Correspondence 0001398344-25-005716 from NXG NextGen Infrastructure Income Fund (NXG)
NXG NextGen Infrastructure Income Fund
Date: March 18, 2025 · CIK: 0001506488 · Accession: 0001398344-25-005716
AI Filing Summary & Sentiment
File numbers found in text: 811-22072, 811-22499
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filename1.htm
[Letterhead of Skadden, Arps, Slate, Meagher &
Flom LLP]
March 18, 2025
U.S. Securities and Exchange
Commission
100 F Street NE
Washington DC 20549
Attn: Eileen Smiley
RE: Preliminary Proxy Statements, filed on March 10, 2025 by NXG
Cushing ® Midstream Energy Fund (File No. 811-22072) and NXG NextGen Infrastructure Income Fund (File No. 811-22499)
Dear Ms. Smiley:
Thank you for your telephonic
comments received on March 12, 2025 regarding the preliminary proxy statement (the "Preliminary Proxy Statement") of Cushing ®
Midstream Energy Fund ("SRV") and NXG NextGen Infrastructure Income Fund ("NXG" and together with SRV, each a
"Fund" and together the "Funds"), filed on March 10, 2025 pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the Investment Company Act of 1940, as amended (the "1940 Act"). The Funds have
considered your comments and have authorized us to make on their behalf the responses set forth below. Changes noted below will be reflected
in the definitive proxy statement (the "Definitive Proxy Statement") to be filed by the Funds. Capitalized terms not defined
herein have the definitions set forth in each Preliminary Proxy Statement.
Comment 1: We remind you that the Funds and their management are responsible
for the accuracy and adequacy of their disclosures, notwithstanding any review, comments, action or absence of action by the staff.
The
Funds acknowledge the comment.
Comment 2: The Staff notes that all comments are universal and apply to
all similar disclosures in the Preliminary Proxy Statement.
The Funds acknowledge the comment.
Comment 3: If the Funds decline a comment, please say why in the response
letter along with a detailed analysis of the reason for declining the comment.
The Funds acknowledge the comment.
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Comment 4: Please complete all open items in the Preliminary Proxy Statement
for the definitive proxy statement.
The Funds confirm that all open items will
be completed in the definitive proxy statement.
Comment 5: Please do not file a definitive proxy statement until all
comments are resolved, particularly the comments regarding the timing of the change of control of the Adviser and shareholder approval
of the New Advisory Agreements, as the SEC Staff considers this a material issue.
The Funds acknowledge the comment.
Comment 6: In the Questions & Answers, under the heading "Why
am I being asked to vote on a new investment advisory agreement?":
(a) Please disclose what is the current ownership percentage of Swank Capital between Jerry Swank and NXG Cushing.
The Funds note that the current ownership of
the Adviser and Swank capital are disclosed on page 13 of the preliminary proxy statement. Swank capital is solely owned by Jerry Swank.
NXG Cushing is solely owned by the Management Group. The Adviser is owned by Jerry Swank, Swank Capital and NXG Cushing. As of March 15, 2025, Mr. Swank owns 82.05% of the Adviser, Swank Capital owns 1% of the Adviser and NXG Cushing owns 16.95% of the Adviser. This information was included in the Preliminary Proxy Statement as of February 28, 2025, and in the Definitive Proxy Statement will be
updated to reflect the March 15, 2025 figures. In addition, in the Definitive
Proxy Statement, the Funds will add this information under the heading "Why am I being asked to vote on a new investment advisory
agreement?" in the Questions & Answers.
(b) Please disclose how Jerry Swank holds an interest in the Adviser indirectly? Is he a member of NXG Cushing?
As noted above, Mr. Swank holds his
indirect interest in the Adviser through Swank Capital. As of March 15, 2025, Mr. Swank owns 82.05% of the Adviser directly and
owns 1% of the Adviser indirectly through Swank Capital. This information was included in the Preliminary Proxy Statement as of February 28, 2025, and in the Definitive Proxy Statement will be
updated to reflect the March 15, 2025 figures. In addition, in the Definitive Proxy Statement, the Fund's will revise the
disclosure under the heading "Why am I being asked to vote on a new investment advisory agreement?" in the Questions
& Answers to clarify the nature of Mr. Swank's indirect ownership in the Adviser.
(c) Please disclose the amount of Jerry Swank's direct and indirect ownership of Adviser.
As noted above, Mr. Swank owns 82.05% of the Adviser
directly and 1% of the Adviser indirectly through Swank Capital. This information was included in the Preliminary Proxy Statement as of February 28, 2025, and in the Definitive Proxy Statement will be
updated to reflect the March 15, 2025 figures. In addition, in the Definitive Proxy Statement, the Funds will add this information
under the heading "Why am I being asked to vote on a new investment advisory agreement?" in the Questions and Answers.
