a set of substantially identical option agreements that grant 
Applicant an option, exercisable within 30 days of the closing date of 
the corresponding Acquisition Transaction and subject to applicable 
law, to require SMC or SAM or both to begin regulatory approval 
proceedings that would permit it to issue global depositary shares to 
Applicant, which upon conversion into equity shares, represent an 
additional 6% of the equity share capital of SMC or SAM, as the case 
may be.
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    \2\ As described more fully in the application, Applicant does 
not seek to acquire more than 14.9% of the equity securities of SMC 
or SAM due to certain restrictions and lack of clarity in the 
regulatory approval process and timelines under Indian law.
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    4. The Applicant will not actively manage a portfolio. Rather, 
after the Acquisition Transaction closes, the Applicant intends to 
invest at least 80% of its assets in the securities of the SMC Group, 
U.S. government securities and other short-term instruments, unless or 
until such time as it raises additional capital. Upon consummation of 
the Acquisition Transaction and the related global depositary share 
acquisition, over 90% of Applicant's assets would be invested in the 
SMC Group. If the Applicant raises additional capital it may, if then 
permitted by Indian law and other regulatory requirements, make 
additional investments in the SMC Group or it may invest in one or more 
other Indian companies. Applicant does not seek an exemption from 
section 12(d)(3) of the Act for investment in the securities of any 
company other than the SMC Group.
    5. Applicant's certificate of incorporation requires that the 
holders of a majority of Applicant's publicly listed common stock 
approve the Acquisition Transaction at a stockholders' meeting convened 
to consider proposals to approve such transactions. Moreover, 
shareholders who do not approve of the transactions may elect to have 
their publicly-traded shares converted into cash. Applicant will be 
precluded from proceeding with

[[Page 74371]]

the Acquisition Transaction if more than 19.99% of Applicant's 
shareholders vote against the Acquisition Transaction and exercise 
their right to convert their shares to cash. Applicant filed definitive 
proxy materials on December 21, 2007, and expects to mail them to its 
shareholders on or about December 27, 2007. The shareholders' meeting 
is scheduled for January 10, 2008.
    6. Applicant believes that permitting Applicant to invest in the 
equity securities of SMC and SAM in excess of the quantitative 
limitations set forth in rule 12d3-1(b) would benefit Applicant and be 
in the best interests of shareholders. Applicant will comply with all 
other requirements of rule 12d3-1.

