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As filed with the Securities and Exchange Commission on September 4, 2009 |
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Securities Act File No. 333-123257 |
Investment Company Act File No. 811-10325 |
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MARKET VECTORS ETF TRUST |
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(Exact Name of Registrant as Specified in its Charter) |
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335 Madison Avenue, 19 th Floor |
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New York, New York 10017 |
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(Address of Principal Executive Offices) |
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(212) 293-2000 |
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Registrants Telephone Number |
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Joseph J. McBrien, Esq. |
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Senior Vice President and General Counsel |
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Van Eck Associates Corporation |
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335 Madison Avenue, 19 th Floor |
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New York, New York 10017 |
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(Name and Address of Agent for Service) |
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Copy to: |
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Stuart M. Strauss, Esq. |
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Dechert LLP |
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1095 Avenue of the Americas |
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New York, New York 10036 |
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Approximate Date of Proposed Public Offering:
As soon as practicable after the
effective date of this
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IT IS PROPOSED THAT THIS FILING WILL BECOME EFFECTIVE (CHECK APPROPRIATE BOX) |
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Immediately upon filing pursuant to paragraph (b) |
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On September 4, 2009 pursuant to paragraph (b) |
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60 days after filing pursuant to paragraph (a)(1) |
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On [date] pursuant to paragraph (a)(1) |
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75 days after filing pursuant to paragraph (a)(2) |
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On [date] pursuant to paragraph (a)(2) of rule 485 |
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SEPTEMBER XX, 2009
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The Funds investment objective is to replicate as closely as possible, before fees and expenses, the price and yield performance of the CSI 300 Index*. The Fund does not invest directly in China A-shares, but intends to gain exposure to the China A-share market by investing in swaps that are linked to the performance of China A-shares.
An investment in the Fund involves a significant degree of
risk, including, but not limited to, the following:
The Advisers ability to manage the Fund will depend upon the availability of China A-shares and the willingness of swap counterparties to engage in swaps with the Fund linked to the performance of China A-shares. A counterpartys inability to continue to enter into swaps with the Fund could have a material adverse effect on the Fund.
The Fund may suffer significant losses if a swap counterparty fails to perform its obligations under the swap as a result of bankruptcy or otherwise. Given that, at present, there are only a limited number of potential counterparties willing and able to enter into swap transactions linked to the performance of China A-shares, the Fund may enter into swap transactions with as few as
one counterparty at any time.
Swaps in which the Fund will invest may need to be reset on a regular basis which may increase the likelihood that the Fund will generate short-term capital gains.
See Principal Risks of Investing in the FundRisk of Investing in Swaps and Shareholder InformationTax Matters for a further discussion of these and other risks of investing in the Fund.
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The CSI 300 Index is a registered trademark of China Securities Index Co., Ltd.
MARKET VECTORS ETF TRUST
The Securities and Exchange Commission (SEC) has not approved or disapproved these securities or passed upon the accuracy or adequacy of this Prospectus. Any representation to the contrary is a criminal offense.
This Prospectus offers shares of Market Vectors ETF Trust (the Trust). The Trust currently has 30 investment portfolios. This Prospectus relates to shares of only one portfolio: Market Vectors China ETF (the Fund).
No person has been authorized to give any information or to make any representations other than those contained in this Prospectus in connection with the offer of the Funds shares, and, if given or made, the information or representations must not be relied upon as having been authorized by the Fund. Neither the delivery of this Prospectus nor any
sale of shares of the Fund shall under any circumstance imply that the information contained herein is correct as of any date after the date of this Prospectus.
Dealers effecting transactions in the Funds shares, whether or not participating in this distribution, may be generally required to deliver a Prospectus. This is in addition to any obligation of dealers to deliver the Prospectus when acting as underwriters.
The Fund is distributed by Van Eck Securities Corporation and seeks to track the CSI 300 Index* (the CSI Index).
The CSI Index is published by China Securities Index Co., Ltd. (referred to herein as the Index Provider). The Index Provider does not sponsor, endorse, or promote the Fund and bears no liability with respect to the Fund or any security.
The information contained herein regarding the CSI Index was provided by the Index Provider, while the information contained herein regarding the securities markets and The Depository Trust Company (DTC) was obtained from publicly available sources.
This Prospectus, dated September xx, 2009, explains concisely the information you ought to know before investing in the Fund. We suggest that you keep it for future reference.
* The CSI 300 Index is a registered trademark of China Securities Index Co., Ltd.
TABLE OF CONTENTS
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Market Vectors ETF Trust (the Trust) is an open-end management investment company registered under the Investment Company Act of 1940, as amended (the 1940 Act), currently consisting of 30 investment portfolios. This Prospectus relates to the following portfolio of the Trust: Market Vectors China ETF (the Fund). Van Eck Associates
Corporation (the Adviser) is the investment adviser to the Fund.
The shares of the Fund (the Shares) are expected to be approved for listing, subject to notice of issuance, on NYSE Arca, Inc. (NYSE Arca), and will trade in the secondary market at prices that may differ to some degree from the net asset value (NAV) of the Shares. Unlike conventional mutual funds, the Trust will issue and redeem Shares of the
Fund on a continuous basis at NAV only in large specified blocks each called a Creation Unit. Creation Units are expected to be issued and redeemed principally for cash. Except when aggregated in Creation Units, Shares are not redeemable securities of the Trust.
The Fund may be suitable for long term investment in the market or market segment represented by the CSI Index. Shares of the Fund may also be used as an asset allocation or speculative trading vehicle. Unlike many conventional mutual funds which are only bought and sold at closing NAVs, the Shares have been designed to be tradable in a
secondary market on an intraday basis and to be created and redeemed generally for cash in Creation Units at each days market close.
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Principal Investment Objective and Strategies
Investment Objective
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The Funds investment objective is to replicate as closely as possible, before fees and expenses, the price and yield performance of the CSI 300 Index (the CSI Index). For a further description of the CSI Index, see CSI 300 Index.
Principal Investment Policy
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The Fund will normally invest at least 80% of its total assets in securities that comprise the Funds benchmark index and in investments that have economic characteristics that are substantially identical to the economic characteristics of the securities that comprise its benchmark index. This 80% investment policy is non-
fundamental and requires 60 days prior written notice to shareholders before it can be changed.
The CSI Index is comprised of China A-shares (A-shares). The A-share market in the Peoples Republic of China (China or the PRC) is made available to domestic PRC investors and certain foreign investors who have been approved as a Qualified Foreign Institutional Investor (QFII) and obtained a QFII license. A QFII license may be obtained by
application to the China Securities Regulatory Commission (CSRC) and Chinas State Administration of Foreign Exchange (SAFE). Approval of such application includes a specific aggregate dollar amount investment quota (the A-share Quota) in which the QFII can invest in A-shares. Investment companies are not currently within the types of entities
that are eligible for a QFII license. Therefore, in order for the Fund to invest directly in A-shares, the Adviser would need to apply for and obtain an A-share Quota.
The Adviser intends to submit an application for a QFII license in order to allow the Fund to invest directly in A-shares. There is no assurance that the Adviser will be able to obtain a QFII license and, if so, when such license would be granted. Furthermore, there are significant legal and operational obstacles that will need to be resolved before the Fund
can invest directly in the A-share market, including repatriation restrictions and A-share Quota limitations. Until the Adviser obtains a QFII license, and the significant legal and operational obstacles are resolved, the Fund will not invest directly in A-shares. See Principal Risks of Investing in the FundInvestments in A-shares and Investment and
Repatriation Restrictions.
Therefore, unless and until the Fund is able to invest directly in A-shares, the Fund intends to invest in swaps and other types of derivative instruments that have economic characteristics that are substantially identical to the economic characteristics of A-shares including swaps on the CSI Index and/or the A-shares which comprise the CSI Index. The
Fund may also invest in swaps on funds that seek to replicate the performance of the CSI Index or directly in
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CHINA ETF (continued)
securities of such funds. Assets not invested in swaps and other derivatives will be invested primarily in money market instruments.
An investment in the Fund involves a significant degree of risk. Among other things, the Advisers ability to manage the Fund in accordance with its stated investment objective will depend upon the continuing availability of A-shares and the willingness of potential swap counterparties to engage in swaps with the Fund linked to the performance
of A-shares. To the extent the A-share Quota of a potential swap counterparty is reduced or eliminated due to actions by the Chinese government or as a result of transactions entered into by the counterparty with other investors, the counterpartys ability to continue to enter into swaps or other derivative transactions with the Fund may be
reduced or eliminated, which could have a material adverse effect on the Fund. These risks are compounded by the fact that at present there are only a limited number of potential counterparties willing and able to enter into swap transactions linked to the performance of A-shares. See Principal Risks of Investing in the FundRisk of Investing
in Swaps. Furthermore, swaps in which the Fund will invest may need to be reset on a regular basis in order to maintain compliance with the 1940 Act, which may increase the likelihood that the Fund will generate short-term capital gains. See Shareholder InformationTax Matters. Please also see Principal Risks of Investing in the FundRisk
of Investing in China.
Indexing Investment Approach
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The Fund is not managed according to traditional methods of active investment management, which involve the buying and selling of securities based upon economic, financial and market analysis and investment judgment. Instead, the Fund, utilizing a passive or indexing investment approach, attempts to approximate
the investment performance of the CSI Index by investing in a portfolio of securities that generally replicates the CSI Index.
As discussed above, the Fund will utilize swaps and other types of derivative instruments to seek performance that corresponds to the CSI Index. The notional values of these swaps and other derivative instruments will count towards the Funds 80% investment policy. A lesser percentage may be so invested to the extent that the Adviser needs additional
flexibility to comply with the requirements of the U.S. Internal Revenue Code of 1986, as amended (the Internal Revenue Code), and other regulatory requirements.
Sales as a result of CSI Index changes could result in the realization of short or long-term capital gains by the Fund thereby resulting in a tax liability for shareholders subject to U.S. federal income tax. See Shareholder InformationTax Matters.
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CSI Index Constituents
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The CSI Index consists of 300 constituent A-shares that are listed on the Shanghai Stock Exchange or Shenzhen Stock Exchange. As of August 10, 2009, the constituent A-shares represented around 77% of the total market capitalization of the Shanghai Stock Exchange and the Shenzhen Stock Exchange.
Market Capitalization
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As of August 10, 2009, the CSI Index was comprised of companies with market capitalizations of greater than $950 million but less than $350 billion. The total market capitalization of the CSI Index as of August 10, 2009 was in excess of $2,542 billion.
Borrowing Money
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The Fund may borrow money from a bank up to a limit of one-third of the market value of its assets for temporary or emergency purposes. To the extent that the Fund borrows money, it will be leveraged; at such times, the Fund will appreciate or depreciate in value more rapidly than its benchmark, the CSI Index.
Fundamental and Non-Fundamental Policies
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The Funds investment objective and each of the other investment policies are non-fundamental policies that may be changed by the Board of Trustees without shareholder approval, except as noted in the SAI under the section entitled Investment Policies and RestrictionsInvestment Restrictions.
Principal Risks of Investing in the Fund
Investors in the Fund should be willing to accept a high degree of volatility in the price of the Funds Shares and the possibility of significant losses. An investment in the Fund involves a substantial degree of risk. Therefore, you should consider carefully the following risks before investing in the Fund.
Risk of Investing in Swaps.
The Fund will invest in swaps on the CSI Index or on securities comprising the CSI Index. The Fund may also invest in swaps on other funds that track the CSI Index or invest directly in the shares of such funds. The use of swap agreements entails certain risks, which may be different from, and possibly greater than, the risks
associated with investing directly in the underlying asset for the swap agreement. These risks include:
Limited Availability of Swaps
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The Advisers ability to manage the Fund in accordance with its stated investment objective will depend upon the continuing availability of A-shares and the willingness and ability of potential swap counterparties to engage in swaps with the Fund linked to the performance of A-shares. To the extent the A-share Quota of
a potential swap counterparty is reduced or eliminated due to actions by the Chinese government or as a result of transactions entered into by the counterparty with other investors, the counterpartys ability to continue to enter into swaps or other derivative transactions with the Fund may be reduced or
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CHINA ETF (continued)
eliminated, which could have a material adverse effect on the Fund. These risks are compounded by the fact that at present there are only a limited number of potential counterparties willing and able to enter into swap transactions linked to the performance of A-shares. Furthermore, swaps are of limited duration and there is no guarantee that
swaps entered into with a counterparty will continue indefinitely. Accordingly, the duration of a swap depends on, among other things, the ability of the Fund to renew the expiration period of the relevant swap at agreed upon terms.
If the Fund is unable to obtain sufficient exposure to the performance of the CSI Index because of the limited availability of swaps linked to the performance of A-shares, the Fund could, among other things, as a defensive measure suspend creations until the Adviser determines that the requisite swap exposure is obtainable. During the period that
creations are suspended, the Fund could trade at a significant premium or discount to the NAV and could experience substantial redemptions. To the extent that such events result in a termination event under the Funds swap agreements, the risks related to the limited availability of swaps would be compounded and the Fund may be adversely
affected. Alternatively, the Fund could change its investment objective and could thus track an alternative index focused on Chinese-related stocks other than A-shares or other appropriate investments.
Counterparty Risk
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Because a swap is an obligation of the counterparty rather than a direct investment in A-shares, the Fund may suffer losses potentially equal to, or greater than, the full value of the swap if the counterparty fails to perform its obligations under the swap as a result of bankruptcy or otherwise. Any loss would result in a reduction in
the NAV of the Fund and will likely impair the Funds ability to achieve its investment objective. The counterparty risk associated with the Funds investments is expected to be greater than most other funds because there are only a limited number of counterparties that are willing and able to enter into swaps on A-shares and the Fund expects to
use swaps as the principal means to gain exposure to the CSI Index. In fact, because there are so few potential counterparties, the Fund, subject to applicable law, may enter into swap transactions with as few as one counterparty at any time.
Liquidity Risk
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Swap agreements may be subject to liquidity risk, which exists when a particular swap is difficult to purchase or sell. If a swap transaction is particularly large or if the relevant market is illiquid, it may not be possible to initiate a transaction or liquidate a position at an advantageous time or price, which may result in significant losses
to the Fund. This is especially true given the limited number of potential counterparties willing and able to enter into swap transactions on A-shares.
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In addition, a swap transaction may be subject to the Funds limitation on investments in illiquid securities. Swap agreements may be subject to pricing risk, which exists when a particular swap agreement becomes extraordinarily expensive (or inexpensive) relative to historical prices or the prices of corresponding cash market instruments. The swaps
market is largely unregulated. It is possible that developments in the swaps market, including potential government regulation, could adversely affect the Funds ability to terminate existing swap agreements or to realize amounts to be received under such agreements.
Risks of A-shares and the QFII System
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Investments in swaps linked to the performance of A-shares are subject to general risks associated with A-shares and the QFII system. For example, although the CSRC may relax QFII eligibility requirements, making investment in A-shares easier and more widespread, this cannot be guaranteed. It is not
possible to predict the future development of the QFII system and the CSRC may even impose restrictions on QFIIs operations. Such restrictions may adversely affect the ability of potential counterparties to enter into swaps linked to the performance of A-shares. In addition, the existence of a liquid trading market for the A-shares may depend on
whether there is supply of, and demand for, such A-shares. The price at which the swaps on A-shares may be purchased or sold by the Fund upon any rebalancing activities or otherwise and the NAV of the Fund may be adversely affected if trading markets for the A-shares are limited or absent.
Tax Risk
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There is a risk that PRC tax authorities may seek to collect tax on capital gains realized by QFIIs on the sale of A-shares without giving any prior warning. If such tax is collected, the tax liability will be payable by the QFII. In such event, under the terms of the swaps or as otherwise agreed between the Fund and a counterparty, any tax
levied on and payable by the QFII in the PRC may be passed on to and borne by the Fund to the extent such tax is indirectly attributable to the Fund through its holdings of the relevant swaps. In addition, when the Fund sells a swap on A-shares, the sale price may take account of the QFIIs tax liability.
The Funds investments in swaps and other derivative instruments may be less tax-efficient than a direct investment in A-shares. Investments in swaps and other derivatives may be subject to special U.S. federal income tax rules that could negatively affect the character, timing and amount of income earned by the Fund (e.g., by causing amounts
that would be capital gain to be taxed as ordinary income or to be taken into income earlier than would otherwise be necessary). Also, the Fund may be required to periodically adjust its positions in its swaps and derivatives to comply with certain regulatory requirements which may further cause these investments
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CHINA ETF (continued)
to be less efficient than a direct investment in A-shares. For example, swaps in which the Fund will invest may need to be reset on a regular basis in order to maintain compliance with the 1940 Act, which may increase the likelihood that the Fund will generate short-term capital gains. In addition, because the application of these special rules may
be uncertain, it is possible that the manner in which they are applied by the Fund may be determined to be incorrect. In that event, the Fund may be found to have failed to maintain its qualification as a regulated investment company (RIC) or to be subject to additional U.S. tax liability. Moreover, the Fund may make investments, both directly
and through swaps or other derivative positions, in companies classified as passive foreign investment companies for U.S. federal income tax purposes (PFICs). Investments in PFICs are subject to special tax rules which may result in adverse tax consequences to the Fund and its shareholders. See Shareholder InformationTax Matters.
Currency Risk
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Because swaps on A-shares are denominated in U.S. dollars and the underlying A-shares represented by the swaps are denominated in Chinese renminbi (RMB), the ability of the Fund to track the CSI Index is in part subject to foreign exchange fluctuations as between the U.S. dollar and the RMB. The terms of the swaps require
the payment of the U.S. dollar equivalent of the RMB distributions and dividends received by the QFII, meaning that the Fund is exposed to foreign exchange risk and fluctuations in value between the U.S. dollar and RMB. See Foreign Currency Considerations and Risk of Direct Investment in Foreign Securities below.
Risk of Investing in Derivatives
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The Fund may invest in derivatives other than swaps. These derivatives will involve risks similar to the risks of engaging in swap transactions.
Risk of Investing in Other Funds
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The Fund may invest in shares of other funds, including exchange-traded funds (ETFs), that track the CSI Index. As a result, the Fund will indirectly be exposed to the risks of an investment in the underlying funds. Shares of other funds have many of the same risks as direct investments in common stocks or bonds. In
addition, the market value of such funds shares is expected to rise and fall as the value of the underlying index or bond rises and falls. The market value of such funds shares may differ from the net asset value of the particular fund. As a shareholder in a fund (as with ETFs), the Fund would bear its ratable share of that entitys expenses. At the same
time, the Fund would continue to pay its own investment management fees and other expenses. As a result, the Fund and its shareholders will be absorbing duplicate levels of fees with respect to investments in other funds, including ETFs. Such fees will not, however, be counted towards the Funds expense cap.
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Liquidity Risk
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The Fund may invest in illiquid securities. Liquidity risk exists when a particular investment is difficult to purchase or sell. If the Fund invests in illiquid securities or investments become illiquid, it may reduce the returns of the Fund because the Fund may be unable to sell the illiquid securities at an advantageous time or price.
Market Risk
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The prices of the securities in the Fund are subject to the risk associated with investing in the stock market, including sudden and unpredictable drops in value. An investment in the Fund may lose money.
Index Tracking Risk
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The Funds return may not match the return of the CSI Index for a number of reasons. For example, the Fund incurs a number of operating expenses not applicable to the CSI Index and incurs costs associated with buying and selling securities, especially when rebalancing the Funds securities holdings to reflect changes in the
composition of the CSI Index. The Funds return may also deviate significantly from the return of the CSI Index because the Fund bears the costs and risks associated with buying and selling securities while such costs and risks are not factored into the return of the CSI Index. The Fund may not be fully invested at times either as a result of cash flows
into the Fund or reserves of cash held by the Fund to meet redemptions and pay expenses. To the extent the Fund is unable to enter into swaps or other derivatives linked to the performance of the CSI Index or securities comprising the CSI Index, it may enter into swaps or other derivatives linked to the performance of other funds that seek to track
the performance of the CSI Index. These funds may trade at a premium or discount to NAV, which may result in additional tracking error for the Fund.
In addition, the Fund may not be able to invest in certain securities included in the CSI Index due to restrictions or limitations imposed by or a lack of liquidity in certain countries and stock exchanges in which such securities trade or may be delayed in purchasing or selling securities included in the CSI Index. Relevant PRC laws and regulations may
limit the ability of the QFII to acquire A-shares in certain PRC issuers from time to time and, in addition, a QFII may not be able to acquire A-shares to hedge the swaps in which the Fund invests. In such case, this may restrict the issuance, and therefore the purchase, of swaps linked to these A-shares by the Fund. This may occur in a number of
circumstances, such as (i) where the QFII holds in the aggregate 10% of the total share capital of a listed PRC issuer (regardless of the fact that the QFII may hold its interest on behalf of a number of different ultimate clients), and (ii) where the aggregated holdings in A-shares of all QFIIs (whether or not connected in any way to the Fund) already equal
20% of the total share capital of a listed PRC issuer. In the event that these limits are exceeded, the relevant QFIIs will be required to dispose of the A-shares in order to comply with the relevant requirements and, in respect of (ii), each QFII will dispose of the relevant A-shares on a last in
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CHINA ETF (continued)
first out basis. As a consequence, in such circumstances, the Fund may need to adopt a representative sampling strategy in order to achieve its investment objective which may cause increased tracking error. Furthermore, the tracking error of the Fund may be increased by the overall costs of maintaining the swaps. As a result of such costs the value
of the swaps may differ from the price of the A-shares to which such swaps are linked, leading to an increased tracking error.
The Fund is expected to fair value the foreign securities it holds. See Shareholder InformationDetermination of NAV. To the extent the Fund calculates its NAV based on fair value prices and the value of the CSI Index is based on the securities closing price on local foreign markets (
i.e.
, the value of the CSI Index is not based on fair value prices), the
Funds ability to track the CSI Index may be adversely affected. The need to comply with the diversification and other requirements of the Internal Revenue Code may also impact the Funds ability to replicate the performance of the CSI Index. In addition, to the extent the Fund utilizes swaps and other derivative instruments, which it currently intends to
use as its principal means to replicate the CSI Index, its return may not correlate as well with the CSI Index as would be the case if the Fund purchased all the securities in the CSI Index directly.
Risk of Cash Transactions
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Unlike most ETFs, the Fund expects to effect creations and redemptions for cash, rather than in-kind securities. As a result, an investment in the Fund may be less tax-efficient than an investment in a more conventional ETF. ETFs generally are able to make in-kind redemptions and avoid being taxed on gain on the distributed
portfolio securities at the Fund level. Because the Fund currently intends to effect redemptions for cash, rather than in-kind distributions, it may be required to sell portfolio securities in order to obtain the cash needed to distribute redemption proceeds. If the Fund recognizes gain on these sales, this generally will cause the Fund to recognize gain it
might not otherwise have recognized, or to recognize such gain sooner than would otherwise be required if it were to distribute portfolio securities in-kind. The Fund generally intends to distribute these gains to shareholders to avoid being taxed on this gain at the Fund level and otherwise comply with the special tax rules that apply to it. This strategy
may cause shareholders to be subject to tax on gains they would not otherwise be subject to, or at an earlier date than, if they had made an investment in a different ETF. Moreover, cash transactions may have to be carried out over several days if the securities market is relatively illiquid and may involve considerable brokerage fees and taxes. These
brokerage fees and taxes, which will be higher than if the Fund sold and redeemed its shares principally in-kind, will be passed on to purchasers and redeemers of Creation Units in the form of Creation and Redemption Transaction Fees. China may also impose higher local tax rates on transactions
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involving certain companies. In addition, these factors may result in wider spreads between the bid and the offered prices of the Funds Shares than for more conventional ETFs.
Replication Management Risk
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Unlike many investment companies, the Fund is not actively managed. Therefore, unless a specific security is removed from the CSI Index, the Fund generally would not sell a security because the securitys issuer was in financial trouble. If a specific security is removed from the CSI Index, the Fund may be forced to sell
such security at an inopportune time or for prices other than at current market values. An investment in the Fund involves risks similar to those of investing in any fund of equity securities traded on an exchange, such as market fluctuations caused by such factors as economic and political developments, changes in interest rates and perceived trends in
security prices. The CSI Index may not contain the appropriate mix of securities for any particular economic cycle, and the timing of movements from one type of security to another in seeking to replicate the CSI Index could have a negative effect on the Fund. Unlike with an actively managed fund, the Adviser does not use techniques or defensive
strategies designed to lessen the effects of market volatility or to reduce the impact of periods of market decline. This means that based on market and economic conditions, the Funds performance could be lower than other types of mutual funds that may actively shift their portfolio assets to take advantage of market opportunities or to lessen the
impact of a market decline.
Non-Diversified Risk
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The Fund is a separate investment portfolio of the Trust, an open-end investment company registered under the 1940 Act. The Fund is classified as a non-diversified investment company under the 1940 Act. As a result, the Fund is subject to the risk that it will be more volatile than a diversified fund because the Fund may invest
its assets in a smaller number of issuers or may invest larger proportions of the assets of the Fund in a single industry within the industries that comprise the CSI Index. As of June 30, 2009, the CSI Index included 300 securities. As a result, the gains and losses on a single security may have a greater impact on the Funds NAV and may make the
Fund more volatile than diversified funds.
Concentration Risk
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Subject to any tracking error which may arise, the Funds assets will generally be concentrated in a particular sector or sectors or industry or group of industries to the same extent that the CSI Index concentrates in a particular sector or sectors or industry or group of industries. The securities of many or all of the companies in the
same sector or industry may decline in value due to developments adversely affecting such sector or industry. In addition, the Funds assets will be concentrated in China. Consequently, events affecting China will have a greater impact on the Funds NAV and may make the Fund more volatile than if the Fund were more geographically diverse.
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CHINA ETF (continued)
Risk of Investing in Depositary Receipts
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The Fund may invest in depositary receipts, including unsponsored depositary receipts. Unsponsored depositary receipts may be established by a depositary without participation by the underlying issuer. Holders of an unsponsored depositary receipt generally bear all the costs associated with establishing the
unsponsored depositary receipt. These investments may involve additional risks and considerations including, for example, risks related to adverse political and economic developments unique to a country or region, currency fluctuations or controls and the possibility of expropriation, nationalization or confiscatory taxation. The issuers of the securities
underlying unsponsored depositary receipts are not obligated to disclose material information in the United States and, therefore, there may be less information available regarding such issuers and there may not be a correlation between such information and the market value of the depositary receipts. In addition, the Funds investments may also include
depositary receipts that are not purchased in the public markets and are restricted securities that can be offered and sold only to certain buyers. The Adviser will determine the liquidity of such investments pursuant to guidelines established by the Trusts Board of Trustees. It is possible that depositary receipts purchased by the Fund could have the
effect of increasing the level of the Funds illiquidity.
