|
As filed with the Securities and Exchange Commission on April 27, 2012 |
|
1933 Act File No. 002-97596 |
1940 Act File No. 811-04297 |
|
SECURITIES AND EXCHANGE COMMISSION |
Washington, D.C. 20549 |
|
FORM N-1A |
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 x |
Pre-Effective Amendment No. ___ o |
Post-Effective Amendment No. 106 x |
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and/or |
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REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 x |
Amendment No. 107 x |
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VAN ECK FUNDS |
(Exact Name of Registrant as Specified in Charter) |
|
335 Madison Avenue |
New York, New York 10017 |
(Address of Principal Executive Offices)(Zip Code) |
Registrants Telephone Number, Including Area Code: (212) 293-2000 |
|
Joseph J. McBrien, Esq. |
Van Eck Associates Corporation |
335 Madison Avenue |
New York, New York 10017 |
(Name and Address of Agent for Service) |
|
Copy to: |
Philip H. Newman, Esq. |
Goodwin Procter LLP |
Exchange Place |
53 State Street |
Boston, Massachusetts 02109 |
|
Approximate Date of Proposed Public Offering: |
As soon as practicable after the effective date of this registration statement. |
|
It is proposed that this filing will become effective (check appropriate box) |
|
o immediately upon filing pursuant to paragraph (b) |
x on May 1, 2012 pursuant to paragraph (b) |
o 60 days after filing pursuant to paragraph (a)(1) |
o on (date) pursuant to paragraph (a)(1) |
o 75 days after filing pursuant to paragraph (a)(2) |
o on (date) pursuant to paragraph (a)(2) of Rule 485. |
If appropriate, check the following box:
x This post-effective amendment designates a new effective date for a previously filed post-effective amendment for the Van Eck International Investors Gold Fund.
PROSPECTUS
MAY 1, 2012
Van Eck Funds
Emerging Markets Fund
Class A: GBFAX / Class C: EMRCX / Class I: EMRIX / Class Y: EMRYX
Global Hard Assets Fund
Class A: GHAAX / Class C: GHACX / Class I: GHAIX / Class Y: GHAYX
International Investors Gold Fund
Class A: INIVX / Class C: IIGCX / Class I: INIIX / Class Y: INIYX
These securities have not been approved or disapproved either by the Securities and Exchange Commission (SEC) or by any State Securities Commission. Neither the SEC nor any State Commission has passed upon the accuracy or adequacy of this prospectus. Any claim to the contrary is a criminal offense.
TABLE OF CONTENTS
I.
1
1
1
2
2
2
3
4
4
4
Payments to Broker-Dealers and Other Financial Intermediaries
4
5
5
5
6
6
6
7
8
8
8
Payments to Broker-Dealers and Other Financial Intermediaries
8
9
9
9
9
10
10
11
12
12
13
Payments to Broker-Dealers and Other Financial Intermediaries
13
II.
Investment objectives, strategies, policies, risks and other information
14
14
2. Additional Information About Principal Investment Strategies and Risks
15
19
20
III.
21
21
25
26
28
28
28
29
30
IV.
35
EMERGING MARKETS FUND (CLASS A, C, I, Y)
The Emerging Markets Fund seeks long-term capital appreciation by investing primarily in equity securities in emerging markets around the world.
This table describes the fees and expenses that you may pay if you buy and hold shares of the Fund. You may qualify for Class A sales charge discounts if you and your family (includes spouse and children under age 21) invest, or agree to invest in the future, at least $25,000, in the aggregate, in Classes A and C of the Van Eck
Funds. More information about these and other discounts is available from your financial professional and in the Shareholder Information section of the Funds prospectus and in the Availability of Discounts and Breakpoint Linkage Rules for Discounts sections of the Funds Statement of Additional Information (SAI).
Shareholder Fees
Class A
Class C
Class I
Class Y
Maximum Sales Charge (load) imposed on purchases (as a percentage of offering price)
5.75
%
0.00
%
0.00
%
0.00
%
Maximum Deferred Sales Charge (load) (as a percentage of the lesser of the net asset value or purchase price)
0.00
%
1
1.00
%
0.00
%
0.00
%
1
A contingent deferred sales charge for Class A shares of 1.00% for one year applies to redemptions of qualified commissionable shares purchased after April 30, 2012 at or above the $1 million breakpoint level.
Annual Fund Operating Expenses
(expenses that you pay each year as a percentage of the value of your investment)
Class A
Class C
Class I
Class Y
Management Fees
0.75
%
0.75
%
0.75
%
0.75
%
Distribution and/or Service (12b-1) Fees
0.25
%
1.00
%
0.00
%
0.00
%
Other Expenses
0.76
%
0.95
%
1.47
%
1.33
%
Total Annual Fund Operating Expenses
1.76
%
2.70
%
2.22
%
2.08
%
Fees/Expenses Waived or Reimbursed
1
0.00
%
(0.20
)%
(0.97
)%
(0.38
)%
Total Annual Fund Operating Expenses After Fee Waiver and/or Expense Reimbursement
1.76
%
2.50
%
1.25
%
1.70
%
1
Van Eck Associates Corporation (the Adviser) has agreed to waive fees and/or pay Fund expenses to the extent necessary to prevent the operating expenses of the Fund (excluding acquired fund fees and expenses, interest expense, trading expenses, dividends on securities sold short, taxes and extraordinary expenses) from exceeding 1.95% for Class A, 2.50% for Class
C, 1.25% for Class I, and 1.70% for Class Y of the Funds average daily net assets per year until May 1, 2013. During such time, the expense limitation is expected to continue until the Board of Trustees acts to discontinue all or a portion of such expense limitation.
The following example is intended to help you compare the cost of investing in the Fund with the cost of investing in other mutual funds. The example assumes that you invest $10,000 in the Fund for the time periods indicated and then either redeem all of your shares at the end of these periods or continue to hold them. The example
also assumes that your investment has a 5% return each year and that the Funds operating expenses remain the same. Although your actual expenses may be higher or lower, based on these assumptions, your costs would be:
Share Status
1 Year
3 Years
5 Years
10 Years
Class A
Sold or Held
$744
$1,097
$1,474
$2,529
Class C
Sold
$353
$ 819
$1,412
$3,017
Held
$253
$ 819
$1,412
$3,017
Class I
Sold or Held
$127
$ 601
$1,101
$2,479
Class Y
Sold or Held
$173
$ 615
$1,084
$2,380
1
(fees paid directly from your investment)
The Fund pays transaction costs, such as commissions, when it buys and sells securities (or turns over its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating
expenses or in the example, affect the Funds performance. During the most recent fiscal year, the Funds portfolio turnover rate was 94% of the average value of its portfolio.
PRINCIPAL INVESTMENT STRATEGIES
Under normal conditions, the Fund invests at least 80% of its net assets in securities of companies that are organized in, maintain at least 50% of their assets in, or derive at least 50% of their revenues from, emerging market countries. An emerging market country is any country that has been determined by an international
organization, such as the World Bank, to have a low to middle income economy. The Fund is considered to be non-diversified which means that it may invest in fewer securities than a diversified fund.
Utilizing qualitative and quantitative measures, the Funds portfolio manager selects companies that have growth potential, specifically focusing on small- to mid- capitalization companies. Candidates for the Funds portfolio are ranked based on their relative desirability based on a wide range of financial criteria and are regularly reviewed
to ensure that they continue to meet the ranking and desirability criteria.
The Funds holdings may include issues denominated in currencies of emerging countries, investment companies (like country funds) that invest in emerging countries, and American Depositary Receipts, and similar types of investments, representing emerging markets securities.
The Fund may use derivative instruments, such as structured notes, futures, options and swap agreements, to gain or hedge exposure.
The Fund may invest up to 20% of its net assets in securities issued by other investment companies, including exchange-traded funds (ETFs). The Fund may also invest in money market funds, but these investments are not subject to this limitation. The Fund may invest in ETFs to participate in, or gain rapid exposure to, certain
market sectors, or when direct investments in certain countries are not permitted.
There is no assurance that the Fund will achieve its investment objective. The Funds share price and return will fluctuate with changes in the market value of the Funds portfolio securities. Accordingly, an investment in the Fund involves the risk of losing money.
Derivatives.
The use of derivatives, such as swap agreements, options, warrants, futures contracts, currency forwards and structured notes, presents risks different from, and possibly greater than, the risks associated with investing directly in traditional securities. The use of derivatives can lead to losses because of adverse movements
in the price or value of the underlying security, asset, index or reference rate. Derivative strategies often involve leverage, which may exaggerate a loss, potentially causing a Fund to lose more money than it would have lost had it invested in the underlying security. Also, a liquid secondary market may not always exist for the Funds
derivative positions at times when the Fund might wish to terminate or sell such positions and over the counter instruments may be illiquid.
Direct Investments.
Direct investments may involve a high degree of business and financial risk that can result in substantial losses. Because of the absence of any public trading market for these investments, a Fund may take longer to liquidate these positions than would be the case for publicly traded securities. Direct investments
are generally considered illiquid and will be aggregated with other illiquid investments for purposes of the limitation on illiquid investments.
Emerging Markets Securities.
Emerging markets securities typically present even greater exposure to the risks described under Foreign Securities and may be particularly sensitive to certain economic changes. Emerging markets securities are exposed to a number of risks that may make these investments volatile in price or difficult
to trade.
Foreign Currency Transactions.
An investment transacted in a foreign currency may lose value due to fluctuations in the rate of exchange. These fluctuations can make the return on an investment go up or down, entirely apart from the quality or performance of the investment itself.
Foreign Securities.
Foreign investments are subject to greater risks than U.S. domestic investments. These additional risks may include exchange rate fluctuations and exchange controls; less publicly available information; more volatile or less liquid securities markets; and the possibility of arbitrary action by foreign governments, or
political, economic or social instability. Foreign companies also may be subject to significantly higher levels of taxation than U.S. companies, including potentially confiscatory levels of taxation, thereby reducing the earnings potential of such foreign companies.
2
Investments in Other Investment Companies.
A Funds investment in another investment company may subject the Fund indirectly to the underlying risks of the investment company. The Fund also will bear its share of the underlying investment companys fees and expenses, which are in addition to the Funds own fees and
expenses.
Market.
Market risk refers to the risk that the market prices of securities that a Fund holds will rise or fall, sometimes rapidly or unpredictably. In general, equity securities tend to have greater price volatility than debt securities.
Non-Diversification.
A non-diversified funds greater investment in a single issuer makes the fund more susceptible to financial, economic or market events impacting such issuer. A decline in the value of or default by a single security in the non-diversified funds portfolio may have a greater negative effect than a similar decline or
default by a single security in a diversified portfolio.
Small- and Medium-Capitalization Companies.
Securities of small- and medium-sized companies often have greater price volatility, lower trading volume and less liquidity than larger more established companies. The stocks of small- and medium-sized companies may have returns that vary, sometimes significantly, from the overall
stock market.
The following chart and table provide some indication of the risks of investing in the Fund by showing changes in the Funds performance from year to year and by showing how the Funds average annual total returns compare with those of a broad measure of market performance and one or more other performance measures. For
instance, the Morgan Stanley Capital International (MSCI) Emerging Markets Index, calculated with dividends reinvested, captures 60% of the publicly traded equities in each industry for approximately 25 emerging markets. The Funds past performance (before and after taxes) is not necessarily an indication of how the Fund will
perform in the future. The annual returns in the bar chart are for the Funds Class A shares and do not reflect sales loads. If sales loads were reflected, returns would be less than those shown.
Additionally, large purchases and/or redemptions of shares of a class, relative to the amount of assets represented by the class, may cause the annual returns for each class to differ. Updated performance information for the Fund is available on the Van Eck website at vaneck.com.
CLASS A: Annual Total Returns (%) as of 12/31
Best Quarter:
+59.06%
2Q 09
Worst Quarter:
-38.59%
4Q 08
3
Average Annual Total Returns as of 12/31/11
1 Year
5 Years
10 Years
Life of
Class A Shares
(12/20/93)
Before Taxes
-30.83
%
-3.31
%
9.14
%
After Taxes on Distributions
1
-31.14
%
-4.02
%
8.00
%
After Taxes on Distributions and Sale of Fund Shares
1
-20.04
%
-2.97
%
7.74
%
Class C Shares
(10/3/03)
Before Taxes
-27.77
%
-2.85
%
9.41
%
Class I Shares
(12/31/07)
Before Taxes
-26.19
%
-9.21
%
Class Y Shares
(4/30/10)
Before Taxes
-26.58
%
-6.62
%
MSCI Emerging Markets Index
(reflects no deduction for fees, expenses or taxes)
-18.17
%
2.70
%
14.20
%
1
Investment Adviser.
Van Eck Associates Corporation
Portfolio Manager and Investment Team Members.
David A. Semple,
Portfolio Manager, 1998
Edward M. Kuczma, CFA,
Investment Team Member, 2004
Angus Shillington,
Investment Team Member, 2009
PURCHASE AND SALE OF FUND SHARES
In general, shares of the Fund may be purchased or redeemed on any business day, primarily through financial representatives such as brokers or advisers, or directly by eligible investors through the Funds transfer agent. Purchase minimums for Classes A, C and Y shares are $1000 for an initial purchase and $100 for a subsequent
purchase, with no purchase minimums for any purchase through a retirement or pension plan account, for any wrap fee account and similar programs offered without a sales charge by certain financial institutions and third-party recordkeepers and/or administrators, and for any account using the Automatic Investment Plan, or for any
other periodic purchase program. Purchase minimums for Class I shares are $1 million for an initial purchase and no minimum for a subsequent purchase; the initial minimum may be reduced or waived at the Funds discretion.
The Fund normally distributes net investment income and net realized capital gains, if any, to shareholders. These distributions are generally taxable to you as ordinary income or capital gains, unless you are investing through a tax-advantaged retirement account, such as a 401(k) plan or an individual retirement account (IRA).
PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES
If you purchase the Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and/or its affiliates may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your financial professional
to recommend the Fund over another investment. Ask your financial professional or visit your financial intermediarys website for more information.
4
Class
After tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. These returns are shown for one class of shares only; after tax-returns for the other classes may vary. Actual after-tax returns depend on your individual tax situation and may differ from those shown in the preceding
table. The after-tax return information shown above does not apply to Fund shares held through a tax-deferred account, such as a 401(k) plan or Investment Retirement Account.
GLOBAL HARD ASSETS FUND (CLASS A, C, I, Y)
SUMMARY INFORMATION
The Global Hard Assets Fund seeks long-term capital appreciation by investing primarily in hard asset securities. Income is a secondary consideration.
This table describes the fees and expenses that you may pay if you buy and hold shares of the Fund. You may qualify for Class A sales charge discounts if you and your family (includes spouse and children under age 21) invest, or agree to invest in the future, at least $25,000, in the aggregate, in Classes A and C of the Van Eck
Funds. More information about these and other discounts is available from your financial professional and in the Shareholder Information section of the Funds prospectus and in the Availability of Discounts and Breakpoint Linkage Rules for Discounts sections of the Funds SAI.
Shareholder Fees
Class A
Class C
Class I
Class Y
Maximum Sales Charge (load) imposed on purchases (as a percentage of offering price)
5.75
%
0.00
%
0.00
%
0.00
%
Maximum Deferred Sales Charge (load) (as a percentage of the lesser of the net asset value or purchase price)
0.00
%
1
1.00
%
0.00
%
0.00
%
1
A contingent deferred sales charge for Class A shares of 1.00% for one year applies to redemptions of qualified commissionable shares purchased after April 30, 2012 at or above the $1 million breakpoint level.
Annual Fund Operating Expenses
(expenses that you pay each year as a percentage of the value of your investment)
Class A
Class C
Class I
Class Y
Management Fees
0.95
%
0.95
%
0.95
%
0.95
%
Distribution and/or Service (12b-1) Fees
0.25
%
1.00
%
0.00
%
0.00
%
Other Expenses
0.16
%
0.16
%
0.05
%
0.21
%
Acquired Fund Fees and Expenses
0.01
%
0.01
%
0.01
%
0.01
%
Total Annual Fund Operating Expenses
1.37
%
2.12
%
1.01
%
1.17
%
Fees/Expenses Waived or Reimbursed
1
0.00
%
0.00
%
0.00
%
(0.03
)%
Total Annual Fund Operating Expenses After Fee Waiver and/or Expense Reimbursement
1.37
%
2.12
%
1.01
%
1.14
%
1
Van Eck Associates Corporation (the Adviser) has agreed to waive fees and/or pay Fund expenses to the extent necessary to prevent the operating expenses of the Fund (excluding acquired fund fees and expenses, interest expense, trading expenses, dividends on securities sold short, taxes and extraordinary expenses) from exceeding 1.38% for Class A, 2.20% for Class
C, 1.00% for Class I, and 1.13% for Class Y of the Funds average daily net assets per year until May 1, 2013. During such time, the expense limitation is expected to continue until the Board of Trustees acts to discontinue all or a portion of such expense limitation.
The following example is intended to help you compare the cost of investing in the Fund with the cost of investing in other mutual funds. The example assumes that you invest $10,000 in the Fund for the time periods indicated and then either redeem all of your shares at the end of these periods or continue to hold them. The example
also assumes that your investment has a 5% return each year and that the Funds operating expenses remain the same. Although your actual expenses may be higher or lower, based on these assumptions, your costs would be:
Share Status
1 Year
3 Years
5 Years
10 Years
Class A
Sold or Held
$
706
$
984
$
1,282
$
2,127
Class C
Sold
$
315
$
664
$
1,139
$
2,452
Held
$
215
$
664
$
1,139
$
2,452
Class I
Sold or Held
$
103
$
322
$
558
$
1,236
Class Y
Sold or Held
$
116
$
369
$
641
$
1,418
5
(fees paid directly from your investment)
The Fund pays transaction costs, such as commissions, when it buys and sells securities (or turns over its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating
expenses or in the example, affect the Funds performance. During the most recent fiscal year, the Funds portfolio turnover rate was 40% of the average value of its portfolio.
PRINCIPAL INVESTMENT STRATEGIES
Under normal conditions, the Fund invests at least 80% of its net assets in securities of hard asset companies and instruments that derive their value from hard assets. Hard assets include precious metals (including gold), base and industrial metals, energy, natural resources and other commodities. A hard assets company is a
company that derives, directly or indirectly, at least 50% of its revenues from exploration, development, production, distribution or facilitation of processes relating to hard assets. The Fund concentrates its investments in the securities of hard assets companies and instruments that derive their value from hard assets. The Fund is
considered to be non-diversified which means that it may invest in fewer securities than a diversified fund.
The Fund may invest without limitation in any one hard asset sector and is not required to invest any portion of its assets in any one hard asset sector. The Fund may invest in securities of companies located anywhere in the world, including the U.S. Under ordinary circumstances, the Fund will invest in securities of issuers from a
number of different countries, and may invest any amount of its assets in emerging markets. The Fund may invest in securities of companies of any capitalization range. Utilizing qualitative and quantitative measures, the Funds investment management team selects equity securities of companies that it believes represent value
opportunities and/or that have growth potential. Candidates for the Funds portfolio are evaluated based on their relative desirability using a wide range of criteria and are regularly reviewed to ensure that they continue to offer absolute and relative desirability.
The Fund may use derivative instruments, such as structured notes, futures, options and swap agreements, to gain or hedge exposure to hard assets, hard asset companies and other assets. The Fund may enter into foreign currency transactions to attempt to moderate the effect of currency fluctuations. The Fund may write covered
call options on portfolio securities to the extent that the value of all securities with respect to which covered calls are written does not exceed 10% of the Funds net asset value. The Fund may also invest up to 20% of its net assets in securities issued by other investment companies, including exchange-traded funds (ETFs). The
Fund may also invest in money market funds, but these investments are not subject to this limitation. The Fund may invest in ETFs to participate in, or gain rapid exposure to, certain market sectors, or when direct investments in certain countries are not permitted.
There is no assurance that the Fund will achieve its investment objective. The Funds share price and return will fluctuate with changes in the market value of the Funds portfolio securities. Accordingly, an investment in the Fund involves the risk of losing money.
Commodities and Commodity-Linked Derivatives.
Exposure to the commodities markets, such as precious metals, industrial metals, gas and other energy products and natural resources, may subject a Fund to greater volatility than investments in traditional securities. The commodities markets may fluctuate widely based on a
variety of factors including changes in overall market movements, political and economic events and policies, war, acts of terrorism and changes in interest rates or inflation rates. Because the value of a commodity-linked derivative instrument and structured note typically are based upon the price movements of physical commodities,
the value of these securities will rise or fall in response to changes in the underlying commodities or related index of investment.
Derivatives.
The use of derivatives, such as swap agreements, options, warrants, futures contracts, currency forwards and structured notes, presents risks different from, and possibly greater than, the risks associated with investing directly in traditional securities. The use of derivatives can lead to losses because of adverse movements
in the price or value of the underlying security, asset, index or reference rate. Derivative strategies often involve leverage, which may exaggerate a loss, potentially causing a Fund to lose more money than it would have lost had it invested in the underlying security. Also, a liquid secondary market may not always exist for the Funds
derivative positions at times when the Fund might wish to terminate or sell such positions and over the counter instruments may be illiquid.
Direct Investments.
Direct investments may involve a high degree of business and financial risk that can result in substantial losses. Because of the absence of any public trading market for these investments, a Fund may take longer to liquidate these positions than would be the case for publicly traded securities. Direct investments
are generally considered illiquid and will be aggregated with other illiquid investments for purposes of the limitation on illiquid investments.
Emerging Markets Securities.
Emerging markets securities typically present even greater exposure to the risks described under Foreign Securities and may be particularly sensitive to certain economic changes. Emerging markets securities are exposed to a number of risks that may make these investments volatile in price or difficult
to trade.
6
Foreign Currency Transactions.
An investment transacted in a foreign currency may lose value due to fluctuations in the rate of exchange. These fluctuations can make the return on an investment go up or down, entirely apart from the quality or performance of the investment itself.
Foreign Securities.
Foreign investments are subject to greater risks than U.S. domestic investments. These additional risks may include exchange rate fluctuations and exchange controls; less publicly available information; more volatile or less liquid securities markets; and the possibility of arbitrary action by foreign governments, or
political, economic or social instability. Foreign companies also may be subject to significantly higher levels of taxation than U.S. companies, including potentially confiscatory levels of taxation, thereby reducing the earnings potential of such foreign companies.
Hard Assets Sectors.
The Fund may be subject to greater risks and market fluctuations than a fund whose portfolio has exposure to a broader range of sectors. The Fund may be susceptible to financial, economic, political or market events, as well as government regulation, impacting the hard assets sectors (such as the energy,
metals and real estate sectors). Precious metals and natural resources securities are at times volatile and there may be sharp fluctuations in prices, even during periods of rising prices.
Investments in Other Investment Companies.
A Funds investment in another investment company may subject the Fund indirectly to the underlying risks of the investment company. The Fund also will bear its share of the underlying investment companys fees and expenses, which are in addition to the Funds own fees and
expenses.
Market.
Market risk refers to the risk that the market prices of securities that a Fund holds will rise or fall, sometimes rapidly or unpredictably. In general, equity securities tend to have greater price volatility than debt securities.
Non-Diversification.
A non-diversified funds greater investment in a single issuer makes the fund more susceptible to financial, economic or market events impacting such issuer. A decline in the value of or default by a single security in the non-diversified funds portfolio may have a greater negative effect than a similar decline or
default by a single security in a diversified portfolio.
Small- and Medium-Capitalization Companies.
Securities of small- and medium-sized companies often have greater price volatility, lower trading volume and less liquidity than larger more established companies. The stocks of small
-
and medium-sized companies may have returns that vary, sometimes significantly, from the overall
stock market.
The following chart and table provide some indication of the risks of investing in the Fund by showing changes in the Funds performance from year to year and by showing how the Funds average annual total returns compare with those of a broad measure of market performance and one or more other performance measures. For
instance, the S&P North American Natural Resources Sector Index includes mining, energy, paper and forest products, and plantation-owning companies. The Funds past performance (before and after taxes) is not necessarily an indication of how the Fund will perform in the future. The annual returns in the bar chart are for the Funds
Class A shares and do not reflect sales loads. If sales loads were reflected, returns would be less than those shown.
Additionally, large purchases and/or redemptions of shares of a class, relative to the amount of assets represented by the class, may cause the annual returns for each class to differ. Updated performance information for the Fund is available on the Van Eck website at vaneck.com.
CLASS A: Annual Total Returns (%) as of 12/31
Best Quarter:
+24.25%
3Q 05
Worst Quarter:
-35.78%
3Q 08
7
Average Annual Total Returns as of 12/31/11
1 Year
5 Years
10 Years
Life of
Class A Shares
(11/2/94)
Before Taxes
-21.42
%
3.95
%
15.28
%
After Taxes on Distributions
1
-21.51
%
3.38
%
14.81
%
After Taxes on Distributions and Sale of Fund Shares
1
-13.83
%
3.22
%
13.73
%
Class C Shares
(11/2/94)
Before Taxes
-18.05
%
4.39
%
15.05
%
Class I Shares
(5/1/06)
Before Taxes
-16.31
%
5.61
%
5.03
%
Class Y Shares
(4/30/10)
Before Taxes
-16.45
%
0.39
%
S&P
®
North American Natural Resources Sector Index
(reflects no deduction for fees, expenses or taxes)
-7.35
%
4.04
%
10.99
%
S&P
®
500 Index
(reflects no deduction for fees, expenses or taxes)
2.11
%
-0.25
%
2.92
%
1
Investment Adviser.
Van Eck Associates Corporation
Portfolio Managers and Investment Team Members.
Charles T. Cameron
, Co-Portfolio Manager, 2010; Investment Team Member, 1995
PURCHASE AND SALE OF FUND SHARES
In general, shares of the Fund may be purchased or redeemed on any business day, primarily through financial representatives such as brokers or advisers, or directly by eligible investors through the Funds transfer agent. Purchase minimums for Classes A, C and Y shares are $1000 for an initial purchase and $100 for a subsequent
purchase, with no purchase minimums for any purchase through a retirement or pension plan account, for any wrap fee account and similar programs offered without a sales charge by certain financial institutions and third-party recordkeepers and/or administrators, and for any account using the Automatic Investment Plan, or for any
other periodic purchase program. Purchase minimums for Class I shares are $1 million for an initial purchase and no minimum for a subsequent purchase; the initial minimum may be reduced or waived at the Funds discretion.
The Fund normally distributes net investment income and net realized capital gains, if any, to shareholders. These distributions are generally taxable to you as ordinary income or capital gains, unless you are investing through a tax-advantaged retirement account, such as a 401(k) plan or an individual retirement account (IRA).
PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES
If you purchase the Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and/or its affiliates may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your financial professional
to recommend the Fund over another investment. Ask your financial professional or visit your financial intermediarys website for more information.
8
Class
After tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. These returns are shown for one class of shares only; after tax-returns for the other classes may vary. Actual after-tax returns depend on your individual tax situation and may differ from those shown in the preceding
table. The after-tax return information shown above does not apply to Fund shares held through a tax-deferred account, such as a 401(k) plan or Investment Retirement Account.
Shawn Reynolds,
Co-Portfolio Manager, 2010; Investment Team Member, 2005
Imaru Casanova,
Investment Team Member, 2011
Joseph M. Foster,
Investment Team Member, 1996
Samuel L. Halpert,
Investment Team Member, 2000
Geoffrey R. King, CFA,
Investment Team Member, 2007
Gregory F. Krenzer, CFA,
Investment Team Member, 1994
Charl P. de M. Malan,
Investment Team Member, 2003
Mark A. Miller,
Investment Team Member, 2007
Edward W. Mitby, CFA,
Investment Team Member, 2008
INTERNATIONAL INVESTORS GOLD FUND (CLASS A, C, I, Y)
SUMMARY INFORMATION
The International Investors Gold Fund seeks long-term capital appreciation by investing in common stocks of gold-mining companies. The Fund may take current income into consideration when choosing investments.
This table describes the fees and expenses that you may pay if you buy and hold shares of the Fund. You may qualify for Class A sales charge discounts if you and your family (includes spouse and children under age 21) invest, or agree to invest in the future, at least $25,000, in the aggregate, in Classes A and C of the Van Eck
Funds. More information about these and other discounts is available from your financial professional and in the Shareholder Information section of the Funds prospectus and in the Availability of Discounts and Breakpoint Linkage Rules for Discounts sections of the Funds SAI.
Shareholder Fees
Class A
Class C
Class I
Class Y
Maximum Sales Charge (load) imposed on purchases (as a percentage of offering price)
5.75
%
0.00
%
0.00
%
0.00
%
Maximum Deferred Sales Charge (load) (as a percentage of the lesser of the net asset value or purchase price)
0.00
%
1
1.00
%
0.00
%
0.00
%
1
A contingent deferred sales charge for Class A shares of 1.00% for one year applies to redemptions of qualified commissionable shares purchased after April 30, 2012 at or above the $1 million breakpoint level.
Annual Fund Operating Expenses
(expenses that you pay each year as a percentage of the value of your investment)
Class A
Class C
Class I
Class Y
Management Fees
0.60
%
0.60
%
0.60
%
0.60
%
Distribution and/or Service (12b-1) Fees
0.25
%
1.00
%
0.00
%
0.00
%
Other Expenses
0.35
%
0.36
%
0.31
%
0.50
%
Total Annual Fund Operating Expenses
1.20
%
1.96
%
0.91
%
1.10
%
Expense Example
The following example is intended to help you compare the cost of investing in the Fund with the cost of investing in other mutual funds. The example assumes that you invest $10,000 in the Fund for the time periods indicated and then either redeem all of your shares at the end of these periods or continue to hold them. The example
also assumes that your investment has a 5% return each year and that the Funds operating expenses remain the same. Although your actual expenses may be higher or lower, based on these assumptions, your costs would be:
Share Status
1 Year
3 Years
5 Years
10 Years
Class A
Sold or Held
$690
$934
$1,197
$1,946
Class C
Sold
$299
$615
$1,057
$2,285
Held
$199
$615
$1,057
$2,285
Class I
Sold or Held
$ 93
$290
$ 504
$1,120
Class Y
Sold or Held
$112
$350
$ 606
$1,340
The Fund pays transaction costs, such as commissions, when it buys and sells securities (or turns over its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating
expenses or in the example, affect the Funds performance. During the most recent fiscal year, the Funds portfolio turnover rate was 24% of the average value of its portfolio.
9
(fees paid directly from your investment)
PRINCIPAL INVESTMENT STRATEGIES
Under normal conditions, the Fund invests at least 80% of its net assets in securities of companies principally engaged in gold-related activities, instruments that derive their value from gold, gold coins and bullion. A company principally engaged in gold-related activities is one that derives at least 50% of its revenues from gold-related
activities, including the exploration, mining or processing of or dealing in gold. The Fund concentrates its investments in the gold-mining industry and therefore invests 25% or more of its total assets in such industry. The Fund is considered to be non-diversified which means that it may invest in fewer securities than a diversified
fund.
The Fund invests in securities of companies with economic ties to countries throughout the world, including the U.S. Under ordinary circumstances, the Fund will invest in securities of issuers from a number of different countries. The Fund may invest in securities of companies of any capitalization range. The Fund primarily invests in
companies that the portfolio manager believes represent value opportunities and/or that have growth potential within their market niche, through their ability to increase production capacity at reasonable cost or make gold discoveries around the world. The portfolio manager utilizes both a macro-economic examination of gold market
themes and a fundamental analysis of prospective companies in the search for value and growth opportunities.
The Fund may invest up to 25% of its net assets, as of the date of the investment, in gold and silver coins, gold, silver, platinum and palladium bullion and exchange-traded funds (ETFs) that invest primarily in such coins and bullion and derivatives on the foregoing. The Funds investments in coins and bullion will not earn income,
and the sole source of return to the Fund from these investments will be from gains or losses realized on the sale of such investments.
The Fund may gain exposure to gold bullion and other metals by investing up to 25% of the Funds total assets in a wholly-owned subsidiary of the Fund (the Subsidiary). The Subsidiary primarily invests in gold bullion, gold futures and other instruments that provide direct or indirect exposure to gold, including ETFs, and also may
invest in silver, platinum and palladium bullion and futures. The Subsidiary (unlike the Fund) may invest without limitation in these investments. The Fund will look-through the Subsidiary to the Subsidiarys underlying investments for determining compliance with the Funds investment policies. For tax reasons, it may be advantageous
for the Fund to create and maintain its exposure to the commodity markets, in whole or in part, by investing in the Subsidiary. The portfolio of the Subsidiary is managed by the Adviser for the exclusive benefit of the Fund.
The Fund may use derivative instruments, such as structured notes, futures, options and swap agreements, to gain or hedge exposure. The Fund may invest up to 20% of its net assets in securities issued by other investment companies, including ETFs. The Fund may also invest in money market funds, but these investments are not
subject to this limitation. The Fund may invest in ETFs to participate in, or gain rapid exposure to, certain market sectors, or when direct investments in certain countries are not permitted.
There is no assurance that the Fund will achieve its investment objective. The Funds share price and return will fluctuate with changes in the market value of the Funds portfolio securities. Accordingly, an investment in the Fund involves the risk of losing money.
Commodities and Commodity-Linked Derivatives.
Exposure to the commodities markets, such as precious metals, industrial metals, gas and other energy products and natural resources, may subject a Fund to greater volatility than investments in traditional securities. The commodities markets may fluctuate widely based on a
variety of factors including changes in overall market movements, political and economic events and policies, war, acts of terrorism and changes in interest rates or inflation rates. Because the value of a commodity-linked derivative instrument and structured note typically are based upon the price movements of physical commodities,
the value of these securities will rise or fall in response to changes in the underlying commodities or related index of investment.
Concentration in Gold-Mining Industry.
The Fund may be subject to greater risks and market fluctuations than a fund whose portfolio has exposure to a broader range of industries. The Fund may be susceptible to financial, economic, political or market events, as well as government regulation, impacting the gold industry.
Fluctuations in the price of gold often dramatically affect the profitability of companies in the gold industry.
Derivatives.
The use of derivatives, such as swap agreements, options, warrants, futures contracts, currency forwards and structured notes, presents risks different from, and possibly greater than, the risks associated with investing directly in traditional securities. The use of derivatives can lead to losses because of adverse movements
in the price or value of the underlying security, asset, index or reference rate. Derivative strategies often involve leverage, which may exaggerate a loss, potentially causing a Fund to lose more money than it would have lost had it invested in the underlying security. Also, a liquid secondary market may not always exist for the Funds
derivative positions at times when the Fund might wish to terminate or sell such positions and over the counter instruments may be illiquid.
10
Direct Investments.
Direct investments may involve a high degree of business and financial risk that can result in substantial losses. Because of the absence of any public trading market for these investments, a Fund may take longer to liquidate these positions than would be the case for publicly traded securities. Direct investments
are generally considered illiquid and will be aggregated with other illiquid investments for purposes of the limitation on illiquid investments.
Emerging Markets Securities.
Emerging markets securities typically present even greater exposure to the risks described under Foreign Securities and may be particularly sensitive to certain economic changes. Emerging markets securities are exposed to a number of risks that may make these investments volatile in price or difficult
to trade.
Foreign Currency Transactions.
An investment transacted in a foreign currency may lose value due to fluctuations in the rate of exchange. These fluctuations can make the return on an investment go up or down, entirely apart from the quality or performance of the investment itself.
Foreign Securities.
Foreign investments are subject to greater risks than U.S. domestic investments. These additional risks may include exchange rate fluctuations and exchange controls; less publicly available information; more volatile or less liquid securities markets; and the possibility of arbitrary action by foreign governments, or
political, economic or social instability. Foreign companies also may be subject to significantly higher levels of taxation than U.S. companies, including potentially confiscatory levels of taxation, thereby reducing the earnings potential of such foreign companies.
Investments in Other Investment Companies.
A Funds investment in another investment company may subject the Fund indirectly to the underlying risks of the investment company. The Fund also will bear its share of the underlying investment companys fees and expenses, which are in addition to the Funds own fees and
expenses.
Market.
Market risk refers to the risk that the market prices of securities that a Fund holds will rise or fall, sometimes rapidly or unpredictably. In general, equity securities tend to have greater price volatility than debt securities.
Non-Diversification.
A non-diversified funds greater investment in a single issuer makes the fund more susceptible to financial, economic or market events impacting such issuer. A decline in the value of or default by a single security in the non-diversified funds portfolio may have a greater negative effect than a similar decline or
default by a single security in a diversified portfolio.
Regulatory.
Changes in the laws or regulations of the United States or the Cayman Islands, including any changes to applicable tax laws and regulations, could impair the ability of the Fund to achieve its investment objective and could increase the operating expenses of the Fund or the Subsidiary. For example, the U.S. Commodity
Futures Trading Commission (CFTC) recently adopted amendments to existing regulations that, upon effectiveness, may subject activities of the Fund or the Subsidiary involving investments in futures contracts and similar instruments to regulation by the CFTC, including a variety of registration, disclosure and operational obligations.
Small- and Medium-Capitalization Companies.
Securities of small- and medium-sized companies often have greater price volatility, lower trading volume and less liquidity than larger more established companies. The stocks of small- and medium-sized companies may have returns that vary, sometimes significantly, from the overall
stock market.
Subsidiary.
By investing in the Subsidiary, a Fund is indirectly exposed to the risks associated with the Subsidiarys investments.
The following chart and table provide some indication of the risks of investing in the Fund by showing changes in the Funds performance from year to year and by showing how the Funds average annual total returns compare with those of a broad measure of market performance and one or more other performance measures. For
instance, the NYSE Arca Gold Miners (GDM) Index is a modified market capitalization-weighted index comprised of publicly traded companies involved primarily in the mining for gold. The GDM Index has only been calculated in real time by an independent calculation agent since October 7, 2004. The Funds past performance (before
and after taxes) is not necessarily an indication of how the Fund will perform in the future. The annual returns in the bar chart are for the Funds Class A shares and do not reflect sales loads. If sales loads were reflected, returns would be less than those shown.
Additionally, large purchases and/or redemptions of shares of a class, relative to the amount of assets represented by the class, may cause the annual returns for each class to differ. Updated performance information for the Fund is available on the Van Eck website at vaneck.com.
11
CLASS A: Annual Total Returns (%) as of 12/31
Best Quarter:
+44.96%
1Q 02
Worst Quarter:
-31.82%
3Q 08
Average Annual Total Returns as of 12/31/11
1 Year
5 Years
10 Years
Life of
Class A Shares
(2/10/56)
Before Taxes
-26.04
%
10.58
%
23.50
%
After Taxes on Distributions
1
-26.45
%
8.32
%
20.87
%
After Taxes on Distributions and Sale of Fund Shares
1
-16.92
%
8.07
%
20.03
%
Class C Shares
(10/3/03)
Before Taxes
-22.88
%
11.07
%
17.49
%
Class I Shares
(10/2/06)
Before Taxes
-21.30
%
15.52
%
18.13
%
Class Y Shares
(4/30/10)
Before Taxes
-21.42
%
2.49
%
NYSE Arca Gold Miners Index
(reflects no deduction for fees, expenses or taxes)
-15.48
%
6.36
%
S&P
®
500 Index
(reflects no deduction for fees, expenses or taxes)
2.11
%
-0.25
%
2.92
%
1
Investment Adviser.
Van Eck Associates Corporation
Portfolio Manager and Investment Team Members.
Joseph M. Foster
, Portfolio Manager, 1996
Imaru Casanova
, Investment Team Member, 2011
Charl P. de M. Malan
, Investment Team Member, 2003
PURCHASE AND SALE OF FUND SHARES
In general, shares of the Fund may be purchased or redeemed on any business day, primarily through financial representatives such as brokers or advisers, or directly by eligible investors through the Funds transfer agent. Purchase minimums for Classes A, C and Y shares are $1000 for an initial purchase and $100 for a subsequent
purchase, with no purchase minimums for any purchase through a retirement or pension plan account, for any wrap fee account and similar programs offered without a sales charge by certain financial institutions and third-party recordkeepers and/or administrators, and for any account using the Automatic Investment Plan, or for any
other periodic purchase program. Purchase minimums for Class I shares are $1 million for an initial purchase and no minimum for a subsequent purchase; the initial minimum may be reduced or waived at the Funds discretion.
12
Class
After tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. These returns are shown for one class of shares only; after tax-returns for the other classes may vary. Actual after-tax returns depend on your individual tax situation and may differ from those shown in the preceding
table. The after-tax return information shown above does not apply to Fund shares held through a tax-deferred account, such as a 401(k) plan or Investment Retirement Account.
The Fund normally distributes net investment income and net realized capital gains, if any, to shareholders. These distributions are generally taxable to you as ordinary income or capital gains, unless you are investing through a tax-advantaged retirement account, such as a 401(k) plan or an individual retirement account (IRA).
PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES
If you purchase the Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and/or its affiliates may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your financial professional
to recommend the Fund over another investment. Ask your financial professional or visit your financial intermediarys website for more information.
13
II. INVESTMENT OBJECTIVES, STRATEGIES, POLICIES, RISKS AND OTHER INFORMATION
This section states each Funds investment objective and describes certain strategies and policies that the Fund may utilize in pursuit of its investment objective. This section also provides additional information about the principal risks associated with investing in each Fund.
14
2. ADDITIONAL INFORMATION ABOUT PRINCIPAL INVESTMENT STRATEGIES AND RISKS
COMMODITIES AND COMMODITY-LINKED DERIVATIVES
Funds
Global Hard Assets Fund, International Investors Gold Fund
Definition
Commodities include precious metals (such as gold, silver, platinum and palladium in the form of bullion and coins), industrial metals, gas and other energy products and natural resources. The value of a commodity-linked derivative investment generally is based upon the price movements of a physical
commodity (such as energy, mineral, or agricultural products), a commodity futures contract or commodity index, or other economic variable based upon changes in the value of commodities or the commodities markets. The Fund may seek exposure to the commodity markets through investments in leveraged or
unleveraged commodity-linked or index-linked notes, which are derivative debt instruments with principal and/or coupon payments linked to the value of commodities, commodity futures contracts or the performance of commodity indices. These notes are sometimes referred to as structured notes because the
terms of these notes may be structured by the issuer and the purchaser of the note.
Risk
Exposure to the commodities markets may subject a Fund to greater volatility than investments in traditional securities. The commodities markets may fluctuate widely based on a variety of factors including changes in overall market movements, political and economic events and policies, war, acts of terrorism
and changes in interest rates or inflation rates. Prices of various commodities may also be affected by factors such as drought, floods, weather, embargoes, tariffs and other regulatory developments. The prices of commodities can also fluctuate widely due to supply and demand disruptions in major producing or
consuming regions. Certain commodities may be produced in a limited number of countries and may be controlled by a small number of producers. As a result, political, economic and supply related events in such countries could have a disproportionate impact on the prices of such commodities.
Commodity-Linked Structured Securities.
Because the value of a commodity-linked derivative instrument typically is based upon the price movements of a physical commodity, the value of the commodity-linked derivative instrument may be affected by changes in overall market movements, commodity index
volatility, changes in interest rates, or factors affecting a particular industry. The value of these securities will rise or fall in response to changes in the underlying commodity or related index of investment.
Structured Notes.
Structured notes expose a Fund economically to movements in commodity prices. The performance of a structured note is determined by the price movement of the commodity underlying the note. A highly liquid secondary market may not exist for structured notes, and there can be no
assurance that one will develop. These notes are often leveraged, increasing the volatility of each notes market value relative to changes in the underlying commodity, commodity futures contract or commodity index.
CONCENTRATION IN GOLD-MINING INDUSTRY
Fund
International Investors Gold Fund
Definition
The Fund concentrates its investments in the securities of companies engaged in gold-related activities, including exploration, mining, processing, or dealing in gold.
Risk
The International Investors Gold Fund may be subject to greater risks and market fluctuations than a fund whose portfolio has exposure to a broader range of industries. The Fund may be susceptible to financial, economic, political or market events, as well as government regulation, impacting the gold-mining
industry. Fluctuations in the price of gold often dramatically affect the profitability of companies in the gold-mining industry. Changes in the political or economic climate for a large gold producer, such as South Africa or the former Soviet Union, may have a direct impact on the price of gold worldwide. The value
of securities of companies in the gold-mining industry are highly dependent on the price of gold at any given time.
15
INVESTMENT OBJECTIVES, STRATEGIES, POLICIES, RISKS AND OTHER INFORMATION (continued)
DERIVATIVES
Funds
All Funds
Definition
The term derivatives covers a broad range of financial instruments, including swap agreements, options, warrants, futures contracts, currency forwards and structured notes, whose values are derived, at least in part, from the value of one or more indicators, such as a security, asset, index or reference rate.
Risk
The use of derivatives presents risks different from, and possibly greater than, the risks associated with investing directly in traditional securities. The use of derivatives can lead to losses because of adverse movements in the price or value of the underlying security, asset, index or reference rate, which may be
magnified by certain features of the derivatives. Derivative strategies often involve leverage, which may exaggerate a loss, potentially causing a Fund to lose more money than it would have lost had it invested in the underlying security. The values of derivatives may move in unexpected ways, especially in
unusual market conditions, and may result in increased volatility, among other consequences. The use of derivatives may also increase the amount of taxes payable by shareholders. Other risks arise from a Funds potential inability to terminate or sell derivative positions. A liquid secondary market may not
always exist for the Funds derivative positions at times when the Fund might wish to terminate or sell such positions. Over the counter instruments (investments not traded on an exchange) may be illiquid, and transactions in derivatives traded in the over-the counter market are subject to the risk that the other
party will not meet its obligations. The use of derivatives also involves the risk of mispricing or improper valuation and that changes in the value of the derivative may not correlate perfectly with the underlying security, asset, index or reference rate.
DIRECT INVESTMENTS
Funds
All Funds
Definition
Investments made directly with an enterprise through a shareholder or similar agreementnot through publicly traded shares or interests. A Fund will not invest more than 10% of its total assets in direct investments.
Risk
Direct investments may involve a high degree of business and financial risk that can result in substantial losses. Because of the absence of any public trading market for these investments, a Fund may take longer to liquidate these positions than would be the case for publicly traded securities. Although these
securities may be resold in privately negotiated transactions, the prices on these sales could be less than those originally paid by the Fund. Issuers whose securities are not publicly traded may not be subject to public disclosure and other investor protection requirements applicable to publicly traded securities.
Direct investments are generally considered illiquid and will be aggregated with other illiquid investments for purposes of the limitation on illiquid investments.
EMERGING MARKETS SECURITIES
Funds
All Funds
Definition
Securities of companies that are primarily located in developing countries.
Risk
Emerging markets securities typically present even greater exposure to the risks described under Foreign Securities and may be particularly sensitive to certain economic changes. Emerging markets securities are exposed to a number of risks that may make these investments volatile in price or difficult to trade.
Political risks may include unstable governments, nationalization, restrictions on foreign ownership, laws that prevent investors from getting their money out of a country and legal systems that do not protect property rights as well as the laws of the U.S. Market risks may include economies that concentrate in only
a few industries, securities issued that are held by only a few investors, limited trading capacity in local exchanges and the possibility that markets or issues may be manipulated by foreign nationals who have inside information.
16
FOREIGN CURRENCY TRANSACTIONS
Funds
All Funds
Definition
The contracts involved in buying and selling foreign money in order to buy and sell foreign securities denominated in that money.
Risk
An investment transacted in a foreign currency may lose value due to fluctuations in the rate of exchange. These fluctuations can make the return on an investment go up or down, entirely apart from the quality or performance of the investment itself. A Fund may enter into foreign currency transactions either to
facilitate settlement transactions or for purposes of hedging exposure to underlying currencies. To manage currency exposure, the Fund may enter into forward currency contracts to lock in the U.S. dollar price of the security. A forward currency contract involves an agreement to purchase or sell a specified
currency at a specified future price set at the time of the contract.
FOREIGN SECURITIES
Funds
All Funds
Definition
Securities issued by foreign companies, traded in foreign currencies or issued by companies with most of their business interests in foreign countries.
Risk
Foreign investments are subject to greater risks than U.S. domestic investments. These additional risks may include exchange rate fluctuations and exchange controls; less publicly available information; more volatile or less liquid securities markets; and the possibility of arbitrary action by foreign governments,
including the takeover of property without adequate compensation or imposition of prohibitive taxation, or political, economic or social instability. Foreign companies also may be subject to significantly higher levels of taxation than U.S. companies, including potentially confiscatory levels of taxation, thereby reducing
the earnings potential of such foreign companies.
Some of the risks of investing in foreign securities may be reduced when a Fund invests indirectly in foreign securities through American Depositary Receipts (ADRs), European Depositary Receipts (EDRs), American Depositary Shares (ADSs), Global Depositary Shares (GDSs), and other securities which are
traded on larger, recognized exchanges and in stronger, more recognized currencies.
HARD ASSETS SECTORS
Fund
Global Hard Assets Fund
Definition
The Fund concentrates its investments in the securities of hard asset companies and instruments that derive their value from hard assets. Hard assets include precious metals (including gold), base and industrial metals, energy, natural resources and other commodities, as well as real estate.
Risks
The Fund may be subject to greater risks and market fluctuations than a fund whose portfolio has exposure to a broader range of sectors. The Fund may be susceptible to financial, economic, political or market events, as well as government regulation, impacting the hard assets sectors. Specifically, the energy
sector can be affected by changes in the prices of and supplies of oil and other energy fuels, energy conservation, the success of exploration projects, and tax and other government regulations. The metals sector can be affected by sharp price volatility over short periods caused by global economic, financial and
political factors, resource availability, government regulation, economic cycles, changes in inflation, interest rates, currency fluctuations, metal sales by governments, central banks or international agencies, investment speculation and fluctuations in industrial and commercial supply and demand. The real estate
sector can be affected by possible declines in the value of real estate, possible lack of availability of mortgage funds, extended vacancies of properties, general and local economic conditions, overbuilding, property taxes and operating expenses, natural disasters and changes in interest rates. Precious metals and
natural resources securities are at times volatile and there may be sharp fluctuations in prices, even during periods of rising prices.
17
INVESTMENT OBJECTIVES, STRATEGIES, POLICIES, RISKS AND OTHER INFORMATION (continued)
INVESTMENTS IN OTHER INVESTMENT COMPANIES
Funds
All Funds
Definition
Each Fund may invest up to 20% of its net assets in securities issued by other investment companies (excluding money market funds), including open end and closed end funds and ETFs, subject to the limitations under the Investment Company Act of 1940, as amended (the 1940 Act). The Funds investments
in money market funds are not subject to this limitation.
Risks
A Funds investment in another investment company may subject the Fund indirectly to the underlying risks of the investment company. The Fund also will bear its share of the underlying investment companys fees and expenses, which are in addition to the Funds own fees and expenses. Shares of closed-end
funds and ETFs may trade at prices that reflect a premium above or a discount below the investment companys net asset value, which may be substantial in the case of closed-end funds. If investment company securities are purchased at a premium to net asset value, the premium may not exist when those
securities are sold and the Fund could incur a loss.
MARKET
Funds
All Funds
Definition
An investment in a Fund involves market riskthe risk that securities prices will rise or fall.
Risk
Market risk refers to the risk that the market prices of securities that a Fund holds will rise or fall, sometimes rapidly or unpredictably. Security prices may decline over short or even extended periods not only because of company-specific developments but also due to an economic downturn, a change in interest
or currency rates or a change in investor sentiment. In general, equity securities tend to have greater price volatility than debt securities.
NON-DIVERSIFICATION
Funds
All Funds
Definition
A non-diversified fund may invest a larger portion of its assets in a single issuer. A diversified fund is required by the 1940 Act, generally, with respect to 75% of its total assets, to invest not more than 5% of such assets in the securities of a single issuer.
Risk
A non-diversified funds greater investment in a single issuer makes the fund more susceptible to financial, economic or market events impacting such issuer. A decline in the value of or default by a single security in the non-diversified funds portfolio may have a greater negative effect than a similar decline or
default by a single security in a diversified portfolio.
REGULATORY
Fund
International Investors Gold Fund
Definition
The Fund and the Subsidiary are subject to the laws and regulated by the governments of the United States and/or the Cayman Islands, respectively.
Risk
Changes in the laws or regulations of the United States or the Cayman Islands, including any changes to applicable tax laws and regulations, could impair the ability of the Fund to achieve its investment objective and could increase the operating expenses of the Fund or the Subsidiary. For example, the CFTC
recently adopted amendments to existing regulations that, upon effectiveness, may subject activities of the Fund or the Subsidiary involving investments in futures contracts and similar instruments to regulation by the CFTC, including a variety of registration, disclosure and operational obligations. It is expected
that additional regulations will be adopted by the CFTC in the future. The likely impact of such existing and future regulations on the Fund or the Subsidiary is unclear as of the date of this prospectus.
18
Investment in the Subsidiary is expected to provide the Fund with exposure to the commodities markets within the limitations of the federal income tax requirements of Subchapter M of the Internal Revenue Code of 1986, as amended. Subchapter M requires, among other things, that at least 90% of the Funds
gross income be derived from securities or derived with respect to its business of investing in securities (typically referred to as qualifying income). Historically, in many cases a fund intending to utilize a subsidiary for commodities investments would apply to the Internal Revenue Service (IRS) to obtain a
private letter ruling that income from the funds investment in a subsidiary would constitute qualifying income for purposes of Subchapter M. However, the IRS has recently suspended the issuance of such rulings. In the absence of such a ruling, the Fund expects to invest its assets in the Subsidiary, consistent
with applicable law and the advice of counsel, in a manner that should permit the Fund to treat income allocable from the Subsidiary as qualifying income. Should the IRS take action that adversely affects the tax treatment of the Funds use of the Subsidiary, it could limit the Funds ability to pursue its
investment objective as described. The Fund also may incur transaction and other costs to comply with any new or additional guidance from the IRS.
SMALL- AND MEDIUM-CAPITALIZATION COMPANIES
Funds
All Funds
Definition
Companies with smaller and medium capitalizations. These companies may have limited product lines, markets or financial resources or depend upon a few key employees.
Risk
Securities of small- and medium-sized companies are often subject to less analyst coverage and may be in early and less predictable periods of their corporate existences. In addition, these companies often have greater price volatility, lower trading volume and less liquidity than larger more established
companies. These companies tend to have smaller revenues, narrower product lines, less management depth and experience, smaller shares of their product or service markets, fewer financial resources and less competitive strength than larger companies. The stocks of small- and medium-sized companies may
have returns that vary, sometimes significantly, from the overall stock market.
SUBSIDIARY
Fund
International Investors Gold Fund
Definition
By investing in the Subsidiary, the Fund is indirectly exposed to the risks associated with the Subsidiarys investments. The derivatives and other investments held by the Subsidiary, including ETFs that invest in gold bullion, are generally similar to those that are permitted to be held by the Fund and are subject
to the same risks that apply to similar investments if held directly by the Fund. These risks are described elsewhere in this prospectus.
Risk
The Subsidiary is not registered under the 1940 Act, and, unless otherwise noted in this prospectus, is not subject to all the investor protections of the 1940 Act. In addition, changes in the laws of the United States and/or the Cayman Islands could result in the inability of the Fund and/or the Subsidiary to
operate as described in this prospectus and the SAI and could eliminate or severely limit the Funds ability to invest in the Subsidiary which may adversely affect the Fund and its shareholders.
3. ADDITIONAL INVESTMENT STRATEGIES
INVESTMENTS IN OTHER EQUITY AND FIXED INCOME SECURITIES
Funds
Emerging Markets Fund, Global Hard Assets Fund
Strategy
The investments of the Funds may include, but not be limited to, common stocks, preferred stocks (either convertible or non-convertible), rights, warrants, direct equity interests in trusts, partnerships, joint ventures and other unincorporated entities or enterprises, convertible debt instruments and special classes of
shares available only to foreigners in markets that restrict ownership of certain shares or classes to their own nationals or residents.
19
INVESTMENT OBJECTIVES, STRATEGIES, POLICIES, RISKS AND OTHER INFORMATION (continued)
INVESTING DEFENSIVELY
Funds
All Funds
Strategy
Each Fund may take temporary defensive positions in anticipation of or in an attempt to respond to adverse market, economic, political or other conditions. Such a position could have the effect of reducing any benefit a Fund may receive from a market increase.
SECURITIES LENDING
Funds
All Funds
Strategy
Each Fund may lend its securities as permitted under the 1940 Act, including by participating in securities lending programs managed by broker-dealers or other institutions. Securities lending allows a Fund to retain ownership of the securities loaned and, at the same time, earn additional income. The borrowings
must be collateralized in full with cash, U.S. government securities or high-quality letters of credit.
A Fund could experience delays and costs in recovering the securities loaned or in gaining access to the securities lending collateral. If a Fund is not able to recover the securities loaned, the Fund may sell the collateral and purchase a replacement investment in the market. The value of the collateral could
decrease below the value of the replacement investment by the time the replacement investment is purchased. Cash received as collateral and which is invested is subject to market appreciation and depreciation.
4. OTHER INFORMATION AND POLICIES
CHANGING A FUNDS 80% POLICY
A Funds policy of investing at least 80% of its net assets (which includes net assets plus any borrowings for investment purposes) may be changed by the Board of Trustees without a shareholder vote, as long as shareholders are given 60 days notice of the change.
PORTFOLIO HOLDINGS INFORMATION
Generally, it is the Funds and Advisers policy that no current or potential investor, including any Fund shareholder, shall be provided information about the Funds portfolio on a preferential basis in advance of the provision of that information to other investors. A complete description of the Funds policies and procedures with respect
to the disclosure of the Funds portfolio securities is available in the Funds Statement of Additional Information (SAI).
Limited portfolio holdings information for the Funds is available to all investors on the Van Eck website at vaneck.com. This information regarding the Funds top holdings and country and sector weightings, updated as of each month-end, is located on this website. Generally, this information is posted to the website within 30 days of the
end of the applicable month. This information generally remains available on the website until new information is posted. Each Fund reserves the right to exclude any portion of these portfolio holdings from publication when deemed in the best interest of the Fund, and to discontinue the posting of portfolio holdings information at any
time, without prior notice.
PORTFOLIO INVESTMENTS
The percentage limitations relating to the composition of a Funds portfolio apply at the time the Fund acquires an investment. A subsequent increase or decrease in percentage resulting from a change in the value of portfolio securities or the total or net assets of the Fund will not be considered a violation of the restriction.
20
1. HOW TO BUY, SELL, EXCHANGE OR TRANSFER SHARES
Each Fund offers Class A, Class C, Class I and Class Y shares. Information related to how to buy, sell, exchange and transfer shares is discussed below. See the Minimum Purchase section for information related to initial and subsequent minimum investment amounts. The minimum investment amounts vary by share class.
Through a Financial Intermediary
Primarily, accounts are opened through a financial intermediary (broker, bank, adviser or agent). Please contact your representative for details.
Through the Transfer Agent, DST Systems, Inc. (DST)
You may buy (purchase), sell (redeem), exchange, or transfer ownership of Class A, Class C and Class I shares directly through DST by mail or telephone, as stated below. For Class Y shares, shareholders must open accounts and transact business through a financial intermediary.
The Funds mailing address at DST is:
Van Eck Global
For overnight delivery:
Van Eck Global
Non-resident aliens cannot make a direct investment to establish a new account in the Funds, but may invest through their broker or agent and certain foreign financial institutions that have agreements with Van Eck.
To telephone the Funds at DST, call Van Ecks Account Assistance at 800-544-4653.
Purchase by Mail
To make an initial purchase, complete the Van Eck Account Application and mail it with your check made payable to Van Eck Funds. Subsequent purchases can be made by check with the remittance stub of your account statement. You cannot make a purchase by telephone. We cannot accept third party checks, starter checks,
money orders, travelers checks, cashier checks, checks drawn on a foreign bank, or checks not in U.S. dollars. There are separate applications for Van Eck retirement accounts (see Retirement Plans for details). For further details, see the application or call Account Assistance.
Telephone RedemptionProceeds by Check 800-345-8506
If your account has the optional Telephone Redemption Privilege, you can redeem up to $50,000 per day. The redemption check must be payable to the registered owner(s) at the address of record (which cannot have been changed within the past 30 days). You automatically get the Telephone Redemption Privilege (for eligible
accounts) unless you specifically refuse it on your Account Application, on broker/agent settlement instructions, or by written notice to DST. All accounts are eligible for the privilege except those registered in street, nominee, or corporate name and custodial accounts held by a financial institution, including Van Eck sponsored retirement
plans.
Expedited RedemptionProceeds by Wire 800-345-8506
If your account has the optional Expedited Redemption Privilege, you can redeem a minimum of $1,000 or more per day by telephone or written request with the proceeds wired to your designated bank account. The Funds reserve the right to waive the minimum amount. This privilege must be established in advance by Application.
For further details, see the Application or call Account Assistance.
Written Redemption
Your written redemption (sale) request must include:
<
Fund and account number.
<
Number of shares or dollar amount to be redeemed, or a request to sell all shares.
<
Signatures of all registered account holders, exactly as those names appear on the account registration, including any additional documents concerning authority and related matters in the case of estates, trusts, guardianships, custodianships, partnerships and corporations, as requested by DST.
21
P.O. Box 218407
Kansas City, MO 64121-8407
210 W. 10th St., 8th Fl.
Kansas City, MO 64105-1802
SHAREHOLDER INFORMATION (continued)
<
Special instructions, including bank wire information or special payee or address.
A signature guarantee for each account holder will be required if:
<
The redemption is for $50,000 or more.
<
The redemption amount is wired.
<
The redemption amount is paid to someone other than the registered owner.
<
The redemption amount is sent to an address other than the address of record.
<
The address of record has been changed within the past 30 days.
Institutions eligible to provide signature guarantees include banks, brokerages, trust companies, and some credit unions.
Telephone Exchange 800-345-8506
If your account has the optional Telephone Exchange Privilege, you can exchange between Funds of the same Class without any additional sales charge. (Shares originally purchased into the Van Eck Money Fund (the Money Fund), which paid no sales charge, may pay an initial sales charge the first time they are exchanged into
another Class A fund.) Exchanges of Class C shares are exempt from the Class C contingent deferred redemption charge (CDRC). The new Class C shares received via the exchange will be charged the CDRC applicable to the original Class C shares upon redemption. All accounts are eligible except for omnibus accounts or those
registered in street name and certain custodial retirement accounts held by a financial institution other than Van Eck. For further details regarding exchanges, please see the application, Limits and Restrictions and Unauthorized Telephone Requests below, or call Account Assistance.
Written Exchange
Written requests for exchange must include:
<
The fund and account number to be exchanged out of.
<
The fund to be exchanged into.
<
Directions to exchange all shares or a specific number of shares or dollar amount.
<
Signatures of all registered account holders, exactly as those names appear on the account registration, including any additional documents concerning authority and related matters in the case of estates, trusts, guardianships, custodianships, partnerships and corporations, as requested by DST.
For further details regarding exchanges, please see the applicable information in Telephone Exchange.
Certificates
Certificates are not issued for new or existing shares.
Transfer of Ownership
Requests must be in writing and provide the same information and legal documentation necessary to redeem and establish an account, including the social security or tax identification number of the new owner.
Redemption in Kind
Each Fund reserves the right to satisfy redemption requests by making payment in securities (known as a redemption in kind). In such case, the Fund may pay all or part of the redemption in securities of equal value as permitted under the 1940 Act, and the rules thereunder. The redeeming shareholder should expect to incur
transaction costs upon the disposition of the securities received.
LIMITS AND RESTRICTIONS
Frequent Trading Policy
The Board of Trustees has adopted policies and procedures reasonably designed to deter frequent trading in shares of each Fund, commonly referred to as market timing, because such activities may be disruptive to the management of each Funds portfolio and may increase a Funds expenses and negatively impact the Funds
performance. As such, each Fund may reject a purchase or exchange transaction or restrict an account from investing in the Fund for any reason if the Adviser, in its sole discretion, believes that a shareholder is engaging in market timing activities that may be harmful to the Fund. Each Fund discourages and does not accommodate
frequent trading of shares by its shareholders.
Each Fund invests portions of its assets in securities of foreign issuers, and consequently may be subject to an increased risk of frequent trading activities because frequent traders may attempt to take advantage of time zone differences between the foreign markets in which the Funds portfolio securities trade and the time as of which
the Funds net asset value is calculated (time-zone arbitrage). Each Funds investments in other types of securities may also be susceptible to
22
frequent trading strategies. These investments include securities that are, among other things, thinly traded, traded infrequently, or relatively illiquid, which have the risk that the current market price for the securities may not accurately reflect current market values. Each Fund has adopted fair valuation policies and procedures intended
to reduce the Funds exposure to potential price arbitrage. However, there is no guarantee that a Funds net asset value will immediately reflect changes in market conditions.
Each Fund uses a variety of techniques to monitor and detect abusive trading practices, such as monitoring purchases, redemptions and exchanges that meet certain criteria established by the Fund, and making inquiries with respect to such trades. If a transaction is rejected or an account restricted due to suspected market timing, the
investor or his or her financial adviser will be notified.
With respect to trades that occur through omnibus accounts at intermediaries, such as broker-dealers and third party administrators, each Fund requires all such intermediaries to agree to cooperate in identifying and restricting market timers in accordance with the Funds policies and will periodically request customer trading activity in
the omnibus accounts based on certain criteria established by the Fund. There is no assurance that a Fund will request such information with sufficient frequency to detect or deter excessive trading or that review of such information will be sufficient to detect or deter excessive trading in omnibus accounts effectively.
Although each Fund will use reasonable efforts to prevent market timing activities in the Funds shares, there can be no assurances that these efforts will be successful. As some investors may use various strategies to disguise their trading practices, a Funds ability to detect frequent trading activities by investors that hold shares
through financial intermediaries may be limited by the ability and/or willingness of such intermediaries to monitor for these activities.
For further details, contact Account Assistance.
Unauthorized Telephone Requests
Like most financial organizations, Van Eck, the Funds and DST may only be liable for losses resulting from unauthorized transactions if reasonable procedures designed to verify the callers identity and authority to act on the account are not followed.
If you do not want to authorize the Telephone Exchange or Redemption privilege on your eligible account, you must refuse it on the Account Application, broker/agent settlement instructions, or by written notice to DST. Van Eck, the Funds, and DST reserve the right to reject a telephone redemption, exchange, or other request without
prior notice either during or after the call. For further details, contact Account Assistance.
AUTOMATIC SERVICES
Automatic Investment Plan
You may authorize DST to periodically withdraw a specified dollar amount from your bank account and buy shares in your Fund account. For further details and to request an Application, contact Account Assistance.
Automatic Exchange Plan
You may authorize DST to periodically exchange a specified dollar amount for your account from one Fund to another Fund. Class C shares are not eligible. For further details and to request an Application, contact Account Assistance.
Automatic Withdrawal Plan
You may authorize DST to periodically withdraw (redeem) a specified dollar amount from your Fund account and mail a check to you for the proceeds. Your Fund account must be valued at $10,000 or more at the current offering price to establish the Plan. Class C shares are not eligible except for automatic withdrawals for the
purpose of retirement account distributions. For further details and to request an Application, contact Account Assistance.
MINIMUM PURCHASE
Each class can set its own transaction minimums and may vary with respect to expenses for distribution, administration and shareholder services.
For Class A, Class C and Class Y shares, an initial purchase of $1,000 and subsequent purchases of $100 or more are required for non-retirement accounts. There are no purchase minimums for any retirement or pension plan account, for any account using the Automatic Investment Plan, or for any other periodic purchase program.
Minimums may be waived for initial and subsequent purchases through wrap fee and similar programs offered without a sales charge by certain financial institutions and third-party recordkeepers and/or administrators.
For Class I shares, an initial purchase by an eligible investor of $1 million is required. The minimum initial investment requirement may be waived or aggregated among investors, in the Advisers discretion, for investors in certain fee-based,
23
SHAREHOLDER INFORMATION (continued)
wrap or other no-load investment programs, and for an eligible Employer-Sponsored Retirement Plan with plan assets of $3 million or more, sponsored by financial intermediaries that have entered into a Class I agreement with Van Eck, as well as for other categories of investors. An Employer-Sponsored Retirement Plan includes (a)
an employer sponsored pension or profit sharing plan that qualifies (a Qualified Plan) under section 401(a) of the Internal Revenue Code of 1986, as amended (the Code), including Code section 401(k), money purchase pension, profit sharing and defined benefit plans; (b) an ERISA-covered 403(b) plan; and (c) certain non-qualified
deferred compensation arrangements that operate in a similar manner to a Qualified Plan, such as 457 plans and executive deferred compensation arrangements, but not including employer-sponsored IRAs. In addition, members of the Boards of Trustees of Van Eck Funds and Van Eck VIP Trust and each officer, director and
employee of Van Eck may purchase Class I shares without being subject to the $1 million minimum initial investment requirement. There are no minimum investment requirements for subsequent purchases to existing accounts. To be eligible to purchase Class I shares, you must also qualify as specified in How to Choose a Class of
Shares.
ACCOUNT VALUE AND REDEMPTION
If the value of your account falls below $1,000 for Class A, Class C and Class Y shares and below $500,000 for Class I shares after the initial purchase, each Fund reserves the right to redeem your shares after 30 days notice to you.
This does not apply to accounts exempt from purchase minimums as described above.
HOW FUND SHARES ARE PRICED
Each Fund buys or sells its shares at its net asset value, or NAV, per share next determined after receipt of a purchase or redemption plus any applicable sales charge. Each Fund calculates its NAV every day the New York Stock Exchange (NYSE) is open, as of the close of regular trading on the NYSE, which is normally 4:00 p.m.
Eastern Time.
You may enter a buy or sell order when the NYSE is closed for weekends or holidays. If that happens, your price will be the NAV calculated as of the close of the next regular trading session of the NYSE. Each Fund may invest in certain securities which are listed on foreign exchanges that trade on weekends or other days when the
Funds do not price their shares. As a result, the NAV of each Funds shares may change on days when shareholders will not be able to purchase or redeem shares.
Each Funds investments are generally valued based on market quotations. When market quotations are not readily available for a portfolio security, or in the opinion of the Adviser do not reflect the securitys value, a Fund will use the securitys fair value as determined in good faith in accordance with the Funds Fair Value Pricing
Procedures, which have been approved by the Board of Trustees. As a general principle, the current fair value of a security is the amount which a Fund might reasonably expect to receive for the security upon its current sale. The Funds Pricing Committee, whose members are selected by the senior management of the Adviser, is
responsible for recommending fair value procedures to the Board of Trustees and for administering the process used to arrive at fair value prices.
Factors that may cause a Fund to use the fair value of a portfolio security to calculate the Funds NAV include, but are not limited to: (1) market quotations are not readily available because a portfolio security is not traded in a public market or the principal market in which the security trades is closed, (2) trading in a portfolio security
is limited or suspended and not resumed prior to the time at which the Fund calculates its NAV, (3) the market for the relevant security is thin, or the price is stale (
e.g.
, because its price doesnt change in five consecutive business days), (4) the Adviser determines that a market quotation is inaccurate, for example, because price
movements are highly volatile and cannot be verified by a reliable alternative pricing source, or (5) where a significant event affecting the value of a portfolio security is determined to have occurred between the time of the market quotation provided for a portfolio security and the time at which the Fund calculates its NAV.
In determining the fair value of securities, the Pricing Committee will consider, among other factors, the fundamental analytical data relating to the security, the nature and duration of any restrictions on disposition of the security, and the forces influencing the market in which the security is traded.
Foreign securities in which the Funds invest may be traded in markets that close before the time that each Fund calculates its NAV. Foreign securities are normally priced based upon the market quotation of such securities as of the close of their respective principal markets, as adjusted to reflect the Advisers determination of the
impact of events, such as a significant movement in the U.S. markets occurring subsequent to the close of such markets but prior to the time at which the Fund calculates its NAV.
Certain of the Funds portfolio securities are valued by an outside pricing service approved by the Board of Trustees. The pricing service may utilize an automated system incorporating a model based on multiple parameters, including a securitys local closing price (in the case of foreign securities), relevant general and sector indices,
currency fluctuations, and trading
24
in depository receipts and futures, if applicable, and/or research evaluations by its staff, in determining what it believes is the fair valuation of the portfolio securities valued by such pricing service.
There can be no assurance that the Funds could purchase or sell a portfolio security at the price used to calculate the Funds NAV. Because of the inherent uncertainty in fair valuations, and the various factors considered in determining value pursuant to the Funds fair value procedures, there can be significant deviations between a
fair value price at which a portfolio security is being carried and the price at which it is purchased or sold. Furthermore, changes in the fair valuation of portfolio securities may be less frequent, and of greater magnitude, than changes in the price of portfolio securities valued by an independent pricing service, or based on market
quotations.
2. HOW TO CHOOSE A CLASS OF SHARES
The Funds offer four classes of shares with different sales charges and 12b-1 fee schedules, designed to provide you with different purchase options according to your investment needs. Class A and Class C shares are offered to the general public and differ in terms of sales charges and ongoing expenses. Shares of the Money Fund
are not available for exchange with Class C, Class I or Class Y shares. Class C shares automatically convert to Class A shares eight years after each individual purchase. Class I shares are offered to eligible investors primarily through certain financial intermediaries that have entered into a Class I Agreement with Van Eck. The Funds
reserve the right to accept direct investments by eligible investors. Class Y shares are offered only to investors through wrap fee and similar programs offered without a sales charge by certain financial intermediaries and third-party recordkeepers and/or administrators that have entered into a Class Y agreement with Van Eck.
<
CLASS A Shares
are offered at net asset value plus an initial sales charge at time of purchase of up to 5.75% of the public offering price. The initial sales charge is reduced for purchases of $25,000 or more. For further information regarding sales charges, breakpoints and other discounts, please see below. The 12b-1 fee is
0.25% annually.
