Correspondence 0001387131-23-006987 from U.S. Monthly Income Fund for Puerto Rico Residents, Inc. (CIK 0001843749)
U.S. Monthly Income Fund for Puerto Rico Residents, Inc. (CIK 0001843749)
Date: May 30, 2023 · CIK: 0001843749 · Accession: 0001387131-23-006987
AI Filing Summary & Sentiment
File numbers found in text: 811-23687
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CORRESP
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filename1.htm
Sidley
Austin LLP
787
Seventh Avenue
New
York, NY 10019
+1
212 839 5300
+1
212 839 5599 Fax
AMERICA ● ASIA PACIFIC ● EUROPE
+1
212 839 8744
kliekefett@sidley.com
Via
EDGAR
May 30, 2023
Michael
Rosenberg
Division
of Investment Management
United
States Securities and Exchange Commission
100
F Street, N.E.
Washington,
D.C. 20549-3561
Re: U.S.
Monthly Income Fund for Puerto Rico Residents, Inc., File No. 811-23687
Dear
Mr. Rosenberg:
On
behalf of our client, U.S. Monthly Income Fund for Puerto Rico Residents, Inc. (the “Fund”), set forth below
are responses to oral comments received over the telephone from the staff of the Division of Investment Management (the “Staff”)
of the Securities and Exchange Commission (the “Commission”) on May 24, 2023 with respect to the preliminary
proxy statement filed on May 19, 2023 by the Fund with the Commission under cover of Schedule 14A as form type PRE 14A (the
“Preliminary Proxy Statement”) relating to the Fund’s 2023 Annual Meeting of Shareholders (the “Meeting”).
For
your convenience, each response is prefaced by a paraphrasing of the Staff’s corresponding comment in bold, italicized text.
1. The
Preliminary Proxy Statement states that “[i]f the broker has not provided you with
competing proxy materials, the broker may vote your shares without your specific instruction
with respect to routine proposals, including, in that case, Proposal 1 to elect the Director
Nominees.” Please revise this statement to state that the broker may vote uninstructed
shares if it has not been provided with competing proxy materials.
Response:
The Fund acknowledges the Staff’s comment. Rule 452 of the New York Stock Exchange (the “NYSE”) states
that brokers may vote uninstructed shares only if the broker “has no knowledge of any contest.” In practice, the NYSE does
not recognize a “contest” until Broadridge does. Broadridge will code a proxy solicitation as a “contest” once
it receives printed definitive proxy materials from a dissident, unless a dissident instructs Broadridge to mail definitive proxy materials
only to certain shareholders (also known as a “stratified mailing”). In the event of a stratified mailing, Broadridge treats
the proxy solicitation
as a “contest” only for those shareholders who receive definitive proxy materials.
United States Securities and Exchange Commission
Division of Investment Management
May 30, 2023
Page 2
In
light of the foregoing, the Fund will revise the above statement as follows (with additions in bold underline and deletions
in strikeout):
If
the broker has not been provided you with competing proxy materials for distribution to you,
the broker may vote your shares without your specific instruction with respect to routine proposals, including, in that case, Proposal
1 to elect the Director Nominees.
2. Please
advise whether the amendments to the bylaws set forth in Proposal 2 and Proposal 3 require
shareholder approval under Puerto Rico law, New York Stock Exchange rules, or the Fund’s
organizational documents.
Response:
The Fund acknowledges the Staff’s comment. Under Section 3508 of the Puerto Rico General Corporations Act, shareholders may amend
bylaws, and boards may amend bylaws if such authority is granted by the certificate of incorporation. The Fund’s certificate of
incorporation does not authorize the Fund’s Board of Directors (the “Board”) to amend the Fund’s
bylaws. Accordingly, the bylaw amendments set forth in Proposal 2 and Proposal 3 cannot be adopted without shareholder approval.
3. Proposal
2 states that the Board intends to appoint Vincente Léon and José Villamil
to the Board if the proposal is approved by shareholders. Please provide all information
with respect to Messrs. Léon and Villamil that would be required by Item 22(b) of
Schedule 14A.