Leverage Risk
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To the extent that the Fund borrows money, it will be leveraged. Leveraging generally exaggerates the effect on NAV of any increase or decrease in the market value of the Funds portfolio securities.
Risk of Investing in China
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There are significant legal and operational hurdles that must be resolved before the Fund can operate as an ETF that invests directly in A-shares. The Fund, through the Adviser, must obtain an A-share Quota which authorizes a specific aggregate dollar amount investment quota. Because the Fund cannot invest in A-
shares in excess of the A-share Quota, the size of the Funds investment in A-shares may be significantly limited. In addition, there are significant restrictions on the repatriation of gains and income that may affect the Funds ability to satisfy redemption requests.
Whether the Fund invests directly in China through A-shares or indirectly through swaps or other means described in this Prospectus, investments in China involve certain risks and special considerations, including the following:
Political and Economic Risk
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The economy of China, which has been in a state of transition from a planned economy to a more market oriented economy, differs from the economies of most developed countries in many respects, including the level of government involvement, its state of development, its growth rate, control of foreign exchange, and
allocation of resources. Although the majority of productive assets in China are still owned by the PRC government at various levels, in recent years, the PRC
10
government has implemented economic reform measures emphasizing utilization of market forces in the development of the economy of China and a high level of management autonomy. The economy of China has experienced significant growth in the past 20 years, but growth has been uneven both geographically and among various sectors of the
economy. Economic growth has also been accompanied by periods of high inflation. The PRC government has implemented various measures from time to time to control inflation and restrain the rate of economic growth.
For more than 20 years, the PRC government has carried out economic reforms to achieve decentralization and utilization of market forces to develop the economy of the PRC. These reforms have resulted in significant economic growth and social progress. There can, however, be no assurance that the PRC government will continue to pursue such
economic policies or, if it does, that those policies will continue to be successful. Any such adjustment and modification of those economic policies may have an adverse impact on the securities market in the PRC as well as the underlying securities of the CSI Index. Further, the PRC government may from time to time adopt corrective measures to
control the growth of the PRC economy which may also have an adverse impact on the capital growth and performance of the Fund.
Political changes, social instability and adverse diplomatic developments in the PRC could result in the imposition of additional government restrictions including expropriation of assets, confiscatory taxes or nationalization of some or all of the property held by the underlying issuers of the A-shares in the CSI Index.
The laws, regulations, including the Investment Regulations allowing QFIIs to invest in A-shares, government policies and political and economic climate in China may change with little or no advance notice. Any such change could adversely affect market conditions and the performance of the Chinese economy and, thus, the value of securities in
the Funds portfolio.
Since 1949, the PRC has been a socialist state controlled by the Communist party. China has only recently opened up to foreign investment and has only begun to permit private economic activity. There is no guarantee that the Chinese government will not revert from its current open-market economy to the economic policy of central planning
that it implemented prior to 1978.
The Chinese government continues to be an active participant in many economic sectors through ownership positions and regulation. The allocation of resources in China is subject to a high level of government control. The Chinese government strictly regulates the payment of foreign
11
CHINA ETF (continued)
currency denominated obligations and sets monetary policy. Through its policies, the government may provide preferential treatment to particular industries or companies. The policies set by the government could have a substantial effect on the Chinese economy and the Funds investments.
The Chinese economy is export-driven and highly reliant on trade. The performance of the Chinese economy may differ favorably or unfavorably from the U.S. economy in such respects as growth of gross domestic product, rate of inflation, currency depreciation, capital reinvestment, resource self-sufficiency and balance of payments position.
Adverse changes to the economic conditions of its primary trading partners, such as the United States, Japan and South Korea, would adversely impact the Chinese economy and the Funds investments.
China has been transitioning to a market economy since the late seventies, reaffirming its economic policy reforms through five-year programs, the latest of which (for 2006 through 2010) was approved in March 2006. Under the economic reforms implemented by the Chinese government, the Chinese economy has experienced tremendous growth,
developing into one of the largest and fastest growing economies in the world. There is no assurance, however, that such growth will be sustained in the future.
Moreover, the current major slowdown in other significant economies of the world, such as the United States, the European Union and certain Asian countries, may adversely affect economic growth in China. An economic downturn in China would adversely impact the Funds investments.
Inflation
.
Economic growth in China has also historically been accompanied by periods of high inflation. Beginning in 2004, the Chinese government commenced the implementation of various measures to control inflation, which included the tightening of the money supply, the raising of interest rates and more stringent control over certain
industries. If these measures do not continue to be successful, and if inflation were to steadily increase, the performance of the Chinese economy and the Funds investments could be negatively impacted.
Tax Changes
.
The Chinese system of taxation is not as well settled as that of the United States. In addition, changes in the Chinese tax system may have retroactive effects.
Nationalization and Expropriation
.
After the formation of the Chinese socialist state in 1949, the Chinese government renounced various debt obligations and nationalized private assets without providing any form of compensation. There can be no assurance that the Chinese government will not take similar actions in the future. Accordingly, an
investment in the Fund involves a risk of a total loss.
12
Hong Kong Policy
.
As part of Hong Kongs transition from British to Chinese sovereignty in 1997, China agreed to allow Hong Kong to maintain a high degree of autonomy with regard to its political, legal and economic systems for a period of at least 50 years. China controls matters that relate to defense and foreign affairs. Under the agreement,
China does not tax Hong Kong, does not limit the exchange of the Hong Kong dollar for foreign currencies and does not place restrictions on free trade in Hong Kong. However, there is no guarantee that China will continue to honor the agreement, and China may change its policies regarding Hong Kong at any time. Any such change could
adversely affect market conditions and the performance of the Chinese economy and, thus, the value of securities in the Funds portfolio.
Chinese Securities Markets
.
The securities markets in China have a limited operating history and are not as developed as those in the United States. These markets tend to be smaller in size, have less liquidity and historically have had greater volatility than markets in the United States and some other countries. In addition, there is less regulation
and monitoring of Chinese securities markets and the activities of investors, brokers and other participants than in the United States. Accordingly, issuers of securities in China are not subject to the same degree of regulation as are U.S. issuers with respect to such matters as insider trading rules, tender offer regulation, stockholder proxy
requirements and the requirements mandating timely disclosure of information. Stock markets in China are in the process of change and further development. This may lead to trading volatility, difficulty in the settlement and recording of transactions and difficulty in interpreting and applying the relevant regulations.
Available Disclosure About Chinese Companies
.
Disclosure and regulatory standards in emerging market countries, such as China, are in many respects less stringent than U.S. standards. There is substantially less publicly available information about Chinese issuers than there is about U.S. issuers. Therefore, disclosure of certain material information
may not be made, and less information may be available to the Fund and other investors than would be the case if the Funds investments were restricted to securities of U.S. issuers. Chinese issuers are subject to accounting, auditing and financial standards and requirements that differ, in some cases significantly, from those applicable to U.S.
issuers. In particular, the assets and profits appearing on the financial statements of a Chinese issuer may not reflect its financial position or results of operations in the way they would be reflected had such financial statements been prepared in accordance with U.S. Generally Accepted Accounting Principles.
13
CHINA ETF (continued)
Chinese Corporate and Securities Law
.
The Funds rights with respect to its investments generally will not be governed by U.S. law, and instead will generally be governed by Chinese law. China operates under a civil law system, in which court precedent is not binding. The law is controlled exclusively through written statutes. Because there is no
binding precedent to interpret existing statutes, there is uncertainty regarding the implementation of existing law.
Legal principles relating to corporate affairs and the validity of corporate procedures, directors fiduciary duties and liabilities and stockholders rights often differ from those that may apply in the United States and other countries. Chinese laws providing protection to investors, such as laws regarding the fiduciary duties of officers and directors, are
undeveloped and will not provide investors, such as the Fund, with protection in all situations where protection would be provided by comparable law in the United States. China lacks a national set of laws that address all issues that may arise with regard to a foreign investor such as the Fund.
It may therefore be difficult for the Fund to enforce its rights as an investor under Chinese corporate and securities laws, and it may be difficult or impossible for the Fund to obtain a judgment in court. Moreover, as Chinese corporate and securities laws continue to develop, these developments may adversely affect foreign investors, such as the
Fund.
Investments in A-shares
.
Currently, there are two stock exchanges in mainland China, the Shanghai and Shenzhen Stock Exchanges, and there is one stock exchange in Hong Kong. The Shanghai and Shenzhen Stock Exchanges are supervised by the CSRC and are highly automated with trading and settlement executed electronically. The Shanghai
and Shenzhen Stock Exchanges are substantially smaller, less liquid and more volatile than the major securities markets in the United States. In comparison to the mainland Chinese securities markets, the securities markets in Hong Kong are relatively well developed and active.
The Shanghai Stock Exchange commenced trading on December 19, 1990, the Shenzhen Stock Exchange commenced trading on July 3, 1991 and the Hong Kong Stock Exchange commenced trading on April 2, 1986. The Shanghai and Shenzhen Stock Exchanges divide listed shares into two classes: A-shares and China B-shares (B-shares).
Companies whose shares are traded on the Shanghai and Shenzhen Stock Exchanges that are incorporated in mainland China may issue both A-shares and B-shares. In China, the A-shares and B-shares of an issuer may only trade on one exchange. A-shares and B-shares may both be listed on either the Shanghai or Shenzhen Stock Exchanges.
Both classes represent an ownership
14
interest comparable to a share of common stock and all shares are entitled to substantially the same rights and benefits associated with ownership. A-shares are traded on the Shanghai and Shenzhen Stock Exchanges in Chinese currency. All repatriations of gains and income on A-shares require the approval of SAFE.
Foreign investors have historically been unable to participate in the A-share market. However, in late 2002, Investment Regulations promulgated by the CSRC came into effect that provided a legal framework for QFIIs to invest in A-shares on the Shanghai and Shenzhen Stock Exchanges and certain other securities historically not eligible for
investment by non-PRC investors, through quotas granted by SAFE to those QFIIs which have been approved by the CSRC. Pursuant to an administrative notice issued by the CSRC on implementing the Investment Regulations, a QFII may invest in stocks listed and traded on a stock exchange, bonds listed and traded on a stock exchange,
investment companies, warrants listed and traded on a stock exchange, and other financial instruments approved by the CSRC (due to technical reasons, QFIIs currently cannot participate in the repurchase of government bonds and trading of corporate bonds on the Shenzhen Stock Exchange). QFIIs are subject to the PRC Foreign Investment
Industrial Guidance Catalogue. Accordingly, QFIIs are only permitted to invest in market sectors that are classified as open to foreign investment. Further, no single QFII may acquire A-shares exceeding more than 10% of the total number of shares of any listed company, and the aggregate holdings of A-shares of all QFIIs in any listed company
cannot exceed 20% of the total number of its shares. It is expected that SAFE will issue a new Circular on Relevant Issues in Foreign Exchange Administration in Implementing the Measures for the Administration of the Securities Investments of Qualified Foreign Institutional Investors in the PRC (which is in draft form as of the date of this
Prospectus) (Draft New SAFE Circular). Some of the restrictions described in this Prospectus are based on the Draft New SAFE Circular and thus are not final and may be changed when SAFE formally issues its new circular.
As of the end of 2008, the CSRC had granted licenses to QFIIs to invest up to US$12.8 billion in A-shares and other permitted securities. Because restrictions continue to exist and capital therefore cannot flow freely into the A-share market, it is possible that in the event of a market disruption, the liquidity of the A-share market and trading prices
of A-shares could be more severely affected than the liquidity and trading prices of markets where securities are freely tradable and capital therefore flows more freely. The Fund cannot predict the nature or duration of such a market disruption
15
CHINA ETF (continued)
or the impact that it may have on the A-share market and the short-term and long-term prospects of its investments in the A-share market.
The Chinese government has in the past taken actions that benefited holders of A-shares. As A-shares become more available to foreign investors, such as the Fund, the Chinese government may be less likely to take action that would benefit holders of A-shares. In addition, there is no guarantee that the Adviser will continue to benefit from the A-
share Quota if the A-share Quota is reduced or eliminated by the CSRC or SAFE at some point in the future. The Fund cannot predict what would occur if the Advisers A-share Quota, if granted, were reduced or eliminated, although such an occurrence would likely have a material adverse effect on the Fund.
From time to time, certain of the companies in which the Fund expects to invest may operate in, or have dealings with, countries subject to sanctions or embargoes imposed by the U.S. Government and the United Nations and/or countries identified by the U.S. Government as state sponsors of terrorism. A company may suffer damage to its
reputation if it is identified as a company which operates in, or has dealings with, countries subject to sanctions or embargoes imposed by the U.S. Government and the United Nations and/or countries identified by the U.S. Government as state sponsors of terrorism. As an investor in such companies, the Fund will be indirectly subject to those
risks.
Investment and Repatriation Restrictions
.
Investments by the Fund in A-shares, to the extent permitted, and other Chinese financial instruments regulated by the CSRC and SAFE, including Chinese government bonds, convertible bonds, corporate bonds, warrants and open- and closed-end investment companies, are subject to governmental pre-
approval limitations on the quantity that the Fund may purchase or limits on the classes of securities in which the Fund may invest. The Chinese government limits foreign investment in the securities of certain Chinese issuers entirely, if foreign investment is banned in respect of the industry in which the relevant Chinese issuers are conducting their
business. These restrictions may negatively affect the Funds ability to achieve its investment objective.
To the extent the Fund invests directly in the A-share market, the Adviser, if licensed as a QFII, will be required to remit the entire investment principal for its A-share Quota into a local sub-custodian account within such time period as specified by SAFE after the Adviser obtains a foreign exchange registration certificate from SAFE, the Chinese
government agency responsible for foreign exchange administration. Once remitted, investment capital may only be repatriated at certain designated times. Net
16
realized profits for any financial year of the Fund may not currently be repatriated until the completion of an audit by a registered accountant in China, payment of all applicable taxes and approval by SAFE. If the Adviser, as the QFII, needs to purchase foreign currency with RMB for remitting the net realized after-tax profit, it shall apply to SAFE by
presenting the requisite application documents and SAFE is required to make a decision within 20 business days after it receives a complete application according to the Draft New SAFE Circular.
To the extent the Fund does not distribute all of its net capital gain in a given year, requiring it to pay U.S. federal income tax on the retained gain, the Fund may elect to treat such capital gains as having been distributed to stockholders. In that case, stockholders of record on the last day of the Funds taxable year will be required to include their
attributable share of the retained gain in income for the year as a long-term capital gain despite not actually receiving the dividend, and will be entitled to a tax credit or refund for the tax deemed paid on their behalf by the Fund as well as an increase in the basis of their shares to reflect the difference between their attributable share of the gain
and the related credit or refund.
Risk of Loss of Favorable U.S. Tax Treatment
.
The Fund intends to distribute annually all or substantially all of its investment company taxable income and net capital gain. However, to the extent the Fund invests directly in the A-share market, if the Fund does not receive approval from SAFE to repatriate funds associated with such direct investment
on a timely basis, may be unable to satisfy the distribution requirements required to qualify for the favorable tax treatment otherwise generally afforded to RICs under the Internal Revenue Code. If the Fund fails to qualify for any taxable year as a RIC, the Fund would be treated as a corporation subject to U.S. federal income tax, thereby subjecting
any income earned by the Fund to tax at the corporate level at a 35% U.S. federal tax rate and, when such income is distributed, to a further tax at the stockholder level to the extent of the Funds current or accumulated earnings and profits. In addition, the Fund would not be eligible for a deduction for dividends paid to shareholders.
Foreign Exchange Control
.
The Chinese government heavily regulates the domestic exchange of foreign currencies within China. Chinese law requires that all domestic transactions must be settled in RMB, places significant restrictions on the remittance of foreign currency and strictly regulates currency exchange from RMB. Under SAFE regulations,
Chinese corporations may only purchase foreign currencies through government approved banks. In general, Chinese companies must receive approval from or register with the Chinese government before investing in certain capital account items, including direct investments and loans, and must thereafter
17
CHINA ETF (continued)
maintain separate foreign exchange accounts for the capital items. Foreign investors may only exchange foreign currencies at specially authorized banks after complying with documentation requirements. These restrictions may adversely affect the Fund and its investments. The international community has requested that China ease its restrictions
on currency exchange, but it is unclear whether the Chinese government will change its policy.
Investment Regulations
.
To the extent the Fund invests directly in A-shares, the investment regulations under which the Fund will invest in China and which regulate repatriation and currency conversion are relatively new. The application and interpretation of those investment regulations are therefore relatively untested and there is no certainty as to
how they will be applied. In addition, those investment regulations give CSRC and SAFE wide discretion and there is no precedent or certainty as to how this discretion may be exercised, either now or in the future. The A-share Quota is subject to review from time to time by the CSRC and SAFE and currently may be reduced or revoked by the
Chinese regulators and, according to the Draft New SAFE Circular if adopted as written, only in case of serious breach of law by the QFII. The Fund cannot predict what would occur if the Advisers A-share Quota were reduced or eliminated, although such an occurrence would likely have a material adverse effect on the Fund.
Custody Risks of Investing in A-shares
.
A-shares that are traded on the Shanghai or Shenzhen Stock Exchange are dealt and held in book-entry form through the China Securities Depository and Clearing Corporation Limited (CDSCC). To the extent the Fund invests directly in A-shares, securities purchased by the Adviser, if licensed and in its
capacity as a QFII, on behalf of the Fund, can currently be received by the CDSCC as credited to a securities trading account maintained in the joint names of the Fund and the Adviser. The Fund will pay the cost of the account. The Adviser may not use the account for any other purpose than for maintaining the Funds assets. To the extent the
Fund invests directly in A-shares, the Fund will obtain a legal opinion from the Funds Chinese counsel, confirming that, as a matter of Chinese law, the Adviser, as a QFII, will have no ownership interest in the securities and that the Fund will be ultimately and exclusively entitled to ownership of the securities. However, given that the securities
trading account will be maintained in the joint names of the Adviser and the Fund, the Funds assets may not be as well protected as they would be if it were possible for them to be registered and held solely in the name of the Fund. In particular, there is a risk that creditors of the Adviser may assert, notwithstanding the legal opinion referred to
above, that the securities are owned by the Adviser and not the
18
Fund, and that a court would uphold such an assertion, in which case creditors of the Adviser could seize assets of the Fund. In addition, in the absence of any consent to service of process by the Funds Chinese counsel, it may be difficult for investors to have any legal recourse against such counsel in connection with its legal opinion.
Use of up to Three QFII Brokers per Exchange
.
To the extent the Fund invests directly in A-shares, regulations adopted by the CSRC and SAFE under which the Fund will invest in China specify that all securities traded by the Adviser, if licensed as a QFII, on behalf of the Fund must be executed through one of three specified brokers per exchange.
Prior to the adoption of these regulations, QFIIs were required to execute trades of securities through a single specified broker for each of the Shanghai Stock Exchange and Shenzhen Stock Exchange. However, the recently adopted measures may not have been implemented by either the Shanghai Stock Exchange or the Shenzhen Stock Exchange
and it is uncertain when these measures will be implemented or whether they will be effectuated in an efficient manner. As a result, if and when the Adviser is licensed as a QFII, it will have less flexibility to choose among brokers on behalf of the Fund than is typically the case for investment managers.
Foreign Currency Considerations
.
To the extent the Fund invests directly in A-shares, the Funds assets will be invested primarily in the equity securities of issuers in China and Hong Kong and the income received by the Fund will be principally in RMB. Meanwhile, the Fund will compute and expects to distribute its income in U.S. dollars, and the
computation of income will be made on the date that the income is earned by the Fund at the foreign exchange rate in effect on that date. Therefore, if the value of the RMB falls relative to the U.S. dollar between the earning of the income and the time at which the Fund converts the RMB to U.S. dollars, the Fund may be required to liquidate
certain positions in order to make distributions if the Fund has insufficient cash in U.S. dollars to meet distribution requirements under the Code. The liquidation of investments, if required, may also have an adverse impact on the Funds performance.
Furthermore, the Fund may incur costs in connection with conversions between U.S. dollars and RMB. Foreign exchange dealers realize a profit based on the difference between the prices at which they are buying and selling various currencies. Thus, a dealer normally will offer to sell a foreign currency to the Fund at one rate, while offering a lesser
rate of exchange should the Fund desire immediately to resell that currency to the dealer. The Fund will conduct its foreign currency exchange transactions either on a spot (
i.e.
, cash) basis at the spot rate prevailing in the foreign currency
19
CHINA ETF (continued)
exchange market, or through entering into forward, futures or options contracts to purchase or sell foreign currencies.
Currently, there is no market in China in which the Fund may engage in hedging transactions to minimize RMB foreign exchange risk, and there can be no guarantee that instruments suitable for hedging currency will be available to the Fund in China at any time in the future. In the event that in the future it becomes possible to hedge RMB
currency risk in China, the Fund may seek to protect the value of some portion or all of its portfolio holdings against currency risks by engaging in hedging transactions. In that case, the Fund may enter into forward currency exchange contracts and currency futures contracts and options on such futures contracts, as well as purchase put or call
options on currencies, in China. Currency hedging would involve special risks, including possible default by the other party to the transaction, illiquidity and, to the extent the Advisers view as to certain market movements is incorrect, the risk that the use of hedging could result in losses greater than if they had not been used. The use of currency
transactions could result in the Funds incurring losses as a result of the imposition of exchange controls, suspension of settlements or the inability to deliver or receive a specified currency.
Disclosure of Interests and Short Swing Profit Rule
.
Under the more conservatively interpreted PRC disclosure of interest requirements, the Fund may be deemed as concert parties of other funds managed by the Adviser or its affiliates and therefore may be subject to the risk that the Funds holdings may be required to be reported in the
aggregate with the holdings of such other funds should the aggregate holdings trigger the reporting threshold under the PRC law, which is currently 5% of the total issued shares of the listed company. This may expose the Funds holdings to the public with an adverse impact on the Funds performance.
In addition, subject to the interpretation of PRC courts and PRC regulators, the operation of the PRC short swing profit rule may be applicable to the trading of the Fund with the result that where the holdings of the Fund (possibly with the holdings of other investors deemed as concert parties of the Fund) exceed 5% of the total issued shares of a
PRC company, the Fund may not reduce its holdings in the company within six months of the last purchase of shares of the company. If the Fund violates the rule, it may be required by the listed company to return any profits realized from such trading to the listed company. Moreover, under PRC civil procedures, the Funds assets may be frozen
to the extent of the claims made by the company in question. These risks may greatly impair the performance of the Fund.
20
Risk of Direct Investment in Foreign Securities
.
Investments in the securities of non-U.S. issuers involve risks beyond those associated with investments in U.S. securities. These additional risks include greater market volatility, the availability of less reliable financial information, higher transactional and custody costs, taxation by foreign governments,
decreased market liquidity and political instability. Foreign issuers are often subject to less stringent requirements regarding accounting, auditing, financial reporting and record keeping than are U.S. issuers, and therefore, not all material information will be available. Securities exchanges or foreign governments may adopt rules or regulations that may
negatively impact the Funds ability to invest in foreign securities or may prevent the Fund from repatriating its investments. In addition, the Fund may not receive shareholder communications or be permitted to vote the securities that it holds, as the issuers may be under no legal obligation to distribute them.
To the extent the Fund invests in A-shares, the Fund will invest in securities denominated in RMB and the income received by the Fund in respect of such investments will be in RMB. In such circumstances, changes in currency exchange rates may negatively impact the Funds returns. The value of the RMB may be subject to a high degree of fluctuation
due to changes in interest rates, the effects of monetary policies issued by the PRC, the United States, foreign governments, central banks or supranational entities, the imposition of currency controls or other national or global political or economic developments. Therefore, the Funds exposure to RMB may result in reduced returns to the Fund. The
Fund does not expect to hedge its currency risk. Moreover, the Fund may incur costs in connection with conversions between U.S. dollars and RMB and, as noted below, will bear the risk of any inability to convert the RMB.
In addition, various PRC companies derive their revenues in RMB but have requirements for foreign currency, including for the import of materials, debt service on foreign currency denominated debt, purchases of imported equipment and payment of any cash dividends declared. The existing PRC foreign exchange regulations have significantly reduced
government foreign exchange controls for certain transactions, including trade and service related foreign exchange transactions and payment of dividends. However, it is impossible to predict whether the PRC government will continue its existing foreign exchange policy and when the PRC government will allow free conversion of the RMB to foreign
currency. Certain foreign exchange transactions, including principal payments in respect of foreign currency-denominated obligations, currently continue to be subject to significant foreign exchange controls and require the approval of the State Administration for Foreign Exchange. Since 1994, the conversion of RMB into U.S. dollars has been based on
rates set by the Peoples Bank of China, which are set daily based on the previous days PRC interbank foreign exchange market rate. It is not possible to predict nor give any assurance of any future
21
CHINA ETF (continued)
stability of the RMB to United States dollar exchange rate. Fluctuations in exchange rates may adversely affect the Funds NAV. Furthermore, because dividends are declared in U.S. dollars and underlying payments are made in RMB, fluctuations in exchange rates may adversely affect dividends paid by the Fund.
The Fund has not yet commenced operations and therefore does not have a performance history.
22
CHINA ETF Fees and Expenses
This table describes the fees and expenses that you may pay if you buy and hold Shares of the Fund.
(a)
Shareholder Expenses
(fees paid directly from your investment, but see Shareholder InformationCreation and Redemption of Creation Units for a discussion of Creation and Redemption Transaction Fees)
None
ANNUAL FUND OPERATING EXPENSES
(expenses that are deducted from Fund assets)
Management Fee
0.50
%
Other Operating Expenses
(b)
0.68
%
Total Gross Annual Fund Operating Expenses
(c)
1.18
%
Fee Waivers and Expenses Assumption
(c)
0.46
%
Total Net Annual Fund Operating Expenses
(c)
0.72
%
(a)
When
buying or selling Shares through a broker, you will incur customary
brokerage commissions and charges.