<
CLASS C Shares
are offered at net asset value with no initial sales charge, but are subject to a contingent deferred redemption charge (CDRC) of 1.00% on all redemptions during the first 12 months after purchase. The CDRC may be waived under certain circumstances; please see Telephone Exchange and below. The
12b-1 fee is 1.00% annually.
<
CLASS I Shares
are offered with no sales charges on purchases, no CDRC, and no 12b-1 fee. To be eligible to purchase Class I (Institutional) shares, you must be an eligible investor that is making or has made a minimum initial investment of at least $1 million (which may be reduced or waived under certain circumstances) in
Class I shares of a Fund. Eligible investors in Class I shares include corporations, foundations, family offices and other institutional organizations; high net worth individuals; or a bank, trust company or similar institution investing for its own account or for the account of a client when such institution has entered into a Class I
agreement with Van Eck and makes Class I shares available to the clients program or plan.
<
CLASS Y Shares
are offered with no sales charges on purchases, no CDRC, and no 12b-1 fee. To be eligible to purchase Class Y shares, you must be an eligible investor in a wrap-fee or other fee-based program, including an Employer-Sponsored Retirement Plan, offered through a financial intermediary that has entered into
a Class Y Agreement with Van Eck, and makes Class Y shares available to that program or plan. An Employer-Sponsored Retirement Plan includes (a) an employer sponsored pension or profit sharing plan that qualifies (a Qualified Plan) under section 401(a) of the Internal Revenue Code of 1986, as amended (the Code),
including Code section 401(k), money purchase pension, profit sharing and defined benefit plans; (b) an ERISA-covered 403(b) plan; and (c) certain non-qualified deferred compensation arrangements that operate in a similar manner to a Qualified Plan, such as 457 plans and executive deferred compensation arrangements, but
not including employer-sponsored IRAs.
Financial intermediaries may offer their clients more than one class of shares of a Fund. Shareholders who own shares of one class of a Fund and who are eligible to invest in another class of the same Fund may be eligible to convert their shares from one class to the other. For additional information, please contact your financial
intermediary or see Class Conversions in the SAI. Investors should consider carefully a Funds share class expenses and applicable sales charges and fees plus any separate transaction and other fees charged by such intermediaries in connection with investing in each available share class before selecting a share class. It is the
responsibility of the financial intermediary and the investor to choose the proper share class and notify DST or Van Eck of that share class at the time of each purchase. More information regarding share class eligibility is available in the How to Buy, Sell, Exchange, or Transfer Shares section of the Prospectus and in Purchase of
Shares in the SAI.
25
SHAREHOLDER INFORMATION (continued)
Unless you are eligible for a waiver, the public offering price you pay when you buy Class A shares of the Fund is the Net Asset Value (NAV) of the shares plus an initial sales charge. The initial sales charge varies depending upon the size of your purchase, as set forth below. No sales charge is imposed where Class A or Class C
shares are issued to you pursuant to the automatic investment of income dividends or capital gains distribution. It is the responsibility of the financial intermediary to ensure that the investor obtains the proper breakpoint discount. Class C, Class I and Class Y do not have an initial sales charge; however, Class A does charge a
contingent deferred sales charge and Class C does charge a contingent deferred redemption charge as set forth below.
Class A Shares Sales Charges
Dollar Amount of Purchase
Sales Charge as a
Percentage to
Offering
Net Amount
Less than $25,000
5.75
%
6.10
%
5.00
%
$25,000 to less than $50,000
5.00
%
5.30
%
4.25
%
$50,000 to less than $100,000
4.50
%
4.70
%
3.90
%
$100,000 to less than $250,000
3.00
%
3.10
%
2.60
%
$250,000 to less than $500,000
2.50
%
2.60
%
2.20
%
$500,000 to less than $1,000,000
2.00
%
2.00
%
1.75
%
$1,000,000 and over
None
2
(1)
Brokers or Agents who receive substantially all of the sales charge for shares they sell may be deemed to be statutory underwriters.
(2)
The Distributor may pay a Finders Fee of 1.00% to eligible brokers and agents on qualified commissionable shares purchased after April 30, 2012 at or above the $1 million breakpoint level. Such shares may be subject to a 1.00% contingent deferred sales charge if redeemed within one year from the date of purchase. For additional information, see Contingent Deferred
Sales Charge for Class A Shares below or contact the Distributor or your financial intermediary.
Class C Shares Sales Charges
Year Since Purchase
Contingent Deferred
First
1.00% of the lesser of NAV or purchase price
Second and thereafter
None
Class C Broker/Agent Compensation: 1.00% (0.75 of 1.00% distribution fee and 0.25 of 1.00% service fee) of the amount purchased at time of investment.
Shares will be redeemed in the following order: (1) shares not subject to the CDRC (dividend reinvestment, etc.), (2) first in, first out.
CONTINGENT DEFERRED SALES CHARGE FOR CLASS A SHARES
Class A shares purchased after April 30, 2012 at or above the $1 million breakpoint in accordance with the sales load schedule identified above (referred to as commissionable shares) that are redeemed within one year of purchase will be subject to a contingent deferred sales charge (CDSC) in the amount of 1.00% of the lesser of
the current value of the shares redeemed or the original purchase price of such shares. The CDSC will be paid to the Distributor as reimbursement for any Finders Fee previously paid by the Distributor to an eligible broker or agent at the time the commissionable shares were purchased and may be waived by the Distributor if the
original purchase did not result in the payment of a Finders Fee. For purposes of calculating the CDSC, shares will be redeemed in the following order: (1) first shares that are not subject to the CDSC (
e.g.
, dividend reinvestment shares and other non-commissionable shares) and (2) then other shares on a first in, first out basis. A
CDSC will not be charged in connection with an exchange of Class A shares into Class A shares (including the Money Fund) of another Van Eck Fund; however, the shares received upon an exchange will be subject to the CDSC if they are subsequently redeemed within one year of the date of the original purchase (subject to the
same terms and conditions described above). For further details regarding eligibility for the $1 million breakpoint, please see Section 3. Sales Charges, Reduced or Waived Sales Charges below.
REDUCED OR WAIVED SALES CHARGES
You may qualify for a reduced or waived sales charge as stated below, or under other appropriate circumstances. You (or your broker or agent) must notify DST or Van Eck at the time of each purchase or redemption whenever a reduced or
26
Percentage of
Brokers or Agents
1
Price
Invested
Redemption Charge (CDRC)
waived sales charge is applicable. The term purchase refers to a single purchase by an individual (including spouse and children under age 21), corporation, partnership, trustee, or other fiduciary for a single trust, estate, or fiduciary account. For further details, see the SAI. The value of shares owned by an individual in Class A and
Class C of each of the Van Eck Funds may be combined for a reduced sales charge in Class A shares only. (The Money Fund cannot be combined for a reduced sales charge in Class A shares.)
In order to obtain a reduced sales charge (
i.e.
, breakpoint discount) or to meet an eligibility minimum, it will be necessary at the time of purchase for you to inform your broker or agent (or DST or Van Eck), of the existence of other accounts in which there are holdings eligible to be aggregated to meet the sales load breakpoints or
eligibility minimums.
The Funds make available information regarding applicable sales loads, breakpoint discounts, reduced or waived sales charges and eligibility minimums, on their website at vaneck.com, free of charge.
FOR CLASS A SHARES
Right of Accumulation
When you buy shares, the amount you purchase will be combined with the value, at current offering price, of any existing Fund shares you own. This total will determine the sales charge level for which you qualify.
Combined Purchases
The combined amounts of your multiple purchases in the Funds on a single day determines the sales charge level for which you qualify.
Letter of Intent
If you plan to make purchases in the Funds within a 13 month period that total an amount equal to a reduced sales charge level, you can establish a Letter of Intent (LOI) for that amount. Under the LOI, your initial and subsequent purchases during that period receive the sales charge level applicable to that total amount. For escrow
provisions and details, see the Application and the SAI.
Persons Affiliated with Van Eck
Trustees, officers, and full-time employees (and their families) of the Funds, Adviser or Distributor may buy without a sales charge. Also, employees (and their spouses and children under age 21) of a brokerage firm or bank that has a selling agreement with Van Eck, and other affiliates and agents, may buy without a sales charge.
Load-waived Programs Through Financial Intermediaries
Financial intermediaries that meet certain requirements and: (i) are compensated by their clients on a fee-only basis, including but not limited to Investment Advisors, Financial Planners, and Bank Trust Departments; or (ii) have entered into an agreement with Van Eck to offer Class A shares through a no-load network or platform, may
buy without a sales charge on behalf of their clients.
Foreign Financial Institutions
Certain foreign financial institutions that have international selling agreements with Van Eck may buy shares with a reduced or waived sales charge for their omnibus accounts on behalf of foreign investors. Shareholders who purchase shares through a foreign financial institution at a fixed breakpoint may pay a greater or lesser sales
charge than if they purchased directly through a U.S. dealer.
Institutional Retirement Programs
Certain financial institutions and third-party recordkeepers and/or administrators who have agreements with Van Eck may buy shares without a sales charge for their accounts on behalf of investors in retirement plans and deferred compensation plans other than IRAs.
Buy-back Privilege
You have the right, once a year, to reinvest proceeds of a redemption from Class A shares of a Fund into that Fund or Class A shares of another Fund within 30 days without a sales charge (excluding the Money Fund). If you invest into the same Fund within 30 days before or after you redeem your shares at a loss, the wash sale
rules apply to disallow for tax purposes a loss realized upon redemption.
FOR CLASS C SHARES
Death or Disability
The CDRC may be waived upon (1) death or (2) disability as defined by the Internal Revenue Code.
27
SHAREHOLDER INFORMATION (continued)
Certain Retirement Distributions
The CDRC may be waived for lump sum or other distributions from IRA, Qualified (Pension and Profit Sharing) Plans, and 403(b) accounts following retirement or at age 70
1
/
2
. It is also waived for distributions from qualified pension or profit sharing plans after employment termination after age 55. In addition, it is waived for shares
redeemed as a tax-free return of an excess contribution.
Automatic Conversion Feature
After eight years, Class C shares of each of the Funds will convert automatically to Class A shares of the respective Fund with no initial sales charge. The eight-year period runs from the last day of the month in which the shares were purchased, or in the case of Class C shares acquired through an exchange, from the last day of the
month in which the original Class C shares were purchased. Class C shares held for eight years are converted to Class A shares on the fifth calendar day of the month following their eight-year anniversary (or the next business day thereafter if the fifth is a non-business day).
FOR CLASS I AND CLASS Y SHARES
No initial sales charge, or CDRC fee is imposed on Class I or Class Y shares. Class I and Class Y are a no-load share class.
4. HOUSEHOLDING OF REPORTS AND PROSPECTUSES
If more than one member of your household is a shareholder of any of the funds in the Van Eck Family of Funds, regulations allow us to deliver single copies of your shareholder reports, prospectuses and prospectus supplements to a shared address for multiple shareholders. For example, a husband and wife with separate accounts
in the same fund who have the same shared address generally receive two separate envelopes containing the same report or prospectus. Under the system, known as householding, only one envelope containing one copy of the same report or prospectus will be mailed to the shared address for the household. You may benefit from
this system in two ways, a reduction in mail you receive and a reduction in fund expenses due to lower fund printing and mailing costs. However, if you prefer to continue to receive separate shareholder reports and prospectuses for each shareholder living in your household now or at any time in the future, please call Account
Assistance at 800-544-4653.
Fund shares may be invested in tax-advantaged retirement plans sponsored by Van Eck or other financial organizations. Retirement plans sponsored by Van Eck use State Street Bank and Trust Company as custodian and must receive investments directly by check or wire using the appropriate Van Eck retirement plan application.
Confirmed trades through a broker or agent cannot be accepted. To obtain applications and helpful information on Van Eck retirement plans, contact your broker or agent or Account Assistance.
Retirement Plans Sponsored by Van Eck:
Traditional IRA
Roth IRA
SEP IRA
Qualified (Pension and Profit Sharing) Plans
TAXATION OF DIVIDENDS AND CAPITAL GAINS DISTRIBUTIONS YOU RECEIVE
For tax-reportable accounts, dividends and capital gains distributions are normally taxable even if they are reinvested. Certain dividends are treated as qualified dividend income, taxable at long-term capital gain rates. Other dividends and short-term capital gains are taxed as ordinary income. Long-term capital gains are taxed at long-
term capital gain rates. Tax laws and regulations are subject to change.
TAXATION OF SHARES YOU SELL
For tax-reportable accounts, when you redeem your shares you may incur a capital gain or loss on the proceeds. The amount of gain or loss, if any, is the difference between the amount you paid for your shares (including reinvested dividends and capital gains distributions) and the amount you receive from your redemption. Be sure
to keep your regular statements; they contain the information necessary to calculate the capital gain or loss. An exchange of shares from one Fund to another will be treated as a sale and purchase of Fund shares. It is therefore a taxable event.
28
COST BASIS REPORTING
As required by law, for shares purchased on and after January 1, 2012 in accounts eligible for 1099-B tax reporting by Van Eck Funds for which tax basis information is available (covered shares), the Van Eck Funds will provide cost basis information to you and the Internal Revenue Service (IRS) for shares using the IRS Tax Form
1099-B. Generally, cost basis is the dollar amount paid to purchase shares, including purchases of shares made by reinvestment of dividends and capital gains distributions, adjusted for various items, such as sales charges and transaction fees, wash sales, and returns of capital.
The cost basis of your shares will be calculated using the Funds default cost basis method of Average Cost, and the Fund will deplete your oldest shares first, unless you instruct the Fund to use a different cost basis method. You may elect the cost basis method that best fits your specific tax situation using Van Ecks Cost Basis
Election Form. It is important that any such election be received in writing from you by the Van Eck Funds before you redeem any covered shares since the cost basis in effect at the time of redemption, as required by law, will be reported to you and the IRS. Particularly, any election or revocation of the Average Cost method must be
received in writing by the Van Eck Funds before you redeem covered shares. The Van Eck Funds will process any of your future redemptions by depleting your oldest shares first (FIFO). If you elect a cost basis method other than Average Cost, the method you chose will not be utilized until shares held prior to January 1, 2012 are
liquidated. Cost basis reporting for non-covered shares will be calculated and reported separately from covered shares. You should carefully review the cost basis information provided by the Fund and make any additional cost basis, holding period, or other adjustments that are required when reporting these amounts on your federal,
state, and local income tax returns. For tax advice specific to your situation, please contact your tax advisor and visit the IRS website at IRS.gov. The Van Eck Funds cannot and do not provide any advice, including tax advice.
To obtain Van Ecks Cost Basis Election Form and to learn more about the cost basis elections offered by the Van Eck Funds, please go to our website at vaneck.com or call Van Eck Account Services at 800-544-4653.
NON-RESIDENT ALIENS
Dividends and short-term capital gains, if any, made to non-resident aliens are subject to the maximum withholding tax (or lower tax treaty rates for certain countries). The IRS considers these dividends U.S. source income. Currently, the Funds are not required to withhold tax from distributions of long-term capital gains or redemption
proceeds if non-resident alien status is properly certified.
7. DIVIDENDS AND CAPITAL GAINS DISTRIBUTIONS
Dividends and capital gains distributions are generally declared and paid annually in December. See your tax adviser for details. Short-term capital gains are treated like dividends and follow that schedule. Occasionally, a dividend and/or capital gain distribution may be made outside of the normal schedule.
Dividends and Capital Gains Distribution Schedule
Fund
Dividends and
Distribution of
Emerging Markets Fund
December
December
Global Hard Assets Fund
December
December
International Investors Gold Fund
December
December
Dividends and Capital Gains Distributions Reinvestment Plan
Dividends and/or distributions are automatically reinvested into your account without a sales charge, unless you elect a cash payment. You may elect cash payment either on your original Account Application, or by calling Account Assistance at 800-544-4653.
Divmove
You can have your cash dividends from a Class A Fund automatically invested in Class A shares of another Van Eck Fund. Cash dividends are invested on the payable date, without a sales charge. For details and an Application, call Account Assistance.
29
Short-Term Capital Gains
Long-Term Capital Gains
SHAREHOLDER INFORMATION (continued)
30
INFORMATION ABOUT FUND MANAGEMENT
INVESTMENT ADVISER
Van Eck Associates Corporation (the Adviser), 335 Madison Avenue, New York, New York 10017 has been an investment adviser since 1955 and also acts as adviser or sub-adviser to other mutual funds, exchange-traded funds, other pooled investment vehicles and separate accounts.
John C. van Eck and members of his immediate family own 100% of the voting stock of the Adviser. As of December 31, 2011, the Advisers assets under management were approximately $33.1 billion.
Fees paid to the Adviser:
Emerging Markets Fund pays the Adviser a monthly fee at the annual rate of 0.75% of average daily net assets. Global Hard Assets Fund pays the Adviser a monthly fee at the annual rate of 1.00% of the first $2.5 billion of average daily net assets of the Fund and 0.90% of average daily net assets in
excess of $2.5 billion, which includes the fees paid for accounting and administrative services. International Investors Gold Fund pays the Adviser a monthly fee at the annual rate of 0.75% on the first $500 million of average daily net assets of the Fund, 0.65% on the next $250 million of average daily net assets and 0.50% of average
daily net assets in excess of $750 million. The Adviser also performs accounting and administrative services for Emerging Markets Fund and International Investors Gold Fund. For these services, Emerging Markets Fund pays the Adviser a monthly fee at the annual rate of 0.25% of average daily net assets and International Investors
Gold Fund pays the Adviser a monthly fee at the annual rate of 0.25% on the first $750 million of average daily net assets and 0.20% of average daily net assets in excess of $750 million. For purposes of calculating these fees for the International Investors Gold Fund, the net assets of the Fund include the value of the Funds interest
in the Subsidiary. The Subsidiary does not pay the Adviser a fee for managing the Subsidiarys portfolio.
The Adviser has agreed to waive fees and/or pay expenses for Emerging Markets Fund to the extent necessary to prevent the operating expenses of Emerging Markets Fund (excluding acquired fund fees and expenses, interest expense, trading expenses, dividends on securities sold short, taxes and extraordinary expenses) from
exceeding 1.95% for Class A, 2.50% for Class C, 1.25% for Class I, and 1.70% for Class Y of Emerging Markets Funds average daily net assets per year until May 1, 2013. During such time, the expense limitation is expected to continue until the Board of Trustees acts to discontinue all or a portion of such expense limitation.
The Adviser has agreed to waive fees and/or pay expenses for Global Hard Assets Fund to the extent necessary to prevent the operating expenses of Global Hard Assets Fund (excluding acquired fund fees and expenses, interest expense, trading expenses, dividends on securities sold short, taxes and extraordinary expenses) from
exceeding 1.38% for Class A, 2.20% for Class C, 1.00% for Class I, and 1.13% for Class Y of Global Hard Assets Funds average daily net assets per year until May 1, 2013. During such time, the expense limitation is expected to continue until the Board of Trustees acts to discontinue all or a portion of such expense limitation.
The Adviser has agreed to waive fees and/or pay expenses for International Investors Gold Fund to the extent necessary to prevent the operating expenses of International Investors Gold Fund (excluding acquired fund fees and expenses, interest expense, trading expenses, dividends on securities sold short, taxes and extraordinary
expenses) from exceeding 1.45% for Class A, 2.20% for Class C, 1.00% for Class I, and 1.20% for Class Y of International Investors Gold Funds average daily net assets per year until May 1, 2013. During such time, the expense limitation is expected to continue until the Board of Trustees acts to discontinue all or a portion of such
expense limitation.
The Adviser also has agreed to waive fees and/or pay expenses for each Fund to the extent necessary to prevent the operating expenses of a Funds Class Y shares from exceeding the operating expenses of the Funds Class A shares.
For each Funds most recent fiscal year, the advisory fee paid to the Adviser was as follows:
Van Eck Funds
As a % of average
Emerging Markets Fund
0.75%
Global Hard Assets Fund
0.95%
International Investors Gold Fund
0.60%
In September 2009, the Adviser made payments to the Emerging Markets Fund, the Global Hard Assets Fund and the International Investors Gold Fund in the amounts of $248,219, $463,316 and $5,000,000, respectively, in connection with past market timing activities of certain investors.
A discussion regarding the basis for the Boards approval of the investment advisory agreement of each Fund is available in each Funds semi-annual report to shareholders for the six months ended June 30, 2011.
31
daily net assets
SHAREHOLDER INFORMATION (continued)
PORTFOLIO MANAGERS AND INVESTMENT TEAM MEMBERS
EMERGING MARKETS FUND
Portfolio Manager and Investment Team Members
The Funds portfolio manager and investment team members are responsible for the day-to-day portfolio management of the Fund. The portfolio manager oversees all investment research and decisions related to fund portfolio strategy and allocations, while the investment team members conduct ongoing investment research and
analysis.
David A. Semple.
Mr. Semple is portfolio manager of the Fund and director of international equity. He has been with the Adviser since 1998 and is currently the portfolio manager of various funds advised by the Adviser. Mr. Semple is responsible for asset allocation and stock selection in global emerging markets.
Edward M. Kuczma, CFA.
Mr. Kuczma is an investment team member. He joined the Adviser in 2004. He currently serves on the investment team for various funds advised by the Adviser.
Angus Shillington.
Mr. Shillington is an investment team member. He joined the Adviser in 2009. He currently serves on the investment team for various funds advised by the Adviser. Prior to joining the Adviser, Mr. Shillington was the Head of International Equity at ABN Amro from 2006 to 2008 and Deck Head/Managing Director at BNP
Paribas from 2001 to 2006.
GLOBAL HARD ASSETS FUND
Portfolio Managers and Investment Team Members
The Funds portfolio managers and investment team members are responsible for the day-to-day portfolio management of the Fund. The portfolio managers oversee all investment research and decisions related to fund portfolio strategy and allocations, while the investment team members conduct ongoing investment research and
analysis.
Charles T. Cameron.
Mr. Cameron is a co-portfolio manager of the Fund and head of trading and portfolio strategy. He has been with the Adviser since 1995 and has over 28 years of experience in the international and financial markets. Prior to joining Van Eck, Mr. Cameron was a trader in both the Eurobond and emerging market
debt for Standard Charter.
Shawn Reynolds.
Mr. Reynolds is a co-portfolio manager of the Fund and head of company research. He has been with the Adviser since 2005 and has over 23 years of experience in the international and financial markets. Prior to joining Van Eck, Mr. Reynolds was an analyst covering U.S. oil and gas exploration and production
companies at Petrie Parkman & Co. He has also served as an analyst with Credit Suisse First Boston, Goldman Sachs and Lehman Brothers.
Imaru Casanova.
Ms. Casanova is an investment team member and a senior precious metals analyst. She has been with the Adviser since 2011. Prior to joining Van Eck, Ms. Casanova was managing director and senior equity research analyst at McNicoll Lewis & Vlak, responsible for establishing their metals and mining research
department, with a focus on undercovered and undiscovered precious metals companies. She also covered the gold mining sector as equity research analyst at Barnard Jacobs Mellet USA and BMO Capital Markets.
Joseph M. Foster.
Mr. Foster is an investment team member and a senior precious metals analyst. He has been with the Adviser since 1996 and is currently the portfolio manager for various funds advised by the Adviser. Prior to joining Van Eck, Mr. Foster was a senior geologist at Pinson Mining Company, responsible for district
exploration, reserve/resource delineation and modeling, and geologic input and/or strategy on mining issues.
Samuel L. Halpert.
Mr. Halpert is an investment team member and a senior analyst covering agriculture, timber, steel and coal. He has been with the Adviser since 2000. Prior to joining Van Eck, Mr. Halpert was an analyst/trader for a global macro hedge fund at Goldman Sachs & Co. He also served as vice president of institutional
futures sales at Salomon Smith Barney.
Geoffrey R. King, CFA.
Mr. King is an investment team member and an energy analyst specializing in exploration and production, refining, drilling and alternative energy markets. He has been with the Adviser since 2007. Prior to joining Van Eck, Mr. King was an analyst in the energy investment banking group at Merrill Lynch.
Gregory F. Krenzer, CFA.
Mr. Krenzer is an investment team member and serves as senior trader and risk manager. He has been with the Adviser since 1994 and has over 17 years experience in the international and financial markets. Prior to joining Van Eck, Mr. Krenzer was an investment researcher in the high net worth group at
Merrill Lynch.
Charl P. de M. Malan.
Mr. Malan is an investment team member and a senior base and industrial metals analyst. He has been with the Adviser since 2003. Prior to joining Van Eck, Mr. Malan was an equity research sales analyst specializing in South African mining, natural resources and financial sectors at JPMorgan Chase. He also
served an equity research analyst and junior portfolio manager at Standard Corporate and Merchant Bank (Asset Management), South Africa.
Mark A. Miller.
Mr. Miller is an investment team member and an energy analyst specializing in oil services and exploration and production, with a focus on the energy sector external to the U.S. He has been with the Adviser since 2007. Prior to
32
joining Van Eck, Mr. Miller was a high-yield analyst for Bear Stearns. He also served as a petro-physicist for Dresser Atlas and field engineer for Schlumberger.
Edward W. Mitby, CFA.
Mr. Mitby is an investment team member and a senior analyst specializing in alternative energy, industrials, infrastructure and power generation. He has been with the Adviser since 2008. Prior to joining Van Eck, Mr. Mitby was a senior research analyst with Sailfish Capital Partners. He also served as a
proprietary trading portfolio manager at Washington Mutual.
INTERNATIONAL INVESTORS GOLD FUND
Portfolio Manager and Investment Team Members
The Funds portfolio manager and investment team members are responsible for the day-to-day portfolio management of the Fund. The portfolio manager oversees all investment research and decisions related to fund portfolio strategy and allocations, while the investment team member conducts ongoing investment research and
analysis.
Joseph M. Foster.
Mr. Foster is portfolio manager of the Fund and a senior precious metals analyst. He has been with the Adviser since 1996 and is currently the portfolio manager for various funds advised by the Adviser.
Imaru Casanova.
Ms. Casanova is an investment team member and a senior precious metals analyst. She joined the Adviser in 2011 and currently serves on the investment team for various funds advised by the Adviser.
Charl P. de M. Malan.
Mr. Malan is an investment team member and a senior base and industrial metals analyst. He joined the Adviser in 2003 and currently serves on the investment team for various funds advised by the Adviser.
The SAI provides additional information about the above Portfolio Managers and Investment Team Members, their compensation, other accounts they manage, and their securities ownership in the Funds.
PLAN OF DISTRIBUTION (12b-1 PLAN)
Each of the Funds has adopted a Plan of Distribution pursuant to Rule 12b-1 under the Act that allows the Fund to pay distribution fees for the sale and distribution of its shares. Of the amounts expended under the plan for the fiscal year ended December 31, 2011 for all Van Eck Funds, approximately 87% was paid to Brokers and
Agents who sold shares or serviced accounts of Fund shareholders. The remaining 13% was retained by the Distributor to pay expenses such as printing and mailing prospectuses and sales material. Because these fees are paid out of the Funds assets on an on-going basis, over time these fees will increase the cost of your
investment and may cost you more than paying other types of sales charges. Class I and Class Y shares do not have 12b-1 fees. For a complete description of the Plan of Distribution, please see Plan of Distribution (12B-1 PLAN) in the SAI.
Van Eck Funds Annual 12b-1 Schedule
Fee to Fund
Payment to Dealer
Emerging Markets Fund-A
0.25
%
0.25
%
Emerging Markets Fund-C
1.00
%
1.00
%*
Global Hard Assets Fund-A
0.25
%
0.25
%
Global Hard Assets Fund-C
1.00
%
1.00
%*
International Investors Gold Fund-A
0.25
%
0.25
%
International Investors Gold Fund-C
1.00
%
1.00
%*
*
Class C payment to brokers or agents begins to accrue after the 12th month following the purchase trade date. Each purchase must age that long or there is no payment. Shares purchased due to the automatic reinvestment of dividends and capital gains distributions do not age and begin accruing 12b-1 fees immediately.
THE TRUST
For more information on the Van Eck Funds (the Trust), the Trustees and the Officers of the Trust, see General Information, Description of the Trust and Trustees and Officers in the SAI.
EXPENSES
Each Fund bears all expenses of its operations other than those incurred by the Adviser or its affiliate under the Advisory and/or Administrative Agreement with the Trust. For a more complete description of Fund expenses, please see the SAI.
THE DISTRIBUTOR
Van Eck Securities Corporation, 335 Madison Avenue, New York, NY 10017 (the Distributor), a wholly owned subsidiary of the Adviser, has entered into a Distribution Agreement with the Trust.
33
SHAREHOLDER INFORMATION (continued)
The Distributor generally sells and markets shares of the Funds through intermediaries, such as broker-dealers. The intermediaries selling the Funds shares are compensated from sales charges and from 12b-1 fees and/or shareholder services fees paid directly and indirectly by the Funds.
In addition, the Distributor may pay certain intermediaries, out of its own resources and not as an expense of the Funds, additional cash or non-cash compensation as an incentive to intermediaries to promote and sell shares of the Funds and other mutual funds distributed by the Distributor. These payments are commonly known as
revenue sharing. The benefits that the Distributor may receive when it makes these payments include, among other things, placing the Funds on the intermediarys sales system and/or preferred or recommended fund list, offering the Funds through the intermediarys advisory or other specialized programs, and/or access (in some
cases on a preferential basis over other competitors) to individual members of the intermediarys sales force. Such payments may also be used to compensate intermediaries for a variety of administrative and shareholders services relating to investments by their customers in the Funds.
The fees paid by the Distributor to intermediaries may be calculated based on the gross sales price of shares sold by an intermediary, the net asset value of shares held by the customers of the intermediary, or otherwise. These fees, may, but are not normally expected to, exceed in the aggregate 0.50% of the average net assets of
the funds attributable to a particular intermediary on an annual basis.
The Distributor may also provide intermediaries with additional cash and non-cash compensation, which may include financial assistance to intermediaries in connection with conferences, sales or training programs for their employees, seminars for the public and advertising campaigns, technical and systems support, attendance at sales
meetings and reimbursement of ticket charges. In some instances, these incentives may be made available only to intermediaries whose representatives have sold or may sell a significant number of shares.
Intermediaries may receive different payments, based on a number of factors including, but not limited to, reputation in the industry, sales and asset retention rates, target markets, and customer relationships and quality of service. No one factor is determinative of the type or amount of additional compensation to be provided. Financial
intermediaries that sell Funds shares may also act as a broker or dealer in connection with execution of transactions for the Funds portfolios. The Funds and the Adviser have adopted procedures to ensure that the sales of the Funds shares by an intermediary will not affect the selection of brokers for execution of portfolio
transactions.
Not all intermediaries are paid the same to sell mutual funds. Differences in compensation to intermediaries may create a financial interest for an intermediary to sell shares of a particular mutual fund, or the mutual funds of a particular family of mutual funds. Before purchasing shares of any Funds, you should ask your intermediary or
its representative about the compensation in connection with the purchase of such shares, including any revenue sharing payments it receives from the Distributor.
34
The financial highlights tables that follow are intended to help you understand each Funds financial performance for the past five years or as indicated. Certain information reflects financial results for a single Fund share. The total returns in the table represent the rate that an investor would have earned or lost on an investment in the
Fund (assuming reinvestment of all dividends and distributions). During the 12-month period ended December 31, 2008, the performance of the Class I shares of the Fund was materially affected by significant redemptions of Class I shares during that period. This information has been audited by Ernst & Young LLP, the Trusts
independent registered public accounting firm, whose report, along with the Funds financial statements are included in the Funds annual report, which is available upon request.
35
EMERGING MARKETS FUND
FINANCIAL HIGHLIGHTS
Class A
Year Ended December 31,
2011
2010
2009
2008
2007
Net asset value, beginning of year
$
13.69
$
10.71
$
4.86
$
16.49
$
13.27
Income from investment operations:
Net investment loss
(0.01
)(d)
(0.04
)
(0.02
)
(b)
(0.02
)
Net realized and unrealized gain (loss) on investments
(3.63
)
3.06
5.81
(11.23
)
4.75
Payment by the Adviser
0.06
(c)
Total from investment operations
(3.64
)
3.02
5.85
(11.23
)
4.73
Less dividends and distributions from:
Net investment income
(0.13
)
(0.04
)
(0.01
)
Net realized gains
(0.39
)
(1.51
)
Total distributions
(0.13
)
(0.04
)
(0.40
)
(1.51
)
Net asset value, end of year
$
9.92
$
13.69
$
10.71
$
4.86
$
16.49
Total return (a)
(26.58
)%
28.17
%
120.37
%(c)
(68.12
)%
35.66
%
Ratios/Supplemental Data
Net assets, end of year (000s)
$
52,253
$
108,019
$
91,059
$
31,768
$
156,203
Ratio of gross expenses to average net assets
1.76
%
1.74
%
1.81
%
1.80
%
1.70
%
Ratio of net expenses to average net assets
1.76
%
1.74
%
1.81
%
1.80
%
1.70
%
Ratio of net expenses, excluding interest expense, to average net assets
1.76
%
1.74
%
1.81
%
1.80
%
1.70
%
Ratio of net investment income (loss) to average net assets
(0.11
)%
(0.31
)%
(0.26
)%
0.03
%
(0.22
)%
Portfolio turnover rate
94
%
110
%
63
%
48
%
66
%
Class C
Year Ended December 31,
2011
2010
2009
2008
2007
Net asset value, beginning of year
$
13.01
$
10.26
$
4.68
$
16.06
$
13.05
Income from investment operations:
Net investment loss
(0.10
)(d)
(0.10
)
(0.06
)
(0.09
)
(0.07
)
Net realized and unrealized gain (loss) on investments
(3.42
)
2.89
5.58
(10.89
)
4.59
Payment by the Adviser
0.06
(c)
Total from investment operations
(3.52
)
2.79
5.58
(10.98
)
4.52
Less dividends and distributions from:
Net investment income
(0.13
)
(0.04
)
(0.01
)
Net realized gains
(0.39
)
(1.51
)
Total distributions
(0.13
)
(0.04
)
(0.40
)
(1.51
)
Net asset value, end of year
$
9.36
$
13.01
$
10.26
$
4.68
$
16.06
Total return (a)
(27.05
)%
27.16
%
119.23
%(c)
(68.40
)%
34.65
%
Ratios/Supplemental Data
Net assets, end of year (000s)
$
16,611
$
27,859
$
19,487
$
7,807
$
33,802
Ratio of gross expenses to average net assets
2.70
%
2.61
%
2.97
%
2.49
%
2.38
%
Ratio of net expenses to average net assets
2.50
%
2.48
%
2.49
%
2.49
%
2.38
%
Ratio of net expenses, excluding interest expense, to average net assets
2.50
%
2.48
%
2.49
%
2.49
%
2.38
%
Ratio of net investment loss to average net assets
(0.86
)%
(1.07
)%
(0.92
)%
(0.61
)%
(0.86
)%
Portfolio turnover rate
94
%
110
%
63
%
48
%
66
%
(a)
Total return is calculated assuming an initial investment made at the net asset value at the beginning of the year, reinvestment of any dividends and distributions at net asset value on the dividend/distributions payment date and a redemption on the last day of the year. The return does not reflect the deduction of taxes that a shareholder would pay on Fund dividends/
distributions or the redemption of Fund shares.
(b)
Amount represents less than $0.005 per share.
(c)
For the year ended December 31, 2009, 0.91% of the Class A and 0.94% of Class C total return, representing $0.06 per share for Class A and Class C, consisted of a payment by the Adviser in connection with past market timing activities and a reimbursement for an investment loss.
(d)
Calculation based upon average shares outstanding.
36
For a share outstanding throughout each year:
Class I
2007(a)
Year Ended December 31,
2011
2010
2009
2008
Net asset value, beginning of period
$
14.01
$
10.91
$
4.92
$
16.49
$
16.49
Income from investment operations:
Net investment income
0.05
(d)
0.02
0.06
0.06
Net realized and unrealized gain (loss) on investments
(3.72
)
3.12
5.86
(11.23
)
Payment by the Adviser
0.07
(e)
Total from investment operations
(3.67
)
3.14
5.99
(11.17
)
Less dividends and distributions from:
Net investment income
(0.13
)
(0.04
)
(0.01
)
Net realized gains
(0.39
)
Total dividends and distributions
(0.13
)
(0.04
)
(0.40
)
Net asset value, end of period
$
10.21
$
14.01
$
10.91
$
4.92
$
16.49
Total return (c)
(26.19
)%
28.75
%
121.75
%(e)
(67.82
)%
0.00
%(g)
Ratios/Supplemental Data
Net assets, end of period (000s)
$
3,019
$
4,079
$
3,097
$
1,708
$
10
Ratio of gross expenses to average net assets
2.22
%
2.23
%
2.54
%
1.96
%
0.00
%(f)
Ratio of net expenses to average net assets
1.25
%
1.25
%
1.24
%
1.16
%
0.00
%(f)
Ratio of net expenses, excluding interest expense, to average net assets
1.25
%
1.25
%
1.24
%
1.15
%
0.00
%(f)
Ratio of net investment income to average net assets
0.38
%
0.18
%
0.56
%
1.29
%
0.00
%(f)
Portfolio turnover rate
94
%
110
%
63
%
48
%
0
%(g)
Class Y
Year Ended
2011
2010(b)
Net asset value, beginning of period
$
13.68
$
11.30
Income from investment operations:
Net investment loss
(0.06
)(g)
(0.03
)
Net realized and unrealized gain (loss) on investments
(3.57
)
2.45
Total from investment operations
(3.63
)
2.42
Less distributions from:
Net investment income
(0.13
)
(0.04
)
Net asset value, end of period
$
9.92
$
13.68
Total return (c)
(26.53
)%
21.48
%(g)
Ratios/Supplemental Data
Net assets, end of period (000s)
$
10,990
$
5,920
Ratio of gross expenses to average net assets
2.08
%
1.73
%(f)
Ratio of net expenses to average net assets
1.70
%
1.70
%(f)
Ratio of net expenses, excluding interest expense, to average
net assets
1.70
%
1.70
%(f)
Ratio of net investment loss to average net assets
(0.54
)%
(0.77
)%(f)
Portfolio turnover rate
94
%
110
%(g)
(a)
For the period December 31, 2007 (commencement of operations) through December 31, 2007.
(b)
For the period April 30, 2010 (commencement of operations) through December 31, 2010.
(c)
Total return is calculated assuming an initial investment made at the net asset value at the beginning of the period, reinvestment of any dividends and distributions at net asset value on the dividend/distributions payment date and a redemption on the last day of the period. The return does not reflect the deduction of taxes that a shareholder would pay on Fund dividends/
distributions or the redemption of Fund shares.
(d)
Calculation based upon average shares outstanding.
(e)
For the year ended December 31, 2009, 1.11% of the Class I total return, representing $0.07 per share, consisted of a payment by the Adviser in connection with past market timing activities and a reimbursement for an investment loss.
(f)
Annualized
(g)
Not annualized
37
December 31,
GLOBAL HARD ASSETS FUND
FINANCIAL HIGHLIGHTS
Class A
Year Ended December 31,
2011
2010
2009
2008
2007
Net asset value, beginning of year
$
52.33
$
40.92
$
26.84
$
48.52
$
38.07
Income from investment operations:
Net investment loss
(0.18
)(b)
(0.20
)(b)
(0.15
)
(0.07
)
(0.13
)
Net realized and unrealized gain (loss) on investments
(8.52
)
11.83
14.22
(21.61
)
16.36
Payment by the Adviser
0.01
(c)
Total from investment operations
(8.70
)
11.63
14.08
(21.68
)
16.23
Less distributions from:
Net investment income
(0.05
)
(0.22
)
Net realized gains
(0.24
)
(5.78
)
Total distributions
(0.29
)
(0.22
)
(5.78
)
Net asset value, end of year
$
43.34
$
52.33
$
40.92
$
26.84
$
48.52
Total return (a)
(16.63
)%
28.43
%
52.46
%(c)
(44.68
)%
42.62
%
Ratios/Supplemental Data
Net assets, end of year (000s)
$
1,673,303
$
2,085,492
$
1,240,769
$
410,617
$
697,604
Ratio of gross expenses to average net assets
1.37
%
1.43
%
1.49
%
1.46
%
1.43
%
Ratio of net expenses to average net assets
1.37
%
1.40
%
1.46
%
1.46
%
1.43
%
Ratio of net expenses, excluding interest expense, to average net assets
1.37
%
1.40
%
1.46
%
1.45
%
1.43
%
Ratio of net investment loss to average net assets
(0.36
)%
(0.47
)%
(0.62
)%
(0.17
)%
(0.36
)%
Portfolio turnover rate
40
%
66
%
86
%
73
%
89
%
Class C
Year Ended December 31,
2011
2010
2009
2008
2007
Net asset value, beginning of year
$
47.82
$
37.70
$
24.92
$
45.41
$
36.16
Income from investment operations:
Net investment loss
(0.51
)(b)
(0.48
)(b)
(0.34
)
(0.46
)
(0.37
)
Net realized and unrealized gain (loss) on investments
(7.73
)
10.82
13.11
(20.03
)
15.40
Payment by the Adviser
0.01
(c)
Total from investment operations
(8.24
)
10.34
12.78
(20.49
)
15.03
Less distributions from:
Net investment income
(0.05
)
(0.22
)
Net realized gains
(0.24
)
(5.78
)
Total distributions
(0.29
)
(0.22
)
(5.78
)
Net asset value, end of year
$
39.29
$
47.82
$
37.70
$
24.92
$
45.41
Total return (a)
(17.23
)%
27.44
%
51.28
%(c)
(45.12
)%
41.55
%
Ratios/Supplemental Data
Net assets, end of year (000s)
$
515,433
$
557,023
$
358,114
$
139,234
$
283,246
Ratio of gross expenses to average net assets
2.12
%
2.16
%
2.30
%
2.20
%
2.19
%
Ratio of net expenses to average net assets
2.12
%
2.16
%
2.26
%
2.20
%
2.19
%
Ratio of net expenses, excluding interest expense, to average net assets
2.12
%
2.16
%
2.26
%
2.19
%
2.19
%
Ratio of net investment loss to average net assets
(1.10
)%
(1.23
)%
(1.42
)%
(0.92
)%
(1.11
)%
Portfolio turnover rate
40
%
66
%
86
%
73
%
89
%
(a)
Total return is calculated assuming an initial investment made at the net asset value at the beginning of the year, reinvestment of any dividends and distributions at net asset value on the dividend/distributions payment date and a redemption on the last day of the year. The return does not reflect the deduction of taxes that a shareholder would pay on Fund dividends/
distributions or the redemption of Fund shares.
(b)
Calculated based upon weighted average shares outstanding.
(c)
For the year ended December 31, 2009, 0.03% of the Class A and Class C total return, representing $0.01 per share for Class A and Class C, consisted of a payment by the Adviser in connection with the past market timing activities.
38
For a share outstanding throughout each period:
Class I
Year Ended December 31,
2011
2010
2009
2008
2007
Net asset value, beginning of year
$
53.40
$
41.59
$
27.14
$
48.91
$
38.19
Income from investment operations:
Net investment income (loss)
0.01
(c)
(0.02
)(c)
(0.04
)
0.15
0.02
Net realized and unrealized gain (loss) on investments
(8.72
)
12.05
14.48
(21.92
)
16.48
Payment by the Adviser
0.01
(d)
Total from investment operations
(8.71
)
12.03
14.45
(21.77
)
16.50
Less distributions from:
Net investment income
(0.05
)
(0.22
)
Net realized gains
(0.24
)
(5.78
)
Total distributions
(0.29
)
(0.22
)
(5.78
)
Net asset value, end of year
$
44.40
$
53.40
$
41.59
$
27.14
$
48.91
Total return (b)
(16.31
)%
28.93
%
53.24
%(d)
(44.51
)%
43.19
%
Ratios/Supplemental Data
Net assets, end of year (000s)
$
1,637,440
$
1,650,962
$
639,887
$
25,648
$
31,652
Ratio of gross expenses to average net assets
1.01
%
1.05
%
1.10
%
1.17
%
1.17
%
Ratio of net expenses to average net assets
1.00
%
1.00
%
1.00
%
1.00
%
1.02
%
Ratio of net expenses, excluding interest expense, to average net assets
1.00
%
1.00
%
1.00
%
1.00
%
1.02
%
Ratio of net investment income (loss) to average net assets
0.02
%
(0.04
)%
(0.32
)%
0.31
%
0.04
%
Portfolio turnover rate
40
%
66
%
86
%
73
%
89
%
Class Y
Year Ended
2011
2010(a)
Net asset value, beginning of period
$
52.41
$
43.69
Income from investment operations:
Net investment income (loss)
0.01
(c)
(0.03
)(c)
Net realized and unrealized gain (loss) on investments
(8.63
)
8.97
Total from investment operations
(8.62
)
8.94
Less distributions from:
Net investment income
(0.05
)
(0.22
)
Net realized gains
(0.24
)
Total distributions
(0.29
)
(0.22
)
Net asset value, end of period
$
43.50
$
52.41
Total return (b)
(16.45
)%
20.47
%(e)
Ratios/Supplemental Data
Net assets, end of period (000s)
$
274,811
$
61,210
Ratio of gross expenses to average net assets
1.17
%
1.10
%(f)
Ratio of net expenses to average net assets
1.13
%
1.10
%(f)
Ratio of net expenses, excluding interest expense, to average
net assets
1.13
%
1.10
%(f)
Ratio of net investment income (loss) to average net assets
0.01
%
(0.10
)%(f)
Portfolio turnover rate
40
%
66
%(e)
(a)
For the period April 30, 2010 (commencement of operations) through December 31, 2010.
(b)
Total return is calculated assuming an initial investment made at the net asset value at the beginning of period, reinvestment of any dividends and distributions at net asset value on the dividend/distributions payment date and a redemption on the last day of the period. The return does not reflect the deduction of taxes that a shareholder would pay on Fund dividends/
distributions or the redemption of Fund shares.
(c)
Calculated based upon average shares outstanding.
(d)
For the year ended December 31, 2009, 0.03% of the Class I representing $0.01 per share, consisted of a payment by the Adviser in connection with the past market timing activities.
(e)
Not annualized
(f)
Annualized
39
December 31,
INTERNATIONAL INVESTORS GOLD FUND
FINANCIAL HIGHLIGHTS
Class A
Year Ended December 31,
2011
2010
2009
2008
2007
Net asset value, beginning of year
$
24.70
$
18.92
$
11.98
$
17.82
$
16.00
Income from investment operations:
Net investment income (loss)
(0.16
)(b)
(0.22
)(b)
(0.07
)
(0.13
)
0.16
Net realized and unrealized gain (loss) on investments
(5.15
)
9.78
7.58
(5.12
)
4.23
Payment by the Adviser
0.11
(c)
Total from investment operations
(5.31
)
9.56
7.62
(5.25
)
4.39
Less distributions from:
Net investment income
(0.31
)
(2.09
)
(0.68
)
(0.09
)
(1.54
)
Net realized gains
(1.69
)
(0.50
)
(1.03
)
Total distributions
(0.31
)
(3.78
)
(0.68
)
(0.59
)
(2.57
)
Net asset value, end of year
$
19.08
$
24.70
$
18.92
$
11.98
$
17.82
Total return (a)
(21.52
)%
50.99
%
63.75
%(c)
(29.03
)%
27.41
%
Ratios/Supplemental Data
Net assets, end of year (000s)
$
988,039
$
1,359,014
$
799,296
$
436,565
$
616,260
Ratio of gross expenses to average net assets
1.20
%
1.25
%
1.43
%
1.45
%
1.46
%
Ratio of net expenses to average net assets
1.20
%
1.25
%
1.43
%
1.45
%
1.46
%
Ratio of net expenses, excluding interest expense, to average net assets
1.20
%
1.25
%
1.43
%
1.45
%
1.46
%
Ratio of net investment loss to average net assets
(0.68
)%
(0.98
)%
(1.10
)%
(0.76
)%
(0.87
)%
Portfolio turnover rate
24
%
33
%
19
%
30
%
35
%
Class C
Year Ended December 31,
2011
2010
2009
2008
2007
Net asset value, beginning of year
$
23.13
$
18.01
$
11.45
$
17.21
$
15.61
Income from investment operations:
Net investment income (loss)
(0.31
)(b)
(0.36
)(b)
(0.04
)
(0.30
)
0.26
Net realized and unrealized gain (loss) on investments
(4.80
)
9.26
7.08
(4.87
)
3.89
Payment by the Adviser
0.10
(c)
Total from investment operations
(5.11
)
8.90
7.14
(5.17
)
4.15
Less distributions from:
Net investment income
(0.31
)
(2.09
)
(0.58
)
(0.09
)
(1.52
)
Net realized gains
(1.69
)
(0.50
)
(1.03
)
Total distributions
(0.31
)
(3.78
)
(0.58
)
(0.59
)
(2.55
)
Net asset value, end of year
$
17.71
$
23.13
$
18.01
$
11.45
$
17.21
Total return (a)
(22.11
)%
49.89
%
62.52
%(c)
(29.54
)%
26.56
%
Ratios/Supplemental Data
Net assets, end of year (000s)
$
221,214
$
285,973
$
131,609
$
54,419
$
63,207
Ratio of gross expenses to average net assets
1.96
%
1.95
%
2.31
%
2.20
%
2.12
%
Ratio of net expenses to average net assets
1.96
%
1.95
%
2.27
%
2.20
%
2.12
%
Ratio of net expenses, excluding interest expense, to average net assets
1.96
%
1.95
%
2.27
%
2.20
%
2.12
%
Ratio of net investment loss to average net assets
(1.43
)%
(1.68
)%
(1.94
)%
(1.49
)%
(1.55
)%
Portfolio turnover rate
24
%
33
%
19
%
30
%
35
%
(a)
Total return is calculated assuming an initial investment made at the net asset value at the beginning of the year, reinvestment of any dividends and distributions at net asset value on the dividend/distributions payment date and a redemption on the last day of the year. The return does not reflect the deduction of taxes that a shareholder would pay on Fund dividends/
distributions or the redemption of Fund shares.
(b)
Calculated based upon weighted average shares outstanding.
(c)
For the year ended December 31, 2009, 0.58% of the Class A and Class C total return, representing $0.11 for Class A and $0.10 for Class C per share, consisted of a payment by the Adviser in connection with the past market timing activities and a reimbursement for an investment loss. Additionally, 1.49% of Class A and Class C total return resulted from settlement
payments received from third parties by the Fund.
40
For a share outstanding throughout each period:
Class I
Year Ended December 31,
2011
2010
2009
2008
2007
Net asset value, beginning of period
$
29.97
$
22.34
$
14.05
$
17.95
$
16.09
Income from investment operations:
Net investment income (loss)
(0.10(c
)
(0.20
)(c)
0.46
(0.04
)
0.81
Net realized and unrealized gain (loss) on investments
(6.28
)
11.61
8.42
(3.27
)
3.69
Payment by the Adviser
0.14
(d)
Total from investment operations
(6.38
)
11.41
9.02
(3.31
)
4.50
Less distributions from:
Net investment income
(0.31
)
(2.09
)
(0.73
)
(0.09
)
(1.61
)
Net realized gains
(1.69
)
(0.50
)
(1.03
)
Total distributions
(0.31
)
(3.78
)
(0.73
)
(0.59
)
(2.64
)
Net asset value, end of period
$
23.28
$
29.97
$
22.34
$
14.05
$
17.95
Total return (b)
(21.30
)%
51.47
%
64.34
%(d)
(18.02
)%(e)
27.94
%
Ratios/Supplemental Data
Net assets, end of period (000s)
$
111,604
$
86,982
$
6,125
$
12
$
8,570
Ratio of gross expenses to average net assets
0.91
%
1.01
%
3.11
%
1.17
%
1.23
%
Ratio of net expenses to average net assets
0.91
%
1.00
%
1.00
%
1.00
%
1.03
%
Ratio of net expenses, excluding interest expense, to average net assets
0.91
%
1.00
%
1.00
%
1.00
%
1.03
%
Ratio of net investment income (loss) to average net assets
(0.35
)%
(0.74
)%
(0.66
)%
(0.25
)%
(0.46
)%
Portfolio turnover rate
24
%
33
%
19
%
30
%
35
%
Class Y
Year Ended
2011
2010(a)
Net asset value, beginning of period
$
24.72
$
21.56
Income from investment operations:
Net investment loss
(0.08
)(c)
(0.14
)(c)
Net realized and unrealized gain on investments
(5.21
)
7.08
Total from investment operations
(5.29
)
6.94
Less distributions from:
Net investment income
(0.31
)
(2.09
)
Net realized gains
(1.69
)
Total distributions
(0.31
)
(3.78
)
Net asset value, end of period
$
19.12
$
24.72
Total return (b)
(21.42
)%
32.59
%(f)
Ratios/Supplemental Data
Net assets, end of period (000s)
$
78,106
$
19,105
Ratio of gross expenses to average net assets
1.10
%
1.11
%(g)
Ratio of net expenses to average net assets
1.10
%
1.11
%(g)
Ratio of net expenses, excluding interest expense, to average
net assets
1.10
%
1.11
%(g)
Ratio of net investment loss to average net assets
(0.34
)%
(0.82
)(g)
Portfolio turnover rate
24
%
33
%(f)
(a)
For the period April 30, 2010 (commencement of operations) through December 31, 2010.
(b)
Total return is calculated assuming an initial investment made at the net asset value at the beginning of the period, reinvestment of any dividends and distributions at net asset value on the dividend/distributions payment date and a redemption on the last day of the period. The return does not reflect the deduction of taxes that a shareholder would pay on Fund dividends/
distributions or the redemption of Fund shares.
(c)
Calculated based upon weighted average shares outstanding
(d)
For the year ended December 31, 2009, 0.58% of Class I total return, representing $0.14 per share, consisted of a payment by the Adviser in connection with the past market timing activities. Additionally, 1.49% of the Class I total return resulted from settlement payments received from third parties by the Fund.
(e)
Total return for the year ended December 31, 2008 was materially affected by significant redemptions during the year, relative to the amount of net assets represented by the class. In the absence of such redemptions the total return would have been lower.
(f)
Not annualized
(g)
Annualized
41
December 31,
For more detailed information, see the Statement of Additional Information (SAI), which is legally a part of and is incorporated by reference into this Prospectus.
Additional information about the investments is available in the Funds annual and semi-annual reports to shareholders. In the Funds annual reports, you will find a discussion of the market conditions and investment strategies that significantly affected each Funds performance during its last fiscal year.
<
Call Van Eck at 800.826.1115, or visit the Van Eck website at vaneck.com to request, free of charge, the annual or semi-annual reports, the Statement of Additional Information (SAI), information regarding applicable sales loads, breakpoint discounts, reduced or waived sales charges and eligibility minimums, or other information about the Funds.
<
Information about the Funds (including the SAI) can also be reviewed and copied at the Securities and Exchange Commission (SEC) Public Reference Room in Washington, D.C. Information about the operation of the Public Reference Room may be obtained by calling 202.551.8090.
<
Reports and other information about the Funds 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 e-mail address: publicinfo@sec.gov, or by writing the SECs Public Reference Section, Washington, D.C. 20549-1520.
Transfer Agent:
800.544.4653
DST Systems, Inc.
P.O. Box 218407
Kansas City, Missouri 64121-8407
vaneck.com
SEC REGISTRATION
NUMBER: 811-04297
VEFPRO
PROSPECTUS
MAY
1,
2012
Multi-Manager Alternatives Fund
These securities have not been approved or disapproved either by the Securities and Exchange Commission (SEC) or by any State Securities Commission. Neither the SEC nor any State Commission has passed upon the accuracy or adequacy of this prospectus. Any claim to the contrary is a criminal offense.
Van Eck Funds
Class A: VMAAX / Class C: VMSCX / Class I: VMAIX / Class Y: VMAYX
TABLE OF CONTENTS
I.
1
1
1
1
2
2
4
6
7
8
8
Payments to Broker-Dealers and Other Financial Intermediaries
8
II.
Investment objective, strategies, policies, risks and other information
9
9
2. Additional Information About Principal Investment Strategies and Risks
9
14
14
III.
15
IV.
16
16
20
21
23
23
23
24
25
V.
33
MULTI-MANAGER ALTERNATIVES FUND (CLASS A, C, I, Y)
The Multi-Manager Alternatives Fund seeks to achieve consistent absolute (positive) returns in various market cycles.
This table describes the fees and expenses that you may pay if you buy and hold shares of the Fund. You may qualify for Class A sales charge discounts if you and your family (includes spouse and children under age 21) invest, or agree to invest in the future, at least $25,000, in the aggregate, in Classes A and C of the
Van Eck
Funds. More information about these and other discounts is available from your financial professional and in the Shareholder Information section of the Funds prospectus and in the Availability of Discounts and Breakpoint Linkage Rules for Discounts sections of the Funds Statement of Additional Information (SAI).
Shareholder Fees
Class A
Class C
Class I
Class Y
Maximum Sales Charge (load) imposed on purchases (as a percentage of offering price)
5.75
%
0.00
%
0.00
%
0.00
%
Maximum Deferred Sales Charge (load) (as a percentage of the lesser of the net asset value or purchase price)
0.00
%
1
1.00
%
0.00
%
0.00
%
1
A contingent deferred sales charge for Class A shares of 1.00% for one year applies to redemptions of qualified commissionable shares purchased after April 30, 2012 at or above the $1 million breakpoint level.
Annual Fund Operating Expenses
(expenses that you pay each year as a percentage of the value of your investment)
Class A
Class C
Class I
Class Y
Management Fees
1.37
%
1.37
%
1.37
%
1.37
%
Distribution and/or Service (12b-1) Fees
0.25
%
1.00
%
0.00
%
0.00
%
Other Expenses:
Dividends on Securities Sold Short
0.28
%
0.28
%
0.28
%
0.28
%
Remainder of Other Expenses
0.62
%
0.62
%
0.60
%
0.70
%
Acquired Fund Fees and Expenses
0.60
%
0.60
%
0.60
%
0.60
%
Total Annual Fund Operating Expenses
3.12
%
3.87
%
2.85
%
2.95
%
Fees/Expenses Waived or Reimbursed
1
0.00
%
0.00
%
(0.02
)%
(0.07
)%
Total Annual Fund Operating Expenses After Fee Waiver and/or Expense Reimbursement
3.12
%
3.87
%
2.83
%
2.88
%
1
Van Eck Associates Corporation (the Adviser) has agreed to waive fees and/or pay Fund expenses to the extent necessary to prevent the operating expenses of the Fund (excluding acquired fund fees and expenses, interest expense, trading expenses, dividends on securities sold short, taxes and extraordinary expenses) from exceeding 2.40% for Class A, 3.15% for Class
C, 1.95% for Class I, and 2.00% for Class Y
of the Funds average daily net assets per year until May 1, 2013. During such time, the expense limitation is expected to continue until the Board of Trustees acts to discontinue all or a portion of such expense limitation.
The following example is intended to help you compare the cost of investing in the Fund with the cost of investing in other mutual funds. The example assumes that you invest $10,000 in the Fund for the time periods indicated and then either redeem all of your shares at the end of these periods or continue to hold them. The example
also assumes that your investment has a 5% return each year and that the Funds operating expenses remain the same. Although your actual expenses may be higher or lower, based on these assumptions, your costs would be:
Share Status
1 Year
3 Years
5 Years
10 Years
Class A
Sold or Held
$
872
$
1,482
$
2,116
$
3,807
Class C
Sold
$
489
$
1,181
$
1,990
$
4,096
Held
$
389
$
1,181
$
1,990
$
4,096
Class I
Sold or Held
$
286
$
881
$
1,502
$
3,175
Class Y
Sold or Held
$
291
$
906
$
1,546
$
3,266
1
(fees paid directly from your investment)
The Fund pays transaction costs, such as commissions, when it buys and sells securities (or turns over its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating
expenses or in the example, affect the Funds performance. During the most recent fiscal year, the Funds portfolio turnover rate was 249% of the average value of its portfolio.
PRINCIPAL INVESTMENT STRATEGIES
The Fund pursues its objective by allocating its assets among (i) investment sub-advisers (the Sub-Advisers, also referred to as managers) with experience in managing alternative or non-traditional investment strategies, and (ii) affiliated and unaffiliated funds, including open end and closed end funds and exchange-traded funds
(ETFs), which employ a variety of investment strategies (collectively, the Underlying Funds). The Fund is considered to be non-diversified which means that it may invest in fewer securities than a diversified fund.
The main strategies that may be employed by the Sub-Advisers and the Underlying Funds include:
DIRECTIONAL AND TACTICAL STRATEGIES
Directional and tactical strategies seek to exploit broad market trends in equities, interest rates or commodity prices. These strategies may include:
Long/Short Equity:
A long/short strategy seeks to invest in securities believed to be undervalued or offer high growth opportunities while also attempting to reduce overall market risk or take advantage of an anticipated decline in the price of an overvalued company or index by using short sales or options on common stocks or
indexes to hedge risk. This strategy may also use derivatives, including options, financial futures and options on futures. Long and short positions may not be invested in equal dollars and, as such, may not seek to neutralize general market risks.
Long-Only:
A long-only strategy seeks to invest in stocks that are believed to have appreciation potential. This strategy may concentrate in certain markets, industries or geographical areas. This strategy is primarily managed for absolute return and to assess risk and opportunity on an absolute, not an index-relative basis.
Short-Only:
A short-only strategy seeks to identify securities that are expected to depreciate in value. In a short sale, the Fund borrows an equity security from a broker, and then sells it. If the value of the security goes down, the Fund can buy it back in the market and return it to the broker, making a profit. This strategy may be
employed to hedge or offset long-only equity strategies of similar size in assets and volatility.
Long/Short Credit & Fixed Income:
A long/short credit strategy combines long and short positions in debt securities of domestic and foreign governments, agencies, and companies of all maturities and qualities, including high yield (junk bonds) and Treasury Inflation-Protected Securities (TIPS), ETFs and emerging market debt. This
strategy may invest in mortgage-backed securities, collateralized mortgage obligations, asset-backed securities and other mortgage related securities. The strategy may focus on short positions by utilizing instruments to anticipate the decline in the price of an overvalued security or type of security. Such hedging instruments could
include individual bonds or related stocks, futures contracts or other instruments.
Global Macro and Emerging Markets:
A global macro and emerging markets strategy seeks to profit from directional changes in currencies, stock markets, commodity prices and market volatility. This strategy may utilize positions held through individual securities, ETFs, derivative contracts, swaps or other financial instruments linked
to major market, sector or country indices, fixed income securities, currencies and commodities. This strategy may invest in a limited number of securities, issuers, industries or countries which may result in higher volatility.
Managed Futures:
A managed futures strategy seeks to preserve capital through capturing opportunities in various futures markets. This strategy typically includes long positions in the futures that are showing strong upward momentum and short positions in the futures that are in a downward trend. This strategy may provide different
exposures to many markets and thus offer low correlations with traditional stock and bond markets.
EVENT-DRIVEN STRATEGIES
Event-driven strategies seek to benefit from price movements caused by anticipated corporate events, such as mergers, acquisitions, spin-offs or other special situations. These strategies may include:
Distressed Securities:
Investing in the securities of issuers in financial distress based upon the expectations of the manager as to whether a turnaround may materialize.
Special Situations:
Investing in the securities of issuers based upon the expectations of the manager as to whether the price of such securities may change in the short term due to a special situation, such as a stock buy-back, spin-off, bond upgrade or a positive earnings report.
2
Merger Arbitrage:
Seeking to exploit price differentials in the shares of companies that are involved in announced corporate events, such as mergers, by assessing the likelihood that such events will be consummated as proposed.
ARBITRAGE STRATEGIES
Arbitrage strategies seek to exploit price differences in identical, related or similar securities on different markets or in different forms so as to minimize overall market risk. These strategies may include:
Fixed Income or Interest Rate Arbitrage:
Buying and shorting different debt securities and/or futures contracts, including interest rate swap arbitrage, U.S. and non-U.S. bond arbitrage.
Convertible Arbitrage:
Seeking to exploit price differentials in the convertible bond markets by buying the convertible bond, and shorting the common stock, of the same company.
Pairs Trading:
Certain securities, often competitors in the same sector, are sometimes correlated in their day-to-day price movements. If the performance link breaks down,
i.e.
, one stock trades up while the other traded down, a manager may sell the outperforming stock and buy the underperforming one, based on the assumption that
the spread between the two would eventually converge. This may help to hedge against market and sector risk.
Equity Market Neutral:
A market neutral strategy combines long and short equity positions to seek to keep its exposure to overall market risk very low. Such strategies take long positions in those securities believed to have attractive appreciation potential and short positions in those securities believed to have depreciation potential.
This strategy is typically constructed to attempt to be beta-neutral and attempts to control one or more industry, sector, market capitalization or other potential market bias exposure.
ALLOCATION OF FUND ASSETS
The Adviser determines the allocation of the Funds assets among the various Sub-Advisers and Underlying Funds. In selecting and weighting investment options, the Adviser seeks to identify Sub-Advisers and Underlying Funds which, based on their investment styles and historical performance, have the potential, in the opinion of the
Adviser, to perform independently of each other and achieve positive risk-adjusted returns in various market cycles. This is referred to as low correlation. The degree of correlation of any given investment strategy of a Sub-Adviser or an Underlying Fund will, with other investment strategies and the market as a whole, vary as a result
of market conditions and other factors, and some Sub-Advisers and Underlying Funds will have a greater degree of correlation with each other and with the market than others.
By allocating its assets among a number of investment options, the Fund seeks to achieve diversification, less risk and lower volatility than if the Fund utilized a single manager or a single strategy approach. The Fund is not required to invest with any minimum number of Sub-Advisers or Underlying Funds, and does not have minimum
or maximum limitations with respect to allocations of assets to any Sub-Adviser, investment strategy or market sector. The Adviser may change the allocation of the Funds assets among the available investment options, and may add or remove Sub-Advisers, at any time. For a variety of reasons, including capacity and regulatory
limitations, not all the Sub-Advisers may be available to the Fund if it chooses to use them in the future.
Each Sub-Adviser is responsible for the day-to-day management of its allocated portion of Fund assets. The Adviser has ultimate responsibility, subject to the oversight of the Board of Trustees of the Fund, to oversee the Sub-Advisers, and to recommend their hiring, termination and replacement.
The Adviser may hire and terminate Sub-Advisers in accordance with the terms of an exemptive order obtained by the Fund and the Adviser from the SEC, under which the Adviser is permitted, subject to supervision and approval of the Board of Trustees, to enter into and materially amend sub-advisory agreements without seeking
shareholder approval. The Adviser will furnish shareholders of the Fund with information regarding a new Sub-Adviser within 90 days of the hiring of the new Sub-Adviser.
Currently, the Adviser has entered into sub-advisory agreements with the following nine Sub-Advisers with respect to the Fund. Below is a description of each Sub-Advisers investment style. The Fund may select a variation of these strategies or another strategy offered by the Sub-Advisers.
<
Acorn Derivatives Management Corp. employs a spread strategy to seek to capture persistent overpricing in S&P 500 index options.
<
Coe Capital Management, LLC employs a long/short equity strategy.
<
Dix Hills Partners, LLC employs a long/short fixed income strategy focusing on Treasury bonds of various maturities.
<
Martingale Asset Management, L.P. employs a long/short equity strategy.
<
Medley Credit Strategies, LLC employs a fundamental long/short fixed income strategy.
3
<
Millrace Asset Group, Inc. employs a long/short equity strategy.
<
PanAgora Asset Management, Inc. employs a quantitative fixed income long/short strategy.
<
Primary Funds, LLC employs a long/short low volatility equity strategy.
<
Tiburon Capital Management, LLC employs a long/short event-driven equity and fixed income strategy.
As of the date of this Prospectus, the Funds assets which have been allocated to Sub-Advisers are allocated among Acorn Derivatives Management Corp., Coe Capital Management, LLC, Medley Credit Strategies, LLC, Millrace Asset Group, Inc., Primary Funds, LLC and Tiburon Capital Management, LLC.
Each Underlying Fund invests its assets in accordance with its investment strategy. The Fund may invest in Underlying Funds in excess of the limitations under the Investment Company Act of 1940, as amended (the 1940 Act), pursuant to either an exemptive order obtained by the Fund and the Adviser from the SEC or an
exemptive order obtained by an Underlying Fund from the SEC and consistent with the conditions specified in such order.
Investments in the securities of Underlying Funds involve duplication of advisory fees and certain other expenses. By investing in an Underlying Fund, the Fund becomes a shareholder of that Underlying Fund. As a result, the Funds shareholders will indirectly bear the Funds proportionate share of the fees and expenses paid by
shareholders of the Underlying Fund, in addition to the fees and expenses the Funds shareholders directly bear in connection with the Funds own operations. To minimize the duplication of fees, the Adviser has agreed to waive the management fee it charges to the Fund by any amount it collects as a management fee from an
Underlying Fund managed by the Adviser, as a result of an investment of the Funds assets in such Underlying Fund.
In addition to Sub-Advisers and Underlying Funds, the Fund may invest indirectly in strategies or managers through securities, funds, notes, certificates, options, swaps or other derivative instruments, including instruments indexed to baskets of underlying funds.
The Funds assets will be primarily invested in common stock, convertible or non-convertible preferred stock, and fixed-income securities of U.S. and foreign governments, semi-government, their agencies and instrumentalities, non-governmental organizations, supra-national organizations and companies, including those in or that have
operations in emerging markets.
The Fund may invest in foreign securities, depositary receipts and shares relating to foreign securities. The Fund may also invest in rights, warrants, forward, futures and options contracts and other derivative securities; and enter into equity, interest rate, index and currency rate swap agreements.
In addition, the Fund may invest in funds that seek to track investable hedge fund indices; directly and indirectly in commodities; make direct investments in equity interests in trusts, partnerships, joint ventures and other unincorporated entities or enterprises; and invest in securities of companies in initial public offerings.
A portion of the Funds assets may be invested in cash, cash equivalents, or in money market funds.
There is no assurance that the Fund will achieve its investment objective. The Funds share price and return will fluctuate with changes in the market value of the Funds portfolio securities. Accordingly, an investment in the Fund involves the risk of losing money.
The Fund uses one or more investment strategies in seeking to achieve its investment objective. Such strategies may involve investing in a variety of different instruments and using certain techniques that are subject to the risks set forth below.
Arbitrage Trading.
The underlying relationships between securities in which the Fund takes investment positions may change in an adverse manner, in which case the Fund may realize losses.
Below Investment Grade Securities.
Below investment grade securities (sometimes referred to as junk bonds) are more speculative than higher-rated securities. These securities have a much greater risk of default and may be more volatile than higher-rated securities of similar maturity. These securities may be less liquid and more
difficult to value than higher-rated securities.
Convertible Securities.
Convertible securities are subject to the usual risks associated with debt securities, such as interest rate risk and credit risk. Convertible securities also react to changes in the value of the common stock into which they convert, and are thus subject to market risk. The Fund may be forced to convert a
convertible security before it otherwise would choose to do so, which may decrease the Funds return.
Debt Securities.
Debt securities are subject to credit risk and interest rate risk. Credit risk refers to the possibility that the issuer of a debt security will be unable to make interest payments or repay principal when it becomes due. Interest rate risk refers to fluctuations in the value of a debt security resulting from changes in the general
level of interest rates.
4
Derivatives.
The use of derivatives, such as swap agreements, options, warrants, futures contracts, currency forwards and structured notes, presents risks different from, and possibly greater than, the risks associated with investing directly in traditional securities. The use of derivatives can lead to losses because of adverse movements
in the price or value of the underlying security, asset, index or reference rate. Derivative strategies often involve leverage, which may exaggerate a loss, potentially causing the Fund to lose more money than it would have lost had it invested in the underlying security. Also, a liquid secondary market may not always exist for the Funds
derivative positions at times when the Fund might wish to terminate or sell such positions and over the counter instruments may be illiquid.
Directional and Tactical Trading.
Directional and tactical trading involves the risk that the investment decisions made by the Sub-Adviser in using this strategy may prove to be incorrect, may not produce the returns expected by the Sub-Adviser and may cause the Funds shares to lose value.
Emerging Markets Securities.
Emerging markets securities typically present even greater exposure to the risks described under Foreign Securities and may be particularly sensitive to certain economic changes. Emerging markets securities are exposed to a number of risks that may make these investments volatile in price or difficult
to trade.
Event-Driven Trading.
Event-driven trading involves the risk that the special situation may not occur as anticipated and that this has a negative impact upon the market price of a stock.
Foreign Securities.
Foreign investments are subject to greater risks than U.S. domestic investments. These additional risks may include exchange rate fluctuations and exchange controls; less publicly available information; more volatile or less liquid securities markets; and the possibility of arbitrary action by foreign governments, or
political, economic or social instability. Foreign companies also may be subject to significantly higher levels of taxation than U.S. companies, including potentially confiscatory levels of taxation, thereby reducing the earnings potential of such foreign companies.
Investments in Underlying Funds.
The Funds investment in an Underlying Fund may subject the Fund indirectly to the underlying risks of the investment company. The Fund also will bear its share of the Underlying Funds fees and expenses, which are in addition to the Funds own fees and expenses.
Market.
Market risk refers to the risk that the market prices of securities that the Fund holds will rise or fall, sometimes rapidly or unpredictably. In general, equity securities tend to have greater price volatility than debt securities.
Mortgage- and Asset-Backed Securities.
The value of the Funds mortgage- and asset-backed securities may be affected by, among other things, changes in: interest rates, the creditworthiness of the entities that provide credit enhancements, or the markets assessment of the quality of underlying assets. Mortgage- and asset-backed
securities are subject to prepayment risk, which is the possibility that the underlying debt may be refinanced or prepaid prior to maturity. In addition, rising or high interest rates tend to extend the duration of mortgage- and asset-backed securities, making them more volatile and more sensitive to changes in interest rates.
Multiple Investment Sub-Advisers.