Response:
The Fund acknowledges the Staff’s comment and will revise Proposal 2 to include the information that would be required to be included
in the Preliminary Proxy Statement if Messrs. Léon and Villamil were director nominees.
4. The
Preliminary Proxy Statement states that the Board intends to appoint Vincente Léon
and José Villamil to the Board in the event that Proposal 2 is approved by shareholders.
Please explain why the appointment of Messrs. Léon and Villamil should not be presented
for shareholder approval in a separate proposal.
Response:
The Fund acknowledges the Staff’s comment. The Preliminary Proxy Statement discloses the Board’s intentions to appoint Messrs.
Léon and Villamil to inform shareholders of the anticipated effect of Proposal 2, but their appointment after the conclusion of
the Meeting does not require shareholder approval under the Fund’s bylaws. Under Article II, Sections 2 and 6 of the Fund’s
bylaws, the Board may unilaterally increase the size of the Board and appoint directors to fill the resulting vacancies. In the event
that they are appointed by the Board, Messrs. Léon and Villamil will be subject to election
at the 2024 annual meeting or, in the event that Proposal 3 is approved, at the annual meeting at which their classified term concludes.
United States Securities and Exchange Commission
Division of Investment Management
May 30, 2023
Page 3
5. Proposal
3 states that the proposed amendment provides for a classified board and provides that directors
may only be removed for cause. Please explain why the “for cause” removal provision
should not be presented for a vote in a separate proposal.
Response:
The Fund acknowledges the Staff’s comment. The Fund does not believe that the “for cause” removal provision in the
amendment should be separately presented for shareholder approval because the “for cause” removal standard is automatically
effective upon the adoption of a classified board under Puerto Rico law. Under Puerto Rico law, directors serving on a classified board
can only be removed for “just cause” unless the certificate of incorporation otherwise provides.1
The Fund’s certificate of incorporation does not contain any provisions applicable to director removal. Accordingly, the “for
cause” removal provision in the amendments set forth in Proposal 3 are mere conforming changes.
6. Proposal
3 states that “[u]nder Puerto Rico corporate law, directors elected to a classified
board cannot be removed without just cause, unless otherwise provided in the certificate
of incorporation.” Please add disclosure stating that the Fund’s certificate
of incorporation does not currently provide that the directors elected to a classified board
can be removed without cause and that, therefore, the bylaw amendment will have the effect
of enshrining in the charter that directors may only be removed for cause.
Response:
The Fund acknowledges the Staff’s comment and will revise Proposal 3 to include the following statement (in bold underline):
In
addition, the Proposed Classified Board Amendment provides that Directors may only be removed for cause. Under Puerto Rico corporate
law, directors elected to a classified board cannot be removed without just cause, unless otherwise provided in the certificate of incorporation.
The Fund’s certificate of incorporation does not provide that directors may be removed with or without cause. As
a result, if the Proposed Classified Board Amendment is approved, Directors may only be removed for cause. Under Puerto Rico corporate
law, directors could subsequently be removed without cause only if the Board subsequently approves, and shareholders adopt, an amendment
to the Fund’s certificate of incorporation providing that directors may be removed with or without cause.
___________________________
1
Section 3561(k)(1) of the Puerto Rico General Corporations Act (“In case of a corporation whose board of directors is classified
in groups, in accordance to subsection (d) of this section, in which case the stockholders may remove the director or directors only
for just cause, unless otherwise provided by the certificate of incorporation.”).
United States Securities and Exchange Commission
Division of Investment Management
May 30, 2023
Page 4
Please
direct any questions that you may have with respect to the foregoing or any requests for supplemental information by the Staff to Kai
Haakon E. Liekefett at (212) 839-8744.
Very
truly yours,
/s/ Kai Haakon E. Liekefett
Kai Haakon E. Liekefett
cc:
Alexandre-C. Manz, Fund Counsel
Owen
Meacham, Fund Counsel
José C. Sánchez-Castro, Member, Sánchez/LRV Law Firm
Nikos Buxeda, Partner, DLA Piper LLP (US)