As filed with the Securities and Exchange Commission on August 8, 2007.
Securities Act Registration No. 333-142681
Investment Company Registration No. 811-02328
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |X|
Pre-Effective Amendment No. 3 |X|
Post-Effective Amendment No. ___ |_|
And/or
REGISTRATION STATEMENT UNDER
THE INVESTMENT COMPANY ACT OF 1940 |X|
AMENDMENT NO. 16 |X|
Boulder Growth & Income Fund, Inc.
(Exact Name of Registrant as Specified In Charter)
2344 Spruce Street, Suite A
Boulder, Colorado 80302
(Address of Principal Executive Offices)
(303) 444-5483
(Registrant's Telephone Number, including Area Code)
Stephen C. Miller, Esq.
Joel L. Terwilliger, Esq.
Boulder Investment Advisers, LLC
2344 Spruce Street, Suite A
Boulder, Colorado 80302
(Name and Address of Agent for Service)
Copies to:
Arthur L. Zwickel, Esq.
Paul, Hastings, Janofsky & Walker, LLP
515 South Flower Street, 25th Floor
Los Angeles, CA 90071
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING: As soon as practicable after the
effective date of this Registration Statement.
If any securities being registered on this form will be offered on a delayed or
continuous basis in reliance on Rule 415 under the Securities Act of 1933, other
than securities offered in connection with a dividend reinvestment plan, check
the following box. [x]
It is proposed that the filing will become effective when declared effective
pursuant to Section 8(c). [x]
CALCULATION OF REGISTRATION FEE UNDER THE SECURITIES ACT OF 1933
====================================================================================================================================
Proposed Proposed
Title of Securities Maximum Offering Maximum Aggregate Amount of
Being Registered Amount Being Registered Price per Unit Offering Price Registration Fee
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Shares of Common Stock,
par value $.01 per share ("Shares") 3,801,119 Shares $8.44 $32,081,444.36(1) $3,432.72
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based on
the net asset value per share of the Boulder Growth & Income Fund, Inc., as
determined on August 3, 2007.
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment that specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until this Registration Statement shall
become effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
BOULDER GROWTH & INCOME FUND, INC.
Form N-2
CROSS REFERENCE SHEET
PART C OTHER INFORMATION
Information required to be included in Part C is set forth under the appropriate
item, so numbered, in Part C to this Registration Statement.
The Registrant has prepared this Pre-effective Amendment No. 3 to its
Registration Statement on Form N-2 for the purpose of filing Exhibit 2(l)(ii)
Opinion and consent of Venable LLP. Pre-Effective Amendment No. 3 does not
modify any provisions of the Prospectus or Statement of Additional Information
constituting Part A and Part B of the Registration Statement and, accordingly,
such Prospectus and Statement of Additional Information have not been included
herein.
Part C. Other Information.
Item 24. Financial Statements and Exhibits
1. Financial Statements:
a. Part A. Financial highlights are included in Part A (Prospectus)
of this Registration Statement.
b. Part B. The Fund's financial statements are included in the
Fund's 2006 annual report and are incorporated by reference into
the Statement of Additional Information of this Registration
Statement. The statements in the 2006 annual report include:
i. Report of Independent Accountants. (1)
ii. Statement of assets and liabilities as of November 30, 2006.
(1)
iii. Statement of operations for the year ended November 30,
2006. (1)
iv. Statement of cash flows for the year ended November 30,
2006. (1)
v. Statement of changes in net assets for each of the years
ended November 30, 2005 and 2006. (1)
vi. Schedule of Investments as of November 30, 2006. (1)
2. Exhibits
a. Fund's Charter
i. Articles of Incorporation of the Fund dated October 27, 1972
(2)
ii. Articles of Amendment dated October 9, 1991 (2)
iii. Articles of Amendment dated November 20, 1998 (2)
iv. Articles Supplementary dated January 27, 2000(2)
v. Articles of Amendment dated April 26, 2002(2)
vi. Articles of Amendment dated October 21, 2002(2)
vii. Articles of Amendment dated October 23, 2002(2)
viii. Articles Supplementary dated April 8, 2004(3)
ix. Articles of Amendment and Restatement dated May 18, 2004(3)
x. Articles of Amendment dated April 25, 2005(3)
xi. Articles of Amendment dated May 25, 2005(3)
xii. Articles Supplementary Creating and Fixing the Rights of
Preferred Stock dated October 14 , 2005(4)
b. Amended and Restated By-laws of the Fund (6)
c. Not applicable
d. Share certificate and Subscription Documents
i. Form of Subscription Certificate (8)
ii. Form of Broker Certification and Request for Additional
Rights (7)
iii. Form of Notice of Guaranteed Delivery (7)
iv. Information Agent Fee Agreement among the Fund and Morrow &
Co., Inc. (7)
v. Subscription Agent Fee Agreement among the Fund and Colbent
Corporation. (7)
e. Dividend Reinvestment Plan (3)
f. Not applicable
g. Investment Advisory Agreements
i. Amended and Restated Investment Advisory between the Fund
and Boulder Investment Advisers, L.L.C. ("BIA") dated April
26, 2002 (2)
ii. Amended and Restated Investment Advisory Agreement between
the Fund and Stewart Investment Advisers, Ltd. ("SIA") dated
April 26, 2002 (2)
h. Form of Purchase Agreement between the Fund, BIA and Merrill
Lynch (5)
i. Not applicable.