The Sub-Advisers make their trading decisions independently, and, as a result, it is possible that one or more Sub-Advisers may take positions in the same security or purchase/sell the same security at the same time without aggregating their transactions. This may cause unnecessary brokerage
and other expenses to the Fund. Each Sub-Adviser uses a particular style or set of styles to select investments for the Fund. Those styles may be out of favor or may not produce the best results over the investment time periods.
Non-Diversification.
A non-diversified funds greater investment in a single issuer makes the fund more susceptible to financial, economic or market events impacting such issuer. A decline in the value of or default by a single security in the non-diversified funds portfolio may have a greater negative effect than a similar decline or
default by a single security in a diversified portfolio.
Preferred Stocks.
Unlike interest payments on debt securities, dividend payments on a preferred stock typically must be declared by the issuers board of directors. In addition, in the event an issuer of preferred stock experiences economic difficulties, the issuers preferred stock may lose substantial value due to the reduced likelihood
that the issuers board of directors will declare a dividend and the fact that the preferred stock may be subordinated to other securities of the same issuer.
Repurchase Agreements.
A repurchase agreement exposes the Fund to the risk that the party that sells the security may default on its obligation to repurchase it. The Fund may lose money if it cannot sell the security at the agreed-upon time and price or the security loses value before it can be sold.
Short Sales.
If the Fund sells a stock short and subsequently has to buy the security back at a higher price, the Fund will lose money on the transaction. Any loss will be increased by the amount of compensation, interest or dividends and transaction costs the Fund must pay to a lender of the security. The amount the Fund could
lose on a short sale is theoretically unlimited (as compared to a long position, where the maximum loss is the amount invested). The use of short sales, which has the effect of leveraging the Fund, could increase the exposure of the Fund to the market, increase losses and increase the volatility of returns.
5
The Fund may not always be able to close out a short position at a particular time or at an acceptable price. A lender may request that borrowed securities be returned to it on short notice, and the Fund may have to buy the borrowed securities at an unfavorable price. If this occurs at a time that other short sellers of the same
security also want to close out their positions, it is more likely that the Fund will have to cover its short sale at an unfavorable price and potentially reduce or eliminate any gain, or cause a loss, as a result of the short sale.
Sub-Adviser Allocation.
The success of the Funds investment strategy depends on, among other things, both the Advisers skill in selecting Sub-Advisers and allocating assets to those Sub-Advisers and on a Sub-Advisers skill in executing the relevant strategy and selecting investments for the Fund.
The following chart and table provide some indication of the risks of investing in the Fund by showing changes in the Funds performance from year to year and by showing how the Funds average annual total returns compare with those of a broad measure of market performance and one or more other performance measures. For
instance, the HFRX Global Hedge Fund Index is designed to be representative of the overall composition of the hedge fund universe and is comprised of eight strategies: convertible arbitrage, distressed securities, equity hedge, equity market neutral, event driven, macro, merger arbitrage, and relative value arbitrage. The strategies are
asset weighted in the index based on the distribution of assets in the hedge fund industry. The Funds past performance is not necessarily an indication of how the Fund will perform in the future. The annual returns in the bar chart are for the Funds Class A shares and do not reflect sales loads. If sales loads were reflected, returns
would be less than those shown.
Additionally, large purchases and/or redemptions of shares of a class, relative to the amount of assets represented by the class, may cause the annual returns for each class to differ. Performance for Class C shares is not shown because Class C shares commenced operations on April 30, 2012. Updated performance information for the
Fund is available on the Van Eck website at vaneck.com.
Class A: Annual Total Returns (%) as of 12/31
Best Quarter:
+2.55%
3Q 10
Worst Quarter:
-4.57%
3Q 11
Average Annual Total Returns as of 12/31/11
1 Year
Life of Class
Class A Shares
(6/5/09)
Before Taxes
-8.02
%
-0.93
%
After Taxes on Distributions
1
-8.34
%
-1.24
%
After Taxes on Distributions and Sale of Fund Shares
1
-5.15
%
-0.95
%
Class I Shares
(6/5/09)
Before Taxes
-1.95
%
1.63
%
Class Y Shares
(4/30/10)
Before Taxes
-2.06
%
0.83
%
HFRX Global Hedge Fund Index
(reflects no deduction for fees, expenses or taxes)
-8.87
%
S&P
®
500 Index
(reflects no deduction for fees, expenses or taxes)
2.11
%
1
6
After tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. These returns are shown for one class of shares only; after tax-returns for the other classes may vary. Actual after-tax returns depend on your individual tax situation and may differ from those shown in the preceding
table. The after-tax return information shown above does not apply to Fund shares held through a tax-deferred account, such as a 401(k) plan or Investment Retirement Account.
Investment Adviser.
Van Eck Associates Corporation
Investment Sub-Advisers.
Coe Capital Management, LLC
Dix Hills Partners, LLC
Martingale Asset Management, L.P.
Medley Credit Strategies, LLC
Millrace Asset Group, Inc.
PanAgora Asset Management, Inc.
Primary Funds, LLC
Tiburon Capital Management, LLC
7
Stephen H. Scott,
Co-Portfolio Manager, Investment Team Co-Chair, 2009
Jan F. van Eck,
Co-Portfolio Manager, Investment Team Co-Chair, 1985
Acorn Derivatives Management Corp.
Andrew Greeley, CFA,
Chief Investment Officer, Senior Managing Director, Head of Trading, 1994
William O. Melvin, Jr.,
Founder, Senior Managing Director, 1989
Robert J. Groden,
Portfolio Manager, Managing Director, 2007
Mark D. Coe, CFA,
Managing Member, Portfolio Manager, 1999
Joseph Baggett, CFA,
Portfolio Manager, Managing Member, 2003
William E. Jacques, CFA,
Executive Vice President, Chief Investment Officer, 1987
Samuel Nathans, CFA,
Senior Vice President, Senior Portfolio Manager, 1999
James M. Eysenbach, CFA,
Senior Vice President, Director of Research, 2004
Robert Comizio,
Partner, Senior Portfolio Manager, 2006
Dean Crowe,
Managing Director, Portfolio Manager, 2011
Joseph Princiotta,
Principal, Senior Analyst, 2011
Frank Wang, CFA,
Vice President, Research Analyst, 2007
William L. Kitchel, III,
Co-Founder, President, Portfolio Manager/Analyst, 2002
Whitney M. Maroney,
Co-Founder, Secretary/Treasurer, Portfolio Manager/Analyst, 2002
Bryan D. Belton, CFA,
Director, Multi Asset, 2005
Jonathan Beaulieu, CFA,
Portfolio Manager, Multi Asset, 2010
Edward Qian, Ph.D., CFT,
Chief Investment Officer, Head of Research, Multi Asset, 2005
Christopher J. Moshy,
Co-Founder, Portfolio Manager, Managing Member, 2002
Timothy F. Madey,
Co-Founder, Portfolio Manager, Managing Member, 2002
Peter M. Lupoff,
Managing Member, Chief Executive Officer, Portfolio Manager, 2009
Kenneth Staut,
Partner, Senior Analyst, 2009
Charlie Trisiripisal,
Partner, Senior Analyst, 2009
PURCHASE AND SALE OF FUND SHARES
In general, shares of the Fund may be purchased or redeemed on any business day, primarily through financial representatives such as brokers or advisers, or directly by eligible investors through the Funds transfer agent. Purchase minimums for Classes A, C and Y shares are $1000 for an initial purchase and $100 for a subsequent
purchase, with no purchase minimums for any purchase through a retirement or pension plan account, for any wrap fee account and similar programs offered without a sales charge by certain financial institutions and third-party recordkeepers and/or administrators, and for any account using the Automatic Investment Plan, or for any
other periodic purchase program. Purchase minimums for Class I shares are $1 million for an initial purchase and no minimum for a subsequent purchase; the initial minimum may be reduced or waived at the Funds discretion.
The Fund normally distributes net investment income and net realized capital gains, if any, to shareholders. These distributions are generally taxable to you as ordinary income or capital gains, unless you are investing through a tax-advantaged retirement account, such as a 401(k) plan or an individual retirement account (IRA).
PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES
If you purchase the Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and/or its affiliates may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your financial professional
to recommend the Fund over another investment. Ask your financial professional or visit your financial intermediarys website for more information.
8
II. INVESTMENT OBJECTIVE, STRATEGIES, POLICIES, RISKS AND OTHER INFORMATION
This section states the Funds investment objective and describes certain strategies and policies that the Fund may utilize in pursuit of its investment objective. This section also provides additional information about the principal risks associated with investing in the Fund.
The Multi-Manager Alternatives Fund seeks to achieve consistent absolute (positive) returns in various market cycles.
The Funds investment objective is fundamental and may only be changed with shareholder approval.
2. ADDITIONAL INFORMATION ABOUT PRINCIPAL INVESTMENT STRATEGIES AND RISKS
ARBITRAGE TRADING
Definition
The Sub-Advisers may engage in transactions that attempt to exploit price differences of identical, related or similar securities on different markets or in different forms.
Risk
The underlying relationships between securities in which the Fund takes investment positions may change in an adverse manner, in which case the Fund may realize losses. For example, a merger arbitrage strategy generally involves purchasing the shares of an announced acquisition target company at a
discount to its expected value upon completion of the acquisition and selling short the acquirers securities. If an acquisition is called off or otherwise not completed, the Fund may realize losses on the shares of the target company it acquired and on its short position in the acquirers securities.
BELOW INVESTMENT GRADE SECURITIES
Definition
Debt securities that are below investment grade (
e.g.,
BB or below by Standard & Poors) (sometimes referred to as junk bonds).
Risk
Below investment grade securities are more speculative than higher-rated securities. These securities have a much greater risk of default (or in the case of bonds currently in default, of not returning principal) and may be more volatile than higher-rated securities of similar maturity. The value of these securities
can be affected by overall economic conditions, interest rates, and the creditworthiness of the individual issuers. Additionally, these securities may be less liquid and more difficult to value than higher-rated securities.
CONVERTIBLE SECURITIES
Definition
A convertible security is a security that can be exchanged for a specified amount of another, generally related security, at the option of the issuer and/or the holder.
Risk
Convertible securities are subject to the usual risks associated with debt securities, such as interest rate risk and credit risk. Convertible securities also react to changes in the value of the common stock into which they convert, and are thus subject to market risk. Because the value of a convertible security can
be influenced by both interest rates and market movements, a convertible security generally is not as sensitive to interest rates as a similar debt security, and generally will not vary in value in response to other factors to the same extent as the underlying common stock. In the event of a liquidation of the issuing
company, holders of convertible securities would typically be paid before the companys common stockholders but after holders of any senior debt obligations of the company. The Fund may be forced to convert a convertible security before it otherwise would choose to do so, which may decrease the Funds
return.
9
II. INVESTMENT OBJECTIVE, STRATEGIES, POLICIES, RISKS AND OTHER INFORMATION (continued)
DEBT SECURITIES
Definition
Debt securities may include bonds and other forms of debentures or obligations. When an issuer sells debt securities, it sells them for a certain price, and for a certain term. Over the term of the security, the issuer promises to pay the buyer a certain rate of interest, then to repay the principal at maturity. Debt
securities are also bought and sold in the a secondary marketthat is, they are traded by people other than their original issuers.
Risk
Debt securities are subject to credit risk and interest rate risk. Credit risk refers to the possibility that the issuer of a debt security will be unable to make interest payments or repay principal when it becomes due. Various factors could affect the issuers ability to make timely interest or principal payments,
including changes in the issuers financial condition or in general economic conditions. Interest rate risk refers to fluctuations in the value of a debt security resulting from changes in the general level of interest rates. When the general level of interest rates rise, the value of debt securities will tend to fall, and if
interest rates fall, the values of debt securities will tend to rise. Changes in the value of a debt security usually will not affect the amount of income the Fund receives from it but may affect the value of the Funds shares.
DERIVATIVES
Definition
The term derivatives covers a broad range of financial instruments, including swap agreements, options, warrants, futures contracts, currency forwards and structured notes, whose values are derived, at least in part, from the value of one or more indicators, such as a security, asset, index or reference rate.
Risk
The use of derivatives presents risks different from, and possibly greater than, the risks associated with investing directly in traditional securities. The use of derivatives can lead to losses because of adverse movements in the price or value of the underlying security, asset, index or reference rate, which may be
magnified by certain features of the derivatives. Derivative strategies often involve leverage, which may exaggerate a loss, potentially causing the Fund to lose more money than it would have lost had it invested in the underlying security. The values of derivatives may move in unexpected ways, especially in
unusual market conditions, and may result in increased volatility, among other consequences. The use of derivatives may also increase the amount of taxes payable by shareholders. Other risks arise from the Funds potential inability to terminate or sell derivative positions. A liquid secondary market may not
always exist for the Funds derivative positions at times when the Fund might wish to terminate or sell such positions. Over the counter instruments (investments not traded on an exchange) may be illiquid, and transactions in derivatives traded in the over-the counter market are subject to the risk that the other
party will not meet its obligations. The use of derivatives also involves the risk of mispricing or improper valuation and that changes in the value of the derivative may not correlate perfectly with the underlying security, asset, index or reference rate.
DIRECTIONAL AND TACTICAL TRADING
Definition
The Sub-Advisers may engage in transactions that attempt to exploit broad market trends in equities, interest rates or commodity prices.
Risk
Directional and tactical trading involves the risk that the investment decisions made by the Sub-Adviser in using this strategy may prove to be incorrect, may not produce the returns expected by the Sub-Adviser and may cause the Funds shares to lose value.
10
EMERGING MARKETS SECURITIES
Definition
Securities of companies that are primarily located in developing countries.
Risk
Emerging markets securities typically present even greater exposure to the risks described under Foreign Securities and may be particularly sensitive to certain economic changes. Emerging markets securities are exposed to a number of risks that may make these investments volatile in price or difficult to trade.
Political risks may include unstable governments, nationalization, restrictions on foreign ownership, laws that prevent investors from getting their money out of a country and legal systems that do not protect property rights as well as the laws of the U.S. Market risks may include economies that concentrate in only
a few industries, securities issued that are held by only a few investors, limited trading capacity in local exchanges and the possibility that markets or issues may be manipulated by foreign nationals who have inside information.
EVENT-DRIVEN TRADING
Definition
The Sub-Advisers may engage in transactions that attempt to benefit from price movements caused by anticipated corporate events, such as mergers, acquisitions, spin-offs or other special situations.
Risk
Event-driven trading involves the risk that the special situation may not occur as anticipated and that this has a negative impact upon the market price of a stock.
FOREIGN SECURITIES
Definition
Securities issued by foreign companies, traded in foreign currencies or issued by companies with most of their business interests in foreign countries.
Risk
Foreign investments are subject to greater risks than U.S. domestic investments. These additional risks may include exchange rate fluctuations and exchange controls; less publicly available information; more volatile or less liquid securities markets; and the possibility of arbitrary action by foreign governments,
including the takeover of property without adequate compensation or imposition of prohibitive taxation, or political, economic or social instability. Foreign companies also may be subject to significantly higher levels of taxation than U.S. companies, including potentially confiscatory levels of taxation, thereby reducing
the earnings potential of such foreign companies.
Some of the risks of investing in foreign securities may be reduced when the Fund invests indirectly in foreign securities through American Depositary Receipts (ADRs), European Depositary Receipts (EDRs), American Depositary Shares (ADSs), Global Depositary Shares (GDSs), and other securities which are
traded on larger, recognized exchanges and in stronger, more recognized currencies.
INVESTMENTS IN UNDERLYING FUNDS
Definition
The Fund may invest in Underlying Funds, which include open end and closed end funds, ETFs and money market funds, subject to the limitations under the 1940 Act.
Risk
The Funds investment in an Underlying Fund may subject the Fund indirectly to the underlying risks of the investment company. The Fund also will bear its share of the Underlying Funds fees and expenses, which are in addition to the Funds own fees and expenses. Shares of closed-end funds and ETFs may
trade at prices that reflect a premium above or a discount below the investment companys net asset value, which may be substantial in the case of closed-end funds. If investment company securities are purchased at a premium to net asset value, the premium may not exist when those securities are sold and
the Fund could incur a loss.
MARKET
Definition
An investment in the Fund involves market riskthe risk that securities prices will rise or fall.
Risk
Market risk refers to the risk that the market prices of securities that the Fund holds will rise or fall, sometimes rapidly or unpredictably. Security prices may decline over short or even extended periods not only because of company-specific developments but also due to an economic downturn, a change in
interest or currency rates or a change in investor sentiment. In general, equity securities tend to have greater price volatility than debt securities.
11
II. INVESTMENT OBJECTIVE, STRATEGIES, POLICIES, RISKS AND OTHER INFORMATION (continued)
MORTGAGE- AND ASSET-BACKED SECURITIES
Definition
Mortgage- and asset-backed securities represent interests in pools of mortgages or other assets, including receivables. Mortgage-backed securities represent interests in, or are backed by, pools of mortgages from which payments of interest and principal (net of fees paid to the issuer or guarantor of the
securities) are distributed to the holders of the mortgage-backed securities. Mortgage-backed securities can have a fixed or an adjustable rate. Asset-backed securities represent interests in, or are backed by, pools of receivables such as credit card, auto, student and home equity loans. They may also be
backed, in turn, by securities backed by these types of loans and others, such as mortgage loans. Mortgage- and asset backed securities can have a fixed or an adjustable rate.
Risk
The value of the Funds mortgage- and asset-backed securities may be affected by, among other things, changes in: interest rates, factors concerning the interests in and structure of the issuer or the originator of the mortgages or receivables, the creditworthiness of the entities that provide any supporting letters
of credit, surety bonds or other credit enhancements, or the markets assessment of the quality of underlying assets. Mortgage- and asset-backed securities are subject to prepayment risk, which is the possibility that the underlying debt may be refinanced or prepaid prior to maturity during periods of declining or
low interest rates, causing the Fund to have to reinvest the money received in securities that have lower yields. In addition, the impact of prepayments on the value of mortgage- and asset-backed securities may be difficult to predict and may result in greater volatility. Rising or high interest rates tend to extend
the duration of mortgage- and asset-backed securities, making them more volatile and more sensitive to changes in interest rates.
MULTIPLE INVESTMENT SUB-ADVISERS
Definition
The Fund pursues its objective by, among other things, allocating its assets among investment sub-advisers.
Risk
The Sub-Advisers make their trading decisions independently, and, as a result, it is possible that one or more Sub-Advisers may take positions in the same security or purchase/sell the same security at the same time without aggregating their transactions. This may cause unnecessary brokerage and other
expenses to the Fund. Each Sub-Adviser uses a particular style or set of styles to select investments for the Fund. Those styles may be out of favor or may not produce the best results over the investment time periods. In addition, Sub-Advisers may base their investment decisions on analyses of historic
relationships, correlations, assumptions, relative values or the occurrence of certain events that may be disrupted, fail to exist or materialize or are affected by factors or events that the Sub-Adviser failed to consider or anticipate. Investment strategies and Sub-Advisers whose performance has historically been
non-correlated or demonstrated low correlations to one another or to major world financial market indices may become correlated at certain times, such as during a liquidity crisis in global financial markets. Under these circumstances, absolute return and hedging strategies may cease to function as anticipated.
NON-DIVERSIFICATION
Definition
A non-diversified fund may invest a larger portion of its assets in a single issuer. A diversified fund is required by the 1940 Act, generally, with respect to 75% of its total assets, to invest not more than 5% of such assets in the securities of a single issuer.
Risk
A non-diversified funds greater investment in a single issuer makes the fund more susceptible to financial, economic or market events impacting such issuer. A decline in the value of or default by a single security in the non-diversified funds portfolio may have a greater negative effect than a similar decline or
default by a single security in a diversified portfolio.
12
PREFERRED STOCKS
Definition
In general, preferred stock is a class of equity security that pays a specified dividend that must be paid before any dividends can be paid to common stockholders, and which takes precedence over common stock in the event of the companys liquidation. Although preferred stocks represent a partial ownership
interest in a company, preferred stocks generally do not carry voting rights and have economic characteristics similar to fixed-income securities. Preferred stocks generally are issued with a fixed par value and pay dividends based on a percentage of that par value at a fixed or variable rate. Additionally, preferred
stocks often have a liquidation value that generally equals the original purchase price of the preferred stock at the date of issuance.
Risk
Unlike interest payments on debt securities, dividend payments on a preferred stock typically must be declared by the issuers board of directors. An issuers board of directors is generally not under any obligation to pay a dividend (even if such dividends have accrued), and may suspend payment of dividends on
preferred stock at any time. If the Fund owns a preferred stock that is deferring its distributions, the Fund may be required to report income for tax purposes while it is not receiving income from that stock. In the event an issuer of preferred stock experiences economic difficulties, the issuers preferred stock may
lose substantial value due to the reduced likelihood that the issuers board of directors will declare a dividend and the fact that the preferred stock may be subordinated to other securities of the same issuer. For instance, preferred stocks are subordinated to bonds and other debt instruments in a companys
capital structure in terms of priority to corporate income and liquidation payments, and therefore will be subject to greater credit risk than those debt instruments.
REPURCHASE AGREEMENTS
Definition
In a repurchase agreement, the Fund acquires a security for a short time while agreeing to sell it back at a designated price and time. The agreement creates a fixed rate of return not subject to market fluctuations. The Fund enters into these agreements generally with member banks of the Federal Reserve
System or certain non-bank dealers; these counterparties collateralize the transaction.
Risk
A repurchase agreement exposes the Fund to the risk that the party that sells the security may default on its obligation to repurchase it. The Fund may lose money if it cannot sell the security at the agreed-upon time and price or the security loses value before it can be sold.
SHORT SALES
Definition
In a short sale, the Fund borrows an equity security from a broker, and then sells it.
Risk
If the Fund sells a stock short and subsequently has to buy the security back at a higher price, the Fund will lose money on the transaction. Any loss will be increased by the amount of compensation, interest or dividends and transaction costs the Fund must pay to a lender of the security. The amount the Fund
could lose on a short sale is theoretically unlimited (as compared to a long position, where the maximum loss is the amount invested). The use of short sales, which has the effect of leveraging the Fund, could increase the exposure of the Fund to the market, increase losses and increase the volatility of returns.
The Fund may not always be able to close out a short position at a particular time or at an acceptable price. A lender may request that borrowed securities be returned to it on short notice, and the Fund may have to buy the borrowed securities at an unfavorable price. If this occurs at a time that other short
sellers of the same security also want to close out their positions, it is more likely that the Fund will have to cover its short sale at an unfavorable price and potentially reduce or eliminate any gain, or cause a loss, as a result of the short sale. The Fund is required to cover its short sales with collateral by
depositing cash, U.S. government securities or other liquid high-quality securities in a segregated account. The total value of the assets deposited as collateral will not exceed 50% of the Funds net assets.
13
II. INVESTMENT OBJECTIVE, STRATEGIES, POLICIES, RISKS AND OTHER INFORMATION (continued)
SUB-ADVISER ALLOCATION
Definition
The Fund pursues its objective, in part, by allocating its assets among the Sub-Advisers. Van Eck Associates Corporation (the Adviser) determines the allocation of the Funds assets among the various Sub-Advisers.
Risk
The success of the Funds investment strategy depends on, among other things, both the Advisers skill in selecting Sub-Advisers and allocating assets to those Sub-Advisers and on a Sub-Advisers skill in executing the relevant strategy and selecting investments for the Fund.
3. ADDITIONAL INVESTMENT STRATEGIES
INVESTING DEFENSIVELY
Strategy
The Fund may take temporary defensive positions in anticipation of or in an attempt to respond to adverse market, economic, political or other conditions. Such a position could have the effect of reducing any benefit the Fund may receive from a market increase.
SECURITIES LENDING
Strategy
The Fund may lend its securities as permitted under the 1940 Act, including by participating in securities lending programs managed by broker-dealers or other institutions. Securities lending allows the Fund to retain ownership of the securities loaned and, at the same time, earn additional income. The borrowings
must be collateralized in full with cash, U.S. government securities or high-quality letters of credit.
The Fund could experience delays and costs in recovering the securities loaned or in gaining access to the securities lending collateral. If the Fund is not able to recover the securities loaned, the Fund may sell the collateral and purchase a replacement investment in the market. The value of the collateral could
decrease below the value of the replacement investment by the time the replacement investment is purchased. Cash received as collateral and which is invested is subject to market appreciation and depreciation.
4. OTHER INFORMATION AND POLICIES
PORTFOLIO HOLDINGS INFORMATION
Generally, it is the Funds and Advisers policy that no current or potential investor, including any Fund shareholder, shall be provided information about the Funds portfolio on a preferential basis in advance of the provision of that information to other investors. A complete description of the Funds policies and procedures with respect
to the disclosure of the Funds portfolio securities is available in the Funds SAI.
Limited portfolio holdings information for the Fund is available to all investors on the Van Eck website at vaneck.com. This information regarding the Funds top holdings and country and sector weightings, updated as of each month-end, is located on this website. Generally, this information is posted to the website within 30 days of the
end of the applicable month. This information generally remains available on the website until new information is posted. The Fund reserves the right to exclude any portion of these portfolio holdings from publication when deemed in the best interest of the Fund, and to discontinue the posting of portfolio holdings information at any
time, without prior notice.
PORTFOLIO INVESTMENTS
The percentage limitations relating to the composition of the Funds portfolio apply at the time the Fund acquires an investment. A subsequent increase or decrease in percentage resulting from a change in the value of portfolio securities or the total or net assets of the Fund will not be considered a violation of the restriction.
14
III. OTHER ADDITIONAL INFORMATION
IMPORTANT INFORMATION REGARDING DIVIDENDS PAID ON SECURITIES SOLD SHORT AND ACQUIRED
Dividends on securities sold short occur when the Fund sells an equity security short to gain the inverse exposure necessary to meet its investment objective. When the Fund sells a security short, the Fund borrows the security from a lender and then sells the security in the general market. The Fund is obligated to pay any dividend
declared during the duration of the short to the lender from which the Fund borrowed the security and the Fund is obligated to record the payment of the dividend as an expense. Thus, for tax purposes, any such dividend on a security sold short generally reduces the basis of the shorted securitythereby increasing the Funds
unrealized gain or reducing the Funds unrealized loss on its short sale transaction. Also, the dividends on securities sold short are typically offset, in their entirety or in part, by the income derived from earnings on the cash proceeds of the securities sold short.
Acquired fund fees and expenses (AFFE) reflect the estimated amount of fees and expenses the Fund expects to incur indirectly through its investments in Underlying Funds.
The table below illustrates the Funds Total Annual Fund Operating Expenses for all classes (i) including the effect of expenses attributable to dividends on securities sold short as well as AFFE and (ii) excluding the effect of expenses attributable to dividends on securities sold short as well as AFFE. The Funds Total Annual Operating
Expenses (expenses that are deducted from Fund assets) were:
Class A
Class C
Class I
Class Y
Management Fee
1.37
%
1.37
%
1.37
%
1.37
%
Distribution/Service (12b-1) Fees
0.25
%
1.00
%
0.00
%
0.00
%
Other Expenses:
Dividend on Securities Sold Short
0.28
%
0.28
%
0.28
%
0.28
%
Remainder of Other Expenses
0.62
%
0.62
%
0.60
%
0.70
%
Acquired Fund Fees and Expenses (AFFE)
0.60
%
0.60
%
0.60
%
0.60
%
Total Annual Fund Operating Expenses Including Dividends on Securities Sold Short and AFFE
3.12
%
3.87
%
2.85
%
2.95
%
Less Dividends on Securities Sold Short and AFFE
(0.88
)%
(0.88
)%
(0.88
)%
(0.88
)%
Less Expenses Waived or Reimbursed by the Adviser
1
0.00
%
0.00
%
(0.02
)%
(0.07
)%
Total Annual Fund Operating Expenses Excluding Dividends on Securities Sold Short and AFFE
2.24
%
2.99
%
1.95
%
2.00
%
1
The Adviser has agreed to waive fees and/or pay Fund expenses to the extent necessary to prevent the operating expenses of the Fund (excluding acquired fund fees and expenses, interest expense, trading expenses, dividends on securities sold short, taxes and extraordinary expenses) from exceeding 2.40% for Class A, 3.15% for Class C, 1.95% for Class I, and 2.00%
for Class Y
of the Funds average daily net assets per year until May 1, 2013. During such time, the expense limitation is expected to continue until the Board of Trustees acts to discontinue all or a portion of such expense limitation.
15
FUND FEES AND EXPENSES
1. HOW TO BUY, SELL, EXCHANGE OR TRANSFER SHARES
The Fund offers Class A, Class C, Class I and Class Y shares. Information related to how to buy, sell, exchange and transfer shares is discussed below. See the Minimum Purchase section for information related to initial and subsequent minimum investment amounts. The minimum investment amounts vary by share class.
Through a Financial Intermediary
Primarily, accounts are opened through a financial intermediary (broker, bank, adviser or agent). Please contact your representative for details.
Through the Transfer Agent, DST Systems, Inc. (DST)
You may buy (purchase), sell (redeem), exchange, or transfer ownership of Class A, Class C and Class I shares directly through DST by mail or telephone, as stated below. For Class Y shares, shareholders must open accounts and transact business through a financial intermediary.
The Funds mailing address at DST is:
Van Eck Global
For overnight delivery:
Van Eck Global
Non-resident aliens cannot make a direct investment to establish a new account in the Fund, but may invest through their broker or agent and certain foreign financial institutions that have agreements with Van Eck.
To telephone the Fund at DST, call Van Ecks Account Assistance at 800-544-4653.
Purchase by Mail
To make an initial purchase, complete the Van Eck Account Application and mail it with your check made payable to Van Eck Funds. Subsequent purchases can be made by check with the remittance stub of your account statement. You cannot make a purchase by telephone. We cannot accept third party checks, starter checks,
money orders, travelers checks, cashier checks, checks drawn on a foreign bank, or checks not in U.S. dollars. There are separate applications for Van Eck retirement accounts (see Retirement Plans for details). For further details, see the application or call Account Assistance.
Telephone RedemptionProceeds by Check 800-345-8506
If your account has the optional Telephone Redemption Privilege, you can redeem up to $50,000 per day. The redemption check must be payable to the registered owner(s) at the address of record (which cannot have been changed within the past 30 days). You automatically get the Telephone Redemption Privilege (for eligible
accounts) unless you specifically refuse it on your Account Application, on broker/agent settlement instructions, or by written notice to DST. All accounts are eligible for the privilege except those registered in street, nominee, or corporate name and custodial accounts held by a financial institution, including Van Eck sponsored retirement
plans.
Expedited RedemptionProceeds by Wire 800-345-8506
If your account has the optional Expedited Redemption Privilege, you can redeem a minimum of $1,000 or more per day by telephone or written request with the proceeds wired to your designated bank account. The Fund reserves the right to waive the minimum amount. This privilege must be established in advance by Application.
For further details, see the Application or call Account Assistance.
Written Redemption
Your written redemption (sale) request must include:
<
Fund and account number.
<
Number of shares or dollar amount to be redeemed, or a request to sell all shares.
<
Signatures of all registered account holders, exactly as those names appear on the account registration, including any additional documents concerning authority and related matters in the case of estates, trusts, guardianships, custodianships, partnerships and corporations, as requested by DST.
16
P.O. Box 218407
Kansas City, MO 64121-8407
210 W. 10th St., 8th Fl.
Kansas City, MO 64105-1802
<
Special instructions, including bank wire information or special payee or address.
A signature guarantee for each account holder will be required if:
<
The redemption is for $50,000 or more.
<
The redemption amount is wired.
<
The redemption amount is paid to someone other than the registered owner.
<
The redemption amount is sent to an address other than the address of record.
<
The address of record has been changed within the past 30 days.
Institutions eligible to provide signature guarantees include banks, brokerages, trust companies, and some credit unions.
Telephone Exchange 800-345-8506
If your account has the optional Telephone Exchange Privilege, you can exchange between Funds of the same Class without any additional sales charge. (Shares originally purchased into the Van Eck Money Fund (the Money Fund), which paid no sales charge, may pay an initial sales charge the first time they are exchanged into
another Class A fund.) Exchanges of Class C shares are exempt from the Class C contingent deferred redemption charge (CDRC). The new Class C shares received via the exchange will be charged the CDRC applicable to the original Class C shares upon redemption. All accounts are eligible except for omnibus accounts or those
registered in street name and certain custodial retirement accounts held by a financial institution other than Van Eck. For further details regarding exchanges, please see the application, Limits and Restrictions and Unauthorized Telephone Requests below, or call Account Assistance.
Written Exchange
Written requests for exchange must include:
<
The fund and account number to be exchanged out of.
<
The fund to be exchanged into.
<
Directions to exchange all shares or a specific number of shares or dollar amount.
<
Signatures of all registered account holders, exactly as those names appear on the account registration, including any additional documents concerning authority and related matters in the case of estates, trusts, guardianships, custodianships, partnerships and corporations, as requested by DST.
For further details regarding exchanges, please see the applicable information in Telephone Exchange.
Certificates
Certificates are not issued for new or existing shares.
Transfer of Ownership
Requests must be in writing and provide the same information and legal documentation necessary to redeem and establish an account, including the social security or tax identification number of the new owner.
Redemption in Kind
The Fund reserves the right to satisfy redemption requests by making payment in securities (known as a redemption in kind). In such case, the Fund may pay all or part of the redemption in securities of equal value as permitted under the 1940 Act, and the rules thereunder. The redeeming shareholder should expect to incur
transaction costs upon the disposition of the securities received.
LIMITS AND RESTRICTIONS
Frequent Trading Policy
The Board of Trustees has adopted policies and procedures reasonably designed to deter frequent trading in shares of the Fund, commonly referred to as market timing, because such activities may be disruptive to the management of the Funds portfolio and may increase the Funds expenses and negatively impact the Funds
performance. As such, the Fund may reject a purchase or exchange transaction or restrict an account from investing in the Fund for any reason if the Adviser, in its sole discretion, believes that a shareholder is engaging in market timing activities that may be harmful to the Fund. The Fund discourages and does not accommodate
frequent trading of shares by its shareholders.
The Fund invests portions of its assets in securities of foreign issuers, and consequently may be subject to an increased risk of frequent trading activities because frequent traders may attempt to take advantage of time zone differences between the foreign markets in which the Funds portfolio securities trade and the time as of which
the Funds net asset value is calculated (time-zone arbitrage). The Funds investments in other types of securities may also be susceptible to
17
IV. SHAREHOLDER INFORMATION (continued)
frequent trading strategies. These investments include securities that are, among other things, thinly traded, traded infrequently, or relatively illiquid, which have the risk that the current market price for the securities may not accurately reflect current market values. The Fund has adopted fair valuation policies and procedures intended to
reduce the Funds exposure to potential price arbitrage. However, there is no guarantee that the Funds net asset value will immediately reflect changes in market conditions.
The Fund uses a variety of techniques to monitor and detect abusive trading practices, such as monitoring purchases, redemptions and exchanges that meet certain criteria established by the Fund, and making inquiries with respect to such trades. If a transaction is rejected or an account restricted due to suspected market timing, the
investor or his or her financial adviser will be notified.
With respect to trades that occur through omnibus accounts at intermediaries, such as broker-dealers and third party administrators, the Fund requires all such intermediaries to agree to cooperate in identifying and restricting market timers in accordance with the Funds policies and will periodically request customer trading activity in the
omnibus accounts based on certain criteria established by the Fund. There is no assurance that the Fund will request such information with sufficient frequency to detect or deter excessive trading or that review of such information will be sufficient to detect or deter excessive trading in omnibus accounts effectively.
Although the Fund will use reasonable efforts to prevent market timing activities in the Funds shares, there can be no assurances that these efforts will be successful. As some investors may use various strategies to disguise their trading practices, the Funds ability to detect frequent trading activities by investors that hold shares
through financial intermediaries may be limited by the ability and/or willingness of such intermediaries to monitor for these activities.
For further details, contact Account Assistance.
Unauthorized Telephone Requests
Like most financial organizations, Van Eck, the Fund and DST may only be liable for losses resulting from unauthorized transactions if reasonable procedures designed to verify the callers identity and authority to act on the account are not followed.
If you do not want to authorize the Telephone Exchange or Redemption privilege on your eligible account, you must refuse it on the Account Application, broker/agent settlement instructions, or by written notice to DST. Van Eck, the Fund, and DST reserve the right to reject a telephone redemption, exchange, or other request without
prior notice either during or after the call. For further details, contact Account Assistance.
AUTOMATIC SERVICES
Automatic Investment Plan
You may authorize DST to periodically withdraw a specified dollar amount from your bank account and buy shares in your Fund account. For further details and to request an Application, contact Account Assistance.
Automatic Exchange Plan
You may authorize DST to periodically exchange a specified dollar amount for your account from one Fund to another Fund. Class C shares are not eligible. For further details and to request an Application, contact Account Assistance.
Automatic Withdrawal Plan
You may authorize DST to periodically withdraw (redeem) a specified dollar amount from your Fund account and mail a check to you for the proceeds. Your Fund account must be valued at $10,000 or more at the current offering price to establish the Plan. Class C shares are not eligible except for automatic withdrawals for the
purpose of retirement account distributions. For further details and to request an Application, contact Account Assistance.
MINIMUM PURCHASE
Each class can set its own transaction minimums and may vary with respect to expenses for distribution, administration and shareholder services.
For Class A, Class C and Class Y shares, an initial purchase of $1,000 and subsequent purchases of $100 or more are required for non-retirement accounts. There are no purchase minimums for any retirement or pension plan account, for any account using the Automatic Investment Plan, or for any other periodic purchase program.
Minimums may be waived for initial and subsequent purchases through wrap fee and similar programs offered without a sales charge by certain financial institutions and third-party recordkeepers and/or administrators.
For Class I shares, an initial purchase by an eligible investor of $1 million is required. The minimum initial investment requirement may be waived or aggregated among investors, in the Advisers discretion, for investors in certain fee-based,
18
wrap or other no-load investment programs, and for an eligible Employer-Sponsored Retirement Plan with plan assets of $3 million or more, sponsored by financial intermediaries that have entered into a Class I agreement with Van Eck, as well as for other categories of investors. An Employer-Sponsored Retirement Plan includes (a)
an employer sponsored pension or profit sharing plan that qualifies (a Qualified Plan) under section 401(a) of the Internal Revenue Code of 1986, as amended (the Code), including Code section 401(k), money purchase pension, profit sharing and defined benefit plans; (b) an ERISA-covered 403(b) plan; and (c) certain non-qualified
deferred compensation arrangements that operate in a similar manner to a Qualified Plan, such as 457 plans and executive deferred compensation arrangements, but not including employer-sponsored IRAs. In addition, members of the Boards of Trustees of Van Eck Funds and Van Eck VIP Trust and each officer, director and
employee of Van Eck may purchase Class I shares without being subject to the $1 million minimum initial investment requirement. There are no minimum investment requirements for subsequent purchases to existing accounts. To be eligible to purchase Class I shares, you must also qualify as specified in How to Choose a Class of
Shares.
ACCOUNT VALUE AND REDEMPTION
If the value of your account falls below $1,000 for Class A, Class C and Class Y shares and below $500,000 for Class I shares after the initial purchase, the Fund reserves the right to redeem your shares after 30 days notice to you.
This does not apply to accounts exempt from purchase minimums as described above.
HOW FUND SHARES ARE PRICED
The Fund buys or sells its shares at its net asset value, or NAV, per share next determined after receipt of a purchase or redemption plus any applicable sales charge. The Fund calculates its NAV every day the New York Stock Exchange (NYSE) is open, as of the close of regular trading on the NYSE, which is normally 4:00 p.m.
Eastern Time.
You may enter a buy or sell order when the NYSE is closed for weekends or holidays. If that happens, your price will be the NAV calculated as of the close of the next regular trading session of the NYSE. The Fund may invest in certain securities which are listed on foreign exchanges that trade on weekends or other days when the
Fund does not price its shares. As a result, the NAV of the Funds shares may change on days when shareholders will not be able to purchase or redeem shares.
The Funds investments are generally valued based on market quotations. When market quotations are not readily available for a portfolio security, or in the opinion of the Adviser do not reflect the securitys value, the Fund will use the securitys fair value as determined in good faith in accordance with the Funds Fair Value Pricing
Procedures, which have been approved by the Board of Trustees. As a general principle, the current fair value of a security is the amount which the Fund might reasonably expect to receive for the security upon its current sale. The Funds Pricing Committee, whose members are selected by the senior management of the Adviser, is
responsible for recommending fair value procedures to the Board of Trustees and for administering the process used to arrive at fair value prices.
Factors that may cause the Fund to use the fair value of a portfolio security to calculate the Funds NAV include, but are not limited to: (1) market quotations are not readily available because a portfolio security is not traded in a public market or the principal market in which the security trades is closed, (2) trading in a portfolio security
is limited or suspended and not resumed prior to the time at which the Fund calculates its NAV, (3) the market for the relevant security is thin, or the price is stale (
e.g.,
because its price doesnt change in five consecutive business days), (4) the Adviser determines that a market quotation is inaccurate, for example, because price
movements are highly volatile and cannot be verified by a reliable alternative pricing source, or (5) where a significant event affecting the value of a portfolio security is determined to have occurred between the time of the market quotation provided for a portfolio security and the time at which the Fund calculates its NAV.
In determining the fair value of securities, the Pricing Committee will consider, among other factors, the fundamental analytical data relating to the security, the nature and duration of any restrictions on disposition of the security, and the forces influencing the market in which the security is traded.
Foreign securities in which the Fund invests may be traded in markets that close before the time that the Fund calculates its NAV. Foreign securities are normally priced based upon the market quotation of such securities as of the close of their respective principal markets, as adjusted to reflect the Advisers determination of the impact
of events, such as a significant movement in the U.S. markets occurring subsequent to the close of such markets but prior to the time at which the Fund calculates its NAV.
Certain of the Funds portfolio securities are valued by an outside pricing service approved by the Board of Trustees. The pricing service may utilize an automated system incorporating a model based on multiple parameters, including a securitys local closing price (in the case of foreign securities), relevant general and sector indices,
currency fluctuations, and trading
19
IV. SHAREHOLDER INFORMATION (continued)
in depository receipts and futures, if applicable, and/or research evaluations by its staff, in determining what it believes is the fair valuation of the portfolio securities valued by such pricing service.
There can be no assurance that the Fund could purchase or sell a portfolio security at the price used to calculate the Funds NAV. Because of the inherent uncertainty in fair valuations, and the various factors considered in determining value pursuant to the Funds fair value procedures, there can be significant deviations between a fair
value price at which a portfolio security is being carried and the price at which it is purchased or sold. Furthermore, changes in the fair valuation of portfolio securities may be less frequent, and of greater magnitude, than changes in the price of portfolio securities valued by an independent pricing service, or based on market quotations.
2. HOW TO CHOOSE A CLASS OF SHARES
The Fund offers four classes of shares with different sales charges and 12b-1 fee schedules, designed to provide you with different purchase options according to your investment needs. Class A and Class C shares are offered to the general public and differ in terms of sales charges and ongoing expenses. Shares of the Money Fund
are not available for exchange with Class C, Class I or Class Y shares. Class C shares automatically convert to Class A shares eight years after each individual purchase. Class I shares are offered to eligible investors primarily through certain financial intermediaries that have entered into a Class I Agreement with Van Eck. The Funds
reserve the right to accept direct investments by eligible investors. Class Y shares are offered only to investors through wrap fee and similar programs offered without a sales charge by certain financial intermediaries and third-party recordkeepers and/or administrators that have entered into a Class Y agreement with Van Eck.
<
CLASS A Shares
are offered at net asset value plus an initial sales charge at time of purchase of up to 5.75% of the public offering price. The initial sales charge is reduced for purchases of $25,000 or more. For further information regarding sales charges, breakpoints and other discounts, please see below. The 12b-1 fee is
0.25% annually.
<
CLASS C Shares
are offered at net asset value with no initial sales charge, but are subject to a contingent deferred redemption charge (CDRC) of 1.00% on all redemptions during the first 12 months after purchase. The CDRC may be waived under certain circumstances; please see Telephone Exchange and below. The
12b-1 fee is 1.00% annually.
<
CLASS I Shares
are offered with no sales charges on purchases, no CDRC, and no 12b-1 fee. To be eligible to purchase Class I (Institutional) shares, you must be an eligible investor that is making or has made a minimum initial investment of at least $1 million (which may be reduced or waived under certain circumstances) in
Class I shares of a Fund. Eligible investors in Class I shares include corporations, foundations, family offices and other institutional organizations; high net worth individuals; or a bank, trust company or similar institution investing for its own account or for the account of a client when such institution has entered into a Class I
agreement with Van Eck and makes Class I shares available to the clients program or plan.
<
CLASS Y Shares
are offered with no sales charges on purchases, no CDRC, and no 12b-1 fee. To be eligible to purchase Class Y shares, you must be an eligible investor in a wrap-fee or other fee-based program, including an Employer-Sponsored Retirement Plan, offered through a financial intermediary that has entered into
a Class Y Agreement with Van Eck, and makes Class Y shares available to that program or plan. An Employer-Sponsored Retirement Plan includes (a) an employer sponsored pension or profit sharing plan that qualifies (a Qualified Plan) under section 401(a) of the Internal Revenue Code of 1986, as amended (the Code),
including Code section 401(k), money purchase pension, profit sharing and defined benefit plans; (b) an ERISA-covered 403(b) plan; and (c) certain non-qualified deferred compensation arrangements that operate in a similar manner to a Qualified Plan, such as 457 plans and executive deferred compensation arrangements, but
not including employer-sponsored IRAs.
Financial intermediaries may offer their clients more than one class of shares of the Fund. Shareholders who own shares of one class of a Fund and who are eligible to invest in another class of the same Fund may be eligible to convert their shares from one class to the other. For additional information, please contact your financial
intermediary or see Class Conversions in the SAI. Investors should consider carefully the Funds share class expenses and applicable sales charges and fees plus any separate transaction and other fees charged by such intermediaries in connection with investing in each available share class before selecting a share class. It is the
responsibility of the financial intermediary and the investor to choose the proper share class and notify DST or Van Eck of that share class at the time of each purchase. More information regarding share class eligibility is available in the How to Buy, Sell, Exchange, or Transfer Shares section of the Prospectus and in Purchase of
Shares in the SAI.
20
Unless you are eligible for a waiver, the public offering price you pay when you buy Class A shares of the Fund is the Net Asset Value (NAV) of the shares plus an initial sales charge. The initial sales charge varies depending upon the size of your purchase, as set forth below. No sales charge is imposed where Class A or Class C shares are issued to you pursuant to the automatic investment of income dividends or capital gains distribution. It is the responsibility of the financial intermediary to ensure that the investor obtains the proper breakpoint discount. Class C, Class I and Class Y do not have an initial sales charge; however, Class A does charge a
contingent deferred sales charge and Class C does charge a CDRC as set forth below.
Class A Shares Sales Charges
Dollar Amount of Purchase
Sales Charge as a
Percentage of
Percentage to
Offering
Net Amount
Less than $25,000
5.75
%
6.10
%
5.00
%
$25,000 to less than $50,000
5.00
%
5.30
%
4.25
%
$50,000 to less than $100,000
4.50
%
4.70
%
3.90
%
$100,000 to less than $250,000
3.00
%
3.10
%
2.60
%
$250,000 to less than $500,000
2.50
%
2.60
%
2.20
%
$500,000 to less than $1,000,000
2.00
%
2.00
%
1.75
%
$1,000,000 and over
None
2
(1)
Brokers or Agents who receive substantially all of the sales charge for shares they sell may be deemed to be statutory underwriters.
(2)
The Distributor may pay a Finders Fee of 1.00% to eligible brokers and agents on qualified commissionable shares purchased after April 30, 2012 at or above the $1 million breakpoint level. Such shares may be subject to a 1.00% contingent deferred sales charge if redeemed within one year from the date of purchase. For additional information, see Contingent Deferred
Sales Charge for Class A Shares below or contact the Distributor or your financial intermediary.
Class C Shares Sales Charges
Year Since Purchase
Contingent Deferred
First
1.00% of the lesser of NAV or purchase price
Second and thereafter
None
Class C Broker/Agent Compensation: 1.00% (0.75 of 1.00% distribution fee and 0.25 of 1.00% service fee) of the amount purchased at time of investment.
Shares will be redeemed in the following order: (1) shares not subject to the CDRC (dividend reinvestment, etc.), (2) first in, first out.
CONTINGENT DEFERRED SALES CHARGE FOR CLASS A SHARES
Class A shares purchased after April 30, 2012 at or above the $1 million breakpoint in accordance with the sales load schedule identified above (referred to as commissionable shares) that are redeemed within one year of purchase will be subject to a contingent deferred sales charge (CDSC) in the amount of 1.00% of the lesser of
the current value of the shares redeemed or the original purchase price of such shares. The CDSC will be paid to the Distributor as reimbursement for any Finders Fee previously paid by the Distributor to an eligible broker or agent at the time the commissionable shares were purchased and may be waived by the Distributor if the
original purchase did not result in the payment of a Finders Fee. For purposes of calculating the CDSC, shares will be redeemed in the following order: (1) first shares that are not subject to the CDSC (
e.g.
, dividend reinvestment shares and other non-commissionable shares) and (2) then other shares on a first in, first out basis. A
CDSC will not be charged in connection with an exchange of Class A shares into Class A shares (including the Money Fund) of another Van Eck Fund; however, the shares received upon an exchange will be subject to the CDSC if they are subsequently redeemed within one year of the date of the original purchase (subject to the
same terms and conditions described above). For further details regarding eligibility for the $1 million breakpoint, please see Section 3. Sales Charges, Reduced or Waived Sales Charges below.
21
Brokers or Agents
1
Price
Invested
Redemption Charge (CDRC)
IV. SHAREHOLDER INFORMATION (continued)
REDUCED OR WAIVED SALES CHARGES
You may qualify for a reduced or waived sales charge as stated below, or under other appropriate circumstances. You (or your broker or agent) must notify DST or Van Eck at the time of each purchase or redemption whenever a reduced or waived sales charge is applicable. The term purchase refers to a single purchase by an
individual (including spouse and children under age 21), corporation, partnership, trustee, or other fiduciary for a single trust, estate, or fiduciary account. For further details, see the SAI. The value of shares owned by an individual in Class A and Class C of each of the Van Eck Funds may be combined for a reduced sales charge in
Class A shares only. (The Money Fund cannot be combined for a reduced sales charge in Class A shares.)
In order to obtain a reduced sales charge (
i.e.
, breakpoint discount) or to meet an eligibility minimum, it will be necessary at the time of purchase for you to inform your broker or agent (or DST or Van Eck), of the existence of other accounts in which there are holdings eligible to be aggregated to meet the sales load breakpoints or
eligibility minimums.
The Fund makes available information regarding applicable sales loads, breakpoint discounts, reduced or waived sales charges and eligibility minimums, on their website at vaneck.com, free of charge.
FOR CLASS A SHARES
Right of Accumulation
When you buy shares, the amount you purchase will be combined with the value, at current offering price, of any existing Fund shares you own. This total will determine the sales charge level for which you qualify.
Combined Purchases
The combined amounts of your multiple purchases in the Fund on a single day determines the sales charge level for which you qualify.
Letter of Intent
If you plan to make purchases in the Fund within a 13 month period that total an amount equal to a reduced sales charge level, you can establish a Letter of Intent (LOI) for that amount. Under the LOI, your initial and subsequent purchases during that period receive the sales charge level applicable to that total amount. For escrow
provisions and details, see the Application and the SAI.
Persons Affiliated with Van Eck
Trustees, officers, and full-time employees (and their families) of the Fund, Adviser or Distributor may buy without a sales charge. Also, employees (and their spouses and children under age 21) of a brokerage firm or bank that has a selling agreement with Van Eck, and other affiliates and agents, may buy without a sales charge.
Load-waived Programs Through Financial Intermediaries
Financial intermediaries that meet certain requirements and: (i) are compensated by their clients on a fee-only basis, including but not limited to Investment Advisors, Financial Planners, and Bank Trust Departments; or (ii) have entered into an agreement with Van Eck to offer Class A shares through a no-load network or platform, may
buy without a sales charge on behalf of their clients.
Foreign Financial Institutions
Certain foreign financial institutions that have international selling agreements with Van Eck may buy shares with a reduced or waived sales charge for their omnibus accounts on behalf of foreign investors. Shareholders who purchase shares through a foreign financial institution at a fixed breakpoint may pay a greater or lesser sales
charge than if they purchased directly through a U.S. dealer.
Institutional Retirement Programs
Certain financial institutions and third-party recordkeepers and/or administrators who have agreements with Van Eck may buy shares without a sales charge for their accounts on behalf of investors in retirement plans and deferred compensation plans other than IRAs.
Buy-back Privilege
You have the right, once a year, to reinvest proceeds of a redemption from Class A shares of a Fund into that Fund or Class A shares of another Fund within 30 days without a sales charge (excluding the Money Fund). If you invest into the same Fund within 30 days before or after you redeem your shares at a loss, the wash sale
rules apply to disallow for tax purposes a loss realized upon redemption.
22
FOR CLASS C SHARES
Death or Disability
The CDRC may be waived upon (1) death or (2) disability as defined by the Internal Revenue Code.
Certain Retirement Distributions
The CDRC may be waived for lump sum or other distributions from IRA, Qualified (Pension and Profit Sharing) Plans, and 403(b) accounts following retirement or at age 70
1
/
2
. It is also waived for distributions from qualified pension or profit sharing plans after employment termination after age 55. In addition, it is waived for shares
redeemed as a tax-free return of an excess contribution.
Automatic Conversion Feature
After eight years, Class C shares of each of the Funds will convert automatically to Class A shares of the respective Fund with no initial sales charge. The eight-year period runs from the last day of the month in which the shares were purchased, or in the case of Class C shares acquired through an exchange, from the last day of the
month in which the original Class C shares were purchased. Class C shares held for eight years are converted to Class A shares on the fifth calendar day of the month following their eight-year anniversary (or the next business day thereafter if the fifth is a non-business day).
FOR CLASS I AND CLASS Y SHARES
No initial sales charge, or CDRC fee is imposed on Class I or Class Y shares. Class I and Class Y are a no-load share class.
4. HOUSEHOLDING OF REPORTS AND PROSPECTUSES
If more than one member of your household is a shareholder of any of the funds in the Van Eck Family of Funds, regulations allow us to deliver single copies of your shareholder reports, prospectuses and prospectus supplements to a shared address for multiple shareholders. For example, a husband and wife with separate accounts
in the same fund who have the same shared address generally receive two separate envelopes containing the same report or prospectus. Under the system, known as householding, only one envelope containing one copy of the same report or prospectus will be mailed to the shared address for the household. You may benefit from
this system in two ways, a reduction in mail you receive and a reduction in fund expenses due to lower fund printing and mailing costs.
However, if you prefer to continue to receive separate shareholder reports and prospectuses for each shareholder living in your household now or at any time in the future, please call Account
Assistance at 800-544-4653.
Fund shares may be invested in tax-advantaged retirement plans sponsored by Van Eck or other financial organizations. Retirement plans sponsored by Van Eck use State Street Bank and Trust Company as custodian and must receive investments directly by check or wire using the appropriate Van Eck retirement plan application.
Confirmed trades through a broker or agent cannot be accepted. To obtain applications and helpful information on Van Eck retirement plans, contact your broker or agent or Account Assistance.
Retirement Plans Sponsored by Van Eck:
Traditional IRA
Roth IRA
SEP IRA
Qualified (Pension and Profit Sharing) Plans
TAXATION OF DIVIDENDS AND CAPITAL GAINS DISTRIBUTIONS YOU RECEIVE
For tax-reportable accounts, dividends and capital gains distributions are normally taxable even if they are reinvested. Certain dividends are treated as qualified dividend income, taxable at long-term capital gain rates. Other dividends and short-term capital gains are taxed as ordinary income. Long-term capital gains are taxed at long-
term capital gain rates. Tax laws and regulations are subject to change.
23
IV. SHAREHOLDER INFORMATION (continued)
TAXATION OF SHARES YOU SELL
For tax-reportable accounts, when you redeem your shares you may incur a capital gain or loss on the proceeds. The amount of gain or loss, if any, is the difference between the amount you paid for your shares (including reinvested dividends and capital gains distributions) and the amount you receive from your redemption. Be sure
to keep your regular statements; they contain the information necessary to calculate the capital gain or loss. An exchange of shares from one Fund to another will be treated as a sale and purchase of Fund shares. It is therefore a taxable event.
COST BASIS REPORTING
As required by law, for shares purchased on and after January 1, 2012 in accounts eligible for 1099-B tax reporting by Van Eck Funds for which tax basis information is available (covered shares), the Van Eck Funds will provide cost basis information to you and the Internal Revenue Service (IRS) for shares using the IRS Tax Form 1099-B.
Generally, cost basis is the dollar amount paid to purchase shares, including purchases of shares made by reinvestment of dividends and capital gains distributions, adjusted for various items, such as sales charges and transaction fees, wash sales, and returns of capital.
The cost basis of your shares will be calculated using the Funds default cost basis method of Average Cost, and the Fund will deplete your oldest shares first, unless you instruct the Fund to use a different cost basis method. You may elect the cost basis method that best fits your specific tax situation using Van Ecks Cost Basis Election
Form. It is important that any such election be received in writing from you by the Van Eck Funds before you redeem any covered shares since the cost basis in effect at the time of redemption, as required by law, will be reported to you and the IRS. Particularly, any election or revocation of the Average Cost method must be received in
writing by the Van Eck Funds before you redeem covered shares. The Van Eck Funds will process any of your future redemptions by depleting your oldest shares first (FIFO). If you elect a cost basis method other than Average Cost, the method you chose will not be utilized until shares held prior to January 1, 2012 are liquidated. Cost
basis reporting for non-covered shares will be calculated and reported separately from covered shares. You should carefully review the cost basis information provided by the Fund and make any additional cost basis, holding period, or other adjustments that are required when reporting these amounts on your federal, state, and local income
tax returns. For tax advice specific to your situation, please contact your tax advisor and visit the IRS website at IRS.gov. The Van Eck Funds cannot and do not provide any advice, including tax advice.
To obtain Van Ecks Cost Basis Election Form and to learn more about the cost basis elections offered by the Van Eck Funds, please go to our website at vaneck.com or call Van Eck Account Services at 800-544-4653.
NON-RESIDENT ALIENS
Dividends and short-term capital gains, if any, made to non-resident aliens are subject to the maximum withholding tax (or lower tax treaty rates for certain countries). The IRS considers these dividends U.S. source income. Currently, the Fund is not required to withhold tax from distributions of long-term capital gains or redemption
proceeds if non-resident alien status is properly certified.
7. DIVIDENDS AND CAPITAL GAINS DISTRIBUTIONS
Dividends and capital gains distributions are generally declared and paid annually in December. See your tax adviser for details. Short-term capital gains are treated like dividends and follow that schedule. Occasionally, a dividend and/or capital gain distribution may be made outside of the normal schedule.
Dividends and Capital Gains Distribution Schedule
Fund
Dividends and
Distribution of
Multi-Manager Alternatives Fund
December
December
Dividends and Capital Gains Distributions Reinvestment Plan
Dividends and/or distributions are automatically reinvested into your account without a sales charge, unless you elect a cash payment. You may elect cash payment either on your original Account Application, or by calling Account Assistance at 800-544-4653.
Divmove
You can have your cash dividends from a Class A Fund automatically invested in Class A shares of another Van Eck Fund. Cash dividends are invested on the payable date, without a sales charge. For details and an Application, call Account Assistance.
24
Short-Term Capital Gains
Long-Term Capital Gains
IV. SHAREHOLDER INFORMATION (continued)
INFORMATION ABOUT FUND MANAGEMENT
INVESTMENT ADVISER
Van Eck Associates Corporation (the Adviser), 335 Madison Avenue, New York, NY 10017, has been an investment adviser since 1955 and also acts as adviser or sub-adviser to other mutual funds, exchange-traded funds, other pooled investment vehicles and separate accounts. The Adviser performs accounting and administrative
services for the Fund.
John C. van Eck and members of his immediate family own 100% of the voting stock of the Adviser. As of December 31, 2011, the Advisers assets under management were approximately $33.1 billion.
Fees Paid To The Adviser:
Pursuant to the Advisory Agreement, the Fund pays the Adviser a monthly fee at an annual rate of: (i) 1.00% of the Funds average daily net assets that are managed by the Adviser, and not by a Sub-Adviser, and that are invested in Underlying Funds; and (ii) 1.60% of the Funds average daily net assets
with respect to all other assets of the Fund. The Adviser has agreed to waive fees and/or pay Fund expenses to the extent necessary to prevent the operating expenses of the Fund (excluding acquired fund fees and expenses, interest expense, trading expenses, dividends on securities sold short, taxes and extraordinary expenses)
from exceeding 2.40% for Class A, 3.15% for Class C, 1.95% for Class I, and 2.00% for Class Y of the Funds average daily net assets per year until May 1, 2013. During such time, the expense limitation is expected to continue until the Board of Trustees acts to discontinue all or a portion of such expense limitation.
The Adviser also has agreed to waive fees and/or pay expenses for the Fund to the extent necessary to prevent the operating expenses of the Funds Class Y shares from exceeding the operating expenses of the Funds Class A shares.
For the Funds most recent fiscal year, the advisory fee paid to the Adviser was as follows:
Van Eck Funds
As a % of average
Van Eck Multi-Manager Alternatives Fund
1.37
%
The fee the Fund pays the Adviser is higher than fees typically paid by other mutual funds. This higher fee is attributable in part to the higher expenses and the specialized skills associated with managing alternative investment strategies associated with absolute return target objectives.
A discussion regarding the basis for the Board of Trustees approval of the Advisory Agreement and sub-advisory agreements is available in the Funds semi-annual and annual report to shareholders for the periods ended June 30, 2011 and December 31, 2011, respectively.
PORTFOLIO MANAGERS AND INVESTMENT TEAM MEMBERS
MULTI-MANAGER ALTERNATIVES FUND
Portfolio Managers
Stephen H. Scott
Stephen H. Scott has been employed at the Adviser since July 2009. As a member of the Funds investment team, he is responsible for management, research, due diligence, manager selection and asset allocation for the Fund and for the Van Eck VIP Multi-Manager Alternatives Fund, a series of the Van Eck VIP Trust. Mr. Scott
was a founding member and principal of Explorer Alternative Management LLC, a hedge fund manager search and selection firm. He was also a founding member and the general partner of the Pinnacle Fund, a multi-manager investment limited partnership. Subsequent to the acquisition of Pinnacle, he formed Highlander Partners LLC
in 1998 and served as the managing general partner of The Highlander Fund and the Highlander Opportunity Fund LP. Mr. Scott entered the securities industry with member firm trading partnerships on the American Stock Exchange. In 1992, he joined Merrill Lynch & Co., as a registered investment adviser. Mr. Scott earned a Bachelor
of Science degree in Administration from the University of Florida.
Jan F. van Eck
Jan F. van Eck has been the President of the Adviser since October 2010, Director and Owner of the Adviser since July 1993 (and of its predecessor since January 1985) and Executive Vice President from January 1985 to October 2010; Director since November 1985 and President since October 2010 of Van Eck Securities
Corporation; Executive Vice
26
daily net assets
The portfolio managers are responsible for the day-to-day portfolio management of the Fund and oversee all investment research and decisions related to fund portfolio strategy and allocations.
Co-Portfolio Manager/Investment Team Co-Chair
Co-Portfolio Manager/Investment Team Co-Chair
President of Van Eck Securities Corporation from June 1991 to October 2010 and additionally Chief Compliance Officer from April 2005 to August 2008; Trustee of Market Vectors ETF Trust since May 2006, President and Chief Executive Officer since March 2009; President and Director of Van Eck Absolute Return Advisers
Corporation since May 1997; President and Chief Executive Officer of Van Eck Funds and Van Eck VIP Trust since October 2010. Mr. van Eck has been registered as a principal with the NFA since August 21, 1997. He has created a variety of international and hard assets investment funds and strategies and initiated Van Ecks ETF
business in 2006. He is also Co-Portfolio Manager and Investment Team Co-Chair of the Van Eck VIP Multi-Manager Alternatives Fund, a series of Van Eck VIP Trust. Mr. van Eck has a J.D. from Stanford University and he graduated Phi Beta Kappa from Williams College with a major in Economics.
Investment Team Member
The Funds investment team member conducts ongoing investment research and analysis.
Michael F. Mazier
Michael F. Mazier has been employed by the Adviser since 2007. Prior to joining the Adviser, Mr. Mazier served as a bond analyst in the Fixed Income Research department of Morgan Stanley. He was also Vice President at Merrill Lynch Global Research Department, where he covered closed-end funds. Mr. Mazier serves as the
portfolio manager of various portfolios of the Market Vectors ETF Trust and as an investment team member of the Van Eck VIP Multi-Manager Alternatives Fund, a series of the Van Eck VIP Trust. Mr. Mazier graduated from Syracuse University in 1983 with a Bachelor of Science majoring in Electrical Engineering; graduated from
Villanova University in 1986 with a Master of Science in Computer Engineering; and graduated from Columbia Business School in 1990 with a Master of Business Administration.
SUB-ADVISERS
Currently, the Fund has agreements with nine Sub-Advisers.
The Adviser has entered into sub-advisory agreements with respect to the Fund with the following Sub-Advisers, one or more of which may be selected from time to time by the Adviser, to manage a portion of the Funds assets.
Acorn Derivatives Management Corp. (Acorn), 1266 E. Main Street, 7th Floor, Stamford, Connecticut 06902, is an alternative investment manager registered with the SEC. As of December 31, 2011, assets under management were approximately $577 million.
Coe Capital Management, LLC (Coe Capital), 9 Parkway North, Suite 325, Deerfield, Illinois 60015, is an SEC registered investment adviser. As of December 31, 2011, assets under management were approximately $350 million.
Dix Hills Partners, LLC (Dix Hills), 50 Jericho Quadrangle, Suite 117, Jericho, New York 11753, is an SEC registered investment adviser and has a variety of interest rate anticipation strategies driven from its proprietary forecasting frameworks. As of December 31, 2011, assets under management were approximately $730 million.
Martingale Asset Management, L.P. (Martingale), a limited partnership established in Delaware, located at 222 Berkeley Street, Boston, Massachusetts 02116, is an SEC registered investment adviser. All employees of Martingale are limited partners. As of December 31, 2011, assets under management were approximately $1.6 billion.
Medley Credit Strategies, LLC (Medley), 375 Park Avenue, Suite 3304, New York, NY 10152, is an SEC registered investment adviser and subsidiary of Medley Capital Holdings LLC. As of December 31, 2011, assets under management were approximately $46 million.
Millrace Asset Group, Inc. (Millrace), 1205 Westlakes Drive, Suite 375, Berwyn, Pennsylvania 19312, is an SEC registered investment adviser. As of December 31, 2011, assets under management were approximately $61.6 million.
PanAgora Asset Management, Inc. (PanAgora), 470 Atlantic Avenue, 8th Floor, Boston, Massachusetts 02110, formed in 1989, is owned by key employees, Nippon Life Insurance Company (Japan), and Great West Life/Putnam Investments. PanAgora is an SEC registered investment adviser. As of December 31, 2011, assets under
management were approximately $22.4 billion.
Primary Funds, LLC (Primary), 1005 A St., Suite 408, San Rafael, California 94901, is an SEC registered investment adviser. As of December 31, 2011, assets under management were approximately $27.7 million.
Tiburon Capital Management, LLC (Tiburon), 527 Madison Avenue, 6th Floor, New York, New York 10022, is an SEC registered investment adviser. As of December 31, 2011, assets under management were approximately $52 million.
The Sub-Advisers will be engaged to manage the investments of the Fund according to the Funds investment objective, policies and limitations and any investment guidelines established by the Adviser and the Board of Trustees. The Adviser
27
Investment Team Member
IV. SHAREHOLDER INFORMATION (continued)
will pay the Sub-Advisers out of the advisory fee paid to the Adviser pursuant to the Advisory Agreement. The Fund is not responsible for the payment of the Sub-Advisory fee.
Sub-Advisers for the Fund are selected by reviewing a wide range of factors in evaluating each Sub-Adviser including, but not limited to, past investment performance during various market conditions, investment strategies and processes used, structures of portfolios and risk management procedures, reputation, experience and training
of key personnel, correlation of performance results with other Sub-Advisers, assets under management and number of clients. The Adviser may, subject to the approval of the Board of Trustees, change Sub-Advisers engaged by the Adviser to conduct the investment programs of the Fund without shareholder approval, pursuant to an
exemptive order granted by the SEC.
SUB-ADVISERS PORTFOLIO MANAGERS
Acorn
Andrew Greeley, CFA
Andrew Greeley joined Acorn in 1994 and is a senior member of the portfolio management team. Mr. Greeley also oversees trading activities. He is a member of the Market Technicians Association and is a third level Chartered Market Technician candidate. Mr. Greeley is also a member of the Chicago Board Options Exchange
advisory roundtable. Mr. Greeley received his MBA in Finance from the New York University Stern School of Business and a BS from New Hampshire College.
William O. Melvin, Jr.
William O. Melvin, Jr. founded Acorn in 1989 and is a senior member of the portfolio management team. Mr. Melvin studied civil engineering at Brown University, and after service in the U.S. Army as a missile specialist, studied business and finance at New York University.
Robert J. Groden
Robert J. Groden joined Acorn in 2007 and is a member of the portfolio management team. Prior to joining Acorn, Mr. Groden was President and founder of Prime Asset Management Corp. where he managed options portfolios for large endowments and corporate retirement plans. Mr. Groden received his MBA in Economics with
honors from New York University and an undergraduate degree from Franklin & Marshall College.
Coe Capital
Mark D. Coe, CFA
Mark D. Coe founded Coe Capital in 1999. Prior to founding Coe Capital, Mr. Coe spent five years as a Senior Vice President and Senior Portfolio Manager at Kent Associates/PaineWebber. In this role, Mr. Coe provided investment advisory and research services to both high net worth individuals and institutional clients. Prior to joining
Kent Associates, Mr. Coe worked for seven years as a Research Analyst and Portfolio Manager at Gofen and Glossberg, Inc. Mr. Coe received a Masters in Business Administration in Finance and Economics from the J.L. Kellogg Graduate School of Management at Northwestern University and a Bachelors of Science in Accountancy
from the University of Illinois. Mr. Coe holds Chartered Financial Analyst and Chartered Investment Counselor designations.
Dix Hills
Joseph Baggett, CFA
Joseph Baggett is a founder, Chief Investment Officer and Portfolio Manager for Dix Hills Partners, LLC and its affiliate management company, Dix Hills Associates, LLC, which he joined in 2003. Mr. Baggett holds a B.A. in Economics from Columbia University (1989
summa cum laude
, Phi Beta Kappa). He also attended the University
of Chicago Graduate School of Business, completing the first year of a two year M.B.A. program with a 4.0 GPA (He did not complete his second year as he accepted a position at PaineWebbers Asset Management division during his summer internship).
28
Chief Investment Officer, Senior Managing Director and Head of Trading,
Acorn Derivatives Management Corp.
Founder and Senior Managing Director,
Acorn Derivatives Management Corp.
Portfolio Manager and Managing Director,
Acorn Derivatives Management Corp.
Managing Member and Portfolio Manager,
Coe Capital Management, LLC
Portfolio Manager and Managing Member,
Dix Hills Partners, LLC
Martingale
William E. Jacques, CFA
William Jacques is a founding Partner, Executive Vice President, Chief Investment Officer and member of the Management Committee of Martingale. He heads the Investment Team, overseeing portfolio management, investment research, valuation model and trading. Mr. Jacques graduated from Lafayette College with a B.A. in both
mathematics and economics. He earned his M.B.A. in finance at the Wharton School. He is a CFA charterholder and a member of the New York Society of Security Analysts.
Samuel Nathans, CFA
Samuel Nathans joined Martingale in 1999 and is currently a Partner, Senior Vice President, Senior Portfolio Manager, and member of the Management Committee. Mr. Nathans is responsible for managing client portfolios. Mr. Nathans holds a J.D. from Emory University and a B.S. in public policy studies from Duke University. He is a
CFA charterholder and a member of the Boston Security Analysts Society.
James M. Eysenbach, CFA
James M. Eysenbach joined Martingale in 2004 and is currently a Partner, Senior Vice President, Director of Research and a member of the Management Committee. In addition to daily portfolio management responsibilities, Mr. Eysenbach is involved in research to enhance Martingales proprietary equity valuation approach and
portfolio construction process. Mr. Eysenbach earned an A.B. in economics from Bowdoin College and an M.B.A. in finance and accounting from the Anderson School at the University of California at Los Angeles. He is a CFA charterholder and a member of the Boston Security Analysts Society.
Medley
Robert Comizio
Robert Comizio is a Partner and Senior Portfolio Manager of Medley Credit Strategies, LLC, the successor to Viathon Capital, L.P. Prior to joining Medley in 2011, Mr. Comizio was the founder and the Chief Investment Officer of Viathon Capital, L.P. and its predecessor, Viathon Capital Management LLC (VCM). Prior to founding VCM in 2006, he was a Managing Director at Marathon Asset Management, LLC based in New York City where he was a Senior Portfolio Manager for the $2.5 billion Special Opportunity Fund. Mr. Comizio graduated from the Wharton School of Business at the University of Pennsylvania in 1989, and earned his M.B.A. from the
University of Chicago in 1993.
Dean Crowe
Mr. Crowe is a Managing Director with Medley and a Portfolio Manager for Medleys Credit Strategies Group. Prior to joining Medley, Mr. Crowe was a Portfolio Manager for UBS OConnor, the Alternative Investment subsidiary of UBS Asset Management. Prior to UBS, Mr. Crowe served as a Special Situations analyst in the leveraged
finance group of RBC-Dominion, and has held positions at Merrill Lynch in New York, where he traded investment grade, high yield and emerging market debt. Mr. Crowe began his career with Salomon Brothers in New York, where he traded corporate debt and first generation credit derivatives. Mr. Crowe received a B.S. in
Accounting from the James Madison University.