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(d) What is the nature of the agreement governing the Adviser Ownership Plan? Is it set forth in the Adviser Operating Agreement or
is there another agreement? Have Jerry Swank, Swank Capital and NXG Cushing already entered into this agreement?
The Adviser Ownership Plan is set forth in
the Adviser Operating Agreement. The Adviser Operating Agreement was entered into by Jerry Swank, Swank Capital and NXG Cushing effective
as of June 6, 2024. The Funds have revised disclosure to clarify that the defined term "Adviser Ownership Plan" refers to
the series of transactions contemplated by the Adviser Operating Agreement and described in the Proxy Statement, and does not refer to
a separate agreement.
(e) The Staff notes the lack of definitive timing regarding when the changes of control will occur or if multiple changes of control
will occur and the amount of the quarterly distributions to be paid by the Adviser to reduce Jerry Swank's interest in the Adviser:
(i) Please revise the disclosure to provide a definitive time for when the change of control will occur and the New Advisory Agreements
will be entered into and describe such definitive time consistently throughout the Definitive Proxy Statement.
Due to the nature of the terms of the Adviser
Ownership Plan as set forth in the Adviser Operating Agreement, the Funds cannot provide a definitive time for when any Change of Control
Event will occur and when the New Advisory Agreements will be entered into, as the quarterly distributions paid by the Adviser to reduce
Jerry Swank's interest in the Adviser depend on the Adviser's assets under management and resulting revenues, which can vary.
The Funds intend to treat the acquisition
by NXG Cushing of a 25% economic interest in the Adviser to be the initial Change of Control Event (as described in further detail
in the response to Comment 6(e)(iv) below). The Adviser Operating Agreement requires the funds managed by the Adviser, including the
Funds, to obtain approvals of new advisory agreements before the ownership interest of NXG Cushing may exceed 24.99%.
Based on current and projected assets under management and revenues, management of the Adviser presently
expects that NXG Cushing would acquire such 25% economic interest in the Adviser in or around the second quarter of 2026.
The Funds will include disclosure in the Definitive
Proxy Statement regarding such expected timing, qualified by disclosure that such timing is not certain.
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(ii) Please supplementally explain why the Funds are seeking approval for the New Advisory Agreements at this time rather than seeking
approval upon the occurrence of a Change of Control Event (and entering into an interim advisory agreement at such time if needed).
The Board of Trustees of the Funds, in consultation
with management of the Funds, determined that it would be in the best interest of shareholders of the Funds to seek to obtain approval
of the New Advisory Agreements at the 2025 annual meeting to avoid the need to hold a special shareholder meeting if the initial Change
of Control Event occurs before the 2026 annual meeting and avoid the confusion that may result from multiple proxy solicitations and the
entry into interim advisory agreements. Obtaining shareholder approval of the new advisory agreements at the 2025 annual meeting will
provide the Adviser, the Funds and the markets certainty regarding the ownership plan for the Adviser and the continuity of management
services for the Funds.
(iii) Please provide legal analysis for seeking stockholder approval now for an event or events that may occur several years after such
approval is received and for numerous changes of control that could occur. Such analysis should include compliance with Section 15(a)
of the 1940 Act and whether shareholders will have sufficiently current information at the time of the vote on the proposal.
The Funds note that Section 15(a) does not specify
a minimum or maximum time period prior to the entry into an advisory agreement upon which shareholder approval must occur. In addition,
the Funds note that advisers undergoing changes of control routinely seek shareholder approval promptly upon entering into an agreement
(such as a purchase agreement or merger agreement) that would result in a change of control occurring upon closing, even when the date
of such closing is uncertain, is expected to occur many months after signing of the relevant agreement and/or is subject to other closing
conditions (such as client approvals, approval by shareholders of the target or acquirer or regulatory approvals). As noted above, management
of the Adviser currently expects the initial Change of Control Event to occur approximately one year after the receipt of shareholder
approval at the 2025 shareholder meeting. Such a period of time is within the range of timelines between an adviser entering into an agreement
related to a transaction that would result in a change of control and the closing of such seen in adviser acquisition transactions.