j. Custody Agreement between the Fund and Investors Bank & Trust
Company (3)
k. Other Agreements
i. Transfer Agency Agreement between the Fund and PFPC, Inc.
(3)
ii. Administration Agreement between the Fund and Fund
Administrative Services, LLC. (3)
iii. Amendment to Administration Agreement between the Fund and
Fund Administrative Services, LLC (3)
iv. Administration Agreement between the Fund and Investors Bank
& Trust Company (3)
v. Collateral Securities Account Agreement (3)
vi. Loan and Pledge Agreement between the Fund and Custodial
Trust Company (3)
vii. Delegation Agreement between the Fund and Investors Bank &
Trust Company (3)
viii. Auction Agency Agreement between the Fund and Deutsche Bank
Americas Trust Company (5)
ix. Broker-Dealer Agreement between the Fund, Bankers Trust
Company & Merrill Lynch (5)
l. Opinions of Counsel
i. Not applicable
ii. Opinion and consent of Venable LLP (8)
m. Consent to Service of Process with respect to Stewart West Indies
Trading Company, Ltd. (SIA) (5)
n. Consent of Deloitte & Touche LLP. (7)
o. Not applicable
p. Not applicable
q. Not applicable
r. Code of Ethics of the Fund, BIA and SIA (9)
s. Power of Attorney (included on signature page)
t. Financial Data Schedule (EDGAR version only)
(1) Incorporated herein by reference to the Registrant's Form N-CSR filed on
February 8, 2007, for year ending November 30, 2006 (Investment Company Act File
No. 811-02328; EDGAR Accession No. 0001104659-07-008716).
(2) Incorporated herein by reference to Amendment No. 8 to the Registration
Statement on Form N-2/A of the Registrant filed on November 20, 2002 (Securities
Act File No. 33-100634; EDGAR Accession Number 0000950117-02-002800.
(3) Incorporated hereby by reference to Amendment No. 9 to the Registration
Statement on Form N-2/A of the Registrant filed on July 11, 2005 (Securities Act
File No. 333-126503; EDGAR Accession Number 0001099343-05-000027.
(4) Incorporated hereby by reference to Amendment No. 11 to the Registration
Statement on Form N-2/A of the Registrant filed on October 11, 2005 (Securities
Act File No. 333-126503; EDGAR Accession Number 0001099343-05-000040.
(5) Incorporated hereby by reference to Amendment No. 10 to the Registration
Statement on Form N-2/A of the Registrant filed on October 7, 2005 (Securities
Act File No. 333-126503; EDGAR Accession Number 0001099343-05-000038.
(6) Incorporated hereby by reference to Amendment No. 13 to the Registration
Statement on Form N-2 of the Registrant filed on May 7, 2007 (Securities Act
File No. 333-142681; EDGAR Accession Number 0001099343-07-000061.
(7) Incorporated hereby by reference to Amendment No. 15 to the Registration
Statement on Form N-2 of the Registrant filed on August 8, 2007 (Securities Act
File No. 333-142681; EDGAR Accession Number 0001099343-07-000079.
(8) To be filed herewith.
(9) Incorporated hereby by reference to Amendment No. 14 to the Registration
Statement on Form N-2 of the Registrant filed on July 20, 2007 (Securities Act
File No. 333-142681; EDGAR Accession Number 0001099343-07-000074.
Item 25. Marketing Arrangements. Not Applicable.
Item 26. Other Expenses of Issuance and Distribution. The Fund expects to incur
approximately $158,000 of expenses in connection with the Offering. The
following table identifies the significant expenses associated with the
Offering.