Joseph Princiotta
Mr. Princiotta is a Principal with Medley and a Senior Analyst for Medleys Credit Strategies Group. Mr. Princiotta has over 25 years of combined experience as a buy-side, sell-side and rating agency analyst. Before joining Medley, Mr. Princiotta held senior analyst positions at Deutsche Bank and Barclays Capital proprietary trading
desks. Additionally, Mr. Princiotta was a sell-side publishing analyst with Deutsche Bank and Bear Stearns, and ranked as a top analyst by Institutional Investor Magazine for six years with a primary focus on basic industries. Mr. Princiottas experience also includes working as a Senior Vice President covering chemicals and basic
industries for Moodys Investors Service. Mr. Princiotta has a B.S. in Chemical Engineering from Lafayette College and an M.B.A. in finance and economics from Stern School of Business.
Frank Wang, CFA
Frank Wang joined Medley Credit Strategies, LLC (the successor to Viathon Capital, L.P.) in 2011 and is currently a Research Analyst. Prior to joining Medley, Mr. Wang was the head of operations and a Research Analyst at Viathon. Prior
29
Executive Vice President and Chief Investment Officer,
Martingale Asset Management, L.P.
Senior Vice President and Senior Portfolio Manager,
Martingale Asset Management, L.P.
Senior Vice President and Director of Research,
Martingale Asset Management, L.P.
Partner and Senior Portfolio Manager,
Medley Credit Strategies, LLC
Managing Director and Portfolio Manager,
Medley Credit Strategies, LLC
Principal and Senior Analyst,
Medley Credit Strategies, LLC
Vice President and Research Analyst,
Medley Credit Strategies, LLC
IV. SHAREHOLDER INFORMATION (continued)
to joining Viathon in 2007, he was an Operations Analyst in the Global Trade Support group at Marathon Asset Management, LLC. Mr. Wang graduated from New York University Stern School of Business in 2005 with a B.S. in Business Administration.
Millrace
William L. Kitchel, III
William Kitchel, III co-founded Millrace Asset Group, Inc. in late 2001 and has been a portfolio manager at Millrace since 2002. Mr. Kitchel earned a B.A. from University of Virginia and an M.B.A. from Dartmouths Amos Tuck School of Business.
Whitney M. Maroney,
Whitney M. Maroney co-founded Millrace Asset Group, Inc. in late 2001 and has been a portfolio manager at Millrace since 2002. Mr. Maroney earned a B.A. from Washington College and an M.B.A. from William and Mary School of Business.
PanAgora
Bryan D. Belton, CFA
Bryan D. Belton joined PanAgora in 2005 and is currently a Director within the Multi Asset group. Mr. Belton is responsible for the daily management of the firms Risk Party, global fixed income, currency, and commodity portfolios. He is also a member of the firms Directors Committee. Mr. Belton is a CFA charterholder and has 12
years of investment industry experience. He received an M.S.F. from Northeastern University and an A.B. from Boston College.
Jonathan Beaulieu, CFA
Jonathan Beaulieu joined PanAgora in 2010 and is currently a Portfolio Manager within the Multi Asset group. Mr. Beaulieu is responsible for the daily management of the firms Risk Parity Portfolios. He also assists with the management of the firms domestic and global fixed income portfolios. Prior to joining PanAgora, Mr. Beaulieu
was responsible for actively managing and hedging fixed income portfolios at the Federal Home Loan Bank of Boston. Before joining Federal Home Loan Bank of Boston, Mr. Beaulieu was a Quantitative Analyst at MFS Investment Management. Mr. Beaulieu is a CFA charterholder with 15 years of investment industry experience. He
received an M.B.A. from Northeastern University and an A.B. from Boston College.
Edward Qian, Ph.D., CFA
Edward Qian joined PanAgora in 2005 and is currently Chief Investment Officer and Head of Research, Multi Asset. His primary responsibilities include investment research and portfolio management in PanAgoras Multi Asset group. Dr. Qian is also a member of PanAgoras Investment, Operating and Directors Committees. Prior to
joining PanAgora, Dr. Qian was a Portfolio Manager at 2100 Capital. His prior experience includes a role as a Senior Analyst in Putnam Investments Global Asset Allocation Group. Dr. Qian has extensive research experience in the areas of asset allocation and quantitative equity investing. His research has been published in several
leading financial industry journals. Dr. Qian is a CFA charterholder with 14 years of investment industry experience. He graduated from Florida State University with a Ph.D., from The Chinese Science Academy with an M.S. and from Peking University with a B.S.
Primary
Christopher J. Moshy
Christopher J. Moshy co-founded Primary Funds, LLC in 2002 and currently serves as a Managing Member of Primary, where he is responsible for research, strategy, portfolio construction and risk management. Mr. Moshy has an M.B.A. from Cornell University and a B.A. in Economics from the University of California, San Diego.
Timothy F. Madey
Timothy F. Madey co-founded Primary Funds, LLC in 2002 and currently serves as a Managing Member of Primary, where he is responsible for research, strategy, portfolio construction, and risk management. Mr. Madey earned his MBA from the Johnson Graduate School of Management at Cornell University and his B.A. in history
from Loyola College in Maryland.
30
Co-Founder, President and Portfolio Manager/Analyst,
Millrace Asset Group, Inc.
Co-Founder, Secretary/Treasurer and Portfolio Manager/Analyst,
Millrace Asset Group, Inc.
Director, Multi Asset,
PanAgora Asset Management, Inc.
Portfolio Manager, Multi Asset, PanAgora Asset Management, Inc.
Chief Investment Officer and Head of Research, Multi Asset,
PanAgora Asset Management, Inc.
Co-Founder and Portfolio Manager,
Primary Funds, LLC
Co-Founder and Portfolio Manager,
Primary Funds, LLC
Tiburon
Peter M. Lupoff
Peter M. Lupoff founded Tiburon in 2009 and is currently the CEO of Tiburon and a portfolio manager of Tiburons investment products. Prior to founding Tiburon, he was a portfolio manager and managing director at Millennium Management, LLC from 2008-2009 where he was the sole portfolio manager of a large event-driven
allocation. Mr. Lupoff also served as a Senior Portfolio Manager and Managing Director of Robeco Weiss Peck and Greer from 2005-2007, where he managed the approximately $200mm Robeco WPG Distressed/Special Situations Fund. Mr. Lupoff graduated from Hofstra University with a B.A. and from Fordham University with an
M.B.A.
Kenneth Staut, CFA
Kenneth Staut joined Tiburon in 2009 and is currently a Partner of and Senior Analyst at Tiburon. Prior to joining Tiburon, Mr. Staut was a senior analyst with Schultze Asset Management from 2007-2009, where he analyzed bankruptcies, restructurings, spinoffs, failed mergers, litigation plays and recapitalizations. Previously, Mr. Staut
was a research analyst at The Longchamp Group from 2004-2005, a $1billion family office and fund of funds. Mr. Staut graduated from Dickinson College with a B.S. and from Columbia Business School with an M.B.A. Mr. Staut is a Chartered Financial Analyst.
Charlie Trisiripisal
Charlie Trisiripisal joined Tiburon in 2009 and is currently a Partner of and Senior Analyst at Tiburon. Prior to joining Tiburon, Mr. Trisiripisal was a Vice President with Fortress Investment Group from 2004-2009, where he specialized in distressed debt, special situations (credit), and opportunistic structured lending. He graduated from
Cornell University with a B.A.
The SAI provides additional information about the above Portfolio Managers, their compensation, other accounts they manage and their securities ownership in the Fund.
PLAN OF DISTRIBUTION (12b-1 PLAN)
The Fund has adopted a Plan of Distribution pursuant to Rule 12b-1 under the Act that allows the Fund to pay distribution fees for the sale and distribution of its shares. Of the amounts expended under the plan for the fiscal year ended December 31, 2011 for all Van Eck Funds, approximately 87% was paid to Brokers and Agents
who sold shares or serviced accounts of Fund shareholders. The remaining 13% was retained by the Distributor to pay expenses such as printing and mailing prospectuses and sales material. Because these fees are paid out of the Funds assets on an on-going basis, over time these fees will increase the cost of your investment and
may cost you more than paying other types of sales charges. Class I and Class Y shares do not have 12b-1 fees. For a complete description of the Plan of Distribution, please see Plan of Distribution (12b-1 PLAN) in the SAI.
Van Eck Funds Annual 12b-1 Schedule
Fee to Fund
Payment to Dealer
Multi-Manager Alternatives Fund-A
0.25
%
0.25
%
Multi-Manager Alternatives Fund-C
1.00
%
1.00
%*
*
Class C payment to brokers or agents begins to accrue after the 12th month following the purchase trade date. Each purchase must age that long or there is no payment. Shares purchased due to the automatic reinvestment of dividends and capital gains distributions do not age and begin accruing 12b-1 fees immediately.
THE TRUST
For more information on the Van Eck Funds (the Trust), the Trustees and the Officers of the Trust, see General Information, Description of the Trust and Trustees and Officers in the SAI.
EXPENSES
The Fund bears all expenses of its operations other than those incurred by the Adviser or its affiliate under the Advisory and/or Administrative Agreement with the Trust. For a more complete description of Fund expenses, please see the SAI.
THE DISTRIBUTOR
Van Eck Securities Corporation, 335 Madison Avenue, New York, NY 10017 (the Distributor), a wholly owned subsidiary of the Adviser, has entered into a Distribution Agreement with the Trust.
31
Managing Member, Chief Executive Officer and Portfolio Manager,
Tiburon Capital Management, LLC
Partner and Senior Analyst,
Tiburon Capital Management, LLC
Partner and Senior Analyst,
Tiburon Capital Management, LLC
IV. SHAREHOLDER INFORMATION (continued)
The Distributor generally sells and markets shares of the Fund through intermediaries, such as broker-dealers. The intermediaries selling the Funds shares are compensated from sales charges and from 12b-1 fees and/or shareholder services fees paid directly and indirectly by the Fund.
In addition, the Distributor may pay certain intermediaries, out of its own resources and not as an expense of the Fund, additional cash or non-cash compensation as an incentive to intermediaries to promote and sell shares of the Fund and other mutual funds distributed by the Distributor. These payments are commonly known as
revenue sharing. The benefits that the Distributor may receive when it makes these payments include, among other things, placing the Fund on the intermediarys sales system and/or preferred or recommended fund list, offering the Fund through the intermediarys advisory or other specialized programs, and/or access (in some cases
on a preferential basis over other competitors) to individual members of the intermediarys sales force. Such payments may also be used to compensate intermediaries for a variety of administrative and shareholders services relating to investments by their customers in the Fund.
The fees paid by the Distributor to intermediaries may be calculated based on the gross sales price of shares sold by an intermediary, the net asset value of shares held by the customers of the intermediary, or otherwise. These fees may, but are not normally expected to, exceed in the aggregate 0.50% of the average net assets of
the fund attributable to a particular intermediary on an annual basis.
The Distributor may also provide intermediaries with additional cash and non-cash compensation, which may include financial assistance to intermediaries in connection with conferences, sales or training programs for their employees, seminars for the public and advertising campaigns, technical and systems support, attendance at sales
meetings and reimbursement of ticket charges. In some instances, these incentives may be made available only to intermediaries whose representatives have sold or may sell a significant number of shares.
Intermediaries may receive different payments, based on a number of factors including, but not limited to, reputation in the industry, sales and asset retention rates, target markets, and customer relationships and quality of service. No one factor is determinative of the type or amount of additional compensation to be provided. Financial
intermediaries that sell Funds shares may also act as a broker or dealer in connection with execution of transactions for the Funds portfolio. The Fund and the Adviser have adopted procedures to ensure that the sales of the Funds shares by an intermediary will not affect the selection of brokers for execution of portfolio transactions.
Not all intermediaries are paid the same to sell mutual funds. Differences in compensation to intermediaries may create a financial interest for an intermediary to sell shares of a particular mutual fund, or the mutual funds of a particular family of mutual funds. Before purchasing shares of any Fund, you should ask your intermediary or
its representative about the compensation in connection with the purchase of such shares, including any revenue sharing payments it receives from the Distributor.
32
The financial highlights tables that follow are intended to help you understand the Funds financial performance since the commencement of the Funds operations. Certain information reflects financial results for a single Fund share. The total returns in the table represent the rate that an investor would have earned or lost on an
investment in the Fund (assuming reinvestment of all dividends and distributions). This information has been audited by Ernst & Young LLP, the Trusts independent registered public accounting firm, whose report, along with the Funds financial statements are included in the Funds annual report, which is available upon request. There is
no financial information for Class C because the class incepted on April 30, 2012.
MULTI-MANAGER ALTERNATIVES FUND
For a share outstanding throughout each period:
Class A
Year Ended December 31,
2011
2010
2009(a)
Net asset value, beginning of period
$
9.30
$
9.00
$
8.88
Income from investment operations:
Net investment loss
(0.17
)
(0.09
)
(0.04
)
Net realized and unrealized gain (loss) on investments
(0.06
)
0.51
0.16
Total from investment operations
(0.23
)
0.42
0.12
Less distributions from:
Net investment income
(0.05
)
(0.03
)
Net realized gains
(0.05
)
(0.09
)
Total distributions
(0.10
)
(0.12
)
Net asset value, end of period
$
8.97
$
9.30
$
9.00
Total return (b)
(2.38
)%
4.67
%
1.35
%(e)
Ratios/Supplemental Data
Net assets, end of period (000s)
$
41,271
$
38,278
$
14,907
Ratio of gross expenses to average net assets (c)
2.52
%
2.59
%
3.03
%(d)
Ratio of net expenses to average net assets (c)
2.52
%
2.59
%
2.56
%(d)
Ratio of net expenses, excluding dividends on securities sold
short and interest expense, to average net assets (c)
2.24
%
2.28
%
2.40
%(d)
Ratio of net investment loss to average net assets (c)
(1.94
)%
(1.33
)%
(1.13
)%(d)
Portfolio turnover rate
249
%
275
%
75
%(e)
Class I
Year Ended December 31,
2011
2010
2009(a)
Net asset value, beginning of period
$
9.33
$
9.01
$
8.88
Income from investment operations:
Net investment loss
(0.10
)
(0.05
)
(0.05
)
Net realized and unrealized gain (loss) on investments
(0.09
)
0.49
0.18
Total from investment operations
(0.19
)
0.44
0.13
Less distributions from:
Net investment income
(0.05
)
(0.03
)
Net realized gains
(0.05
)
(0.09
)
Total distributions
(0.10
)
(0.12
)
Net asset value, end of period
$
9.04
$
9.33
$
9.01
Total return (b)
(1.95
)%
4.89
%
1.46
%(e)
Ratios/Supplemental Data
Net assets, end of period (000s)
$
10,648
$
6,651
$
2,536
Ratio of gross expenses to average net assets (c)
2.25
%
2.35
%
2.94
%(d)
Ratio of net expenses to average net assets (c)
2.23
%
2.31
%
2.30
%(d)
Ratio of net expenses, excluding dividends on securities sold
short and interest expense, to average net assets (c)
1.95
%
2.00
%
2.15
%(d)
Ratio of net investment income (loss) to average net assets (c)
(1.18
)%
(1.05
)%
0.89
%(d)
Portfolio turnover rate
249
%
275
%
75
%(e)
(a)
For the period June 5, 2009 (commencement of operations) through December 31, 2009.
(b)
Total return is calculated assuming an initial investment made at the net asset value at the beginning of period, reinvestment of any dividends and distributions at net asset value on the dividend/distributions payment date and a redemption on the last day of the period. The return does not reflect the deduction of taxes that a shareholder would pay on Fund dividends/
distributions or the redemption of Fund shares.
(c)
The ratios presented do not reflect the Funds proportionate share of income and expenses from the Funds investments in underlying Funds.
(d)
Annualized
(e)
Not annualized
33
Class Y
Year Ended December 31,
2011
2010(a)
Net asset value, beginning of period
$
9.32
$
9.12
Income from investment operations:
Net investment loss
(0.06
)
(0.03
)
Net realized and unrealized gain (loss) on investments
(0.14
)
0.35
Total from investment operations
(0.20
)
0.32
Less distributions from:
Net investment income
(0.05
)
(0.03
)
Net realized gains
(0.05
)
(0.09
)
Total distributions
(0.10
)
(0.12
)
Net asset value, end of period
$
9.02
$
9.32
Total return (b)
(2.06
)%
3.51
%(e)
Ratios/Supplemental Data
Net assets, end of period (000s)
$6,232
$
385
Ratio of gross expenses to average net assets (c)
2.35
%
2.28
%(d)
Ratio of net expenses to average net assets (c)
2.28
%
2.27
%(d)
Ratio of net expenses, excluding dividends on securities sold
short and interest expense, to average net assets (c)
2.00
%
1.95
%(d)
Ratio of net investment loss to average net assets (c)
(1.81
)%
(1.48
)%(d)
Portfolio turnover rate
249
%
275
%(e)
(a)
For the period April 30, 2010 (commencement of operations) through December 31, 2010.
(b)
Total return is calculated assuming an initial investment made at the net asset value at the beginning of period, reinvestment of any dividends and distributions at net asset value on the dividend/distributions payment date and a redemption on the last day of the period. The return does not reflect the deduction of taxes that a shareholder would pay on Fund dividends/
distributions or the redemption of Fund shares.
(c)
The ratios presented do not reflect the Funds proportionate share of income and expenses from the Funds investments in underlying Funds.
(d)
Annualized
(e)
Not annualized
34
For more detailed information, see the Statement of Additional Information (SAI), which is legally a part of and is incorporated by reference into this Prospectus.
Additional information about the investments is available in the Funds annual and semi-annual reports to shareholders. In the Funds annual reports, 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 800.826.1115, or visit the Van Eck Web site at vaneck.com to request, free of charge, the annual or semi-annual reports, the SAI, information regarding applicable sales loads, breakpoint discounts, reduced or waived sales charges and eligibility minimums, or other information about the Fund.
<
Information about the Fund (including the SAI) can also be reviewed and copied at the Securities and Exchange Commission (SEC) Public Reference Room in Washington, D.C. Information about the operation of the Public Reference Room may be obtained by calling 202.551.8090.
<
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 e-mail address: publicinfo@sec.gov, or by writing the SECs Public Reference Section, Washington, D.C. 20549-1520.
Transfer Agent:
800.544.4653
SEC REGISTRATION NUMBER: 811-04297
MMAPRO
DST Systems, Inc.
P.O. Box 218407
Kansas City, Missouri 64121-8407
vaneck.com
PROSPECTUS
MAY
1,
2012
CM Commodity Index Fund
Class A: CMCAX / Class I: COMIX / Class Y: CMCYX
These securities have not been approved or disapproved either by the Securities and Exchange Commission (SEC) or by any State Securities Commission. Neither the SEC nor any State Commission has passed upon the accuracy or adequacy of this prospectus. Any claim to the contrary is a criminal offense.
Van Eck Funds
TABLE OF CONTENTS
I.
1
1
1
1
2
2
3
4
5
5
5
Payments To Broker-Dealers and Other Financial Intermediaries
5
II.
Investment objective, strategies, policies, risks and other information
6
6
2. Additional Information about Principal Investment Strategies and Risks
6
11
11
III.
12
12
16
16
18
18
19
19
21
IV.
24
26
28
CM COMMODITY INDEX FUND (CLASS A, I, Y)
The CM Commodity Index Fund seeks to track, before fees and expenses, the performance of the UBS Bloomberg Constant Maturity Commodity Total Return Index.
This table describes the fees and expenses that you may pay if you buy and hold shares of the Fund. You may qualify for Class A sales charge discounts if you and your family (includes spouse and children under age 21) invest, or agree to invest in the future, at least $25,000, in the aggregate, in Classes A and C of the Van Eck
Funds. More information about these and other discounts is available from your financial professional and in the Shareholder Information section of the Funds prospectus and in the Availability of Discounts and Breakpoint Linkage Rules for Discounts sections of the Funds Statement of Additional Information (SAI).
Shareholder Fees
Class A
Class I
Class Y
Maximum Sales Charge (load) imposed on purchases (as a percentage of offering price)
5.75
%
0.00
%
0.00
%
Maximum Deferred Sales Charge (load) (as a percentage of the lesser of the net asset value or purchase price)
0.00
%
1
0.00
%
0.00
%
1
A contingent deferred sales charge for Class A shares of 1.00% for one year applies to redemptions of qualified commissionable shares purchased after April 30, 2012 at or above the $1 million breakpoint level.
Annual Fund Operating Expenses
(expenses that you pay each year as a percentage of the value of your investment)
Class A
Class I
Class Y
Management Fees
0.75
%
0.75
%
0.75
%
Distribution and/or Service (12b-1) Fees
0.25
%
0.00
%
0.00
%
Other Expenses
0.66
%
0.96
%
0.81
%
Total Annual Fund Operating Expenses
1.66
%
1.71
%
1.56
%
Fees/Expenses Waived or Reimbursed
1
(0.71
)%
(1.06
)%
(0.86
)%
Total Annual Fund Operating Expenses After Fee Waiver and/or Expense Reimbursement
0.95
%
0.65
%
0.70
%
1
Van Eck Associates Corporation (the Adviser) has agreed to waive fees and/or pay Fund expenses to the extent necessary to prevent the operating expenses of the Fund (excluding acquired fund fees and expenses, interest expense, trading expenses, dividends on securities sold short, taxes and extraordinary expenses) from exceeding 0.95% for Class A, 0.65% for Class
I, and 0.70% for Class Y of the Funds average daily net assets per year until May 1, 2013. During such time, the expense limitation is expected to continue until the Board of Trustees acts to discontinue all or a portion of such expense limitation.
The following example is intended to help you compare the cost of investing in the Fund with the cost of investing in other mutual funds. The example assumes that you invest $10,000 in the Fund for the time periods indicated and then either redeem all of your shares at the end of these periods or continue to hold them. The example
also assumes that your investment has a 5% return each year and that the Funds operating expenses remain the same. Although your actual expenses may be higher or lower, based on these assumptions, your costs would be:
Share Status
1 Year
3 Years
5 Years
10 Years
Class A
Sold or Held
$
666
$
1,003
$
1,362
$
2,371
Class I
Sold or Held
$
66
$
435
$
829
$
1,931
Class Y
Sold or Held
$
72
$
408
$
768
$
1,783
1
(fees paid directly from your investment)
The Fund pays transaction costs, such as commissions, when it buys and sells securities (or turns over its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating
expenses or in the example, affect the Funds performance. During the most recent fiscal year, the Funds portfolio turnover rate was 0% of the average value of its portfolio.
PRINCIPAL INVESTMENT STRATEGIES
The Fund seeks to achieve its investment objective by investing in instruments that derive their value from the performance of the UBS Bloomberg Constant Maturity Commodity Total Return Index (the CMCI), as described below, and in bonds, debt securities and other fixed income instruments (Fixed Income Instruments) issued by
various U.S. public- or private-sector entities. The Fund invests in commodity-linked derivative instruments, including commodity index-linked notes, swap agreements, commodity futures contracts and options on futures contracts that provide economic exposure to the investment returns of the commodities markets, as represented by
the CMCI and its constituents. Commodities are assets that have tangible properties, such as oil, metals, and agricultural products. A commodity-linked derivative is a derivative instrument whose value is linked to the movement of a commodity, commodity index, commodity option or futures contract. The value of commodity-linked
derivative instruments may be affected by overall market movements and other factors affecting the value of a particular industry or commodity, such as weather, disease, embargoes, or political and regulatory developments.
The CMCI is a rules-based, composite benchmark index diversified across 28 commodity components from the following five sectors: energy, precious metals, industrial metals, agriculture and livestock. The CMCI is comprised of futures contracts with maturities ranging from around three months to over three years for each commodity,
depending on liquidity. The overall return of the CMCI reflects a combination of (i) the returns on the futures contracts comprising the CMCI; and (ii) the daily fixed-income return that would be earned on a hypothetical portfolio of 91-day U.S. Treasury bills theoretically deposited as margin for the hypothetical positions in the futures
contracts comprising the CMCI. The selection and relative weightings of the components of the CMCI are designed to reflect the economic significance and market liquidity of each commodity, as determined based on global economic data, consumption data, commodity futures prices, open interest and volume data. The maturity of
each commodity component in the CMCI remains fixed at a predefined time interval at all times by means of a continuous rolling process, in which a weighted percentage of shorter dated contracts for each commodity are swapped for longer dated contracts on a daily basis. The CMCI is rebalanced monthly back to the target
weightings of the commodity components of the CMCI and the target weightings of all commodity components are revised twice per year. A more detailed description of the CMCI is contained in Appendix A to the prospectus.
The Fund will seek to track the returns of the CMCI by entering into swap contracts and commodity index-linked notes with one or more counterparties, which contracts and notes will rise and fall in value in response to changes in the value of the CMCI. As of the date of this prospectus, UBS was the only available counterparty with
which the Fund may enter into such swap contracts on the CMCI. The Fund may enter into such contracts and notes directly or indirectly through a wholly-owned subsidiary of the Fund (the Subsidiary). Commodity index-linked notes are derivative debt instruments with principal and/or coupon payments linked to the performance of
commodity indices (such as the CMCI). These commodity index-linked notes are sometimes referred to as structured notes because the terms of these notes may be structured by the issuer and the purchaser of the note. The Fund may also seek to gain exposure to the individual commodity components of the CMCI by investing in
futures contracts that comprise the CMCI, either directly or indirectly through the Subsidiary.
For tax reasons, it may be advantageous for the Fund to create and maintain its exposure to the commodity markets, in whole or in part, by investing in the Subsidiary. The Subsidiary is managed by the Adviser for the exclusive benefit of the Fund. As discussed in greater detail elsewhere in this prospectus, the Subsidiary (unlike the
Fund) may invest without limitation in commodity-linked swap agreements and other commodity-linked derivative instruments including futures. The Fund may invest up to 25% of its assets in the Subsidiary.
The derivative instruments in which the Fund and the Subsidiary primarily intend to invest are instruments linked to commodity indices, such as the CMCI, and instruments linked to the value of a particular commodity or commodity futures contract, or a subset of commodities or commodity futures contracts. These instruments may
specify exposure to commodity futures with different roll dates, reset dates or contract months than those specified by a particular commodity index. As a result, the commodity-linked derivatives component of the Funds portfolio may deviate from the returns of any particular commodity index. The Fund or the Subsidiary may over-
weight or under-weight its exposure to a particular commodity index, or a subset of commodities, such that the Fund has greater or lesser exposure to that index than the value of the Funds net assets, or greater or lesser exposure to a subset of commodities than is represented by a particular commodity index. Such deviations may
be the result of temporary market fluctuations, and under normal circumstances, the Fund will seek to maintain notional exposure to one or more commodity indices within 5% (plus or
2
minus) of the value of the Funds net assets. To the extent the CMCI is concentrated in a particular industry (or one or more commodities that comprise an industry) the Fund will necessarily be concentrated in that industry.
Assets not invested in commodity-linked derivative instruments or the Subsidiary may be invested in Fixed Income Instruments, including derivative Fixed Income Instruments. The Fund is non-diversified, which means that it may invest its assets in a smaller number of issuers than a diversified fund.
The average duration of the portfolio of Fixed Income Instruments will vary based on interest rates and, under normal market conditions, is not expected to exceed five years. Duration is a measure of the expected life of a fixed income security that is used to determine the sensitivity of a securitys price to changes in interest rates.
The longer a securitys duration, the more sensitive it will be to changes in interest rates. Similarly, a fund with a longer average portfolio duration will be more sensitive to changes in interest rates than a fund with a shorter average portfolio duration. By way of example, the price of a bond fund with an average duration of five years
would be expected to fall approximately 5% if interest rates rose by one percentage point. The Fund will invest primarily in securities of the U.S. Government and its agencies and investment grade bonds of private issuers rated Baa or higher or, if unrated, determined by the Adviser to be of comparable quality. The Fund may, without
limitation, seek to obtain market exposure to the securities in which it primarily invests by entering into a series of purchase and sale contracts or by using other investment techniques (such as buy back or dollar rolls, repurchase agreements or reverse repurchase agreements). The Fund may also invest, without limitation, in money
market funds.
The Adviser may hire and terminate sub-advisers in accordance with the terms of an exemptive order obtained by the Fund and the Adviser from the SEC, under which the Adviser is permitted, subject to supervision and approval of the Board of Trustees, to enter into and materially amend sub-advisory agreements without seeking
shareholder approval. The Adviser will furnish shareholders of the Fund with information regarding a new sub-adviser within 90 days of the hiring of the new sub-adviser. Currently, the Adviser has not hired a sub-adviser to assist with the portfolio management of the Fund.
There is no assurance that the Fund will achieve its investment objective. The Funds share price and return will fluctuate with changes in the market value of the Funds portfolio securities. Accordingly, an investment in the Fund involves the risk of losing money.
Commodities and Commodity-Linked Derivatives.
Exposure to the commodities markets, such as precious metals, industrial metals, gas and other energy products and natural resources, may subject the Fund to greater volatility than investments in traditional securities. The commodities markets may fluctuate widely based on a
variety of factors including changes in overall market movements, political and economic events and policies, war, acts of terrorism, natural disasters and changes in interest rates or inflation rates. Because the value of a commodity-linked derivative instrument and structured note typically are based upon the price movements of
physical commodities, the value of these securities will rise or fall in response to changes in the underlying commodities or related index of investment.
Counterparty.
A loss may be sustained as a result of the failure of another party to a contract (usually referred to as a counterparty) to make required payments or otherwise comply with a contracts terms. The Fund also bears the risk of loss of the amount expected to be received under a swap agreement in the event of the default
or bankruptcy of a swap agreement counterparty. In addition, the Fund may enter into swap agreements with a limited number of counterparties, and as of the date of this prospectus, UBS was the only available counterparty with which the Fund may enter into such swap contracts on the CMCI. The Fund may invest in commodity-
linked structured notes issued by a limited number of issuers that will act as counterparties. The Funds use of one or a limited number of counterparties and its investments in commodity-linked structured notes issued by only a limited number of issuers increases the Funds exposure to counterparty credit risk. Swap agreements also
may be considered to be illiquid. Further, there is a risk that no suitable counterparties are willing to enter into, or continue to enter into, transactions with the Fund and, as a result, the Fund may not be able to achieve its investment objective.
Debt Securities.
Debt securities are subject to credit risk and interest rate risk. Credit risk refers to the possibility that the issuer of a debt security will be unable to make interest payments or repay principal when it becomes due. Interest rate risk refers to fluctuations in the value of a debt security resulting from changes in the general
level of interest rates.
Derivatives.
The use of swap agreements, options, futures contracts and structured notes, presents risks different from, and possibly greater than, the risks associated with investing directly in traditional securities. The use of derivatives can lead to losses because of adverse movements in the price or value of the underlying security,
commodity, asset, index or reference rate. Derivative strategies often involve leverage, which may exaggerate a loss, potentially causing the Fund to lose more money than it would have lost had it invested in the underlying security. Also, a liquid secondary market may not always exist for the Funds derivative positions at times when
the Fund might wish to terminate or sell such positions and over the counter instruments may be illiquid.
3
Industry Concentration.
The Fund may be subject to greater risks and market fluctuations than a fund whose portfolio has exposure to a broader range of industries. The Fund may be susceptible to financial, economic, political or market events, as well as government regulation, impacting a particular industry.
Market.
Market risk refers to the risk that the market prices of securities, commodities and related instruments that the Fund holds will rise or fall, sometimes rapidly or unpredictably. In general, equity securities and commodities tend to have greater price volatility than debt securities.
Non-Diversification.
A non-diversified funds greater investment in a single issuer makes the fund more susceptible to financial, economic or market events impacting such issuer. A decline in the value of or default by a single security in the non-diversified funds portfolio may have a greater negative effect than a similar decline or
default by a single security in a diversified portfolio.
Regulatory.
Changes in the laws or regulations of the United States or the Cayman Islands, including any changes to applicable tax laws and regulations, could impair the ability of the Fund to achieve its investment objective and could increase the operating expenses of the Fund or the Subsidiary. For example, the U.S. Commodity
Futures Trading Commission (CFTC) recently adopted amendments to existing regulations that, upon effectiveness, may subject activities of the Fund or the Subsidiary involving investments in futures contracts and similar instruments to regulation by the CFTC, including a variety of registration, disclosure and operational obligations.
Repurchase and Reverse Repurchase Agreements.
A repurchase agreement exposes the Fund to the risk that the party that sells the security may default on its obligation to repurchase it. The Fund may lose money if it cannot sell the security at the agreed-upon time and price or the security loses value before it can be sold. A
reverse repurchase agreement involves the risk that the market value of the securities the Fund is obligated to repurchase under the agreement may decline below the repurchase price.
Subsidiary.
By investing in the Subsidiary, the Fund is indirectly exposed to the risks associated with the Subsidiarys investments.
Tracking Error.
The Funds return may not match the return of the CMCI due to, among other factors, the Fund incurring operating expenses, and not being fully invested at all times as a result of cash inflows and cash reserves to meet redemptions.
The following chart and table provide some indication of the risks of investing in the Fund by showing changes in the Funds performance from year to year and by showing how the Funds average annual total returns compare with those of a broad measure of market performance and one or more other performance measures. For
instance, the UBS Bloomberg Constant Maturity Commodity Total Return Index (CMCI) is a rules-based, composite benchmark index diversified across 28 commodity components from within five sectors, specifically energy, precious metals, industrial metals, agriculture and livestock. The Funds past performance is not necessarily an
indication of how the Fund will perform in the future. The annual returns in the bar chart are for the Funds Class A shares and do not reflect sales loads. If sales loads were reflected, returns would be less than those shown.
Additionally, large purchases and/or redemptions of shares of a class, relative to the amount of assets represented by the class, may cause the annual returns for each class to differ. Updated performance information for the Fund is available on the Van Eck website at vaneck.com.
Class A: Annual Total Returns (%) as of 12/31
Best Quarter:
6.98%
1Q 11
Worst Quarter:
-12.11%
3Q 11
4
Average Annual Total Returns as of 12/31/11
1 Year
Life of
Class A Shares
(12/31/10)
Before Taxes
-13.38
%
-13.38
%
After Taxes on Distributions
1
-13.38
%
-13.38
%
After Taxes on Distributions and Sale of Fund Shares
1
-8.69
%
-8.69
%
Class I Shares
(12/31/10)
Before Taxes
-7.77
%
-7.77
%
Class Y Shares
(12/31/10)
Before Taxes
-7.88
%
-7.88
%
UBS Bloomberg Constant Maturity Commodity Total Return Index
(reflects no deduction for fees, expenses or taxes)
-6.90
%
-6.90
%
1
After tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. These returns are shown for one class of shares only; after tax-returns for the other classes may vary. Actual after-tax returns depend on your individual tax situation and may differ from those shown in the preceding
table. The after-tax return information shown above does not apply to Fund shares held through a tax-deferred account, such as a 401(k) plan or Investment Retirement Account.
Investment Adviser.
Van Eck Associates Corporation
Portfolio Manager.
PURCHASE AND SALE OF FUND SHARES
In general, shares of the Fund may be purchased or redeemed on any business day, primarily through financial representatives such as brokers or advisers, or directly by eligible investors through the Funds transfer agent. Purchase minimums for Classes A and Y shares are $1000 for an initial purchase and $100 for a subsequent
purchase, with no purchase minimums for any purchase through a retirement or pension plan account, for any wrap fee account and similar programs offered without a sales charge by certain financial institutions and third-party recordkeepers and/or administrators, and for any account using the Automatic Investment Plan, or for any
other periodic purchase program. Purchase minimums for Class I shares are $1 million for an initial purchase and no minimum for a subsequent purchase; the initial minimum may be reduced or waived at the Funds discretion.
The Fund normally distributes net investment income and net realized capital gains, if any, to shareholders. These distributions are generally taxable to you as ordinary income or capital gains, unless you are investing through a tax-deferred retirement account that will be taxed at a later date, such as a 401(k) plan or an individual
retirement account (IRA).
PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES
If you purchase the Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and/or its affiliates may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your financial professional
to recommend the Fund over another investment. Ask your financial professional or visit your financial intermediarys website for more information.
5
Class
Michael Mazier,
Portfolio Manager, 2007
II. INVESTMENT OBJECTIVE, STRATEGIES, POLICIES, RISKS AND OTHER INFORMATION
This section states the Funds investment objective and describes certain strategies and policies that the Fund may utilize in pursuit of its investment objective. This section also provides additional information about the principal risks associated with investing in the Fund.
The CM Commodity Index Fund seeks to track, before fees and expenses, the performance of the UBS Bloomberg Constant Maturity Commodity Total Return Index.
The Funds investment objective is non-fundamental and may be changed by the Board of Trustees without shareholder approval. The Fund has adopted a policy that requires the Fund to provide shareholders with 60 days prior written notice before its investment objective can be changed (to the extent practicable).
2. ADDITIONAL INFORMATION ABOUT PRINCIPAL INVESTMENT STRATEGIES AND RISKS
COMMODITIES AND COMMODITY-LINKED DERIVATIVES
Definition
Commodities include precious metals (such as gold, silver, platinum and palladium in the form of bullion and coins), industrial metals, gas and other energy products and natural resources. The value of a commodity-linked derivative investment generally is based upon the price movements of a physical
commodity (such as energy, mineral, or agricultural products), a commodity futures contract or commodity index, or other economic variable based upon changes in the value of commodities or the commodities markets. The Fund may seek exposure to the commodity markets through investments in leveraged or
unleveraged commodity-linked or index-linked notes, which are derivative debt instruments with principal and/or coupon payments linked to the value of commodities, commodity futures contracts or the performance of commodity indices. These notes are sometimes referred to as structured notes because the
terms of these notes may be structured by the issuer and the purchaser of the note.
Risk
Exposure to the commodities markets may subject the Fund to greater volatility than investments in traditional securities. The commodities markets may fluctuate widely based on a variety of factors including changes in overall market movements, political and economic events and policies, war, acts of terrorism,
natural disasters and changes in interest rates or inflation rates. Prices of various commodities may also be affected by factors such as drought, floods, weather, embargoes, tariffs and other regulatory developments. The prices of commodities can also fluctuate widely due to supply and demand disruptions in
major producing or consuming regions. Certain commodities may be produced in a limited number of countries and may be controlled by a small number of producers. As a result, political, economic and supply related events in such countries could have a disproportionate impact on the prices of such
commodities.
Commodity-Linked Structured Securities.
Because the value of a commodity-linked derivative instrument typically is based upon the price movements of a physical commodity, the value of the commodity-linked derivative instrument may be affected by changes in overall market movements, commodity index
volatility, changes in interest rates, or factors affecting a particular industry. The value of these securities will rise or fall in response to changes in the underlying commodity or related index of investment.
Structured Notes.
Structured notes expose the Fund economically to movements in commodity prices. The performance of a structured note is determined by the price movement of the commodity underlying the note. A highly liquid secondary market may not exist for structured notes, and there can be no
assurance that one will develop. These notes are often leveraged, increasing the volatility of each notes market value relative to changes in the underlying commodity, commodity futures contract or commodity index.
6
COUNTERPARTY
Definition
A counterparty is the other party that participates in a transaction,
e.g.
the other party to a contract.
Risk
The Fund may invest in financial instruments involving counterparties for the purpose of attempting to gain exposure to a particular group of securities, commodities or asset class without actually purchasing those securities or investments, or to hedge a position. Such financial instruments include, but are not
limited to total return, index, interest rate, and credit default swap agreements, and structured notes. The Fund will use counterparty agreements to exchange the returns (or differentials in rates of return) earned or realized in particular predetermined investments or instruments. The Fund will not enter into any
agreement involving a counterparty unless the Adviser believes that the other party to the transaction is creditworthy. A loss may be sustained as a result of the failure of a counterparty to make required payments or otherwise comply with a contracts terms.
The use of swap agreements and structured notes involves risks that are different from those associated with ordinary portfolio securities transactions. For example, the Fund bears the risk of loss of the amount expected to be received under a swap agreement in the event of the default or bankruptcy of a swap
agreement counterparty. The Fund may enter into swap agreements with a limited number of counterparties, and as of the date of this prospectus, UBS was the only available counterparty with which the Fund may enter into such swap agreements on the CMCI. The Fund may invest in commodity-linked
structured notes issued by a limited number of issuers that will act as counterparties. The Funds use of one or a limited number of counterparties and its investments in commodity-linked structured notes issued by only a limited number of issuers increases the Funds exposure to counterparty credit risk. Swap
agreements also may be considered to be illiquid. Further, there is a risk that no suitable counterparties are willing to enter into, or continue to enter into, transactions with the Fund and, as a result, the Fund may not be able to achieve its investment objective.
DEBT SECURITIES
Definition
Debt securities may include bonds and other forms of debentures or obligations. When an issuer sells debt securities, it sells them for a certain price, and for a certain term. Over the term of the security, the issuer promises to pay the buyer a certain rate of interest, then to repay the principal at maturity. Debt
securities are also bought and sold in the a secondary marketthat is, they are traded by people other than their original issuers.
Risk
Debt securities are subject to credit risk and interest rate risk. Credit risk refers to the possibility that the issuer of a debt security will be unable to make interest payments or repay principal when it becomes due. Various factors could affect the issuers ability to make timely interest or principal payments,
including changes in the issuers financial condition or in general economic conditions. Interest rate risk refers to fluctuations in the value of a debt security resulting from changes in the general level of interest rates. When the general level of interest rates rise, the value of debt securities will tend to fall, and if
interest rates fall, the values of debt securities will tend to rise. Changes in the value of a debt security usually will not affect the amount of income the Fund receives from it but may affect the value of the Funds shares.
7
II. INVESTMENT OBJECTIVE, STRATEGIES, POLICIES, RISKS AND OTHER INFORMATION (continued)
DERIVATIVES
Definition
The term derivatives covers a broad range of financial instruments, including swap agreements, options, warrants, futures contracts, currency forwards and structured notes, whose values are derived, at least in part, from the value of one or more indicators, such as a security, asset, index or reference rate.
Risk
The use of derivatives presents risks different from, and possibly greater than, the risks associated with investing directly in traditional securities. The use of derivatives can lead to losses because of adverse movements in the price or value of the underlying security, commodity, asset, index or reference rate,
which may be magnified by certain features of the derivatives. Derivative strategies often involve leverage, which may exaggerate a loss, potentially causing the Fund to lose more money than it would have lost had it invested in the underlying security. The values of derivatives may move in unexpected ways,
especially in unusual market conditions, and may result in increased volatility, among other consequences. The use of derivatives may also increase the amount of taxes payable by shareholders. Other risks arise from the Funds potential inability to terminate or sell derivative positions. A liquid secondary market
may not always exist for the Funds derivative positions at times when the Fund might wish to terminate or sell such positions. Over the counter instruments (investments not traded on an exchange) may be illiquid, and transactions in derivatives traded in the over-the counter market are subject to the risk that
the other party will not meet its obligations. The use of derivatives also involves the risk of mispricing or improper valuation and that changes in the value of the derivative may not correlate perfectly with the underlying security, asset, index or reference rate.
Futures Contracts.
Futures contracts and options on futures contracts provide for the future sale by one party and purchase by another party of a specified amount of a specific security at a specified future time and at a specified price. An option on a futures contract gives the purchaser the right, in exchange
for a premium, to assume a position in a futures contract at a specified exercise price during the term of the option. Index futures are futures contracts for various indices that are traded on registered securities exchanges.
Options.
The buyer of an option acquires the right to buy (a call option) or sell (a put option) a certain quantity of a security (the underlying security) or instrument at a certain price up to a specified point in time. The seller or writer of an option is obligated to sell (a call option) or buy (a put option) the
underlying security. When writing (selling) call options on securities, the Fund may cover its positions by owning the underlying security on which the option is written or by owning a call option on the underlying security. Alternatively, the Fund may cover its positions by maintaining, in a segregated account, cash
or liquid securities equal in value to the exercise price of the call options written by the Fund.
The risks associated with the Funds use of futures and options contracts include:
The Fund experiencing losses that exceed losses experienced by funds that do not use futures contracts and options.
There may be an imperfect correlation between the changes in market value of the securities held by the Fund and the prices of futures and options on futures.
Due to market conditions, there may not always be a liquid secondary market for a futures contract. As a result, the Fund may be unable to close out its futures contracts at a time which is advantageous.
Trading restrictions or limitations may be imposed by an exchange, and government regulations may restrict trading in futures contracts and options.
Because option premiums paid or received by the Fund are small in relation to the market value of the investments underlying the options, buying and selling put and call options can be more speculative than investing directly in securities.
8
INDUSTRY CONCENTRATION
Definition
To the extent the CMCI is concentrated in a particular industry the Fund will necessarily be concentrated in that industry.
Risk
The Fund may be subject to greater risks and market fluctuations than a fund whose portfolio has exposure to a broader range of industries. The Fund may be susceptible to financial, economic, political or market events, as well as government regulation, impacting a particular industry.
MARKET
Definition
An investment in the Fund involves market riskthe risk that the prices of securities, commodities and related instruments will rise or fall.
Risk
Market risk refers to the risk that the market prices of securities, commodities and related instruments that the Fund holds will rise or fall, sometimes rapidly or unpredictably. Security prices may decline over short or even extended periods not only because of company-specific developments but also due to an
economic downturn, a change in interest or currency rates or a change in investor sentiment. In general, equity securities and commodities tend to have greater price volatility than debt securities.
NON-DIVERSIFICATION
Definition
A non-diversified fund may invest a larger portion of its assets in a single issuer. A diversified fund is required by the Investment Company Act of 1940, as amended (the 1940 Act), generally, with respect to 75% of its total assets, to invest not more than 5% of such assets in the securities of a single issuer.
Risk
A non-diversified funds greater investment in a single issuer makes the fund more susceptible to financial, economic or market events impacting such issuer. A decline in the value of or default by a single security in the non-diversified funds portfolio may have a greater negative effect than a similar decline or
default by a single security in a diversified portfolio.
REGULATORY
Definition
The Fund and the Subsidiary are subject to the laws and regulated by the governments of the United States and/or the Cayman Islands, respectively.
Risk
Changes in the laws or regulations of the United States or the Cayman Islands, including any changes to applicable tax laws and regulations, could impair the ability of the Fund to achieve its investment objective and could increase the operating expenses of the Fund or the Subsidiary. For example, the CFTC
recently adopted amendments to existing regulations that, upon effectiveness, may subject activities of the Fund or the Subsidiary involving investments in futures contracts and similar instruments to regulation by the CFTC, including a variety of registration, disclosure and operational obligations. It is expected
that additional regulations will be adopted by the CFTC in the future. The likely impact of such existing and future regulations on the Fund or the Subsidiary is unclear as of the date of this prospectus.
9
II. INVESTMENT OBJECTIVE, STRATEGIES, POLICIES, RISKS AND OTHER INFORMATION (continued)
Investment in the Subsidiary is expected to provide the Fund with exposure to the commodities markets within the limitations of the federal income tax requirements of Subchapter M of the Internal Revenue Code of 1986, as amended. Subchapter M requires, among other things, that at least 90% of the Funds
gross income be derived from securities or derived with respect to its business of investing in securities (typically referred to as qualifying income). Income from certain of the commodity-linked derivatives in which the Fund invests may not be treated as qualifying income for purposes of the 90% income
requirement. The Fund has received private letter rulings from the Internal Revenue Service (IRS) confirming that income from the Funds investment in the Subsidiary and income derived from certain commodity-linked notes will constitute qualifying income for purposes of Subchapter M. However, the IRS has
announced an internal review of its position with respect to the tax treatment of a regulated investment company subsidiary that invests in commodities or commodity-related investments, and a moratorium on the issuance of new private letter rulings with respect to them. Although the Funds private letter rulings
remain in effect, it is possible that a change in the IRSs position with respect to the Subsidiary could cause the IRS to withdraw those private letter rulings and limit the Funds ability to pursue its investment objective as described.
REPURCHASE AND REVERSE REPURCHASE AGREEMENTS
Definition
In a repurchase agreement, the Fund acquires a security for a short time while agreeing to sell it back at a designated price and time. The agreement creates a fixed rate of return not subject to market fluctuations. In a reverse repurchase agreement, the Fund sells a security subject to the obligation of a buyer
to resell and the Fund to repurchase such security at a fixed time and price The Fund enters into these agreements generally with member banks of the Federal Reserve System or certain non-bank dealers; these counterparties collateralize the transaction.
Risk
A repurchase agreement exposes the Fund to the risk that the party that sells the security may default on its obligation to repurchase it. The Fund may lose money if it cannot sell the security at the agreed-upon time and price or the security loses value before it can be sold. A reverse repurchase agreement
involves the risk that the market value of the securities the Fund is obligated to repurchase under the agreement may decline below the repurchase price. In the event the buyer of securities under a reverse repurchase agreement files for bankruptcy or becomes insolvent, the Funds use of proceeds of the
agreement may be restricted pending a determination by the other party, or its trustee or receiver, whether to enforce the Funds obligation to repurchase the securities.
SUBSIDIARY
Definition
By investing in the Subsidiary, the Fund is indirectly exposed to the risks associated with the Subsidiarys investments. The derivatives and other investments held by the Subsidiary are generally similar to those that are permitted to be held by the Fund and are subject to the same risks that apply to similar
investments if held directly by the Fund. These risks are described elsewhere in this prospectus.
Risk
The Subsidiary is not registered under the 1940 Act, and, unless otherwise noted in this prospectus, is not subject to all the investor protections of the 1940 Act. In addition, changes in the laws of the United States and/or the Cayman Islands could result in the inability of the Fund and/or the Subsidiary to
operate as described in this prospectus and the SAI and could eliminate or severely limit the Funds ability to invest in the Subsidiary which may adversely affect the Fund and its shareholders.
TRACKING ERROR
Definition
The Funds investment objective is to seek to track, before fees and expenses, the performance of the CMCI.
Risks
The Funds return may not match the return of the CMCI due to, among other factors, the Fund incurring operating expenses, and not being fully invested at all times as a result of cash inflows and cash reserves to meet redemptions.
10
3. ADDITIONAL INVESTMENT STRATEGIES
INVESTING DEFENSIVELY
Strategy
The Fund may take temporary defensive positions in anticipation of or in an attempt to respond to adverse market, economic, political or other conditions. Such a position could have the effect of reducing any benefit the Fund may receive from a market increase.
SECURITIES LENDING
Strategy
The Fund may lend its securities as permitted under the 1940 Act, including by participating in securities lending programs managed by broker-dealers or other institutions. Securities lending allows the Fund to retain ownership of the securities loaned and, at the same time, earn additional income. The borrowings
must be collateralized in full with cash, U.S. government securities or high-quality letters of credit.
The Fund could experience delays and costs in recovering the securities loaned or in gaining access to the securities lending collateral. If the Fund is not able to recover the securities loaned, the Fund may sell the collateral and purchase a replacement investment in the market. The value of the collateral could
decrease below the value of the replacement investment by the time the replacement investment is purchased. Cash received as collateral and which is invested is subject to market appreciation and depreciation.
4. OTHER INFORMATION AND POLICIES
OVERVIEW OF THE CMCI
The CMCI represents a basket of commodity futures contracts with 28 components, representing 24 underlying commodities (as of February 1, 2012). Exposure to each component is allocated across a range of maturities ranging from three months to three years. In contrast, traditional commodity indices typically invest in front-month
futures contracts with shorter tenors (time to maturity).
The CMCI also employs a constant maturity approach by relying on a continuous roll methodology in which the CMCI invests in and out of future contracts on a daily basis. This methodology differs from traditional commodity indices, which usually are pre-defined to roll on a monthly or bi-monthly basis. The CMCI represents
commodities in five primary sectors including Energy, Agriculture, Industrial Metals, Precious Metals and Livestock. The relevant exchanges on which the underlying commodities trade include the New York Mercantile Exchange (including the COMEX division), Chicago Board of Trade, London Metal Exchange, New York Board of Trade,
Chicago Mercantile Exchange, Kansas City Board of Trade, ICE Futures and Euronext.Liffe.
The overall return of the CMCI is generated by two components: (i) uncollateralized returns from holding and rolling of futures contracts comprising the CMCI and (ii) a daily fixed-income return, which reflects the interest earned on a hypothetical 91-day Treasury Bill portfolio theoretically deposited as margin for hypothetical positions in
the futures contracts comprising the CMCI.
PORTFOLIO HOLDINGS INFORMATION
Generally, it is the Funds and Advisers policy that no current or potential investor, including any Fund shareholder, shall be provided information about the Funds portfolio on a preferential basis in advance of the provision of that information to other investors. A complete description of the Funds policies and procedures with respect
to the disclosure of the Funds portfolio securities is available in the Funds SAI.
Limited portfolio holdings information for the Fund is available to all investors on the Van Eck website at vaneck.com. This information regarding the Funds top holdings and country and sector weightings, updated as of each month-end, is located on this website. Generally, this information is posted to the website within 30 days of the
end of the applicable month. This information generally remains available on the website until new information is posted. The Fund reserves the right to exclude any portion of these portfolio holdings from publication when deemed in the best interest of the Fund, and to discontinue the posting of portfolio holdings information at any
time, without prior notice.
PORTFOLIO INVESTMENTS
The percentage limitations relating to the composition of the Funds portfolio apply at the time the Fund acquires an investment. A subsequent increase or decrease in percentage resulting from a change in the value of portfolio securities or the total or net assets of the Fund will not be considered a violation of the restriction.
11
1. HOW TO BUY, SELL, EXCHANGE OR TRANSFER SHARES
The Fund offers Class A, Class I and Class Y shares. Information related to how to buy, sell, exchange and transfer shares is discussed below. See the Minimum Purchase section for information related to initial and subsequent minimum investment amounts. The minimum investment amounts vary by share class.
Through a Financial Intermediary
Primarily, accounts are opened through a financial intermediary (broker, bank, adviser or agent). Please contact your representative for details.
Through the Transfer Agent, DST Systems, Inc. (DST)
You may buy (purchase), sell (redeem), exchange, or transfer ownership of Class A and Class I shares directly through DST by mail or telephone, as stated below. For Class Y shares, shareholders must open accounts and transact business through a financial intermediary.
The Funds mailing address at DST is:
Van Eck Global
For overnight delivery:
Van Eck Global
Non-resident aliens cannot make a direct investment to establish a new account in the Fund, but may invest through their broker or agent and certain foreign financial institutions that have agreements with Van Eck.
To telephone the Fund at DST, call Van Ecks Account Assistance at 800-544-4653.
Purchase by Mail
To make an initial purchase, complete the Van Eck Account Application and mail it with your check made payable to Van Eck Funds. Subsequent purchases can be made by check with the remittance stub of your account statement. You cannot make a purchase by telephone. We cannot accept third party checks, starter checks,
money orders, travelers checks, cashier checks, checks drawn on a foreign bank, or checks not in U.S. dollars. There are separate applications for Van Eck retirement accounts (see Retirement Plans for details). For further details, see the application or call Account Assistance.
Telephone RedemptionProceeds by Check 800-345-8506
If your account has the optional Telephone Redemption Privilege, you can redeem up to $50,000 per day. The redemption check must be payable to the registered owner(s) at the address of record (which cannot have been changed within the past 30 days). You automatically get the Telephone Redemption Privilege (for eligible
accounts) unless you specifically refuse it on your Account Application, on broker/agent settlement instructions, or by written notice to DST. All accounts are eligible for the privilege except those registered in street, nominee, or corporate name and custodial accounts held by a financial institution, including Van Eck sponsored retirement
plans.
Expedited RedemptionProceeds by Wire 800-345-8506
If your account has the optional Expedited Redemption Privilege, you can redeem a minimum of $1,000 or more per day by telephone or written request with the proceeds wired to your designated bank account. The Fund reserves the right to waive the minimum amount. This privilege must be established in advance by Application.
For further details, see the Application or call Account Assistance.
Written Redemption
Your written redemption (sale) request must include:
<
Fund and account number.
<
Number of shares or dollar amount to be redeemed, or a request to sell all shares.
<
Signatures of all registered account holders, exactly as those names appear on the account registration, including any additional documents concerning authority and related matters in the case of estates, trusts, guardianships, custodianships, partnerships and corporations, as requested by DST.
12
P.O. Box 218407
Kansas City, MO 64121-8407
210 W. 10th St., 8th Fl.
Kansas City, MO 64105-1802
<
Special instructions, including bank wire information or special payee or address.
A signature guarantee for each account holder will be required if:
<
The redemption is for $50,000 or more.
<
The redemption amount is wired.
<
The redemption amount is paid to someone other than the registered owner.
<
The redemption amount is sent to an address other than the address of record.
<
The address of record has been changed within the past 30 days.
Institutions eligible to provide signature guarantees include banks, brokerages, trust companies, and some credit unions.
Telephone Exchange 800-345-8506
If your account has the optional Telephone Exchange Privilege, you can exchange between Funds of the same Class without any additional sales charge. (Shares originally purchased into the Van Eck Money Fund (the Money Fund), which paid no sales charge, may pay an initial sales charge the first time they are exchanged into
another Class A fund. All accounts are eligible except for omnibus accounts or those registered in street name and certain custodial retirement accounts held by a financial institution other than Van Eck. For further details regarding exchanges, please see the application, Limits and Restrictions and Unauthorized Telephone Requests
below, or call Account Assistance.
Written Exchange
Written requests for exchange must include:
<
The fund and account number to be exchanged out of.
<
The fund to be exchanged into.
<
Directions to exchange all shares or a specific number of shares or dollar amount.
<
Signatures of all registered account holders, exactly as those names appear on the account registration, including any additional documents concerning authority and related matters in the case of estates, trusts, guardianships, custodianships, partnerships and corporations, as requested by DST.
For further details regarding exchanges, please see the applicable information in Telephone Exchange.
Certificates
Certificates are not issued for new or existing shares.
Transfer of Ownership
Requests must be in writing and provide the same information and legal documentation necessary to redeem and establish an account, including the social security or tax identification number of the new owner.
Redemption in Kind
The Fund reserves the right to satisfy redemption requests by making payment in securities (known as a redemption in kind). In such case, the Fund may pay all or part of the redemption in securities of equal value as permitted under the 1940 Act, and the rules thereunder. The redeeming shareholder should expect to incur
transaction costs upon the disposition of the securities received.
LIMITS AND RESTRICTIONS
Frequent Trading Policy
The Board of Trustees has adopted policies and procedures reasonably designed to deter frequent trading in shares of the Fund, commonly referred to as market timing, because such activities may be disruptive to the management of the Funds portfolio and may increase the Funds expenses and negatively impact the Funds
performance. As such, the Fund may reject a purchase or exchange transaction or restrict an account from investing in the Fund for any reason if the Adviser, in its sole discretion, believes that a shareholder is engaging in market timing activities that may be harmful to the Fund. The Fund discourages and does not accommodate
frequent trading of shares by its shareholders.
The Fund invests portions of its assets in securities of foreign issuers, and consequently may be subject to an increased risk of frequent trading activities because frequent traders may attempt to take advantage of time zone differences between the foreign markets in which the Funds portfolio securities trade and the time as of which
the Funds net asset value is calculated (time-zone arbitrage). The Funds investments in other types of securities may also be susceptible to frequent trading strategies. These investments include securities that are, among other things, thinly traded, traded infrequently, or relatively illiquid, which have the risk that the current market
price for the securities may not accurately
13
III. SHAREHOLDER INFORMATION (continued)
reflect current market values. The Fund has adopted fair valuation policies and procedures intended to reduce the Funds exposure to potential price arbitrage. However, there is no guarantee that the Funds net asset value will immediately reflect changes in market conditions.
The Fund uses a variety of techniques to monitor and detect abusive trading practices, such as monitoring purchases, redemptions and exchanges that meet certain criteria established by the Fund, and making inquiries with respect to such trades. If a transaction is rejected or an account restricted due to suspected market timing, the
investor or his or her financial adviser will be notified.
With respect to trades that occur through omnibus accounts at intermediaries, such as broker-dealers and third party administrators, the Fund requires all such intermediaries to agree to cooperate in identifying and restricting market timers in accordance with the Funds policies and will periodically request customer trading activity in the
omnibus accounts based on certain criteria established by the Fund. There is no assurance that the Fund will request such information with sufficient frequency to detect or deter excessive trading or that review of such information will be sufficient to detect or deter excessive trading in omnibus accounts effectively.
Although the Fund will use reasonable efforts to prevent market timing activities in the Funds shares, there can be no assurances that these efforts will be successful. As some investors may use various strategies to disguise their trading practices, the Funds ability to detect frequent trading activities by investors that hold shares
through financial intermediaries may be limited by the ability and/or willingness of such intermediaries to monitor for these activities.
For further details, contact Account Assistance.
Unauthorized Telephone Requests
Like most financial organizations, Van Eck, the Fund and DST may only be liable for losses resulting from unauthorized transactions if reasonable procedures designed to verify the callers identity and authority to act on the account are not followed.
If you do not want to authorize the Telephone Exchange or Redemption privilege on your eligible account, you must refuse it on the Account Application, broker/agent settlement instructions, or by written notice to DST. Van Eck, the Fund, and DST reserve the right to reject a telephone redemption, exchange, or other request without
prior notice either during or after the call. For further details, contact Account Assistance.
AUTOMATIC SERVICES
Automatic Investment Plan
You may authorize DST to periodically withdraw a specified dollar amount from your bank account and buy shares in your Fund account. For further details and to request an Application, contact Account Assistance.
Automatic Exchange Plan
You may authorize DST to periodically exchange a specified dollar amount for your account from one Fund to another Fund. For further details and to request an Application, contact Account Assistance.
Automatic Withdrawal Plan
You may authorize DST to periodically withdraw (redeem) a specified dollar amount from your Fund account and mail a check to you for the proceeds. Your Fund account must be valued at $10,000 or more at the current offering price to establish the Plan. For further details and to request an Application, contact Account Assistance.
MINIMUM PURCHASE
Each class can set its own transaction minimums and may vary with respect to expenses for distribution, administration and shareholder services.
For Class A and Class Y shares, an initial purchase of $1,000 and subsequent purchases of $100 or more are required for non-retirement accounts. There are no purchase minimums for any retirement or pension plan account, for any account using the Automatic Investment Plan, or for any other periodic purchase program. Minimums
may be waived for initial and subsequent purchases through wrap fee and similar programs offered without a sales charge by certain financial institutions and third-party recordkeepers and/or administrators.
For Class I shares, an initial purchase by an eligible investor of $1 million is required. The minimum initial investment requirement may be waived or aggregated among investors, in the Advisers discretion, for investors in certain fee-based, wrap or other no-load investment programs, and for an eligible Employer-Sponsored Retirement
Plan with plan assets of $3 million or more, sponsored by financial intermediaries that have entered into a Class I agreement with Van Eck, as well as for other categories of investors. An Employer-Sponsored Retirement Plan includes (a) an employer sponsored
14
pension or profit sharing plan that qualifies (a Qualified Plan) under section 401(a) of the Internal Revenue Code of 1986, as amended (the Code), including Code section 401(k), money purchase pension, profit sharing and defined benefit plans; (b) an ERISA-covered 403(b) plan; and (c) certain non-qualified deferred compensation
arrangements that operate in a similar manner to a Qualified Plan, such as 457 plans and executive deferred compensation arrangements, but not including employer-sponsored IRAs. In addition, members of the Boards of Trustees of Van Eck Funds and Van Eck VIP Trust and each officer, director and employee of Van Eck may
purchase Class I shares without being subject to the $1 million minimum initial investment requirement. There are no minimum investment requirements for subsequent purchases to existing accounts. To be eligible to purchase Class I shares, you must also qualify as specified in How to Choose a Class of Shares.
ACCOUNT VALUE AND REDEMPTION
If the value of your account falls below $1,000 for Class A and Class Y shares and below $500,000 for Class I shares after the initial purchase, the Fund reserves the right to redeem your shares after 30 days notice to you.
This does not apply to accounts exempt from purchase minimums as described above.
HOW FUND SHARES ARE PRICED
The Fund buys or sells its shares at its net asset value, or NAV, per share next determined after receipt of a purchase or redemption plus any applicable sales charge. The Fund calculates its NAV every day the New York Stock Exchange (NYSE) is open, as of the close of regular trading on the NYSE, which is normally 4:00 p.m.
Eastern Time.
You may enter a buy or sell order when the NYSE is closed for weekends or holidays. If that happens, your price will be the NAV calculated as of the close of the next regular trading session of the NYSE. The Fund may invest in certain securities which are listed on foreign exchanges that trade on weekends or other days when the
Fund does not price its shares. As a result, the NAV of the Funds shares may change on days when shareholders will not be able to purchase or redeem shares.
The Funds investments are generally valued based on market quotations. When market quotations are not readily available for a portfolio security, or in the opinion of the Adviser do not reflect the securitys value, the Fund will use the securitys fair value as determined in good faith in accordance with the Funds Fair Value Pricing
Procedures, which have been approved by the Board of Trustees. As a general principle, the current fair value of a security is the amount which the Fund might reasonably expect to receive for the security upon its current sale. The Funds Pricing Committee, whose members are selected by the senior management of the Adviser, is
responsible for recommending fair value procedures to the Board of Trustees and for administering the process used to arrive at fair value prices.
Factors that may cause the Fund to use the fair value of a portfolio security to calculate the Funds NAV include, but are not limited to: (1) market quotations are not readily available because a portfolio security is not traded in a public market or the principal market in which the security trades is closed, (2) trading in a portfolio security
is limited or suspended and not resumed prior to the time at which the Fund calculates its NAV, (3) the market for the relevant security is thin, or the price is stale (
e.g.,
because its price doesnt change in five consecutive business days), (4) the Adviser determines that a market quotation is inaccurate, for example, because price
movements are highly volatile and cannot be verified by a reliable alternative pricing source, or (5) where a significant event affecting the value of a portfolio security is determined to have occurred between the time of the market quotation provided for a portfolio security and the time at which the Fund calculates its NAV.
In determining the fair value of securities, the Pricing Committee will consider, among other factors, the fundamental analytical data relating to the security, the nature and duration of any restrictions on disposition of the security, and the forces influencing the market in which the security is traded.
Foreign securities in which the Fund invests may be traded in markets that close before the time that the Fund calculates its NAV. Foreign securities are normally priced based upon the market quotation of such securities as of the close of their respective principal markets, as adjusted to reflect the Advisers determination of the impact
of events, such as a significant movement in the U.S. markets occurring subsequent to the close of such markets but prior to the time at which the Fund calculates its NAV.
Certain of the Funds portfolio securities are valued by an outside pricing service approved by the Board of Trustees. The pricing service may utilize an automated system incorporating a model based on multiple parameters, including a securitys local closing price (in the case of foreign securities), relevant general and sector indices,
currency fluctuations, and trading in depository receipts and futures, if applicable, and/or research evaluations by its staff, in determining what it believes is the fair valuation of the portfolio securities valued by such pricing service.
15
III. SHAREHOLDER INFORMATION (continued)
There can be no assurance that the Fund could purchase or sell a portfolio security at the price used to calculate the Funds NAV. Because of the inherent uncertainty in fair valuations, and the various factors considered in determining value pursuant to the Funds fair value procedures, there can be significant deviations between a fair
value price at which a portfolio security is being carried and the price at which it is purchased or sold. Furthermore, changes in the fair valuation of portfolio securities may be less frequent, and of greater magnitude, than changes in the price of portfolio securities valued by an independent pricing service, or based on market quotations.
2. HOW TO CHOOSE A CLASS OF SHARES
The Fund offers three classes of shares with different sales charges and 12b-1 fee schedules, designed to provide you with different purchase options according to your investment needs. Class A shares are offered to the general public. Shares of the Money Fund are not available for exchange with Class I or Class Y shares. Class I
shares are offered to eligible investors primarily through certain financial intermediaries that have entered into a Class I Agreement with Van Eck. The Fund reserves the right to accept direct investments by eligible investors. Class Y shares are offered only to investors through wrap fee and similar programs offered without a sales
charge by certain financial intermediaries and third-party recordkeepers and/or administrators that have entered into a Class Y agreement with Van Eck.
<
CLASS A Shares
are offered at net asset value plus an initial sales charge at time of purchase of up to 5.75% of the public offering price. The initial sales charge is reduced for purchases of $25,000 or more. For further information regarding sales charges, breakpoints and other discounts, please see below. The 12b-1 fee is
0.25% annually.
<
CLASS I Shares
are offered with no sales charges on purchases, no contingent deferred redemption charge (CDRC), and no 12b-1 fee. To be eligible to purchase Class I (Institutional) shares, you must be an eligible investor that is making or has made a minimum initial investment of at least $1 million (which may be reduced
or waived under certain circumstances) in Class I shares of the Fund. Eligible investors in Class I shares include corporations, foundations, family offices and other institutional organizations; high net worth individuals; or a bank, trust company or similar institution investing for its own account or for the account of a client when
such institution has entered into a Class I agreement with Van Eck and makes Class I shares available to the clients program or plan.
<
CLASS Y Shares
are offered with no sales charges on purchases, no CDRC, and no 12b-1 fee. To be eligible to purchase Class Y shares, you must be an eligible investor in a wrap-fee or other fee-based program, including an Employer-Sponsored Retirement Plan, offered through a financial intermediary that has entered into
a Class Y Agreement with Van Eck, and makes Class Y shares available to that program or plan. An Employer-Sponsored Retirement Plan includes (a) an employer sponsored pension or profit sharing plan that qualifies (a Qualified Plan) under section 401(a) of the Internal Revenue Code of 1986, as amended (the Code),
including Code section 401(k), money purchase pension, profit sharing and defined benefit plans; (b) an ERISA-covered 403(b) plan; and (c) certain non-qualified deferred compensation arrangements that operate in a similar manner to a Qualified Plan, such as 457 plans and executive deferred compensation arrangements, but not
including employer-sponsored IRAs.
Financial intermediaries may offer their clients more than one class of shares of the Fund. Shareholders who own shares of one class of a Fund and who are eligible to invest in another class of the same Fund may be eligible to convert their shares from one class to the other. For additional information, please contact your financial
intermediary or see Class Conversions in the SAI. Investors should consider carefully the Funds share class expenses and applicable sales charges and fees plus any separate transaction and other fees charged by such intermediaries in connection with investing in each available share class before selecting a share class. It is the
responsibility of the financial intermediary and the investor to choose the proper share class and notify DST or Van Eck of that share class at the time of each purchase. More information regarding share class eligibility is available in the How to Buy, Sell, Exchange, or Transfer Shares section of the prospectus and in Purchase of
Shares in the SAI.
Unless you are eligible for a waiver, the public offering price you pay when you buy Class A shares of the Fund is the Net Asset Value (NAV) of the shares plus an initial sales charge. The initial sales charge varies depending upon the size of your purchase, as set forth below. No sales charge is imposed where Class A shares are
issued to you pursuant to the automatic investment of income dividends or capital gains distribution. It is the responsibility of the financial intermediary to ensure that the investor obtains the proper breakpoint discount. Class I and Class Y do not have an initial sales charge; however, Class A does charge a contingent deferred sales
charge as set forth below.
16
Class A Shares Sales Charges
Dollar Amount of Purchase
Sales Charge as a
Percentage of
Percentage to
Offering
Net Amount
Less than $25,000
5.75
%
6.10
%
5.00
%
$25,000 to less than $50,000
5.00
%
5.30
%
4.25
%
$50,000 to less than $100,000
4.50
%
4.70
%
3.90
%
$100,000 to less than $250,000
3.00
%
3.10
%
2.60
%
$250,000 to less than $500,000
2.50
%
2.60
%
2.20
%
$500,000 to less than $1,000,000
2.00
%
2.00
%
1.75
%
$1,000,000 and over
None
2
(1)
Brokers or Agents who receive substantially all of the sales charge for shares they sell may be deemed to be statutory underwriters.
(2)
The Distributor may pay a Finders Fee of 1.00% to eligible brokers and agents on qualified commissionable shares purchased after April 30, 2012 at or above the $1 million breakpoint level. Such shares may be subject to a 1.00% contingent deferred sales charge if redeemed within one year from the date of purchase. For additional information, see Contingent Deferred
Sales Charge for Class A Shares below or contact the Distributor or your financial intermediary.
CONTINGENT DEFERRED SALES CHARGE FOR CLASS A SHARES
Class A shares purchased after April 30, 2012 at or above the $1 million breakpoint in accordance with the sales load schedule identified above (referred to as commissionable shares) that are redeemed within one year of purchase will be subject to a contingent deferred sales charge (CDSC) in the amount of 1.00% of the lesser of
the current value of the shares redeemed or the original purchase price of such shares. The CDSC will be paid to the Distributor as reimbursement for any Finders Fee previously paid by the Distributor to an eligible broker or agent at the time the commissionable shares were purchased and may be waived by the Distributor if the
original purchase did not result in the payment of a Finders Fee. For purposes of calculating the CDSC, shares will be redeemed in the following order: (1) first shares that are not subject to the CDSC (
e.g.
, dividend reinvestment shares and other non-commissionable shares) and (2) then other shares on a first in, first out basis. A
CDSC will not be charged in connection with an exchange of Class A shares into Class A shares (including the Money Fund) of another Van Eck Fund; however, the shares received upon an exchange will be subject to the CDSC if they are subsequently redeemed within one year of the date of the original purchase (subject to the
same terms and conditions described above). For further details regarding eligibility for the $1 million breakpoint, please see Section 3. Sales Charges, Reduced or Waived Sales Charges below.
REDUCED OR WAIVED SALES CHARGES
You may qualify for a reduced or waived sales charge as stated below, or under other appropriate circumstances. You (or your broker or agent) must notify DST or Van Eck at the time of each purchase or redemption whenever a reduced or waived sales charge is applicable. The term purchase refers to a single purchase by an
individual (including spouse and children under age 21), corporation, partnership, trustee, or other fiduciary for a single trust, estate, or fiduciary account. For further details, see the SAI. The value of shares owned by an individual in Class A and Class C of each of the Van Eck Funds may be combined for a reduced sales charge in
Class A shares only. (The Money Fund cannot be combined for a reduced sales charge in Class A shares.)