(b)
Other
operating expenses are based on estimated amounts for the current fiscal
year and calculated as a percentage of the Funds net assets.
(c)
The Adviser has contractually agreed to waive fees and/or pay Fund expenses to the extent necessary to prevent the operating expenses of the Fund (excluding interest expense, offering costs, trading expenses, taxes and extraordinary expenses) from exceeding 0.72% of the Funds average daily net assets per year at least until May 1, 2010. Offering costs excluded from the 0.72% expense cap
are: (a) legal fees pertaining to the Funds Shares offered for sale; (b) SEC and state registration fees; and (c) initial fees paid for Shares of the Fund to be listed on an exchange.
This example is intended to help you compare the cost of investing in the Fund with the cost of investing in other funds. This example does not take into account brokerage commissions that you pay when purchasing or selling Shares of the Fund.
An investor purchasing a Creation Unit would pay the following expenses on a $10,000 investment, assuming all Shares are redeemed at the end of the periods shown, a 5% annual return and that the Funds operating expenses through May 1, 2010 are the same as those shown above under Total Net Annual Fund Operating Expenses and for all
subsequent periods are the same as those shown above under Total Gross Annual Fund Operating Expenses.
Investors should note that the presentation below of a $10,000 investment is for illustration purposes only as Shares will be issued by the Fund only in Creation Units. Further, the return of 5% and estimated expenses are for illustration purposes
only, and should not be considered indicators of expected Fund
23
CHINA ETF Fees and Expenses (continued)
expenses or performance, which may be greater or less than the estimates. Based on these assumptions, your costs would be:
YEAR
EXPENSES
1
$
74
3
$
329
Creation Transaction Fees and Redemption Transaction Fees
The Trust will issue and redeem Shares at NAV only in blocks of 600,000 Shares or multiples thereof. As a practical matter, only authorized participants may purchase or redeem these Creation Units. A standard creation transaction fee of $1,000 (the Creation Transaction Fee) is charged to each purchaser of Creation Units. The fee is the same
regardless of the number of Creation Units purchased by an authorized participant on the same day. An authorized participant who holds Creation Units and wishes to redeem at NAV would also pay a standard redemption transaction fee of $1,000 (the Redemption Transaction Fee) on the date of such redemption(s), regardless of the number of
Creation Units redeemed that day. Authorized participants who hold Creation Units will also pay the annual Fund operating expenses described in the table above. Assuming an investment in a Creation Unit of $5,328,000 and a 5% return each year, and assuming that the Funds operating expenses remain the same, the total costs would be $39,427 if
the Creation Unit is redeemed after one year and $175,291 if the Creation Unit is redeemed after three years. Investors should note that this presentation is for illustration purposes only and actual costs may be higher. See Shareholder InformationCreation and Redemption of Creation Units.
If a Creation Unit is purchased or redeemed outside the usual process through the National Securities Clearing Corporation (NSCC), if available, or for cash, a variable fee of up to four times the standard Creation or Redemption Transaction Fee will be charged. An additional variable charge will be assessed for cash creations and redemptions to
compensate the Fund for the costs associated with purchasing and selling the applicable securities. See Shareholder InformationCreation and Redemption of Creation UnitsCreation Transaction Fee and Redemption Transaction Fee.
The Creation Transaction Fee, Redemption Transaction Fee and variable fees are not expenses of the Fund.
24
The CSI Index is a modified free-float market capitalization weighted index composed of the largest and most liquid stocks in the Chinese A-share market. Constituent stocks for the CSI Index must have been listed for more than three months (unless the stocks average daily A-share market capitalization since its initial listing ranks among the top 30 of
all A-shares) and must not be experiencing obvious abnormal fluctuations or market manipulation.
When selecting constituent stocks for the CSI Index, the Index Provider: (1) calculates the daily average trading value and daily average total market capitalization during the most recent year (or in case of new issue, during the time since its initial listing) for all the stocks in the stock universe; (2) ranks the stocks in the stock universe in descending order
according to their average daily trading values, and excludes the bottom 50%; and (3) ranks the remaining stocks in descending order according to their average daily market capitalization and select those which rank top 300 as constituent stocks of the CSI Index.
The weighting of a company in the CSI Index is intended to be a reflection of the current importance of that company in the market as a whole. Stocks are selected and weighted according to market capitalization. A company is heavily weighted in the CSI Index if it has a relatively larger free-float market capitalization than the rest of the constituents
in the CSI Index. The constituents of the CSI Index are frequently reviewed by the Index Provider to ensure that the CSI Index continues to reflect the state and structure of the underlying market it measures. The CSI Index is calculated in real time and is published every six seconds in RMB. The composition of the CSI Index is reviewed semi-annually
every January and July.
25
MANAGEMENT
A description of the Funds policies and procedures with respect to the disclosure of the Funds portfolio securities is available in the Funds SAI.
ADDITIONAL INVESTMENT STRATEGIES
The Fund may invest its remaining assets in money market instruments, including repurchase agreements or other funds which invest exclusively in money market instruments, convertible securities, structured notes (notes on which the amount of principal repayment and interest payments are based on the movement of one or more specified factors,
such as the movement of a particular stock or stock index) and other derivative instruments. In addition, the Fund may invest its remaining assets in B-shares, which are shares of companies incorporated in mainland China that are traded in the mainland B-share markets; China H-shares, which are shares of companies incorporated in mainland China
and listed on the Hong Kong Stock Exchange; securities of Red Chip Companies, which are companies with controlling Chinese shareholders that are incorporated outside mainland China and listed on the Hong Kong Stock Exchange; and securities of Chinese-related companies, which are companies listed on the Hong Kong Stock Exchange, the
Singapore Stock Exchange or other exchanges.
The Fund may lend its portfolio securities to brokers, dealers and other financial institutions desiring to borrow securities to complete transactions and for other purposes. In connection with such loans, the Fund receives liquid collateral equal to at least 102% of the value of the portfolio securities being loaned. This collateral is marked-to-market on a
daily basis. Although the Fund will receive collateral in connection with all loans of its securities holdings, the Fund would be exposed to a risk of loss should a borrower default on its obligation to return the borrowed securities (
e.g
., the loaned securities may have appreciated beyond the value of the collateral held by the Fund). In addition, the Fund will
bear the risk of loss of any cash collateral that it invests.
ADDITIONAL RISKS OF INVESTING IN THE FUND
Absence of Prior Active Market.
The Fund is a newly organized series of an investment company and thus has no operating history. While the Funds Shares are expected to be listed on NYSE Arca, there can be no assurance that active trading markets for the Shares will develop or be maintained. Van Eck Securities Corporation, the distributor of the
Shares (the Distributor), does not maintain a secondary market in the Shares.
Trading Issues.
Trading in Shares on NYSE Arca may be halted due to market conditions or for reasons that, in the view of NYSE Arca, make trading in Shares
26
MANAGEMENT (continued)
inadvisable. In addition, trading in Shares on NYSE Arca is subject to trading halts caused by extraordinary market volatility pursuant to NYSE Arcas circuit breaker rules. There can be no assurance that the requirements of NYSE Arca necessary to maintain the listing of the Fund will continue to be met or will remain unchanged.
Fluctuation of NAV.
The NAV of the Shares will fluctuate with changes in the market value of the Funds securities holdings. The market prices of Shares will fluctuate in accordance with changes in NAV and supply and demand on NYSE Arca. The Adviser cannot predict whether Shares will trade below, at or above their NAV. Price differences may be
due, in large part, to the fact that supply and demand forces at work in the secondary trading market for Shares will be closely related to, but not identical to, the same forces influencing the prices of the securities of the CSI Index trading individually or in the aggregate at any point in time. However, given that Shares can be created and redeemed
daily in Creation Units at NAV (unlike shares of closed-end funds, which frequently trade at appreciable discounts from, and sometimes at premiums to, their NAV), the Adviser believes that large discounts or premiums to the NAV of the Shares are not likely to be sustained over the long-term. In addition, disruptions to creations and redemptions or the
existence of extreme market volatility may result in trading prices that differ significantly from NAV. If a shareholder purchases at a time when the market price is at a premium to the NAV or sells at a time when the market price is at a discount to the NAV, the shareholder may sustain losses.
Board of Trustees.
The Board of Trustees of the Trust has responsibility for the general oversight of the management of the Fund, including general supervision of the Adviser and other service providers, but is not involved in the day-to-day management of the Trust. A list of the Trustees and the Trust officers, and their present positions and principal
occupations, is provided in the Funds SAI.
Investment Manager.
Under the terms of an Investment Management Agreement between the Trust and Van Eck Associates Corporation with respect to the Fund (the Investment Management Agreement), Van Eck Associates Corporation serves as the adviser to the Fund and, subject to the supervision of the Board of Trustees, will be responsible for
the day-to-day investment management of the Fund. As of June 30, 2009, the Adviser managed approximately $12.4 billion in assets. The Advisers principal business address is 335 Madison Avenue, 19th Floor, New York, New York 10017.
27
MANAGEMENT (continued)
A discussion regarding the Board of Trustees approval of the Investment Management Agreement will be available in the Trusts semi-annual report for the period ended June 30, 2009.
For the services provided to the Fund under the Investment Management Agreement, the Fund will pay the Adviser monthly fees based on a percentage of the Funds average daily net assets at the annual rate of 0.50%. From time to time, the Adviser may waive all or a portion of its fee. Until at least May 1, 2010, the Adviser has contractually agreed
to waive fees and/or pay Fund expenses to the extent necessary to prevent the operating expenses of the Fund (excluding interest expense, offering costs, trading expenses, taxes and extraordinary expenses) from exceeding 0.72% of average daily net assets per year. Offering costs excluded from the expense cap are: (a) legal fees pertaining to the
Funds Shares offered for sale; (b) SEC and state registration fees; and (c) initial fees paid for Shares of the Fund to be listed on an exchange.
The Fund is responsible for all of its expenses, including the investment advisory fees, costs of transfer agency, custody, legal, audit and other services, interest, taxes, any distribution fees or expenses, offering fees or expenses and extraordinary expenses.
Administrator, Custodian and Transfer Agent.
Van Eck Associates Corporation is the administrator for the Fund (the Administrator), and The Bank of New York Mellon (formerly known as The Bank of New York) is the custodian of the Funds assets and provides transfer agency and fund accounting services to the Fund. The Administrator is responsible
for certain clerical, recordkeeping and/or bookkeeping services which are provided pursuant to the Investment Management Agreement.
Distributor.
Van Eck Securities Corporation is the distributor of the Shares. The Distributor will not distribute Shares in less than Creation Units, and does not maintain a secondary market in the Shares. As noted in the section entitled Shareholder InformationBuying and Selling Exchange-Traded Shares, the Shares are traded in the secondary market.
The portfolio managers who currently share joint responsibility for the day-to-day management of the Funds portfolio are Hao-Hung (Peter) Liao and George Cao. Mr. Liao has been employed by the Adviser since the summer of 2004. Mr. Liao also serves as a portfolio manager for certain other investment companies advised by the Adviser. Mr. Cao has
been employed by the Adviser since December 2007. Prior to joining the Adviser, he served as a Senior Finance Associate followed by Controller of Operations Administrations Division and Corporate Safety for United Airlines. He also served as a Management
28
Consultant to PricewaterhouseCoopers LLP as well as a Financial Analyst for SAM Distribution Co. Ltd. Because the Fund is new, Messrs. Liao and Cao will be serving as the portfolio managers of the Fund since its inception. See the Funds SAI for additional information about the portfolio managers compensation, other accounts managed by the
portfolio managers and their respective ownership of Shares.
29
The NAV per Share for the Fund is computed by dividing the value of the net assets of the Fund (
i.e.
, the value of its total assets less total liabilities) by the total number of Shares outstanding. Expenses and fees, including the management fee, are accrued daily and taken into account for purposes of determining NAV. The NAV of the Fund is
determined each business day as of the close of trading (ordinarily 4:00 p.m. Eastern time) on the New York Stock Exchange (NYSE). Any assets or liabilities denominated in currencies other than the U.S. dollar are converted into U.S. dollars at the current market rates on the date of valuation as quoted by one or more sources.
The value of the Funds portfolio securities is based on the securities closing price on local markets when available. If a securitys market price is not readily available or does not otherwise accurately reflect the fair value of the security, the security will be valued by another method that the Adviser believes will better reflect fair value in accordance with
the Trusts valuation policies and procedures approved by the Board of Trustees. The Fund may use fair value pricing in a variety of circumstances, including but not limited to, situations when the value of a security in the Funds portfolio has been materially affected by events occurring after the close of the market on which the security is principally
traded (such as a corporate action or other news that may materially affect the price of a security) or trading in a security has been suspended or halted. In addition, the Fund currently expects that it will fair value foreign equity securities held by the Fund each day the Fund calculates its NAV. Accordingly, the Funds NAV is expected to reflect certain
portfolio securities fair values rather than their market prices. Fair value pricing involves subjective judgments and it is possible that a fair value determination for a security is materially different than the value that could be realized upon the sale of the security. In addition, fair value pricing could result in a difference between the prices used to calculate
the Funds NAV and the prices used by the CSI Index. This may adversely affect the Funds ability to track the CSI Index. With respect to securities that are primarily listed on foreign exchanges, the value of the Funds portfolio securities may change on days when you will not be able to purchase or sell your Shares.
Buying and Selling Exchange-Traded Shares
The Shares of the Fund are expected to be approved for listing on NYSE Arca, subject to notice of issuance. If you buy or sell Shares in the secondary market, you will incur customary brokerage commissions and charges and may pay some or all of the spread between the bid and the offered price in the secondary market on each leg of a round trip
(purchase and sale) transaction. It is anticipated that the Shares will trade in the secondary market at prices that may
30
differ to varying degrees from the closing NAVs of the Shares. Given, however, that Shares can be created and redeemed daily in Creation Units, the Adviser believes that large discounts and premiums to NAV should not be sustained for very long.
DTC serves as securities depository for the Shares. (The Shares may be held only in book-entry form; stock certificates will not be issued.) DTC, or its nominee, is the record or registered owner of all outstanding Shares. Beneficial ownership of Shares will be shown on the records of DTC or its participants (described below). Beneficial owners of Shares
are not entitled to have Shares registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and are not considered the registered holder thereof. Accordingly, to exercise any rights of a holder of Shares, each beneficial owner must rely on the procedures of: (i) DTC; (ii) DTC Participants,
i.e.
,
securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations, some of whom (and/or their representatives) own DTC; and (iii) Indirect Participants,
i.e.
, brokers, dealers, banks and trust companies that clear through or maintain a custodial relationship with a DTC Participant, either directly or indirectly,
through which such beneficial owner holds its interests. The Trust understands that under existing industry practice, in the event the Trust requests any action of holders of Shares, or a beneficial owner desires to take any action that DTC, as the record owner of all outstanding Shares, is entitled to take, DTC would authorize the DTC Participants to take
such action and that the DTC Participants would authorize the Indirect Participants and beneficial owners acting through such DTC Participants to take such action and would otherwise act upon the instructions of beneficial owners owning through them. As described above, the Trust recognizes DTC or its nominee as the owner of all Shares for all
purposes. For more information, see the section entitled Book Entry Only System in the Funds SAI.
Market Timing and Related Matters.
The Fund imposes no restrictions on the frequency of purchases and redemptions. The Board of Trustees considered the nature of the Fund (
i.e.
, a fund whose shares are expected to trade intra-day), that the Fund fair values all or a substantial portion of its securities, that the Adviser monitors the trading activity of
authorized participants for patterns of or abusive trading, and that the Fund reserves the right to reject orders that may be disruptive to the management of or otherwise not in the Funds best interests. Given this structure, the Board of Trustees determined that it is not necessary to impose restrictions on the frequency of purchases and redemptions for
the Fund at the present time.
31
SHAREHOLDER INFORMATION (continued)
Creation and Redemption of Creation Units
The Trust will issue and redeem Shares at NAV only in a large specified number of Shares called a Creation Unit. A Creation Unit consists of 600,000 Shares. The Fund generally issues and redeems Creation Units principally for cash.
Except when aggregated in Creation Units, the Shares are not redeemable securities of the Fund.
See Shareholder
InformationBuying and Selling Exchange-Traded Shares and Procedures for Creation of Creation Units. The prices at which creations and redemptions occur are based on the next calculation of NAV after an order is received in proper form by the Distributor.
Fund Deposits.
Due to various legal and operational constraints in China, the consideration for a creation of Creation Units of the Fund is principally cash. To the extent in-kind creations are effected for the Fund, Creation Units of the Fund will consist of the in-kind deposit of a designated portfolio of equity securities (the Deposit Securities)
constituting a replication of the CSI Index and an amount of cash computed as described below (the Cash Component) and, together with the Deposit Securities, the Fund Deposit. The list of the names and numbers of shares of the Deposit Securities is made available by the Administrator through the facilities of the NSCC immediately prior to the
opening of business each day of NYSE Arca. The Cash Component represents the difference between the NAV of a Creation Unit and the market value of the Deposit Securities and may include a Dividend Equivalent Payment as described in the Funds SAI. The Fund reserves the right to accept a basket of securities or cash that differs from the
Deposit Securities.
Procedures for Creation of Creation Units.
To be eligible to place orders with the Distributor to create Creation Units of the Fund, an entity or person either must be (1) a Participating Party,
i.e.
, a broker-dealer or other participant in the Clearing Process through the Continuous Net Settlement System of the NSCC; or (2) a DTC Participant; and, in
either case, must have executed an agreement with the Trust and with the Distributor with respect to creations and redemptions of Creation Units outside the Clearing Process (Participant Agreement). All Creation Units of the Fund, however created, will be entered on the records of DTC in the name of Cede & Co. for the account of a DTC Participant.
At any given time, there may be only a limited number of broker-dealers that have executed a Participant Agreement. Those placing orders to create Creation Units of the Fund through the Clearing Process should afford sufficient time to permit proper submission of the order to the Distributor prior to the closing time of the regular trading session on
NYSE Arca (ordinarily 4:00 p.m. Eastern time) on the date on which a creation (or redemption order, as discussed below) is placed (the Transmittal Date).
32
Orders for creation that are effected outside the Clearing Process are likely to require transmittal by the DTC Participant earlier on the Transmittal Date than orders effected using the Clearing Process. Those persons placing orders outside the Clearing Process should ascertain the deadlines applicable to DTC and the Federal Reserve Bank wire system by
contacting the operations department of the broker or depository institution effectuating such transfer of Deposit Securities and Cash Component. Investors should refer to Creation and Redemption of Creation Units in the Funds SAI for details regarding the logistics of placement of orders through and outside the Clearing Process.
Acceptance of Creation Order.
The Trust reserves the absolute right to reject a creation order transmitted to it by the Distributor if, for any reason: (a) the order is not in proper form; (b) the creator or creators, upon obtaining the Shares, would own 80% or more of the currently outstanding Shares of the Fund; (c) the Deposit Securities delivered are not
as specified by the Administrator, as described above; (d) acceptance of the Deposit Securities would have certain adverse tax consequences to the Fund; (e) the acceptance of the Fund Deposit would, in the opinion of counsel, be unlawful; (f) the acceptance of the Fund Deposit would otherwise, in the discretion of the Trust or the Adviser, have an
adverse effect on the Trust or the rights of beneficial owners; or (g) in the event that circumstances outside the control of the Trust, the Distributor and the Adviser make it for all practical purposes impossible to process creation orders. Examples of such circumstances include acts of God or public service or utility problems such as fires, floods,
extreme weather conditions and power outages resulting in telephone, telecopy and computer failures; market conditions or activities causing trading halts; systems failures involving computer or other information systems affecting the Trust, the Adviser, the Distributor, DTC, the NSCC or any other participant in the creation process, and similar
extraordinary events. The Trust shall notify a prospective creator of its rejection of the order of such person. The Trust and the Distributor are under no duty, however, to give notification of any defects or irregularities in the delivery of Fund Deposits nor shall either of them incur any liability for the failure to give any such notification. The Trust shall
notify a prospective creator of its rejection of the order of such person.
All questions as to the number of Shares of each security in the Deposit Securities and the validity, form, eligibility and acceptance for deposit of any securities to be delivered shall be determined by the Trust, and the Trusts determination shall be final and binding.
Creation Transaction Fee.
A fixed Creation Transaction Fee of $1,000, which is paid to the Fund, is applicable to each transaction regardless of the number of Creation Units purchased in the transaction. In addition, a variable charge of up to four times the Creation Transaction Fee will be imposed with respect to
33
SHAREHOLDER INFORMATION (continued)
transactions effected outside of the Clearing Process (through a DTC Participant) or to the extent that cash is used in lieu of securities to purchase Creation Units. In the case of cash creations or where the Trust permits or requires a creator to substitute cash in lieu of depositing a portion of the Deposit Securities, the creator may be assessed an
additional variable charge of up to 4% of the value of each Creation Unit to compensate the Fund for the costs associated with purchasing the applicable securities. See Creation and Redemption of Creation Units in the Funds SAI. The price for each Creation Unit will equal the daily NAV per Share times the number of Shares in a Creation Unit plus
the fees described above and, if applicable, any transfer taxes. Shares of the Fund may be issued in advance of receipt of all Deposit Securities subject to various conditions, including a requirement to maintain on deposit with the Fund cash at least equal to 115% of the market value of the missing Deposit Securities. See Creation and Redemption of
Creation Units in the Funds SAI.
Redemption of Creation Units.
Shares may be redeemed only in Creation Units at their NAV next determined after receipt of a redemption request in proper form by the Distributor, only on a day on which NYSE Arca is open for trading and only through a Participating Party or DTC Participant who has executed a Participant Agreement.
The Trust will not
redeem Shares in amounts less than Creation Units.
Beneficial owners also may sell Shares in the secondary market, but must accumulate enough Shares to constitute a Creation Unit in order to have such Shares redeemed by the Trust. There can be no assurance, however, that there will be sufficient liquidity in the public trading market at any time to
permit assembly of a Creation Unit. Investors should expect to incur brokerage and other costs in connection with assembling a sufficient number of Shares to constitute a redeemable Creation Unit.
Redemptions are effected principally for cash. To the extent redemptions are effected in-kind, the Administrator, through NSCC, makes available immediately prior to the opening of business on NYSE Arca (currently 9:30 a.m. Eastern time) on each day that NYSE Arca is open for business, the securities held by the Fund (Fund Securities) that will be
applicable (subject to possible amendment or correction) to redemption requests received in proper form (as defined below) on that day. Fund Securities received on redemption may not be identical to Deposit Securities which are applicable to purchasers of Creation Units. The redemption proceeds for a Creation Unit consist of Fund Securities, plus
cash in an amount equal to the difference between the NAV of the Shares being redeemed, as next determined after a receipt of a request in proper form, and the value of the Fund Securities, less the Redemption Transaction Fee and variable fees described below. The Fund reserves the right to honor a
34
redemption request by delivering a basket of securities or cash that differs from the Fund Securities.
Redemption Transaction Fee.
The Redemption Transaction Fee of $1,000 is deducted from such redemption proceeds. Should the Fund Securities have a value greater than the NAV of Shares being redeemed, a compensating cash payment to the Trust equal to the differential, plus the applicable Redemption Transaction Fee and, if applicable, any transfer
taxes will be required to be arranged for by or on behalf of the redeeming shareholder. The basic Redemption Transaction Fee is the same no matter how many Creation Units are being redeemed pursuant to any one redemption request. An additional charge up to four times the Redemption Transaction Fee will be charged with respect to cash
redemptions or redemptions outside of the Clearing Process. An additional variable charge of up to 4% of the value of each Creation Unit for cash redemptions or partial cash redemptions may also be imposed to compensate the Fund for the costs associated with selling the applicable securities. The Fund may adjust these fees from time to time based
upon actual experience. Although a shareholder in the Fund may request a cash redemption in lieu of securities, the Fund may, in its discretion, reject any such request. Investors who use the services of a broker or other such intermediary may be charged a fee for such services. Investors should refer to Creation and Redemption of Creation Units in
the Funds SAI for details regarding the logistics of redemption orders through and outside the Clearing Process.
Redemptions of Shares for Fund Securities will be subject to compliance with applicable U.S. federal and state securities laws, and the Fund (whether or not it otherwise permits or requires cash redemptions) reserves the right to redeem Creation Units for cash to the extent that the Fund could not lawfully deliver specific Deposit Securities upon
redemptions or could not do so without first registering the Fund Securities under such laws. Deliveries of Fund Securities to redeeming investors generally will be made within three business days. Due to the schedule of holidays in certain countries, however, the delivery of in-kind redemption proceeds may take longer than three business days after the
day on which the redemption request is received in proper form. In such cases, the local market settlement procedures will not commence until the end of the local holiday periods. See the Funds SAI for a list of the local holidays in the foreign countries relevant to the Fund.
The right of redemption may be suspended or the date of payment postponed (1) for any period during which the NYSE is closed (other than customary weekend and holiday closings); (2) for any period during which trading on the NYSE is suspended or restricted; (3) for any period during which an emergency exists as a result of which disposal of the
Shares of the Fund or determination
35
SHAREHOLDER INFORMATION (continued)
of their NAV is not reasonably practicable; or (4) in such other circumstance as is permitted by the SEC.
Investors interested in creating and/or redeeming Creation Units should refer to the more detailed information Creation and Redemption of Creation Units in the Funds SAI.
Net Investment Income and Capital Gains.
As a shareholder of the Fund, you are entitled to your share of the Funds distributions of net investment income and net realized capital gains on its investments. The Fund pays out substantially all of its net earnings to its shareholders as distributions.
The Fund typically earns income dividends from stocks and interest from debt securities. These amounts, net of expenses, are typically passed along to Fund shareholders as dividends from net investment income. The Fund realizes capital gains or losses whenever it sells securities. Net capital gains are distributed to shareholders as capital gain
distributions.
Net investment income and net capital gains are typically distributed to shareholders at least annually. Dividends may be declared and paid more frequently to improve index tracking or to comply with the distribution requirements of the Internal Revenue Code. In addition, the Fund may determine to distribute at least annually amounts representing the
full dividend yield net of expenses on the underlying investment securities, as if the Fund owned the underlying investment securities for the entire dividend period, in which case some portion of each distribution may result in a return of capital, which, for tax purposes, is treated as a return on your investment in Shares. You will be notified regarding the
portion of the distribution which represents a return of capital.
Distributions in cash may be reinvested automatically in additional Shares of the Fund only if the broker through which you purchased Shares makes such option available.