NYSE Fees $3,600
Printing Costs $14,000
Fees and Expenses of Qualification Under State Securities Laws $ -
Auditing Fees and Expenses $5,000
Legal Fees and Expenses $87,500
Subscription Agent Expense $20,000
Information Agent Expenses $10,000
Street Account Proxy - Direct Bill from ADP $8,000
Underwriter Expenses $ -
Postage and Delivery Charges $5,000
Miscellaneous $5,000
TOTAL ESTIMATED COSTS $158,100
Item 27. Persons controlled by or under common control with the Fund. None.
Item 28. Number of Holders of Shares.
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Title of Class Record Holders as of August 1, 2007
--------------------------------------------------------------- ---------------------------------------------------------
Common Stock, par value $.01 per share 8,109
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Taxable Auction Market Preferred Stock,
Par value $.01 per share 1,000
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Item 29. Indemnification. Section 2-418 of the General Corporation Law of the
State of Maryland, Article VIII of the Registrant's Articles of Incorporation
(incorporated by reference as an Exhibit to this Registration Statement),
Article 5.2 of the Registrant's By-laws (incorporated by reference as an Exhibit
to this Registration Statement), the Investment Advisory Agreements
(incorporated by reference as an Exhibit to this Registration Statement) provide
for indemnification. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 (the "Act") may be permitted to directors, officers
and controlling persons of the Registrant, pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
Item 30. Business and Other Connections of the Investment Adviser. Registrant is
fulfilling the requirement of this Item 30 to provide a list of the officers and
directors of its investment advisers, together with information as to any other
business, profession, vocation or employment of a substantial nature engaged in
by that entity or those of its officers and directors during the past two years,
by incorporating herein by reference the information contained in the current
Form ADV filed with the Securities and Exchange Commission by each of BIA and
SIA on March 29, 2007 pursuant to the Investment Advisers Act of 1940, as
amended.
Item 31. Location of Accounts and Records.
Fund Administrative Services, L.L.C. Co-Administrator
2344 Spruce Street, Suite A
Boulder, CO 80302
State Street Bank and Trust Company Co-Administrator
200 Clarendon Street
PO Box 9130
Boston, MA 02117
PFPC, Inc. Transfer Agent for Common Shares
400 Bellevue Parkway
Wilmington, DE 19809
State Street Bank and Trust Company Custodian
200 Clarendon Street
PO Box 9130
Boston, MA 02117
Deutsche Bank Trust Company Americas Transfer Agent for Auction
280 Park Avenue, 9th Floor Market Preferred Stock
New York, NY 10017
Item 32. Management Services. Not applicable.
Item 33. Undertakings
1. The Registrant hereby undertakes to suspend the offering of the Rights
until it amends its Prospectus if (a) subsequent to the effective date
of its Registration Statement, the net asset value per share declines
more than 10 percent from its net asset value per share as of the
effective date of the Registration Statement or (b) the net asset
value per share increases to an amount greater than the estimated net
proceeds from the Offering as stated in the Prospectus.
2. Not applicable.
3. Not applicable.
4. Not applicable.
5. The Registrant hereby undertakes that:
a. for the purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of a registration statement in reliance
on Rule 430A and contained in the form of prospectus filed by the
Registrant under Rule 497(h) under the Securities Act of 1933
shall be deemed to be part of the Registration Statement as of
the time it was declared effective.
b. for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of
the securities at that time shall be deemed to be the initial
bona fide offering thereof.
6. The Registrant hereby undertakes to send by first class mail or other
means designed to ensure equally prompt delivery, within two business
days of receipt of an oral or written request, any Statement of
Additional Information.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, and the
Investment Company Act of 1940, as amended, the Registrant has duly caused this
Amendment to its Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Boulder and the State of
Colorado, on the 8th day of August, 2007
BOULDER GROWTH & INCOME FUND, INC.
By: /s/ Stephen C. Miller
President
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Stephen C. Miller and Carl D. Johns, and each and
any of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and his name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to the Registration Statement for the Boulder Total Return Fund,
Inc. on Form N-2, and to sign any registration statement that is to be effective
upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933,
as amended, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done; hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated
Signature Title Date
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/s/ Stephen C. Miller Chief Executive Officer and President August 8, 2007
----------------------------------------------------- ------------------------------------------------------------------------------
/s/ John S. Horejsi* Director August 8, 2007
/s/ Susan L. Ciciora* Director August 8, 2007
/s/ Joel L. Looney* Director and Chairman of the Board August 8, 2007
/s/ Dr. Dean L. Jacobson* Director August 8, 2007
/s/ Richard I. Barr* Director August 8, 2007
/s/ Carl D. Johns* Chief Financial Officer, Chief Accounting Officer, August 8, 2007
Vice President and Treasurer
*By Stephen C. Miller, attorney in fact