In order to obtain a reduced sales charge (
i.e.
, breakpoint discount) or to meet an eligibility minimum, it will be necessary at the time of purchase for you to inform your broker or agent (or DST or Van Eck), of the existence of other accounts in which there are holdings eligible to be aggregated to meet the sales load breakpoints or
eligibility minimums.
The Fund makes available information regarding applicable sales loads, breakpoint discounts, reduced or waived sales charges and eligibility minimums, on their website at vaneck.com, free of charge.
FOR CLASS A SHARES
Right of Accumulation
When you buy shares, the amount you purchase will be combined with the value, at current offering price, of any existing Fund shares you own. This total will determine the sales charge level for which you qualify.
Combined Purchases
The combined amounts of your multiple purchases in the Fund on a single day determines the sales charge level for which you qualify.
17
Brokers or Agents
1
Price
Invested
III. SHAREHOLDER INFORMATION (continued)
Letter of Intent
If you plan to make purchases in the Fund within a 13 month period that total an amount equal to a reduced sales charge level, you can establish a Letter of Intent (LOI) for that amount. Under the LOI, your initial and subsequent purchases during that period receive the sales charge level applicable to that total amount. For escrow
provisions and details, see the Application and the SAI.
Persons Affiliated with Van Eck
Trustees, officers, and full-time employees (and their families) of the Fund, Adviser or Distributor may buy without a sales charge. Also, employees (and their spouses and children under age 21) of a brokerage firm or bank that has a selling agreement with Van Eck, and other affiliates and agents, may buy without a sales charge.
Load-waived Programs Through Financial Intermediaries
Financial intermediaries that meet certain requirements and: (i) are compensated by their clients on a fee-only basis, including but not limited to Investment Advisors, Financial Planners, and Bank Trust Departments; or (ii) have entered into an agreement with Van Eck to offer Class A shares through a no-load network or platform, may
buy without a sales charge on behalf of their clients.
Foreign Financial Institutions
Certain foreign financial institutions that have international selling agreements with Van Eck may buy shares with a reduced or waived sales charge for their omnibus accounts on behalf of foreign investors. Shareholders who purchase shares through a foreign financial institution at a fixed breakpoint may pay a greater or lesser sales
charge than if they purchased directly through a U.S. dealer.
Institutional Retirement Programs
Certain financial institutions and third-party recordkeepers and/or administrators who have agreements with Van Eck may buy shares without a sales charge for their accounts on behalf of investors in retirement plans and deferred compensation plans other than IRAs.
Buy-back Privilege
You have the right, once a year, to reinvest proceeds of a redemption from Class A shares of the Fund into that Fund or Class A shares of another Fund within 30 days without a sales charge (excluding the Money Fund). If you invest into the same Fund within 30 days before or after you redeem your shares at a loss, the wash sale
rules apply to disallow for tax purposes a loss realized upon redemption.
FOR CLASS I AND CLASS Y SHARES
No initial sales charge, or CDRC fee is imposed on Class I or Class Y shares. Class I and Class Y are no-load share classes.
4. HOUSEHOLDING OF REPORTS AND PROSPECTUSES
If more than one member of your household is a shareholder of any of the funds in the Van Eck Family of Funds, regulations allow us to deliver single copies of your shareholder reports, prospectuses and prospectus supplements to a shared address for multiple shareholders. For example, a husband and wife with separate accounts
in the same fund who have the same shared address generally receive two separate envelopes containing the same report or prospectus. Under the system, known as householding, only one envelope containing one copy of the same report or prospectus will be mailed to the shared address for the household. You may benefit from
this system in two ways, a reduction in mail you receive and a reduction in fund expenses due to lower fund printing and mailing costs. However, if you prefer to continue to receive separate shareholder reports and prospectuses for each shareholder living in your household now or at any time in the future, please call Account
Assistance at 800-544-4653.
Fund shares may be invested in tax-advantaged retirement plans sponsored by Van Eck or other financial organizations. Retirement plans sponsored by Van Eck use State Street Bank and Trust Company as custodian and must receive investments directly by check or wire using the appropriate Van Eck retirement plan application.
Confirmed trades through a broker or agent cannot be accepted. To obtain applications and helpful information on Van Eck retirement plans, contact your broker or agent or Account Assistance.
18
Retirement Plans Sponsored by Van Eck:
Traditional IRA
Roth IRA
SEP IRA
Qualified (Pension and Profit Sharing) Plans
TAXATION OF DIVIDENDS AND CAPITAL GAINS DISTRIBUTIONS YOU RECEIVE
For tax-reportable accounts, dividends and capital gains distributions are normally taxable even if they are reinvested. Certain dividends may be treated as qualified dividend income, taxable at long-term capital gain rates. Other dividends and short-term capital gains are taxed as ordinary income. Long-term capital gains are taxed at
long-term capital gain rates. Tax laws and regulations are subject to change.
TAXATION OF SHARES YOU SELL
For tax-reportable accounts, when you redeem your shares you may incur a capital gain or loss on the proceeds. The amount of gain or loss, if any, is the difference between the amount you paid for your shares (including reinvested dividends and capital gains distributions) and the amount you receive from your redemption. Be sure
to keep your regular statements; they contain the information necessary to calculate the capital gain or loss. An exchange of shares from one Fund to another will be treated as a sale and purchase of Fund shares. It is therefore a taxable event.
COST BASIS REPORTING
As required by law, for shares purchased on and after January 1, 2012 in accounts eligible for 1099-B tax reporting by Van Eck Funds for which tax basis information is available (covered shares), the Van Eck Funds will provide cost basis information to you and the Internal Revenue Service (IRS) for shares using the IRS Tax Form
1099-B. Generally, cost basis is the dollar amount paid to purchase shares, including purchases of shares made by reinvestment of dividends and capital gains distributions, adjusted for various items, such as sales charges and transaction fees, wash sales, and returns of capital.
The cost basis of your shares will be calculated using the Funds default cost basis method of Average Cost, and the Fund will deplete your oldest shares first, unless you instruct the Fund to use a different cost basis method. You may elect the cost basis method that best fits your specific tax situation using Van Ecks Cost Basis
Election Form. It is important that any such election be received in writing from you by the Van Eck Funds before you redeem any covered shares since the cost basis in effect at the time of redemption, as required by law, will be reported to you and the IRS. Particularly, any election or revocation of the Average Cost method must be
received in writing by the Van Eck Funds before you redeem covered shares. The Van Eck Funds will process any of your future redemptions by depleting your oldest shares first (FIFO). If you elect a cost basis method other than Average Cost, the method you chose will not be utilized until shares held prior to January 1, 2012 are
liquidated. Cost basis reporting for non-covered shares will be calculated and reported separately from covered shares. You should carefully review the cost basis information provided by the Fund and make any additional cost basis, holding period, or other adjustments that are required when reporting these amounts on your federal,
state, and local income tax returns. For tax advice specific to your situation, please contact your tax advisor and visit the IRS website at IRS.gov. The Van Eck Funds cannot and do not provide any advice, including tax advice.
To obtain Van Ecks Cost Basis Election Form and to learn more about the cost basis elections offered by the Van Eck Funds, please go to our website at vaneck.com or call Van Eck Account Services at 800-544-4653.
NON-RESIDENT ALIENS
Dividends and short-term capital gains, if any, paid to non-resident aliens generally are subject to the maximum withholding tax (or lower tax treaty rates for certain countries). The IRS considers these dividends U.S. source income. Currently, the Fund is not required to withhold tax from distributions of long-term capital gains or
redemption proceeds if non-resident alien status is properly certified.
7. DIVIDENDS AND CAPITAL GAINS DISTRIBUTIONS
Dividends and capital gains distributions are generally declared and paid annually in December. See your tax adviser for details. Short-term capital gains are treated like dividends and follow that schedule. Occasionally, a dividend and/or capital gain distribution may be made outside of the normal schedule.
19
III. SHAREHOLDER INFORMATION (continued)
Dividends and Capital Gains Distribution Schedule
Fund
Dividends and
Distribution of
CM Commodity Index Fund
December
December
Dividends and Capital Gains Distributions Reinvestment Plan
Dividends and/or distributions are automatically reinvested into your account without a sales charge, unless you elect a cash payment. You may elect cash payment either on your original Account Application, or by calling Account Assistance at 800-544-4653.
Divmove
You can have your cash dividends from a Class A Fund automatically invested in Class A shares of another Van Eck Fund. Cash dividends are invested on the payable date, without a sales charge. For details and an Application, call Account Assistance.
20
Short-Term Capital Gains
Long-Term Capital Gains
III. SHAREHOLDER INFORMATION (continued)
INFORMATION ABOUT FUND MANAGEMENT
INVESTMENT ADVISER
Van Eck Associates Corporation (the Adviser), 335 Madison Avenue, New York, New York 10017 has been an investment adviser since 1955 and also acts as adviser or sub-adviser to other mutual funds, exchange-traded funds, other pooled investment vehicles and separate accounts.
John C. van Eck and members of his immediate family own 100% of the voting stock of the Adviser. As of December 31, 2011, the Advisers assets under management were approximately $33.1 billion.
Fees Paid To The Adviser:
Pursuant to the Advisory Agreement, the Fund pays the Adviser a monthly fee at the annual rate of 0.75% of the Funds average daily net assets. For purposes of calculating these fees for the Fund, the net assets of the Fund include the value of the Funds interest in the Subsidiary. The Subsidiary does
not pay the Adviser a fee for managing the Subsidiarys portfolio.
The Adviser has agreed to waive fees and/or pay expenses for the Fund to the extent necessary to prevent the operating expenses of the Fund (excluding acquired fund fees and expenses, interest expense, trading expenses, dividends on securities sold short, taxes and extraordinary expenses) from exceeding 0.95% for Class A,
0.65% for Class I, and 0.70% for Class Y of the Funds average daily net assets per year until May 1, 2013. During such time, the expense limitation is expected to continue until the Board of Trustees acts to discontinue all or a portion of such expense limitation. In addition, the Adviser may voluntarily reimburse the Fund for certain
swap trading costs.
The Adviser also has agreed to waive fees and/or pay expenses for the Fund to the extent necessary to prevent the operating expenses of the Funds Class Y shares from exceeding the operating expenses of the Funds Class A shares.
A discussion regarding the basis for the Boards approval of the investment advisory agreement of the Fund is available in the Funds semi-annual report to shareholders for the fiscal period ended June 30, 2011.
PORTFOLIO MANAGER
CM COMMODITY INDEX FUND
Portfolio Manager
The portfolio manager is responsible for the day-to-day portfolio management of the Fund.
Michael Mazier
. Mr. Mazier has been employed by the Adviser since August 2007. Prior to joining the Adviser, Mr. Mazier served as a bond analyst in the Fixed Income Research department of Morgan Stanley. He was also Vice President at Merrill Lynch Global Research Department, where he covered closed-end funds. Mr. Mazier
graduated from Syracuse University in 1983 with a Bachelor of Science majoring in Electrical Engineering; graduated from Villanova University in 1986 with a Master of Science in Computer Engineering; and graduated from Columbia Business School in 1990 with a Master of Business Administration. Mr. Mazier is on the investment
team for another fund of the Trust and serves as portfolio manager for certain other investment companies advised by the Adviser. Mr. Mazier has served as the portfolio manager of the Fund since its inception.
The SAI provides additional information about the above Portfolio Manager, his compensation and other accounts he manages.
PLAN OF DISTRIBUTION (12b-1 PLAN)
The Fund has adopted a Plan of Distribution pursuant to Rule 12b-1 under the Act that allows the Fund to pay distribution fees for the sale and distribution of its shares. Of the amounts expended under the plan for the fiscal year ended December 31, 2011 for all Van Eck Funds, approximately 87% was paid to Brokers and Agents
who sold shares or serviced accounts of Fund shareholders. The remaining 13% was retained by the Distributor to pay expenses such as printing and mailing prospectuses and sales material. Because these fees are paid out of the Funds assets on an on-going basis, over time these fees will increase the cost of your investment and
may cost you more than paying other types of sales charges. Class I and Class Y shares do not have 12b-1 fees. For a complete description of the Plan of Distribution, please see Plan of Distribution (12B-1 PLAN) in the SAI.
Van Eck Funds Annual 12b-1 Schedule
Fee to Fund
Payment to Dealer
CM Commodity Index Fund-A
0.25
%
0.25
%
22
THE TRUST
For more information on the Van Eck Funds (the Trust), the Trustees and the Officers of the Trust, see General Information, Description of the Trust and Trustees and Officers in the SAI.
EXPENSES
The Fund bears all expenses of its operations other than those incurred by the Adviser or its affiliate under the Advisory and/or Administrative Agreement with the Trust. For a more complete description of Fund expenses, please see the SAI.
THE DISTRIBUTOR
Van Eck Securities Corporation, 335 Madison Avenue, New York, NY 10017 (the Distributor), a wholly owned subsidiary of the Adviser, has entered into a Distribution Agreement with the Trust.
The Distributor generally sells and markets shares of the Fund through intermediaries, such as broker-dealers. The intermediaries selling the Funds shares are compensated from sales charges and from 12b-1 fees and/or shareholder services fees paid directly and indirectly by the Fund.
In addition, the Distributor may pay certain intermediaries, out of its own resources and not as an expense of the Fund, additional cash or non-cash compensation as an incentive to intermediaries to promote and sell shares of the Fund and other mutual funds distributed by the Distributor. These payments are commonly known as
revenue sharing. The benefits that the Distributor may receive when it makes these payments include, among other things, placing the Fund on the intermediarys sales system and/or preferred or recommended fund list, offering the Fund through the intermediarys advisory or other specialized programs, and/or access (in some cases
on a preferential basis over other competitors) to individual members of the intermediarys sales force. Such payments may also be used to compensate intermediaries for a variety of administrative and shareholders services relating to investments by their customers in the Fund. The fees paid by the Distributor to intermediaries may be
calculated based on the gross sales price of shares sold by an intermediary, the net asset value of shares held by the customers of the intermediary, or otherwise. These fees, may, but are not normally expected to, exceed in the aggregate 0.50% of the average net assets of the funds attributable to a particular intermediary on an
annual basis.
The Distributor may also provide intermediaries with additional cash and non-cash compensation, which may include financial assistance to intermediaries in connection with conferences, sales or training programs for their employees, seminars for the public and advertising campaigns, technical and systems support, attendance at sales
meetings and reimbursement of ticket charges. In some instances, these incentives may be made available only to intermediaries whose representatives have sold or may sell a significant number of shares.
Intermediaries may receive different payments, based on a number of factors including, but not limited to, reputation in the industry, sales and asset retention rates, target markets, and customer relationships and quality of service. No one factor is determinative of the type or amount of additional compensation to be provided. Financial
intermediaries that sell Fund shares may also act as a broker or dealer in connection with execution of transactions for the Funds portfolios. The Fund and the Adviser have adopted procedures to ensure that the sales of the Funds shares by an intermediary will not affect the selection of brokers for execution of portfolio transactions.
Not all intermediaries are paid the same to sell mutual funds. Differences in compensation to intermediaries may create a financial interest for an intermediary to sell shares of a particular mutual fund, or the mutual funds of a particular family of mutual funds. Before purchasing shares of any Fund, you should ask your intermediary or
its representative about the compensation in connection with the purchase of such shares, including any revenue sharing payments it receives from the Distributor.
23
The financial highlights tables that follow are intended to help you understand the Funds financial performance since the commencement of the Funds operations. Certain information reflects financial results for a single Fund share. The total returns in the table represent the rate that an investor would have earned or lost on an
investment in the Fund (assuming reinvestment of all dividends and distributions). This information has been audited by Ernst & Young LLP, the Trusts independent registered public accounting firm, whose report, along with the Funds financial statements are included in the Funds annual report, which is available upon request.
CM COMMODITY INDEX FUND
For a share outstanding throughout each period:
Class A
Year Ended
Net asset value, beginning of year
$
8.88
Income from investment operations:
Net investment loss
(0.08
)(c)
Net realized and unrealized loss on investments
(0.68
)
Payment by the Adviser
0.04
(d)
Total from investment operations
(0.72
)
Net asset value, end of period
$
8.16
Total return (b)
(8.11
)%
Ratios/Supplemental Data
Net assets, end of period (000s)
$
36,031
Ratio of gross expenses to average net assets
1.66
%
Ratio of net expenses to average net assets
0.96
%
Ratio of net expenses, excluding interest expense, to
average net assets
0.95
%
Ratio of net investment loss to average net assets
(0.91
)%
Portfolio turnover rate
0
%
Class I
Year Ended
Net asset value, beginning of period
$
8.88
Income from investment operations:
Net investment loss
(0.05
)(c)
Net realized and unrealized loss on investments
(0.68
)
Payment by the Adviser
0.04
(d)
Total from investment operations
(0.69
)
Net asset value, end of period
$
8.19
Total return (b)
(7.77
)%
Ratios/Supplemental Data
Net assets, end of period (000s)
$
11,245
Ratio of gross expenses to average net assets
1.71
%
Ratio of net expenses to average net assets
0.65
%
Ratio of net expenses, excluding interest expense, to
average net assets
0.65
%
Ratio of net investment loss to average net assets
(0.61
)%
Portfolio turnover rate
0
%
(a)
Inception date for the Fund was December 31, 2010.
(b)
Total return is calculated assuming an initial investment made at the net asset value at the beginning of period, reinvestment of any dividends and distributions at net asset value on the dividend/distributions payment date and a redemption on the last day of the period. The return does not reflect the deduction of taxes that a shareholder would pay on Fund dividends/
distributions or the redemption of Fund shares.
(c)
Calculation based upon average shares outstanding.
(d)
For the year ended December 31, 2011, 0.49% of the Class A and Class I total return, representing $0.04 per share for Class A and Class I, consisted of a payment by the Adviser.
24
December 31,
2011 (a)
December 31,
2011 (a)
Class Y
Year Ended
Net asset value, beginning of period
$
8.88
Income from investment operations:
Net investment loss
(0.06
)(c)
Net realized and loss on investments
(0.69
)
Payment by the Adviser
0.05
(d)
Total from investment operations
(0.70
)
Net asset value, end of period
$
8.18
Total return (b)
(7.88
)%
Ratios/Supplemental Data
Net assets, end of period (000s)
$
7,448
Ratio of gross expenses to average net assets
1.56
%
Ratio of net expenses to average net assets
0.70
%
Ratio of net expenses, excluding interest expense, to
average net assets
0.70
%
Ratio of net investment loss to average net assets
(0.66
)%
Portfolio turnover rate
0
%
(a)
Inception date for the Fund was December 31, 2010.
(b)
Total return is calculated assuming an initial investment made at the net asset value at the beginning of period, reinvestment of any dividends and distributions at net asset value on the dividend/distributions payment date and a redemption on the last day of the period. The return does not reflect the deduction of taxes that a shareholder would pay on Fund dividends/
distributions or the redemption of Fund shares.
(c)
Calculated based upon average shares outstanding.
(d)
For the year ended December 31, 2011, 0.61% of the Class Y total return, representing $0.05 per share, consisted of a payment by the Adviser.
25
December 31,
2011 (a)
Appendix A: Description of the CMCI
The following is a more complete description of the UBS Bloomberg Constant Maturity Commodity Total Return Index (the CMCI or the Index), including, without limitation, information about the composition, weighting, method of calculation and procedures for changes in components and weights.
Overview of the CMCI
The CMCI represents a basket of commodity futures contracts with 28 components, representing 24 underlying commodities (as of February 1, 2012). Exposure to each component is allocated across a range of maturities ranging from three months to three years. In contrast, traditional commodity indices typically invest in front-month
futures contracts with shorter tenors (time to maturity).
The Index also employs a constant maturity approach by relying on a continuous roll methodology in which the Index invests in and out of future contracts on a daily basis. This methodology differs from traditional commodity indices, which usually are pre-defined to roll on a monthly or bi-monthly basis. The CMCI represents
commodities in five primary sectors including Energy, Agriculture, Industrial Metals, Precious Metals and Livestock. The relevant exchanges on which the underlying commodities trade include the New York Mercantile Exchange (including the COMEX division), Chicago Board of Trade, London Metal Exchange, New York Board of Trade,
Chicago Mercantile Exchange, Kansas City Board of Trade, ICE Futures and Euronext.Liffe.
The overall return of the Index is generated by two components: (i) uncollateralized returns from holding and rolling of futures contracts comprising the Index and (ii) a daily fixed-income return, which reflects the interest earned on a hypothetical 91-day Treasury Bill portfolio theoretically deposited as margin for hypothetical positions in
the futures contracts comprising the Index.
As of February 1, 2012, the CMCI consisted of the following commodity sectors with the following relative Target Weights: Energy (35.1%), Agriculture (28.7%), Industrial Metals (26.3%), Precious Metals (6.0%) and Livestock (3.9%).
Component Selection and Target Weights
For a commodity contract to be included in the Index, the following primary and secondary requirements have to be satisfied:
<
The primary requirements involve satisfying certain criteria related to the nature of the instrument as well as some technical characteristics including country of origin, trading characteristics, foreign exchange controls, availability and accuracy of contract, price and volume data.
<
The secondary requirements involve satisfying a series of purely financial thresholds based on liquidity, including, among other things, open interest and market volume. Open interest, which reflects positions in contracts that remain open on an overnight or multi-day basis, is used to assess past and future liquidity. Market volume,
which reflects the number of contracts traded in a given period of time, indicates immediate interest, and over a period of time provides a usable measure of liquidity.
Target Weights
The weighting process for the Index is designed to reflect the economic significance and market liquidity of each commodity. The Index sponsors use a two-step approach to determine Target Weights: first, economic indicators (regional Consumer Price Indexes (CPI), Producer Price Indexes (PPI) and Gross Domestic Projects (GDP)),
along with liquidity analysis, are used to determine the sector weights (Energy, Agriculture, Industrial Metals, Precious Metals and Livestock); secondly, global consumption data in conjunction with further liquidity analysis is used to calculate the individual component weights. In order to ensure a high level of diversification and avoid
unnecessary dilution, the weight of any individual index component is limited to 20% and any commodity with a weight that is lower than 0.60% is excluded from the CMCI.
Changes in the Target Weights and/or Index Composition
The CMCI Governance Committee (in consultation with the CMCI Advisory Committee) reviews the selection and weightings of the futures contracts in the Index bi-annually, in October and April, or at any special meeting called by the CMCI Advisory Committee. New Target Weights are therefore established on a bi-annual basis during
the CMCI Governance Committee meetings, subject to ratification by the Index Sponsors.
26
Tenors of Contracts
The Index represents a weighted average of all available CMCI constant maturities (ranging from three months to over three years). The distribution of weights to available tenors (time to maturity) is a function of relative liquidity of the underlying futures contracts. As of February 1, 2012, the average tenor of the futures contracts
comprising the Index is approximately 7.7 months. As with most asset classes, the liquidity of commodity futures contracts tends to reduce as time to maturity increases.
Rebalancing of the Index Components
Due to price movements, the weight of each component in the Index will fluctuate from its Target Weight over time. The weight of each Index component is therefore rebalanced over the final three CMCI Business Days of each month in order to bring each underlying commodity and tenor back to its target. The process is automatic
and is implemented via a pre-defined methodology.
In addition, twice annually in January and July there is a maintenance period at which time the Target Weights themselves are adjusted according to decisions of the CMCI Governance Committee as ratified by the Index Sponsors.
Calculation of the Index
The Index is calculated and disseminated by UBS approximately every fifteen seconds (assuming the Index level has changed within such fifteen-second interval) from 8:00 a.m. to 3:00 p.m., New York City time, and a daily closing Index level is published between 4:00 p.m. and 6:00 p.m., New York City time, on each Trading Day.
Index information is available via Bloomberg on pages CUBS, CMCN or CMCX and from Reuters on page UBSCMCI.
Index information is also available on the Bloomberg website:
http://www.bloomberg.com
(Select COMMODITIES from the drop-down menu entitled Market Data). For further information on CMCI, investors can go the
http://www.usb.com/cmci
. Index values can also be found at
http://www.ubs.com/keyinvest
, choose United States,
and then click on the Commodities tab.
Total Return
The Index is a total return index. In addition to uncollateralized returns generated from the futures contracts comprising the Index, a daily fixed-income return is added, which reflects the interest earned on a hypothetical 91-day Treasury Bill portfolio theoretically deposited as margin for hypothetical positions in the futures contracts
comprising the Index. The rate used to calculate the daily fixed-income return is the 91-day U.S. Treasury Bill auction rate, as published by the Treasury Security Auction Results report, published by the Bureau of the Public Debt currently available on the website:
http://www.treasurydirect.gov/annceresult/press/press.htm
. The rate is
generally published once per week on Monday and generally made effective with respect to the Index on the following Trading Day.
27
Appendix B: Licensing Agreement and Disclaimer
Van Eck Associates Corporation (the Adviser) has entered into a licensing agreement with UBS AG, London and Bloomberg Finance L.P. to use the UBS Bloomberg Constant Maturity Commodity Total Return Index (the CMCI). The CM Commodity Index Fund is entitled to use the CMCI pursuant to a sub-licensing arrangement with
the Adviser.
UBS and Bloomberg own or exclusively license, solely or jointly as agreed between them all proprietary rights with respect to the CMCI. Any third-party product based on or related to the CMCI (Product) may only be issued upon the prior joint written approval of UBS and Bloomberg and upon the execution of a license agreement
between UBS, Bloomberg and the party intending to launch a Product (a Licensee). In no way do UBS or Bloomberg sponsor or endorse, nor are they otherwise involved in the issuance and offering of a Product nor do either of them make any representation or warranty, express or implied, to the holders of the Product or any
member of the public regarding the advisability of investing in the Product or commodities generally or in futures particularly, or as to results to be obtained from the use of the CMCI or from the Product. Further, neither UBS nor Bloomberg provides investment advice to any Licensee specific to the Product, other than providing the
CMCI as agreed in the license agreement with the Licensee, and which will be done without consideration of the particular needs of the Product or the Licensee. UBS and Bloomberg each specifically disclaim any liability to any party for any inaccuracy in the data on which the CMCI is based, for any mistakes, errors, omissions or
interruptions in the calculation and/or dissemination of the CMCI, or for the manner in which such is applied in connection with the issuance and offering of a Product. In no event shall UBS or Bloomberg have any liability to any party for any lost profits or indirect, punitive, special or consequential damages or losses.
THIS IS NOT AN OFFER OR SOLICITATION BY UBS OR BLOOMBERG OF AN OFFER TO BUY OR SELL ANY SECURITY OR INVESTMENT. PAST PERFORMANCE OF THE UBS BLOOMBERG CONSTANT MATURITY COMMODITY INDEX IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS.
28
For more detailed information, see the Statement of Additional Information (SAI), which is legally a part of and is incorporated by reference into this prospectus.
Additional information about the investments is available in the Funds annual and semi-annual reports to shareholders. In the Funds annual reports, 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 800.826.1115, or visit the Van Eck website at vaneck.com to request, free of charge, the annual or semi-annual reports, the SAI, information regarding applicable sales loads, breakpoint discounts, reduced or waived sales charges and eligibility minimums, or other information about the Fund.
<
Information about the Fund (including the SAI) can also be reviewed and copied at the Securities and Exchange Commission (SEC) Public Reference Room in Washington, D.C. Information about the operation of the Public Reference Room may be obtained by calling 202.551.8090.
<
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 e-mail address: publicinfo@sec.gov, or by writing the SECs Public Reference Section, Washington, D.C. 20549-1520.
Transfer Agent:
800.544.4653
SEC REGISTRATION NUMBER: 811-04297
CMCIPRO
VAN ECK FUNDS
EMERGING MARKETS FUND
GLOBAL HARD ASSETS FUND
INTERNATIONAL INVESTORS GOLD FUND
CLASS A : INIVX / CLASS C: IIGCX / CLASS I:
INIIX / CLASS Y: INIYX
TABLE OF CONTENTS
Page
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4
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5
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5
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14
14
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15
15
15
16
16
16
17
17
17
18
20
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22
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23
OTHER ACCOUNTS MANAGED BY PORTFOLIO MANAGERS/INVESTMENT TEAM MEMBERS
26
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30
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39
39
39
39
39
40
40
41
42
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48
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49
49
A-1
B-1
STATEMENT OF ADDITIONAL INFORMATION
May 1, 2012
The Trust
is an open-end management investment company organized as a business trust
under the laws of the Commonwealth of Massachusetts on April 3, 1985.
This SAI
only pertains to the Funds. Shares of the other series of the Trust are offered
in separate prospectuses and statements of additional information. The Board of
Trustees of the Trust (the Board) has authority, without the necessity of a
shareholder vote, to create additional series or funds, each of which may issue
separate classes of shares.
International
Investors Gold Fund was formerly incorporated under the laws of the state of
Delaware under the name of International Investors Incorporated. International
Investors Incorporated was reorganized as a series of the Trust on April 30,
1991. International Investors Incorporated had been in continuous existence
since 1955, and had been concentrating in gold mining shares since 1968.
On October
31, 2003, Emerging Markets Fund engaged in a reorganization with the Asia
Dynasty Fund series of the Trust (the Reorganization). In the Reorganization,
Asia Dynasty Fund transferred substantially all of its assets to Emerging
Markets Fund in exchange for shares of Emerging Markets Fund which assumed all
stated liabilities of Asia Dynasty Fund. Class A shares of Asia Dynasty were
exchanged for Class A shares of Emerging Markets Fund and Class B shares of
Asia Dynasty were exchanged for Class C shares of Emerging Markets Fund.
Emerging
Markets Fund was formerly known as the Global Leaders Fund. Although the Fund
has been in existence since December 20, 1993, prior to December 18, 2002, it
operated with a substantially different investment strategy.
I
NVESTMENT
POLICIES AND RISKS
The
following is additional information regarding the investment policies and
strategies used by the Funds in attempting to achieve their respective
objectives, and should be read with the sections of the Funds Prospectus
titled Fund summary information - Principal Investment Strategies, Fund
summary information - Principal Risks and Investment objectives, strategies,
policies risks and other information.
Appendix B
to this SAI contains an explanation of the rating categories of Moodys
Investors Service, Inc. (Moodys) and Standard & Poors Corporation
(S&P) relating to the fixed-income securities and preferred stocks in
which the Funds may invest.
The Funds
may invest in asset-backed securities. Asset-backed securities, directly or
indirectly, represent interests in, or are secured by and payable from, pools
of consumer loans (generally unrelated to mortgage loans) and most often are
structured as pass-through securities. Interest and principal payments
ultimately depend on payment of the underlying loans, although the securities
may be supported by letters of credit or other credit enhancements. The value
of asset-backed securities may also depend on the creditworthiness of the
servicing agent for the loan pool, the originator of the loans, or the
financial institution providing the credit enhancement.
Asset-backed
securities are subject to certain risks. These risks generally arise out of the
security interest in the assets collateralizing the security. For example,
credit card receivables are generally unsecured and the debtors are
4
entitled to a number of protections from the state and through federal
consumer laws, many of which give the debtor the right to offset certain
amounts of credit card debts and thereby reducing the amounts due.
C
OLLATERALIZED
MORTGAGE OBLIGATIONS
The Funds
may invest in collateralized mortgage obligations (CMOs). CMOs are
fixed-income securities which are collateralized by pools of mortgage loans or
mortgage-related securities created by commercial banks, savings and loan
institutions, private mortgage insurance companies and mortgage bankers. In
effect, CMOs pass through the monthly payments made by individual borrowers
on their mortgage loans. Prepayments of the mortgages included in the mortgage
pool may influence the yield of the CMO. In addition, prepayments usually
increase when interest rates are decreasing, thereby decreasing the life of the
pool. As a result, reinvestment of prepayments may be at a lower rate than that
on the original CMO. There are different classes of CMOs, and certain classes
have priority over others with respect to prepayment of the mortgages. Timely
payment of interest and principal (but not the market value) of these pools is
supported by various forms of insurance or guarantees. The Funds may buy CMOs
without insurance or guarantees if, in the opinion of the Adviser, the pooler
is creditworthy or if rated A or better by S&P or Moodys. S&P and
Moodys assign the same rating classifications to CMOs as they do to bonds. In
the event that any CMOs are determined to be investment companies, the Funds
will be subject to certain limitations under the 1940 Act.
The Funds
may invest in commercial paper that is indexed to certain specific foreign
currency exchange rates. The terms of such commercial paper provide that its
principal amount is adjusted upwards or downwards (but not below zero) at
maturity to reflect changes in the exchange rate between two currencies while
the obligation is outstanding. The Funds will purchase such commercial paper
with the currency in which it is denominated and, at maturity, will receive
interest and principal payments thereon in that currency, but the amount or
principal payable by the issuer at maturity will change in proportion to the
change (if any) in the exchange rate between two specified currencies between
the date the instrument is issued and the date the instrument matures. While
such commercial paper entails the risk of loss of principal, the potential for
realizing gains as a result of changes in foreign currency exchange rates
enables the Funds to hedge or cross-hedge against a decline in the U.S. dollar
value of investments denominated in foreign currencies while providing an
attractive money market rate of return. The Funds will purchase such commercial
paper for hedging purposes only, not for speculation.
For hedging
purposes only, the Funds may invest in commercial paper with the principal
amount indexed to the difference, up or down, in value between two foreign
currencies. The Funds segregate asset accounts with an equivalent amount of
cash, U.S. government securities or other highly liquid securities equal in value
to this commercial paper. Principal may be lost, but the potential for gains in
principal and interest may help the Funds cushion against the potential decline
of the U.S. dollar value of foreign-denominated investments. At the same time,
this commercial paper may provide an attractive money market rate of return.
The Funds
may invest in securities that are convertible into common stock or other
securities of the same or a different issuer or into cash within a particular
period of time at a specified price or formula. Convertible securities are
generally fixed income securities (but may include preferred stock) and
generally rank senior to common stocks in a corporations capital structure
and, therefore, entail less risk than the corporations common stock. The value
of a convertible security is a function of its investment value (its value as
if it did not have a conversion privilege), and its conversion value (the
securitys worth if it were to be exchanged for the underlying security, at
market value, pursuant to its conversion privilege).
5
To the
extent that a convertible securitys investment value is greater than its
conversion value, its price will be primarily a reflection of such investment
value and its price will be likely to increase when interest rates fall and
decrease when interest rates rise, as with a fixed-income security (the credit
standing of the issuer and other factors may also have an effect on the
convertible securitys value). If the conversion value exceeds the investment
value, the price of the convertible security will rise above its investment
value and, in addition, will sell at some premium over its conversion value.
(This premium represents the price investors are willing to pay for the
privilege of purchasing a fixed-income security with a possibility of capital
appreciation due to the conversion privilege.) At such times the price of the
convertible security will tend to fluctuate directly with the price of the
underlying equity security. Convertible securities may be purchased by the
Funds at varying price levels above their investment values and/or their
conversion values in keeping with the Funds objective.
New issues
of certain debt securities are often offered on a when-issued basis. That is,
the payment obligation and the interest rate are fixed at the time the buyer
enters into the commitment, but delivery and payment for the securities
normally take place after the date of the commitment to purchase. The value of
when-issued securities may vary prior to and after delivery depending on market
conditions and changes in interest rate levels. However, the Funds do not
accrue any income on these securities prior to delivery. The Funds will
maintain in a segregated account with their Custodian an amount of cash or high
quality securities equal (on a daily marked-to-market basis) to the amount of
its commitment to purchase the when-issued securities. The Funds may also
invest in low rated or unrated debt securities. Low rated debt securities
present a significantly greater risk of default than do higher rated
securities, in times of poor business or economic conditions, the Funds may
lose interest and/or principal on such securities.
The Funds
may also invest in various money market securities for cash management purposes
or when assuming a temporary defensive position. Money market securities may
include commercial paper, bankers acceptances, bank obligations, corporate
debt securities, certificates of deposit, U.S. government securities and
obligations of savings institutions.
The Funds
may invest in Depositary Receipts, which represent an ownership interest in
securities of foreign companies (an underlying issuer) that are deposited
with a depositary. Depositary Receipts are not necessarily denominated in the same
currency as the underlying securities. Depositary Receipts include American
Depositary Receipts (ADRs), Global Depositary Receipts (GDRs) and other
types of Depositary Receipts (which, together with ADRs and GDRs, are
hereinafter collectively referred to as Depositary Receipts). ADRs are
dollar-denominated Depositary Receipts typically issued by a U.S. financial
institution which evidence an ownership interest in a security or pool of
securities issued by a foreign issuer. ADRs are listed and traded in the United
States. GDRs and other types of Depositary Receipts are typically issued by
foreign banks or trust companies, although they also may be issued by U.S.
financial institutions, and evidence ownership interests in a security or pool
of securities issued by either a foreign or a U.S. corporation. Generally,
Depositary Receipts in registered form are designed for use in the U.S.
securities market and Depositary Receipts in bearer form are designed for use
in securities markets outside the United States.
Depositary
Receipts may be sponsored or unsponsored. Sponsored Depositary Receipts are
established jointly by a depositary and the underlying issuer, whereas
unsponsored Depositary Receipts may be established by a
6
depositary without participation by the underlying issuer. Holders of
unsponsored Depositary Receipts generally bear all the costs associated with
establishing unsponsored Depositary Receipts. In addition, the issuers of the
securities underlying unsponsored Depository 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.
The Funds
may also use futures contracts and options, forward contracts and swaps as part
of various investment techniques and strategies, such as creating
non-speculative synthetic positions (covered by segregation of liquid assets)
or implementing cross-hedging strategies. A synthetic position is the
duplication of cash market transaction when deemed advantageous by the Adviser
for cost, liquidity or transactional efficiency reasons. A cash market
transaction is the purchase or sale of the security or other asset for cash.
Cross-hedging involves the use of one currency to hedge against the decline
in the value of another currency. The use of such instruments as described
herein involves several risks. First, there can be no assurance that the prices
of such instruments and the hedge security or the cash market position will
move as anticipated. If prices do not move as anticipated, a Fund may incur a
loss on its investment, may not achieve the hedging protection it anticipated
and/or may incur a loss greater than if it had entered into a cash market
position. Second, investments in such instruments may reduce the gains which
would otherwise be realized from the sale of the underlying securities or
assets which are being hedged. Third, positions in such instruments can be
closed out only on an exchange that provides a market for those instruments.
There can be no assurance that such a market will exist for a particular
futures contract or option. If the Fund cannot close out an exchange traded
futures contract or option which it holds, it would have to perform its
contract obligation or exercise its option to realize any profit and would
incur transaction cost on the sale of the underlying assets. In addition, the
use of derivative instruments involves the risk that a loss may be sustained as
a result of the failure of the counterparty to the derivatives contract to make
required payments or otherwise comply with the contracts terms.
When the
Funds intend to acquire securities (or gold bullion or coins as the case may
be) for their portfolio, they may use call options or futures contracts as a
means of fixing the price of the security (or gold) they intend to purchase at
the exercise price (in the case of an option) or contract price (in the case of
futures contracts). An increase in the acquisition cost would be offset, in
whole or part, by a gain on the option or futures contract. Options and futures
contracts requiring delivery of a security may also be useful to the Funds in
purchasing a large block of securities that would be more difficult to acquire
by direct market purchases. If the Funds hold a call option rather than the
underlying security itself, the Funds are partially protected from any
unexpected decline in the market price of the underlying security and in such
event could allow the call option to expire, incurring a loss only to the
extent of the premium paid for the option. Using a futures contract would not
offer such partial protection against market declines and the Funds would
experience a loss as if they had owned the underlying security.
The Funds
may invest up to 10% of their total assets in direct investments. Direct
investments include (i) the private purchase from an enterprise of an equity
interest in the enterprise in the form of shares of common stock or equity
interests in trusts, partnerships, joint ventures or similar enterprises, and
(ii) the purchase of such an equity interest in an enterprise from a principal
investor in the enterprise. In each case the Funds will, at the time of making
the investment, enter into a shareholder or similar agreement with the
enterprise and one or more other holders of equity interests in the enterprise.
The Adviser anticipates that these agreements may, in appropriate
circumstances, provide the Funds with the ability to appoint a representative
to the board of directors or similar body of the enterprise and for eventual
disposition of the Funds investment in the enterprise. Such a representative of
the Funds will be expected to provide the Funds with the ability to monitor its
investment and protect its rights in the investment, and will not be appointed
for the purpose of exercising management or control of the enterprise.
Certain of
the Funds direct investments will include investments in smaller, less
seasoned companies. These companies may have limited product lines, markets or
financial resources, or they may be dependent on a limited management group.
The Funds do not anticipate making direct investments in start-up operations,
although it is expected that in some cases the Funds direct investments will
fund new operations for an enterprise which itself is engaged in similar
operations or is affiliated with an organization that is engaged in similar
operations. With respect to the Emerging Markets Fund, such direct investments
may be made in entities that are reasonably expected in the foreseeable future
to become growth companies, either by expanding current operations or
establishing significant operations.
Direct
investments may involve a high degree of business and financial risk that can
result in substantial losses. Because of the absence of any public trading
market for these investments, the Funds may take longer to liquidate these
positions than would be the case for publicly traded securities. Although these
securities may be resold in privately
7
negotiated transactions, the prices on these sales could be less than
those originally paid by the Funds. Furthermore, issuers whose securities are
not publicly traded may not be subject to public disclosure and other investor
protection requirements applicable to publicly traded securities. If such
securities are required to be registered under the securities laws of one or
more jurisdictions before being resold, the Funds may be required to bear the
expense of the registration. Direct investments are generally considered
illiquid and will be aggregated with other illiquid investments for purposes of
the limitation on illiquid investments. Direct investments can be difficult to
price and will be valued at fair value as determined in good faith by the
Board. The pricing of direct investments may not be reflective of the price at
which these assets could be liquidated.
Investors
should recognize that investing in foreign securities involves certain special
considerations that are not typically associated with investing in United
States securities. Since investments in foreign companies will frequently
involve currencies of foreign countries, and since the Funds may hold
securities and funds in foreign currencies, the Funds may be affected favorably
or unfavorably by changes in currency rates and in exchange control regulations,
if any, and may incur costs in connection with conversions between various
currencies. Most foreign stock markets, while growing in volume of trading
activity, have less volume than the New York Stock Exchange (NYSE), and
securities of some foreign companies are less liquid and more volatile than
securities of comparable domestic companies. Similarly, volume and liquidity in
most foreign bond markets are less than in the United States, and at times
volatility of price can be greater than in the United States. Fixed commissions
on foreign securities exchanges are generally higher than negotiated
commissions on United States exchanges, although the Funds endeavor to achieve
the most favorable net results on their portfolio transactions. There is generally
less government supervision and regulation of securities exchanges, brokers and
listed companies in foreign countries than in the United States. In addition,
with respect to certain foreign countries, there is the possibility of exchange
control restrictions, expropriation or confiscatory taxation, political,
economic or social instability, which could affect investments in those
countries. Foreign securities such as those purchased by the Funds may be
subject to foreign government taxes, higher custodian fees, higher brokerage
commissions and dividend collection fees which could reduce the yield on such
securities.
The
Economic and Monetary Union of the European Union (EMU) is comprised of the
European Union members that have adopted the euro currency. By adopting the
euro as its currency, a member state relinquishes control of its own monetary
policies. As a result, European countries are significantly affected by fiscal
and monetary controls implemented by the EMU. The euro currency may not fully
reflect the strengths and weaknesses of the various economies that comprise the
EMU and Europe generally and it is also possible, that the euro could be
abandoned in the future by countries that have already adopted its use.
Trading in
futures contracts traded on foreign commodity exchanges may be subject to the
same or similar risks as trading in foreign securities.
The Funds
may have a substantial portion of their assets in emerging markets. An
emerging market or emerging country is any country that the World Bank, the
International Finance Corporation or the United Nations or its authorities has
determined to have a low or middle income economy. Emerging countries can be
found in regions such as Asia, Latin America, Africa and Eastern Europe. The
countries that will not be considered emerging countries include the United
States, Australia, Canada, Japan, New Zealand and most countries located in
Western Europe such as Austria, Belgium, Denmark, Finland, France, Germany,
Great Britain, Ireland, Italy, the Netherlands, Norway, Spain, Sweden and
Switzerland.
Emerging
market securities include securities which are (i) principally traded in the
capital markets of an emerging market country; (ii) securities of companies
that derive at least 50% of their total revenues from either goods produced or
services performed in emerging countries or from sales made in emerging
countries, regardless of where the securities of such companies are principally
traded; (iii) securities of companies organized under the laws of, and with a
principal office
8
in an emerging country; (iv) securities of investment companies (such
as country funds) that principally invest in emerging market securities; and
(v) American Depositary Receipts (ADRs), American Depositary Shares (ADSs),
European Depositary Receipts (EDRs) and Global Depositary Receipts (GDRs) with
respect to the securities of such companies.
Investing
in the equity and fixed income markets of developing countries involves
exposure to potentially unstable governments, the risk of nationalization of
businesses, restrictions on foreign ownership, prohibitions on repatriation of
assets and a system of laws that may offer less protection of property rights.
Emerging market economies may be based on only a few industries, may be highly
vulnerable to changes in local and global trade conditions, and may suffer from
extreme and volatile debt burdens or inflation rates.
The
Russian, Eastern and Central European, Chinese and Taiwanese stock markets are
undergoing a period of growth and change which may result in trading volatility
and difficulties in the settlement and recording of transactions, and in
interpreting and applying the relevant law and regulations.
Certain
Risks of Investing in Asia-Pacific Countries
. In addition to the risks of
foreign investing and the risks of investing in developing markets, the
developing market Asia-Pacific countries in which a Fund may invest are subject
to certain additional or specific risks. A Fund may make substantial
investments in Asia-Pacific countries. In many of these markets, there is a
high concentration of market capitalization and trading volume in a small
number of issuers representing a limited number of industries, as well as a
high concentration of investors and financial intermediaries. Many of these
markets also may be affected by developments with respect to more established
markets in the region such as in Japan and Hong Kong. Brokers in developing
market Asia-Pacific countries typically are fewer in number and less well
capitalized than brokers in the United States. These factors, combined with the
U.S. regulatory requirements for open-end investment companies, result in
potentially fewer investment opportunities for the Fund and may have an adverse
impact on the investment performance of a Fund.
Many of the
developing market Asia-Pacific countries may be subject to a greater degree of
economic, political and social instability than is the case in the United
States and Western European countries. Such instability may result from, among
other things: (i) authoritarian governments or military involvement in
political and economic decision-making, including changes in government through
extra-constitutional means; (ii) popular unrest associated with demands for
improved political, economic and social conditions; (iii) internal
insurgencies; (iv) hostile relations with neighboring countries; and (v)
ethnic, religious and racial disaffection. In addition, the governments of many
of such countries, such as Indonesia, have a substantial role in regulating and
supervising the economy. Another risk common to most such countries is that the
economy is heavily export oriented and, accordingly, is dependent upon
international trade. The existence of overburdened infrastructure and obsolete
financial systems also presents risks in certain countries, as do environmental
problems. Certain economies also depend to a significant degree upon exports of
primary commodities and, therefore, are vulnerable to changes in commodity
prices that, in turn, may be affected by a variety of factors.
Governments
of many developing market Asia-Pacific countries have exercised and continue to
exercise substantial influence over many aspects of the private sector. In
certain cases, the government owns or controls many companies, including the
largest in the country. Accordingly, government actions in the future could
have a significant effect on economic conditions in developing market
Asia-Pacific countries, which could affect private sector companies and a Fund
itself, as well as the value of securities in the Funds portfolio. In
addition, economic statistics of developing market Asia-Pacific countries may
be less reliable than economic statistics of more developed nations.
9
F
OREIGN
SECURITIES - FOREIGN CURRENCY TRANSACTIONS
Under
normal circumstances, consideration of the prospects for currency exchange
rates will be incorporated into the long-term investment decisions made for the
Funds with regard to overall diversification strategies. Although the Funds
value their assets daily in terms of U.S. dollars, they do not intend
physically to convert their holdings of foreign currencies into U.S. dollars on
a daily basis. The Funds will do so from time to time, and investors should be
aware of the costs of currency conversion. Although foreign exchange dealers do
not charge a fee for conversion, they do realize a profit based on the
difference (the spread) between the prices at which they are buying and
selling various currencies. Thus, a dealer may offer to sell a foreign currency
to the Funds at one rate, while offering a lesser rate of exchange should the
Funds desire to resell that currency to the dealer. The Funds will use forward
contracts, along with futures contracts, foreign exchange swaps (Emerging
Markets Fund and Global Hard Assets Fund only) and put and call options (all
types of derivatives), to lock in the U.S. Dollar price of a security bought
or sold and as part of their overall hedging strategy. The Funds will conduct
their foreign currency exchange transactions, either on a spot (i.e., cash)
basis at the spot rate prevailing in the foreign currency exchange market, or
through purchasing put and call options on, or entering into futures contracts
or forward contracts to purchase or sell foreign currencies. See Futures and
Options Transactions.
The Funds
will enter into forward contracts to duplicate a cash market transaction. The
Funds will not purchase or sell foreign currency as an investment, except that
Emerging Markets Fund and Global Hard Assets Fund may enter into currency
swaps. See also Futures and Options Transactions.
In those
situations where foreign currency options or futures contracts, or options on
futures contracts may not be readily purchased (or where they may be deemed
illiquid) in the primary currency in which the hedge is desired, the hedge may
be obtained by purchasing or selling an option, futures contract or forward
contract on a secondary currency. The secondary currency will be selected based
upon the Advisers belief that there exists a significant correlation between
the exchange rate movements of the two currencies. However, there can be no
assurances that the exchange rate or the primary and secondary currencies will
move as anticipated, or that the relationship between the hedged security and
the hedging instrument will continue. If they do not move as anticipated or the
relationship does not continue, a loss may result to the Funds on their
investments in the hedging positions.
A forward
foreign currency contract, like a futures contract, involves an obligation to
purchase or sell a specific amount of currency at a future date, 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. Unlike foreign currency
futures contracts which are standardized exchange-traded contracts, forward
currency contracts are usually traded in the interbank market conducted
directly between currency traders (usually large commercial banks) and their
customers. A forward contract generally has no deposit requirement, and no
commissions are charged at any stage for such trades.
The Adviser
will not commit any Fund, at time of purchase, to deliver under forward contracts
an amount of foreign currency in excess of the value of the Funds portfolio
securities or other assets or obligations denominated in that currency. The
Funds Custodian will place the securities being hedged, cash, U.S. government
securities or debt or equity
10
securities into a segregated account of the Fund in an amount equal to
the value of the Funds total assets committed to the consummation of forward
foreign currency contracts to ensure that the Fund is not leveraged beyond
applicable limits. If the value of the securities placed in the segregated
account declines, additional cash or securities will be placed in the account
on a daily basis so that the value of the account will equal the amount of the
Funds commitments with respect to such contracts. At the maturity of a forward
contract, the Funds may either sell the portfolio security and make delivery of
the foreign currency, or they may retain the security and terminate their
contractual obligation to deliver the foreign currency prior to maturity by
purchasing an offsetting contract with the same currency trader, obligating
it to purchase, on the same maturity date, the same amount of the foreign
currency. There can be no assurance, however, that the Funds will be able to
effect such a closing purchase transaction.
It is
impossible to forecast the market value of a particular portfolio security at
the expiration of the contract. Accordingly, if a decision is made to sell the
security and make delivery of the foreign currency it may be necessary for a
Fund to purchase additional foreign currency on the spot market (and bear the
expense of such purchase) if the market value of the security is less than the
amount of foreign currency that a Fund is obligated to deliver.
If a Fund
retains the portfolio security and engages in an offsetting transaction, the
Fund will incur a gain or a loss to the extent that there has been movement in
forward contract prices. Additionally, although such contracts tend to minimize
the risk of loss due to a decline in the value of the hedged currency, at the
same time, they tend to limit any potential gain which might result should the
value of such currency increase.
O
PTIONS,
FUTURES, WARRANTS AND SUBSCRIPTION RIGHTS
Options
Transactions
.
Each Fund may purchase and sell
(write) exchange-traded and over-the-counter (OTC) call and put options on
domestic and foreign securities, foreign currencies, stock and bond indices and
financial futures contracts. Global Hard Assets Fund may also buy and sell
options linked to the price of hard assets.
Purchasing
Call and Put Options
. Each Fund may invest up to 5% of its total assets
in premiums on call and put options. The purchase of a call option would enable
a Fund, in return for the premium paid, to lock in a purchase price for a
security or currency during the term of the option. The purchase of a put
option would enable a Fund, in return for a premium paid, to lock in a price at
which it may sell a security or currency during the term of the option. OTC
options are purchased from or sold (written) to dealers or financial
institutions which have entered into direct agreements with a Fund. With OTC
options, such variables as expiration date, exercise price and premium will be
agreed upon between the Fund and the transacting dealer.
The
principal factors affecting the market value of a put or a call option include
supply and demand, interest rates, the current market price of the underlying
security or index in relation to the exercise price of the option, the
volatility of the underlying security or index, and the time remaining until
the expiration date. Accordingly, the successful use of options depends on the
ability of the Adviser to forecast correctly interest rates, currency exchange
rates and/or market movements.
When a Fund
sells put or call options it has previously purchased, the Fund may realize a
net gain or loss, depending on whether the amount realized on the sale is more
or less than the premium and other transaction costs paid on the put or call
option which is sold. There is no assurance that a liquid secondary market will
exist for options, particularly in the case of OTC options. In the event of the
bankruptcy of a broker through which a Fund engages in transactions in options,
such Fund could experience delays and/or losses in liquidating open positions
purchased or sold through the broker and/or incur a loss of all or part of its
margin deposits with the broker. In the case of OTC options, if the transacting
dealer fails to make or take delivery of the securities underlying an option it
has written, in accordance with the terms of that option, due to insolvency or
otherwise, a Fund would lose the premium paid for the option as well as any
anticipated benefit of the transaction. If trading were suspended in an option
purchased by a Fund, the Fund would not be able to close out the option. If
restrictions on exercise were imposed, the Fund might be unable to exercise an
option it has purchased.
A call
option on a foreign currency gives the purchaser of the option the right to
purchase the currency at the exercise price until the option expires. A put
option on a foreign currency gives the purchaser of the option the right to sell
a foreign currency at the exercise price until the option expires. The markets
in foreign currency options are relatively new and the Funds ability to
establish and close out positions on such options is subject to the maintenance
of a liquid secondary market. Currency options traded on U.S. or other
exchanges may be subject to position limits, which may limit the ability of a
Fund to reduce foreign currency risk using such options.
Writing
Covered Call
and
Put Options
. Each Fund may write covered call options on portfolio
securities to the extent that the value of all securities with respect to which
covered calls are written does not exceed 10% of the Funds net asset value.
When a Fund writes a covered call option, the Fund incurs an obligation to sell
the security underlying the option to the purchaser of the call, at the
options exercise price at any time during the option period, at the
11
purchasers election. When a Fund writes a put option, the Fund incurs
an obligation to buy the security underlying the option from the purchaser of
the put, at the options exercise price at any time during the option period,
at the purchasers election. In each case, the Fund will receive from the
purchaser a premium (i.e., the price of the option).
The Fund
may be required, at any time during the option period, to deliver the
underlying security (or currency) against payment of the exercise price on any
calls it has written, or to make payment of the exercise price against delivery
of the underlying security (or currency) on any puts it has written. This
obligation is terminated upon the expiration of the option period or at such
earlier time as the writer effects a closing purchase transaction. A closing
purchase transaction is accomplished by purchasing an option of the same series
as the option previously written. However, once the Fund has been assigned an
exercise notice, the Fund will be unable to effect a closing purchase
transaction.
A call
option is covered if the Fund owns the underlying security subject to the
option or has an absolute and immediate right to acquire that security without
additional cash consideration (or for additional consideration (in cash,
Treasury bills or other liquid portfolio securities) held in a segregated account
on the Funds books) upon conversion or exchange of other securities held in
its portfolio. A call option is also covered if the Fund holds a call on the
same security as the call written where the exercise price of the call held is
(i) equal to or less than the exercise price of the call written or (ii)
greater than the exercise price of the call written if the difference is
maintained by the Fund in cash, Treasury bills or other liquid portfolio
securities in a segregated account on the Funds books. A put option is
covered if the Fund maintains cash, Treasury bills or other liquid portfolio
securities with a value equal to the exercise price in a segregated account on
the Funds books, or holds a put on the same security as the put written where
the exercise price of the put held is equal to or greater than the exercise
price of the put written.
Receipt of
premiums from writing call and put options may provide a Fund with a higher
level of current income than it would earn from holding the underlying
securities alone, and the premium received will offset a portion of the
potential loss incurred by the Fund if the securities underlying the option
decline in value. However, during the option period, the Fund gives up, in
return for the premium on the option, the opportunity for capital appreciation
above the exercise price should the market price of the underlying security (or
the value of its denominated currency) increase, but retains the risk of loss
should the price of the underlying security (or the value of its denominated
currency) decline.
Futures
Contracts
.
The Funds may buy and sell
financial futures contracts which may include security and interest-rate
futures, stock and bond index futures contracts and foreign currency futures
contracts. Global Hard Assets Fund may also buy and sell futures contracts and
options thereon linked to the price of hard assets. A futures contract is an
agreement between two parties to buy and sell a security for a set price on a
future date. An interest rate, commodity, foreign currency or index futures
contract provides for the future sale by one party and purchase by another
party of a specified quantity of a financial instrument, commodity, foreign
currency or the cash value of an index at a specified price and time.
Futures
contracts and options on futures contracts may be used reduce a Funds exposure
to fluctuations in the prices of portfolio securities and may prevent losses if
the prices of such securities decline. Similarly, such investments may protect
a Fund against fluctuation in the value of securities in which a Fund is about
to invest.
The Funds
may purchase and write (sell) call and put options on futures contracts and
enter into closing transactions with respect to such options to terminate an
existing position. An option on a futures contract gives the purchaser the
right (in return for the premium paid), and the writer the obligation, to
assume a position in a futures contract (a long position if the option is a
call and a short position if the option is a put) at a specified exercise price
at any time during the term of the option. Upon exercise of the option, the
delivery of the futures position by the writer of the option to the holder of
the option is accompanied by delivery of the accumulated balance in the
writers futures margin account, which represents the amount by which the
market price of the futures contract at the time of exercise exceeds (in the
case of a call) or is less than (in the case of a put) the exercise price of
the option contract.
Future
contracts are traded on exchanges, so that, in most cases, either party can
close out its position on the exchange for cash, without delivering the
security or commodity. However, there is no assurance that a Fund will be able
to enter into a closing transaction.
When a Fund
enters into a futures contract, it is initially required to deposit an initial
margin of cash, Treasury securities or other liquid portfolio securities ranging
from approximately 2% to 5% of the contract amount. The margin deposits made
are marked-to-market daily and the Fund may be required to make subsequent
deposits of cash, U.S. government securities or other liquid portfolio
securities, called variation margin, which are reflective of price
fluctuations in the futures contract.
12
Pursuant to
a notice of eligibility claiming exclusion from the definition of Commodity
Pool Operator filed with the National Futures Association on behalf of the
Funds, neither the Trust nor any of the individual Funds is deemed to be a
commodity pool operator under the Commodity Exchange Act (CEA), and,
accordingly, they are not subject to registration or regulation as such under
the CEA.
Risks
of Transactions in Futures
Contracts
and Related Options
. There are several
risks associated with the use of futures contracts and futures options as
hedging techniques. A purchase or sale of a futures contract may result in
losses in excess of the amount invested in the futures contract. There can be
no guarantee that there will be a correlation between price movements in the
hedging vehicle and in the Fund securities being hedged. In addition, there are
significant differences between the securities and futures markets that could
result in an imperfect correlation between the markets, causing a given hedge
not to achieve its objectives. As a result, a hedge may be unsuccessful because
of market behavior or unexpected interest rate trends.
Futures
exchanges may limit the amount of fluctuation permitted in certain 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 the current trading
session. Once the daily limit has been reached in a futures contract subject to
the limit, no more trades may be made on that day at a price beyond that limit.
The daily limit governs only price movements during a particular trading day
and therefore does not limit potential losses because the limit may work to
prevent the liquidation of unfavorable positions. For example, futures prices
have occasionally moved to the daily limit for several consecutive trading days
with little or no trading, thereby preventing prompt liquidation of positions
and subjecting some holders of futures contracts to substantial losses.
There can
be no assurance that a liquid market will exist at a time when a Fund seeks to
close out a futures or a futures option position, and that Fund would remain
obligated to meet margin requirements until the position is closed. In
addition, many of the contracts discussed above are relatively new instruments
without a significant trading history. As a result, there can be no assurance
that an active secondary market will develop or continue to exist.
Warrants
and Subscription Rights
.
The Funds may invest in warrants,
which are instruments that permit, but do not obligate, the holder to subscribe
for other securities. Subscription rights are similar to warrants, but normally
have a short duration and are distributed directly by the issuer to its
shareholders. Warrants and rights are not dividend-paying investments and do
not have voting rights like common stock. They also do not represent any rights
in the assets of the issuer. As a result, warrants and rights may be considered
more speculative than direct equity investments. In addition, the value of
warrants and rights do not necessarily change with the value of the underlying
securities and may cease to have value if they are not exercised prior to their
expiration dates.
The Global
Hard Assets Fund may invest up to 80% of its assets in hard asset securities.
Hard asset securities include equity securities of hard asset companies and
derivative securities and instruments whose value is linked to the price of a
commodity or a commodity index. The term hard asset companies includes
companies that directly or indirectly (whether through supplier relationships,
servicing agreements or otherwise) derive at least 50% of gross revenue or
profit from exploration, development, production, distribution or facilitation
of processes relating to: (i) precious metals, (ii) ferrous and non-ferrous
metals, (iii) gas, petroleum, petrochemicals or other hydrocarbons, (iv) forest
products, (v) real estate and (vi) other basic commodities which, historically,
have been produced and marketed profitably during periods of significant
inflation.
Since the
market action of hard asset securities may move against or independently of the
market trend of industrial shares, the addition of such securities to an
overall portfolio may increase the return and reduce the price fluctuations of
such a portfolio. There can be no assurance that an increased rate of return or
a reduction in price fluctuations of a portfolio will be achieved. Hard asset
securities are affected by many factors, including movement in the stock
market. Inflation may cause a decline in the market, including hard asset
securities. The Fund has a fundamental policy of concentrating in such
industries, and more than 50% of the Funds assets may be invested in any one
of the above sectors. Precious metal and natural resource securities are at
times volatile and there may be sharp fluctuations in prices, even during
periods of rising prices.
I
NDEXED
SECURITIES AND STRUCTURED NOTES
The Funds
may invest in indexed securities, i.e., structured notes securities and index
options, whose value is linked to one or more currencies, interest rates,
commodities, or financial or commodity indices. An indexed security enables the
investor to purchase a note whose coupon and/or principal redemption is linked
to the performance of an underlying asset. Indexed securities may be positively
or negatively indexed (i.e., their value may increase or decrease if the
underlying instrument appreciates). Indexed securities may have return
characteristics similar to direct investments in
13
the underlying instrument or to one or more options on the underlying
instrument. Indexed securities may be more volatile than the underlying
instrument itself, and present many of the same risks as investing in futures
and options. Indexed securities are also subject to credit risks associated
with the issuer of the security with respect to both principal and interest.
Only securities linked to one or more non-agriculture commodities or commodity
indices will be considered a hard asset security.
Indexed
securities may be publicly traded or may be two-party contracts (such two-party
agreements are referred to hereafter collectively as structured notes). When a
Fund purchases a structured note, it will make a payment of principal to the
counterparty. Some structured notes have a guaranteed repayment of principal while
others place a portion (or all) of the principal at risk. The Funds will
purchase structured notes only from counterparties rated A or better by
S&P, Moodys or another nationally recognized statistical rating
organization. The Adviser will monitor the liquidity of structured notes under
the supervision of the Board. Notes determined to be illiquid will be
aggregated with other illiquid securities and will be subject to the Funds
limitations on illiquid securities.
I
NVESTMENTS
IN OTHER INVESTMENT COMPANIES
Each Fund
may invest up to 20% of its net assets in securities issued by other investment
companies (excluding money market funds), including open end and closed end
funds and exchange-traded funds (ETFs), subject to the limitations under the
1940 Act. The Funds investments in money market funds are not subject to this
limitation. The Fund may invest in investment companies which are sponsored or
advised by the Adviser and/or its affiliates (each, a Van Eck Investment
Company). However, in no event will the Fund invest more than 5% of its net
assets in any single Van Eck Investment Company.
A Funds
investment in another investment company may subject the Fund indirectly to the
underlying risks of the investment company. The Fund also will bear its share
of the underlying investment companys fees and expenses, which are in addition
to the Funds own fees and expenses. Shares of closed-end funds and ETFs may
trade at prices that reflect a premium above or a discount below the investment
companys net asset value, which may be substantial in the case of closed-end
funds. If investment company securities are purchased at a premium to net asset
value, the premium may not exist when those securities are sold and the Fund
could incur a loss.
Securities
paid for on an installment basis. A partly paid security trades net of
outstanding installment paymentsthe buyer takes over payments. The buyers
rights are typically restricted until the security is fully paid. If the value
of a partly-paid security declines before a Fund finishes paying for it, the
Fund will still owe the payments, but may find it hard to sell and as a result
will incur a loss.
The Funds
may not purchase or sell real estate, except that the Funds may invest in
securities of issuers that invest in real estate or interests therein. These
include equity securities of REITs and other real estate industry companies or
companies with substantial real estate investments. Global Hard Assets Fund may
invest more than 50% of its assets in such securities. The Funds are therefore
subject to certain risks associated with direct ownership of real estate and
with the real estate industry in general. These risks include, among others:
possible declines in the value of real estate; possible lack of availability of
mortgage funds; extended vacancies of properties; risks related to general and
local
14
economic conditions; overbuilding; increases in competition, property
taxes and operating expenses; changes in zoning laws; costs resulting from the
clean-up of, and liability to third parties for damages resulting from,
environmental problems; casualty or condemnation losses; uninsured damages from
floods, earthquakes or other natural disasters; limitations on and variations
in rents; and changes in interest rates.
REITs are
pooled investment vehicles whose assets consist primarily of interest in real
estate and real estate loans. REITs are generally classified as equity REITs,
mortgage REITs or hybrid REITs. Equity REITs own interest in property and
realize income from the rents and gain or loss from the sale of real estate
interests. Mortgage REITs invest in real estate mortgage loans and realize
income from interest payments on the loans. Hybrid REITs invest in both equity
and debt. Equity REITs may be operating or financing companies. An operating
company provides operational and management expertise to and exercises control
over, many if not most operational aspects of the property. REITS are not taxed
on income distributed to shareholders, provided they comply with several
requirements of the Internal Revenue Code of 1986, as amended (the Code).
Investing
in REITs involves certain unique risks in addition to those risks associated
with investing in the real estate industry in general. Equity REITs may be
affected by changes in the value of the underlying property owned by the REITs,
while mortgage REITs may be affected by the quality of any credit extended.
REITs are dependent upon management skills, are not diversified, and are
subject to the risks of financing projects. REITs are subject to heavy cash
flow dependency, default by borrowers, self-liquidation and the possibilities
of failing to qualify for the exemption from tax for distributed income under
the Code. REITs (especially mortgage REITs) are also subject to interest rate
risk (i.e., as interest rates rise, the value of the REIT may decline).
Repurchase
agreements, which may be viewed as a type of secured lending by a Fund,
typically involve the acquisition by a Fund of debt securities from a selling
financial institution such as a bank, savings and loan association or broker-dealer.
The agreement provides that a Fund will sell back to the institution, and that
the institution will repurchase, the underlying security serving as collateral
at a specified price and at a fixed time in the future, usually not more than
seven days from the date of purchase. The collateral will be marked-to-market
daily to determine that the value of the collateral, as specified in the
agreement, does not decrease below the purchase price plus accrued interest. If
such decrease occurs, additional collateral will be requested and, when
received, added to the account to maintain full collateralization. A Fund will
accrue interest from the institution until the time when the repurchase is to
occur. While repurchase agreements involve certain risks not associated with
direct investments in debt securities, the Funds will only enter into a
repurchase agreement where (i) the underlying securities are of the type which
a Funds investment policies would allow it to purchase directly, (ii) the
market value of the underlying security, including accrued interest, will be at
all times be equal to or exceed the value of the repurchase agreement, and
(iii) payment for the underlying securities is made only upon physical delivery
or evidence of book-entry transfer to the account of the custodian or a bank
acting as agent.
R
ULE
144A AND SECTION 4(2) SECURITIES
The Funds
may invest in securities which are subject to restrictions on resale because
they have not been registered under the Securities Act of 1933, or which are
otherwise not readily marketable.
Rule 144A
under the Securities Act of 1933 allows a broader institutional trading market
for securities otherwise subject to restriction on resale to the general
public. Rule 144A establishes a safe harbor from the registration
requirements of the Securities Act of 1933 of resale of certain securities to
qualified institutional buyers.
15
The Adviser
will monitor the liquidity of restricted securities in the Funds holdings
under the supervision of the Board. In reaching liquidity decisions, the
Adviser will consider, among other things, the following factors: (1) the
frequency of trades and quotes for the security; (2) the number of dealers
wishing to purchase or sell the security and the number of other potential
purchasers; (3) dealer undertakings to make a market in the security; and (4)
the nature of the security and the nature of the marketplace trades (e.g., the
time needed to dispose of the security, the method of soliciting offers and the
mechanisms of the transfer).
In
addition, commercial paper may be issued in reliance on the private placement
exemption from registration afforded by Section 4(2) of the Securities Act of
1933. Such commercial paper is restricted as to disposition under the federal
securities laws and, therefore, any resale of such securities must be effected
in a transaction exempt from registration under the Securities Act of 1933.
Such commercial paper is normally resold to other investors through or with the
assistance of the issuer or investment dealers who make a market in such
securities, thus providing liquidity.
Securities
eligible for resale pursuant to Rule 144A under the Securities Act of 1933 and
commercial paper issued in reliance on the Section 4(2) exemption under the
1940 Act may be determined to be liquid in accordance with guidelines
established by the Board for purposes of complying with investment restrictions
applicable to investments by the Funds in illiquid securities. To the extent
such securities are determined to be illiquid, they will be aggregated with
other illiquid investments for purposes of the limitation on illiquid
investments.
The Funds
may make short sales of equity securities. The Funds will establish a
segregated account with respect to their short sales and maintain in the
account cash not available for investment or U.S. Government securities or
other liquid, high-quality securities having a value equal to the difference
between (i) the market value of the securities sold short at the time they were
sold short and (ii) any cash, U.S. Government securities or other liquid,
high-quality securities required to be deposited as collateral with the broker
in connection with the short sale (not including the proceeds from the short
sale). The segregated account will be marked to market daily, so that (i) the
amount in the segregated account plus the amount deposited with the broker as
collateral equals the current market value of the securities sold short and
(ii) in no event will the amount in the segregated account plus the amount
deposited with the broker as collateral fall below the original value of the
securities at the time they were sold short.
The Funds
may lend securities to parties such as broker-dealers or other institutions.
Securities lending allows a Fund to retain ownership of the securities loaned
and, at the same time, earn additional income. The borrower provides the Fund
with collateral in an amount at least equal to the value of the securities
loaned. The Fund maintains the ability to obtain the right to vote or consent
on proxy proposals involving material events affecting securities loaned. If
the borrower defaults on its obligation to return the securities loaned because
of insolvency or other reasons, a Fund could experience delays and costs in
recovering the securities loaned or in gaining access to the collateral. These
delays and costs could be greater for foreign securities. If a Fund is not able
to recover the securities loaned, a Fund may sell the collateral and purchase a
replacement investment in the market. The value of the collateral could
decrease below the value of the replacement investment by the time the
replacement investment is purchased. Cash received as collateral through loan
transactions will generally be invested in shares of a money market fund.
Investing this cash subjects that investment, as well as the securities loaned,
to market appreciation or depreciation.
16
The Funds
may enter into swap agreements. A swap is a derivative in the form of an
agreement to exchange the return generated by one instrument for the return
generated by another instrument. The payment streams are calculated by
reference to a specified index and agreed upon notional amount. The term
specified index includes currencies, fixed interest rates, prices, total
return on interest rate indices, fixed income indices, stock indices and
commodity indices (as well as amounts derived from arithmetic operations on
these indices). For example, a Fund may agree to swap the return generated by a
fixed income index for the return generated by a second fixed income index. The
currency swaps in which a Fund may enter will generally involve an agreement to
pay interest streams in one currency based on a specified index in exchange for
receiving interest streams denominated in another currency. Such swaps may
involve initial and final exchanges that correspond to the agreed upon notional
amount. The swaps in which a Fund may engage also include rate caps, floors and
collars under which one party pays a single or periodic fixed amount(s) (or
premium), and the other party pays periodic amounts based on the movement of a
specified index. Global Hard Assets Fund may also enter into other asset swaps.
Asset swaps are similar to swaps in that the performance of one hard asset
(e.g., gold) may be swapped for another (e.g., energy).
Swaps do
not involve the delivery of securities, other underlying assets, or principal.
Accordingly, the risk of loss with respect to swaps is limited to the net
amount of payments that a Fund is contractually obligated to make. If the other
party to a swap defaults, a Funds risk of loss consists of the net amount of
payments that a Fund is contractually entitled to receive. Currency swaps
usually involve the delivery of the entire principal value of one designated
currency in exchange for the other designated currency. Therefore, the entire
principal value of a currency swap is subject to the risk that the other party
to the swap will default on its contractual delivery obligations. If there is a
default by the counterparty, a Fund may have contractual remedies pursuant to
the agreements related to the transaction. The use of swaps is a highly
specialized activity which involves investment techniques and risks different from
those associated with ordinary fund securities transactions. If the Adviser is
incorrect in its forecasts of market values, interest rates, and currency
exchange rates, the investment performance of a Fund would be less favorable
than it would have been if this investment technique were not used.