As with any investment, you should consider how your Fund investment will be taxed. The tax information in this Prospectus is provided as general information. You should consult your own tax professional about the tax consequences of an investment in the Fund, including the possible application of foreign, state and local taxes. Unless your investment
in the Fund is through a tax-exempt entity or tax-deferred retirement account, such as a 401(k) plan, you need to be aware of the possible tax consequences when: (i) the Fund makes distributions, (ii) you sell Shares in the secondary market or (iii) you create or redeem Creation Units.
36
Taxes on Distributions.
As noted above, the Fund expects to distribute net investment income at least annually, and any net realized long-term or short-term capital gains annually. The Fund may also pay a special distribution at any time to comply with U.S. federal tax requirements.
In general, your distributions are subject to U.S. federal income tax when they are paid, whether you take them in cash or reinvest them in the Fund. Distributions of net investment income are generally taxable as ordinary income. Taxes on distributions of capital gains are determined by how long the Fund owned the investments that generated them,
rather than how long you have owned your Shares. Distributions of net short-term capital gains in excess of net long-term capital losses, if any, are generally taxable as ordinary income. Distributions of net long-term capital gains in excess of net short-term capital losses, if any, that are properly designated as capital gain dividends are generally taxable
as long-term capital gains. Long-term capital gains of non-corporate shareholders are taxable at a maximum rate of 15%. Absent further legislation, the maximum tax rate on long-term capital gains of non-corporate shareholders will return to 20% for taxable years beginning after December 31, 2010.
For taxable years beginning before January 1, 2011, the Fund may receive dividends, the distribution of which the Fund may designate as qualified dividends. In the event that the Fund receives such a dividend and designates the distribution of such dividend as a qualified dividend, the dividend may be taxed at the maximum capital gains rate, provided
holding period and other requirements are met at both the shareholder and the Fund level. Given the nature of the Funds investments, the Fund does not expect to make significant amounts of distributions eligible for taxation at the reduced rates applicable to capital gains.
Distributions in excess of the Funds current and accumulated earnings and profits are treated as a tax-free return of your investment to the extent of your basis in the Shares, and generally as capital gain thereafter. A return of capital, which for tax purposes is treated as a return of your investment, reduces your basis in Shares, thus reducing any loss
or increasing any gain on a subsequent taxable disposition of Shares. A distribution will reduce the Funds NAV per Share and may be taxable to you as ordinary income or capital gain even though, from an economic standpoint, the distribution may constitute a return of capital.
Special tax rules may change the normal treatment of gains and losses recognized by the Fund if the Fund makes certain investments such as investments in structured notes, swaps, options and futures transactions. Those special tax rules can negatively affect the character, timing and amount of income earned by the Fund (
e.g.
, by causing amounts
that would be capital gain
37
SHAREHOLDER INFORMATION (continued)
to be taxed as ordinary income or to be taken into income earlier than would otherwise be necessary). Until the Adviser obtains a QFII license, the Fund intends to invest significantly in swaps and other derivative instruments and will not invest directly in A-shares. The U.S. tax treatment of such investments may generally be less efficient than a direct
investment in A-shares. Furthermore, the Fund may be required to periodically adjust its positions in these swaps or derivatives to comply with certain regulatory requirements which may further cause these investments to be less efficient than a direct investment in A-shares. In addition, because the application of these special rules may be uncertain, it
is possible that the manner in which they are applied by the Fund may be determined to be incorrect. In that event, the Fund may be found to have failed to maintain its qualification as a RIC or to be subject to additional U.S. tax liability.
The Fund may make investments, both directly and through swaps or other derivative positions, in companies classified as PFICs for U.S. federal income tax purposes. Investments in PFICs are subject to special tax rules which may result in adverse tax consequences to the Fund and its shareholders. The Fund generally intends to elect to mark to
market these investments at the end of each taxable year. By making this election, the Fund will recognize as ordinary income any increase in the value of such shares as of the close of the taxable year over their adjusted basis and as ordinary loss any decrease in such investment (but only to the extent of prior income from such investment under
the mark to market rules). Gains realized with respect to a disposition of a PFIC that the Fund has elected to mark to market will be ordinary income. By making the mark to market election, the Fund may recognize income in excess of the distributions that it receives from its investments. Accordingly, the Fund may need to borrow money or dispose of
some of its investments in order to meet its distribution requirements. If the Fund does not make the mark to market election with respect to an investment in a PFIC, the Fund could become subject to U.S. federal income tax with respect to certain distributions from, and gain on the dispositions of, the PFIC which cannot be avoided by distributing
such amounts to the Funds shareholders.
Dividends, interest and gains from non-U.S. investments of the Fund may give rise to withholding and other taxes imposed by foreign countries. Tax conventions between certain countries and the United States may, in some cases, reduce or eliminate such taxes.
If more than 50% of the Funds total assets at the end of its taxable year consist of foreign securities, the Fund may elect to pass through to its investors certain foreign income taxes paid by the Fund, with the result that each investor will (i) include in gross income, as an additional dividend, even though not actually received, the investors pro rata
share of the Funds foreign
38
income taxes, and (ii) either deduct (in calculating U.S. taxable income) or credit (in calculating U.S. federal income), subject to certain limitations, the investors pro rata share of the Funds foreign income taxes.
If you are not a citizen or resident alien of the United States, the Funds ordinary income dividends (which include distributions of net short-term capital gains) will generally be subject to a 30% U.S. withholding tax, unless a lower treaty rate applies or unless such income is effectively connected with a U.S. trade or business. Furthermore, for taxable
years beginning before January 1, 2010, the Fund may, under certain circumstances, designate all or a portion of a dividend as an interest-related dividend or a short-term capital gain dividend. An interest-related dividend that is received by a nonresident alien or foreign entity generally would be exempt from the 30% U.S. withholding tax, provided
certain other requirements are met. A short term capital gain dividend that is received by a nonresident alien or foreign entity generally would be exempt from the 30% U.S. withholding tax, unless the foreign person is a nonresident alien individual present in the United States for a period or periods aggregating 183 days or more during the taxable year.
The Fund does not expect to pay significant amounts of interest-related dividends. Nonresident shareholders are urged to consult their own tax advisers concerning the applicability of the U.S. withholding tax.
The Fund may be required to withhold a percentage of your distributions and proceeds if you have not provided a taxpayer identification number or social security number or otherwise established a basis for exemption from backup withholding. The backup withholding rate for individuals is currently 28%. This is not an additional tax and may be refunded,
or credited against your U.S. federal income tax liability, provided certain required information is furnished to the Internal Revenue Service.
Taxes on the Sale and Cash Redemption of Exchange-Listed Shares.
Currently, any capital gain or loss realized upon a sale of Shares is generally treated as long-term capital gain or loss if the Shares have been held for more than one year and as a short-term capital gain or loss if held for one year or less. However, any capital loss on a sale of Shares
held for six months or less is treated as long-term capital loss to the extent that capital gain dividends were paid with respect to such Shares. The ability to deduct capital losses may be limited. A redemption of a shareholders Fund Shares for cash is normally treated as a sale for tax purposes.
Taxes on In-Kind Creations and In-Kind Redemptions of Creation Units.
To the extent a person exchanges securities or securities and cash for Creation Units, such person generally will recognize a gain or loss. The gain or loss will be equal to the difference between the market value of the Creation Units at the time of
39
SHAREHOLDER INFORMATION (continued)
exchange and the sum of the exchangers aggregate basis in the securities surrendered and the amount of any cash paid for such Creation Units. A person who exchanges Creation Units for securities or securities and cash will generally recognize a gain or loss equal to the difference between the exchangers basis in the Creation Units and the sum of
the aggregate market value of the securities received and the amount of any cash received for such Creation Units. The Internal Revenue Service, however, may assert that a loss realized upon an exchange of primarily securities for Creation Units cannot be deducted currently under the rules governing wash sales, or on the basis that there has been
no significant change in economic position. Persons exchanging primarily securities for Creation Units or redeeming Creation Units should consult their own tax adviser with respect to whether wash sale rules apply and when a loss might be deductible and the tax treatment of any creation or redemption transaction.
Under current U.S. federal income tax laws, any capital gain or loss realized upon a redemption (or creation) of Creation Units is generally treated as long-term capital gain or loss if the Shares (or securities surrendered) have been held for more than one year and as a short-term capital gain or loss if the Shares (or securities surrendered) have been
held for one year or less.
If you create or redeem Creation Units, you will be sent a confirmation statement showing how many Shares you created or sold and at what price.
The foregoing discussion summarizes some of the consequences under current U.S. federal income tax law of an investment in the Fund. It is not a substitute for personal tax advice. Consult your own tax advisor about the potential tax consequences of an investment in the Fund under all applicable tax laws.
40
The Adviser has entered into a licensing agreement with China Securities Index Co., Ltd. (Licensor) to use the CSI Index.
The Fund is neither sponsored nor promoted, distributed or in any other manner supported by the Licensor. CSI Indices are compiled and calculated by the Licensor. The Licensor will apply all necessary means to ensure the accuracy of the CSI Index. However, neither the Licensor nor the Shanghai Stock Exchange nor the Shenzhen Stock Exchange
shall be liable (whether in negligence or otherwise) to any person for any error in the CSI Index and neither the Licensor nor the Shanghai Stock Exchange nor the Shenzhen Stock Exchange shall be under any obligation to advise any person of any error therein. All copyright in CSI Index values and constituent list vests in the Licensor. Neither the
publication of the CSI Index by the Licensor nor the granting of a license regarding the CSI Index as well as the Index Trademark for the utilization in connection with the Fund, which derived from the CSI Index, represents a recommendation by the Licensor for a capital investment or contains in any manner a warranty or opinion by the Licensor with
respect to the attractiveness on an investment in the Fund.
41
The Fund had not yet commenced operations as of the date of this Prospectus and therefore does not have a financial history.
42
The Trust was organized as a Delaware statutory trust on March 15, 2001. Its Declaration of Trust currently permits the Trust to issue an unlimited number of Shares of beneficial interest. If shareholders are required to vote on any matters, each Share outstanding would be entitled to one vote. Annual meetings of shareholders will not be held except as
required by the 1940 Act and other applicable law. See the Funds SAI for more information concerning the Trusts form of organization. Section 12(d)(1) of the 1940 Act restricts investments by investment companies in the securities of other investment companies, including Shares of the Fund. Registered investment companies are permitted to invest
in the Fund beyond the limits set forth in Section 12(d)(1) subject to certain terms and conditions set forth in an SEC exemptive order issued to the Trust, including that such investment companies enter into an agreement with the Fund.
Dechert LLP serves as counsel to the Trust, including the Fund. Ernst & Young LLP serves as the Funds independent registered public accounting firm and will audit the Funds financial statements annually.
This Prospectus does not contain all the information included in the Registration Statement filed with the SEC with respect to the Funds Shares. Information about the Fund can be reviewed and copied at the SECs Public Reference Room and information on the operation of the Public Reference Room may be obtained by calling the SEC at
1.202.942.8090. The Funds Registration Statement, including this Prospectus, the Funds SAI and the exhibits may be examined at the offices of the SEC (100 F Street, NE, Washington, DC 20549) or on the Edgar database at the SECs website (http://www.sec.gov), and copies may be obtained, after paying a duplicating fee, by electronic request at
the following email address: publicinfo@sec.gov, or by writing the SECs Public Reference Section, Washington, DC 20549-0102. These documents and other information concerning the Trust also may be inspected at the offices of NYSE Arca (20 Broad Street, New York, New York 10005).
The SAI for the Fund, which has been filed with the SEC, provides more information about the Fund. The SAI for the Fund is incorporated herein by reference and is legally part of this Prospectus. It may be obtained without charge by writing to the Fund at Van Eck Securities Corporation, the Funds distributor, at 335 Madison Avenue, New York, New York
10017 or by calling the distributor at the following number: Investor Information: 1.888.MKT.VCTR (658-8287).
Shareholder inquiries may be directed to the Fund in writing to 335 Madison Avenue, 19th Floor, New York, New York 10017 or by calling 1.888.MKT.VCTR (658-8287).
The Funds SAI will be available through its website at www.vaneck.com/etf.
(Investment Company Act file no. 811-10325)
43
For
more detailed information about the Fund, see the SAI, which is incorporated
by reference into this Prospectus. Additional information about the
Funds investments will be available in the Funds annual and semi-annual reports to shareholders. In the Funds annual report, when available, you will find a discussion of the market conditions and investment strategies that significantly affected the Funds
performance during its last fiscal year.
Call Van Eck at
1.888.MKT.VCTR
to
request, free of charge, the annual or semi-annual reports, the SAI, or
other information about the Fund or to make shareholder inquiries. You
may also obtain the SAI or the Funds annual or semi-annual reports,
when available, by visiting the Van Eck website at
www.vaneck.com/etf
.
PEKPRO
Information about the Fund (including the SAI) can also be reviewed and copied at the SEC Public Reference Room in Washington, D.C. Information about the operation of the Public Reference Room may be obtained by calling 1.202.942.8090.
Reports
and other information about the Fund are available on the EDGAR Database
on the SECs internet site at http://www.sec.gov. In addition, copies of this information may be obtained, after paying a duplicating fee, by electronic request at the following email address: publicinfo@sec.gov, or by writing the SECs
Public Reference Section, Washington, DC 20549-0102.
Transfer Agent: The Bank of New York Mellon
MARKET VECTORS ETF TRUST
This
Statement of Additional Information (SAI) is not a Prospectus. It should be
read in conjunction with the Prospectus dated September [ ],
2009 (the Prospectus) for the Market Vectors ETF Trust (the Trust),
relating to Market Vectors China ETF (the Fund), as it may be revised from
time to time. A copy of the Prospectus for the Trust, relating to the Fund, may
be obtained without charge by writing to the Trust or the Distributor. The Trusts
address is 335 Madison Avenue, 19th Floor, New York, New York 10017.
Capitalized terms used herein that are not defined have the same meaning as in
the Prospectus, unless otherwise noted.
TABLE
OF CONTENTS
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35
i
G
ENERAL DESCRIPTION OF THE TRUST
The
Fund will offer and issue Shares at their net asset value (NAV) only in
aggregations of a specified number of Shares (each, a Creation Unit),
principally for cash. Similarly, Shares are also redeemable by the Fund only in
Creation Units, and generally in exchange for cash. The Shares of the Fund are
expected to be approved for listing, subject to notice of issuance, on NYSE
Arca, Inc. (NYSE Arca or the Exchange), and will trade in the secondary
market at market prices. Those prices may differ from the Shares NAV. A
Creation Unit consists of 600,000 Shares of the Fund.
In
each instance of cash creations or redemptions, the Trust may impose
transaction fees based on transaction expenses in the particular exchange that
will be higher than the transaction fees associated with in-kind purchases or
redemptions.
1
I
NVESTMENT POLICIES AND
RESTRICTIONS
Repurchase Agreements
The
Fund may invest in repurchase agreements with commercial banks, brokers or
dealers to generate income from its excess cash balances and to invest
securities lending cash collateral. A repurchase agreement is an agreement under
which the Fund acquires a money market instrument (generally a security issued
by the U.S. Government or an agency thereof, a bankers acceptance or a
certificate of deposit) from a seller, subject to resale to the seller at an
agreed upon price and date (normally, the next business day). A repurchase
agreement may be considered a loan collateralized by securities. The resale
price reflects an agreed upon interest rate effective for the period the
instrument is held by the Fund and is unrelated to the interest rate on the
underlying instrument.
In
these repurchase agreement transactions, the securities acquired by the Fund
(including accrued interest earned thereon) must have a total value at least
equal to the value of the repurchase agreement and are held by the Trusts
custodian bank until repurchased. In addition, the Trusts Board of Trustees
(Board or Trustees) monitors the Funds repurchase agreement transactions
generally and has established guidelines and standards for review of the
creditworthiness of any bank, broker or dealer counterparty to a repurchase
agreement with the Fund. No more than an aggregate of 15% of the Funds net
assets will be invested in repurchase agreements having maturities longer than
seven days and securities subject to legal or contractual restrictions on
resale, or for which there are no readily available market quotations.
The
use of repurchase agreements involves certain risks. For example, if the other
party to the agreement defaults on its obligation to repurchase the underlying
security at a time when the value of the security has declined, the Fund may
incur a loss upon disposition of the security. If the other party to the
agreement becomes insolvent and subject to liquidation or reorganization under
the Bankruptcy Code or other laws, a court may determine that the underlying
security is collateral for a loan by the Fund not within the control of the
Fund and, therefore, the Fund may not be able to substantiate its interest in
the underlying security and may be deemed an unsecured creditor of the other
party to the agreement. While the Trusts management acknowledges these risks,
it is expected that they can be controlled through careful monitoring
procedures.
Futures
contracts generally provide for the future sale by one party and purchase by
another party of a specified instrument, index or commodity at a specified
future time and at a specified price. Stock index futures contracts are settled
daily with a payment by one party to the other of a cash amount based on the
difference between the level of the stock index specified in the contract from
one day to the next. Futures contracts are standardized as to maturity date and
underlying instrument and are traded on futures exchanges. The Fund may use
futures contracts and options on futures contracts based on other indexes or
combinations of indexes that the Adviser (defined herein) believes to be
representative of the Funds benchmark index (the Index).
An
option is a contract that provides the holder the right to buy or sell shares
at a fixed price, within a specified period of time. A call option gives the
option holder the right to buy the underlying security from the option writer at
the option exercise price at any time prior to the expiration of the option. A
put option gives the option holder the right to sell the underlying security to
the option writer at the option exercise price at any time prior to the
expiration of the option.
2
Although
futures contracts (other than cash settled futures contracts including most
stock index futures contracts) by their terms call for actual delivery or
acceptance of the underlying instrument or commodity, in most cases the contracts
are closed out before the maturity date without the making or taking of
delivery. Closing out an open futures position is done by taking an opposite
position (buying a contract which has previously been sold or selling a
contract previously purchased) in an identical contract to terminate the
position. Brokerage commissions are incurred when a futures contract position
is opened or closed.
Futures
traders are required to make a good faith margin deposit in cash or government
securities with a broker or custodian to initiate and maintain open positions
in futures contracts. A margin deposit is intended to assure completion of the
contract (delivery or acceptance of the underlying instrument or commodity or
payment of the cash settlement amount) if it is not terminated prior to the
specified delivery date. Brokers may establish deposit requirements which are
higher than the exchange minimums. Futures contracts are customarily purchased
and sold on margin deposits which may range upward from less than 5% of the
value of the contract being traded.
After
a futures contract position is opened, the value of the contract is
marked-to-market daily. If the futures contract price changes to the extent
that the margin on deposit does not satisfy margin requirements, payment of
additional variation margin will be required.
Conversely,
a change in the contract value may reduce the required margin, resulting in a
repayment of excess margin to the contract holder. Variation margin payments
are made to and from the futures broker for as long as the contract remains
open. The Fund expects to earn interest income on its margin deposits.
The
Fund may use futures contracts and options thereon, together with positions in
cash and money market instruments, to simulate full investment in the Index.
Under such circumstances, the Adviser may seek to utilize other instruments
that it believes to be correlated to the Index components or a subset of the
components. Liquid futures contracts are not currently available for the Index.
The
Fund will seek to minimize the risk that it will be unable to close out a
futures or options contract by only entering into futures and options for which
there appears to be a liquid secondary market.
The
risk of loss in trading futures contracts or uncovered call options in some
strategies (e.g., selling uncovered stock index futures contracts) is
potentially unlimited. The Fund does not plan to use futures and options
contracts in this way. The risk of a futures position may still be large as
traditionally measured due to the low margin deposits required. In many cases,
a relatively small price movement in a futures contract may result in immediate
and substantial loss or gain to the investor relative to the size of a required
margin deposit. The Fund, however, intends to utilize futures and options
contracts in a manner designed to limit its risk exposure to that which is
comparable to what it would have incurred through direct investment in stocks.
3
Certain
financial futures exchanges limit the amount of fluctuation permitted in
futures contract prices during a single trading day. The daily limit
establishes the maximum amount that the price of a futures contract may vary
either up or down from the previous days settlement price at the end of a
trading session. Once the daily limit has been reached in a particular type of
contract, no trades may be made on that day at a price beyond that limit. The
daily limit governs only price movement during a particular trading day and
therefore does not limit potential losses, because the limit may prevent the
liquidation of unfavorable positions. Futures contract prices have occasionally
moved to the daily limit for several consecutive trading days with little or no
trading, thereby preventing prompt liquidation of future positions and
subjecting some futures traders to substantial losses.
Except
as otherwise specified in the Funds Prospectus or this SAI, there are no
limitations on the extent to which the Fund may engage in transactions
involving futures and options thereon. The Fund will take steps to prevent its
futures positions from leveraging its securities holdings. When the Fund has
a long futures position, it will maintain with its custodian bank, cash or
liquid securities having a value equal to the notional value of the contract
(less any margin deposited in connection with the position). When the Fund has
a short futures position as part of a complex stock replication strategy, the
Fund will maintain with its custodian bank assets substantially identical to
those underlying the contract or cash and liquid securities (or a combination
of the foregoing) having a value equal to the net obligation of the Fund under
the contract (less the value of any margin deposits in connection with the
position).
Swaps
Swap
agreements are contracts between parties in which one party agrees to make
payments to the other party based on the change in market value or level of a
specified index or asset. In return, the other party agrees to make payments to
the first party based on the return of a different specified index or asset.
Although swap agreements entail the risk that a party will default on its
payment obligations thereunder, the Fund seeks to reduce this risk by entering
into agreements that involve payments no less frequently than quarterly. The
net amount of the excess, if any, of the Funds obligations over its
entitlements with respect to each swap is accrued on a daily basis and an
amount of cash or high liquid securities having an aggregate value at least
equal to the accrued excess is maintained in an account at the Trusts
custodian bank.
Currency Forwards
A
currency forward transaction is a contract to buy or sell a specified quantity
of currency at a specified date in the future at a specified price which may be
any fixed number of days from the date of the contract agreed upon by the
parties, at a price set at the time of the contract. Currency forward contracts
may be used to increase or reduce exposure to currency price movements.
4
Future Developments
The
Fund may take advantage of opportunities in the area of options, futures
contracts, options on futures contracts, options on the Fund, warrants, swaps
and any other investments which are not presently contemplated for use or which
are not currently available, but which may be developed, to the extent such
investments are considered suitable for the Fund by the Adviser.
Investment Restrictions
The
Trust has adopted the following investment restrictions as fundamental policies
with respect to the Fund. These restrictions cannot be changed without the
approval of the holders of a majority of the Funds outstanding voting
securities. For purposes of the Investment Company Act of 1940, as amended (the
1940 Act), a majority of the outstanding voting securities of the Fund means
the vote, at an annual or a special meeting of the security holders of the
Trust, of the lesser of (1) 67% or more of the voting securities of the Fund
present at such meeting, if the holders of more than 50% of the outstanding
voting securities of the Fund are present or represented by proxy, or (2) more
than 50% of the outstanding voting securities of the Fund. Under these
restrictions:
1.
The Fund may
not make loans, except that the Fund may (i) lend portfolio securities, (ii)
enter into repurchase agreements, (iii) purchase all or a portion of an issue
of debt securities, bank loan or participation interests, bank certificates
of deposit, bankers acceptances, debentures or other securities, whether or
not the purchase is made upon the original issuance of the securities and
(iv) participate in an interfund lending program with other registered
investment companies;
2.
The Fund may
not borrow money, except as permitted under the 1940 Act, and as interpreted
or modified by regulation from time to time;
3.
The Fund may
not issue senior securities, except as permitted under the 1940 Act, and as
interpreted or modified by regulation from time to time;
4.
The Fund may
not purchase a security (other than obligations of the U.S. Government, its
agencies or instrumentalities) if, as a result, 25% or more of its total
assets would be invested in a single issuer;
5.
The Fund may
not purchase or sell real estate, except that the Fund may (i) invest in
securities of issuers that invest in real estate or interests therein; (ii)
invest in mortgage-related securities and other securities that are secured
by real estate or interests therein; and (iii) hold and sell real estate acquired
by the Fund as a result of the ownership of securities;
6.
The Fund may
not engage in the business of underwriting securities issued by others,
except to the extent that the Fund may be considered an underwriter within
the meaning of the Securities Act of 1933, as amended (the Securities Act),
in the disposition of restricted securities or in connection with its
investments in other investment companies;
7.
The Fund may
not purchase or sell commodities, unless acquired as a result of owning
securities or other instruments, but it may purchase, sell or enter into
financial options and futures, forward and spot currency contracts, swap
transactions and other financial contracts or derivative instruments and may
invest in securities or other instruments backed by commodities; or
5
8.
The Fund may
not purchase any security if, as a result of that purchase, 25% or more of
its total assets would be invested in securities of issuers having their
principal business activities in the same industry, except that the Fund may
invest 25% or more of the value of its total assets in securities of issuers
in any one industry or group of industries if the Index that the Fund
replicates concentrates in an industry or group of industries. This limit
does not apply to securities issued or guaranteed by the U.S. Government, its
agencies or instrumentalities.
In
addition to the investment restrictions adopted as fundamental policies as set
forth above, the Fund observes the following restrictions, which may be changed
by the Board without a shareholder vote. The Fund will not:
1.
Invest in
securities which are illiquid securities, including repurchase agreements
maturing in more than seven days and options traded over-the-counter, if the
result is that more than 15% of the Funds net assets would be invested in
such securities.
2.
Mortgage,
pledge or otherwise encumber its assets, except to secure borrowing effected
in accordance with the fundamental restriction on borrowing set forth above.
3.
Make short
sales of securities.
4.
Purchase any
security on margin, except for such short-term loans as are necessary for
clearance of securities transactions. The deposit or payment by the Fund or
initial or variation margin in connection with futures contracts or related
options thereon is not considered the purchase of a security on margin.
5.
Participate
in a joint or joint-and-several basis in any trading account in securities,
although transactions for the Fund and any other account under common or
affiliated management may be combined or allocated between the Fund and such
account.
6.
Purchase
securities of open-end or closed-end investment companies except in
compliance with the 1940 Act, although the Fund may not acquire any
securities of registered open-end investment companies or registered unit
investment trusts in reliance on Sections 12(d)(1)(F) or 12(d)(1)(G) of the
1940 Act.
If
a percentage limitation is adhered to at the time of investment or contract, a
later increase or decrease in percentage resulting from any change in value or
total or net assets will not result in a violation of such restriction, except
that the percentage limitations with respect to the borrowing of money and illiquid
securities will be continuously complied with.