Applicant's Legal Analysis

    1. Section 12(d)(3) of the Act, with limited exceptions, prohibits 
a registered investment company from purchasing or otherwise acquiring 
any securities issued by any person who is a broker, a dealer, is 
engaged in the business of underwriting, or is either an investment 
adviser of a registered investment company or a registered investment 
adviser. Rule 12d3-1 under the Act exempts the acquisition of 
securities of an issuer that derived more than 15% of its gross 
revenues in its most recent fiscal year from ``securities related 
activities,'' provided that, among other things, immediately after such 
acquisition, (i) the acquiring company has invested not more than five 
percent of the value of its total assets in securities of the issuer 
and (ii) the acquiring company owns not more than 5% of the outstanding 
securities of that class of the issuer's equity securities. Section 
6(c) of the Act provides that the Commission may conditionally or 
unconditionally exempt any person, security or transaction from any 
provision of the Act or any rule thereunder, if and to the extent that 
such exemption is necessary or appropriate in the public interest and 
consistent with the protection of investors and the purposes fairly 
intended by the policy and provisions of the Act.
    2. Applicant requests an order pursuant to section 6(c) of the Act 
exempting Applicant from the provisions of section 12(d)(3) of the Act 
to the extent necessary to permit Applicant to invest in the equity 
securities of SMC and SAM, each an issuer that derives more than 15% of 
its gross revenues from ``securities related activities,'' in excess of 
the quantitative limitations set forth in rule 12d3-1(b).
    3. Applicant states that section 12(d)(3) was intended (a) to 
prevent investment companies from exposing their assets to the 
entrepreneurial risks of securities related businesses, (b) to prevent 
potential conflicts of interest and to eliminate certain reciprocal 
practices between investment companies and securities related 
businesses, and (c) to ensure that investment companies maintain 
adequate liquidity in their portfolios.
    4. Applicant believes that its investment in the SMC Group does not 
raise the same type of entrepreneurial risks that may have concerned 
Congress in enacting section 12(d)(3). Applicant states that the 
ownership structure of most securities related businesses has changed 
since the time of enactment from partnership to a corporate form 
resulting in the limited liability status of these entities. In this 
case, Applicant argues that shareholders choosing to invest in 
Applicant have sought exposure to a vehicle that that provides a non-
diversified investment in one or more businesses with operations 
primarily in India,\3\ and Applicant's shareholders will have the 
opportunity to approve or reject the proposed investment after full 
disclosure of the transactions and the attendant risks.
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    \3\ The information that Applicant's shareholders will receive 
after the Acquisition Transaction demonstrates Applicant's role as a 
vehicle for U.S. investors to invest in an Indian company. As 
described more fully in the application, Aopplicant generally will 
file Forms 8-K furnishing the quarterly and annual financial 
statements translated into U.S. GAAP of SMC and SAM within five 
business days of receipt from SMC and SAM and also file promptly 
Forms 8-K furnishing any material information publicly disclosed by 
SMC and SAM under the Indian securities regulatory scheme or that 
would be required if the underlying securities were being registered 
under the Securities Act of 1933, as amended.
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    5. Applicant also believes that the Acquisition Transaction will 
not create potential conflicts of interest for Applicant or its 
shareholders. One potential conflict could occur if an investment 
company purchased securities or other interests in a broker-dealer to 
reward that broker-dealer for selling fund shares, rather than solely 
on investment merit. Applicant notes that, as a condition to the 
granting of exemptive relief, the SMC Group and its affiliated persons 
within the meaning of section 2(a)(3) of the Act and affiliated persons 
of such affiliated persons (collectively, ``Affiliates'') will not sell 
any securities issued by Applicant and will not act as agent or as 
broker in connection with the sale of any shares of Applicant.\4\
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    \4\ The terms and conditions of the application will be made 
binding on SMC Group through an undertaking by the SMC Group or 
amendments to the Subscription Agreements.
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    6. Applicant states that another potential conflict of interest is 
that a broker-dealer could be influenced to recommend to its clients 
certain investment companies that invest in such broker-dealer, thereby 
using the assets of the investment companies to boost the price of the 
broker-dealer. Applicant notes that, as a condition to the requested 
order, the SMC Group and its Affiliates will not sell any securities 
issued by Applicant as an underwriter, will not make a market in any 
securities issued by Applicant and will not act as agent or a broker in 
connection with the sale of any shares of the Applicant.
    7. Applicant states that another purpose of section 12(d)(3) is to 
prevent investment companies from directing brokerage to a broker-
dealer in which the investment company has invested to enhance the 
broker-dealer's profitability or to assist it during financial 
difficulty, even though that broker-dealer may not offer the best price 
and execution. Applicant represents that it is not a trading vehicle 
and will not actively trade in securities of SAM, SMC or securities of 
other issuers. Further, as a condition to the requested order, 
Applicant and its Affiliates will not use the SMC Group or its 
Affiliates as a broker-dealer for the purchase or sale of any portfolio 
securities.
    8. Applicant also believes that section 12(d)(3) reflects a concern 
with respect to the liquidity of an investment company's portfolio. 
Because shareholders invested in Applicant for the specific purpose of 
buying and holding a vehicle that would provide a non-diversified 
investment in an Indian enterprise, liquidity of the Applicant's 
portfolio is not a concern for Applicant's shareholders. Moreover, 
Applicant is a closed-end investment company that does not offer 
redeemable securities; therefore, there are no minimum liquidity 
standards applicable to Applicant under the Act.
    9. Applicant believes that the Acquisition Transaction does not 
present the potential for the risks and abuses section 12(d)(3) is 
intended to eliminate, including the risk of reciprocal practices. 
Applicant believes that the standards set forth in section 6(c) have 
been met.

Applicant's Conditions

    Applicant agrees that the order granting the requested relief will 
be subject to the following conditions:
    1. The Acquisition Transaction will not be consummated unless it is 
approved by the holders of a majority of

[[Page 74372]]

the Applicant's publicly-listed shares of common stock present in 
person or by proxy at a stockholders' meeting convened to consider 
proposals to approve the Acquisition Transaction and unless holders of 
less than 20% of the Applicant's publicly-listed shares of common stock 
seek to convert their shares to cash.
    2. Applicant will not invest in any financial services companies 
other than the SMC Group. Applicant will not actively trade in 
securities of SAM, SMC or securities of other issuers.
    3. The SMC Group and its Affiliates will not sell any securities 
issued by Applicant as an underwriter, will not make a market in any 
securities issued by Applicant and will not act as agent or as a broker 
in connection with the sale of any shares of the Applicant.
    4. Applicant and its Affiliates will not use the SMC Group or its 
Affiliates as a broker-dealer for the purchase or sale of any portfolio 
securities.
    5. The SMC Group and its Affiliates will not act as custodian for 
Applicant and its Affiliates nor will they provide any other services 
to Applicant and its Affiliates.
    6. No officer of Applicant or member of Applicant's board of 
directors (``Board'') shall be affiliated with the SMC Group or its 
Affiliates (other than as a result of the Acquisition Transaction 
discussed herein).
    7. Applicant's Chief Compliance Officer will monitor and report to 
Applicant's Board no less than annually on compliance with these 
conditions.
    8. Applicant will comply with the provisions of rule 12d3-1 under 
the Act, except for paragraph (b) solely to the extent necessary to 
permit Applicant to have more than 5% of the value of its total assets 
invested in more than 5% of the outstanding securities of the classes 
of SMC Group's equity securities that are described in this 
application.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Nancy M. Morris,
Secretary.
[FR Doc. E7-25350 Filed 12-28-07; 8:45 am]

BILLING CODE 8011-01-P