W
HEN,
AS AND IF ISSUED SECURITIES
Each Fund
may purchase securities on a when, as and if issued basis, under which the
issuance of the security depends upon the occurrence of a subsequent event, such
as approval of a merger, corporate reorganization or debt restructuring. The
commitment for the purchase of any such security will not be recognized by a
Fund until the Adviser determines that issuance of the security is probable. At
that time, the Fund will record the transaction and, in determining its net
asset value, will reflect the value of the security daily. At that time, the
Fund will also earmark or establish a segregated account on the Funds books in
which it will maintain cash, cash equivalents or other liquid portfolio
securities equal in value to recognized commitments for such securities. The
value of a Funds commitments to purchase the securities of any one issuer,
together with the value of all securities of such issuer owned by the Fund, may
not exceed 5% (2% in the case of warrants which are not listed on an exchange)
of the value of the Funds total assets at the time the initial commitment to
purchase such securities is made. An increase in the percentage of the Fund
assets committed to the purchase of securities on a when, as and if issued
basis may increase the volatility of its net asset value. A Fund may also sell
securities on a when, as and if issued basis provided that the issuance of
the security will result automatically from the exchange or conversion of a
security owned by the Fund at the time of sale.
F
UNDAMENTAL
INVESTMENT RESTRICTIONS
The
following investment restrictions are in addition to those described in the
Prospectus. These investment restrictions are fundamental and may be changed
with respect to the Fund only with the approval of the holders of a majority of
the Funds outstanding voting securities as defined in the 1940 Act. As to
any of the following investment restrictions, if a percentage restriction is
adhered to at the time of investment, a later increase or decrease in
percentage resulting from a change in value of portfolio securities or amount
of net assets will not be considered a violation of the investment restriction.
In the case of borrowing, however, a Fund will promptly take action to reduce
the amount of the Funds borrowings outstanding if, because of changes in the
net asset value of the Fund due to market action, the amount of such borrowings
exceeds one-third of the value of the Funds net assets. The fundamental
investment restrictions are as follows:
17
Each Fund may not:
1.
Borrow money,
except as permitted under the 1940 Act, as amended and as interpreted or
modified by regulation from time to time.
2.
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 in the disposition of restricted securities or in
connection with its investments in other investment companies.
3.
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 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.
4.
Issue senior
securities, except as permitted under the 1940 Act, as amended and as
interpreted or modified by regulation from time to time.
5.
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.
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, except that International Investors
Gold Fund may invest in gold and silver coins which are legal tender in the
country of issue and gold and silver bullion, and palladium and platinum
group metals bullion.
7.
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 Global Hard Assets Fund will
invest 25% or more of its total assets in hard asset industries as defined
in the Prospectus, and International Investors Gold Fund may invest 25% or
more of its total assets in the gold-mining industry. This limit does not
apply to securities issued or guaranteed by the U.S. government, its agencies
or instrumentalities.
For the
purposes of Restriction 7, companies in different geographical locations will
not be deemed to be in the same industry if the investment risks associated
with the securities of such companies are substantially different. For example,
although generally considered to be interest rate-sensitive, investing in
banking institutions in different countries is generally dependent upon substantially
different risk factors, such as the condition and prospects of the economy in a
particular country and in particular industries, and political conditions.
P
ORTFOLIO
HOLDINGS DISCLOSURE
The Funds
have adopted policies and procedures governing the disclosure of information
regarding the Funds portfolio holdings. They are reasonably designed to
prevent selective disclosure of the Funds portfolio holdings to third parties,
other than disclosures that are consistent with the best interests of the
Funds shareholders. The Board is responsible for overseeing the implementation
of these policies and procedures, and will review them annually to ensure their
adequacy.
These
policies and procedures apply to employees of the Adviser, administrator,
principal underwriter, and all other service providers to the Funds that, in
the ordinary course of their activities, come into possession of information
about the Funds portfolio holdings. These policies and procedures are made
available to each service provider.
The
following outlines the policies and procedures adopted by the Funds regarding
the disclosure of portfolio-related information:
Generally,
it is the policy of the Funds that no current or potential investor (or their
representative), including any Fund shareholder (collectively, Investors),
shall be provided information about a Funds portfolio on a preferential basis
in advance of the provision of that same information to other investors.
18
updated as of each month-end, is located on this website. Generally,
this information is posted to the website within 30 days of the end of the
applicable month. The Funds may also publish a detailed list of the securities
held by each Fund, generally updated as of the most recent calendar quarter.
This information generally remains available on the website until new
information is posted. Each Fund reserves the right to exclude any portion of
these portfolio holdings from publication when deemed in the best interest of
the Fund, and to discontinue the posting of portfolio holdings information at
any time, without prior notice.
Best
Interest of the Funds:
Information regarding the Funds specific security
holdings, sector weightings, geographic distribution, issuer allocations and
related information (Portfolio-Related Information), shall be disclosed to
the public only (i) as required by applicable laws, rules or regulations, (ii)
pursuant to the Funds Portfolio-Related Information disclosure policies and
procedures, or (iii) otherwise when the disclosure of such information is
determined by the Trusts officers to be in the best interest of Fund
shareholders.
Conflicts
of Interest:
Should a conflict of interest arise between a Fund
and any of the Funds service providers regarding the possible disclosure of
Portfolio-Related Information, the Trusts officers shall resolve any conflict
of interest in favor of the Funds interest. In the event that an officer of
the Fund is unable to resolve such a conflict of interest, the matter shall be
referred to the Trusts Audit Committee for resolution.
Equality
of Dissemination:
Shareholders of the same Fund shall be treated alike
in terms of access to the Funds portfolio holdings. With the exception of
certain selective disclosures, noted in the paragraph below, Portfolio-Related
Information with respect to a Fund shall not be disclosed to any Investor prior
to the time the same information is disclosed publicly (e.g., posted on the
Funds website). Accordingly, all Investors will have equal access to such
information.
Selective
Disclosure of Portfolio-Related Information in Certain Circumstances:
In some instances, it may be
appropriate for a Fund to selectively disclose a Funds Portfolio-Related
Information (e.g., for due diligence purposes, disclosure to a newly hired
adviser or sub-adviser, or disclosure to a rating agency) prior to public
dissemination of such information.
Conditional
Use of Selectively-Disclosed Portfolio-Related Information:
To the extent practicable, each of
the Trusts officers shall condition the receipt of Portfolio-Related
Information upon the receiving partys written agreement to both keep such
information confidential and not to trade Fund shares based on this information.
Compensation:
No person, including officers of
the Funds or employees of other service providers or their affiliates, shall
receive any compensation in connection with the disclosure of Portfolio-Related
Information. Notwithstanding the foregoing, the Funds reserve the right to
charge a nominal processing fee, payable to the Funds, to non-shareholders
requesting Portfolio-Related Information. This fee is designed to offset the
Funds costs in disseminating such information.
Source
of Portfolio-Related Information:
All Portfolio-Related Information shall be based on
information provided by the Funds administrator(s)/accounting agent.
The Funds
may provide non-public portfolio holdings information to third parties in the
normal course of their performance of services to the Funds, including to the
Funds auditors; custodian; financial printers; counsel to the Funds or counsel
to the Funds independent trustees; regulatory authorities; and securities
exchanges and other listing organizations. In addition, the Funds may provide
non-public portfolio holdings information to data providers, fund
ranking/rating services, and fair valuation services. The entities to which the
Funds voluntarily disclose portfolio holdings information are required, either
by explicit agreement or by virtue of their respective duties to the Funds, to
maintain the confidentiality of the information disclosed. Generally,
information that is provided to these parties, in the ordinary course of
business, is provided on a quarterly basis, with at least a 30 day-lag period.
There can
be no assurance that the Funds policies and procedures regarding selective
disclosure of the Funds portfolio holdings will protect the Funds from
potential misuse of that information by individuals or entities to which it is
disclosed.
The Board
shall be responsible for overseeing the implementation of these policies and
procedures. These policies and procedures shall be reviewed by the Board on an
annual basis for their continuing appropriateness.
Additionally,
the Funds shall maintain and preserve permanently in an easily accessible place
a written copy of these policies and procedures. The Fund shall also maintain
and preserve, for a period not less than six years (the first two years in an
easily accessible place), all Portfolio-Related Information disclosed to the
public.
Currently,
there are no agreements in effect where non-public information is disclosed or
provided to a third party. Should the Funds or Adviser establish such an
agreement with another party, the agreement shall bind the party to
confidentiality requirements and the duty not to trade on non-public
information.
19
The
following information supplements and should be read in conjunction with the
section in the Prospectus entitled Shareholder Information Management of the
Funds.
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 Funds. The Adviser is a private company with
headquarters in New York and acts as adviser or sub-adviser to other mutual
funds, ETFs, other pooled investment vehicles and separate accounts.
The Adviser
serves as investment adviser to the Funds pursuant to an Advisory Agreement
between the Trust and the Adviser. The advisory fee is computed daily and paid
monthly at the following annual rates: Emerging Markets Fund pays the Adviser a
fee of 0.75% of average daily net assets; Global Hard Assets Fund pays the
Adviser a fee of 1.00% of the first $2.5 billion of average daily net assets of
the Fund and 0.90% of average daily net assets in excess of $2.5 billion, which
includes the fee paid to the Adviser for accounting and administrative
services; and International Investors Gold Fund pays a fee equal to 0.75% on
the first $500 million of average daily net assets, 0.65% on the next $250
million of average daily net assets and 0.50% of average daily net assets in
excess of $750 million. Under the Advisory Agreement, the Adviser, subject to
the supervision of the Board and in conformity with the stated investment
policies of each 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 Funds.
In addition
to investment advisory services, the Adviser also performs accounting and
administrative services for Emerging Markets Fund and International Investors
Gold Fund pursuant to a written agreement. For these accounting and
administrative services a fee is calculated daily and paid monthly at the
following annual rates: Emerging Markets Fund pays the Adviser a fee of 0.25%
of average daily net assets and International Investors Gold Fund pays a fee
equal to 0.25% on the first $750 million of average daily net assets, and 0.20%
of average daily net assets in excess of $750 million.
Pursuant to
the Advisory 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.
MANAGEMENT
EXPENSES
Emerging Markets
Fund
2011
$
871,862
$
100,937
2010
$
870,030
$
59,926
2009
$
540,872
$
98,070
Global Hard Assets
Fund
2011
$
45,543,817
$
222,030
2010
$
29,430,570
$
921,899
2009
$
11,816,654
$
553,702
*
International
Investors Gold Fund
2011
$
9,977,743
$
2010
$
7,865,024
$
5,838
2009
$
5,004,738
$
61,839
*
The
Advisory Agreement provides that it shall continue in effect from year to year
as long as it is approved at least annually by (1) the Board or (2) a vote of a
majority of the outstanding voting securities (as defined in the 1940 Act) of
each 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 Advisory 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 a Funds outstanding voting
securities. The Advisory 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).
20
Shares of
the Funds are offered on a continuous basis and are distributed through Van Eck
Securities Corporation, the Distributor, 335 Madison Avenue, New York, New
York, a wholly owned subsidiary of the Adviser. The Trustees of the Trust have
approved a Distribution Agreement appointing the Distributor as distributor of
shares of the Funds.
The Trust
has authorized one or more intermediaries (who are authorized to designate
other intermediaries) to accept purchase and redemption orders on the Trusts
behalf. The Trust will be deemed to have received a purchase or redemption
order when the authorized broker or its designee accepts the order. Orders will
be priced at the net asset value next computed after they are accepted by the
authorized broker or its designee.
The
Distribution Agreement provides that the Distributor will pay all fees and
expenses in connection with printing and distributing prospectuses and reports
for use in offering and selling shares of the Funds and preparing, printing and
distributing advertising or promotional materials. The Funds will pay all fees
and expenses in connection with registering and qualifying their shares under
federal and state securities laws. The Distribution Agreement is reviewed and
approved annually by the Board.
VAN ECK SECURITIES
REALLOWANCE
Emerging Markets
Fund
2011
$
15,944
$
101,498
2010
$
380,423
$
244,546
2009
$
37,645
$
238,708
Global Hard Assets
Fund
2011
$
653,675
$
4,207,710
2010
$
594,956
$
3,796,624
2009
$
591,979
$
3,796,671
International
Investors Gold Fund
2011
$
395,014
$
2,533,495
2010
$
534,434
$
3,424,291
2009
$
381,684
$
2,443,196
PLAN
OF DISTRIBUTION (12B-1 PLAN)
The Plan is
reapproved annually for the Funds, by the Trustees of the Trust, including a
majority of the Trustees who are not interested persons of the Fund and who
have no direct or indirect financial interest in the operation of the Plan.
21
A
DMINISTRATIVE
AND PROCESSING SUPPORT PAYMENTS
The Funds
may make payments (either directly or as reimbursement to the Distributor or an
affiliate of the Distributor for payments made by the Distributor) to financial
intermediaries (such as brokers or third party administrators) for providing
the types of services that would typically be provided by the Funds transfer
agent, including sub-accounting, sub-transfer agency or similar recordkeeping
services, shareholder reporting, shareholder transaction processing, and/or the
provision of call center support. These payments will be in lieu of, and may
differ from, amounts paid to the Funds transfer agent for providing similar
services to other accounts. These payments may be in addition to any amounts
the intermediary may receive as compensation for distribution or shareholder
servicing pursuant to the Plan or as part of any revenue sharing or similar
arrangement with the Distributor or its affiliates, as described elsewhere in
the Prospectus.
The
Advisers portfolio managers are paid a fixed base salary and a bonus. The
bonus is based upon the quality of investment analysis and management of the
funds for which they serve as portfolio manager. 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 affiliates manage
accounts with incentive fees.
The
Advisers portfolio managers may serve as portfolio managers to other clients.
Such Other Clients may have investment objectives or may implement investment
strategies similar to those of the Fund. When the portfolio managers implement
investment strategies for Other Clients that are similar or directly contrary
to the positions taken by the Fund, the prices of the Funds securities may be
negatively affected. The compensation that the Funds portfolio manager
receives for managing other client accounts may be higher than the compensation
the portfolio manager receives for managing the Fund. The portfolio manager
does not believe that his activities materially disadvantage the Fund. The
Adviser has implemented procedures to monitor trading across funds and its
Other Clients.
22
P
ORTFOLIO
MANAGER/INVESTMENT TEAM MEMBER SHARE OWNERSHIP
23
Fund
None
$1 to
$10,001 to
$50,000 to
$100,001 to
$500,001 to
Over $1,000,000
Charl Malan
Global
Hard Assets Fund
X
(investment
team member)
International
Investors Gold Fund
X
(investment
team member)
Mark Miller
Global
Hard Assets Fund
X
(investment
team member)
Edward Mitby
Global
Hard Assets Fund
X
(investment
team member)
Shawn Reynolds
Global
Hard Assets Fund
X
(co-portfolio
manager)
David Semple
Emerging
Markets Fund
X
(portfolio
manager)
Angus Shillington
Emerging
Markets Fund
X
(investment
team member)
The
portfolio holdings of each portfolio manager and investment team member, as of
March 31, 2012, is shown below.
Fund
None
$1 to
$10,001 to
$50,000 to
$100,001 to
$500,001 to
Over $1,000,000
Charles Cameron
Global
Hard Assets Fund
X
Imaru Casanova
Global
Hard Assets Fund
X
International
Investors Gold Fund
X
24
Fund
None
$1 to
$10,001 to
$50,000 to
$100,001 to
$500,001 to
Over $1,000,000
Joseph Foster
Global
Hard Assets Fund
X
International
Investors Gold Fund
X
Samuel Halpert
Global
Hard Assets Fund
X
Geoffrey R. King
Global
Hard Assets Fund
X
Gregory Krenzer
Global
Hard Assets Fund
X
Edward Kuczma
Emerging
Markets Fund
X
Charl Malan
Global
Hard Assets Fund
X
International
Investors Gold Fund
X
Mark Miller
Global
Hard Assets Fund
X
Edward Mitby
Global
Hard Assets Fund
X
Shawn Reynolds
Global
Hard Assets Fund
X
25
O
THER
ACCOUNTS MANAGED BY PORTFOLIO MANAGERS/INVESTMENT TEAM MEMBERS
Below
is a table of the number of other accounts managed within each of the
following categories and the total assets in the accounts managed within
each category, as of December 31, 2011.
Name of Portfolio
Other Accounts Managed
Accounts with respect to which the
Fund
Category of Account
Number of
Total Assets in
Number of
Total Assets in
Emerging
Markets Fund
Edward
Kuczma
Registered
1
$154.2 million
0
$0
Other pooled
0
$0
0
$0
Other accounts
0
$0
0
$0
Emerging
Markets Fund
David
Semple
Registered
1
$154.2 million
0
$0
Other pooled
3
$2.93 million
2
$2.93 million
Other accounts
0
$0
0
$0
Emerging
Markets Fund
Angus
Shillington
Registered
1
$154.2 million
0
$0
Other pooled
3
$2.93 million
2
$2.93 million
Other accounts
0
$0
0
$0
Global
Hard Assets Fund
Charles
Cameron
Registered
3
$2.072 billion
0
$0
Other pooled
12
$389.14 million
9
$373.96 million
Other accounts
9
$302.44 million
2
$55.37 million
Global
Hard Assets Fund
Imaru
Casanova
Registered
2
$2.565 billion
0
$0
Other pooled
3
$667.35 million
0
$0
Other
accounts
1
$62.21 million
0
$0
Global
Hard Assets Fund
Joseph
Foster
Registered
2
$2.565 billion
0
$0
Other pooled
3
$667.35 million
0
$0
26
Fund
Name of Portfolio
Category of Account
Other Accounts Managed
Accounts with respect to which the
Other
accounts
1
$62.21 million
0
$0
Global
Hard Assets Fund
Samuel
Halpert
Registered
1
$1.167 billion
0
$0
Other pooled
0
$0
0
$0
Other
accounts
0
$0
0
$0
Global
Hard Assets Fund
Geoffrey
King
Registered
1
$1.167 billion
0
$0
Other pooled
0
$0
0
$0
Other
accounts
0
$0
0
$0
Global
Hard Assets Fund
Gregory
Krenzer
Registered
2
$1.223 billion
0
$0
Other pooled
0
$0
0
$0
Other
accounts
0
$0
0
$0
Global
Hard Assets Fund
Charl
Malan
Registered
2
$2.565 billion
0
$0
Other pooled
0
$0
0
$0
Other
accounts
0
$0
0
$0
Global
Hard Assets Fund
Mark
Miller
Registered
1
$1.167 billion
0
$0
Other pooled
0
$0
0
$0
Other
accounts
0
$0
0
$0
Global
Hard Assets Fund
Edward
Mitby
Registered
1
$1.167 billion
0
$0
Other pooled
0
$0
0
$0
Other
accounts
0
$0
0
$0
Global
Hard Assets Fund
Shawn Reynolds
Registered
2
$2.016 billion
0
$0
Other pooled
14
$405.95 million
11
$390.77 million
Other
accounts
8
$606.45 million
2
$325.49 million
International
Investors Gold Fund
Joseph Foster
Registered
2
$5.255 billion
0
$0
Other pooled
3
$667.35 million
0
$0
Other
accounts
1
$62.21 million
0
$0
International
Investors Gold Fund
Imaru
Casanova
Registered
2
$5.255 billion
0
$0
Other pooled
3
$667.35 million
0
$0
27
Fund
Name of Portfolio
Category of Account
Other Accounts Managed
Accounts with respect to which the
Other
accounts
1
$62.21 million
0
$0
International
Investors Gold Fund
Charl
Malan
Registered
2
$5.255 billion
0
$0
Other pooled
0
$0
0
$0
Other
accounts
0
$0
0
$0
P
ORTFOLIO
TRANSACTIONS AND BROKERAGE
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 Funds 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.
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.
The
portfolio managers may deem it appropriate for one fund or account they manage
to sell a security while another fund or account they manage is purchasing the
same security. Under such circumstances, the portfolio managers may arrange to
have the purchase and sale transactions effected directly between the funds
and/or accounts (cross transactions). Cross transactions will be effected in
accordance with procedures adopted pursuant to Rule 17a-7 under the 1940 Act.
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 Adviser
may cause the Funds to pay a broker-dealer who furnishes brokerage and/or
research services, a commission that is in excess of the commission another
broker-dealer would have received for executing the transaction, if it is
determined that such commission is reasonable in relation to the value of the
brokerage and/or research services as defined in Section 28(e) of the
Securities Exchange Act of 1934, as amended, which have been provided. Such
research services may include, among other things, analyses and reports
concerning issuers, industries, securities, economic factors and trends and
portfolio strategy. Any such research and other information provided by brokers
to the Adviser is considered to be in addition to and not in lieu of services
required to be performed by the Adviser under its Advisory Agreement with the
Trust. The research services provided by broker-dealers can be useful to the
Adviser in serving its other clients or clients of the Advisers affiliates.
The Trustees periodically review the Advisers performance of its responsibilities
in connection with the placement of portfolio transactions on behalf of the
Funds. The Trustees also review the commissions paid by the Funds over
representative periods of time to determine if they are reasonable in relation
to the benefits to the Funds.
28
The Adviser
does not consider sales of shares of the Funds as a factor in the selection of
broker-dealers to execute portfolio transactions for the Funds. The Adviser has
implemented policies and procedures pursuant to Rule 12b-1(h) that are
reasonably designed to prevent the consideration of the sales of fund shares
when selecting broker-dealers to execute trades.
Due to the
potentially high rate of turnover, the Funds may pay a greater amount in
brokerage commissions than a similar size fund with a lower turnover rate. The
portfolio turnover rates of all Funds may vary greatly from year to year.
LEADERSHIP
STRUCTURE AND THE BOARD
The Board
has determined that the Boards leadership structure is appropriate in light of
the characteristics and circumstances of the Trust and each of the Funds in the
Fund Complex, including factors such as the number of series or portfolios that
comprise the Trust and the Fund Complex, the variety of asset classes those
series reflect, the net assets of the Funds, the committee structure of the
Trust, and the management, distribution and other service arrangements of the
Funds. In connection with its determination, the Board considered that the
Board is comprised of only Independent Trustees, and thus the Chairperson of
the Board and the Chairperson of each Board committee is an Independent
Trustee. In addition, to further align the Independent Trustees interests with
those of Fund shareholders, the Board has, among other things, adopted a policy
requiring each Independent Trustee to maintain a minimum direct or indirect
investment in the Funds.
The
Chairperson presides at all meetings of the Board and participates in the
preparation of the agenda for such meetings. He also serves as a liaison with
management, service providers, officers, attorneys, and the other Independent
Trustees generally between meetings. The Chairperson may also perform other
such functions as may be delegated by the Board from time to time. The
Independent Trustees believe that the Chairpersons independence facilitates
29
The
Independent Trustees regularly meet outside the presence of management and are
advised by independent legal counsel. The Board has determined that its
committees help ensure that the Trust has effective and independent governance
and oversight. The Board also believes that its leadership structure
facilitates the orderly and efficient flow of information to the Independent
Trustees from management of the Trust, including the Adviser.
RISK OVERSIGHT
The Funds
and the Trust are subject to a number of risks, including investment,
compliance, operational, and valuation risks. Day-to-day risk management
functions are within the responsibilities of the Adviser, the Distributor and
the other service providers (depending on the nature of the risk) that carry
out the Funds investment management, distribution and business affairs. Each
of the Adviser, the Distributor and the other service providers have their own,
independent interests and responsibilities in risk management, and their
policies and methods of carrying out risk management functions will depend, in
part, on their individual priorities, resources and controls.
The Board
recognizes that not all risks that may affect the Trust can be identified, that
it may not be practical or cost-effective to eliminate or mitigate certain
risks, that it may be necessary to bear certain risks to achieve the Trusts
goals, and that the processes, procedures and controls employed to address certain
risks may be limited in their effectiveness. Moreover, reports received by the
Trustees that may relate to risk management matters are typically summaries of
the relevant information. As a result of the foregoing and other factors, the
function of the Board with respect to risk management is one of oversight and
not active involvement in, or coordination of, day-to-day-day risk management
activities for the Trust. The Board may, at any time and in its discretion,
change the manner in which it conducts its risk oversight role.
The
Trustees of the Trust, their address, position with the Trust, age and
principal occupations during the past five years are set forth below.
30
TRUSTEE
S
POSITION(S) HELD
WITH TRUST
PRINCIPAL
OCCUPATION(S)
NUMBER OF
OTHER
DIRECTORSHIPS
INDEPENDENT TRUSTEES:
Jon Lukomnik
Trustee since March 2006
Managing Partner, Sinclair Capital
LLC (consulting firm), 2000 to present; Executive Director, Investor
Responsibility Research Center Institute, 2008 to present.
10
Chairman of the Board of the New
York Classical Theatre; formerly Director of The Governance Fund, LLC;
formerly Director of Sears Canada, Inc.
Jane DiRenzo Pigott
Trustee since July 2007; Currently,
Chairperson of the Governance Committee
Managing Director, R3 Group LLC
(consulting firm), 2002 to present.
10
Director and Chair of Audit
Committee of 3E Company (environmental services); formerly Director of
MetLife Investment Funds, Inc.
Wayne H. Shaner
Trustee since March 2006
Managing Partner, Rockledge
Partners LLC, 2003 to present (investment adviser); Public Member of the
Investment Committee, Maryland State Retirement System since 1991.
10
Director, The Torray Funds (2
portfolios), since 1993 (Chairman of the Board since December 2005).
R. Alastair Short
Trustee since June 2004; Currently,
Vice Chairperson of the Board and Chairperson of the Audit Committee
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; Managing Director, The GlenRock Group, LLC (private equity investment
firm), May 2004 to September 2007.
63
Chairman and Independent Director,
EULAV Asset Management; Independent Director, Tremont offshore funds;
Director, Kenyon Review; formerly Director of The Medici Archive Project.
Richard D. Stamberger
Trustee since 1995; Currently,
Chairperson of the Board
President and CEO, SmartBrief, Inc.
(business media company), 1999 to present.
63
Director, SmartBrief, Inc.
Robert L. Stelzl
Trustee since July 2007
Trustee, Joslyn Family Trusts, 2003
to present; President, Rivas Capital, Inc. (real estate property management
services company), 2004 to present.
10
Lead Independent Director,
Brookfield Properties, Inc.; Director and Chairman, Brookfield Residential
Properties, Inc.
(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. The Board established a mandatory retirement
policy applicable to all Independent Trustees, which provides that
Independent Trustees shall resign from the Board on December 31 of the year
such Trustee reaches the age of 75.
(3)
The Fund Complex consists of Van
Eck Funds, Van Eck VIP Trust and Market Vectors ETF Trust.
(A)
Member of the Audit Committee.
(G)
Member of the Governance
Committee.
Set forth
below is additional information relating to the professional experience,
attributes and skills of each Trustee relevant to such individuals
qualifications to serve as a Trustee:
Jon Lukomnik
has extensive business and
financial experience, particularly in the investment management industry. He
currently serves as Managing Partner of Sinclair Capital LLC, a consulting
firm to the investment management industry and is Executive Director for
Investor Responsibility Research Center Institute, a not-for-profit
organization that funds research on corporate responsibility and investing.
31
Jane DiRenzo Pigott
has extensive business and
financial experience and serves as Managing Director of R3 Group LLC, a firm
specializing in providing leadership, change and diversity/inclusion
consulting services. Ms. Pigott has prior experience as an independent
trustee of other mutual funds and previously served as chair of the global
Environmental Law practice group at Winston & Strawn LLP.
Wayne Shaner
has extensive business and
financial experience, particularly in the investment management industry. He
currently serves as the Managing Partner of Rockledge Partners LLC, a
registered investment adviser and as a Public Member of the Investment
Committee of the Maryland State Retirement System. Mr. Shaner also has
experience as an independent trustee of another mutual funds.
Alastair Short
has extensive business and
financial experience, particularly in the investment management industry. He
has served as a president, board member or executive officer of various
businesses, including asset management and private equity investment firms.
Mr. Short also serves as an independent director of an offshore investment
company.
Richard Stamberger
has extensive business and
financial experience and serves as the president, chief executive officer and
board member of SmartBrief Inc., a media company. Mr. Stamberger has
experience as a member of the board of directors of numerous not-for-profit
organizations and has more than 15 years of experience as a member of the
Board of the Trust.
Robert Stelzl
has extensive business and
financial experience, particularly in the investment management and real
estate industries. He currently serves as a court-appointed trustee for a
number of family trusts for which he provides investment management services.
The
forgoing information regarding the experience, qualifications, attributes and
skills of Trustees is provided pursuant to requirements of the SEC, and does
not constitute holding out of the Board or any Trustee as having any special
expertise or experience, and shall not impose any greater responsibility or
liability on any such person or on the Board by reason thereof.
COMMITTEE
STRUCTURE
The Board
has established a standing Audit Committee and a standing Governance Committee
to assist the Board in the oversight and direction of the business and affairs
of the Trust. Each Committee is comprised of all of the members of the Board,
all of whom are Independent Trustees.
Governance
Committee.
This Committee met two times during 2011. The duties of this Committee
include consideration of recommendations on nominations for Trustees, review of
the composition of the Board, and recommendations of meetings, compensation and
similar matters. In addition, on an annual basis, the Governance Committee
conducts an evaluation of the performance of the Board and its Committees,
including the effectiveness of the Boards Committee structure and the number
of Funds on whose Board each Trustee serves. When considering potential
nominees for election to the Board and to fill vacancies occurring on the
Board, where shareholder approval is not required, and as part of the annual
self-evaluation, the Governance Committee reviews the mix of skills and other
relevant experiences of the Trustees. Currently, Ms. Pigott serves as the
Chairperson of the Governance Committee.
The
Independent Trustees shall, when identifying candidates for the position of
Independent Trustee, consider candidates recommended by a shareholder of a Fund
if such recommendation provides sufficient background information concerning
the candidate and evidence that the candidate is willing to serve as an
Independent Trustee if selected, and is received in a sufficiently timely
manner. Shareholders should address recommendations in writing to the attention
of the Governance Committee, c/o the Secretary of the Trust. The Secretary
shall retain copies of any shareholder
32
recommendations which meet the foregoing requirements for a period of
not more than 12 months following receipt. The Secretary shall have no
obligation to acknowledge receipt of any shareholder recommendations.
33
The
executive officers of the Trust, their age and address, the positions they hold
with the Trust, their term of office and length of time served and their
principal business occupations during the past five years are shown below.
OFFICERS NAME,
POSITION(S) HELD
TERM OF OFFICE AND
PRINCIPAL OCCUPATIONS
Russell
G. Brennan, 47
Assistant
Vice President and Assistant Treasurer
Since
2008
Assistant
Vice President of the Adviser, Van Eck Associates Corporation (Since 2008);
Manager (Portfolio Administration) of the Adviser (September 2005-October
2008); Officer of other investment companies advised by the Adviser.
Charles
T. Cameron, 53
Vice
President
Since
1996
Director
of Trading (Since 1995) and Portfolio Manager (Since 1997) for the Adviser; Officer
of other investment companies advised by the Adviser.
John
Crimmins, 54
Vice
President, Treasurer, Chief Financial Officer and Principal Accounting
Officer
Since
2009 (Treasurer); since 2012 (Vice President, Chief Financial Officer and
Principal Accounting Officer)
Vice
President of Portfolio Administration of the Adviser (Since 2009); Vice
President of Van Eck Securities Corporation (VESC) and Van Eck Absolute
Return Advisers (VEARA) (Since 2009); Chief Financial, Operating and
Compliance Officer, Kern Capital Management LLC (September 1997-February
2009); Officer of other investment companies advised by the Adviser.
Wu-Kwan
Kit, 30
Assistant
Vice President and Assistant Secretary
Since
2011
Assistant
Vice President, Associate General Counsel and Assistant Secretary of the
Adviser, VESC and VEARA (Since 2011); Associate, Schulte Roth & Zabel LLP
(September 2007-August 2011)
Susan C.
Lashley, 57
Vice
President
Since
1998
Vice
President of the Adviser and VESC; Officer of other investment companies advised
by the Adviser.
Thomas K.
Lynch, 55
Vice
President and Chief Compliance Officer
Since
2007
Chief
Compliance Officer of the Adviser and VEARA (Since December 2006) and VESC
(Since August 2008); Officer of other investment companies advised by the Adviser.
Laura I.
Martínez, 32
Assistant
Vice President and Assistant Secretary
Since
2008
Assistant
Vice President, Associate General Counsel and Assistant Secretary of the
Adviser, VESC and VEARA (Since 2008); Associate, Davis Polk & Wardwell
(October 2005-June 2008); Officer of other investment companies advised by
the Adviser.
Joseph J.
McBrien, 63
Senior
Vice President, Secretary and Chief Legal Officer
Since
2005
Senior
Vice President, General Counsel and Assistant Secretary of the Adviser, VESC
and VEARA (Since December 2005); Director of VESC and VEARA (since October
2010); Officer of other investment companies advised by the Adviser.
Jonathan
R. Simon, 37
Vice
President and Assistant Secretary
Since
2006
Vice
President, Associate General Counsel and Assistant Secretary of the Adviser,
VESC and VEARA (Since 2006); Officer of other investment companies advised by
the Adviser.
Bruce J.
Smith, 57
Senior
Vice President
Since
1985
Senior
Vice President, Chief Financial Officer, Treasurer and Controller of the
Adviser, VESC and VEARA (Since 1997); Director of the Adviser, VESC and VEARA
(Since October 2010); Officer of other investment companies advised by the
Adviser.
Jan F.
van Eck, 48
Chief
Executive Officer and President
Since
2005 (serves as Chief Executive Officer and President since 2010, prior
thereto served as Executive Vice President)
Director
and Owner of the Adviser (Since July 1993); Executive Vice President of the
Adviser (January 1985 - October 2010); Director (Since November 1985),
President (Since October 2010) and Executive Vice President (June 1991 -
October 2010) of VESC; Director and President of VEARA; Trustee, President
and Chief Executive Officer of Market Vectors ETF Trust; Officer of other
investment companies advised by the Adviser.
34
(1)
The address for each Executive
Officer is 335 Madison Avenue, 19th Floor, New York, NY 10017.
(2)
Officers are elected yearly by
the Trustees.
Name of
Trustee
Dollar Range of Equity
Dollar Range of Equity
Dollar Range of Equity
Jon
Lukomnik
$50,001 - $100,000
$50,001 - $100,000
$50,001 - $100,000
Jane
DiRenzo Pigott
Over $100,000
Over $100,000
Over $100,000
Wayne H.
Shaner
None
None
$1 - $10,000
R.
Alastair Short
$1 - $10,000
$10,001 - $50,000
Over $100,000
Richard
D. Stamberger
Over $100,000
Over $100,000
Over $100,000
Robert
L. Stelzl
$50,001 - $100,000
$50,001 - $100,000
$50,001 - $100,000
Name of
Trustee
Aggregate Dollar Range of Equity
Jon
Lukomnik
Over $100,000
Jane
DiRenzo Pigott
Over $100,000
Wayne H.
Shaner
$1 - $10,000
R.
Alastair Short
Over $100,000
Richard
D. Stamberger
Over $100,000
Robert
L. Stelzl
Over $100,000
*
Includes
shares which may be deemed to be beneficially owned through the Trustee
Deferred Compensation Plan.
35
As to each
Independent Trustee and his/her immediate family members, no person owned
beneficially or of record securities in an investment manager or principal
underwriter of the Funds, 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 Funds.
The
Trustees are paid for services rendered to the Trust and Van Eck VIP Trust (the
Van Eck Trusts), each a registered investment company managed by the Adviser,
which are allocated to each series of the Van Eck Trusts based on their average
daily net assets. Each Independent Trustee is paid an annual retainer of
$50,000, a per meeting fee of $7,500 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 Van Eck Trusts pay the Chairperson of the Board an
annual retainer of $20,000, the Chairperson of the Audit Committee an annual
retainer of $10,000 and the Chairperson of the Governance Committee an annual
retainer of $10,000. The Van Eck Trusts also reimburse 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.
The table
below shows the compensation paid to the Trustees for the fiscal year ended
December 31, 2011. Annual Trustee fees may be reviewed periodically and changed
by the Board.
Jon
Jane DiRenzo
Wayne
R. Alastair
Richard D.
Robert
Aggregate Compensation from the Van
Eck Trusts
$
100,000
$
90,000
$
90,000
$
100,000
$
110,000
$
90,000
Aggregate Deferred Compensation
from the Van Eck Trusts
$
50,000
$
90,000
$
0
$
0
$
27,500
$
45,000
Pension or Retirement Benefits
Accrued as Part of the Van Eck Trusts Expenses
N/A
N/A
N/A
N/A
N/A
N/A
Estimated Annual Benefits Upon
Retirement
N/A
N/A
N/A
N/A
N/A
N/A
Total Compensation From the Van Eck
Trusts and the Fund Complex
(1)
Paid to Trustee
$
100,000
$
90,000
$
90,000
$
255,875
$
249,750
$
90,000
(1)
The Fund Complex consists of
the Van Eck Trusts and Market Vectors ETF Trust.
Principal Holders Ownership
FUND AND CLASS
NAME AND ADDRESS OF OWNER
PERCENTAGE
Emerging Markets Fund
UBS Wealth Management USA
7.26%
Emerging Markets Fund
Merrill Lynch Pierce Fenner &
Smith
6.88%
36
FUND AND CLASS
NAME AND ADDRESS OF OWNER
PERCENTAGE
Emerging Markets Fund
Merrill Lynch Pierce Fenner &
Smith
26.93%
Emerging Markets Fund
UBS Wealth Management US
9.77%
Emerging Markets Fund
Van Eck Absolute Return
97.52%
Emerging Markets Fund
Merrill Lynch Pierce Fenner &
Smith
68.25%
Emerging Markets Fund
Counsel Trust DBA
15.47%
Emerging Markets Fund
LPL Financial
10.66%
Global Hard Assets Fund
UBS Wealth Management US
13.06%
Global Hard Assets Fund
Charles Schwab & Co. Inc.
9.74%
Global Hard Assets Fund
First Clearing LLC
5.80%
Global Hard Assets Fund
Merrill Lynch Pierce Fenner &
Smith
24.82%
Global Hard Assets Fund
UBS Wealth Management USA
9.49%
Global Hard Assets Fund
Charles Schwab & Co. Inc.
27.09%
37
FUND AND CLASS
NAME AND ADDRESS OF OWNER
PERCENTAGE
Customers Instl.
Global Hard Assets Fund
Merrill Lynch Pierce Fenner &
Smith
47.24%
Global Hard Assets Fund
LPL Financial
8.08%
International Investors Gold Fund
UBS Wealth Management USA
6.32%
International Investors Gold Fund
Charles Schwab & Co. Inc.
5.02%
International Investors Gold Fund
Merrill Lynch Pierce Fenner &
Smith
23.67%
International Investors Gold Fund
UBS Wealth Management USA
7.06%
International Investors Gold Fund
Northern Trust Company
31.15%
International Investors Gold Fund
Charles Schwab & Co. Inc.
16.68%
International Investors Gold Fund
Merrill Lynch Pierce Fenner &
Smith
61.46%
International Investors Gold Fund
LPL Financial
7.99%
Control Person Ownership
38
P
OTENTIAL
CONFLICTS OF INTEREST
The Adviser
(and its principals, affiliates or employees) may serve as investment adviser
to other client accounts and conduct investment activities for their own
accounts. Such Other Clients may have investment objectives or may implement
investment strategies similar to those of the Funds. When the Adviser
implements investment strategies for Other Clients that are similar or directly
contrary to the positions taken by a Fund, the prices of the Funds securities
may be negatively affected. For example, when purchase or sales orders for a
Fund are aggregated with those of other Funds and/or Other Clients and
allocated among them, the price that the Fund pays or receives may be more in
the case of a purchase or less in a sale than if the Adviser served as adviser
to only the Fund. When Other Clients are selling a security that a Fund owns,
the price of that security may decline as a result of the sales. The
compensation that the Adviser receives from other clients may be higher than
the compensation paid by a Fund to the Adviser. The Adviser does not believe
that its activities materially disadvantage a Fund. The Adviser has implemented
procedures to monitor trading across the Funds and its Other Clients.
P
ROXY
VOTING POLICIES AND PROCEDURES
The Funds
proxy voting record is available upon request and on the SECs website at
http://www.sec.gov. Proxies for each 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 each 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 Funds is available through the Funds
website, at vaneck.com, or by writing to 335 Madison Avenue, 19th Floor, New
York, New York 10017. The Funds Form N-PX is also available on the SECs
website at
www.sec.gov
.
The Funds,
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 Funds 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 a 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. A Personnel member may purchase
securities in an IPO or private placement, provided that he or she obtains
pre-clearance of the purchase and makes certain representations.
If you purchase
shares through a financial intermediary, different purchase minimums may apply.
Van Eck reserves the right to waive the investment minimums under certain
circumstances.
The Funds
may reject a purchase order for any reason, including an exchange purchase,
either before or after the purchase.
Van Eck
reserves the right to allow a financial intermediary that has a Class I
Agreement with Van Eck to purchase shares for its own omnibus account and for
its clients accounts in Class I shares of a Fund on behalf of its eligible
clients which are Employer-Sponsored Retirement Plans with plan assets of $3
million or more.
An investor
or the Broker or Agent must notify DST or the Distributor at the time of
purchase whenever a quantity discount or reduced sales charge is applicable to
a purchase. Quantity discounts described above may be modified or terminated at
any time without prior notice.
39
B
REAKPOINT
LINKAGE RULES FOR DISCOUNTS
The term
spouse also includes civil union and common law marriage as defined by the
state laws of residence. The term child also includes stepchild. Trust
accounts may be linked by trustee if the primary owner or family member is
related, by trustee, by grantor and by beneficiary.
Shares of
the Funds are sold at the public offering price, which is determined once each
day the Funds are open for business and is the net asset value per share. The
net asset values need not be computed on a day in which no orders to purchase,
sell or redeem shares of the Funds have been received.
Dividends
paid by a Fund with respect to Class A, Class C, Class I and Class Y shares
will be calculated in the same manner, at the same time and on the same day and
will be in the same amount, except that the higher distribution services fee
and any incremental transfer agency costs relating to Class C shares will be
borne exclusively by that Class. The Trustees have determined that currently no
conflict of interest exists between the Class A, Class C, Class I and Class Y
shares. On an ongoing basis, the Board, pursuant to their fiduciary duties
under the 1940 Act and state laws, will seek to ensure that no such conflict
arises.
Shares of
International Investors Gold Fund-A, Global Hard Assets Fund-A, and Emerging
Markets Fund-A are sold at the public offering price, which is determined once
each day the Funds are open for business and is the net asset value per share
plus a sales charge in accordance with the schedule set forth in the
Prospectus.
INTERNATIONAL
GLOBAL
EMERGING
Net asset value and repurchase
price per share on $.001 par value capital shares outstanding
$
19.08
$
43.34
$
9.92
Maximum sales charge (as
described in the Prospectus)
$
1.16
$
2.64
$
0.61
Maximum offering price per share
$
20.24
$
45.98
$
10.53
In
determining whether a deferred sales charge is applicable to Class C shares,
the calculation will be determined in the manner that results in the lowest
possible rate being charged. Therefore, it will be assumed that the redemption
is first from any Class A shares in the shareholders Fund account (unless a
specific request is made to redeem a specific class of shares), Class C shares
held for over one year and shares attributable to appreciation or shares
acquired pursuant to reinvestment, and third of any Class C shares held longest
during the applicable period.
The value
of a financial futures or commodity futures contract equals the unrealized gain
or loss on the contract that is determined by marking it to the current
settlement price for a like contract acquired on the day on which the commodity
futures contract is being valued. A settlement price may not be used if the
market makes a limit move with respect to a particular commodity. Securities or
futures contracts for which market quotations are readily available are valued
at market value, which is currently determined using the last reported sale
price. If no sales are reported as in the case of most securities traded
over-the-counter, securities are valued at the mean of their bid and asked
prices at the close of trading on the NYSE. In cases where securities are
traded on more than one exchange, the securities are valued on the exchange
designated by or under the authority of the Board as the primary market.
Short-term investments having a maturity of 60 days or less are valued at
amortized cost, which approximates market. Options are valued at the last sales
price, unless the last sales price does not fall within the bid and ask prices
at the close of the market, at which time the mean of the bid and ask prices is
used. All other securities are valued at their fair value as determined in good
faith by
40
the Trustees. Foreign securities or futures contracts quoted in foreign
currencies are valued at appropriately translated foreign market closing prices
or as the Board may prescribe.
Generally,
trading in foreign securities and futures contracts, as well as corporate
bonds, United States Government securities and money market instruments, is
substantially completed each day at various times prior to the close of the
NYSE. The values of such securities used in determining the net asset value of
the shares of the Funds may be computed as of such times. Foreign currency
exchange rates are also generally determined prior to the close of the NYSE.
Occasionally, events affecting the value of such securities and such exchange
rates may occur between such times and the close of the NYSE which will not be reflected
in the computation of the Funds net asset values. If events materially
affecting the value of such securities occur during such period then these
securities may be valued at their fair value as determined in good faith by the
Board.
Each Funds
investments are generally valued based on market quotations. When market
quotations are not readily available for a portfolio security, a Fund must use
the securitys fair value as determined in good faith in accordance with the
Funds Fair Value Pricing Procedures, which are approved by the Board. As a
general principle, the current fair value of a security is the amount which a
Fund might reasonably expect to receive for the security upon its current sale.
The Funds Pricing Committee, whose members are selected by the senior
management of the Adviser, is responsible for recommending fair value
procedures to the Board and for administering the process used to arrive at
fair value prices. Factors that may cause a Fund to use the fair value of a
portfolio security to calculate the Funds NAV include, but are not limited to:
(1) market quotations are not readily available because a portfolio security is
not traded in a public market or the principal market in which the security
trades is closed, (2) trading in a portfolio security is limited or suspended
and not resumed prior to the time at which the Fund calculates its NAV, (3) the
market for the relevant security is thin, or stale because its price doesnt
change in 5 consecutive business days, (4) the Investment Adviser determines
that a market quotation is inaccurate, for example, because price movements are
highly volatile and cannot be verified by a reliable alternative pricing
source, or (5) where a significant event affecting the value of a portfolio
security is determined to have occurred between the time of the market
quotation provided for a portfolio security and the time at which the Fund
calculates its NAV.
In
determining the fair value of securities, the Pricing Committee will consider,
among other factors, the fundamental analytical data relating to the security,
the nature and duration of any restrictions on disposition of the security, and
the forces influencing the market in which the security is traded.
Foreign
securities in which the Funds invest may be traded in markets that close before
the time that each Fund calculates its NAV. Foreign securities are normally
priced based upon the market quotation of such securities as of the close of
their respective principal markets, as adjusted to reflect the Investment
Advisers determination of the impact of events, such as a significant movement
in the U.S. markets occurring subsequent to the close of such markets but prior
to the time at which the Fund calculates its NAV. In such cases, the Pricing
Committee will apply a fair valuation formula to all foreign securities based
on the Committees determination of the effect of the U.S. significant event
with respect to each local market.
The Board
authorized the Adviser to retain an outside pricing service to value certain
portfolio securities. The pricing service uses an automated system
incorporating a model based on multiple parameters, including a securitys
local closing price (in the case of foreign securities), relevant general and
sector indices, currency fluctuations, and trading in depositary receipts and
futures, if applicable, and/or research evaluations by its staff, in
determining what it believes is the fair valuation of the portfolio securities valued
by such pricing service.
There can
be no assurance that the Funds could purchase or sell a portfolio security at
the price used to calculate the Funds NAV. Because of the inherent uncertainty
in fair valuations, and the various factors considered in determining value
pursuant to the Funds fair value procedures, there can be significant
deviations between a fair value price at which a portfolio security is being
carried and the price at which it is purchased or sold. Furthermore, changes in
the fair valuation of portfolio securities may be less frequent, and of greater
magnitude, than changes in the price of portfolio securities valued by an
independent pricing service, or based on market quotations.
Shareholders
of a Fund may exchange their shares for shares of the same class of other funds
in the Trust. The Exchange Privilege will not be available if the proceeds from
a redemption of shares of a Fund whose shares qualify are paid directly to the
shareholder. The Exchange Privilege is not available for shares which are not
on deposit with DST or State Street Bank and Trust Company (SSBT), or shares
which are held in escrow pursuant to a Letter of Intent. If certificates
representing shares of a Fund accompany a written exchange request, such shares
will be deposited into an account with the same registration as the
certificates upon receipt by DST.
41
The Funds
each reserve the right to (i) charge a fee of not more than $5.00 per exchange
payable to a Fund or charge a fee reasonably intended to cover the costs
incurred in connection with the exchange; (ii) establish a limit on the number
and amount of exchanges made pursuant to the Exchange Privilege, as disclosed
in the Prospectus and (iii) terminate the Exchange Privilege without written
notice. In the event of such termination, shareholders who have acquired their
shares pursuant to the Exchange Privilege will be afforded the opportunity to
re-exchange such shares for shares of the Fund originally purchased without
sales charge, for a period of not less than three (3) months.
By
exercising the Exchange Privilege, each shareholder whose shares are subject to
the Exchange Privilege will be deemed to have agreed to indemnify and hold
harmless the Trust and each of its series, their Adviser, sub-investment
adviser (if any), distributor, transfer agent, SSBT and the officers,
directors, employees and agents thereof against any liability, damage, claim or
loss, including reasonable costs and attorneys fees, resulting from acceptance
of, or acting or failure to act upon, or acceptance of unauthorized
instructions or non-authentic telephone instructions given in connection with,
the Exchange Privilege, so long as reasonable procedures are employed to
confirm the authenticity of such communications. (For more information on the
Exchange Privilege, see the Prospectus).
Dividend
Reinvestment Plan
.
Reinvestments of dividends of the
Funds will occur on a date selected by the Board.
An investor
should realize that he is investing his funds in securities subject to market
fluctuations, and accordingly the Automatic Exchange Plan does not assure a
profit or protect against depreciation in declining markets. The Automatic
Exchange Plan contemplates the systematic purchase of securities at regular
intervals regardless of price levels.
The
expenses of the Automatic Exchange Plan are general expenses of a Fund and will
not involve any direct charge to the participating shareholder. The Automatic
Exchange Plan is completely voluntary and may be terminated on fifteen days
notice to DST.
42
Automatic
Investment Plan.
Investors may arrange under the Automatic Investment
Plan to have DST collect a specified amount once a month or quarter from the
investors checking account and purchase full and fractional shares of a Fund
at the public offering price next computed after receipt of the proceeds.
Further details of the Automatic Investment Plan are given in the application
which is available from DST or the Funds.
An investor
should realize that he is investing his funds in securities subject to market
fluctuations, and accordingly the Automatic Investment Plan does not assure a
profit or protect against depreciation in declining markets. The Automatic
Investment Plan contemplates the systematic purchase of securities at regular
intervals regardless of price levels.
The
expenses of the Automatic Investment Plan are general expenses of a Fund and
will not involve any direct charge to the participating shareholder. The
Automatic Investment Plan is completely voluntary. The Automatic Investment
Plan may be terminated on thirty days notice to DST.
In order to
open an Automatic Withdrawal Plan, the investor must complete the Application
and deposit or purchase for deposit, with DST, the agent for the Automatic
Withdrawal Plan, shares of a Fund having a total value of not less than $10,000
based on the offering price on the date the Application is accepted, except for
automatic withdrawals for the purpose of retirement account distributions.
Income
dividends and capital gains distributions on shares under an Automatic
Withdrawal Plan will be credited to the investors Automatic Withdrawal Plan
account in full and fractional shares at the net asset value in effect on the
reinvestment date.
Periodic
checks for a specified amount will be sent to the investor, or any person
designated by him, monthly or quarterly (January, April, July and October). A
Fund will bear the cost of administering the Automatic Withdrawal Plan.
Redemption
of shares of a Fund deposited under the Automatic Withdrawal Plan may deplete
or possibly use up the initial investment plus income dividends and
distributions reinvested, particularly in the event of a market decline. In
addition, the amounts received by an investor cannot be considered an actual
yield or income on his investment, since part of such payments may be a return
of his capital. The redemption of shares under the Automatic Withdrawal Plan
may give rise to a taxable event.
The
maintenance of an Automatic Withdrawal Plan concurrently with purchases of
additional shares of a Fund would be disadvantageous because of the sales
charge payable with respect to such purchases. An investor may not have an
Automatic Withdrawal Plan in effect and at the same time have in effect an
Automatic Investment Plan or an Automatic Exchange Plan. If an investor has an
Automatic Investment Plan or an Automatic Exchange Plan, such service must be
terminated before an Automatic Withdrawal Plan may take effect.
The
Automatic Withdrawal Plan may be terminated at any time (1) on 30 days notice
to DST or from DST to the investor, (2) upon receipt by DST of appropriate
evidence of the investors death or (3) when all shares under the Automatic
Withdrawal Plan have been redeemed. Upon termination, unless otherwise
requested, certificates representing remaining full shares, if any, will be
delivered to the investor or his duly appointed legal representatives.
S
HARES
PURCHASED BY NON-U.S. FINANCIAL INSTITUTIONS
Class A
shares of the Funds which are sold with a sales charge may be purchased by a
foreign bank or other foreign fiduciary account, with an international selling
agreement, for the benefit of foreign investors at the sales charge applicable
to the Funds $500,000 breakpoint level, in lieu of the sales charge in the
above scale. The Distributor has entered into arrangements with foreign
financial institutions pursuant to which such institutions may be compensated
by the Distributor from its own resources for assistance in distributing Fund
shares. Clients of Netherlands insurance companies who are not U.S. citizens
or residents may purchase shares without a sales charge. Clients of fee-only
advisors that purchase shares through a foreign bank or other foreign fiduciary
account for the benefit of foreign investors may purchase shares without a
sales charge.
The
following summary outlines certain federal income tax considerations relating
to an investment in the Fund by a taxable U.S. investor (as defined below). This
summary is intended only to provide general information to U.S. investors
43
As used
herein, the term U.S. investor means an investor that, for U.S. federal
income tax purposes, is (1) an individual who is a citizen or resident of the
U.S., (2) a corporation, or other entity taxable as a corporation, that is
created or organized in or under the laws of the U.S. or of any political
subdivision thereof, (3) an estate, the income of which is subject to U.S.
federal income tax regardless of its source, or (4) a trust if (i) it is
subject to the primary supervision of a court within the U.S. and one or more
U.S. persons as described in Code Section 7701(a)(30) have the authority to
control all substantial decisions of the trust or (ii) it has a valid election
in effect under applicable U.S. Treasury regulations to be treated as a U.S.
person. If a partnership or other entity treated as a partnership holds the
shares, the tax treatment of a partner in such partnership or equity owner in
such other entity generally will depend on the status of the partner or equity
owner and the activities of the partnership or other entity.
TAXATION
OF THE FUNDSIN GENERAL
Each of the
Funds intends to continue to qualify and elect to be treated each taxable year
as a regulated investment company under Subchapter M of the Code. To so
qualify, each Fund must, among other things, (a) derive at least 90% of its
gross income from dividends, interest, payments with respect to securities
loans, gains from the sale or other disposition of stock, securities or foreign
currencies, or other income (including gains from options, futures or forward
contracts) derived with respect to its business of investing in such stock,
securities or currencies; and (b) satisfy certain diversification requirements.
Each Fund
will be liable for a nondeductible 4% excise tax on amounts not distributed on
a timely basis in accordance with a calendar year distribution requirement. To
avoid the tax, during each calendar year the Fund must distribute, or be deemed
to have distributed, (i) at least 98% of its ordinary income (not taking into
account any capital gains or losses) for the calendar year, (ii) at least 98.2%
of its capital gains in excess of its capital losses (adjusted for certain
ordinary losses) for the twelve month period ending on October 31 (or December
31, if the Fund so elects), and (iii) all ordinary income and capital gains for
previous years that were not distributed during such years. For this purpose,
any income or gain retained by the Fund that is subject to corporate tax will
be considered to have been distributed by year-end. The Funds intend to make
sufficient distributions to avoid this 4% excise tax.
TAXATION
OF THE FUNDS INVESTMENTS
Debt
securities may be purchased by the Funds at a discount which exceeds the
original issue discount remaining on the securities, if any, at the time the
Funds purchased the securities. This additional discount represents market
discount for federal income tax purposes. In the case of any debt security
issued after July 18, 1984, having a
44
fixed maturity date of more than one year from the date of issue and
having market discount, the gain realized on disposition will be treated as
interest to the extent it does not exceed the accrued market discount on the
security (unless the Funds elect to include such accrued market discount in
income in the tax year to which it is attributable). Generally, market discount
is accrued on a daily basis. The Funds may be required to capitalize, rather
than deduct currently, part or all of any direct interest expense incurred or
continued to purchase or carry any debt security having market discount, unless
they make the election to include market discount currently.
Options
and Futures Transactions.
Certain of the Funds investments may be subject to
provisions of the Code that (i) require inclusion of unrealized gains or losses
in the Funds income for purposes of the 90% test, the excise tax and the
distribution requirements applicable to regulated investment companies, (ii)
defer recognition of realized losses, and (iii) characterize both realized and
unrealized gain or loss as short-term or long-term gain or loss. Such
provisions generally apply to options and futures contracts. The extent to
which the Funds make such investments may be materially limited by these
provisions of the Code.
Foreign
Currency Transactions.
Under Section 988 of the Code, special rules are
provided for certain foreign currency transactions. Foreign currency gains or
losses from foreign currency contracts (whether or not traded in the interbank
market), from futures contracts on foreign currencies that are not regulated
futures contracts, and from unlisted or equity options are treated as ordinary
income or loss under Section 988. The Funds may elect to have foreign currency
related regulated futures contracts and listed non-equity options be subject to
ordinary income or loss treatment under Section 988. In addition, in certain
circumstances, the Funds may elect capital gain or loss treatment for foreign
currency transactions. The rules under Section 988 may also affect the timing
of income recognized by the Funds. Under future Treasury Regulations, any such
transactions that are not directly related to a Funds investment in stock or
securities (or its options contracts or futures contracts with respect to stock
or securities) may have to be limited in order to enable the Fund to satisfy
the qualifying income test described above.
A foreign
corporation, such as the Subsidiary, will generally not be subject to U.S.
federal income taxation unless it is deemed to be engaged in a U.S. trade or
business. It is expected that the Subsidiary will conduct its activities in a
manner so as to meet the requirements of a safe harbor under Section 864(b)(2)
of the Internal Revenue Code under which the Subsidiary may engage in trading
in stocks or securities or certain commodities without being deemed to be
engaged in a U.S. trade or business. However, if certain of the Subsidiarys
activities were determined not to be of the type described in the safe harbor
(which is not expected), then the activities of such Subsidiary may constitute
a U.S. trade or business, or be taxed as such.
In general,
foreign corporations, such as the Subsidiary, that do not conduct a U.S. trade
or business are nonetheless subject to tax at a flat rate of 30 percent (or
lower tax treaty rate), generally payable through withholding, on the gross
amount of certain U.S.-source income that is not effectively connected with a
U.S. trade or business. There is presently no tax treaty in force between the
U.S. and the Cayman Islands that would reduce this rate of withholding tax. It
is not expected that the Subsidiary will derive income subject to such
withholding tax.
The
Subsidiary is expected to be treated as a controlled foreign corporation
(CFC). The International Investors Gold Fund will be treated as a U.S. shareholder
of the Subsidiary. As a result, the International Investors Gold Fund is
expected to include in gross income for U.S. federal income tax purposes all of
the Subsidiarys subpart F income, whether or not such income is distributed
by the Subsidiary. It is expected that all of the Subsidiarys income will be
subpart F income. The International Investors Gold Funds recognition of the
Subsidiarys subpart F income will increase the International Investors Gold
Funds tax basis in the Subsidiary. Distributions by the Subsidiary to the
International Investors Gold Fund will be tax-free, to the extent of its
previously undistributed subpart F income, and will correspondingly reduce
the International Investors Gold Funds tax basis in the Subsidiary. Subpart F
income is generally treated as ordinary income, regardless of the character of
the Subsidiarys underlying income. If a net loss is realized by the
Subsidiary, such loss is not generally available to offset the income earned by
the Subsidiarys parent Fund.
Recent and
prospective Congressional and Internal Revenue Service actions may potentially
impact the tax treatment of the Subsidiary. In December 2010, the President
signed into law the Regulated Investment Company Modernization Act of 2010 (the
RIC Modernization Act), which updated certain tax rules applicable to
regulated investment companies. Included in the House version of the RIC
Modernization Act was a provision that would have allowed regulated investment
companies to treat gains from commodities as qualifying income for purposes of
their 90% gross income requirement, but that provision of the bill was not
included in the version of the bill that was signed into law. An inference
could be drawn from this legislative history that Congress considered whether
income from commodities should be included in the definition of qualifying
income and concluded that it should not.
45
TAXATION
OF THE SHAREHOLDERS
Dividends
of net investment income and distributions of net capital gain will be taxable
as described above whether received in cash or reinvested in additional shares.
When distributions are received in the form of shares issued by the Funds, the
amount of the dividend/distribution deemed to have been received by
participating shareholders generally is the amount of cash which would
otherwise have been received. In such case, participating shareholders will
have a basis for federal income tax purposes in each share received from the
Funds equal to such amount of cash.
Dividends
and/or distributions by the Funds result in a reduction in the net asset value
of the Funds shares. Should a dividend/distribution reduce the net asset value
below a shareholders cost basis, such dividend/distribution nevertheless would
be taxable to the shareholder as ordinary income or long-term capital gain as
described above, even though, from an investment standpoint, it may constitute
a partial return of capital. In particular, investors should be careful to
consider the tax implications of buying shares just prior to a
dividend/distribution. The price of shares purchased at that time includes the
amount of any forthcoming dividend/distribution. Those investors purchasing
shares just prior to a dividend/distribution will then receive a return of
their investment upon payment of such dividend/distribution which will
nevertheless be taxable to them.
If a
shareholder (i) incurs a sales load in acquiring shares in the Funds, and (ii)
by reason of incurring such charge or making such acquisition acquires the
right to acquire shares of one or more regulated investment companies without
the payment of a load or with the payment of a reduced load (reinvestment
right), and (iii) disposes of the shares before the 91st day after the date on
which the shares were acquired, and (iv) subsequently acquires shares in that
regulated investment company or in another regulated investment company and the
otherwise applicable load charge is reduced pursuant to the reinvestment right,
then the load charge will not be taken into account for purposes of determining
the shareholders gain or loss on the disposition. For sales charges incurred
in taxable years beginning after December 22, 2010, this sales charge deferral
rule shall apply only when a shareholder makes such new acquisition of Fund
shares or shares of a different regulated investment company during the period
beginning on the date the original Fund shares are
46
disposed of and ending on January 31 of the calendar year following the
calendar year of the disposition of the original Fund shares. To the extent
such charge is not taken into account in determining the amount of gain or
loss, the charge will be treated as incurred in connection with the subsequently
acquired shares and will have a corresponding effect on the shareholders basis
in such shares.
Each Fund
may be subject to a tax on dividend or interest income received from securities
of a non-U.S. issuer withheld by a foreign country at the source. The U.S. has
entered into tax treaties with many foreign countries that entitle the Funds to
a reduced rate of tax or exemption from tax on such income. It is impossible to
determine the effective rate of foreign tax in advance since the amount of a
Funds assets to be invested within various countries is not known. If more
than 50% of the value of a Funds total assets at the close of a taxable year
consists of stocks or securities in foreign corporations, and the Fund
satisfies the holding period requirements, the Fund may elect to pass through
to its shareholders the foreign income taxes paid thereby. In such case, the
shareholders would be treated as receiving, in addition to the distributions
actually received by the shareholders, their proportionate share of foreign
income taxes paid by the Fund, and will be treated as having paid such foreign
taxes. The shareholders generally will be entitled to deduct or, subject to
certain limitations, claim a foreign tax credit with respect to such foreign
income taxes. A foreign tax credit may be allowed for shareholders who hold
shares of the Fund for at least 16 days during the 31-day period beginning on
the date that is 15 days before the ex-dividend date. Under certain
circumstances, individual shareholders who have been passed through foreign tax
credits of no more than $300 ($600 in the case of married couples filing
jointly) during a tax year can elect to claim the foreign tax credit for these
amounts directly on their federal income tax returns (IRS Forms 1040) without
having to file a separate Form 1116 or having to comply with most foreign tax
credit limitations, provided certain other requirements are met.
New
Legislation.
For taxable years beginning after January 1, 2013, a
3.8% Medicare contribution tax will be imposed on the net investment income of
certain high-income individuals, trusts and estates. For this purpose, net
investment income generally includes, among other things, distributions paid by
the Fund, including capital gain dividends (but excluding exempt interest
dividends), and any net gain from the sale of Fund shares.
FOREIGN
ACCOUNT TAX COMPLIANCE ACT
The Foreign
Account Tax Compliance Act (or FATCA) may impose withholding taxes on certain
types of U.S. source income withholdable payments (including dividends,
rents, gains from the sale of equity securities and certain interest payments)
made to foreign financial institutions and certain other non-financial
foreign entities unless (i) the foreign financial institution undertakes
certain diligence and reporting obligations or (ii) the non-financial foreign
entity either certifies it does not have any substantial U.S. owners or
furnishes identifying information regarding each substantial U.S. owner. To
avoid withholding upon receipt of payments, a foreign financial institution
must enter into an agreement with the U.S. Treasury requiring, among other
things, that it undertake to identify accounts held by certain U.S. persons or
U.S.-owned foreign entities, annually report certain information about such
accounts, and withhold 30% on payments to account holders whose actions prevent
it from complying with these reporting and other requirements. Withholding
under this legislation on withholdable payments to foreign financial
institutions and non-financial foreign entities is expected to apply after
December 31, 2014 with respect to gross proceeds of a disposition of property
that can produce U.S. source interest or dividends and after December 31, 2013
with respect to other withholdable payments (although the legislation may apply
sooner for such other withholdable payments made to non-financial foreign
entities). Prospective investors should consult their own tax advisors
regarding this new legislation.
TAXATION
OF NON-U.S. INVESTORS
The
foregoing summary of certain federal income tax considerations does not apply
to potential investors in the Fund that are not U.S. investors (Non-U.S.
investors). Distributions of ordinary income paid to Non-U.S. investors
generally will be subject to a 30% U.S. withholding tax unless a reduced rate
of withholding or a withholding exemption is provided under an applicable
treaty. Prospective investors are urged to consult their tax advisors regarding
the specific tax consequences discussed above.
47
The Trust
has elected to have the ability to redeem its shares in kind, committing itself
to pay in cash all requests for redemption by any shareholder of record limited
in amount with respect to each shareholder of record during any ninety-day
period to the lesser of (i) $250,000 or (ii) 1% of the net asset value of such
company at the beginning of such period.
A
DDITIONAL
PURCHASE AND REDEMPTION INFORMATION
Dealers and
intermediaries may charge their customers a processing or service fee in
connection with the purchase or redemption of fund shares. The amount and
applicability of such a fee is determined and disclosed to its customers by
each individual dealer. Processing or service fees typically are fixed, nominal
dollar amounts and are in addition to the sales and other charges described in
the Prospectus and this SAI. Your dealer will provide you with specific
information about any processing or service fees you will be charged.
The Trust
is an open-end management investment company organized as a business trust
under the laws of the Commonwealth of Massachusetts on April 3, 1985. The
Trustees of the Trust have authority to issue an unlimited number of shares of
beneficial interest of each Fund, $.001 par value. The Trust currently consists
of six separate series: Multi-Manager Alternatives Fund, Long/Flat Commodity
Index Fund, CM Commodity Index Fund and the Funds.
The Funds
are classified as non-diversified funds under the 1940 Act. A diversified fund
is a fund which meets the following requirements: At least 75% of the value of
its total assets is represented by cash and cash items (including receivables),
Government securities, securities of other investment companies and other
securities for the purpose of this calculation limited in respect of any one
issuer to an amount not greater than 5% of the value of the Funds total
assets, and to not more than 10% of the outstanding voting securities of such
issuer. A non-diversified fund is any fund other than a diversified fund. This
means that the Fund at the close of each quarter of its taxable year must, in
general, limit its investment in the securities of a single issuer to (i) no
more than 25% of its assets, (ii) with respect to 50% of the Funds assets, no
more than 5% of its assets, and (iii) the Fund will not own more than 10% of
outstanding voting securities. A Fund is a separate pool of assets of the Trust
which is separately managed and which may have a different investment objective
from that of another Fund. The Board has the authority, without the necessity
of a shareholder vote, to create any number of new series.
Each share
of a Fund has equal dividend, redemption and liquidation rights and when issued
is fully paid and non-assessable by the Trust. Under the Trusts Amended and
Restated Master Trust Agreement, as amended (Master Trust Agreement), no
annual or regular meeting of shareholders is required. Thus, there will
ordinarily be no shareholder meetings unless required by the 1940 Act. The
Trustees are a self-perpetuating body unless and until fewer than 50% of the
Trustees, then serving as Trustees, are Trustees who were elected by
shareholders. At that time a meeting of shareholders will be called to elect
additional Trustees. On any matter submitted to the shareholders, the holder of
each Trust share is entitled to one vote per share (with proportionate voting
for fractional shares). Under the Master Trust Agreement, any Trustee may be
removed by vote of two-thirds of the outstanding Trust shares, and holders of
ten percent or more of the outstanding shares of the Trust can require Trustees
to call a meeting of shareholders for purposes of voting on the removal of one
or more trustees. Shares of each Fund vote as a separate class, except with
respect to the election of Trustees and as otherwise required by the 1940 Act.
On matters affecting an individual Fund, a separate vote of that Fund is
required. Shareholders of a Fund are not entitled to vote on any matter not
affecting that Fund. In accordance with the 1940 Act, under certain
circumstances, the Trust will assist shareholders in communicating with other
shareholders in connection with calling a special meeting of shareholders.
Under
Massachusetts law, the shareholders of the Trust could, under certain
circumstances, be held personally liability for the obligations of the Trust.
However, the Master Trust Agreement disclaims shareholder liability for acts or
obligations of the Trust and requires that notice of such disclaimer be given
in each agreement, obligation or instrument entered into or executed by the
Trust or the Trustees. The Master Trust Agreement provides for indemnification
out of the Trusts property of all losses and expenses of any shareholder held
personally liable for the obligations of the Trust. Thus, the risk of a
shareholder incurring financial loss on account of shareholder liability is
limited to circumstances in which the Trust itself would be unable to meet its
obligations. The Adviser believes that, in view of the above, the risk of
personal liability to shareholders is remote.
48
Custodian
.
State Street Bank and Trust Company, One Lincoln
Street, Boston, MA 02111 is the custodian of the Trusts portfolio securities,
cash, coins and bullion. The Custodian is authorized, upon the approval of the
Trust, to establish credits or debits in dollars or foreign currencies with,
and to cause portfolio securities of a Fund to be held by its overseas branches
or subsidiaries, and foreign banks and foreign securities depositories which
qualify as eligible foreign custodians under the rules adopted by the SEC.
Transfer
Agent
.
DST Systems, Inc., 210 West 10th
Street, Kansas City, MO 64105 serves as transfer agent for the Trust.
Independent
Registered
Public
Accounting Firm
.
Ernst & Young LLP, Five Times Square, New York,
NY 10036 serves as independent registered public accounting firm for the Trust.
Counsel
.
Goodwin Procter LLP, Exchange Place, Boston, MA
02109 serves as counsel to the Trust.
49
ADVISERS PROXY VOTING POLICIES
VAN ECK GLOBAL PROXY VOTING POLICIES
Van Eck Global (the Adviser) has adopted
the following policies and procedures which are reasonably designed to ensure
that proxies are voted in a manner that is consistent with the best interests
of its clients in accordance with its fiduciary duties and Rule 206(4)-6 under
the Investment Advisers Act of 1940. 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.
Rule 206(4)-6 also requires the Adviser to
disclose information about the proxy voting procedures to its clients and to inform
clients how to obtain information about how their proxies were voted.
Additionally, Rule 204-2 under the Advisers Act requires the Adviser to
maintain certain proxy voting records.
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.
Resolving Material Conflicts of
Interest
When a material conflict of interest exists, proxies will be voted in
the following manner:
1.
Strict adherence
to the Glass Lewis guidelines , or
2.
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 Van Eck 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 Chief Compliance Officer with a written explanation of the reason for the
deviation.
A
material
conflict of interest
means the existence of a business relationship
between a portfolio company or an affiliate and the Adviser, any affiliate or
subsidiary, or an affiliated person of a Van Eck mutual fund. Examples of
when a material conflict of interest exists include a 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
A-1
is a significant selling agent
of the Advisers 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.
Client Inquiries
All inquiries by clients as to how the
Adviser has voted proxies must immediately be forwarded to Portfolio Administration.
1.
Notification of
Availability of Information
a.
Client Brochure -
The Client Brochure or Part II of Form ADV will inform clients that they can
obtain information from the Adviser 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.
2.
Availability of
Proxy Voting Information
a.
At the clients
request or if the information is not available on the Advisers website, a
hard copy of the accounts proxy votes will be mailed to each client.
Recordkeeping
Requirements
1.
Van Eck 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:
a.
proxy statements
received;
b.
identifying number
for the portfolio security;
c.
shareholder
meeting date;
d.
brief
identification of the matter voted on;
e.
whether the vote
was cast on the matter;
f.
how the vote was
cast (e.g., for or against proposal, or abstain; for or withhold regarding
election of directors);
g.
records of written
client requests for information on how the Adviser voted proxies on behalf of
the client;
h.
a copy of written
responses from the Adviser to any written or oral client request for
information on how the Adviser voted proxies on behalf of the client; and any
documents prepared by the Adviser that were material to the decision on how
to vote or that memorialized the basis for the decision, if such documents
were prepared.