As
long as the aforementioned investment restrictions are complied with, the Fund
may invest its remaining assets in money market instruments or funds which
reinvest exclusively in money market instruments, in stocks that are in the
relevant market but not the Index, and/or in combinations of certain stock
index futures contracts, options on such futures contracts, stock options,
stock index options, options on the Shares, and stock index swaps and
swaptions, each with a view towards providing the Fund with exposure to the
securities in the Index. These investments may be made to invest uncommitted
cash balances or, in limited circumstances, to assist in meeting shareholder
redemptions of Creation Units. The Fund will not invest in money market
instruments as part of a temporary defensive strategy to protect against
potential stock market declines.
6
S
PECIAL CONSIDERATIONS AND
RISKS
General
Investment
in the Fund should be made with an understanding that the value of the Funds
portfolio securities may fluctuate in accordance with changes in the financial
condition of the issuers of the portfolio securities, the value of common
stocks generally and other factors.
An
investment in the Fund should also be made with an understanding of the risks
inherent in an investment in equity securities, including the risk that the
financial condition of issuers may become impaired or that the general
condition of the stock market may deteriorate (either of which may cause a
decrease in the value of the portfolio securities and thus in the value of
Shares). Common stocks are susceptible to general stock market fluctuations and
to volatile increases and decreases in value as market confidence in and
perceptions of their issuers change. These investor perceptions are based on
various and unpredictable factors, including expectations regarding government,
economic, monetary and fiscal policies, inflation and interest rates, economic
expansion or contraction, and global or regional political, economic and
banking crises.
Holders
of common stocks incur more risk than holders of preferred stocks and debt
obligations because common stockholders, as owners of the issuer, have
generally inferior rights to receive payments from the issuer in comparison
with the rights of creditors of, or holders of debt obligations or preferred
stocks issued by, the issuer. Further, unlike debt securities which typically
have a stated principal amount payable at maturity (whose value, however, will
be subject to market fluctuations prior thereto), or preferred stocks which
typically have a liquidation preference and which may have stated optional or
mandatory redemption provisions, common stocks have neither a fixed principal
amount nor a maturity. Common stock values are subject to market fluctuations
as long as the common stock remains outstanding.
Although
most of the securities in the Index are listed on a national securities
exchange, the principal trading market for some may be in the over-the-counter
market. The existence of a liquid trading market for certain securities may
depend on whether dealers will make a market in such securities. There can be
no assurance that a market will be made or maintained or that any such market
will be or remain liquid. The price at which securities may be sold and the
value of the Funds Shares will be adversely affected if trading markets for
the Funds portfolio securities are limited or absent or if bid/ask spreads are
wide.
The
Fund is not actively managed by traditional methods, and therefore the adverse
financial condition of any one issuer will not result in the elimination of its
securities from the securities held by the Fund unless the securities of such
issuer are removed from the Index.
An
investment in the Fund should also be made with an understanding that the Fund
will not be able to replicate exactly the performance of the Index because the
total return generated by the securities will be reduced by transaction costs
incurred in adjusting the actual balance of the securities and other Fund
expenses, whereas such transaction costs and expenses are not included in the
calculation of the Index. It is also possible that for short periods of time,
the Fund may not fully replicate the performance of the Index due to the
temporary unavailability of certain Index securities in the secondary market or
due
7
to other
extraordinary circumstances. Such events are unlikely to continue for an
extended period of time because the Fund is required to correct such imbalances
by means of adjusting the composition of the securities. It is also possible
that the composition of the Fund may not exactly replicate the composition of
the Index if the Fund has to adjust its portfolio holdings in order to continue
to qualify as a regulated investment company under the U.S. Internal Revenue
Code of 1986, as amended (the Internal Revenue Code).
Shares
are subject to the risk of an investment in a portfolio of equity securities in
an economic sector or industry in which the Index is highly concentrated. In
addition, because it is the policy of the Fund to generally invest in the
securities that comprise its benchmark index, the portfolio of securities held
by the Fund (Fund Securities) also will be concentrated in that economic
sector or industry.
Continuous Offering
The
method by which Creation Units are created and traded may raise certain issues
under applicable securities laws. Because new Creation Units will be issued and
sold by the Trust on an ongoing basis, at any point a distribution, as such
term is used in the Securities Act, may occur. Broker-dealers and other persons
are cautioned that some activities on their part may, depending on the
circumstances, result in their being deemed participants in a distribution in a
manner which could render them statutory underwriters and subject them to the
prospectus delivery and liability provisions of the Securities Act.
For
example, a broker-dealer firm or its client may be deemed a statutory
underwriter if it takes Creation Units after placing an order with the
Distributor, breaks them down into constituent Shares, and sells such Shares
directly to customers, or if it chooses to couple the creation of a supply of
new Shares with an active selling effort involving solicitation of secondary
market demand for Shares. A determination of whether one is an underwriter for
purposes of the Securities Act must take into account all the facts and
circumstances pertaining to the activities of the broker-dealer or its client
in the particular case, and the examples mentioned above should not be
considered a complete description of all the activities that could lead to a
categorization as an underwriter.
Broker-dealers
who are not underwriters but are participating in a distribution (as
contrasted to ordinary secondary trading transactions), and thus dealing with
Shares that are part of an unsold allotment within the meaning of Section
4(3)(C) of the Securities Act, would be unable to take advantage of the
prospectus delivery exemption provided by Section 4(3) of the Securities Act.
This is because the prospectus delivery exemption in Section 4(3) of the
Securities Act is not available in respect of such transactions as a result of
Section 24(d) of the 1940 Act. As a result, broker-dealer firms should note
that dealers who are not underwriters but are participating in a distribution
(as contrasted with ordinary secondary market transactions) and thus dealing
with the Shares that are part of an overallotment within the meaning of Section
4(3)(A) of the Securities Act would be unable to take advantage of the
prospectus delivery exemption provided by Section 4(3) of the Securities Act.
Firms that incur a prospectus delivery obligation with respect to Shares are
reminded that, under Rule 153 of the Securities Act, a prospectus delivery
obligation under Section 5(b)(2) of the Securities Act owed to an exchange
member in connection with a sale on the Exchange is satisfied by the fact that
the prospectus is available at the Exchange upon request. The prospectus
delivery mechanism provided in Rule 153 is only available with respect to
transactions on an exchange.
8
The
Shares of the Fund are expected to be approved for listing on NYSE Arca,
subject to notice of issuance, and will trade in the secondary market at prices
that may differ to some degree from their NAV. There can be no assurance that
the requirements of the Exchange necessary to maintain the listing of Shares of
the Fund will continue to be met.
The
Exchange may but is not required to remove the Shares of the Fund from listing
if: (1) following the initial twelve-month period beginning upon the
commencement of trading of the Fund, there are fewer than 50 beneficial holders
of the Shares for 30 or more consecutive trading days, (2) the value of the
Index or portfolio of securities on which the Fund is based is no longer
calculated or available or (3) such other event shall occur or condition exists
that, in the opinion of the Exchange, makes further dealings on the Exchange
inadvisable. In addition, the Exchange will remove the Shares from listing and
trading upon termination of the Trust.
As
in the case of other securities traded on the Exchange, brokers commissions on
transactions will be based on negotiated commission rates at customary levels.
In
order to provide investors with a basis to gauge whether the market price of
the Shares on the Exchange are approximately consistent with the current value
of the assets of the Fund on a per Share basis, an updated Indicative Per Share
Portfolio Value is disseminated intra-day through the facilities of the
Consolidated Tape Associations Network B. Indicative Per Share Portfolio
Values are disseminated every 15 seconds during regular Exchange trading hours
based on the most recently reported prices of Fund Securities. As the
respective international local markets close, the Indicative Per Share
Portfolio Value will continue to be updated for foreign exchange rates for the
remainder of the U.S. trading day at the prescribed 15 second interval. The
Fund is not involved in or responsible for the calculation or dissemination of
the Indicative Per Share Portfolio Value and makes no warranty as to the
accuracy of the Indicative Per Share Portfolio Value.
The
Indicative Per Share Portfolio Value has an equity securities value component
and a net other assets value component, each of which are summed and divided by
the total estimated Fund Shares outstanding, including Shares expected to be
issued by the Fund on that day, to arrive at an Indicative Per Share Portfolio
Value.
9
In
addition to the equity securities value component described in the preceding
paragraph, the Indicative Per Share Portfolio Value for the Fund includes a net
other assets value component consisting of estimates of all other assets and
liabilities of the Fund including, among others, current day estimates of
dividend income and expense accruals.
Trustees and Officers of the Trust
The
Board has responsibility for the overall management and operations of the
Trust, including general supervision of the duties performed by the Adviser and
other service providers. The Board currently consists of four Trustees.
Independent Trustees
Name, Address
1
Position(s)
Term of
Principal Occupation(s)
Number of
Other
David H. Chow, 51*
Chairman
Since 2008
Director and CEO, DanCourt
Management LLC (strategy consulting firm), March 1999 to present.
30
Director, Forward
Management, LLC; Director, ReFlow Management Co., LLC.
R. Alastair Short, 55*
Trustee
Since 2006
President, Apex Capital
Corporation (personal investment vehicle), January 1988 to present; Vice
Chairman, W.P. Stewart & Co., Ltd. (asset management firm), September
2007 to September 2008; and Managing Director, The GlenRock Group, LLC
(private equity investment firm), May 2004 to September 2007.
39
Director, Kenyon Review;
Director, The Medici Archive Project.
Richard D. Stamberger, 50*
Trustee
Since 2006
Director, President and
CEO, SmartBrief, Inc. (media company).
39
None.
1
The address for each Trustee and officer is 335
Madison Avenue, 19th Floor, New York, New York 10017.
2
Each Trustee serves until resignation, death,
retirement or removal. Officers are elected yearly by the Trustees.
3
The Fund Complex consists of the Van Eck Funds, Van
Eck Worldwide Insurance Trust and the Trust.
*
Member of the Audit Committee.
Member of the Nominating and Corporate Governance
Committee.
10
Interested Trustee
Name, Address
1
Position(s)
Term of
Principal Occupation(s)
Number of
Other
Jan F. van Eck,
4
45
Trustee, President and
Chief Executive Officer
Trustee (Since 2006);
President and Chief Executive Officer (Since 2009)
Director and Executive
Director, Executive Vice President and Principal of the Adviser, Van Eck
Associates Corporation; Director and Executive Vice President, Van Eck
Securities Corporation (VESC); Director and President, Van Eck Absolute
Return Advisers Corp. (VEARA).
30
Director, Greylock Capital
Associates LLC.
1
The address for each Trustee and officer is 335
Madison Avenue, 19th Floor, New York, New York 10017.
2
Each Trustee serves until resignation, death,
retirement or removal. Officers are elected yearly by the Trustees.
3
The Fund Complex consists of the Van Eck Funds, Van
Eck Worldwide Insurance Trust and the Trust.
4
Interested person of the Trust within the meaning
of the 1940 Act. Mr. van Eck is an officer of the Adviser.
Officer Information
The
Officers of the Trust, their addresses, positions with the Fund, ages and
principal occupations during the past five years are set forth below.
Officers Name, Address
1
Position(s) Held
Term of
Principal Occupation(s) During The Past Five Years
Russell G. Brennan, 44
Assistant Vice President
and Assistant Treasurer
Since 2008
Assistant Vice President
and Assistant Treasurer of the Adviser (Since 2008); Manager (Portfolio
Administration) of the Adviser (September 2005-October 2008); Vice President,
Robeco Investment Management (July 1990-September 2005).
Charles T. Cameron, 49
Vice President
Since 2006
Director of Trading and
Portfolio Manager for the Adviser; Officer of three other investment
companies advised by the Adviser.
John Crimmins, 52
Treasurer
Since 2009
Vice President of Portfolio
Administration of the Adviser (Since 2009); Chief Financial, Operating and
Compliance Officer, Kern Capital Management LLC (September 1997-February
2009).
Susan C.
Lashley, 54
Vice President
Since 2006
Vice President of the
Adviser and VESC; Officer of three other investment companies advised by the
Adviser.
11
Officers
Name, Address
1
Position(s)
Held
Term of
Principal Occupation(s) During The Past Five Years
Thomas K. Lynch, 52
Chief Compliance Officer
Since 2007
Chief Compliance Officer of
the Adviser and VEARA (Since December 2006) and of VESC (Since August 2008);
Vice President of the Adviser and VEARA; Treasurer (April 2005 December
2006); Second Vice President of Investment Reporting, TIAA-CREF (January 1996-April
2005). Officer of other investment companies advised by the Adviser
Laura I. Martínez, 29
Assistant Vice President
and Assistant Secretary
Since 2008
Assistant Vice President
and Associate General Counsel of the Adviser (Since 2008); Associate, Davis
Polk & Wardwell (October 2005-June 2008); Stanford Law School (September
2002-June 2005).
Joseph J. McBrien, 61
Senior Vice President,
Secretary and Chief Legal Officer
Since 2006
Senior Vice President,
General Counsel and Secretary of the Adviser, VESC and VEARA (Since December
2005); Managing Director, Chatsworth Securities LLC (March 2001-November
2005); Officer of three other investment companies advised by the Adviser.
Jonathan R. Simon, 35
Vice President and
Assistant Secretary
Since 2006
Vice President and
Associate General Counsel of the Adviser (Since 2006); Vice President and
Assistant Secretary of VEARA and VESC (Since 2006); Associate, Schulte Roth
& Zabel (July 2004-July 2006); Associate, Carter Ledyard & Milburn
LLP (September 2001-July 2004); Officer of three other investment companies
advised by the Adviser.
Bruce J. Smith, 54
Senior Vice President and
Chief Financial Officer
Since 2006
Senior Vice President and
Chief Financial Officer of the Adviser;
Senior Vice President, Chief Financial Officer, Treasurer and
Controller of VESC and VEARA; Officer of three other investment companies
advised by the Adviser.
Derek S. van Eck,
3
44
Executive Vice President
Since 2006
Director, Executive Vice
President, Chief Investment Officer and Principal of the Adviser; Director
and Executive Vice President VESC and VEARA; Director of Greylock Capital
Associates LLC; President and Chief Executive Officer of the Van Eck Funds
and Van Eck Worldwide Insurance Trust; Officer of other investment companies
advised by the Adviser.
1
The address for each Officer
is 335 Madison Avenue, 19th Floor, New York, New York 10017.
2
Officers are elected yearly
by the Trustees.
3
Messrs. Jan F. van Eck and
Derek S. van Eck are brothers.
The
Board of the Trust met five times during the fiscal year ended December 31,
2008.
The
Board has an Audit Committee, consisting of three Trustees who are not
interested persons (as defined in the 1940 Act) of the Trust (an Independent
Trustee). Messrs. Chow, Short and
Stamberger currently serve as members of the Audit Committee and each has been
designated as an audit committee financial expert as defined under Item 407
of Regulation S-K of the Securities
12
Exchange Act of 1934, as
amended (the Exchange Act). Mr. Short
is the Chairman of the Audit Committee.
The Audit Committee has the responsibility, among other things, to: (i) oversee the accounting and financial
reporting processes of the Trust and its internal control over financial
reporting and, as the Audit Committee deems appropriate, to inquire into the internal
control over financial reporting of certain third-party service providers; (ii)
oversee the quality and integrity of the Trusts financial statements and the
independent audit thereof; (iii) oversee or, as appropriate, assist the Boards
oversight of the Trusts compliance with legal and regulatory requirements that
relate to the Trusts accounting and financial reporting, internal control over
financial reporting and independent audit; (iv) approve prior to appointment
the engagement of the Trusts independent registered public accounting firm
and, in connection therewith, to review and evaluate the qualifications,
independence and performance of the Trusts independent registered public
accounting firm; and (v) act as a liaison between the Trusts independent
registered public accounting firm and the full Board. The Audit Committee met four times during the fiscal year ended
December 31, 2008.
The
Board also has a Nominating and Corporate Governance Committee consisting of
three Independent Trustees. Messrs.
Chow, Short and Stamberger currently serve as members of the Nominating and
Corporate Governance Committee. The
Nominating and Corporate Governance Committee has the responsibility, among
other things, to: (i) evaluate, as
necessary, the composition of the Board, its committees and sub-committees and
make such recommendations to the Board as deemed appropriate by the Committee; (ii) review and define Independent Trustee qualifications; (iii) review the
qualifications of individuals serving as Trustees on the Board and its
committees; (iv) develop corporate governance guidelines for the Trust and the
Board; (v) evaluate, recommend and nominate qualified individuals for election
or appointment as members of the Board and recommend the appointment of members
and chairs of each Board committee and subcommittee and (vi) review and assess,
from time to time, the performance of the committees and subcommittees of the
Board and report results to the Board.
The Nominating and Corporate Governance Committee met one time during
the fiscal year ended December 31, 2008.
The
officers and Trustees of the Trust, in the aggregate, own less than 1% of the
Shares of the Fund.
Name Of
Trustee
Dollar Range of Equity Securities in Market
Aggregate Dollar Range Of Equity Securities
David H. Chow
None
$50,001 $100,000
R. Alastair Short
None
$10,001 $50,000
Richard D. Stamberger
None
Over $100,000
Jan F. van Eck
None
Over $100,000
As
to each Independent Trustee and his immediate family members, no person owned
beneficially or of record securities in an investment manager or principal
underwriter of the Fund, or a person (other than a registered investment
company) directly or indirectly controlling, controlled by or under common
control with the investment manager or principal underwriter of the Fund.
13
Remuneration of Trustees
The
table below shows the estimated compensation that is contemplated to be paid to
the Trustees by the Trust for the fiscal year ended December 31, 2009.
Annual Trustee fees may be reviewed periodically and changed by the Trusts
Board.
Name of
Trustee
Aggregate
Deferred
Pension or Retirement
Estimated
Total
David H. Chow
$
0
$
75,000
N/A
N/A
$
75,000
R. Alastair Short
$
70,000
$
0
N/A
N/A
$
135,000
Richard D. Stamberger
$
50,625
$
16,875
N/A
N/A
$
142,500
Jan F. van Eck
(3)
$
0
$
0
N/A
N/A
$
0
(1)
The Fund Complex consists of Van Eck Funds, Van Eck
Worldwide Insurance Trust and the Trust.
(2)
Because the funds of the Fund Complex have different
fiscal year ends, the amounts shown are presented on a calendar year basis.
(3)
Interested person under the 1940 Act.
The Trust is
required to disclose, after its first and third fiscal quarters, the complete
schedule of the Funds portfolio holdings with the SEC on Form N-Q.
Form N-Q for the Fund will be available on the SECs website at
http://www.sec.gov
.
The Funds Form N-Q may also be reviewed and copied at the SECs Public
Reference Room in Washington, D.C. and information on the operation of the
Public Reference Room may be obtained by calling 202.942.8090. The Funds
Form N-Q will be available through the Funds website, at
www.vaneck.com
or by writing to 335 Madison Avenue, 19th Floor, New York, New York 10017.
14
The
Fund, the Adviser and the Distributor have each adopted a Code of Ethics
pursuant to Rule 17j-1 under the 1940 Act, designed to monitor
personal securities transactions by their personnel (the Personnel). The Code
of Ethics requires that all trading in securities that are being purchased or
sold, or are being considered for purchase or sale, by the Fund must be
approved in advance by the Head of Trading, the Director of Research and the
Chief Compliance Officer of the Adviser. Approval will be granted if the
security has not been purchased or sold or recommended for purchase or sale for
the Fund on the day that the Personnel of the Adviser requests pre-clearance,
or otherwise if it is determined that the personal trading activity will not
have a negative or appreciable impact on the price or market of the security,
or is of such a nature that it does not present the dangers or potential for
abuses that are likely to result in harm or detriment to the Fund. At the end
of each calendar quarter, all Personnel must file a report of all transactions
entered into during the quarter. These reports are reviewed by a senior officer
of the Adviser.
Generally,
all Personnel must obtain approval prior to conducting any transaction in
securities. Independent Trustees, however, are not required to obtain prior
approval of personal securities transactions. Personnel may purchase securities
in an initial public offering or private placement,
provided
that he or she
obtains preclearance of the purchase and makes certain representations.
PROXY VOTING
POLICIES AND PROCEDURES
The
Funds proxy voting record will be available upon request and on the SECs
website at
http://www.sec.gov
. Proxies for the Funds portfolio
securities are voted in accordance with the Advisers proxy voting policies and
procedures, which are set forth in Appendix A to this SAI.
The
Trust is required to disclose annually the Funds complete proxy voting record
on Form N-PX covering the period July 1 through June 30 and file
it with the SEC no later than August 31. Form N-PX for the Fund will
be available through the Funds website, at www.vaneck.com, or by writing to
335 Madison Avenue, 19th Floor, New York, New York 10017. The Funds
Form N-PX will also be available on the SECs website at
www.sec.gov
.
The Investment Manager
Van
Eck Associates Corporation (the Adviser) acts as investment manager to the
Trust and, subject to the supervision of the Board, is responsible for the
day-to-day investment management of the Fund. The Adviser is a private company
with headquarters in New York and manages other mutual funds and separate
accounts.
The
Adviser serves as investment manager to the Fund pursuant to the Investment
Management Agreement between the Trust and the Adviser. Under the Investment
Management Agreement, the Adviser, subject to the supervision of the Board and
in conformity with the stated investment policies of the Fund, manages the
investment of the Funds assets. The Adviser is responsible for placing
purchase and sale orders and providing continuous supervision of the investment
portfolio of the Fund.
15
Pursuant
to the Investment Management Agreement, the Trust has agreed to indemnify the
Adviser for certain liabilities, including certain liabilities arising under
the federal securities laws, unless such loss or liability results from willful
misfeasance, bad faith or gross negligence in the performance of its duties or
the reckless disregard of its obligations and duties.
Term
.
The Investment Management Agreement continues in effect until June 30, 2010.
Thereafter, the Investment Management Agreement is subject to annual approval
by (1) the Board or (2) a vote of a majority of the outstanding
voting securities (as defined in the 1940 Act) of the Fund,
provided
that in either event such continuance also is approved by a majority of the
Board who are not interested persons (as defined in the 1940 Act) of the
Trust by a vote cast in person at a meeting called for the purpose of voting on
such approval. The Investment Management Agreement is terminable without
penalty, on 60 days notice, by the Board or by a vote of the holders of a
majority (as defined in the 1940 Act) of the Funds outstanding voting
securities. The Investment Management Agreement is also terminable upon 60 days
notice by the Adviser and will terminate automatically in the event of its
assignment (as defined in the 1940 Act).
The Administrator
Van
Eck Associates Corporation also serves as administrator for the Trust pursuant
to the Investment Management Agreement. Under the Investment Management
Agreement, the Adviser is obligated on a continuous basis to provide such
administrative services as the Board of the Trust reasonably deems necessary
for the proper administration of the Trust and the Fund. The Adviser will
generally assist in all aspects of the Trusts and the Funds operations;
supply and maintain office facilities, statistical and research data, data
processing services, clerical, bookkeeping and record keeping services
(including without limitation the maintenance of such books and records as are
required under the 1940 Act and the rules thereunder, except as maintained
by other agents), internal auditing, executive and administrative services, and
stationery and office supplies; prepare reports to shareholders or investors;
prepare and file tax returns; supply financial information and supporting data
for reports to and filings with the SEC and various state Blue Sky authorities;
supply supporting documentation for meetings of the Board; provide monitoring
reports and assistance regarding compliance with the Declaration of Trust,
by-laws, investment objectives and policies and with federal and state
securities laws; arrange for appropriate insurance coverage; calculate NAVs,
net income and realized capital gains or losses; and negotiate arrangements
with, and supervise and coordinate the activities of, agents and others to
supply services.
Custodian and Transfer Agent
The
Bank of New York Mellon (formerly known as The Bank of New York) (The Bank of
New York), located at 101 Barclay Street, New York, NY 10286, serves as
custodian for the Fund pursuant to a Custodian Agreement. As Custodian, The
Bank of New York holds the Funds assets. The Bank of New York serves as the
Funds transfer agent pursuant to a Transfer Agency Agreement. The Bank of
16
New York may
be reimbursed by the Fund for its out-of-pocket expenses. In addition, The Bank
of New York provides various accounting services to the Fund pursuant to a fund
accounting agreement.
The Distributor
Van
Eck Securities Corporation (the Distributor) is the principal underwriter and
distributor of Shares. Its principal address is 335 Madison Avenue, New York,
New York 10017 and investor information can be obtained by calling
1-888-MKT-VCTR. The Distributor has entered into an agreement with the Trust
which will continue from its effective date unless terminated by either party
upon 60 days prior written notice to the other party by the Trust and the
Adviser, or by the Distributor, or until termination of the Trust or the Fund
offering its Shares, and which is renewable annually thereafter (the
Distribution Agreement), pursuant to which it distributes Shares. Shares will
be continuously offered for sale by the Trust through the Distributor only in
Creation Units, as described below under Creation and Redemption of Creation
UnitsProcedures for Creation of Creation Units. Shares in less than Creation
Units are not distributed by the Distributor. The Distributor will deliver a
prospectus to persons purchasing Shares in Creation Units and will maintain
records of both orders placed with it and confirmations of acceptance furnished
by it. The Distributor is a broker-dealer registered under the Exchange Act and
a member of the Financial Industry Regulatory Authority (FINRA). The Distributor
has no role in determining the investment policies of the Trust or which
securities are to be purchased or sold by the Trust.
The
Distributor may also enter into sales and investor services agreements with
broker-dealers or other persons that are Participating Parties and DTC
Participants (as defined below) to provide distribution assistance, including
broker-dealer and shareholder support and educational and promotional services
but must pay such broker-dealers or other persons, out of its own assets.
The
Distribution Agreement provides that it may be terminated at any time, without
the payment of any penalty: (i) by vote of a majority of the Independent
Trustees or (ii) by vote of a majority (as defined in the 1940 Act)
of the outstanding voting securities of the Fund, on at least 60 days written
notice to the Distributor. The Distribution Agreement is also terminable upon
60 days notice by the Distributor and will terminate automatically in the event
of its assignment (as defined in the 1940 Act).