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While the exact timing of the initial Change
of Control Event is uncertain, the terms of the Adviser Ownership Plan are established by the Adviser Operating Agreement and are fully
known at this time, including the identity of the selling control person, the identity of the group acquiring control and the terms upon
which such acquisition will occur. The only information not known at this time is the exact timing, which as noted above is not uncommon
in adviser acquisition transactions. Thus Fund shareholders will have all necessary information to vote on the proposal at the 2025 annual
meeting, similar to other adviser acquisition transactions that close some period of time after the receipt of approval by fund shareholders.
Following shareholder approval at the 2025 annual
meeting, the Funds will regularly disclose the terms of the Adviser Ownership Plan and that shareholders have approved the New Advisory
Agreements in connection with Adviser Ownership Plan. Such disclosure will be included in all subsequent annual reports and semi-annual
reports to shareholders and prospectuses until the completion of the Adviser Ownership Plan. As a result, all future investors in the
Fund will do so on a fully informed basis, and can evaluate the Adviser Ownership Plan and shareholders' approval of the New Advisory
Agreements in making a decision to invest in the Funds.
With respect to subsequent Change of Control
Events, the shareholder approval obtained at the 2025 annual meeting pursuant to the Definitive Proxy Statement would apply only to Change
of Control Events that occur as a result of the operation of the Adviser Ownership Plan upon the terms described in the Definitive Proxy
Statement. The Funds have conditioned such approval such that "if there is a change from the facts described in this Proxy Statement
that is material to shareholders of the Funds in the context of a vote on an investment advisory agreement, any shareholder approval received
at the Meeting would no longer be valid to approve future investment advisory agreements that would otherwise be approved in the event
of subsequent Change of Control Events."
The Funds note that there is precedent for funds
seeking approval of multiple change of control events with uncertain timing arising from a series of gradual contemplated dispositions
by a control person of the funds' investment adviser. See, for example the definitive proxy statement filed by EQ Advisors Trust
on January 22, 2019 (SEC Accession No. 0001193125-19-013885)
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(iv) Please provide a legal analysis for the date of the initial change of control being when NXG Cushing's interest in the Adviser
reaches 60% as opposed to some time before and provide a date when that would occur.
The 1940 Act defines "Assignment"
to include "any direct or indirect transfer or hypothecation of a contract or chose in action by the assignor, or of a controlling
block of the assignor's outstanding voting securities by a security holder of the assignor." The 1940 Act defines "Control"
to mean "the power to exercise a controlling influence over the management or policies of a company, unless such power is solely
the result of an official position with such company." In addition, the 1940 Act establishes a presumption that any person who owns
more than 25% of the voting securities of a company shall be presumed to control such company and that any person who does not so own
more than 25% of the voting securities of any company shall be presumed not to control such company. The 1940 Act defines "Voting
security" to mean "any security presently entitling the owner or holder thereof to vote for the election of directors of a
company." In the case of the Adviser, the Adviser is operated by its general partner and limited partners do not have voting rights.
Accordingly, the Funds acknowledge that there may be an argument that NXG Cushing will acquire no voting securities until it acquires
a 60% economic interest and becomes the General Partner, and thus an acquisition of a controlling block of voting securities would occur
only upon the acquisition of a 60% economic interest by NXG Cushing.
Nonetheless, the Funds have determined to
take a more conservative approach, and in acknowledgment that NXG Cushing may have a significant influence over the management or
policies of the Adviser upon acquisition by NXG Cushing of a 25% economic interest in the Adviser, the Funds intend to treat the
initial Change of Control Event as occurring when NXG Cushing acquires a 25% economic interest in the Adviser. In addition, the
Adviser Operating Agreement requires the funds managed by the Adviser, including the Funds, to obtain approvals of new advisory
agreements before the ownership interest of NXG Cushing may exceed 24.99%.
As noted above, while the definitive timing of such Change of Control Event is uncertain, management of the Adviser currently expects
that NXG Cushing would acquire a 25% economic interest in the Adviser in or around the second quarter of 2026.
(v) Please provide supplementally a copy of the agreement governing the Adviser Ownership Plan.
As noted above, the Adviser Ownership Plan is
governed by the Adviser Operating Agreement, not by a separate agreement. The Funds have provided to the Staff supplementally excerpts of the relevant provisions of the Adviser Operating Agreement.
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Comment 7 The Preliminary Proxy Statement discloses that "Shareholder
approval will be deemed to apply to these future advisory agreements only if: (1) no single person or group acting together, other than
the members of the Management Group, gains "control" (as defined in the 1940 Act) of NXG Cushing or the Adviser …"
Please explain supplementally whether a person or group of persons could be added to the Management Group due to payment of consideration
to allow them to become a controlling person and acquire a controlling interest in the Adviser without separate shareholder approval.
The Funds confirm that if any person or group
were to become a member of