2.
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.
3.
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.
A-2
4.
Proxy
voting records will be maintained in an easily accessible place for five
years, the first two at the office of the Adviser. 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.
Voting Foreign Proxies
At times the Adviser may determine that, in the best interests of its
clients, a particular proxy should not be voted. This may occur, for example,
when the cost of voting a foreign proxy (translation, transportation, etc.)
would exceed the benefit of voting the proxy or voting the foreign proxy may
cause an unacceptable limitation on the sale of the security. Any such
instances will be documented by the Portfolio Manager and reviewed by the Chief
Compliance Officer.
Securities Lending
Certain portfolios managed by the Adviser participate in securities
lending programs to generate additional revenue. Proxy voting rights generally
pass to the borrower when a security is on loan. The Adviser will use its best
efforts to recall a security on loan and vote such securities if the Portfolio
Manager determines that the proxy involves a material event.
Proxy Voting Policy
The Adviser has reviewed the Glass Lewis Proxy Guidelines
(Guidelines) and has determined that the Guidelines are consistent with the
Advisers proxy voting responsibilities and its fiduciary duty with respect to
its clients. The Adviser will review any material amendments to the Guidelines.
While it is the Advisers policy to generally follow the Guidelines,
the Adviser retains the right, on any specific proxy, to vote differently from
the Guidelines, if the Adviser believes it is in the best interests of its
clients. Any such exceptions will be documented by the Adviser and reviewed by
the Chief Compliance Officer.
The portfolio
manager or analyst covering the security is responsible for making proxy 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.
A-3
An Overview of the Glass Lewis Approach to Proxy Advice
A-6
I. A Board of Directors That Serves the Interests of Shareholders
Election of Directors
The purpose of Glass Lewis proxy research and advice is to
facilitate shareholder voting in favor of governance structures that will drive
performance, create shareholder value and maintain a proper tone at the top.
Glass Lewis looks for talented boards with a record of protecting shareholders
and delivering value over the medium- and long-term. We believe that boards
working to protect and enhance the best interests of shareholders are
independent, have directors with diverse backgrounds, have a record of positive
performance, and have members with a breadth and depth of relevant experience.
Independence
The independence of directors, or lack thereof, is
ultimately demonstrated through the decisions they make. In assessing the
independence of directors, we will take into consideration, when appropriate,
whether a director has a track record indicative of making objective decisions.
Likewise, when assessing the independence of directors we will also examine
when a directors service track record on multiple boards indicates a lack of
objective decision-making. Ultimately, we believe the determination of whether
a director is independent or not must take into consideration both compliance
with the applicable independence listing requirements as well as judgments made
by the director.
We look at each director nominee to examine the directors
relationships with the company, the companys executives, and other directors.
We do this to evaluate whether personal, familial, or financial relationships
(not including director compensation) may impact the directors decisions. We
believe that such relationships make it difficult for a director to put
shareholders interests above the directors or the related partys interests.
We also believe that a director who owns more than 20% of a company can exert
disproportionate influence on the board and, in particular, the audit
committee.
Thus, we put directors into three categories based on an
examination of the type of relationship they have with the company:
A-7
familial or other current
relationships with the company, its executives, or other board members,
except for board service and standard fees paid for that service.
Relationships that existed within three to five years
1
before the
inquiry are usually considered current for purposes of this test.
In our view, a director who is
currently serving in an interim management position should be considered an
insider, while a director who previously served in an interim management
position for less than one year and is no longer serving in such capacity is
considered independent. Moreover, a director who previously served in an
interim management position for over one year and is no longer serving in
such capacity is considered an affiliate for five years following the date of
his/her resignation or departure from the interim management position. Glass
Lewis applies a three-year look-back period to all directors who have an
affiliation with the company other than former employment, for which we apply
a five-year look-back.
Affiliated
Director
An affiliated
director has a material financial, familial or other relationship with the
company or its executives, but is not an employee of the company.
2
This includes directors whose employers have a material financial
relationship with the company.
3
In addition, we view a director
who owns or controls 20% or more of the companys voting stock as an
affiliate.
4
1
NASDAQ originally
proposed a five-year look-back period but both it and the NYSE ultimately
settled on a three-year look-back prior to finalizing their rules. A five-year
standard is more appropriate, in our view, because we believe that the
unwinding of conflicting relationships between former management and board
members is more likely to be complete and final after five years. However,
Glass Lewis does not apply the five-year look-back period to directors who
have previously served as executives of the company on an interim basis for
less than one year.
2
If a company
classifies one of its non-employee directors as non-independent, Glass Lewis
will classify that director as an affiliate.
3
We allow a five-year
grace period for former executives of the company or merged companies who
have consulting agreements with the surviving company. (We do not
automatically recommend voting against directors in such cases for the first
five years.) If the consulting agreement persists after this five-year grace
period, we apply the materiality thresholds outlined in the definition of
material.
4
This includes a director who serves
on a board as a representative (as part of his or her basic responsibilities)
of an investment firm with greater than 20% ownership. However, while we will
generally consider him/her to be affiliated, we will not recommend voting
against unless (i) the investment firm has disproportionate board
representation or (ii) the director serves on the audit committee.
A-8
We view 20% shareholders as
affiliates because they typically have access to and involvement with the
management of a company that is fundamentally different from that of ordinary
shareholders. More importantly, 20% holders may have interests that diverge
from those of ordinary holders, for reasons such as the liquidity (or lack
thereof) of their holdings, personal tax issues, etc.
Definition of
Material
: A material relationship is
one in which the dollar value exceeds:
$50,000 (or where no amount is
disclosed) for directors who are paid for a service they have agreed to
perform for the company, outside of their service as a director, including
professional or other services; or
$120,000 (or where no amount is disclosed)
for those directors employed by a professional services firm such as a law
firm, investment bank, or consulting firm where the company pays the firm,
not the individual, for services. This dollar limit would also apply to
charitable contributions to schools where a board member is a professor; or
charities where a director serves on the board or is an executive;
5
and any aircraft and real estate dealings between the company and the
directors firm; or
1% of either companys consolidated gross
revenue for other business relationships (e.g., where the director is an
executive officer of a company that provides services or products to or
receives services or products from the company).
Definition of
Familial
: Familial relationships
include a persons spouse, parents, children, siblings, grandparents, uncles,
aunts, cousins, nieces, nephews, in-laws, and anyone (other than domestic
employees) who shares such persons home. A director is an affiliate if the
director has a family member who is employed by the company and who receives
compensation of $120,000 or more per year or the compensation is not
disclosed.
Definition of
Company
: A company includes any parent
or subsidiary in a group with the company or any entity that merged with, was
acquired by, or
A-9
acquired the company.
Inside
Director
An inside
director simultaneously serves as a director and as an employee of the
company. This category may include a chairman of the board who acts as an
employee of the company or is paid as an employee of the company. In our
view, an inside director who derives a greater amount of income as a result
of affiliated transactions with the company rather than through compensation
paid by the company (i.e., salary, bonus, etc. as a company employee) faces a
conflict between making decisions that are in the best interests of the
company versus those in the directors own best interests. Therefore, we will
recommend voting against such a director.
Voting Recommendations on the Basis of Board Independence
Glass Lewis believes a board will be
most effective in protecting shareholders interests if it is at least two-thirds
independent. We note that each of the Business Roundtable, the Conference
Board, and the Council of Institutional Investors advocates that two-thirds
of the board be independent. Where more than one-third of the members are
affiliated or inside directors, we typically
6
recommend voting
against some of the inside and/or affiliated directors in order to satisfy
the two-thirds threshold.
In the case of a less than two-thirds
independent board, Glass Lewis strongly supports the existence of a presiding
or lead director with authority to set the meeting agendas and to lead
sessions outside the insider chairmans presence.
In addition, we scrutinize
avowedly independent chairmen and lead directors. We believe that they
should be unquestionably independent or the company should not tout them as
such.
Committee Independence
We believe that
only
independent directors should serve
on a companys audit, compensation, nominating, and governance committees.
7
We typically
6
With a staggered
board, if the affiliates or insiders that we believe should not be on the
board are not up for election, we will express our concern regarding those
directors, but we will not recommend voting against the other affiliates or
insiders who are up for election just to achieve two-thirds independence.
However, we will consider recommending voting against the directors subject
to our concern at their next election if the concerning issue is not
resolved.
7
We will recommend
voting against an audit committee member who owns 20% or more of the
companys stock, and we believe that there should be a maximum of one
director (or no directors if the committee is comprised of less than three
directors) who owns 20% or more of the companys stock on the compensation, nominating, and governance committees.
A-10
recommend that shareholders vote
against any affiliated or inside director seeking appointment to an audit,
compensation, nominating, or governance committee, or who has served in that
capacity in the past year.
Independent Chairman
Glass Lewis believes that separating
the roles of CEO (or, more rarely, another executive position) and chairman
creates a better governance structure than a combined CEO/chairman position.
An executive manages the business according to a course the board charts.
Executives should report to the board regarding their performance in
achieving goals the board set. This is needlessly complicated when a CEO
chairs the board, since a CEO/chairman presumably will have a significant
influence over the board.
It can become difficult for a board
to fulfill its role of overseer and policy setter when a CEO/chairman
controls the agenda and the boardroom discussion. Such control can allow a
CEO to have an entrenched position, leading to longer-than-optimal terms,
fewer checks on management, less scrutiny of the business operation, and
limitations on independent, shareholder-focused goal-setting by the board.
A CEO should set the strategic course
for the company, with the boards approval, and the board should enable the
CEO to carry out the CEOs vision for accomplishing the boards objectives.
Failure to achieve the boards objectives should lead the board to replace
that CEO with someone in whom the board has confidence.
Likewise, an independent chairman can
better oversee executives and set a pro-shareholder agenda without the
management conflicts that a CEO and other executive insiders often face. Such
oversight and concern for shareholders allows for a more proactive and
effective board of directors that is better able to look out for the
interests of shareholders.
Further, it is the boards
responsibility to select a chief executive who can best serve a company and
its shareholders and to replace this person when his or her duties have not
been appropriately fulfilled. Such a replacement becomes more difficult and
happens less frequently when the chief executive is also in the position of
overseeing the board.
Glass Lewis believes that the
installation of an independent chairman is almost always a positive step from
a corporate governance perspective and promotes the best interests of
shareholders. Further, the presence of an independent
A-11
chairman fosters the creation of a
thoughtful and dynamic board, not dominated by the views of senior
management. Encouragingly, many companies appear to be moving in this
directionone study even indicates that less than 12 percent of incoming CEOs
in 2009 were awarded the chairman title, versus 48 percent as recently as
2002.
8
Another study finds that 41 percent of S&P 500 boards
now separate the CEO and chairman roles, up from 26 percent in 2001, although
the same study found that of those companies, only 21 percent have truly
independent chairs..
9
We do not recommend that shareholders
vote against CEOs who chair the board. However, we typically encourage our
clients to support separating the roles of chairman and CEO whenever that
question is posed in a proxy (typically in the form of a shareholder
proposal), as we believe that it is in the long-term best interests of the
company and its shareholders.
Performance
1.
A director who fails to attend a
minimum of 75% of board and applicable committee meetings, calculated in the
aggregate.
10
2.
A director who belatedly filed a
significant form(s) 4 or 5, or who has a
8
Ken Favaro, Per-Ola
Karlsson and Gary Neilson. CEO Succession 2000-2009: A Decade of Convergence
and Compression. Booz & Company (from Strategy+Business, Issue 59,
Summer 2010).
9
Spencer
Stuart Board Index, 2011, p. 6.
10
However,
where a director has served for less than one full year, we will typically
not recommend voting against for failure to attend 75% of meetings. Rather,
we will note the poor attendance with a recommendation to track this issue
going forward. We will also refrain from recommending to vote against
directors when the proxy discloses that the director missed the meetings due
to serious illness or other extenuating circumstances.
A-12
pattern of late filings if the late
filing was the directors fault (we look at these late filing situations on a
case-by-case basis).
3.
A director who is also the CEO of
a company where a serious and material restatement has occurred after the CEO
had previously certified the pre-restatement financial statements.
4.
A director who has received two
against recommendations from Glass Lewis for identical reasons within the
prior year at different companies (the same situation must also apply at the
company being analyzed).
5.
All directors who served on the
board if, for the last three years, the companys performance has been in the
bottom quartile of the sector and the directors have not taken reasonable
steps to address the poor performance.
Audit Committees and Performance
Audit committees play an integral
role in overseeing the financial reporting process because [v]ibrant and
stable capital markets depend on, among other things, reliable, transparent,
and objective financial information to support an efficient and effective
capital market process. The vital oversight role audit committees play in the
process of producing financial information has never been more important.
11
When assessing an audit committees
performance, we are aware that an audit committee does not prepare financial
statements, is not responsible for making the key judgments and assumptions
that affect the financial statements, and does not audit the numbers or the
disclosures provided to investors. Rather, an audit committee member monitors
and oversees the process and procedures that management and auditors perform.
The 1999 Report and Recommendations of the Blue Ribbon Committee on Improving
the Effectiveness of Corporate Audit Committees stated it best:
A proper and well-functioning system
exists, therefore, when the three main groups responsible for financial
reporting the full board including the audit committee, financial management
including the internal auditors, and the outside auditors form a three
legged stool that supports responsible financial disclosure and active
participatory oversight. However, in the view of the Committee, the audit
committee
11
Audit Committee
Effectiveness What Works Best. PricewaterhouseCoopers. The Institute of
Internal Auditors Research Foundation. 2005.
A-13
must be first among equals in this
process, since the audit committee is an extension of the full board and
hence the ultimate monitor of the process.
Standards for Assessing the Audit Committee
For an audit committee to function
effectively on investors behalf, it must include members with sufficient
knowledge to diligently carry out their responsibilities. In its audit and
accounting recommendations, the Conference Board Commission on Public Trust
and Private Enterprise said members of the audit committee must be
independent and have both knowledge and experience in auditing financial
matters.
12
We are skeptical of audit committees
where there are members that lack expertise as a Certified Public Accountant
(CPA), Chief Financial Officer (CFO) or corporate controller or similar
experience. While we will not necessarily vote against members of an audit
committee when such expertise is lacking, we are more likely to vote against
committee members when a problem such as a restatement occurs and such
expertise is lacking.
Glass Lewis generally assesses audit
committees against the decisions they make with respect to their oversight
and monitoring role. The quality and integrity of the financial statements
and earnings reports, the completeness of disclosures necessary for investors
to make informed decisions, and the effectiveness of the internal controls
should provide reasonable assurance that the financial statements are
materially free from errors. The independence of the external auditors and
the results of their work all provide useful information by which to assess
the audit committee.
When assessing the decisions and
actions of the audit committee, we typically defer to its judgment and would
vote in favor of its members, but we would recommend voting against the
following members under the following circumstances:
13
1.
All members of the audit committee
when options were backdated, there is a lack of adequate controls in place,
there was a resulting restatement, and disclosures indicate there was a lack
of documentation with respect to
12
Commission
on Public Trust and Private Enterprise. The Conference Board. 2003.
13
Where the
recommendation is to vote against the committee chair but the chair is not up
for election because the board is staggered, we do not recommend voting
against the members of the committee who are up for election; rather, we will
simply express our concern with regard to the committee chair.
A-14
the option grants.
2.
The audit committee chair, if the audit
committee does not have a financial expert or the committees financial
expert does not have a demonstrable financial background sufficient to
understand the financial issues unique to public companies.
3.
The audit committee chair, if the
audit committee did not meet at least 4 times during the year.
4.
The audit committee chair, if the
committee has less than three members.
5.
Any audit committee member who sits
on more than three public company audit committees, unless the audit committee
member is a retired CPA, CFO, controller or has similar experience, in which
case the limit shall be four committees, taking time and availability into
consideration including a review of the audit committee members attendance
at all board and committee meetings.
14
6.
All members of an audit committee who
are up for election and who served on the committee at the time of the audit,
if audit and audit-related fees total one-third or less of the total fees
billed by the auditor.
7.
The audit committee chair when tax
and/or other fees are greater than audit and audit-related fees paid to the
auditor for more than one year in a row (in which case we also recommend
against ratification of the auditor).
8.
All members of an audit committee
where non-audit fees include fees for tax services (including, but not
limited to, such things as tax avoidance or shelter schemes) for senior
executives of the company. Such services are now prohibited by the Public
Company Accounting Oversight Board (PCAOB).
9.
All members of an audit committee
that reappointed an auditor that we no longer consider to be independent for
reasons unrelated to fee proportions.
10.
All members of an audit committee
when audit fees are excessively low, especially when compared with other
companies in the same industry.
14
Glass Lewis may exempt certain audit
committee members from the above threshold if, upon further analysis of
relevant factors such as the directors experience, the size, industry-mix
and location of the companies involved and the directors attendance at all
the companies, we can reasonably determine that the audit committee member is
likely not hindered by multiple audit committee commitments.
A-15
11.
The audit committee chair
15
if the committee failed to put auditor ratification on the ballot for
shareholder approval. However, if the non-audit fees or tax fees exceed audit
plus audit-related fees in either the current or the prior year, then Glass
Lewis will recommend voting against the entire audit committee.
12.
All members of an audit committee
where the auditor has resigned and reported that a section 10A
16
letter has been issued.
13.
All members of an audit committee at
a time when material accounting fraud occurred at the company.
17
14.
All members of an audit committee at a time when annual and/or multiple
quarterly financial statements had to be restated, and any of the following
factors apply:
The restatement involves fraud or
manipulation by insiders;
The restatement is accompanied by an
SEC inquiry or investigation;
The restatement involves revenue
recognition;
The restatement results in a greater
than 5% adjustment to costs of goods sold, operating expense, or operating
cash flows; or
The restatement results in a greater
than 5% adjustment to net income, 10% adjustment to assets or shareholders
equity, or cash flows from financing or investing activities.
15.
All members of an audit committee if
the company repeatedly fails to file
15
In all cases, if
the chair of the committee is not specified, we recommend voting against the
director who has been on the committee the longest.
16
Auditors are
required to report all potential illegal acts to management and the audit
committee unless they are clearly inconsequential in nature. If the audit
committee or the board fails to take appropriate action on an act that has
been determined to be a violation of the law, the independent auditor is
required to send a section 10A letter to the SEC. Such letters are rare and
therefore we believe should be taken seriously.
17
Recent research
indicates that revenue fraud now accounts for over 60% of SEC fraud cases,
and that companies that engage in fraud experience significant negative
abnormal stock price declinesfacing bankruptcy, delisting, and material
asset sales at much higher rates than do non-fraud firms (Committee of
Sponsoring Organizations of the Treadway Commission. Fraudulent Financial
Reporting: 1998-2007. May 2010).
A-16
18
The Council of Institutional
Investors. Corporate Governance Policies, p. 4, April 5, 2006; and Letter
from Council of Institutional Investors to the AICPA, November 8, 2006.
A-17
transparency of compensation. This
oversight includes disclosure of compensation arrangements, the matrix used
in assessing pay for performance, and the use of compensation consultants. In
order to ensure the independence of the compensation consultant, we believe
the compensation committee should only engage a compensation consultant that
is not also providing any services to the company or management apart from
their contract with the compensation committee. It is important to investors
that they have clear and complete disclosure of all the significant terms of
compensation arrangements in order to make informed decisions with respect to
the oversight and decisions of the compensation committee.
Finally, compensation committees are
responsible for oversight of internal controls over the executive
compensation process. This includes controls over gathering information used
to determine compensation, establishment of equity award plans, and granting
of equity awards. Lax controls can and have contributed to conflicting
information being obtained, for example through the use of nonobjective
consultants. Lax controls can also contribute to improper awards of
compensation such as through granting of backdated or spring-loaded options,
or granting of bonuses when triggers for bonus payments have not been met.
Central to understanding the actions
of a compensation committee is a careful review of the Compensation
Discussion and Analysis (CD&A) report included in each companys proxy.
We review the CD&A in our evaluation of the overall compensation
practices of a company, as overseen by the compensation committee. The
CD&A is also integral to the evaluation of compensation proposals at
companies, such as advisory votes on executive compensation, which allow
shareholders to vote on the compensation paid to a companys top executives.
When assessing the performance of
compensation committees, we will recommend voting against for the following:
19
1.
All members of the compensation
committee who are up for election and served at the time of poor pay-for-performance
(e.g., a company receives an F grade in our pay-for-performance analysis)
when shareholders are not
19
Where the recommendation is to vote
against the committee chair and the chair is not up for election because the
board is staggered, we do not recommend voting against any members of the
committee who are up for election; rather, we will simply express our concern
with regard to the committee chair.
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provided with an advisory vote on
executive compensation at the annual meeting.
20
2.
Any member of the compensation
committee who has served on the compensation committee of at least two other
public companies that received F grades in our pay-for-performance model and
who is also suspect at the company in question.
3.
The compensation committee chair if
the company received two D grades in consecutive years in our pay-for-performance
analysis, and if during the past year the Company performed the same as or
worse than its peers.
21
4.
All members of the compensation
committee (during the relevant time period) if the company entered into
excessive employment agreements and/or severance agreements.
5.
All members of the compensation
committee when performance goals were changed (i.e., lowered) when employees
failed or were unlikely to meet original goals, or performance-based
compensation was paid despite goals not being attained.
6.
All members of the compensation
committee if excessive employee perquisites and benefits were allowed.
7.
The compensation committee chair if
the compensation committee did not meet during the year, but should have
(e.g., because executive compensation was restructured or a new executive was
hired).
20
Where
there are multiple CEOs in one year, we will consider not recommending
against the compensation committee but will defer judgment on compensation
policies and practices until the next year or a full year after arrival of
the new CEO. In addition, if a company provides shareholders with a Say-on-Pay
proposal and receives an F grade in our pay-for-performance model, we will
recommend that shareholders only vote against the Say-on-Pay proposal rather
than the members of the compensation committee, unless the company exhibits
egregious practices. However, if the company receives successive F grades, we
will then recommend against the members of the compensation committee in
addition to recommending voting against the Say-on-Pay proposal.
21
In cases where the company received
two D grades in consecutive years, but during the past year the company
performed better than its peers or improved from an F to a D grade year over
year, we refrain from recommending to vote against the compensation chair. In
addition, if a company provides shareholders with a Say-on-Pay proposal in
this instance, we will consider voting against the advisory vote rather than
the compensation committee chair unless the company exhibits unquestionably
egregious practices.
A-19
8.
All members of the compensation
committee when the company repriced options or completed a self tender
offer without shareholder approval within the past two years.
9.
All members of the compensation
committee when vesting of in-the-money options is accelerated or when fully
vested options are granted.
10.
All members of the compensation committee
when option exercise prices were backdated. Glass Lewis will recommend voting
against an executive director who played a role in and participated in option
backdating.
11.
All members of the compensation
committee when option exercise prices were spring-loaded or otherwise timed
around the release of material information.
12.
All members of the compensation
committee when a new employment contract is given to an executive that does
not include a clawback provision and the company had a material restatement,
especially if the restatement was due to fraud.
13.
The chair of the compensation
committee where the CD&A provides insufficient or unclear information
about performance metrics and goals, where the CD&A indicates that pay is
not tied to performance, or where the compensation committee or management
has excessive discretion to alter performance terms or increase amounts of
awards in contravention of previously defined targets.
14.
All members of the compensation
committee during whose tenure the committee failed to implement a shareholder
proposal regarding a compensation-related issue, where the proposal received
the affirmative vote of a majority of the voting shares at a shareholder
meeting, and when a reasonable analysis suggests that the compensation
committee (rather than the governance committee) should have taken steps to
implement the request.
22
15.
All members of a compensation
committee during whose tenure the committee failed to address shareholder
concerns following majority shareholder rejection of the Say-on-Pay proposal
in the previous year. Where the proposal was approved but there was a
significant shareholder
22
In all other instances (i.e. a non-compensation-related
shareholder proposal should have been implemented) we recommend that
shareholders vote against the members of the governance committee.
A-20
23
Where
we would recommend to vote against the committee chair but the chair is not
up for election because the board is staggered, we do not recommend voting
against any members of the committee who are up for election; rather, we will
simply express our concern regarding the committee chair.
24
If the board does
not have a governance committee (or a committee that serves such a purpose),
we recommend voting against the entire board on this basis.
25
Where a compensation-related shareholder
proposal should have been implemented, and when a reasonable
analysis suggests that the members of the compensation committee (rather than
the governance committee) bear the responsibility for failing to implement
the request, we recommend that shareholders only vote against members of the
compensation committee.
A-21
of shareholder proposals are majority
vote to elect directors and to declassify the board.
2.
The governance committee chair,
26
when the chairman is not independent and an independent lead or presiding
director has not been appointed.
27
3.
In the absence of a nominating committee,
the governance committee chair when there are less than five or the whole
nominating committee when there are more than 20 members on the board.
4.
The governance committee chair, when
the committee fails to meet at all during the year.
5.
The governance committee chair, when
for two consecutive years the company provides what we consider to be
inadequate related party transaction disclosure (i.e. the nature of such
transactions and/or the monetary amounts involved are unclear or excessively
vague, thereby preventing an average shareholder from being able to
reasonably interpret the independence status of multiple directors above and
beyond what the company maintains is compliant with SEC or applicable stock-exchange
listing requirements).
6.
The governance committee chair, when
during the past year the board adopted a forum selection clause (i.e. an
exclusive forum provision)
28
without shareholder approval, or, if
the board is currently seeking shareholder approval of a forum selection
clause pursuant to a bundled bylaw amendment rather than as a separate
proposal.
26
If the committee chair is not specified, we
recommend voting against the director who has been on the committee the
longest. If the longest-serving committee member cannot be determined, we
will recommend voting against the longest-serving board member serving on the
committee.
27
We believe that one independent individual
should be appointed to serve as the lead or presiding director. When such a
position is rotated among directors from meeting to meeting, we will
recommend voting against as if there were no lead or presiding director.
28
A forum
selection clause is a bylaw provision stipulating that a certain state,
typically Delaware, shall be the exclusive forum for all intra-corporate
disputes (e.g. shareholder derivative actions, assertions of claims of a
breach of fiduciary duty, etc.). Such a clause effectively limits a
shareholders legal remedy regarding appropriate choice of venue and related
relief offered under that states laws and rulings.
A-22
Regarding the nominating committee,
we will recommend voting against the following:
29
1.
All members of the nominating
committee, when the committee nominated or renominated an individual who had
a significant conflict of interest or whose past actions demonstrated a lack
of integrity or inability to represent shareholder interests.
2.
The nominating committee chair, if
the nominating committee did not meet during the year, but should have (i.e.,
because new directors were nominated or appointed since the time of the last
annual meeting).
3.
In the absence of a governance
committee, the nominating committee chair
30
when the chairman is
not independent, and an independent lead or presiding director has not been
appointed.
31
4.
The nominating committee chair, when
there are less than five or the whole nominating committee when there are
more than 20 members on the board.
32
5.
The nominating committee chair, when
a director received a greater than 50% against vote the prior year and not
only was the director not removed, but the issues that raised shareholder
concern were not corrected.
33
29
Where we would recommend to vote
against the committee chair but the chair is not up for election because the
board is staggered, we do not recommend voting against any members of the
committee who are up for election; rather, we will simply express our concern
regarding the committee chair.
30
If the committee chair is not
specified, we will recommend voting against the director who has been on the
committee the longest. If the longest-serving committee member cannot be
determined, we will recommend voting against the longest-serving board member
on the committee.
31
In the absence of both a governance
and a nominating committee, we will recommend voting against the chairman of
the board on this basis.
32
In the absence of both a governance
and a nominating committee, we will recommend voting against the chairman of
the board on this basis.
33
Considering that shareholder
discontent clearly relates to the director who received a greater than 50%
against vote rather than the nominating chair, we review the validity of the
issue(s) that initially raised shareholder concern, follow-up on such
matters, and only recommend voting against the nominating chair if a
reasonable analysis suggests that it would be most appropriate. In rare
cases, we will consider recommending against the nominating chair when a
director receives a substantial (i.e., 25% or more) vote against based on the same analysis.
A-23
Board-level Risk Management Oversight
Glass Lewis evaluates the risk
management function of a public company board on a strictly case-by-case
basis. Sound risk management, while necessary at all companies, is
particularly important at financial firms which inherently maintain
significant exposure to financial risk. We believe such financial firms
should have a chief risk officer reporting directly to the board and a
dedicated risk committee or a committee of the board charged with risk
oversight. Moreover, many non-financial firms maintain strategies which
involve a high level of exposure to financial risk. Similarly, since many non-financial
firm have significant hedging or trading strategies, including financial and
non-financial derivatives, those firms should also have a chief risk officer
and a risk committee.
Our views on risk oversight are
consistent with those expressed by various regulatory bodies. In its December
2009 Final Rule release on Proxy Disclosure Enhancements, the SEC noted that
risk oversight is a key competence of the board and that additional
disclosures would improve investor and shareholder understanding of the role
of the board in the organizations risk management practices. The final
rules, which became effective on February 28, 2010, now explicitly require
companies and mutual funds to describe (while allowing for some degree of
flexibility) the boards role in the oversight of risk.
When analyzing the risk management
practices of public companies, we take note of any significant losses or
writedowns on financial assets and/or structured transactions. In cases where
a company has disclosed a sizable loss or writedown, and where we find that
the companys board-level risk committee contributed to the loss through poor
oversight, we would recommend that shareholders vote against such committee
members on that basis. In addition, in cases where a company maintains a
significant level of financial risk exposure but fails to disclose any
explicit form of board-level risk oversight (committee or otherwise)
34
,
we will consider recommending to vote against the chairman of the board on
that basis. However, we generally would not recommend voting against a
combined chairman/CEO except in egregious cases.
34
A committee responsible for risk
management could be a dedicated risk committee, or another board committee,
usually the audit committee but occasionally the finance committee, depending
on a given companys board structure and method of disclosure. At some
companies, the entire board is charged with risk management.
A-24
Experience
Voting
Recommendations on the Basis of Director Experience
We typically recommend that
shareholders vote against directors who have served on boards or as
executives of companies with records of poor performance, inadequate risk
oversight, overcompensation, audit- or accounting-related issues, and/or
other indicators of mismanagement or actions against the interests of
shareholders.
35
Likewise, we examine the backgrounds
of those who serve on key board committees to ensure that they have the
required skills and diverse backgrounds to make informed judgments about the
subject matter for which the committee is responsible.
Other Considerations
Conflicts of Interest
We believe board members should be
wholly free of identifiable and substantial conflicts of interest, regardless
of the overall level of independent directors on the board. Accordingly, we
recommend that shareholders vote against the following types of affiliated or
inside directors:
1.
A CFO who is on the board: In our
view, the CFO holds a unique position relative to financial reporting and
disclosure to shareholders. Because of the critical importance of financial
disclosure and reporting, we believe the CFO should report to the board and
not be a member of it.
35
We typically apply a three-year look-back
to such issues and also research to see whether the responsible directors
have been up for election since the time of the failure, and if so, we take
into account the percentage of support they received from shareholders.
A-25
2.
A director who is on an excessive
number of boards: We will typically recommend voting against a director who
serves as an executive officer of any public company while serving on more
than two other public company boards and any other director who serves on
more than six public company boards typically receives an against
recommendation from Glass Lewis. Academic literature suggests that one board
takes up approximately 200 hours per year of each members time. We believe this
limits the number of boards on which directors can effectively serve,
especially executives at other companies.
36
Further, we note a
recent study has shown that the average number of outside board seats held by
CEOs of S&P 500 companies is 0.6, down from 0.8 in 2006 and 1.2 in 2001.
37
3.
A director, or a director who has an
immediate family member, providing material consulting or other material
professional services to the company: These services may include legal,
consulting, or financial services. We question the need for the company to
have consulting relationships with its directors. We view such relationships
as creating conflicts for directors, since they may be forced to weigh their
own interests against shareholder interests when making board decisions. In
addition, a companys decisions regarding where to turn for the best
professional services may be compromised when doing business with the
professional services firm of one of the companys directors.
4.
A director, or a director who has an
immediate family member, engaging in airplane, real estate, or similar deals,
including perquisite-type grants from the company, amounting to more than
$50,000: Directors who receive these sorts of payments from the company will
have to make unnecessarily complicated decisions that may pit their interests
against shareholder interests.
5.
Interlocking directorships: CEOs or
other top executives who serve on each others boards create an interlock
that poses conflicts that should be
36
Our guidelines are similar to the
standards set forth by the NACD in its Report of the NACD Blue Ribbon
Commission on Director Professionalism, 2001 Edition, pp. 14-15 (also cited
approvingly by the Conference Board in its Corporate Governance Best
Practices: A Blueprint for the Post-Enron Era, 2002, p. 17), which suggested
that CEOs should not serve on more than 2 additional boards, persons with
full-time work should not serve on more than 4 additional boards, and others
should not serve on more than six boards.
37
Spencer Stuart Board Index, 2011, p.
8.
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Controlled Companies
Controlled companies present an exception to our
independence recommendations. The boards function is to protect shareholder
interests; however, when an individual or entity owns more than 50% of the
voting shares, the interests of the majority of shareholders
are
the interests of that entity or
individual. Consequently, Glass Lewis does not apply our usual two-thirds
independence rule and therefore we will not recommend voting against boards
whose composition reflects the makeup of the shareholder population.
38
We do not apply a look-back period
for this situation. The interlock policy applies to both public and private
companies. We will also evaluate multiple board interlocks among non-insiders
(i.e. multiple directors serving on the same boards at other companies), for
evidence of a pattern of poor oversight.
39
Refer to
Section IV. Governance Structure and the Shareholder Franchise
for further discussion of our policies regarding anti-takeover measures,
including poison pills.
40
The Conference Board, at p. 23 in
its May 2003 report Corporate Governance Best Practices, Id., quotes one of
its roundtable participants as stating, [w]hen youve got a 20 or 30 person
corporate board, its one way of assuring that nothing is ever going to
happen that the CEO doesnt want to happen.
A-27
A-28
Audit
Committee Independence
We believe that audit committees
should consist solely of independent directors. Regardless of a companys
controlled status, the interests of all shareholders must be protected by
ensuring the integrity and accuracy of the companys financial statements.
Allowing affiliated directors to oversee the preparation of financial reports
could create an insurmountable conflict of interest.
Where an individual or entity owns more than 50% of a
companys voting power but the company is not a controlled company as defined
by relevant listing standards, we apply a lower independence requirement of a
majority of the board but believe the company should otherwise be treated like
another public company; we will therefore apply all other standards as outlined
above.
Similarly, where an individual or entity holds between 20-50%
of a companys voting power, but the company is not controlled and there is
not a majority owner, we believe it is reasonable to allow proportional
representation on the board and committees (excluding the audit committee)
based on the individual or entitys percentage of ownership.
Exceptions for Recent IPOs
We believe companies that have recently completed an initial
public offering (IPO) should be allowed adequate time to fully comply with
marketplace listing requirements as well as to meet basic corporate governance
standards. We believe a one-year grace period immediately following the date of
a companys IPO is sufficient time for most companies to comply with all
relevant regulatory requirements and to meet such corporate governance
standards. Except in egregious cases, Glass Lewis refrains from issuing voting
recommendations on the basis of corporate governance best practices (eg. board
independence, committee membership and structure, meeting attendance, etc.)
during the one-year period following an IPO.
However, two specific cases warrant strong shareholder
action against the board of a company that completed an IPO within the past year:
1.
Adoption
of a poison pill
: in cases
where a board implements a poison pill preceding an IPO, we will consider
voting against the members of the board who served during the period of the
poison pills adoption if the board (i) did not also commit to submit the
poison pill to a shareholder vote within 12 months of the IPO or (ii) did not
provide a sound rationale for adopting the pill and the pill does not expire
in three years or less. In our view, adopting such an anti-takeover device
unfairly penalizes future shareholders who (except for
A-29
electing to buy or sell the stock)
are unable to weigh in on a matter that could potentially negatively impact
their ownership interest. This notion is strengthened when a board adopts a
poison pill with a 5-10 year life immediately prior to having a public
shareholder base so as to insulate management for a substantial amount of
time while postponing and/or avoiding allowing public shareholders the
ability to vote on the pills adoption. Such instances are indicative of
boards that may subvert shareholders best interests following their IPO.
2.
Adoption
of an exclusive forum provision
:
consistent with our general approach to boards that adopt exclusive forum
provisions without shareholder approval (refer to our discussion of
nominating and governance committee performance in Section I of the
guidelines), in cases where a board adopts such a provision for inclusion in
a companys charter or bylaws before the companys IPO, we will recommend
voting against the chairman of the governance committee, or, in the absence
of such a committee, the chairman of the board, who served during the period
of time when the provision was adopted.
Further, shareholders should also be wary of companies in
this category that adopt supermajority voting requirements before their IPO.
Absent explicit provisions in the articles or bylaws stipulating that certain
policies will be phased out over a certain period of time (e.g. a predetermined
declassification of the board, a planned separation of the chairman and CEO,
etc.) long-term shareholders could find themselves in the predicament of having
to attain a supermajority vote to approve future proposals seeking to eliminate
such policies.
Mutual Fund Boards
Mutual funds, or investment companies, are structured
differently from regular public companies (i.e., operating companies).
Typically, members of a funds adviser are on the board and management takes on
a different role from that of regular public companies. Thus, we focus on a
short list of requirements, although many of our guidelines remain the same.
The following mutual fund policies are similar to the
policies for regular public companies:
1.
Size
of the board of directors
:
The board should be made up of between five and twenty directors.
2.
The
CFO on the board
: Neither
the CFO of the fund nor the CFO of the funds registered investment adviser
should serve on the board.
3.
Independence
of the audit committee
: The audit
committee should consist
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solely of independent directors.
4.
Audit
committee financial expert
:
At least one member of the audit committee should be designated as the audit
committee financial expert.
The following differences from regular public companies
apply at mutual funds:
1.
Independence
of the board
: We believe
that three-fourths of an investment companys board should be made up of
independent directors. This is consistent with a proposed SEC rule on
investment company boards. The Investment Company Act requires 40% of the
board to be independent, but in 2001, the SEC amended the Exemptive Rules to
require that a majority of a mutual fund board be independent. In 2005, the
SEC proposed increasing the independence threshold to 75%. In 2006, a federal
appeals court ordered that this rule amendment be put back out for public
comment, putting it back into proposed rule status. Since mutual fund
boards play a vital role in overseeing the relationship between the fund and
its investment manager, there is greater need for independent oversight than
there is for an operating company board.
2.
When
the auditor is not up for ratification
:
We do not recommend voting against the audit committee if the auditor is not
up for ratification because, due to the different legal structure of an
investment company compared to an operating company, the auditor for the
investment company (i.e., mutual fund) does not conduct the same level of
financial review for each investment company as for an operating company.
3.
Non-independent
chairman
: The SEC has
proposed that the chairman of the fund board be independent. We agree that
the roles of a mutual funds chairman and CEO should be separate. Although we
believe this would be best at all companies, we recommend voting against the
chairman of an investment companys nominating committee as well as the
chairman of the board if the chairman and CEO of a mutual fund are the same
person and the fund does not have an independent lead or presiding director.
Seven former SEC commissioners support the appointment of an independent
chairman and we agree with them that an independent board chairman would be
better able to create conditions favoring the long-term interests of fund
shareholders than would a chairman who is an executive of the adviser. (See
the comment letter sent to the SEC in support of the proposed rule at
http://sec.gov/rules/proposed/s70304/s70304-179.pdf)
Declassified Boards
Glass Lewis favors the repeal of staggered boards and the
annual election of directors. We believe staggered boards are less accountable
to shareholders than boards that are
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elected annually. Furthermore, we feel the annual election
of directors encourages board members to focus on shareholder interests.
Empirical studies have shown: (i) companies with staggered
boards reduce a firms value; and (ii) in the context of hostile takeovers,
staggered boards operate as a takeover defense, which entrenches management,
discourages potential acquirers, and delivers a lower return to target
shareholders.
Shareholders have increasingly come to agree with this view.
In 2011 more than 75% of S&P 500 companies had declassified boards, up from
approximately 41% a decade ago.
45
Clearly, more shareholders have
supported the repeal of classified boards.
41
Lucian Bebchuk, John Coates IV,
Guhan Subramanian, The Powerful Antitakeover Force of Staggered Boards:
Further Findings and a Reply to Symposium Participants, 55
Stanford Law Review
885-917 (2002), page
1.
42
Id. at 2 (Examining a sample of seventy-three negotiated transactions from
2000 to 2002, we find no systematic benefits in terms of higher premia to
boards that have [staggered structures].).
43
Lucian Bebchuk, Alma Cohen, The Costs of Entrenched Boards (2004).
44
Lucian Bebchuk, Alma Cohen and Charles C.Y. Wang, Staggered Boards and the
Wealth of Shareholders:
45
Spencer Stuart Board Index, 2011, p. 14
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Given the empirical evidence suggesting staggered boards
reduce a companys value and the increasing shareholder opposition to such a
structure, Glass Lewis supports the declassification of boards and the annual
election of directors.
Glass Lewis believes that director age and term limits
typically are not in shareholders best interests. Too often age and term
limits are used by boards as a crutch to remove board members who have served
for an extended period of time. When used in that fashion, they are indicative
of a board that has a difficult time making tough decisions.
Academic literature suggests that there is no evidence of a
correlation between either length of tenure or age and director performance. On
occasion, term limits can be used as a means to remove a director for boards
that are unwilling to police their membership and to enforce turnover. Some
shareholders support term limits as a way to force change when boards are
unwilling to do so.
In our view, a directors experience can be a valuable asset
to shareholders because of the complex, critical issues that boards face.
However, we support periodic director rotation to ensure a fresh perspective in
the boardroom and the generation of new ideas and business strategies. We
believe the board should implement such rotation instead of relying on
arbitrary limits. When necessary, shareholders can address the issue of
director rotation through director elections.
We believe that shareholders are better off monitoring the
boards approach to corporate governance and the boards stewardship of company
performance rather than imposing inflexible rules that dont necessarily
correlate with returns or benefits for shareholders.
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However, if a board adopts term/age limits, it should follow
through and not waive such limits. If the board waives its term/age limits,
Glass Lewis will consider recommending shareholders vote against the nominating
and/or governance committees, unless the rule was waived with sufficient
explanation, such as consummation of a corporate transaction like a merger.
Requiring Two or More Nominees per Board Seat
In an attempt to address lack of access to the ballot,
shareholders sometimes propose that the board give shareholders a choice of
directors for each open board seat in every election. However, we feel that
policies requiring a selection of multiple nominees for each board seat would
discourage prospective directors from accepting nominations. A prospective
director could not be confident either that he or she is the boards clear
choice or that he or she would be elected. Therefore, Glass Lewis generally
will vote against such proposals.
Shareholder Access
Majority Vote for the Election of Directors
In stark contrast to the failure of shareholder access to
gain acceptance, majority voting for the election of directors is fast becoming
the
de facto
standard in corporate board elections. In our view, the majority voting proposals are an
effort to make the case for shareholder impact on director elections on a
company-specific basis.
While this proposal would not give shareholders the
opportunity to nominate directors or lead to elections where shareholders have
a choice among director candidates, if implemented, the proposal would allow
shareholders to have a voice in determining whether the nominees proposed by
the board should actually serve as the overseer-representatives of shareholders
in the boardroom. We believe this would be a favorable outcome for
shareholders.
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The plurality vote standard
Today, most US companies still elect directors by a
plurality vote standard. Under that standard, if one shareholder holding only
one share votes in favor of a nominee (including himself, if the director is a
shareholder), that nominee wins the election and assumes a seat on the board.
The common concern among companies with a plurality voting standard was the
possibility that one or more directors would not receive a majority of votes,
resulting in failed elections. This was of particular concern during the
1980s, an era of frequent takeovers and contests for control of companies.
If a majority vote standard were implemented, a nominee
would have to receive the support of a majority of the shares voted in order to
be elected. Thus, shareholders could collectively vote to reject a director
they believe will not pursue their best interests. We think that this minimal
amount of protection for shareholders is reasonable and will not upset the
corporate structure nor reduce the willingness of qualified shareholder-focused
directors to serve in the future.
We believe that a majority vote standard will likely lead to
more attentive directors. Occasional use of this power will likely prevent the
election of directors with a record of ignoring shareholder interests in favor
of other interests that conflict with those of investors. Glass Lewis will
generally support proposals calling for the election of directors by a majority
vote except for use in contested director elections.
In response to the high level of support majority voting has
garnered, many companies have voluntarily taken steps to implement majority
voting or modified approaches to majority voting. These steps range from a
modified approach requiring directors that receive a majority of withheld votes
to resign (e.g., Ashland Inc.) to actually requiring a majority vote of
outstanding shares to elect directors (e.g., Intel).
We feel that the modified approach does not go far enough
because requiring a director to resign is not the same as requiring a majority
vote to elect a director and does not allow shareholders a definitive voice in
the election process. Further, under the modified approach, the corporate
governance committee could reject a resignation and,
47
Spencer Stuart Board Index, 2011, p.
14
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even if it accepts the resignation, the corporate governance
committee decides on the directors replacement. And since the modified
approach is usually adopted as a policy by the board or a board committee, it
could be altered by the same board or committee at any time.
II. Transparency and Integrity of Financial Reporting
Auditor Ratification
The auditors role as gatekeeper is crucial in ensuring the
integrity and transparency of the financial information necessary for
protecting shareholder value. Shareholders rely on the auditor to ask tough
questions and to do a thorough analysis of a companys books to ensure that the
information provided to shareholders is complete, accurate, fair, and that it
is a reasonable representation of a companys financial position. The only way
shareholders can make rational investment decisions is if the market is
equipped with accurate information about a companys fiscal health. As stated
in the October 6, 2008 Final Report of the Advisory Committee on the Auditing
Profession to the U.S. Department of the Treasury:
The
auditor is expected to offer critical and objective judgment on the financial
matters under consideration, and actual and perceived absence of conflicts is
critical to that expectation. The Committee believes that auditors,
investors, public companies, and other market participants must understand
the independence requirements and their objectives, and that auditors must
adopt a mindset of skepticism when facing situations that may compromise
their independence.
As such, shareholders should demand an objective, competent
and diligent auditor who performs at or above professional standards at every
company in which the investors hold an interest. Like directors, auditors
should be free from conflicts of interest and should avoid situations requiring
a choice between the auditors interests and the publics interests. Almost
without exception, shareholders should be able to annually review an auditors
performance and to annually ratify a boards auditor selection. Moreover, in
October 2008, the Advisory Committee on the Auditing Profession went even
further, and recommended that to further enhance audit committee oversight and
auditor accountability ... disclosure in the company proxy statement regarding
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Most recently on
August 16, 2011, the PCAOB issued a Concept Release seeking public comment on
ways that auditor independence, objectivity and professional skepticism could
be enhanced, with a specific emphasis on mandatory audit firm rotation. The
PCAOB will convene a public roundtable meeting in March 2012 to further discuss
such matters. Glass Lewis believes auditor rotation can ensure both the
independence of the auditor and the integrity of the audit; we will typically
recommend supporting proposals to require auditor rotation when the proposal uses
a reasonable period of time (usually not less than 5-7 years) particularly at
companies with a history of accounting problems.
Voting Recommendations on Auditor Ratification
We generally support managements choice of auditor except
when we believe the auditors independence or audit integrity has been
compromised. Where a board has not allowed shareholders to review and ratify an
auditor, we typically recommend voting against the audit committee chairman.
When there have been material restatements of annual financial statements or
material weakness in internal controls, we usually recommend voting against the
entire audit committee.
Reasons why we may not recommend ratification of an auditor
include:
1.
When audit fees plus audit-related
fees total less than the tax fees and/or other non-audit fees.
2.
Recent material restatements of
annual financial statements, including those resulting in the reporting of
material weaknesses in internal controls and including late filings by the
company where the auditor bears some responsibility for the restatement or
late filing.
49
3.
When the auditor performs prohibited
services such as tax-shelter work, tax services for the CEO or CFO, or
contingent-fee work, such as a fee based on a percentage of economic benefit
to the company.
4.
When audit fees are excessively low,
especially when compared with other
48
Final Report of the Advisory
Committee on the Auditing Profession to the U.S. Department of the Treasury.
p. VIII:20, October 6, 2008.
49
An auditor does not audit interim
financial statements. Thus, we generally do not believe that an auditor
should be opposed due to a restatement of interim financial statements unless
the nature of the misstatement is clear from a reading of the incorrect
financial statements.
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companies in the same industry.
5.
When the company has aggressive
accounting policies.
6.
When the company has poor disclosure
or lack of transparency in its financial statements.
7.
Where the auditor limited its
liability through its contract with the company or the audit contract
requires the corporation to use alternative dispute resolution procedures
without adequate justification.
8.
We also look for other relationships
or concerns with the auditor that might suggest a conflict between the
auditors interests and shareholder interests.
Pension Accounting Issues
A pension accounting question often raised in proxy
proposals is what effect, if any, projected returns on employee pension assets
should have on a companys net income. This issue often arises in the executive-compensation
context in a discussion of the extent to which pension accounting should be
reflected in business performance for purposes of calculating payments to
executives.
Glass Lewis believes that pension credits should not be
included in measuring income that is used to award performance-based
compensation. Because many of the assumptions used in accounting for retirement
plans are subject to the companys discretion, management would have an obvious
conflict of interest if pay were tied to pension income. In our view, projected
income from pensions does not truly reflect a companys performance.
III. The Link Between Compensation and Performance
Glass Lewis believes that comprehensive, timely and
transparent disclosure of executive pay is critical to allowing shareholders to
evaluate the extent to which the pay is keeping pace with company performance.
When reviewing proxy materials, Glass Lewis
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Moreover, it is rarely in shareholders interests to
disclose competitive data about individual salaries below the senior executive
level. Such disclosure could create internal personnel discord that would be
counterproductive for the company and its shareholders. While we favor full
disclosure for senior executives and we view pay disclosure at the aggregate
level (e.g., the number of employees being paid over a certain amount or in
certain categories) as potentially useful, we do not believe shareholders need
or will benefit from detailed reports about individual management employees
other than the most senior executives.
Advisory Vote on Executive Compensation (Say-on-Pay)
This practice of allowing shareholders a non-binding vote on
a companys compensation report is standard practice in many non-US countries,
and has been a requirement for most companies in the United Kingdom since 2003
and in Australia since 2005. Although Say-on-Pay proposals are non-binding, a
high level of against or abstain votes indicate substantial shareholder
concern about a companys compensation policies and procedures.
Given the complexity of most companies compensation programs,
Glass Lewis applies a highly nuanced approach when analyzing advisory votes on
executive compensation. We review each companys compensation on a case-by-case
basis, recognizing that each company must be examined in the context of
industry, size, maturity, performance, financial condition, its historic pay
for performance practices, and any other relevant internal or external factors.
50
Small
reporting companies (as defined by the SEC as below $75,000,000 in market
capitalization) received a two-year reprieve and will only be subject to
say-on-pay requirements beginning at meetings held on or after January 21,
2013.
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Where we find those specific policies and practices serve to
reasonably align compensation with performance, and such practices are
adequately disclosed, Glass Lewis will recommend supporting the companys
approach. If, however, those specific policies and practices fail to
demonstrably link compensation with performance, Glass Lewis will generally
recommend voting against the say-on-pay proposal.
Glass Lewis focuses on four main areas when reviewing Say-on-Pay
proposals:
The overall design and structure of
the Companys executive compensation program including performance metrics;
The quality and content of the
Companys disclosure;
The quantum paid to executives; and
The link between compensation and
performance as indicated by the Companys current and past pay-for-performance grades
We also review any significant changes or modifications, and rationale
for such changes, made to the Companys compensation structure or award
amounts, including base salaries.
Say-on-Pay Voting Recommendations
In cases where we find deficiencies in a companys
compensation programs design, implementation or management, we will recommend
that shareholders vote against the Say-on-Pay proposal. Generally such
instances include evidence of a pattern of poor pay-for-performance practices
(i.e., deficient or failing pay for performance grades), unclear or
questionable disclosure regarding the overall compensation structure (e.g.,
limited information regarding benchmarking processes, limited rationale for
bonus performance metrics and targets, etc.), questionable adjustments to
certain aspects of the overall compensation structure (e.g., limited rationale
for significant changes to performance targets or metrics, the payout of
guaranteed bonuses or sizable retention grants, etc.), and/or other egregious
compensation practices.
Although not an exhaustive list, the following issues when
weighed together may cause Glass Lewis to recommend voting against a say-on-pay
vote:
Inappropriate
peer group and/or benchmarking issues
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Inadequate or no rationale for
changes to peer groups
Egregious or excessive bonuses,
equity awards or severance payments, including golden handshakes and golden
parachutes
Guaranteed bonuses
Targeting overall levels of
compensation at higher than median without adequate justification
Bonus or long-term plan targets set
at less than mean or negative performance levels
Performance targets not sufficiently
challenging, and/or providing for high potential payouts
Performance targets lowered, without
justification
Discretionary bonuses paid when short-
or long-term incentive plan targets were not met
Executive pay high relative to peers
not justified by outstanding company performance
The terms of the long-term incentive
plans are inappropriate (please see Long-Term Incentives below)
In the instance that a company
has simply failed to provide sufficient disclosure of its policies, we may
recommend shareholders vote against this proposal solely on this basis,
regardless of the appropriateness of compensation levels.
Additional Scrutiny for Companies with Significant Opposition in 2011
At companies that received a significant shareholder vote
(anything greater than 25%) against their say on pay proposal in 2011, we
believe the board should demonstrate some level of engagement and
responsiveness to the shareholder concerns behind the discontent. While we
recognize that sweeping changes cannot be made to a compensation program
without due consideration and that a majority of shareholders voted in favor of
the proposal, we will look for disclosure in the proxy statement and other
publicly-disclosed filings that indicates the compensation committee is
responding to the prior years vote results including engaging with large
shareholders to identify the concerns causing the substantial vote against. In
the absence of any evidence that the board is actively engaging shareholders on
this issue and responding accordingly, we will recommend holding compensation
committee members accountable for a failure to respond in consideration of the
level of the vote against and the severity and history of the compensation
problems.
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Short-Term Incentives
A short-term bonus or incentive (STI) should be
demonstrably tied to performance. Whenever possible, we believe a mix of
corporate and individual performance measures is appropriate. We would normally
expect performance measures for STIs to be based on internal financial measures
such as net profit after tax, EPS growth and divisional profitability as well
as non-financial factors such as those related to safety, environmental issues,
and customer satisfaction. However, we accept variations from these metrics if
they are tied to the Companys business drivers.
Further, the target and potential maximum awards that can be
achieved under STI awards should be disclosed. Shareholders should expect
stretching performance targets for the maximum award to be achieved. Any
increase in the potential maximum award should be clearly justified to
shareholders.
Glass Lewis recognizes that disclosure of some measures may
include commercially confidential information. Therefore, we believe it may be
reasonable to exclude such information in some cases as long as the company
provides sufficient justification for non-disclosure. However, where a short-term
bonus has been paid, companies should disclose the extent to which performance
has been achieved against relevant targets, including disclosure of the actual
target achieved.
Where management has received significant STIs but short-term
performance as measured by such indicators as increase in profit and/or EPS
growth over the previous year
prima facie
appears to be poor or negative, we believe the company should provide a clear
explanation why these significant short-term payments were made.
Long-Term Incentives
Glass Lewis recognizes the value of equity-based incentive
programs. When used appropriately, they can provide a vehicle for linking an
executives pay to company performance, thereby aligning their interests with
those of shareholders. In addition, equity-based compensation can be an
effective way to attract, retain and motivate key employees.
There are certain elements that Glass Lewis believes are
common to most well-structured long-term incentive (LTI) plans. These
include:
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No re-testing or lowering of
performance conditions
Performance metrics that cannot be
easily manipulated by management
Two or more performance metrics
At least one relative performance
metric that compares the companys performance to a relevant peer group or
index
Performance periods of at least three
years
Stretching metrics that incentivize
executives to strive for outstanding performance
Individual limits expressed as a
percentage of base salary
Performance measures should be carefully selected and should
relate to the specific business/industry in which the company operates and,
especially, the key value drivers of the companys business.
Glass Lewis believes that measuring a companys performance
with multiple metrics serves to provide a more complete picture of the
companys performance than a single metric, which may focus too much management
attention on a single target and is therefore more susceptible to manipulation.
External benchmarks should be disclosed and transparent, such as total shareholder
return (TSR) against a well-selected sector index, peer group or other
performance hurdle. The rationale behind the selection of a specific index or
peer group should be disclosed. Internal benchmarks (e.g. earnings per share
growth) should also be disclosed and transparent, unless a cogent case for
confidentiality is made and fully explained.
We also believe shareholders should evaluate the relative
success of a companys compensation programs, particularly existing equity-based
incentive plans, in linking pay and performance in evaluating new LTI plans to
determine the impact of additional stock awards. We will therefore review the
companys pay-for-performance grade, see below for more information, and
specifically the proportion of total compensation that is stock-based.
Pay for Performance
Glass Lewis believes an integral part of a well-structured
compensation package is a successful link between pay and performance.
Therefore, Glass Lewis developed a proprietary pay-for-performance model to
evaluate the link between pay and performance of the top five executives at US
companies. Our model benchmarks these executives pay and company performance
against four peer groups and across seven performance metrics. Using a forced
curve and a school letter-grade system, we grade companies from A-F according
to their pay-for-performance linkage. The grades guide
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We also use this analysis to inform our voting decisions on
say-on-pay proposals. As such, if a company receives a failing grade from our
proprietary model, we are likely to recommend shareholders to vote against the
say-on-pay proposal. However, there may be exceptions to this rule such as when
a company makes significant enhancements to its compensation programs.
Recoupment (Clawback) Provisions
Section 954 of the Dodd-Frank Act requires the SEC to create
a rule requiring listed companies to adopt policies for recouping certain
compensation during a three-year look-back period. The rule applies to
incentive-based compensation paid to current or former executives if the
company is required to prepare an accounting restatement due to erroneous data
resulting from material non-compliance with any financial reporting
requirements under the securities laws.
These recoupment provisions are more stringent than under
Section 304 of the Sarbanes-Oxley Act in three respects: (i) the provisions
extend to current or former executive officers rather than only to the CEO and
CFO; (ii) it has a three-year look-back period (rather than a twelve-month look-back
period); and (iii) it allows for recovery of compensation based upon a
financial restatement due to erroneous data, and therefore does not require
misconduct on the part of the executive or other employees.
Frequency of Say-on-Pay
The Dodd-Frank Act also requires companies to allow
shareholders a non-binding vote on the frequency of say-on-pay votes, i.e.
every one, two or three years. Additionally, Dodd-Frank requires companies to
hold such votes on the frequency of say-on-pay votes at least once every six
years.
We believe companies should submit say-on-pay votes to
shareholders every year. We believe that the time and financial burdens to a
company with regard to an annual vote are relatively small and incremental and
are outweighed by the benefits to shareholders through more frequent
accountability. Implementing biannual or triennial votes on executive
compensation limits shareholders ability to hold the board accountable for its
compensation practices through means other than voting against the compensation
committee. Unless a company provides a compelling rationale or unique
circumstances for say-on-pay votes less frequent than annually, we will
generally recommend that shareholders support annual votes on compensation.
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The Dodd-Frank Act also requires companies to provide
shareholders with a separate non-binding vote on approval of golden parachute
compensation arrangements in connection with certain change-in-control
transactions. However, if the golden parachute arrangements have previously
been subject to a say-on-pay vote which shareholders approved, then this
required vote is waived.
Glass Lewis believes the narrative and tabular disclosure of
golden parachute arrangements will benefit all shareholders. Glass Lewis will
analyze each golden parachute arrangement on a case-by-case basis, taking into
account, among other items: the ultimate value of the payments particularly
compared to the value of the transaction, the tenure and position of the
executives in question, and the type of triggers involved (single vs double).
Equity-Based Compensation Plan Proposals
We believe that equity compensation awards are useful, when
not abused, for retaining employees and providing an incentive for them to act
in a way that will improve company performance. Glass Lewis evaluates equity-based
compensation plans using a detailed model and analytical review.
Equity-based compensation programs have important
differences from cash compensation plans and bonus programs. Accordingly, our
model and analysis takes into account factors such as plan administration, the
method and terms of exercise, repricing history, express or implied rights to
reprice, and the presence of evergreen provisions.
In our analysis, we compare the programs expected annual
expense with the businesss operating metrics to help determine whether the
plan is excessive in light of company performance. We also compare the option
plans expected annual cost to the enterprise value of
the firm rather than to market capitalization because the employees,
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We evaluate equity plans based on certain overarching
principles:
1.
Companies should seek more shares
only when needed.
2.
Requested share amounts should be
small enough that companies seek shareholder approval every three to four
years (or more frequently).
3.
If a plan is relatively expensive, it
should not grant options solely to senior executives and board members.
4.
Annual net share count and voting
power dilution should be limited.
5.
Annual cost of the plan (especially
if not shown on the income statement) should be reasonable as a percentage of
financial results and should be in line with the peer group.
6.
The expected annual cost of the plan
should be proportional to the businesss value.
7.
The intrinsic value that option
grantees received in the past should be reasonable compared with the
businesss financial results.
8.
Plans should deliver value on a per-employee
basis when compared with programs at peer companies.
9.
Plans should not permit re-pricing of
stock options.
10.
Plans should not contain excessively
liberal administrative or payment terms.
11.
Selected performance metrics
should be challenging and appropriate, and should be subject to relative
performance measurements.
12.
Stock grants should be subject to
minimum vesting and/or holding periods sufficient to ensure sustainable
performance and promote retention.
Option Exchanges
Glass Lewis views option repricing plans and option exchange
programs with great skepticism. Shareholders have substantial risk in owning
stock and we believe that the employees, officers, and directors who receive
stock options should be similarly situated to align their interests with
shareholder interests.
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We are concerned that option grantees who believe they will
be rescued from underwater options will be more inclined to take
unjustifiable risks. Moreover, a predictable pattern of repricing or exchanges
substantially alters a stock options value because options that will
practically never expire deeply out of the money are worth far more than options
that carry a risk of expiration.
There is one
circumstance in which a repricing or option exchange program is acceptable: if
macroeconomic or industry trends, rather than specific company issues, cause a
stocks value to decline dramatically and the repricing is necessary to
motivate and retain employees. In this circumstance, we think it fair to
conclude that option grantees may be suffering from a risk that was not
foreseeable when the original bargain was struck. In such a circumstance, we
will recommend supporting a repricing only if the following conditions are
true:
1.
Officers and board members cannot
participate in the program;
2.
The stock decline mirrors the market
or industry price decline in terms of timing and approximates the decline in
magnitude;
3.
The exchange is value-neutral or
value-creative to shareholders using very conservative assumptions and with a
recognition of the adverse selection problems inherent in voluntary programs;
and
4.
Management and the board make a
cogent case for needing to motivate and retain existing employees, such as
being in a competitive employment market.
Option Backdating, Spring-Loading, and Bullet-Dodging
Glass Lewis views option backdating, and the related
practices of spring-loading and bullet-dodging, as egregious actions that
warrant holding the appropriate management and board members responsible. These
practices are similar to re-pricing options and eliminate much of the downside
risk inherent in an option grant that is designed to induce recipients to
maximize shareholder return.
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Spring-loading is granting stock options while in possession
of material, positive information that has not been disclosed publicly. Bullet-dodging
is delaying the grants of stock options until after the release of material,
negative information. This can allow option grants to be made at a lower price
either before the release of positive news or following the release of negative
news, assuming the stocks price will move up or down in response to the
information. This raises a concern similar to that of insider trading, or the
trading on material non-public information.
The exercise price for an option is determined on the day of
grant, providing the recipient with the same market risk as an investor who
bought shares on that date. However, where options were backdated, the
executive or the board (or the compensation committee) changed the grant date
retroactively. The new date may be at or near the lowest price for the year or
period. This would be like allowing an investor to look back and select the
lowest price of the year at which to buy shares.
Where a company granted backdated options to an executive
who is also a director, Glass Lewis will recommend voting against that
executive/director, regardless of who decided to make the award. In addition,
Glass Lewis will recommend voting against those directors who either approved
or allowed the backdating. Glass Lewis feels that executives and directors who
either benefited from backdated options or authorized the practice have breached
their fiduciary responsibility to shareholders.
Given the severe tax and legal liabilities to the company
from backdating, Glass Lewis will consider recommending voting against members
of the audit committee who served when options were backdated, a restatement
occurs, material weaknesses in internal controls exist and disclosures indicate
there was a lack of documentation. These committee members failed in their
responsibility to ensure the integrity of the companys financial reports.
When a company has engaged in spring-loading or bullet-dodging,
Glass Lewis will consider recommending voting against the compensation
committee members where there has been a pattern of granting options at or near
historic lows. Glass Lewis will
51
Lucian Bebchuk, Yaniv Grinstein and
Urs Peyer. LUCKY CEOs. November, 2006.
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also recommend voting against executives serving on the
board who benefited from the spring-loading or bullet-dodging.
162(m) Plans
Section 162(m) of the Internal Revenue Code allows companies
to deduct compensation in excess of $1 million for the CEO and the next three
most highly compensated executive officers, excluding the CFO, upon shareholder
approval of the excess compensation. Glass Lewis recognizes the value of
executive incentive programs and the tax benefit of shareholder-approved
incentive plans.
We typically recommend voting against a 162(m) plan where: a
company fails to provide at least a list of performance targets; a company
fails to provide one of either a total pool or an individual maximum; or the
proposed plan is excessive when compared with the plans of the companys peers.
The companys record of aligning pay with performance (as
evaluated using our proprietary pay-for-performance model) also plays a role in
our recommendation. Where a company has a record of setting reasonable pay
relative to business performance, we generally recommend voting in favor of a
plan even if the plan caps seem large relative to peers because we recognize
the value in special pay arrangements for continued exceptional performance.
As with all other issues we review, our goal is to provide
consistent but contextual advice given the specifics of the company and ongoing
performance. Overall, we recognize that it is generally not in shareholders
best interests to vote against such a plan and forgo the potential tax benefit
since shareholder rejection of such plans will not curtail the awards; it will
only prevent the tax deduction associated with them.
Director Compensation
Plans
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Glass Lewis uses a proprietary model and analyst review to
evaluate the costs of equity plans compared to the plans of peer companies with
similar market capitalizations. We use the results of this model to guide our
voting recommendations on stock-based director compensation plans.
IV. Governance Structure and the Shareholder Franchise
Anti-Takeover Measures
Glass Lewis believes that poison pill plans are not
generally in shareholders best interests. They can reduce management
accountability by substantially limiting opportunities for corporate takeovers.
Rights plans can thus prevent shareholders from receiving a buy-out premium for
their stock. Typically we recommend that shareholders vote against these plans
to protect their financial interests and ensure that they have an opportunity
to consider any offer for their shares, especially those at a premium.
We believe boards should be given wide latitude in directing
company activities and in charting the companys course. However, on an issue
such as this, where the link between the shareholders financial interests and
their right to consider and accept buyout offers is substantial, we believe
that shareholders should be allowed to vote on whether they support such a
plans implementation. This issue is different from other matters that are
typically left to board discretion. Its potential impact on and relation to
shareholders is direct and substantial. It is also an issue in which management
interests may be different from those of shareholders; thus, ensuring that
shareholders have a voice is the only way to safeguard their interests.
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1.
The form of offer is not required to
be an all-cash transaction;
2.
The offer is not required to remain
open for more than 90 business days;
3.
The offeror is permitted to amend the
offer, reduce the offer, or otherwise change the terms;
4.
There is no fairness opinion
requirement; and
5.
There is a low to no premium
requirement.
Where these requirements are met, we typically feel
comfortable that shareholders will have the opportunity to voice their opinion
on any legitimate offer.
NOL Poison Pills
Glass Lewis evaluates NOL pills on a strictly case-by-case
basis taking into consideration, among other factors, the value of the NOLs to
the company, the likelihood of a change of ownership based on the size of the
holding and the nature of the larger shareholders, the trigger threshold and
whether the term of the plan is limited in duration (i.e., whether it contains
a reasonable sunset provision) or is subject to periodic board review and/or
shareholder ratification. However, we will recommend that shareholders vote
against a proposal to adopt or amend a pill to include NOL protective
provisions if the company has adopted a more narrowly tailored means of
preventing a change in
52
Section 382 of the Internal Revenue
Code refers to a change of ownership of more than 50 percentage points by
one or more 5% shareholders within a three-year period. The statute is
intended to deter the trafficking of net operating losses.
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control to preserve its NOLs. For example, a company may
limit share transfers in its charter to prevent a change of ownership from
occurring.
Furthermore, we believe that shareholders should be offered
the opportunity to vote on any adoption or renewal of a NOL pill regardless of
any potential tax benefit that it offers a company. As such, we will consider
recommending voting against those members of the board who served at the time
when an NOL pill was adopted without shareholder approval within the prior
twelve months and where the NOL pill is not subject to shareholder
ratification.
Fair Price
Provisions
The effect of a fair price provision is to require approval
of any merger or business combination with an interested stockholder by 51%
of the voting stock of the company, excluding the shares held by the interested
stockholder. An interested stockholder is generally considered to be a holder
of 10% or more of the companys outstanding stock, but the trigger can vary.
Generally, provisions are put in place for the ostensible
purpose of preventing a back-end merger where the interested stockholder would
be able to pay a lower price for the remaining shares of the company than he or
she paid to gain control. The effect of a fair price provision on shareholders,
however, is to limit their ability to gain a premium for their shares through a
partial tender offer or open market acquisition which typically raise the share
price, often significantly. A fair price provision discourages such
transactions because of the potential costs of seeking shareholder approval and
because of the restrictions on purchase price for completing a merger or other
transaction at a later time.
Glass Lewis believes that fair price provisions, while
sometimes protecting shareholders from abuse in a takeover situation, more
often act as an impediment to takeovers, potentially limiting gains to
shareholders from a variety of transactions that could significantly increase
share price. In some cases, even the independent directors of the
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board cannot make exceptions when such exceptions may be in
the best interests of shareholders. Given the existence of state law
protections for minority shareholders such as Section 203 of the Delaware
Corporations Code, we believe it is in the best interests of shareholders to
remove fair price provisions.
Reincorporation
In general, Glass Lewis believes that the board is in the
best position to determine the appropriate jurisdiction of incorporation for
the company. When examining a management proposal to reincorporate to a
different state or country, we review the relevant financial benefits,
generally related to improved corporate tax treatment, as well as changes in
corporate governance provisions, especially those relating to shareholder
rights, resulting from the change in domicile. Where the financial benefits are
de minimis
and there is a
decrease in shareholder rights, we will recommend voting against the
transaction.
However, costly, shareholder-initiated reincorporations are
typically not the best route to achieve the furtherance of shareholder rights.
We believe shareholders are generally better served by proposing specific
shareholder resolutions addressing pertinent issues which may be implemented at
a lower cost, and perhaps even with board approval. However, when shareholders
propose a shift into a jurisdiction with enhanced shareholder rights, Glass
Lewis examines the significant ways would the Company benefit from shifting
jurisdictions including the following:
1.
Is the board sufficiently
independent?
2.
Does the Company have anti-takeover
protections such as a poison pill or classified board in place?
3.
Has the board been previously
unresponsive to shareholders (such as failing to implement a shareholder
proposal that received majority shareholder support)?
4.
Do shareholders have the right to
call special meetings of shareholders?
5.
Are there other material governance
issues at the Company?
6.
Has the Companys performance matched
or exceeded its peers in the past one and three years?
7.
How has the Company ranked in Glass
Lewis pay-for-performance analysis during the last three years?
8.
Does the company have an independent
chairman?
We note, however, that we will only support shareholder
proposals to change a companys place of incorporation in exceptional
circumstances.
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Glass Lewis believes that charter or bylaw provisions
limiting a shareholders choice of legal venue are not in the best interests of
shareholders. Such
clauses may effectively discourage the use of shareholder derivative claims by
increasing their associated costs and making them more difficult to pursue. As
such, shareholders should be wary about approving any limitation on their legal
recourse including limiting themselves to a single jurisdiction (e.g. Delaware)
without compelling evidence that it will benefit shareholders.
For this reason, we recommend that shareholders vote against
any bylaw or charter amendment seeking to adopt an exclusive forum provision.
Moreover, in the event a board seeks shareholder approval of a forum selection
clause pursuant to a bundled bylaw amendment rather than as a separate
proposal, we will weigh the importance of the other bundled provisions when
determining the vote recommendation on the proposal. We will nonetheless
recommend voting against the chairman of the governance committee for bundling
disparate proposals into a single proposal (refer to our discussion of
nominating and governance committee performance in Section I of the
guidelines).
Authorized Shares
Glass Lewis believes that adequate capital stock is
important to a companys operation. When analyzing a request for additional
shares, we typically review four common reasons why a company might need
additional capital stock:
1.
Stock
Split
We typically
consider three metrics when evaluating whether we think a stock split is
likely or necessary: The historical stock pre-split price, if any; the
current price relative to the companys most common trading price over the
past 52 weeks; and some absolute limits on stock price that, in our view,
either always make a stock split appropriate if desired by management or
would almost never be a reasonable price at which to split a stock.
2.
Shareholder
Defenses
Additional
authorized shares could be used to bolster takeover defenses such as a poison
pill. Proxy filings often discuss the usefulness of additional shares in
defending against or discouraging a hostile takeover as a reason for a
requested increase. Glass Lewis is typically against such defenses and will
oppose actions intended to bolster such defenses.
3.
Financing
for Acquisitions
We look
at whether the company has a history of using stock for acquisitions and
attempt to determine what levels of stock have typically been required to
accomplish such transactions. Likewise, we look to see whether this is
discussed as a reason for additional shares in the proxy.
4.
Financing
for Operations
We review
the companys cash position and its
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ability to secure financing through
borrowing or other means. We look at the companys history of capitalization
and whether the company has had to use stock in the recent past as a means of
raising capital.