Other Accounts Managed by the Portfolio Managers
Other Accounts Managed
Accounts with respect to which
Name of
Category of
Number of
Total Assets in
Number of
Total Assets in
Hao-Hung (Peter) Liao
Registered
2
$
6,182,892
0
$
0
Other pooled
0
$
0
0
$
0
Other accounts
0
$
0
0
$
0
George Cao
Registered
0
$
0
0
$
0
Other pooled
0
$
0
0
$
0
Other accounts
0
$
0
0
$
0
17
Although
the funds in the Trust that are managed by Messrs. Liao and Cao may have
different investment strategies, each has an investment objective of seeking to
replicate, before fees and expenses, its respective underlying index. The
Adviser does not believe that management of the various accounts presents a
material conflict of interest for Messrs. Liao and Cao or the Adviser.
Portfolio Manager Compensation
The
portfolio managers are paid a fixed base salary and a bonus. The bonus is based
upon the quality of investment analysis and the management of the funds. The
quality of management of the funds includes issues of replication, rebalancing,
portfolio monitoring, and efficient operation, among other factors. Portfolio
managers who oversee accounts with significantly different fee structures are
generally compensated by discretionary bonus rather than a set formula to help
reduce potential conflicts of interest. At times, the Adviser and its
affiliates manage accounts with incentive fees.
Portfolio Manager Share Ownership
As
of the date of this SAI, Messrs. Liao and Cao do not beneficially own any
Shares of the Fund.
When
selecting brokers and dealers to handle the purchase and sale of portfolio
securities, the Adviser looks for prompt execution of the order at a favorable
price. Generally, the Adviser works with recognized dealers in these
securities, except when a better price and execution of the order can be
obtained elsewhere. The Fund will not deal with affiliates in principal
transactions unless permitted by exemptive order or applicable rule or
regulation. The Adviser owes a duty to its clients to provide best execution on
trades effected. Since the investment objective of the Fund is investment performance
that corresponds to that of the Index, the Adviser does not intend to select
brokers and dealers for the purpose of receiving research services in addition
to a favorable price and prompt execution either from that broker or an
unaffiliated third party.
The
Adviser assumes general supervision over placing orders on behalf of the Trust
for the purchase or sale of portfolio securities. If purchases or sales of
portfolio securities of the Trust and one or more other investment companies or
clients supervised by the Adviser are considered at or about the same time,
transactions in such securities are allocated among the several investment
companies and clients in a manner deemed equitable to all by the Adviser. In
some cases, this procedure could have a detrimental effect on the price or
volume of the security so far as the Trust is concerned. However, in other
cases, it is possible that the ability to participate in volume transactions
and to negotiate lower brokerage commissions will be beneficial to the Trust.
The primary consideration is best execution.
18
Portfolio
turnover may vary from year to year, as well as within a year. High turnover
rates are likely to result in comparatively greater brokerage expenses. The
overall reasonableness of brokerage commissions is evaluated by the Adviser
based upon its knowledge of available information as to the general level of
commissions paid by other institutional investors for comparable services.
The
following information supplements and should be read in conjunction with the
section in the Funds Prospectus entitled Shareholder InformationBuying and
Selling Exchange-Traded Shares.
DTC,
a limited-purpose trust company, was created to hold securities of its
participants (the DTC Participants) and to facilitate the clearance and
settlement of securities transactions among the DTC Participants in such
securities through electronic book-entry changes in accounts of the DTC
Participants, thereby eliminating the need for physical movement of securities
certificates. DTC Participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations, some of
whom (and/or their representatives) own DTC. More specifically, DTC is owned by
a number of its DTC Participants and by the NYSE and FINRA. Access to the DTC
system is also available to others such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a DTC
Participant, either directly or indirectly (the Indirect Participants).
Beneficial
ownership of Shares is limited to DTC Participants, Indirect Participants and
persons holding interests through DTC Participants and Indirect Participants.
Ownership of beneficial interests in Shares (owners of such beneficial
interests are referred to herein as Beneficial Owners) is shown on, and the
transfer of ownership is effected only through, records maintained by DTC (with
respect to DTC Participants) and on the records of DTC Participants (with
respect to Indirect Participants and Beneficial Owners that are not DTC
Participants). Beneficial Owners will receive from or through the DTC
Participant a written confirmation relating to their purchase of Shares.
Conveyance
of all notices, statements and other communications to Beneficial Owners is
effected as follows. Pursuant to the Depositary Agreement between the Trust and
DTC, DTC is required to make available to the Trust upon request and for a fee
to be charged to the Trust a listing of the Shares holdings of each DTC
Participant. The Trust shall inquire of each such DTC Participant as to the
number of Beneficial Owners holding Shares, directly or indirectly, through
such DTC Participant. The Trust shall provide each such DTC Participant with
copies of such notice, statement or other communication, in such form, number
and at such place as such DTC Participant may reasonably request, in order that
such notice, statement or communication may be transmitted by such DTC
Participant, directly or indirectly, to such Beneficial Owners. In addition,
the Trust shall pay to each such DTC Participant a fair and reasonable amount
as reimbursement for the expenses attendant to such transmittal, all subject to
applicable statutory and regulatory requirements.
Share
distributions shall be made to DTC or its nominee, Cede & Co., as the
registered holder of all Shares. DTC or its nominee, upon receipt of any such
distributions, shall credit immediately DTC Participants accounts with payments
in amounts proportionate to their respective beneficial interests in Shares as
shown on the records of DTC or its nominee. Payments by DTC Participants to
Indirect Participants and Beneficial Owners of Shares held through such DTC
Participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of
19
customers in
bearer form or registered in a street name, and will be the responsibility of
such DTC Participants.
The
Trust has no responsibility or liability for any aspects of the records
relating to or notices to Beneficial Owners, or payments made on account of
beneficial ownership interests in such Shares, or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests or for
any other aspect of the relationship between DTC and the DTC Participants or
the relationship between such DTC Participants and the Indirect Participants
and Beneficial Owners owning through such DTC Participants.
DTC
may determine to discontinue providing its service with respect to the Shares
at any time by giving reasonable notice to the Trust and discharging its
responsibilities with respect thereto under applicable law. Under such
circumstances, the Trust shall take action either to find a replacement for DTC
to perform its functions at a comparable cost or, if such a replacement is
unavailable, to issue and deliver printed certificates representing ownership
of Shares, unless the Trust makes other arrangements with respect thereto
satisfactory to the Exchange.
C
REATION AND REDEMPTION OF
CREATION UNITS
General
The
Trust issues and sells Shares only in Creation Units on a continuous basis
through the Distributor, without an initial sales load, at their NAV next
determined after receipt, on any Business Day (as defined herein), of an order
in proper form.
A
Business Day with respect to the Fund is any day on which the NYSE is open
for business. As of the date of the Prospectus, the NYSE observes the following
holidays: New Years Day, Martin Luther King, Jr. Day, Presidents Day
(Washingtons Birthday), Good Friday, Memorial Day (observed), Independence
Day, Labor Day, Thanksgiving Day and Christmas Day.
Fund Deposit
The
Administrator, through the NSCC, makes available on each Business Day,
immediately prior to the opening of business on the Exchange (currently
9:30 a.m. Eastern time), the list of the names and the required number of
shares of each Deposit Security to be included in the current Fund Deposit
(based
20
on information
at the end of the previous Business Day) as well as the Cash Component for the
Fund. Such Fund Deposit is applicable, subject to any adjustments as described
below, in order to effect creations of Creation Units of the Fund until such
time as the next-announced Fund Deposit composition is made available.
The
identity and number of shares of the Deposit Securities required for the Fund
Deposit for the Fund changes as rebalancing adjustments and corporate action
events are reflected from time to time by the Adviser with a view to the
investment objective of the Fund. The composition of the Deposit Securities may
also change in response to adjustments to the weighting or composition of the
securities constituting the Index. In addition, the Trust reserves the right to
accept a basket of securities or cash that differs from Deposit Securities or
to permit or require the substitution of an amount of cash (
i.e.
,
a cash in lieu amount) to be added to the Cash Component to replace any
Deposit Security which may, among other reasons, not be available in sufficient
quantity for delivery, not be permitted to be re-registered in the name of the
Trust as a result of an in-kind creation order pursuant to local law or market
convention or which may not be eligible for transfer through the Clearing
Process (described below), or which may not be eligible for trading by a
Participating Party (defined below). In light of the foregoing, in order to
seek to replicate the in-kind creation order process, the Trust expects to purchase
the Deposit Securities represented by the cash in lieu amount in the secondary
market (Market Purchases). In such cases where the Trust makes Market
Purchases because a Deposit Security may not be permitted to be re-registered
in the name of the Trust as a result of an in-kind creation order pursuant to
local law or market convention, or for other reasons, the Authorized
Participant will reimburse the Trust for, among other things, any difference
between the market value at which the securities were purchased by the Trust
and the cash in lieu amount (which amount, at the Advisers discretion, may be
capped), applicable registration fees and taxes. Brokerage commissions incurred
in connection with the Trusts acquisition of Deposit Securities will be at the
expense of the Fund and will affect the value of all Shares of the Fund but the
Adviser may adjust the transaction fee to the extent the composition of the
Deposit Securities changes or cash in lieu is added to the Cash Component to
protect ongoing shareholders. The adjustments described above will reflect
changes, known to the Adviser on the date of announcement to be in effect by
the time of delivery of the Fund Deposit, in the composition of the Index or
resulting from stock splits and other corporate actions.
Procedures for Creation of Creation Units
To
be eligible to place orders with the Distributor to create Creation Units of
the Fund, an entity or person either must be (1) a Participating Party,
i.e.
,
a broker-dealer or other participant in the Clearing Process through the
Continuous Net Settlement System of the NSCC; or (2) a DTC Participant
(see Book Entry Only System); and, in either case, must have executed an
agreement with the Trust and with the Distributor with respect to creations and
redemptions of Creation Units outside the Clearing Process (Participant
Agreement) (discussed below). All Creation Units of the Fund, however created,
will be entered on the records of the Depository in the name of Cede & Co.
for the account of a DTC Participant.
21
Creation
Units may be created in advance of the receipt by the Trust of all or a portion
of the Fund Deposit. In such cases, the Participating Party will remain liable
for the full deposit of the missing portion(s) of the Fund Deposit and will be
required to post collateral with the Trust consisting of cash at least equal to
a percentage of the marked-to-market value of such missing portion(s) that is
specified in the Participant Agreement. The Trust may use such collateral to
buy the missing portion(s) of the Fund Deposit at any time and will subject
such Participating Party to liability for any shortfall between the cost to the
Trust of purchasing such securities and the value of such collateral. The Trust
will have no liability for any such shortfall. The Trust will return any unused
portion of the collateral to the Participating Party once the entire Fund
Deposit has been properly received by the Distributor and deposited into the
Trust.
Orders
to create Creation Units of the Fund shall be placed with a Participating Party
or DTC Participant, as applicable, in the form required by such Participating
Party or DTC Participant. Investors should be aware that their particular
broker may not have executed a Participant Agreement, and that, therefore, orders
to create Creation Units of the Fund may have to be placed by the investors
broker through a Participating Party or a DTC Participant who has executed a
Participant Agreement. At any given time there may be only a limited number of
broker-dealers that have executed a Participant Agreement. Those placing orders
to create Creation Units of the Fund through the Clearing Process should afford
sufficient time to permit proper submission of the order to the Distributor
prior to the Closing Time on the Transmittal Date.
Orders
for creation that are effected outside the Clearing Process are likely to
require transmittal by the DTC Participant earlier on the Transmittal Date than
orders effected using the Clearing Process. Those persons placing orders outside
the Clearing Process should ascertain the deadlines applicable to DTC and the
Federal Reserve Bank wire system by contacting the operations department of the
broker or depository institution effectuating such transfer of Deposit
Securities and Cash Component.
Orders
to create Creation Units of the Fund may be placed through the Clearing Process
utilizing procedures applicable to domestic funds for domestic securities
(Domestic Funds) (see Placement of Creation Orders Using Clearing Process)
or outside the Clearing Process utilizing the procedures applicable to either
Domestic Funds or foreign funds for foreign securities (see Placement of
Creation Orders Outside Clearing ProcessDomestic Funds and Placement of
Creation Orders Outside Clearing ProcessForeign Funds). In the event that the
Fund includes both domestic and foreign securities, the time for submitting
orders is as stated in the Placement of Creation Orders Outside Clearing
ProcessForeign Funds and Placement of Redemption Orders Outside Clearing
ProcessForeign Funds sections below shall operate.
22
Placement of Creation Orders Using Clearing
Process
The
Participant Agreement authorizes the Distributor to transmit to NSCC on behalf
of the Participating Party such trade instructions as are necessary to effect
the Participating Partys creation order. Pursuant to such trade instructions
from the Distributor to NSCC, the Participating Party agrees to transfer the
requisite Deposit Securities (or contracts to purchase such Deposit Securities
that are expected to be delivered in a regular way manner by the third (3rd)
Business Day) and the Cash Component to the Trust, together with such
additional information as may be required by the Distributor. An order to
create Creation Units of the Fund through the Clearing Process is deemed
received by the Distributor on the Transmittal Date if (i) such order is
received by the Distributor not later than the Closing Time on such Transmittal
Date and (ii) all other procedures set forth in the Participant Agreement
are properly followed.
Placement of Creation Orders Outside Clearing
ProcessDomestic Funds
Additional
transaction fees may be imposed with respect to transactions effected outside
the Clearing Process (through a DTC participant) and in circumstances in which
any cash can be used in lieu of Deposit Securities to create Creation Units.
(See Creation Transaction Fee section below.)
Placement of Creation Orders Outside Clearing
ProcessForeign Funds
23
Custodian will
then provide such information to the appropriate custodian. For the Fund, the
Custodian will cause the subcustodian of the Fund to maintain an account into
which the Deposit Securities (or the cash value of all or part of such
securities, in the case of a permitted or required cash purchase or cash in
lieu amount) will be delivered. Deposit Securities must be delivered to an
account maintained at the applicable local custodian. The Trust must also
receive, on or before the contractual settlement date, immediately available or
same day funds estimated by the Custodian to be sufficient to pay the Cash
Component next determined after receipt in proper form of the purchase order,
together with the creation transaction fee described below.
Once
the Trust has accepted a creation order, the Trust will confirm the issuance of
a Creation Unit of the Fund against receipt of payment, at such NAV as will
have been calculated after receipt in proper form of such order. The
Distributor will then transmit a confirmation of acceptance of such order.
Creation
Units will not be issued until the transfer of good title to the Trust of the
Deposit Securities and the payment of the Cash Component have been completed.
When the subcustodian has confirmed to the Custodian that the required Deposit
Securities (or the cash value thereof) have been delivered to the account of
the relevant subcustodian, the Distributor and the Adviser will be notified of
such delivery and the Trust will issue and cause the delivery of the Creation
Units.
Acceptance of Creation Order
All
questions as to the number of shares of each security in the Deposit Securities
and the validity, form, eligibility and acceptance for deposit of any
securities to be delivered shall be determined by the Trust, and the Trusts
determination shall be final and binding.
Creation Transaction Fee
24
Redemption of Creation Units
Redemptions
are effected principally for cash. To the extent redemptions are effected
in-kind, the Administrator, through NSCC, makes available immediately prior to
the opening of business on the Exchange (currently 9:30 a.m. Eastern time)
on each day that the Exchange is open for business, the Fund Securities that
will be applicable (subject to possible amendment or correction) to redemption
requests received in proper form (as defined below) on that day. The redemption
proceeds for a Creation Unit consist of Fund Securities, as announced by the
Administrator on the Business Day of the request for redemption, plus cash in
an amount equal to the difference between the NAV of the Shares being redeemed,
as next determined after a receipt of a request in proper form, and the value
of the Fund Securities, less the redemption transaction fee and variable fees
described below. The redemption transaction fee of $1,000 is deducted from such
redemption proceeds. Should the Fund Securities have a value greater than the
NAV of the Shares being redeemed, a compensating cash payment to the Trust
equal to the differential plus the applicable redemption transaction fee will
be required to be arranged for by or on behalf of the redeeming shareholder.
The Fund reserves the right to honor a redemption request by delivering a
basket of securities or cash that differs from the Fund Securities.
Redemption Transaction Fee
25
Placement of Redemption Orders Using Clearing
Process
Placement of Redemption Orders Outside
Clearing ProcessDomestic Funds
After the
Administrator has deemed an order for redemption outside the Clearing Process
received, the Administrator will initiate procedures to transfer the requisite
Fund Securities (or contracts to purchase such Fund Securities) which are
expected to be delivered within three Business Days and the
26
cash
redemption payment to the redeeming Beneficial Owner by the third Business Day
following the Transmittal Date on which such redemption order is deemed
received by the Administrator. An additional variable redemption transaction
fee of up to four times the basic transaction fee is applicable to redemptions
outside the Clearing Process.
Placement of Redemption Orders Outside
Clearing ProcessForeign Funds
In
connection with taking delivery of Shares of Fund Securities upon redemption of
Creation Units, a redeeming shareholder or entity acting on behalf of a
redeeming shareholder must maintain appropriate custody arrangements with a
qualified broker-dealer, bank or other custody providers in each jurisdiction
in which any of the Fund Securities are customarily traded, to which account
such Fund Securities will be delivered. If neither the redeeming shareholder
nor the entity acting on behalf of a redeeming shareholder has appropriate
arrangements to take delivery of the Fund Securities in the applicable foreign
jurisdiction and it is not possible to make other such arrangements, or if it
is not possible to effect deliveries of the Fund Securities in such
jurisdictions, the Trust may, in its discretion, exercise its option to redeem
such Shares in cash, and the redeeming shareholder will be required to receive
its redemption proceeds in cash.
Deliveries
of redemption proceeds generally will be made within three business days. Due
to the schedule of holidays in certain countries, however, the delivery of
in-kind redemption proceeds may take longer than three business days after the
day on which the redemption request is received in proper form. In such cases,
the local market settlement procedures will not commence until the end of the
local holiday periods.
China
Jan. 1
Jan. 28
May 1
October 2
October 8
Jan. 2
Jan. 29
May 28
October 5
Jan. 26
Jan. 30
May 29
October 6
Jan. 27
April 6
October 1
October 7
27
SETTLEMENT PERIODS GREATER THAN SEVEN DAYS FOR YEAR 2009
Beginning
of
End
of
Number
of Days
China
01/21/09
02/02/09
12
01/22/09
02/03/09
12
01/23/09
02/04/09
12
09/28/09
10/09/09
13
09/29/09
10/12/09
13
09/30/09
10/13/09
13
The
right of redemption may be suspended or the date of payment postponed
(1) for any period during which the NYSE is closed (other than customary
weekend and holiday closings); (2) for any period during which trading on
the NYSE is suspended or restricted; (3) for any period during which an
emergency exists as a result of which disposal of the Shares of the Fund or determination
of its NAV is not reasonably practicable; or (4) in such other
circumstance as is permitted by the SEC.
DETERMINATION
OF NET ASSET VALUE
The
following information supplements and should be read in conjunction with the
section in the Funds Prospectus entitled Shareholder
InformationDetermination of NAV.
In
computing the Funds NAV, the Funds securities holdings are valued based on
market quotations. When market quotations are not readily available for a
portfolio security the Fund must use
28
the securitys
fair value as determined in good faith in accordance with the Funds Fair Value
Pricing Procedures, which are approved by the Board of Trustees.
The
following information supplements and should be read in conjunction with the
section in the Funds Prospectus entitled Shareholder
InformationDistributions.
General Policies
No
reinvestment service is provided by the Trust. Broker-dealers may make
available the DTC book-entry Dividend Reinvestment Service for use by
Beneficial Owners of the Fund through DTC Participants for reinvestment of
their dividend distributions. If this service is used, dividend distributions
of both income and realized gains will be automatically reinvested in
additional whole Shares of the Fund. Beneficial Owners should contact their
broker to determine the availability and costs of the service and the details
of participation therein. Brokers may require Beneficial Owners to adhere to
specific procedures and timetables.
As
of the date of this SAI, no entity beneficially owned any voting securities of
the Fund.
The
following information also supplements and should be read in conjunction with
the section in the Prospectus entitled Shareholder InformationTax Matters.
The
Fund intends to qualify for and to elect treatment as a RIC under Subchapter M
of the Internal Revenue Code. As a RIC, the Fund will not be subject to U.S.
federal income tax on the portion
29
The
Fund will be subject to a 4% excise tax on certain undistributed income if it
does not distribute to its shareholders in each calendar year at least 98% of
its ordinary income for the calendar year plus 98% of its capital gain net
income for the twelve months ended October 31 of such years. The Fund
intends to declare and distribute dividends and distributions in the amounts
and at the times necessary to avoid the application of this 4% excise tax.
As
a result of U.S. federal income tax requirements, the Trust on behalf of the
Fund, has the right to reject an order for a creation of Shares if the creator
(or group of creators) would, upon obtaining the Shares so ordered, own 80% or
more of the outstanding Shares of the Fund and if, pursuant to Section 351
of the Internal Revenue Code, the Fund would have a basis in the Deposit
Securities different from the market value of such securities on the date of
deposit. The Trust also has the right to require information necessary to
determine beneficial share ownership for purposes of the 80% determination. See
Creation and Redemption of Creation UnitsProcedures for Creation of Creation
Units.
In
general, a sale of Shares results in capital gain or loss, and for individual
shareholders, is taxable at a federal rate dependent upon the length of time
the Shares were held. A redemption of a shareholders Fund Shares is normally
treated as a sale for tax purposes. Fund Shares held for a period of one year
or less at the time of such sale or redemption will, for tax purposes,
generally result in short-term capital gains or losses, and those held for more
than one year will generally result in long-term capital gains or losses. Under
current law, the maximum tax rate on long-term capital gains available to
non-corporate shareholders generally is 15%. Without future congressional
action, the maximum tax rate on long-term capital gains will return to 20% for
taxable years beginning on or after January 1, 2011.
30
Gain
or loss on the sale or redemption of Fund Shares is measured by the difference
between the amount of cash received (or the fair market value of any property
received) and the adjusted tax basis of the Shares. Shareholders should keep
records of investments made (including Shares acquired through reinvestment of
dividends and distributions) so they can compute the tax basis of their Shares.
A
loss realized on a sale or exchange of Shares of the Fund may be disallowed if
other Fund Shares or substantially identical shares are acquired (whether
through the automatic reinvestment of dividends or otherwise) within a
sixty-one (61) day period beginning thirty (30) days before and
ending thirty (30) days after the date that the Shares are disposed of. In
such a case, the basis of the Shares acquired will be adjusted to reflect the
disallowed loss. Any loss upon the sale or exchange of Shares held for six
(6) months or less will be treated as long-term capital loss to the extent
of any capital gain dividends received by the shareholders. Distribution of
ordinary income and capital gains may also be subject to foreign, state and
local taxes.
The
Fund may make investments in which it recognizes income or gain prior to
receiving cash with respect to such investment. For example, under certain tax
rules, the Fund may be required to accrue a portion of any discount at which
certain securities are purchased as income each year even though the Fund
receives no payments in cash on the security during the year. To the extent that
the Fund makes such investments, it generally would be required to pay out such
income or gain as a distribution in each year to avoid taxation at the Fund
level.
Distributions
reinvested in additional Fund Shares through the means of the service (see
Dividend Reinvestment Service) will nevertheless be taxable dividends to
Beneficial Owners acquiring such additional Shares to the same extent as if
such dividends had been received in cash.
31
Some
shareholders may be subject to a withholding tax on distributions of ordinary
income, capital gains and any cash received on redemption of Creation Units
(backup withholding). The backup withholding rate for individuals is
currently 28%. Generally, shareholders subject to backup withholding will be
those for whom no certified taxpayer identification number is on file with the
Fund or who, to the Funds knowledge, have furnished an incorrect number. When
establishing an account, an investor must certify under penalty of perjury that
such number is correct and that such investor is not otherwise subject to
backup withholding. Backup withholding is not an additional tax. Any amounts
withheld will be allowed as a credit against shareholders U.S. federal income
tax liabilities, and may entitle them to a refund,
provided
that the required information is timely furnished
to the Internal Revenue Service.
The
foregoing discussion is a summary only and is not intended as a substitute for
careful tax planning. Purchasers of Shares of the Trust should consult their
own tax advisers as to the tax consequences of investing in such Shares,
including under state, local and other tax laws. Finally, the foregoing
discussion is based on applicable provisions of the Internal Revenue Code,
regulations, judicial authority and administrative interpretations in effect on
the date hereof. Changes in applicable authority could materially affect the
conclusions discussed above, and such changes often occur.
Reportable Transactions
Under
promulgated Treasury regulations, if a shareholder recognizes a loss on
disposition of the Funds Shares of $2 million or more in any one taxable year
(or $4 million or more over a period of six taxable years) for an individual
shareholder or $10 million or more in any taxable year (or $20 million or more
over a period of six taxable years) for a corporate shareholder, the
shareholder must file with the IRS a disclosure statement on Form 8886.
Direct shareholders of portfolio securities are in many cases excepted from
this reporting requirement, but under current guidance, shareholders of a RIC
that engaged in a reportable transaction are not excepted. Future guidance may
extend the current exception from this reporting requirement to shareholders of
most or all RICs. In addition, significant penalties may be imposed for the
failure to comply with the reporting requirements. The fact that a loss is
reportable under these regulations does not affect the legal determination of
whether the taxpayers treatment of the loss is proper. Shareholders should
consult their tax advisors to determine the applicability of these regulations
in light of their individual circumstances.
32
CAPITAL STOCK AND SHAREHOLDER REPORTS
Each
Share issued by the Trust has a pro rata interest in the assets of the Fund.
Shares have no pre-emptive, exchange, subscription or conversion rights and are
freely transferable. Each Share is entitled to participate equally in dividends
and distributions declared by the Board with respect to the Fund, and in the
net distributable assets of the Fund on liquidation.
Each
Share has one vote with respect to matters upon which a shareholder vote is
required consistent with the requirements of the 1940 Act and the rules
promulgated thereunder and each fractional Share has a proportional fractional
vote. Shares of all funds vote together as a single class except that if the
matter being voted on affects only a particular fund it will be voted on only
by that fund, and if a matter affects a particular fund differently from other
funds, that fund will vote separately on such matter. Under Delaware law, the
Trust is not required to hold an annual meeting of shareholders unless required
to do so under the 1940 Act. The policy of the Trust is not to hold an annual
meeting of shareholders unless required to do so under the 1940 Act. All
Shares of the Trust have noncumulative voting rights for the election of
Trustees. Under Delaware law, Trustees of the Trust may be removed by vote of
the shareholders.
Under
Delaware law, shareholders of a statutory trust may have similar limitation
liabilities as shareholders of a corporation.
The
Trust will issue through DTC Participants to its shareholders semi-annual
reports containing unaudited financial statements and annual reports containing
financial statements audited by an independent auditor approved by the Trusts
Trustees and by the shareholders when meetings are held and such other
information as may be required by applicable laws, rules and regulations.
Beneficial Owners also receive annually notification as to the tax status of
the Trusts distributions.
Shareholder
inquiries may be made by writing to the Trust, c/o Van Eck Associates
Corporation, 335 Madison Avenue, 19th Floor, New York, New York 10017.
COUNSEL AND
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Ernst
& Young LLP, 5 Times Square, New York, New York 10036, is the Trusts
independent registered public accounting firm and audits the Funds financial
statements and performs other related audit services.
33
34
VAN ECK GLOBAL PROXY VOTING POLICIES
INTRODUCTION
Effective
March 10, 2003, the Securities and Exchange Commission (the Commission)
adopted Rule 206(4)-6 under the Investment Advisers Act of 1940 (Advisers
Act), requiring each investment adviser registered with the Commission to
adopt and implement written policies and procedures for voting client proxies,
to disclose information about the procedures to its clients, and to inform
clients how to obtain information about how their proxies were voted. The
Commission also amended Rule 204-2 under the Advisers Act to require advisers
to maintain certain proxy voting records. Both rules apply to all investment
advisers registered with the Commission that have proxy voting authority over
their clients securities. An adviser that exercises voting authority without
complying with Rule 206(4)-6 will be deemed to have engaged in a fraudulent,
deceptive, or manipulative act, practice or course of business within the
meaning of Section 206(4) of the Advisers Act.
When an
adviser has been granted proxy voting authority by a client, the adviser owes
its clients the duties of care and loyalty in performing this service on their
behalf. The duty of care requires the adviser to monitor corporate actions and
vote client proxies. The duty of loyalty requires the adviser to cast the proxy
votes in a manner that is consistent with the best interests of the client.
PROXY VOTING POLICIES AND PROCEDURES
Resolving Material Conflicts Of Interest
A material
conflict means the existence of a business relationship between a portfolio
company or an affiliate and Van Eck Associates Corporation, any affiliate or
subsidiary (individually and together, as the context may require,
Adviser), or an affiliated person of a Van Eck mutual fund in excess of
$60,000. Examples of when a material conflict exists include the situation
where the adviser provides significant investment advisory, brokerage or
other services to a company whose management is soliciting proxies; an
officer of the Adviser serves on the board of a charitable organization that
receives charitable contributions from the portfolio company and the
charitable organization is a client of the Adviser; a portfolio company that
is a significant selling agent of Van Ecks products and services solicits
proxies; a broker-dealer or insurance company that controls 5% or more of the
Advisers assets solicits proxies; the Adviser serves as an investment
adviser to the pension or other investment account of the portfolio company;
the Adviser and the portfolio company have a lending relationship. In each of
these situations voting against management may cause the Adviser a loss of
revenue or other benefit.
Conflict Resolution
. When a material
conflict exists proxies will be voted in the following manner:
Where the
written guidelines set out a pre-determined voting policy, proxies will be
voted in accordance with that policy, with no deviations (if a deviation is
advisable, one of the other methods may be used);
35
Where the
guidelines permit discretion and an independent third party has been retained
to vote proxies, proxies will be voted in accordance with the predetermined
policy based on the recommendations of that party; or
The potential
conflict will be disclosed to the client (a) with a request that the client
vote the proxy, (b) with a recommendation that the client engage another
party to determine how the proxy should be voted or (c) if the foregoing are
not acceptable to the client disclosure of how VEAC intends to vote and a
written consent to that vote by the client.
Any
deviations from the foregoing voting mechanisms must be approved by the
Compliance Officer with a written explanation of the reason for the
deviation.
Reasonable Research Efforts
When
determining whether a vote is in the best interest of the client, the Adviser
will use reasonable research efforts. Investment personnel may rely on public
documents about the company and other readily available information, which is
easily accessible to the investment personnel at the time the vote is cast.
Information on proxies by foreign companies may not be readily available.
Voting Client Proxies
The Adviser
generally will vote proxies on behalf of clients, unless clients instruct
otherwise. There may be times when refraining from voting a proxy is in a
clients best interest, such as when the Adviser determines that the cost of
voting the proxy exceeds the expected benefit to the client. (For example,
casting a vote on a foreign security may involve additional costs such as
hiring a translator or traveling to a foreign country to vote the security in
person).
The
portfolio manager or analyst covering the security is responsible for making
voting decisions.
Portfolio
Administration, in conjunction with the portfolio manager and the custodian,
is responsible for monitoring corporate actions and ensuring that corporate
actions are timely voted.
Client Inquiries
All
inquiries by clients as to how Van Eck has voted proxies must immediately be
forwarded to Portfolio Administration.
DISCLOSURE TO CLIENTS
Notification
of Availability of Information Client Brochure.
The
Client Brochure or Part II of Form ADV will inform clients that they can
obtain information from VEAC on how their proxies were voted. The Client
Brochure or Part II of Form ADV will be mailed to each client annually.
The
Legal Department will be responsible for coordinating the mailing with
Sales/Marketing Departments.
36
Availability
of Proxy Voting Information at the clients request or if the information is
not available on VEACs website, a hard copy of the accounts proxy votes
will be mailed to each client.
Recordkeeping Requirements
VEAC will
retain the following documentation and information for each matter relating
to a portfolio security with respect to which a client was entitled to vote:
proxy
statements received;
identifying
number for the portfolio security;
shareholder
meeting date;
brief
identification of the matter voted on;
whether the vote was cast on the matter and
how the vote was cast;
how the vote was cast (
e.g.
, for or against proposal, or
abstain; for or withhold regarding election of directors);
records of written client requests for
information on how VEAC voted proxies on behalf of the client;
a copy of written responses from VEAC to
any written or oral client request for information on how VEAC voted proxies
on behalf of the client; and
any
documents prepared by VEAC that were material to the decision on how to vote
or that memorialized the basis for the decision, if such documents were
prepared.
Copies of proxy statements filed on EDGAR,
and proxy statements and records of proxy votes maintained with a third party
(
i.e.
, proxy voting service)
need not be maintained. The third party must agree in writing to provide a
copy of the documents promptly upon request.
If applicable, any document memorializing
that the costs of voting a proxy exceed the benefit to the client or any
other decision to refrain from voting, and that such abstention was in the
clients best interest.
Proxy voting records will be maintained in
an easily accessible place for five years, the first two at the office of
VEAC. Proxy statements on file with EDGAR or maintained by a third party and
proxy votes maintained by a third party are not subject to these particular
retention requirements.
37
38
39
Vote for
proposals to restore shareholder ability to remove directors with or without
cause.
Vote against
proposals that provide that only continuing directors may elect replacements to
fill board vacancies.
Vote for
proposals that permit shareholders to elect directors to fill board vacancies.
10.
Shareholder Ability to Alter the Size of the Board
Vote for
proposals that seek to fix the size of the board.
Vote against
proposals that give management the ability to alter the size of the board
without shareholder approval.
3.
Proxy Contests
1.
Reimburse
Proxy Solicitation Expenses
Vote on a
case-by-case basis proposals to provide full reimbursement for dissidents
waging a proxy contest.
4.
Auditors
1.
Ratifying Auditors
Vote for proposals
to ratify auditors, unless information that is readily available to the vote
decision-maker demonstrates that an auditor has a financial interest in or
association with the company, and is therefore clearly not independent; or such
readily available information creates a reasonable basis to believe that the
independent auditor has rendered an opinion which is neither accurate nor
indicative of the companys financial position.
Vote for
shareholder proposals asking for audit firm rotation unless the rotation period
is so short (less than five years) that it would be unduly burdensome to the
company.
5.
Shareholder Voting and Control Issues
1.
Cumulative Voting
Generally,
vote against proposals to eliminate cumulative voting.
Generally,
vote for proposals to permit cumulative voting.
2.
Shareholder Ability to Call Special Meetings
Generally,
vote against proposals to restrict or prohibit shareholder ability to call
special meetings.
Generally,
vote for proposals that remove restrictions on the right of shareholders to act
independently of management.
40
3.
Shareholder Ability to Act by Written Consent
Generally,
vote against proposals to restrict or prohibit shareholder ability to take
action by written consent.
Generally,
vote for proposals to allow or make easier shareholder action by written
consent.
4.
Poison Pills
Vote for
shareholder proposals that ask a company to submit its poison pill for
shareholder ratification. Vote on a case-by-case basis shareholder proposals to
redeem a companys poison pill.
Vote on a
case-by-case basis management proposals to ratify a poison pill.
5.
Fair Price Provision
Vote on a
case-by-case basis when examining fair price proposals, (where market
quotations are not readily available) taking into consideration whether the
shareholder vote requirement embedded in the provision is no more than a
majority of disinterested Shares.
Generally,
vote for shareholder proposals to lower the shareholder vote requirement in
existing fair price provisions.
5.
Greenmail
Generally,
vote for proposals to adopt anti-greenmail charter or bylaw amendments or
otherwise restrict a companys ability to make greenmail payments.
Generally,
vote on a case-by-case basis anti-greenmail proposals when they are bundled
with other charter or bylaw amendments.
6.
Unequal Voting Rights
Vote against
dual class exchange offers.
Vote against
dual class recapitalizations.
7.
Supermajority Shareholder Vote Requirement to Amend the Charter or
Bylaws
Vote against
management proposals to require a supermajority shareholder vote to approve
charter and bylaw amendments.
Vote for
shareholder proposals to lower supermajority shareholder vote requirements for
charter and bylaw amendments.
8.
Supermajority Shareholder Vote Requirement to Approve Mergers
Vote against
management proposals to require a supermajority shareholder vote to approve
mergers and other significant business combinations.
41
9.
White Knight Placements
Vote for
shareholder proposals to require approval of blank check preferred stock issues
for other than general corporate purposes or similar corporate actions.
10.
Confidential Voting
Generally,
vote for shareholder proposals that request corporations to adopt confidential
voting, use independent tabulators and use independent inspectors of election
as long as the proposals include clauses for proxy contests as follows: In the
case of a contested election, management is permitted to request that the
dissident group honor its confidential voting policy. If the dissidents agree,
the policy remains in place. If the dissidents do not agree, the confidential
voting policy is waived.
Generally,
vote for management proposals to adopt confidential voting.
11.
Equal Access
Generally, vote
for shareholders proposals that would allow significant company shareholders
equal access to managements proxy material in order to evaluate and propose
voting recommendations on proxy proposals and director nominees, and in order
to nominate their own candidates to the board.
12.
Bundled Proposals
Generally,
vote on a case-by-case basis bundled or conditioned proxy proposals. In the
case of items that are conditioned upon each other, we examine the benefits and
costs of the packaged items. In instances when the joint effect of the
conditioned items is not in shareholders best interests, we vote against the
proposals. If the combined effect is positive, we support such proposals.
13.
Shareholder Advisory Committees
Vote on a
case-by-case basis proposals to establish a shareholder advisory committee.
6.
Capital Structure
1.
Common Stock Authorization
Vote on a
case-by-case basis proposals to increase the number of Shares of common stock
authorized for issue.
Generally,
vote against proposed common stock authorizations that increase the existing
authorization by more than 100% unless a clear need for the excess Shares is
presented by the company.
2.
Stock Distributions: Splits and Dividends
Generally,
vote for management proposals to increase common share authorization for a
stock split,
provided
that the split does not result in an increase of
authorized but unissued Shares of more than 100% after giving effect to the
Shares needed for the split.39. Reverse Stock Splits
Generally,
vote for management proposals to implement a reverse stock split,
provided
that the reverse split does not result in an increase of authorized but
unissued Shares of more than 100% after giving effect to the Shares needed for
the reverse split.
42
3.
Blank Check Preferred Authorization
Generally,
vote for proposals to create blank check preferred stock in cases when the
company expressly states that the stock will not be used as a takeover defense
or carry superior voting rights.
Vote on a case-by-case
basis proposals that would authorize the creation of new classes of preferred
stock with unspecified voting, conversion, dividend and distribution, and other
rights.
Vote on a
case-by-case basis proposals to increase the number of authorized blank check
preferred Shares.
4.
Shareholder Proposals Regarding Blank Check Preferred Stock
Generally,
vote for shareholder proposals to have blank check preferred stock placements,
other than those Shares issued for the purpose of raising capital or making
acquisitions in the normal course of business, submitted for shareholder
ratification.
5.
Adjust Par Value of Common Stock
Vote on a
case-by-case basis management proposals to reduce the par value of common
stock.
6.
Preemptive Rights
Vote on a
case-by-case basis proposals to create or abolish preemptive rights. In
evaluating proposals on preemptive rights, we look at the size of a company and
the characteristics of its shareholder base.
7.
Debt Restructurings
Vote on a
case-by-case basis proposals to increase common and/or preferred Shares and to
issue Shares as part of a debt restructuring plan. We consider the following
issues:
Dilution -
How much will ownership interest of existing shareholders be reduced, and how
extreme will dilution to any future earnings be?
Change In
Control - Will the transaction result in a change in control of the company?
Bankruptcy -
Is the threat of bankruptcy, which would result in severe losses in
shareholder value, the main factor driving the debt restructuring?
Generally, we
approve proposals that facilitate debt restructurings unless there are clear
signs of self-dealing or other abuses.
8.
Share Repurchase Programs
Vote for
management proposals to institute open-market share repurchase plans in which
all shareholders may participate on equal terms.
7.
Executive Compensation
In general, we
vote on a case-by-case basis on executive compensation plans, with the view
that viable compensation programs reward the creation of stockholder wealth by
having a high payout sensitivity to increases in shareholder value.
43
8.
Compensation Proposals
1.
Amendments That Place a Cap on Annual Grants
Vote for
plans that place a cap on the annual grants any one participant may receive.
2.
Amend Administrative Features
Vote for
plans that simply amend shareholder-approved plans to include administrative
features.
3.
Amendments to Added Performance-Based Goals
Generally,
vote for amendments to add performance goals to existing compensation plans.
4.
Amendments to Increase Shares and Retain Tax Deductions
Vote on
amendments to existing plans to increase Shares reserved and to qualify the
plan for favorable tax treatment should be evaluated on a case-by-case basis.
5.
Approval of Cash or Cash-and-Stock Bonus Plans
Vote for
cash or cash-and-stock bonus plans to exempt the compensation from taxes.
6.
Shareholder Proposals to Limit Executive Pay
Vote on a
case-by-case basis all shareholder proposals that seek additional disclosure
of executive pay information.
Vote on a
case-by-case basis all other shareholder proposals that seek to limit
executive pay.
Vote for
shareholder proposals to expense options, unless the company has already
publicly committed to expensing options by a specific date.
7.
Golden and Tin Parachutes
Vote for
shareholder proposals to have golden and tin parachutes submitted for
shareholder ratification.
Vote on a
case-by-case basis all proposals to ratify or cancel golden or tin
parachutes.
8.
Employee Stock Ownership Plans (ESOPS)
Vote on a
case-by-case basis proposals that request shareholder approval in order to
implement an ESOP or to increase authorized Shares for existing ESOPs, except
in cases when the number of Shares allocated to the ESOP is excessive (
i.e.
,
generally greater than 5% of outstanding Shares).
9.
401(k) Employee Benefit Plans
Generally,
vote for proposals to implement a 401(k) savings plan for employees.
44
9.
State Of Incorporation
1.
Voting on State Takeover Statutes
Vote on a
case-by-case basis proposals to opt in or out of state takeover statutes
(including control share acquisition statutes, control share cash-out statutes,
freezeout provisions, fair price provisions, stakeholder laws, poison pill
endorsements, severance pay and labor contract provisions, anti-greenmail
provisions, and disgorgement provisions).
2.
Voting on Reincorporation Proposals
Vote on a
case-by-case basis proposals to change a companys state of incorporation.
10.
Mergers and Corporate Restructurings
1.
Mergers and Acquisitions
Vote on a
case-by-case basis proposals related to mergers and acquisitions, taking into
account at least the following:
anticipated
financial and operating benefits;
offer price
(cost vs. premium);
prospects of
the combined companies;
how the deal
was negotiated; and
changes in
corporate governance and their impact on shareholder rights.
2.
Corporate Restructuring
Vote on a
case-by-case basis proposals related to a corporate restructuring, including
minority squeezeouts, leveraged buyouts, spin-offs, liquidations and asset
sales.
3.
Spin-Offs
Vote on a
case-by-case basis proposals related to spin-offs depending on the tax and
regulatory advantages, planned use of sale proceeds, market focus and
managerial incentives.
4.
Asset Sales
Vote on a
case-by-case basis proposals related to asset sales after considering the
impact on the balance sheet/working capital, value received for the asset, and
potential elimination of diseconomies.
5.
Liquidations
Vote on a
case-by-case basis proposals related to liquidations after reviewing
managements efforts to pursue other alternatives, appraisal value of assets,
and the compensation plan for executives managing the liquidation.
45
6.
Appraisal Rights
Vote for
proposals to restore, or provide shareholders with, rights of appraisal.
7.
Changing Corporate Name
Vote on a
case-by-case basis proposal to change the corporate name.
11.
Mutual Fund Proxies
1.
Election of Trustees
Vote on
trustee nominees on a case-by-case basis.
2.
Investment Advisory Agreement
Vote on
investment advisory agreements on a case-by-case basis.
3.
Fundamental Investment Restrictions
Vote on
amendments to the funds fundamental investment restrictions on a
case-by-case basis.
4.
Distribution Agreements
Vote on
distribution agreements on a case-by-case basis.
12.
Social and Environmental Issues
In general we
vote on a case-by-case basis on shareholder social and environmental proposals,
on the basis that their impact on share value can rarely be anticipated with
any high degree of confidence.
In most cases,
however, we vote for disclosure reports that seek additional information,
particularly when it appears companies have not adequately addressed
shareholders social and environmental concerns.
In determining
our vote on shareholder social and environmental proposals, we analyze factors
such as:
whether
adoption of the proposal would have either a positive or negative impact on
the companys short-term or long-term share value;
the
percentage of sales, assets and earnings affected;
the degree
to which the companys stated position on the issues could affect its
reputation or sales, or leave it vulnerable to boycott or selective
purchasing; whether the issues presented should be dealt with through
government or companyspecific action;
whether the
company has already responded in some appropriate manner to the request
embodied in a proposal;
whether the
companys analysis and voting recommendation to shareholders is persuasive;
46
what other
companies have done in response to the issue;
whether the
proposal itself is well framed and reasonable; whether implementation of the
proposal would achieve the objectives sought in the proposal; and
whether the
subject of the proposal is best left to the discretion of the board.
47
PART C: OTHER INFORMATION
Item 23.
Exhibits
:
(a)
Amended and
Restated Declaration of Trust.
(b)
Bylaws of
the Trust.
(c)
Not
applicable.
(d)(1)
Form of
Investment Management Agreement between the Trust and Van Eck Associates Corporation
(with respect to Market VectorsGold Miners ETF).*
(d)(2)
Form of
Investment Management Agreement between the Trust and Van Eck Associates
Corporation (with respect to all portfolios except for Market VectorsGold
Miners ETF).***
(e)(1)
Form of
Distribution Agreement between the Trust and Van Eck Securities
Corporation.**
(e)(2)
Form of
Participant Agreement.*
(f)
Not
applicable.
(g)
Form of
Custodian Agreement between the Trust and The Bank of New York.*
(h)(1)
Form of Fund
Accounting Agreement between the Trust and The Bank of New York.*
(h)(2)
Form of
Transfer Agency Services Agreement between the Trust and The Bank of New
York.*
(h)(3)
Form of
Sub-License Agreement between the Trust and the Van Eck Associates Corp.*
(i)(1)
Opinion and
consent of Clifford Chance US LLP (with respect to Market VectorsEnvironmental
Services ETF, Market VectorsGold Miners ETF and Market
VectorsSteel ETF).***
(i)(2)
Opinion of
Clifford Chance US LLP (with respect to Market VectorsGlobal Alternative
Energy ETF and Market VectorsRussia ETF).****
(i)(3)
Opinion of
Clifford Chance US LLP (with respect to Market VectorsGlobal Agribusiness
ETF and Market VectorsGlobal Nuclear Energy ETF).*****
(i)(4)
Opinion of
Clifford Chance US LLP (with respect to Market VectorsLehman Brothers
Intermediate Municipal ETF, Market VectorsLehman Brothers Long Municipal
ETF, Market VectorsLehman Brothers 1-5 Year Municipal ETF, Market
VectorsLehman Brothers Non-Investment Grade Municipal ETF, Market
VectorsLehman Brothers California Municipal ETF and Market VectorsLehman
Brothers New York Municipal ETF).******
(i)(5)
Opinion of
Clifford Chance US LLP (with respect to Market VectorsCoal ETF and Market
VectorsGaming ETF).
(i)(6)
Opinion of
Clifford Chance US LLP (with respect to Market VectorsLehman Brothers
AMT-Free Massachusetts Municipal Index ETF, Market VectorsLehman Brothers
AMT-Free New Jersey Municipal Index ETF, Market VectorsLehman Brothers
AMT-Free Ohio Municipal Index ETF and Market VectorsLehman Brothers AMT-Free
Pennsylvania Municipal Index ETF).
(i)(7)
Opinion of
Clifford Chance US LLP (with respect to Market VectorsHard Assets ETF and
Market VectorsSolar Energy ETF).
(i)(8)
Opinion and
consent of Clifford Chance US LLP with respect to Market VectorsAfrica Index
ETF, Market VectorsEmerging Eurasia Index ETF, Market VectorsGlobal
Frontier Index ETF and Market VectorsGulf States Index ETF).
(i)(9)
Consent of
Clifford Chance US LLP (with respect to Market VectorsLehman Brothers
High-Yield Municipal Index ETF).
(i)(10)
Consent of
Clifford Chance US LLP (with respect to Market Vectors California Long
Municipal Index ETF, Market Vectors High-Yield Municipal Index ETF, Market
Vectors Intermediate Municipal Index ETF, Market Vectors Long Municipal Index
ETF, Market Vectors Massachusetts Municipal Index ETF, Market Vector New
Jersey Municipal Index ETF, Market Vectors New York Long Municipal Index ETF,
Market Vectors Ohio Municipal Index ETF, Market Vectors Pennsylvania
Municipal Index ETF, Market Vectors Pre-Refunded Municipal Index ETF and
Market Vectors Short Municipal Index ETF). ^
(i)(11)
Opinion and
consent of Clifford Chance US LLP (with respect to Market Vectors Indonesia
Index ETF).
(i)(12)
Opinion and
consent of Clifford Chance US LLP (with respect to Market Vectors Vietnam
ETF).
(i)(13)
Opinion and
consent of Clifford Chance US LLP (with respect to Market Vectors
Pre-Refunded Municipal Index ETF).
(i)(14)
Opinion and
consent of Dechert LLP (with respect to Market Vectors Egypt Index ETF and
Market Vectors Kuwait Index ETF).^^^
(i)(15)
Opinion and
consent of Dechert LLP (with respect to Market Vectors Fixed Income I ETF and
Market Vectors Fixed Income II ETF).^^^
(i)(16)
Opinion and
consent of Dechert LLP (with respect to Market Vectors Regional Sector
ETF).^^^
(i)(17)
Opinion and
consent of Dechert LLP (with respect to Market Vectors China ETF).^^
(i)(18)
Consent of
Clifford Chance US LLP (with respect to Market Vectors Africa Index ETF,
Market Vectors Agribusiness ETF, Market Vectors Coal ETF, Market Vectors
Environmental Services ETF, Market Vectors Gaming ETF, Market Vectors Global
Alternative Energy ETF, Market Vectors Gold Miners ETF, Market Vectors Gulf
States Index ETF, Market Vectors Indonesia Index ETF, Market Vectors Nuclear
Energy ETF, Market Vectors Russia ETF, Market Vectors RVE Hard Assets
Producers ETF, Market Vectors Solar Energy ETF and Market Vectors Steel
ETF).
(i)(19)
Opinion and
consent of Clifford Chance US LLP (with respect to Market Vectors Brazil
Small-Cap ETF).
(i)(20)
Opinion and
consent of Dechert LLP (with respect to Market Vectors Metals ETF).^^^
(j)(1)
Consent of
Ernst & Young, independent registered public accounting firm (with
respect to Market Vectors High-Yield Municipal Index ETF, Market Vectors
Intermediate Municipal Index ETF, Market Vectors Long Municipal Index ETF,
Market Vectors Pre-Refunded Municipal Index ETF and Market Vectors Short
Municipal Index ETF). ^
(j)(2)
Consent of
Ernst & Young, independent registered public accounting firm (with
respect to Market Vectors Africa Index ETF, Market Vectors Agribusiness ETF,
Market Vectors Coal ETF, Market Vectors Environmental Services ETF, Market
Vectors Gaming ETF, Market Vectors Global Alternative Energy ETF, Market
Vectors Gold Miners ETF, Market Vectors Gulf States Index ETF, Market Vectors
Indonesia Index ETF, Market Vectors Nuclear Energy ETF, Market Vectors Russia
ETF, Market Vectors RVE Hard Assets Producers ETF, Market Vectors Solar
Energy ETF and Market Vectors Steel ETF).
(k)
Not
applicable.
(l)
Not
applicable.
(m)
Not
applicable.
(n)
Not
applicable.
(o)
Not
applicable.
(p)(1)
Code of Ethics.
Item 24.
Persons Controlled by or Under Common
Control with Registrant
None.
Item 25.
Indemnification
Pursuant
to Section 10.2 of the Amended and Restated Declaration of Trust, all persons
that are or have been a Trustee or officer of the Trust (collectively, the
Covered Persons) shall be indemnified by the Trust to the fullest extent
permitted by law against liability and against all expenses reasonably incurred
or paid by him in connection with any claim, action, suit, or proceeding in
which he or she becomes involved as a party or otherwise by virtue of his being
or having been a Trustee or officer and against amounts paid or incurred by him
in the settlement thereof. No indemnification will be provided to a Covered
Person who shall have been adjudicated by a court or body before which the
proceeding was brought to be liable to the Trust or its shareholders by reason
of willful misfeasance, bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of his office or not to have acted in good
faith in the reasonable belief that his action was in the best interest of the
Trust; or in the event of a settlement, unless there has been a determination
that such Trustee or officer did not engage in willful misfeasance, bad faith,
gross negligence, or reckless disregard of the duties involved in the conduct
of his office.
Article
XII of the Trusts Bylaws, to the maximum extent permitted by Delaware law in
effect from time to time, the Trust shall indemnify and, without requiring a
preliminary determination of the ultimate entitlement to indemnification, shall
pay or reimburse reasonable expenses in advance of final disposition of a
proceeding to (a) any individual who is a present or former trustee or officer
of the Trust and who is made a party to the proceeding by reason of his or her
service in that capacity or (b) any individual who, while a director of the
Trust and at the request of the Trust, serves or has served as a trustee,
officer, partner or trustee of another corporation, real estate investment
trust, partnership, joint venture, trust, employee benefit plan or other
enterprise and who is made a party to the proceeding by reason of his or her
service in that capacity. The Trust may, with the approval of its Board of
Trustees, provide such indemnification and advance for expenses to a person who
served a predecessor of the Trust in any of the capacities described in (a) or
(b) above and to any employee or agent of the Trust or a predecessor of the
Trust;
provided
that no provision of Article XII shall be effective to protect or purport to
protect any trustee or officer of the Trust against liability to the Trust or
its stockholders to which he or she would otherwise be subject by reason of
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his or her office.
The
Trust has agreed to indemnify and hold harmless the Trustees against any and
all expenses actually and reasonably incurred by the Trustee in any proceeding
arising out of or in connection with the Trustees service to the Trust, to the
fullest extent permitted by the Amended and Restated Agreement and Declaration
of Trust and Bylaws of the Fund and Title 12, Part V, Chapter 38 of the
Delaware Code, and applicable law.
Item 26.
Business and Other Connections of
Investment Manager
See
Management in the Statement of Additional Information. Information as to the
directors and officers of the Adviser is included in its Form ADV filed with
the SEC and is incorporated herein by reference thereto.
Item 27.
Principal Underwriters
(a)
Van Eck
Securities Corporation is the Trusts principal underwriter. Van Eck
Securities Corporation also acts as a principal underwriter, depositor, or
investment manager for the following other investment companies: Van Eck
Funds (which is comprised of four series: Emerging Markets Fund, Global Hard
Assets Fund Multi-Manager Alternatives Fund and International Investors Gold
Fund) and Worldwide Insurance Trust (which is comprised of five series:
Worldwide Multi-Manager Alternatives Fund, Worldwide Bond Fund, Worldwide
Emerging Markets Fund, Worldwide Hard Assets Fund and Worldwide Real Estate
Fund).
(b)
The
following is a list of the executive officers, directors and partners of Van
Eck Securities Corporation:
Name and Principal
Positions and Offices
Positions and Offices with
Thomas K.
Lynch
Chief
Compliance Officer
Chief
Compliance Officer
Joseph
McBrien
Senior Vice
President, General Counsel and Secretary
Senior Vice
President, Secretary and Chief Legal Officer
Bruce J.
Smith
Senior Vice
President, Chief Financial Officer, Treasurer and Controller
Senior Vice
President and Chief Financial Officer
Jan F. van
Eck
Director and
Executive Vice President
President,
Chief Executive Officer and Trustee
Derek S. van
Eck
Director and
Executive Vice President
Executive
Vice President
Item 28.
Location of Accounts and Records
All
accounts, books and other documents required to be maintained by Section 31(a)
of the 1940 Act and the Rules thereunder will be maintained at the offices of
The Bank of New York Mellon, 101 Barclay Street, New York, New York 10286.
Item 29.
Management Services
Not
applicable.
Item 30.
Undertakings
Not
applicable.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933 and the Investment Company
Act of 1940, the Registrant certifies that it meets all of the requirements for
effectiveness of this Registration Statement pursuant to Rule 485(b) under the
Securities Act of 1933 and has duly caused this Post-Effective Amendment No. 79
to this Registration Statement No. 811-10325 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York and State of
New York on the 4th day of September 2009.
MARKET
VECTORS ETF TRUST
By:
/s/ Jan F.
van Eck
*
Name: Jan F.
van Eck
Title:
President and Chief Executive Officer
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following person in the capacities and on the date
indicated.
/s/ David H. Chow
*
Trustee
September 4,
2009
David H. Chow
/s/ R. Alastair Short
*
Trustee
September 4,
2009
R. Alastair Short
/s/ Richard D. Stamberger
*
Trustee
September 4, 2009
Richard D.
Stamberger
/s/ Jan F. van Eck
*
President, Chief Executive Officer and Trustee
September 4, 2009
Jan F. van Eck
/s/ Bruce J. Smith
*
Chief Financial Officer
September 4, 2009
Bruce J.
Smith
*
By:
/s/ Jonathan
R. Simon
Jonathan R.
Simon
Attorney-in-Fact
EXHIBIT INDEX
(i)(17)
Opinion and
consent of Dechert LLP (with respect to Market Vectors China ETF).
SEC Registration Number: 333-123257
The Trusts registration number under the 1940 Act: 811-10325
The
Trust is an open-end management investment company. The Trust currently
consists of 30 investment portfolios. This SAI relates to one investment
portfolio: Market Vectors China ETF (the Fund). The Trust was organized as a
Delaware statutory trust on March 15, 2001. The shares of the Fund are referred
to herein as Shares.
Futures Contracts and Options
Positions
in futures contracts and options may be closed out only on an exchange that
provides a secondary market therefor. However, there can be no assurance that a
liquid secondary market will exist for any particular futures contract or
option at any specific time. Thus, it may not be possible to close a futures or
options position. In the event of adverse price movements, the Fund would
continue to be required to make daily cash payments to maintain its required
margin. In such situations, if the Fund has insufficient cash, it may have to
sell portfolio securities to meet daily margin requirements at a time when it
may be disadvantageous to do so. In addition, the Fund may be required to make
delivery of the instruments underlying futures contracts they have sold.
Utilization
of futures transactions by the Fund involves the risk of imperfect or even
negative correlation to the Funds Index if the index underlying the futures
contracts differs from the Index. There is also the risk of loss by the Fund of
margin deposits in the event of bankruptcy of a broker with whom the Fund has
an open position in the futures contract or option.
The
use of swap agreements involves certain risks. For example, if the
counterparty, under a swap agreement, defaults on its obligation to make
payments due from it as a result of its bankruptcy or otherwise, the Fund may
lose such payments altogether or collect only a portion thereof, which
collection could involve costs or delay. The Fund intends to utilize swap
agreements in a manner designed to limit its risk exposure to levels comparable
to direct investments in stocks.
A
discussion of the risks associated with an investment in the Fund is contained
in the Funds Prospectus under the headings Market Vectors China ETFPrincipal
Risks of Investing in the Fund, and Additional Risks of Investing in the
Fund. The discussion below supplements, and should be read in conjunction
with, such sections of the Funds Prospectus.
A
discussion of exchange listing and trading matters associated with an
investment in the Fund is contained in the Funds Prospectus under the headings
Market Vectors China ETFPrincipal Risks of Investing in the Fund,
Additional Risks of Investing in the Fund, Shareholder
InformationDetermination of NAV and Shareholder InformationBuying and Selling
Exchange-Traded Shares. The discussion below supplements, and should be read
in conjunction with, such sections of the Funds Prospectus.
The
equity securities value component of the Indicative Per Share Portfolio Value
represents the estimated value of the portfolio securities held by the Fund on
a given day. While the equity securities value component estimates the current
market value of the Funds portfolio securities, it does not necessarily
reflect the precise composition or market value of the current portfolio of
securities held by the Trust for the Fund at a particular point in time.
Therefore, the Indicative Per Share Portfolio Value disseminated during
Exchange trading hours should be viewed only as an estimate of the Funds NAV
per share, which is calculated at the close of the regular trading session on
the New York Stock Exchange (NYSE) (ordinarily 4:00 p.m. Eastern time) on
each Business Day.
and Age
Held with
the Trust
Office
2
and
Length of
Time
Served
During Past Five Years
Portfolios in
Fund
Complex
3
Overseen
Directorships
Held By
Trustee
Trustee
Since 2006
and Age
Held with
the Trust
Office
2
and
Length of
Time
Served
During Past Five Years
Portfolios in
Fund
Complex
3
Overseen
Directorships
Held By
Trustee
and Age
with the Trust
Office
2
and
Length of
Time Served
and Age
with the Trust
Office
2
and
Length of
Time Served
Vectors China ETF
(As of December 31, 2008)
in all Registered Investment Companies
Overseen By Trustee In Family of Investment
Companies (As of December 31, 2008)
The
Trust pays each Independent Trustee an annual retainer of $20,000, a per
meeting fee of $10,000 for scheduled quarterly meetings of the Board and each
special meeting of the Board and a per meeting fee of $5,000 for telephonic
meetings. The Trust pays the Chairman of the Board an annual retainer of
$15,000, the Chairman of the Audit Committee an annual retainer of $10,000 and
the Chairman of the Governance Committee an annual retainer of $7,500. The
Trust also reimburses each Trustee for travel and other out-of-pocket expenses
incurred in attending such meetings. No pension or retirement benefits are
accrued as part of Trustee compensation.
Compensation
From the Trust
Compensation
From the Trust
Benefits Accrued as
Part of the Trusts
Expenses
(2)
Annual
Benefits
Upon
Retirement
Compensation
From the Trust
and the Fund
Complex
(1)
Paid
to Trustee
(2)
The
Funds portfolio holdings are publicly disseminated each day the Fund is open
for business through financial reporting and news services, including publicly
accessible Internet web sites. In addition, a basket composition file, which
includes the security names and share quantities to deliver in exchange for
Shares, together with estimates and actual cash components is publicly
disseminated daily prior to the opening of the Exchange via the National
Securities Clearing Corporation (the NSCC), a clearing agency that is
registered with the Securities and Exchange Commission (the SEC). The basket
represents one Creation Unit of the Fund. The Trust, Adviser, Custodian and
Distributor will not disseminate non-public information concerning the Trust.
The
following information supplements and should be read in conjunction with the
section in the Prospectus entitled Management.
Compensation
.
As compensation for its services under the Investment Management Agreement, the
Adviser is paid a monthly fee based on a percentage of the Funds average daily
net assets at the annual rate of 0.50%. From time to time, the Adviser may
waive all or a portion of its fees. Until at least May 1, 2010, the Adviser has
contractually agreed to waive fees and/or pay Fund expenses to the extent
necessary to prevent the operating expenses of the Fund (excluding interest
expense, offering costs, trading expenses, taxes and extraordinary expenses)
from exceeding 0.72% of average daily net assets per year. Offering costs
excluded from the expense cap are: (a) legal fees pertaining to the Funds
Shares offered for sale; (b) SEC and state registration fees; and
(c) initial fees paid for Shares of the Fund to be listed on an exchange.
(As of December 31, 2008)
the advisory fee is based on the
performance of the account
Portfolio
Manager
Account
Accounts in
Category
Accounts in
Category
Accounts in
Category
Accounts in
Category
investment
companies
investment
vehicles
investment
companies
investment
vehicles
The
Depository Trust Company (DTC) acts as securities depositary for the Shares.
Shares of the Fund are represented by securities registered in the name of DTC
or its nominee and deposited with, or on behalf of, DTC. Certificates will not
be issued for Shares.
Due
to various legal and operational constraints in China, the consideration for a
purchase of Creation Units is principally cash. To the extent in-kind creations
are effected for the Fund, Creation Units of the Fund will consist of the
in-kind deposit of a designated portfolio of equity securities (the Deposit
Securities) constituting a replication of the Funds Index and an amount of
cash computed as described below (the Cash Component). The Cash Component
together with the Deposit Securities, as applicable, are referred to as the
Fund Deposit, which represents the minimum initial and subsequent investment
amount for Shares. The Cash Component represents the difference between the NAV
of a Creation Unit and the market value of Deposit Securities and may include a
Dividend Equivalent Payment. The Dividend Equivalent Payment enables the Fund
to make a complete distribution of dividends on the next dividend payment date,
and is an amount equal, on a per Creation Unit basis, to the dividends on all
the securities held by the Fund (Fund Securities) with ex-dividend dates
within the accumulation period for such distribution (the Accumulation
Period), net of expenses and liabilities for such period, as if all of the
Fund Securities had been held by the Trust for the entire Accumulation Period.
The Accumulation Period begins on the ex-dividend date for the Fund and ends on
the next ex-dividend date.
In
addition to the list of names and numbers of securities constituting the
current Deposit Securities of a Fund Deposit, the Administrator, through the
NSCC, also makes available (i) on each Business Day, the Dividend
Equivalent Payment, if any, and the estimated Cash Component effective through
and including the previous Business Day, per outstanding Shares of the Fund,
and (ii) on a continuous basis throughout the day, the Indicative Per
Share Portfolio Value.
All
orders to create Creation Units must be placed in multiples of 600,000 Shares (
i.e.
,
a Creation Unit). All orders to create Creation Units, whether through the
Clearing Process or outside the Clearing Process, must be received by the
Distributor no later than the closing time of the regular trading session
on NYSE Arca
(Closing Time) (ordinarily 4:00 p.m. Eastern time) on the date such
order is placed in order for creation of Creation Units to be effected based on
the NAV of the Fund as determined on such date. A Custom Order may be placed
by an Authorized Participant in the event that the Trust permits or requires
the substitution of an amount of cash to be added to the Cash Component to
replace any Deposit Security which may not be available in sufficient quantity
for delivery or which may not be eligible for trading by such Authorized
Participant or the investor for which it is acting, or other relevant reason.
The date on which a creation order (or order to redeem as discussed below) is
placed is herein referred to as the Transmittal Date. Orders must be
transmitted by telephone or other transmission method acceptable to the
Distributor pursuant to procedures set forth in the Participant Agreement, as
described below (see Placement of Creation Orders Using Clearing Process).
Severe economic or market disruptions or changes, or telephone or other
communication failure, may impede the ability to reach the Distributor, a
Participating Party or a DTC Participant.
Fund
Deposits created through the Clearing Process, if available, must be delivered
through a Participating Party that has executed a Participant Agreement with
the Distributor and with the Trust (as the same may be from time to time
amended in accordance with its terms).
Fund
Deposits created outside the Clearing Process must be delivered through a DTC
Participant that has executed a Participant Agreement with the Distributor and
with the Trust. A DTC Participant who wishes to place an order creating
Creation Units of the Fund to be effected outside the Clearing Process need not
be a Participating Party, but such orders must state that the DTC Participant
is not using the Clearing Process and that the creation of Creation Units will
instead be effected through a transfer of securities and cash. The Fund Deposit
transfer must be ordered by the DTC Participant in a timely fashion so as to
ensure the delivery of the requisite number of Deposit Securities through DTC
to the account of the Trust by no later than 11:00 a.m. Eastern time, of
the next Business Day immediately following the Transmittal Date. All questions
as to the number of Deposit Securities to be delivered, and the validity, form
and eligibility (including time of receipt) for the deposit of any tendered
securities, will be determined by the Trust, whose determination shall be final
and binding. The cash equal to the Cash Component must be transferred directly
to the Distributor through the Federal Reserve wire system in a timely manner
so as to be received by the Distributor no later than 2:00 p.m. Eastern
time, on the next Business Day immediately following the Transmittal Date. An
order to create Creation Units of the Fund outside the Clearing Process is
deemed received by the Distributor on the Transmittal Date if (i) such
order is received by the Distributor not later than the Closing Time on such
Transmittal Date; and (ii) all other procedures set forth in the
Participant Agreement are properly followed. However, if the Distributor does
not receive both the requisite Deposit Securities and the Cash Component in a
timely fashion on the next Business Day immediately following the Transmittal
Date, such order will be cancelled. Upon written notice to the Distributor,
such cancelled order may be resubmitted the following Business Day using a Fund
Deposit as newly constituted to reflect the current NAV of the Fund. The
delivery of Creation Units so created will occur no later than the third (3rd)
Business Day following the day on which the creation order is deemed received
by the Distributor.
An
order must be placed by 4:00 p.m. Eastern time for purchases of Shares.
The Distributor will inform the Transfer Agent, the Adviser and the Custodian
upon receipt of a Creation Order. The
The
Trust reserves the absolute right to reject a creation order transmitted to it
by the Distributor if, for any reason, (a) the order is not in proper
form; (b) the creator or creators, upon obtaining the Shares, would own
80% or more of the currently outstanding Shares of the Fund; (c) the
Deposit Securities delivered are not as specified by the Administrator, as
described above; (d) acceptance of the Deposit Securities would have
certain adverse tax consequences to the Fund; (e) the acceptance of the
Fund Deposit would, in the opinion of counsel, be unlawful; (f) the
acceptance of the Fund Deposit would otherwise, in the discretion of the Trust
or the Adviser, have an adverse effect on the Trust or the rights of beneficial
owners; or (g) in the event that circumstances outside the control of the
Trust, the Distributor and the Adviser make it for all practical purposes
impossible to process creation orders. Examples of such circumstances include,
without limitation, acts of God or public service or utility problems such as
earthquakes, fires, floods, extreme weather conditions and power outages
resulting in telephone, telecopy and computer failures; wars; civil or military
disturbances, including acts of civil or military authority or governmental
actions; terrorism; sabotage; epidemics; riots; labor disputes; market
conditions or activities causing trading halts; systems failures involving computer
or other information systems affecting the Trust, the Adviser, the Distributor,
DTC, the NSCC or any other participant in the creation process, and similar
extraordinary events. The Trust shall notify a prospective creator of its
rejection of the order of such person. The Trust and the Distributor are under
no duty, however, to give notification of any defects or irregularities in the
delivery of Fund Deposits nor shall either of them incur any liability for the
failure to give any such notification.
A
fixed creation transaction fee of $1,000 payable to the Custodian is imposed on
each creation transaction regardless of the number of Creation Units purchased
in the transaction. In addition, a variable charge for cash creations or for
creations outside the Clearing Process currently of up to four times the basic
creation transaction fee will be imposed. In the case of cash creations or
where the Trust
permits or
requires a creator to substitute cash in lieu of depositing a portion of the
Deposit Securities, the creator will be assessed an additional variable charge
of up to 4% of the value of each Creation Unit to compensate the Fund for the
costs associated with purchasing the applicable securities. (See Fund Deposit
section above.) As a result, in order to seek to replicate the in-kind creation
order process, the Trust expects to purchase, in the secondary market, the
portfolio securities that could have been delivered as a result of an in-kind
creation order pursuant to local law or market convention, or for other reasons
(Market Purchases). In such cases where the Trust makes Market Purchases, the
Authorized Participant will reimburse the Trust for, among other things, any
difference between the market value at which the securities were purchased by
the Trust and the cash in lieu amount (which amount, at the Advisers
discretion, may be capped), applicable registration fees, brokerage commissions
and taxes. To the extent applicable, brokerage commissions incurred in
connection with the Trusts purchase of portfolio securities will be at the
expense of the Fund and will affect the value of all Shares of the Fund; but
the Adviser may adjust the transaction fee to the extent the composition of the
creation securities changes or cash in lieu is added to the Cash Component to
protect ongoing shareholders. Creators of Creation Units are responsible for
the costs of transferring the securities constituting the Deposit Securities to
the account of the Trust.
Shares
may be redeemed only in Creation Units at their NAV next determined after
receipt of a redemption request in proper form by the Distributor, only on a
Business Day and only through a Participating Party or DTC Participant who has
executed a Participant Agreement.
The Trust will not redeem Shares in amounts less than
Creation Units.
Beneficial Owners also may sell Shares in the
secondary market, but must accumulate enough Shares to constitute a Creation
Unit in order to have such Shares redeemed by the Trust. There can be no
assurance, however, that there will be sufficient liquidity in the public
trading market at any time to permit assembly of a Creation Unit. Investors should
expect to incur brokerage and other costs in connection with assembling a
sufficient number of Shares to constitute a redeemable Creation Unit. See
Market Vectors China ETFPrincipal Risks of Investing in the Fund in the
Funds Prospectus.
The
basic redemption transaction fee is the same no matter how many Creation Units
are being redeemed pursuant to any one redemption request. An additional charge
up to four times the redemption transaction fee will be charged with respect to
cash redemptions or redemptions outside of the Clearing Process. An additional
variable charge of up to 4% of the value of each Creation Unit for cash
redemptions or
partial cash redemptions will also be imposed to compensate the Fund for the
costs associated with selling the applicable securities. The Fund may adjust
these fees from time to time based upon actual experience. As a result, in
order to seek to replicate the in-kind redemption order process, the Trust
expects to sell, in the secondary market, the portfolio securities that may not
be permitted to be re-registered in the name of the Participating Party as a
result of an in-kind redemption order pursuant to local law or market
convention, or for other reasons (Market Sales). In such cases where the
Trust makes Market Sales, the Authorized Participant will reimburse the Trust
for, among other things, any difference between the market value at which the
securities were sold by the Trust and the cash in lieu amount (which amount, at
the Advisers discretion, may be capped), applicable registration fees,
brokerage commissions and taxes. To the extent applicable, brokerage
commissions incurred in connection with the Trusts disposition of portfolio
securities will be at the expense of the Fund and will affect the value of all
Shares of the Fund; but the Adviser may adjust the transaction fee to the
extent the composition of the redemption securities changes or cash in lieu is
added to the Cash Component to protect ongoing shareholders. Investors who use
the services of a broker or other such intermediary may be charged a fee for
such services.
Orders
to redeem Creation Units of the Fund through the Clearing Process, if
available, must be delivered through a Participating Party that has executed
the Participant Agreement with the Distributor and with the Trust (as the case
may be from time to time amended in accordance with its terms). An order to
redeem Creation Units of the Fund using the Clearing Process is deemed received
on the Transmittal Date if (i) such order is received by the Distributor
not later than 4:00 p.m. Eastern time on such Transmittal Date; and
(ii) all other procedures set forth in the Participant Agreement are
properly followed; such order will be effected based on the NAV of the Fund as
next determined. An order to redeem Creation Units of the Fund using the
Clearing Process made in proper form but received by the Fund after
4:00 p.m. Eastern time, will be deemed received on the next Business Day
immediately following the Transmittal Date. The requisite Fund Securities (or
contracts to purchase such Fund Securities which are expected to be delivered
in a regular way manner) will be transferred by the third (3rd) NSCC Business
Day following the date on which such request for redemption is deemed received,
and the applicable cash payment.
Orders
to redeem Creation Units of the Fund outside the Clearing Process must be
delivered through a DTC Participant that has executed the Participant Agreement
with the Distributor and with the Trust. A DTC Participant who wishes to place
an order for redemption of Creation Units of the Fund to be effected outside
the Clearing Process need not be a Participating Party, but such orders must
state that the DTC Participant is not using the Clearing Process and that
redemption of Creation Units of the Fund will instead be effected through
transfer of Creation Units of the Fund directly through DTC. An order to redeem
Creation Units of the Fund outside the Clearing Process is deemed received by
the Administrator on the Transmittal Date if (i) such order is received by
the Administrator not later than 4:00 p.m. Eastern time on such
Transmittal Date; (ii) such order is preceded or accompanied by the
requisite number of Shares of Creation Units specified in such order, which
delivery must be made through DTC to the Administrator no later than
11:00 a.m. Eastern time, on such Transmittal Date (the DTC
Cut-Off-Time); and (iii) all other procedures set forth in the
Participant Agreement are properly followed.
Settlement Period
Settlement Period
in Settlement Period
Business Address
with Underwriter
Trust
335 Madison Avenue
New York, NY 10017
335 Madison Avenue
New York, NY 10017
335 Madison Avenue
New York, NY 10017
335 Madison Avenue
New York, NY 10017
335 Madison Avenue
New York, NY 10017
Exhibit (i)(17)
[LETTERHEAD OF DECHERT LLP]
September 4, 2009
Market Vectors
ETF Trust
335 Madison Avenue, 19
th
Floor
New York, New York 10017
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Re: |
Opinion of Counsel regarding Post-Effective Amendment No. 79 to the Registration Statement filed on Form N-1A under the Securities Act of 1933 (File Nos. 333-123257; 811-10325) |
Dear Ladies and Gentlemen:
We have acted as counsel to Market Vectors ETF Trust (the Fund), in connection with the above-referenced Registration Statement (as amended, the Registration Statement), which relates to the shares of beneficial interest of the Market Vectors China ETF, no par value (collectively, the Shares). This opinion is being delivered to you in connection with the Funds filing of Post-Effective Amendment No. 79 to the Registration Statement (the Amendment) to be filed with the Securities and Exchange Commission pursuant to Rule 485(b) of the Securities Act of 1933, as amended (the 1933 Act), and Amendment No. 83 pursuant to the Investment Company Act of 1940, as amended, in connection with the effectiveness of the Market Vectors China ETF. With your permission, all assumptions and statements of reliance herein have been made without any independent investigation or verification on our part except to the extent otherwise expressly stated, and we express no opinion with respect to the subject matter or accuracy of such assumptions or items relied upon. We have reviewed the Funds Declaration of Trust, as amended, and such other documents and matters as we have deemed necessary to enable us to render this opinion.
Based upon, and subject to, the foregoing, we are of the opinion that the Shares proposed to be sold pursuant to the Amendment, when effective, will have been duly authorized and, when sold in accordance with the terms of the Amendment and the requirements of applicable federal and state law and delivered by the Fund against receipt of the net asset value of the Shares, will have been legally issued, fully paid and non-assessable by the Fund (except for the potential liability of shareholders described in the Funds current Statement of Additional Information under the caption Capital Stock and Shareholder Reports).
We are attorneys licensed to practice only in the State of New York. The foregoing opinion is limited to the Federal laws of the United States and the Delaware Statutory Trust Act, and we are expressing no opinion as to the effect of the laws of any other jurisdiction.
We have consented to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the headings General Information in the Prospectus and Counsel and Independent Registered Public Accounting Firm in the Statement of Additional Information, each forming a part of the Registration Statement. In giving this consent, we do not concede that we are in the category of persons whose consent is required under Section 7 of the 1933 Act.
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Very truly yours, |
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/s/ Dechert LLP |