Issuing additional shares can dilute existing holders in
limited circumstances. Further, the availability of additional shares, where
the board has discretion to implement a poison pill, can often serve as a
deterrent to interested suitors. Accordingly, where we find that the company
has not detailed a plan for use of the proposed shares, or where the number of
shares far exceeds those needed to accomplish a detailed plan, we typically
recommend against the authorization of additional shares.
While we think that having adequate shares to allow
management to make quick decisions and effectively operate the business is
critical, we prefer that, for significant transactions, management come to
shareholders to justify their use of additional shares rather than providing a blank
check in the form of a large pool of unallocated shares available for any
purpose.
We typically recommend that shareholders vote against
proposals that would require advance notice of shareholder proposals or of
director nominees.
These proposals typically attempt to require a certain
amount of notice before shareholders are allowed to place proposals on the
ballot. Notice requirements typically range between three to six months prior
to the annual meeting. Advance notice requirements typically make it impossible
for a shareholder who misses the deadline to present a shareholder proposal or
a director nominee that might be in the best interests of the company and its
shareholders.
We believe shareholders should be able to review and vote on
all proposals and director nominees. Shareholders can always vote against
proposals that appear with little prior notice. Shareholders, as owners of a
business, are capable of identifying issues on which they have sufficient
information and ignoring issues on which they have insufficient information.
Setting arbitrary notice restrictions limits the opportunity for shareholders
to raise issues that may come up after the window closes.
Voting Structure
Cumulative Voting
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Glass Lewis believes that cumulative voting generally acts
as a safeguard for shareholders by ensuring that those who hold a significant
minority of shares can elect a candidate of their choosing to the board. This
allows the creation of boards that are responsive to the interests of all
shareholders rather than just a small group of large holders.
We review cumulative voting proposals on a case-by-case
basis, factoring in the independence of the board and the status of the
companys governance structure. But we typically find these proposals on
ballots at companies where independence is lacking and where the appropriate
checks and balances favoring shareholders are not in place. In those instances
we typically recommend in favor of cumulative voting.
Where a company has adopted a true majority vote standard (i.e.,
where a director must receive a majority of votes cast to be elected, as
opposed to a modified policy indicated by a resignation policy only), Glass
Lewis will recommend voting against cumulative voting proposals due to the
incompatibility of the two election methods. For companies that have not
adopted a true majority voting standard but have adopted some form of majority
voting, Glass Lewis will also generally recommend voting against cumulative
voting proposals if the company has not adopted antitakeover protections and
has been responsive to shareholders.
Where a company has not adopted a majority voting standard
and is facing both a shareholder proposal to adopt majority voting and a
shareholder proposal to adopt cumulative voting, Glass Lewis will support only
the majority voting proposal. When a company has both majority voting and
cumulative voting in place, there is a higher likelihood of one or more
directors not being elected as a result of not receiving a majority vote. This
is because shareholders exercising the right to cumulate their votes
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could unintentionally cause the failed election of one or
more directors for whom shareholders do not cumulate votes.
Supermajority Vote
Requirements
Glass Lewis believes that supermajority vote requirements
impede shareholder action on ballot items critical to shareholder interests. An
example is in the takeover context, where supermajority vote requirements can
strongly limit the voice of shareholders in making decisions on such crucial
matters as selling the business. This in turn degrades share value and can
limit the possibility of buyout premiums to shareholders. Moreover, we believe
that a supermajority vote requirement can enable a small group of shareholders
to overrule the will of the majority shareholders. We believe that a simple
majority is appropriate to approve all matters presented to shareholders.
We typically
recommend that shareholders not give their proxy to management to vote on any
other business items that may properly come before an annual or special
meeting. In our opinion, granting unfettered discretion is unwise.
Anti-Greenmail Proposals
Glass Lewis will support proposals to adopt a provision
preventing the payment of greenmail, which would serve to prevent companies
from buying back company stock at significant premiums from a certain
shareholder. Since a large or majority shareholder could attempt to compel a
board into purchasing its shares at a large premium, the anti-greenmail
provision would generally require that a majority of shareholders other than
the majority shareholder approve the buyback.
Mutual Funds:
Investment Policies and Advisory Agreements
Glass Lewis believes that decisions about a funds structure
and/or a funds relationship with its investment advisor or sub-advisors are
generally best left to management and the members of the board, absent a
showing of egregious or illegal conduct that might threaten shareholder value.
As such, we focus our analyses of such proposals on the following main areas:
The terms of any amended advisory or
sub-advisory agreement;
Any changes in the fee structure paid
to the investment advisor; and
Any material changes to the funds
investment objective or strategy.
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We generally support amendments to a funds investment
advisory agreement absent a material change that is not in the best interests
of shareholders. A significant increase in the fees paid to an investment
advisor would be reason for us to consider recommending voting against a
proposed amendment to an investment advisory agreement. However, in certain
cases, we are more inclined to support an increase in advisory fees if such
increases result from being performance-based rather than asset-based.
Furthermore, we generally support sub-advisory agreements between a funds
advisor and sub-advisor, primarily because the fees received by the sub-advisor
are paid by the advisor, and not by the fund.
In matters pertaining to a funds investment objective or
strategy, we believe shareholders are best served when a funds objective or
strategy closely resembles the investment discipline shareholders understood
and selected when they initially bought into the fund. As such, we generally
recommend voting against amendments to a funds investment objective or
strategy when the proposed changes would leave shareholders with stakes in a
fund that is noticeably different than when originally contemplated, and which
could therefore potentially negatively impact some investors diversification
strategies.
Glass Lewis typically prefers to leave decisions regarding
day-to-day management and policy decisions, including those related to social,
environmental or political issues, to management and the board, except when
there is a clear link between the proposal and value enhancement or risk
mitigation. We feel strongly that shareholders should not attempt to micromanage
the company, its businesses or its executives through the shareholder
initiative process. Rather, we believe shareholders should use their influence
to push for governance structures that protect shareholders and promote
director accountability. Shareholders should then put in place a board they can
trust to make informed decisions that are in the best interests of the business
and its owners, and then hold directors accountable for management and policy
decisions through board elections. However, we recognize that support of
appropriately crafted shareholder initiatives may at times serve to promote or
protect shareholder value.
To this end, Glass Lewis evaluates shareholder proposals on
a case-by-case basis. We generally recommend supporting shareholder proposals
calling for the elimination of, as well as to require shareholder approval of,
antitakeover devices such as poison pills and classified boards. We generally
recommend supporting proposals likely to increase
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The following is a discussion of Glass Lewis approach to
certain common shareholder resolutions. We note that the following is not an
exhaustive list of all shareholder proposals.
Compensation
However, as a general rule, Glass Lewis does not believe
shareholders should be involved in the approval and negotiation of compensation
packages. Such matters should be left to the boards compensation committee,
which can be held accountable for its decisions through the election of
directors. Therefore, Glass Lewis closely scrutinizes shareholder proposals
relating to compensation to determine if the requested action or disclosure has
already accomplished or mandated and whether it allows sufficient, appropriate
discretion to the board to design and implement reasonable compensation
programs.
Disclosure of
Individual Compensation
Glass Lewis believes that disclosure of information
regarding compensation is critical to allowing shareholders to evaluate the
extent to which a companys pay is based on performance. However, we recognize
that the SEC currently mandates significant executive compensation disclosure.
In some cases, providing information beyond that which is required by the SEC,
such as the details of individual employment agreements of employees below the
senior level, could create internal personnel tension or put the company at a
competitive disadvantage, prompting employee poaching by competitors. Further,
it is difficult to see how this information would be beneficial to
shareholders. Given these concerns, Glass Lewis typically does not believe that
shareholders would benefit from additional disclosure of individual
compensation packages beyond the
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Linking Pay with
Performance
Glass Lewis views performance-based compensation as an
effective means of motivating executives to act in the best interests of
shareholders. In our view, an executives compensation should be specific to
the company and its performance, as well as tied to the executives
achievements within the company.
However, when firms have inadequately linked executive
compensation and company performance we will consider recommending supporting
reasonable proposals seeking that a percentage of equity awards be tied to
performance criteria. We will also consider supporting appropriately crafted
proposals requesting that the compensation committee include multiple
performance metrics when setting executive compensation, provided that the
terms of the shareholder proposal are not overly prescriptive. Though boards
often argue that these types of restrictions unduly hinder their ability to
attract talent we believe boards can develop an effective, consistent and
reliable approach to remuneration utilizing a wide range (and an appropriate
mix) of fixed and performance-based compensation.
Retirement Benefits
& Severance
As a general rule, Glass Lewis believes that shareholders
should not be involved in the approval of individual severance plans. Such
matters should be left to the boards compensation committee, which can be held
accountable for its decisions through the election of its director members.
Following the passage of the Dodd-Frank Wall Street Reform
and Consumer Protection Act (Dodd-Frank), the SEC proposed rules that would
require that public companies
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Bonus Recoupments
(Clawbacks)
When examining proposals requesting that companies adopt
recoupment policies, Glass Lewis will first review any relevant policies
currently in place. When the board has already committed to a proper course,
and the current policy covers the major tenets of the proposal, we see no need
for further action. Further, in some instances, shareholder proposals may call
for board action that contravenes legal obligations under existing employment
agreements. In other cases proposals may excessively limit the boards ability
to exercise judgment and reasonable discretion, which may or may not be
warranted, depending on the specific situation of the company in question. We
believe it is reasonable that a mandatory recoupment policy should only affect
senior executives and those directly responsible for the companys accounting
errors.
We note that where a company is entering into a new
executive employment contract that does not include a clawback provision and
the company has had a material restatement in the recent past, Glass Lewis will
recommend voting against the responsible members of the compensation committee.
The compensation committee has an obligation to shareholders to include
reasonable controls in executive contracts to prevent payments in the case of
inappropriate behavior.
Golden Coffins
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To that end, we will consider supporting a reasonably
crafted shareholder proposal seeking to prohibit, or require shareholder
approval of, the making or promising of any survivor benefit payments to senior
executives estates or beneficiaries. We will not recommend supporting
proposals that would, upon passage, violate existing contractual obligations or
the terms of compensation plans currently in effect.
Retention of Shares
until Retirement
We strongly support the linking of executive pay to the
creation of long-term sustainable shareholder value and therefore believe
shareholders should encourage executives to retain some level of shares
acquired through equity compensation programs to provide continued alignment
with shareholders. However, generally we do not believe that requiring senior
executives to retain all or an unduly high percentage of shares acquired
through equity compensation programs following the termination of their
employment is the most effective or desirable way to accomplish this goal.
Rather, we believe that restricting executives ability to exercise all or a
supermajority of otherwise vested equity awards until they leave the company
may hinder the ability of the compensation committee to both attract and retain
executive talent. In our view, otherwise qualified and willing candidates could
be dissuaded from accepting employment if he/she believes that his/her
compensation could be dramatically affected by financial results unrelated to
their own personal performance or tenure at the company. Alternatively, an
overly strict policy could encourage existing employees to quit in order to
realize the value locked in their incentive awards. As such, we will not
typically recommend supporting proposals requiring the retention of significant
amounts of equity compensation following termination of employment at target
firms.
Tax Gross-Ups
Tax gross-ups can act as an anti-takeover measure, as larger
payouts to executives result in larger gross-ups, which could artificially
inflate the ultimate purchase price under a takeover or merger scenario.
Additionally, gross-ups can result in opaque compensation
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Given the above, we will typically recommend supporting
proposals requesting that a compensation committee adopt a policy that it will
not make or promise to make to its senior executives any tax gross-up payments,
except those applicable to management employees of the company generally, such
as a relocation or expatriate tax equalization policy.
Linking Executive
Pay to Environmental and Social Criteria
We recognize that a companys involvement in environmentally
sensitive and labor-intensive industries influences the degree to which a
firms overall strategy must weigh environmental and social concerns. However,
we also understand that the value generated by incentivizing executives to
prioritize environmental and social issues is difficult to quantify and
therefore measure, and necessarily varies among industries and companies.
When reviewing such proposals seeking to tie executive
compensation to environmental or social practices, we will review the target
firms compliance with (or contravention of) applicable laws and regulations,
and examine any history of environmental and social related concerns including
those resulting in material investigations, lawsuits, fines and settlements. We
will also review the firms current compensation policies and practice.
However, with respect to executive compensation, Glass Lewis generally believes
that such policies should be left to the compensation committee.
Governance
Declassification of
the Board
Glass Lewis believes that classified boards (or staggered
boards) do not serve the best interests of shareholders. Empirical studies
have shown that: (i) companies with classified boards may show a reduction in
firm value; (ii) in the context of hostile takeovers, classified boards operate
as a takeover defense, which entrenches management, discourages potential
acquirers and delivers less return to shareholders; and (iii) companies with
classified boards are less likely to receive takeover bids than those with
single class boards. Annual election of directors provides increased
accountability and requires directors to focus on the interests of
shareholders. When
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Given the above, Glass Lewis believes that classified boards
are not in the best interests of shareholders and will continue to recommend
shareholders support proposals seeking their repeal.
Right of
Shareholders to Call a Special Meeting
Glass Lewis strongly believes that shareholders should have
the ability to call meetings of shareholders between annual meetings to
consider matters that require prompt attention. However, in order to prevent
abuse and waste of corporate resources by a small minority of shareholders, we
believe that shareholders representing at least a sizable minority of shares
must support such a meeting prior to its calling. Should the threshold be set
too low, companies might frequently be subjected to meetings whose effect could
be the disruption of normal business operations in order to focus on the
interests of only a small minority of owners. Typically we believe this
threshold should not fall below 10-15% of shares, depending on company size.
In our case-by-case evaluations, we consider the following:
Company size
Shareholder base in both percentage
of ownership and type of shareholder (e.g., hedge fund, activist investor,
mutual fund, pension fund, etc.)
Responsiveness of board and
management to shareholders evidenced by progressive shareholder rights policies
(e.g., majority voting, declassifying boards, etc.) and reaction to
shareholder proposals
Company performance and steps taken
to improve bad performance (e.g., new executives/directors, spin-offs, etc.)
Existence of anti-takeover
protections or other entrenchment devices
Opportunities for shareholder action
(e.g., ability to act by written consent)
Existing ability for shareholders to
call a special meeting
Right of Shareholders to Act by Written Consent
Glass Lewis strongly supports shareholders right to act by
written consent. The right to act by written consent enables shareholders to
take action on important issues that arise between annual meetings. However, we
believe such rights should be limited to at least the minimum number of votes
that would be necessary to authorize the action at a meeting at which all
shareholders entitled to vote were present and voting.
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Company size
Shareholder base in both percentage
of ownership and type of shareholder (e.g., hedge fund, activist investor,
mutual fund, pension fund, etc.)
Responsiveness of board and
management to shareholders evidenced by progressive shareholder rights
policies (e.g., majority voting, declassifying boards, etc.) and reaction to
shareholder proposals
Company performance and steps taken
to improve bad performance (e.g., new executives/directors, spin offs, etc.)
Existence of anti-takeover
protections or other entrenchment devices
Opportunities for shareholder action
(e.g., ability and threshold to call a special meeting)
Existing ability for shareholders to
act by written consent
Board Composition
Glass Lewis believes the selection and screening process for
identifying suitably qualified candidates for a companys board of directors is
one which requires the judgment of many factors, including the balance of
skills and talents, the breadth of experience and diversity of candidates and
existing board members. Diversity of skills, abilities and points of view can
foster the development of a more creative, effective and dynamic board. In
general, however, we do not believe that it is in the best interests of
shareholders for firms to be beholden to arbitrary rules regarding its board,
or committee, composition. We believe such matters should be left to a boards
nominating committee, which is generally responsible for establishing and
implementing policies regarding the composition of the board. Members of this
committee may be held accountable through the director election process.
However, we will consider supporting reasonable, well-crafted proposals to
increase board diversity where there is evidence a boards lack of diversity
lead to a decline in shareholder value.
Reimbursement of
Solicitation Expenses
Where a dissident shareholder is seeking reimbursement for
expenses incurred in waging a contest or submitting a shareholder proposal and
has received the support of a majority of shareholders, Glass Lewis generally
will recommend in favor of reimbursing the dissident for reasonable expenses.
In those rare cases where a shareholder has put
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Majority Vote for
the Election of Directors
If a majority vote standard were implemented, shareholders
could collectively vote to reject a director they believe will not pursue their
best interests. We think that this minimal amount of protection for
shareholders is reasonable and will not upset the corporate structure nor
reduce the willingness of qualified shareholder-focused directors to serve in
the future.
We believe that a majority vote standard will likely lead to
more attentive directors. Further, occasional use of this power will likely
prevent the election of directors with a record of ignoring shareholder
interests. Glass Lewis will generally support shareholder proposals calling for
the election of directors by a majority vote, except for use in contested
director elections.
Cumulative Vote for
the Election of Directors
Glass Lewis believes that cumulative voting generally acts
as a safeguard for shareholders by ensuring that those who hold a significant
minority of shares can elect a candidate of their choosing to the board. This
allows the creation of boards that are responsive to the interests of all
shareholders rather than just a small group of large holders. However, when a
company has both majority voting and cumulative voting in place, there is a
higher likelihood of one or more directors not being elected as a result of not
receiving a majority vote. This is because shareholders exercising the right to
cumulate their votes could unintentionally cause the failed election of one or
more directors for whom shareholders do not cumulate votes.
Given the above, where a company (i) has adopted a true
majority vote standard; (ii) has simultaneously proposed a management-initiated
true majority vote standard; or (iii) is simultaneously the target of a true
majority vote standard shareholder proposal, Glass Lewis will recommend voting
against cumulative voting proposals due to the potential incompatibility of the
two election methods.
For companies that have not adopted a true majority voting
standard but have adopted some form of majority voting, Glass Lewis will also
generally recommend voting against
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Supermajority Vote
Requirements
We believe that a simple majority is appropriate to approve
all matters presented to shareholders, and will recommend that shareholders
vote accordingly. Glass Lewis believes that supermajority vote requirements
impede shareholder action on ballot items critical to shareholder interests. In
a takeover context supermajority vote requirements can strongly limit the voice
of shareholders in making decisions on crucial matters such as selling the
business. These limitations in turn may degrade share value and can reduce the
possibility of buyout premiums for shareholders. Moreover, we believe that a
supermajority vote requirement can enable a small group of shareholders to
overrule the will of the majority of shareholders.
Independent
Chairman
Glass Lewis views an independent chairman as better able to
oversee the executives and set a pro-shareholder agenda in the absence of the
conflicts that a CEO, executive insider, or close company affiliate may face.
Separating the roles of CEO and chairman may lead to a more proactive and
effective board of directors. The presence of an independent chairman fosters
the creation of a thoughtful and dynamic board, not dominated by the views of
senior management. We believe that the separation of these two key roles
eliminates the conflict of interest that inevitably occurs when a CEO, or other
executive, is responsible for self-oversight. As such, we will typically
support reasonably crafted shareholder proposals seeking the installation of an
independent chairman at a target company. However, we will not support
proposals that include overly prescriptive definitions of independent.
Proxy Access
Shareholders have consistently sought mechanisms through
which they could secure a meaningful voice in director elections in recent
years. While many of these efforts have centered on regulatory changes at the
SEC, the United States Congress and the Obama Administration have placed Proxy
Access in the spotlight of the U.S. Governments most recent corporate
governance-related financial reforms. Regulations allowing or mandating the
reimbursement of solicitation expenses for successful board candidates exist
and further regulation is pending. A 2009 amendment to the Delaware Corporate
Code allows companies to adopt bylaw provisions providing shareholders proxy
access.
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Glass Lewis will consider supporting well-crafted and
reasonable proposals requesting proxy access, as we believe that in some cases,
adoption of this provision allows for improved shareholder rights and ensures
that shareholders who maintain a long-term interest in the target company have
an ability to nominate candidates for the board. Glass Lewis reviews proposals
requesting proxy access on a case-by-case basis, and will consider the
following in our analysis:
Company size;
The shareholder proponent and their
reasoning for putting forth the proposal at the target company;
The percentage ownership requested
and holding period requirement;
Shareholder base in both percentage
of ownership and type of shareholder (e.g., hedge fund, activist investor,
mutual fund, pension fund, etc.);
Responsiveness of board and
management to shareholders evidenced by progressive shareholder rights
policies (e.g., majority voting, declassifying boards,
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etc.) and reaction to shareholder
proposals;
Company performance and steps taken
to improve bad performance (e.g., new executives/directors, spin-offs, etc.);
Existence of anti-takeover
protections or other entrenchment devices; and
Opportunities for shareholder action
(e.g., ability to act by written consent or right to call a special meeting).
Environment
When management and the board have displayed disregard for
environmental risks, have engaged in egregious or illegal conduct, or have
failed to adequately respond to current or imminent environmental risks that
threaten shareholder value, we believe shareholders should hold directors
accountable. When a substantial environmental risk has been ignored or
inadequately addressed, we may recommend voting against responsible members of
the governance committee, or members of a committee specifically charged with
sustainability oversight.
With respect to environmental risk, Glass Lewis believes
companies should actively consider their exposure to:
Direct environmental
risk
: Companies should
evaluate financial exposure to direct environmental risks associated with their
operations. Examples of direct environmental risks are those associated with
spills, contamination, hazardous leakages, explosions, or reduced water or air
quality, among others. Further, firms should consider their exposure to
environmental risks emanating from systemic change over which they may have
only limited control, such as insurance companies affected by increased storm
severity and frequency resulting from climate change.
Risk due to
legislation/regulation
: Companies
should evaluate their exposure to shifts or potential shifts in environmental
regulation that affect current and planned operations. Regulation should be
carefully monitored in all jurisdictions within which the company operates. We
look closely at relevant and proposed legislation and evaluate whether the
company has responded appropriately.
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If there is a clear showing that a company has inadequately
addressed these risks, Glass Lewis may consider supporting appropriately
crafted shareholder proposals requesting increased disclosure, board attention
or, in limited circumstances, specific actions. In general, however, we believe
that boards and management are in the best position to address these important
issues, and will only rarely recommend that shareholders supplant their
judgment regarding operations.
Climate Change and
Green House Gas Emission Disclosure
Glass Lewis will consider recommending a vote in favor of a
reasonably crafted proposal to disclose a companys climate change and/or
greenhouse gas emission strategies when (i) a company has suffered financial
impact from reputational damage, lawsuits and/or government investigations,
(ii) there is a strong link between climate change and its resultant regulation
and shareholder value at the firm, and/or (iii) the company has inadequately
disclosed how it has addressed climate change risks. Further, we will typically
recommend supporting proposals seeking disclosure of greenhouse gas emissions
at companies operating in carbon- or energy- intensive industries, such basic
materials, integrated oil and gas, iron and steel, transportation, utilities,
and construction. We are not inclined, however, to support proposals seeking
emissions reductions, or proposals seeking the implementation of prescriptive
policies relating to climate change.
Sustainability and
other Environmentally-Related Reports
When evaluating requests that a firm produce an
environmentally-related report, such as a sustainability report or a report on
coal combustion waste or hydraulic fracturing, we will consider, among other
things:
The financial risk to the company
from the firms environmental practices and/or regulation;
The relevant companys current level
of disclosure;
The level of sustainability
information disclosed by the firms peers;
The industry in which the firm
operates;
The level and type of sustainability
concerns/controversies at the relevant firm,
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if any;
The time frame within which the
relevant report is to be produced; and
The level of flexibility granted to
the board in the implementation of the proposal.
In general, we believe that firms operating in extractive
industries should produce reports regarding the risks presented by their
environmental activities, and will consider recommending a vote for reasonably
crafted proposals requesting that such a report be produced; however, as with
all shareholder proposals, we will evaluate these report requests on a case by
case basis.
Oil Sands
The procedure required to extract usable crude from oil
sands emits significantly more greenhouse gases than do conventional extraction
methods. In addition, development of the oil sands has a deleterious effect on
the local environment, such as Canadas boreal forests which sequester
significant levels of carbon. We believe firms should strongly consider and
evaluate exposure to financial, legal and reputational risks associated with
investment in oil sands.
We believe firms should adequately disclose their involvement
in the oil sands, including a discussion of exposure to sensitive political and
environmental areas. Firms should broadly outline the scope of oil sands
operations, describe the commercial methods for producing oil, and discuss the
management of greenhouse gas emissions. However, we believe that detailed
disclosure of investment assumptions could unintentionally reveal sensitive
information regarding operations and business strategy, which would not serve
shareholders interest. We will review all proposals seeking increased
disclosure of oil sands operations in the above context, but will typically not
support proposals seeking cessation or curtailment of operations.
Sustainable
Forestry
Sustainable forestry provides for the long-term sustainable
management and use of trees and other non-timber forest products. Retaining the
economic viability of forests is one of the tenets of sustainable forestry,
along with encouraging more responsible corporate use of forests. Sustainable
land use and the effective management of land are viewed by some shareholders
as important in light of the impact of climate change. Forestry certification
has emerged as a way that corporations can address prudent forest management.
There are currently several primary certification schemes such as the
Sustainable Forestry Initiative (SFI) and the Forest Stewardship Council
(FSC).
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There are nine main principles that comprise the SFI: (i)
sustainable forestry; (ii) responsible practices; (iii) reforestation and
productive capacity; (iv) forest health and productivity; (v) long-term forest
and soil productivity; (vi) protection of water resources; (vii) protection of
special sites and biodiversity; (viii) legal compliance; and (ix) continual
improvement.
The FSC adheres to ten basic principles: (i) compliance with
laws and FSC principles; (ii) tenure and use rights and responsibilities; (iii)
indigenous peoples rights; (iv) community relations and workers rights; (v)
benefits from the forest; (vi) environmental impact; (vii) management plan;
(viii) monitoring and assessment; (ix) maintenance of high conservation value
forests; and (x) plantations.
Shareholder proposals regarding sustainable forestry have
typically requested that the firm comply with the above SFI or FSC principles
as well as to assess the feasibility of phasing out the use of uncertified
fiber and increasing the use of certified fiber. We will evaluate target firms
current mix of certified and uncertified paper and the firms general approach
to sustainable forestry practices, both absolutely and relative to its peers
but will only support proposals of this nature when we believe that the
proponent has clearly demonstrated that the implementation of this proposal is
clearly linked to an increase in shareholder value.
Social Issues
Non-Discrimination
Policies
MacBride Principles
To promote peace, justice and equality regarding employment
in Northern Ireland, Dr. Sean MacBride, founder of Amnesty International and
Nobel Peace laureate, proposed the following equal opportunity employment
principles:
1.
Increasing the representation of
individuals from underrepresented religious
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groups in the workforce including
managerial, supervisory, administrative, clerical and technical jobs;
2.
Adequate security for the protection
of minority employees both at the workplace and while traveling to and from
work;
3.
The banning of provocative religious
or political emblems from the workplace;
4.
All job openings should be publicly
advertised and special recruitment efforts should be made to attract
applicants from underrepresented religious groups;
5.
Layoff, recall, and termination
procedures should not, in practice, favor particular religious groupings;
6.
The abolition of job reservations,
apprenticeship restrictions, and differential employment criteria, which
discriminate on the basis of religion or ethnic origin;
7.
The development of training programs
that will prepare substantial numbers of current minority employees for
skilled jobs, including the expansion of existing programs and the creation
of new programs to train, upgrade, and improve the skills of minority
employees;
8.
The establishment of procedures to
assess, identify and actively recruit minority employees with potential for
further advancement; and
9.
The appointment of senior management
staff member to oversee the companys affirmative action efforts and setting
up of timetables to carry out affirmative action principles.
Proposals requesting the implementation of the above
principles are typically proposed at firms that operate, or maintain
subsidiaries that operate, in Northern Ireland. In each case, we will examine
the companys current equal employment opportunity policy and the extent to
which the company has been subject to protests, fines, or litigation regarding
discrimination in the workplace, if any. Further, we will examine any evidence
of the firms specific record of labor concerns in Northern Ireland.
Human Rights
Glass Lewis believes explicit policies set out by companies
boards of directors on human rights provides shareholders with the means to
evaluate whether the company has taken steps to mitigate risks from its human
rights practices. As such, we believe that it is prudent for firms to actively
evaluate risks to shareholder value stemming from global activities and human
rights practices along entire supply chains. Findings and investigations of
human rights abuses can inflict, at a minimum, reputational damage on targeted
companies and have the potential to dramatically reduce shareholder value. This
is particularly true for companies operating in emerging market countries in
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extractive industries and in politically unstable regions.
As such, while we typically rely on the expertise of the board on these
important policy issues, we recognize that, in some instances, shareholders
could benefit from increased reporting or further codification of human rights
policies.
Military and US
Government Business Policies
Foreign Government
Business Policies
Health Care Reform
Principles
Health care coverage should be
universal;
Health care coverage should be
continuous;
Health care coverage should be
affordable to individuals and families;
The health insurance strategy should
be affordable and sustainable for society; and
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Health insurance should enhance
health and well-being by promoting access to high-quality care that is
effective, efficient, safe, timely, patient-centered and equitable.
In general, Glass Lewis believes that individual corporate
board rooms are not the appropriate forum in which to address evolving and
contentious national policy issues. The adoption of a narrow set of principles
could limit the boards ability to comply with new regulation or to
appropriately and flexibly respond to health care issues as they arise. As
such, barring a compelling reason to the contrary, we typically do not support
the implementation of national health care reform principles at the company
level.
Tobacco
Reporting
Contributions and Political Spending
Further, in 2010 the Citizens United v. Federal Election
Commission decision by the Supreme Court affirmed that corporations are
entitled to the same free speech laws as individuals and that it is legal for a
corporation to donate to political causes without monetary limit. While the
decision did not remove bans on direct contributions to candidates, companies
are now able to contribute indirectly, and substantially, to candidates through
political organizations. Therefore, it appears companies will enjoy greater
latitude in their political actions by this recent decision.
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Is the Companys disclosure
comprehensive and readily accessible?
How does the Companys political
expenditure policy and disclosure compare to its peers?
What is the Companys current level
of oversight?
Glass Lewis will consider supporting a proposal seeking
increased disclosure of corporate political expenditure and contributions if
the firms current disclosure is insufficient, or if the firms disclosure is
significantly lacking compared to its peers. Further, we will typically
recommend voting for proposals requesting reports on lobbying or political
contributions and expenditures when there is no explicit board oversight or
there is evidence of inadequate board oversight. Given that political donations
are strategic decisions intended to increase shareholder value and have the
potential to negatively affect the company, we believe the board should either
implement processes and procedures to ensure the proper use of the funds or
closely evaluate the process and procedures used by management. We will also
consider supporting such proposals when there is verification, or credible
allegations, that the company is mismanaging corporate funds through political
donations. If Glass Lewis discovers particularly egregious actions by the
company, we will consider recommending voting against the governance committee
members or other responsible directors.
Animal Welfare
Internet Censorship
Legal and ethical questions regarding the use and management
of the Internet and the worldwide web have been present since access was first
made available to the public almost twenty years ago. Prominent among these
debates are the issues of privacy,
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I
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Board of Directors
Boards are put in place to represent shareholders and protect their
interests. Glass Lewis seeks boards with a proven record of protecting shareholders
and delivering value over the medium- and long-term. In our view, boards
working to protect and enhance the best interests of shareholders typically
include some independent directors (the percentage will vary by local market
practice and regulations), boast a record of positive performance, have
directors with diverse backgrounds, and appoint directors with a breadth and
depth of experience.
Board Composition
When companies disclose sufficient relevant information, we look at
each individual on the board and examine his or her relationships with the
company, the companys executives and with other board members. The purpose of
this inquiry is to determine whether pre-existing personal, familial or
financial relationships are likely to impact the decisions of that board
member. Where the company does not disclose the names and backgrounds of
director nominees with sufficient time in advance of the shareholder meeting to
evaluate their independence and performance, we will consider recommending abstaining
on the directors election.
We vote in favor of governance structures that will drive positive
performance and enhance shareholder value. The most crucial test of a boards
commitment to the company and to its shareholders is the performance of the
board and its members. The performance of directors in their capacity as board
members and as executives of the company, when applicable, and in their roles
at other companies where they serve is critical to this evaluation.
We believe a director is independent if he or she has no material
financial, familial or other current relationships with the company, its
executives or other board members except for service on the board and standard
fees paid for that service. Relationships that have existed within the
three-five years prior to the inquiry are usually considered to be current
for purposes of this test.
In our view, a director is affiliated if he or she has a material
financial, familial or other relationship with the company or its executives,
but is not an employee of the company. This includes directors whose employers
have a material financial relationship with the Company. This also includes a
director who owns or controls 10-20% or more of the companys voting stock.
We define an inside director as one who simultaneously serves as a
director and as an employee of the company. This category may include a
chairman of the board who acts as an employee of the company or is paid as an
employee of the company.
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A director who
attends less than 75% of the board and applicable committee meetings.
A director who
is also the CEO of a company where a serious restatement has occurred after
the CEO certified the pre-restatement financial statements.
We also feel that the following conflicts of interest may hinder a
directors performance and will therefore recommend voting against a:
CFO who
presently sits on the board.
Director who
presently sits on an excessive number of boards.
Director, or a
director whose immediate family member, provides material professional
services to the company at any time during the past five years.
Director, or a
director whose immediate family member, engages in airplane, real estate or
other similar deals, including perquisite type grants from the company.
Director with an
interlocking directorship.
Slate Elections
In some countries, companies elect their board members as a slate,
whereby shareholders are unable to vote on the election of each individual
director, but rather are limited to voting for or against the board as a whole.
If significant issues exist concerning one or more of the nominees or in markets
where directors are generally elected individually, we will recommend voting
against the entire slate of directors.
Board Committee Composition
We believe that independent directors should serve on a companys
audit, compensation, nominating and governance committees. We will support
boards with such a structure and encourage change where this is not the case.
Review of Risk Management
Controls
We believe companies, particularly financial firms, should have a
dedicated risk committee, or a committee of the board charged with risk
oversight, as well as a chief risk officer who reports directly to that
committee, not to the CEO or another executive. In cases where a company has
disclosed a sizable loss or writedown, and where a reasonable analysis indicates
that the companys board-level risk committee should be held accountable for
poor oversight, we would recommend that shareholders vote against such
committee members on that basis. In addition, in cases where a company
maintains a significant level of financial risk exposure but fails to disclose
any explicit form of board-level risk oversight (committee or otherwise), we
will consider recommending to vote against the chairman of the board on that
basis.
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II. FINANCIAL REPORTING
Accounts and Reports
Many countries require companies to submit the annual financial
statements, director reports and independent auditors reports to shareholders
at a general meeting. Shareholder approval of such a proposal does not
discharge the board or management. We will usually recommend voting in favor of
these proposals except when there are concerns about the integrity of the
statements/reports. However, should the audited financial statements, auditors
report and/or annual report not be published at the writing of our report, we
will recommend that shareholders abstain from voting on this proposal.
Income Allocation (Distribution of Dividend)
In many countries, companies must submit the allocation of income for
shareholder approval. We will generally recommend voting for such a proposal.
However, we will give particular scrutiny to cases where the companys dividend
payout ratio is exceptionally low or excessively high relative to its peers and
the company has not provided a satisfactory explanation.
Appointment of Auditors and Authority to Set
Fees
We believe that role of the auditor is crucial in protecting
shareholder value. Like directors, auditors should be free from conflicts of
interest and should assiduously avoid situations that require them to make
choices between their own interests and the interests of the shareholders.
We generally support managements recommendation regarding the
selection of an auditor and support granting the board the authority to fix
auditor fees except in cases where we believe the independence of an incumbent
auditor or the integrity of the audit has been compromised.
However, we recommend voting against ratification of the auditor and/or
authorizing the board to set auditor fees for the following reasons:
When audit fees
added to audit-related fees total less than one-half of total fees.
When there have
been any recent restatements or late filings by the company where the auditor
bears some responsibility for the restatement or late filing (e.g., a
restatement due to a reporting error).
When the company
has aggressive accounting policies.
When the company
has poor disclosure or lack of transparency in financial statements.
When there are
other relationships or issues of concern with the auditor that might suggest
a conflict between the interest of the auditor and the interests of
shareholders.
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When the company
is changing auditors as a result of a disagreement between the company and
the auditor on a matter of accounting principles or practices, financial
statement disclosure or auditing scope or procedures.
III. COMPENSATION
Compensation Report/Compensation Policy
We closely review companies
remuneration practices and disclosure as outlined in company filings to
evaluate management-submitted advisory compensation report and policy vote
proposals. In evaluating these proposals, which can be binding or non-binding
depending on the country, we examine how well the company has disclosed
information pertinent to its compensation programs, the extent to which overall
compensation is tied to performance, the performance metrics selected by the
company and the levels of remuneration in comparison to company performance and
that of its peers.
We will usually recommend voting against approval of the compensation
report or policy when the following occur:
Gross disconnect
between pay and performance;
Performance goals
and metrics are inappropriate or insufficiently challenging;
Lack of disclosure
regarding performance metrics and goals as well as the extent to which the
performance metrics, targets and goals are implemented to enhance company
performance and encourage prudent risk-taking;
Excessive
discretion afforded to or exercised by management or the compensation
committee to deviate from defined performance metrics and goals in making
awards;
Ex gratia or other
non-contractual payments have been made and the reasons for making the
payments have not been fully explained or the explanation is unconvincing;
Guaranteed bonuses
are established;
There is no
clawback policy; or
Egregious or
excessive bonuses, equity awards or severance payments.
Long Term Incentive Plans
Glass Lewis recognizes the value of
equity-based incentive programs. When used appropriately, they can provide a
vehicle for linking an employees pay to a companys performance, thereby
aligning their interests with those of shareholders. Tying a portion of an
employees compensation to the performance of the Company provides an incentive
to maximize share value. In addition, equity-based compensation is an effective
way to attract, retain and motivate key employees.
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Performance-Based
Equity Compensation
Glass Lewis
believes in performance-based equity compensation plans for senior
executives. We feel that executives should be compensated with equity when
their performance and that of the company warrants such rewards. While we do
not believe that equity-based compensation plans for all employees need to be
based on overall company performance, we do support such limitations for
grants to senior executives (although even some equity-based compensation of
senior executives without performance criteria is acceptable, such as in the
case of moderate incentive grants made in an initial offer of employment).
Boards often argue
that such a proposal would hinder them in attracting talent. We believe that
boards can develop a consistent, reliable approach, as boards of many companies
have, that would still attract executives who believe in their ability to
guide the company to achieve its targets. We generally recommend that
shareholders vote in favor of performance-based option requirements.
There should be no
retesting of performance conditions for all share- and option- based
incentive schemes. We will generally recommend that shareholders vote against
performance-based equity compensation plans that allow for re-testing.
Director Compensation
Glass Lewis believes that non-employee directors should receive
appropriate types and levels of compensation for the time and effort they spend
serving on the board and its committees. Director fees should be reasonable in
order to retain and attract qualified individuals. In particular, we support
compensation plans that include non performance-based equity awards, which help
to align the interests of outside directors with those of shareholders.
Glass Lewis compares the costs of these plans to the plans of peer
companies with similar market capitalizations in the same country to help
inform its judgment on this issue.
Retirement
Benefits for Directors
We will typically
recommend voting against proposals to grant retirement benefits to
non-executive directors. Such extended payments can impair the objectivity
and independence of these board members. Directors should receive adequate
compensation for their board service through initial and annual fees.
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However, Glass Lewis favors performance-based compensation as an
effective means of motivating executives to act in the best interests of
shareholders. Performance-based compensation may be limited if a chief
executives pay is capped at a low level rather than flexibly tied to the
performance of the company.
IV. GOVERNANCE STRUCTURE
Amendments to the Articles of Association
We will evaluate proposed amendments to a companys articles of
association on a case-by-case basis. We are opposed to the practice of bundling
several amendments under a single proposal because it prevents shareholders
from evaluating each amendment on its own merits. In such cases, we will
analyze each change individually and will recommend voting for the proposal
only when we believe that the amendments on balance are in the best interests
of shareholders.
Anti-Takeover Measures
Poison Pills (Shareholder Rights Plans)
Glass Lewis believes that poison pill plans generally are not in the
best interests of shareholders. Specifically, they can reduce management
accountability by substantially limiting opportunities for corporate takeovers.
Rights plans can thus prevent shareholders from receiving a buy-out premium for
their stock.
We believe that boards should be given wide latitude in directing the
activities of the company and charting the companys course. However, on an
issue such as this where the link between the financial interests of
shareholders and their right to consider and accept buyout offers is so
substantial, we believe that shareholders should be allowed to vote on whether
or not they support such a plans implementation.
In certain limited circumstances, we will support a limited poison pill
to accomplish a particular objective, such as the closing of an important
merger, or a pill that contains what we believe to be a reasonable qualifying
offer clause.
Supermajority Vote Requirements
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Increase in Authorized Shares
Glass Lewis believes that having adequate capital stock available for
issuance is important to the operation of a company. We will generally support
proposals when a company could reasonably use the requested shares for
financing, stock splits and stock dividends. While we think that having
adequate shares to allow management to make quick decisions and effectively
operate the business is critical, we prefer that, for significant transactions,
management come to shareholders to justify their use of additional shares
rather than providing a blank check in the form of large pools of unallocated
shares available for any purpose.
In general, we will support proposals to increase authorized shares up
to 100% of the number of shares currently authorized unless, after the increase
the company would be left with less than 30% of its authorized shares
outstanding.
Issuance of Shares
Issuing additional shares can dilute existing holders in some
circumstances. Further, the availability of additional shares, where the board
has discretion to implement a poison pill, can often serve as a deterrent to
interested suitors. Accordingly, where we find that the company has not
disclosed a detailed plan for use of the proposed shares, or where the number
of shares requested are excessive, we typically recommend against the issuance.
In the case of a private placement, we will also consider whether the company
is offering a discount to its share price.
In general, we will support proposals to issue shares (with pre-emption
rights) when the requested increase is the lesser of (i) the unissued ordinary
share capital; or (ii) a sum equal to one-third of the issued ordinary share
capital. This authority should not exceed five years. In some countries, if the
proposal contains a figure greater than one-third, the company should explain
the nature of the additional amounts.
We will also generally support proposals to suspend pre-emption rights
for a maximum of 5-20% of the issued ordinary share capital of the company,
depending on the country in which the company is located. This authority should
not exceed five years, or less for some countries.
Repurchase of Shares
We will recommend voting in favor of a proposal to repurchase shares
when the plan includes the following provisions: (i) a maximum number of shares
which may be purchased (typically not more than 15% of the issued share
capital); and (ii) a maximum price which may be paid for each share (as a percentage
of the market price).
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STANDARD & POORS ISSUE CREDIT RATING DEFINITIONS
A Standard & Poors issue credit rating is a current opinion of the
creditworthiness of an obligor with respect to a specific financial obligation,
a specific class of financial obligations, or a specific financial program
(including ratings on medium-term note programs and commercial paper programs).
It takes into consideration the creditworthiness of guarantors, insurers, or
other forms of credit enhancement on the obligation and takes into account the
currency in which the obligation is denominated. The opinion evaluates the
obligors capacity and willingness to meet its financial commitments as they
come due, and may assess terms, such as collateral security and subordination,
which could affect ultimate payment in the event of default. The issue credit
rating is not a recommendation to purchase, sell, or hold a financial
obligation, inasmuch as it does not comment as to market price or suitability
for a particular investor.
Issue credit ratings are based on current information furnished by the
obligors or obtained by Standard & Poors from other sources it considers
reliable. Standard & Poors does not perform an audit in connection with
any credit rating and may, on occasion, rely on unaudited financial
information. Credit ratings may be changed, suspended, or withdrawn as a result
of changes in, or unavailability of, such information, or based on other
circumstances.
Issue credit ratings can be either long term or short term. Short-term
ratings are generally assigned to those obligations considered short-term in
the relevant market. In the U.S., for example, that means obligations with an
original maturity of no more than 365 daysincluding commercial paper.
Short-term ratings are also used to indicate the creditworthiness of an obligor
with respect to put features on long-term obligations. The result is a dual
rating, in which the short-term rating addresses the put feature, in addition
to the usual long-term rating. Medium-term notes are assigned long-term
ratings.
Long-Term Issue Credit Ratings
Issue credit ratings are based, in varying degrees, on the following
considerations:
Likelihood of
paymentcapacity and willingness of the obligor to meet its financial
commitment on an obligation in accordance with the terms of the obligation;
Nature of and
provisions of the obligation;
Protection
afforded by, and relative position of, the obligation in the event of
bankruptcy, reorganization, or other arrangement under the laws of bankruptcy
and other laws affecting creditors rights.
Issue ratings are an assessment of default risk, but may incorporate an
assessment of relative seniority or ultimate recovery in the event of default.
Junior obligations are typically rated lower than senior obligations, to
reflect the lower priority in bankruptcy, as noted above. (Such differentiation
may apply when an entity has both senior and subordinated obligations, secured
and unsecured obligations, or operating company and holding company
obligations.)
AAA
An obligation rated AAA has the highest rating assigned by Standard
& Poors. The obligors capacity to meet its financial commitment on the
obligation is extremely strong.
AA
An obligation rated AA differs from the highest-rated obligations
only to a small degree. The obligors capacity to meet its financial commitment
on the obligation is very strong.
A
An obligation rated A is somewhat more susceptible to the adverse
effects of changes in circumstances and economic conditions than obligations in
higher-rated categories. However, the obligors capacity to meet its financial
commitment on the obligation is still strong.
BBB
An obligation rated BBB exhibits adequate protection parameters.
However, adverse economic conditions or changing circumstances are more likely
to lead to a weakened capacity of the obligor to meet its financial commitment
on the obligation.
B-1
BB, B, CCC, CC, and C
Obligations rated BB, B, CCC, CC, and C are regarded as
having significant speculative characteristics. BB indicates the least degree
of speculation and C the highest. While such obligations will likely have
some quality and protective characteristics, these may be outweighed by large
uncertainties or major exposures to adverse conditions.
BB
An obligation rated BB is less vulnerable to nonpayment than other
speculative issues. However, it faces major ongoing uncertainties or exposure
to adverse business, financial, or economic conditions which could lead to the
obligors inadequate capacity to meet its financial commitment on the obligation.
B
An obligation rated B is more vulnerable to nonpayment than
obligations rated BB, but the obligor currently has the capacity to meet its
financial commitment on the obligation. Adverse business, financial, or
economic conditions will likely impair the obligors capacity or willingness to
meet its financial commitment on the obligation.
CCC
An obligation rated CCC is currently vulnerable to nonpayment, and is
dependent upon favorable business, financial, and economic conditions for the
obligor to meet its financial commitment on the obligation. In the event of
adverse business, financial, or economic conditions, the obligor is not likely
to have the capacity to meet its financial commitment on the obligation.
CC
An obligation rated CC is currently highly vulnerable to nonpayment.
C
A C rating is assigned to obligations that are currently highly
vulnerable to nonpayment, obligations that have payment arrearages allowed by
the terms of the documents, or obligations of an issuer that is the subject of
a bankruptcy petition or similar action which have not experienced a payment
default. Among others, the C rating may be assigned to subordinated debt,
preferred stock or other obligations on which cash payments have been suspended
in accordance with the instruments terms or when preferred stock is the
subject of a distressed exchange offer, whereby some or all of the issue is
either repurchased for an amount of cash or replaced by other instruments
having a total value that is less than par.
D
An obligation rated D is in payment default. The D rating category
is used when payments on an obligation are not made on the date due even if the
applicable grace period has not expired, unless Standard & Poors believes
that such payments will be made during such grace period. The D rating also
will be used upon the filing of a bankruptcy petition or the taking of similar
action if payments on an obligation are jeopardized. An obligations rating is
lowered to D upon completion of a distressed exchange offer, whereby some or
all of the issue is either repurchased for an amount of cash or replaced by
other instruments having a total value that is less than par.
Plus (+) or minus (-)
The ratings from AA to CCC may be modified by the addition of a
plus (+) or minus (-) sign to show relative standing within the major rating
categories.
NR
This indicates that no rating has been requested, that there is
insufficient information on which to base a rating, or that Standard &
Poors does not rate a particular obligation as a matter of policy.
B-2
SHORT-TERM ISSUE CREDIT RATINGS
A-1
A short-term obligation rated A-1 is rated in the highest category by
Standard & Poors. The obligors capacity to meet its financial commitment
on the obligation is strong. Within this category, certain obligations are
designated with a plus sign (+). This indicates that the obligors capacity to
meet its financial commitment on these obligations is extremely strong.
A-2
A short-term obligation rated A-2 is somewhat more susceptible to the
adverse effects of changes in circumstances and economic conditions than
obligations in higher rating categories. However, the obligors capacity to
meet its financial commitment on the obligation is satisfactory.
A-3
A short-term obligation rated A-3 exhibits adequate protection
parameters. However, adverse economic conditions or changing circumstances are
more likely to lead to a weakened capacity of the obligor to meet its financial
commitment on the obligation.
B
A short-term obligation rated B is regarded as having significant
speculative characteristics. Ratings of B-1, B-2, and B-3 may be assigned
to indicate finer distinctions within the B category. The obligor currently
has the capacity to meet its financial commitment on the obligation; however,
it faces major ongoing uncertainties which could lead to the obligors
inadequate capacity to meet its financial commitment on the obligation.
B-1. A short-term obligation rated B-1 is regarded as having
significant speculative characteristics, but the obligor has a relatively
stronger capacity to meet its financial commitments over the short-term
compared to other speculative-grade obligors.
B-2. A short-term obligation rated B-2 is regarded as having
significant speculative characteristics, and the obligor has an average
speculative-grade capacity to meet its financial commitments over the
short-term compared to other speculative-grade obligors.
B-3. A short-term obligation rated B-3 is regarded as having
significant speculative characteristics, and the obligor has a relatively
weaker capacity to meet its financial commitments over the short-term compared
to other speculative-grade obligors.
C
A short-term obligation rated C is currently vulnerable to nonpayment
and is dependent upon favorable business, financial, and economic conditions
for the obligor to meet its financial commitment on the obligation.
D
A short-term obligation rated D is in payment default. The D rating
category is used when payments on an obligation are not made on the date due
even if the applicable grace period has not expired, unless Standard &
Poors believes that such payments will be made during such grace period. The
D rating also will be used upon the filing of a bankruptcy petition or the
taking of a similar action if payments on an obligation are jeopardized.
DUAL RATINGS
Standard & Poors assigns dual ratings to all debt issues that
have a put option or demand feature as part of their structure. The first
rating addresses the likelihood of repayment of principal and interest as due,
and the second rating addresses only the demand feature. The long-term rating
symbols are used for bonds to denote the long-term maturity and the short-term
rating symbols for the put option (for example, AAA/A-1+). With U.S.
municipal short-term demand debt, note rating symbols are used with the
short-term issue credit rating symbols (for example, SP-1+/A-1+).
B-3
MOODYS CREDIT RATING DEFINITIONS
Aaa
Bonds and preferred stock which are rated Aaa are judged to be of the
highest quality, with minimal credit risk.
Aa
Bonds and preferred stock which are rated Aa are judged to be of high
quality and are subject to very low credit risk.
A
Bonds and preferred stock which are rated A are considered upper-medium
grade and are subject to low credit risk.
Baa
Bonds and preferred stock which are rated Baa are subject to moderate
credit risk. They are considered medium-grade and as such may possess certain
speculative characteristics.
Ba
Bonds and preferred stock which are rated Ba are judged to have
speculative elements and are subject to substantial credit risk.
B
Bonds and preferred stock which are rated B are considered speculative
and are subject to high credit risk.
Caa
Bonds and preferred stock which are rated Caa are of poor standing and
are subject to very high credit risk.
Ca
Bonds and preferred stock which are rated Ca are highly speculative and
are likely in, or very near, default, with some prospect of recovery of
principal and interest.
C
Bonds and preferred stock which are rated C are the lowest rated class
of bonds/preferred stock and are typically in default, with little prospect for
recovery of principal or interest.
B-4
VAN ECK FUNDS
DST Systems, Inc.
P.O. Box 218407
Kansas City, Missouri 64121-8407
vaneck.com
CLASS A : GBFAX / CLASS C: EMRCX / CLASS I: EMRIX / CLASS Y: EMRYX
CLASS A : GHAAX / CLASS C: GHACX / CLASS I: GHAIX / CLASS Y: GHAYX
This
statement of additional information (SAI) is not a prospectus. It should be
read in conjunction with the prospectus dated May 1, 2012 (the Prospectus)
for Van Eck Funds (the Trust), relating to Emerging Markets Fund, Global Hard
Assets Fund, and International Investors Gold Fund (each a Fund and,
together, the Funds), as it may be revised from time to time. The audited
financial statements of the Funds for the fiscal year ended December 31, 2011,
are hereby incorporated by reference from the Funds Annual Report to
shareholders. A copy of the Prospectus and Annual and Semi-Annual Reports for
the Trust, relating to the Funds, may be obtained without charge by visiting
the Van Eck website at vaneck.com, by calling toll-free 1.800.826.1115 or by writing
to the Trust or Van Eck Securities Corporation, the Funds distributor (the
Distributor). The Trusts and the Distributors 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.
The Trust
currently consists of six separate series: each Fund and Multi-Manager
Alternatives Fund, all of which offer Class A, Class C, Class I and Class Y
shares; and CM Commodity Index Fund and Long/Flat Commodity Index Fund, both of
which offer Class A, Class I and Class Y shares (except that the Long/Flat
Commodity Index Fund has not commenced operations as of the date of this SAI).
The Funds
are classified as non-diversified funds under the Investment Company Act of
1940, as amended (the 1940 Act). Van Eck Associates Corporation (the
Adviser) serves as investment adviser to all the funds in the Trust.
Borrowing
to invest more is called leverage. A Fund may borrow from banks provided that
the amount of borrowing is no more than one third of the net assets of the Fund
plus the amount of the borrowings. A Fund is required to be able to restore
borrowing to its permitted level within three days, if it should increase to
more than one-third as stated above. Methods that may be used to restore
borrowings in this context include selling securities, even if the sale hurts a
Funds investment performance. Leverage exaggerates the effect of rises or
falls in prices of securities bought with borrowed money. Borrowing also costs
money, including fees and interest. The Funds expect to borrow only through
negotiated loan agreements with commercial banks or other institutional
lenders.
The Funds
may invest in debt securities. The market value of debt securities generally
varies in response to changes in interest rates and the financial condition of
each issuer and the value of a hard asset if linked to the value of a hard
asset. Debt securities with similar maturities may have different yields,
depending upon several factors, including the relative financial condition of
the issuers. A description of debt securities ratings is contained in Appendix
B to the SAI. High grade means a rating of A or better by Moodys or S&P,
or of comparable quality in the judgment of the Adviser or if no rating has
been given by either service. Many securities of foreign issuers are not rated
by these services. Therefore, the selection of such issuers depends to a large
extent on the credit analysis performed by the Adviser. During periods of
declining interest rates, the value of debt securities generally increases.
Conversely, during periods of rising interest rates, the value of such
securities generally declines. These changes in market value will be reflected
in a Funds net asset value. Debt securities with similar maturities may have
different yields, depending upon several factors, including the relative
financial condition of the issuers. For example, higher yields are generally
available from securities in the lower rating categories of S&P or Moodys.
However, the values of lower-rated securities generally fluctuate more than
those of high-grade securities. Many securities of foreign issuers are not
rated by these services. Therefore the selection of such issuers depends to a
large extent on the credit analysis performed by the Adviser.
Certain
Risks of Investing in Europe.
The recent global economic crisis brought several
small economies in Europe to the brink of bankruptcy and many other economies
into recession and weakened the banking and financial sectors of many European
countries. For example, the governments of Greece, Spain, Portugal, and the
Republic of Ireland have all recently experienced large public budget deficits,
the effects of which are still yet unknown and may slow the overall recovery of
the European economies from the recent global economic crisis. In addition, due
to large public deficits, some European countries may be dependent on assistance
from other European governments and institutions or multilateral agencies and
offices. Assistance may be dependent on a countrys implementation of reforms
or reaching a certain level of performance. Failure to reach those objectives
or an insufficient level of assistance could result in a deep economic downturn
which could significantly affect the value of a Funds European investments.
The
securities markets in emerging markets are substantially smaller, less liquid
and more volatile than the major securities markets in the United States. A
high proportion of the shares of many issuers may be held by a limited number
of persons and financial institutions, which may limit the number of shares
available for investment by the portfolio. Similarly, volume and liquidity in
the bond markets in Asia, Eastern and Central Europe and other emerging markets
are less than in the United States and, at times, price volatility can be
greater than in the United States. A limited number of issuers in Asian and
emerging market securities markets may represent a disproportionately large
percentage of market capitalization and trading value. The limited liquidity of
securities markets in these regions may also affect a Funds ability to acquire
or dispose of securities at the price and time it wishes to do so. Accordingly,
during periods of rising securities prices in the more illiquid regions securities
markets, the Funds ability to participate fully in such price increases may be
limited by its investment policy of investing not more than 15% of its net
assets in illiquid securities. Conversely, the inability of a Fund to dispose
fully and promptly of positions in declining markets will cause the Funds net
asset values to decline as the values of the unsold positions are marked to
lower prices. In addition, these securities markets are susceptible to being
influenced by large investors trading significant blocks of securities. Also,
stockbrokers and other intermediaries in emerging markets may not perform in
the way their counterparts in the United States and other more developed
securities markets do. The prices at which a Fund may acquire investments may
be affected by trading by persons with material non-public information and by
securities transactions by brokers in anticipation of transactions by the Fund
in particular securities.
Certain
Risks of Investing in Russia
. Settlement, clearing and registration of securities
in Russia is in an underdeveloped state. Ownership of shares (except those held
through depositories that meet the requirements of the Act) is defined
according to entries in the issuers share register and normally evidenced by
extracts from that register, which have no legal enforceability. Furthermore,
share registration is carried out either by the issuer or registrars located
throughout Russia, which are not necessarily subject to effective government
supervision. To reasonably ensure that its ownership interest continues to be
appropriately recorded, a Fund will invest only in those Russian companies
whose registrars have entered into a contract with the Funds Russian
sub-custodian, which gives the sub-custodian the right, among others, to
inspect the share register and to obtain extracts of share registers through
regular audits. While these procedures reduce the risk of loss, there can be no
assurance that they will be effective. This limitation may prevent a Fund from
investing in the securities of certain Russian issuers otherwise deemed
suitable by the Adviser.
Changes in
currency exchange rates may affect the Funds net asset value and performance.
There can be no assurance that the Adviser will be able to anticipate currency
fluctuations in exchange rates accurately. The Funds may invest in a variety of
derivatives and enter into hedging transactions to attempt to moderate the
effect of currency fluctuations. The Funds may purchase and sell put and call
options on, or enter into futures contracts or forward contracts to purchase or
sell foreign currencies. This may reduce a Funds losses on a security when a
foreign currencys value changes. Hedging against a change in the value of a
foreign currency does not eliminate fluctuations in the prices of portfolio
securities or prevent losses if the prices of such securities decline.
Furthermore, such hedging transactions reduce or preclude the opportunity for
gain if the value of the hedged currency should change relative to the other
currency. Finally, when the Funds use options and futures in anticipation of
the purchase of a portfolio security to hedge against adverse movements in the
securitys underlying currency, but the purchase of such security is
subsequently deemed undesirable, a Fund may incur a gain or loss on the option
or futures contract.
Futures
positions entered into for bona fide hedging purposes, as that term is
defined under applicable regulations, are excluded from the 5% limitation.
Each of the
Funds may enter into a repurchase agreement. It is the current policy of the
Funds not to invest in repurchase agreements that do not mature within seven
days if any such investment, together with any other illiquid assets held by a
Fund, amounts to more than 15% of its net assets.
in the inability of the International Investors Gold Fund and/or the
Subsidiary to operate as described in the applicable Prospectus and this SAI
and could eliminate or severely limit such Funds ability to invest in the
Subsidiary which may adversely affect such Fund and its shareholders.
Disclosure
to Investors.
Limited portfolio holdings information for the Funds
is available to all investors on the Van Eck website at vaneck.com. Information
regarding the Funds top holdings and country and sector weightings,
The
management fees earned and the expenses waived or assumed by the Adviser for
the past three fiscal years are as follows:
FEES
WAIVED/ASSUMED
BY THE ADVISER
* Attributable to Class I shares.
CORPORATION
TO DEALERS
Each Fund
has adopted a plan pursuant to Rule 12b-1 (collectively, the Plan) which
provides for the compensation of brokers and dealers who sell shares of the
Funds and/or provide servicing. The Plan is a compensation-type plan with a
carry-forward provision, which provides that the Distributor recoup
distribution expenses in the event the Plan is terminated. For the periods
prior to April 30, 2006, the Distributor has agreed, notwithstanding anything
to the contrary in the Plan, to waive its right to reimbursement of
carry-forward amounts in the event the Plan is terminated, unless the Board has
determined that reimbursement of such carry-forward amounts is appropriate.
Pursuant to the Plan, the Distributor provides the Funds at least quarterly
with a written report of the amounts expended under the Plan and the purpose
for which such expenditures were made. The Trustees review such reports on a
quarterly basis.
The Plan
shall continue in effect as to each Fund, provided such continuance is approved
annually by a vote of the Trustees in accordance with the 1940 Act. The Plan
may not be amended to increase materially the amount to be spent for the
services described therein without approval of the shareholders of the Funds,
and all material amendments to the Plan must also be approved by the Trustees
in the manner described above. The Plan may be terminated at any time, without
payment of any penalty, by vote of a majority of the Trustees who are not
interested persons of a Fund and who have no direct or indirect financial
interest in the operation of the Plan, or by a vote of a majority of the
outstanding voting securities of the Fund (as defined in the Act) on written
notice to any other party to the Plan. The Plan will automatically terminate in
the event of its assignment (as defined in the 1940 Act). So long as the Plan
is in effect, the election and nomination of Trustees who are not interested
persons of the Trust shall be committed to the discretion of the Trustees who
are not interested persons. The Trustees have determined that, in their
judgment, there is a reasonable likelihood that the Plan will benefit the Funds
and their shareholders. The Funds will preserve copies of the Plan and any
agreement or report made pursuant to Rule 12b-1 under the Act, for a period of
not less than six years from
$10,000
$50,000
$100,000
$500,000
$1,000,000
$10,000
$50,000
$100,000
$500,000
$1,000,000
(co-portfolio manager)
(investment team member)
(investment team member)
$10,000
$50,000
$100,000
$500,000
$1,000,000
(investment team member)
(portfolio manager)
(investment team member)
(investment team member)
(investment team member)
(investment team member)
(investment team member)
(investment team member)
(investment team member)
(investment team member)
(co-portfolio manager)
Manager/Investment
Team Member
(As of December 31, 2011)
advisory fee is based on the
performance of the account
Accounts
Accounts
Accounts
Accounts
(investment team member)
investment
companies
investment vehicles
(portfolio manager)
investment
companies
investment vehicles
(investment team member)
investment
companies
investment vehicles
(co-portfolio manager)
investment
companies
investment vehicles
(investment team member)
investment
companies
investment vehicles
(investment team member)
investment
companies
investment vehicles
Manager/Investment
Team Member
(As of December 31, 2011)
advisory fee is based on the
performance of the account
(investment team member)
investment
companies
investment vehicles
(investment team member)
investment
companies
investment vehicles
(investment team member)
investment
companies
investment vehicles
(investment team member)
investment
companies
investment vehicles
(investment team member)
investment
companies
investment vehicles
(investment team member)
investment
companies
investment vehicles
(co-portfolio manager)
investment
companies
investment vehicles
(portfolio manager)
investment
companies
investment vehicles
(investment team member)
investment
companies
investment vehicles
Manager/Investment
Team Member
(As of December 31, 2011)
advisory fee is based on the
performance of the account
(investment team member)
investment
companies
investment vehicles
The Board
has general oversight responsibility with respect to the operation of the Trust
and the Funds. The Board has engaged the Adviser to manage the Funds and is
responsible for overseeing the Adviser and other service providers to the Trust
and the Funds in accordance with the provisions of the 1940 Act and other
applicable laws. The Board is currently composed of six (6) Trustees, each of
whom is an Independent Trustee. In addition to five (5) regularly scheduled
meetings per year, the Independent Trustees meet regularly in executive
sessions among themselves and with their counsel to consider a variety of
matters affecting the Trust. These sessions generally occur prior to, or
during, scheduled Board meetings and at such other times as the Independent
Trustees may deem necessary. Each Trustee attended at least 75% of the total
number of meetings of the Board in the year ending December 31, 2011. As
discussed in further detail below, the Board has established two (2) standing
committees to assist the Board in performing its oversight responsibilities.
meaningful dialogue between the Adviser and the Independent Trustees.
Except for any duties specified herein or pursuant to the Trusts charter
document, the designation of Chairperson does not impose on such Independent
Trustee any duties, obligations or liability that is greater than the duties,
obligations or liability imposed on such person as a member of the Board,
generally.
Risk
oversight forms part of the Boards general oversight of the Funds and the
Trust and is addressed as part of various activities of the Board and its
Committees. As part of its regular oversight of the Funds and Trust, the Board,
directly or through a Committee, meets with representatives of various service
providers and reviews reports from, among others, the Adviser, the Distributor,
the Chief Compliance Officer of the Funds, and the independent registered
public accounting firm for the Funds regarding risks faced by the Funds and
relevant risk management functions. The Board, with the assistance of
management, reviews investment policies and risks in connection with its review
of the Funds performance. The Board has appointed a Chief Compliance Officer
for the Funds who oversees the implementation and testing of the Funds
compliance program and reports to the Board regarding compliance matters for
the Funds and their principal service providers. The Chief Compliance Officers
designation, removal and compensation must be approved by the Board, including
a majority of the Independent Trustees. Material changes to the compliance
program are reviewed by and approved by the Board. In addition, as part of the
Boards periodic review of the Funds advisory, distribution and other service
provider agreements, the Board may consider risk management aspects of their
operations and the functions for which they are responsible, including the
manner in which such service providers implement and administer their codes of
ethics and related policies and procedures. For certain of its service
providers, such as the Adviser and Distributor, the Board also reviews business
continuity and disaster recovery plans. With respect to valuation, the Board
approves and periodically reviews valuation policies and procedures applicable
to valuing the Funds shares. The Adviser is responsible for the implementation
and day-to-day administration of these valuation policies and procedures and
provides reports periodically to the Board regarding these and related matters.
In addition, the Board or the Audit Committee of the Board receives reports at
least annually from the independent registered public accounting firm for the
Funds regarding tests performed by such firm on the valuation of all
securities. Reports received from the Adviser and the independent registered
public accounting firm assist the Board in performing its oversight function of
valuation activities and related risks.
NAME,
ADDRESS(1)
AND AGE
TERM OF OFFICE(2) AND
LENGTH OF TIME SERVED
DURING PAST FIVE YEARS
PORTFOLIOS
IN FUND
COMPLEX(3)
OVERSEEN BY
TRUSTEE
HELD OUTSIDE THE
FUND COMPLEX(3)
DURING THE PAST FIVE YEARS
56 (A)(G)
55 (A)(G)
64 (A)(G)
58 (A)(G)
52 (A)(G)
66 (A)(G)
Audit
Committee.
This Committee met two times during 2011. The duties of this Committee
include meeting with representatives of the Trusts independent registered
public accounting firm to review fees, services, procedures, conclusions and
recommendations of independent registered public accounting firms and to
discuss the Trusts system of internal controls. Thereafter, the Committee
reports to the Board the Committees findings and recommendations concerning
internal accounting matters as well as its recommendation for retention or
dismissal of the auditing firm. Mr. Short has served as the Chairperson of the
Audit Committee since January 1, 2006. Except for any duties specified herein
or pursuant to the Trusts charter document, the designation of Chairperson of the
Audit Committee does not impose on such Independent Trustee any duties,
obligations or liability that is greater than the duties, obligations or
liability imposed on such person as a member of the Board, generally.
ADDRESS (1)
AND AGE
WITH TRUST
LENGTH OF TIME
SERVED (2)
DURING THE PAST FIVE YEARS
For each
Trustee, the dollar range of equity securities beneficially owned by the
Trustee in the Funds and in all registered investment companies advised by the
Adviser (Family of Investment Companies) that are overseen by the Trustee is
shown below.
Securities in Emerging
Markets Fund
(As of December 31, 2011)*
Securities in Global Hard
Assets Fund
(As of December 31, 2011)*
Securities International
Investors Gold Fund
(As of December 31, 2011)*
Securities in all Registered Investment
Companies Overseen By Trustee In
Family of Investment Companies
(As of December 31, 2011)*
As of March
31, 2012, the Trustees and officers, as a group, owned less than 1% of each
Fund and each class of each Fund, except for Class A (1.49%), Class I (9.29%)
and Class Y (4.00%) shares of Emerging Markets Fund.
Lukomnik
Pigott
Shaner
Short
Stamberger
Stelzl
As of March
31, 2012, shareholders of record of 5% or more of the outstanding shares of each class of the
Fund were as follows:
OF CLASS OF
FUND OWNED
Class A
Omni Account M/F
Attn: Department Manager
1000 Harbor Blvd., 5th Floor
Weehawken NJ 07086-6761
Class A
for the Sole Benefit of Its Customers
Attn: Fund Administration
4800 Deer Lake Dr. East, 3rd Floor
Jacksonville, FL 32246-6484
OF CLASS OF
FUND OWNED
Class C
for the Sole Benefit of Its Customers
Attn: Fund Administration
4800 Deer Lake Dr. East, 3rd Floor
Jacksonville, FL 32246-6484
Class C
Omni Account M/F
Attn: Department Manager
1000 Harbor Blvd., Floor 5
Weehawken NJ 07086-6761
Class I
Advisers Corp.
Attn: Bruce Smith
335 Madison Ave., 19th Floor
New York, NY 10017-4611
Class Y
for the Sole Benefit of Its Customers
Attn: Fund Administration
4800 Deer Lake Dr. East, 3rd Floor
Jacksonville, FL 32246-6484
Class Y
Mid Atlantic Trust Co.
FBO Van Eck Associates PSP & Trust
335 Madison Ave.
New York, NY 10017-4611
Class Y
9785 Towne Centre Drive
San Diego, CA 92121-1968
Class A
Omni Account M/F
Attn: Department Manager
1000 Harbor Blvd., 5th Floor
Weehawken NJ 07086-6761
Class A
Special Custody Acct. FBO
Customers Instl.
Attn: Mutual Funds
211 Main St.
San Francisco, CA 94105-1905
Class A
Special Custody Omnibus Account
For Exclusive Benefit of Customers
2801 Market Street
Saint Louis, MO 63103-2523
Class C
for the Sole Benefit of Its Customers
Attn: Fund Administration
4800 Deer Lake Dr. East, 3rd Floor
Jacksonville, FL 32246-6484
Class C
Omni Account M/F
Attn: Department Manager
1000 Harbor Blvd., 5th Floor
Weehawken NJ 07086-6761
Class I
Special Custody Acct. FBO
OF CLASS OF
FUND OWNED
Attn: Mutual Funds
211 Main St.
San Francisco, CA 94105-1905
Class Y
for the Sole Benefit of Its Customers
Attn: Fund Administration
4800 Deer Lake Dr. East, 3rd Floor
Jacksonville, FL 32246-6484
Class Y
975 Towne Centre Dr.
San Diego, CA 92121-1968
Class A
Omni Account M/F
Attn: Department Manager
1000 Harbor Blvd., Floor 5
Weehawken NJ 07086-6761
Class A
Special Custody Acct. FBO
Customers Instl.
Attn: Mutual Funds
211 Main St.
San Francisco, CA 94105-1905
Class C
for the Sole Benefit of Its Customers
Attn: Fund Administration
4800 Deer Lake Dr. East, 3rd Floor
Jacksonville, FL 32246-6484
Class C
Omni Account M/F
Attn: Department Manager
1000 Harbor Blvd., 5th Floor
Weehawken NJ 07086-6761
Class I
Custodian FB
ALSAC St. Jude Hospitals
PO Box 92956
Chicago, IL 60675-2956
Class I
Special Custody Acct. FBO
Customers Instl.
Attn: Mutual Funds
211 Main St.
San Francisco, CA 94105-1905
Class Y
for the Sole Benefit of Its Customers
Attn: Fund Administration
4800 Deer Lake Dr. East, 3rd Floor
Jacksonville, FL 32246-6484
Class Y
9785 Towne Centre Dr.
San Diego, CA 92121-1968
As of March
31, 2012, no person owned directly or through one or more controlled companies
more than 25% of the voting securities of a Fund.
The net
asset value per share of each of the Funds is computed by dividing the value of
all of a Funds securities plus cash and other assets, less liabilities, by the
number of shares outstanding. The net asset value per share is computed as of
the close of the NYSE, usually 4:00 p.m. New York time, Monday through Friday,
exclusive of national business holidays. The Funds will be closed on the
following national business holidays: New Years Day, Martin Luther King Jr.
Day, Presidents Day, Good Friday, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day (or the days on which these holidays are
observed).
Set forth
below is an example of the computation of the public offering price for shares
of the International Investors Gold Fund-A, Global Hard Assets Fund-A and
Emerging Markets Fund-A on December 31, 2011, under the then-current maximum
sales charge:
INVESTORS
GOLD FUND-A
HARD
ASSETS-A
MARKETS
FUND-A
Automatic
Exchange Plan.
Investors may arrange under the Automatic Exchange
Plan to have DST collect a specified amount once a month or quarter from the
investors account in one of the Funds and purchase full and fractional shares
of another Fund in the same class at the public offering price next computed
after receipt of the proceeds. Further details of the Automatic Exchange Plan
are given in the application which is available from DST or the Funds. Class C
shares are not eligible.
Letter
of Intent (LOI or Letter).
For LOIs, out of an initial purchase (or subsequent
purchases if necessary), 5% of the specified dollar amount of an LOI will be
held in escrow by DST in a shareholders account until the shareholders total
purchases of the Funds (except the Money Fund) pursuant to the LOI plus a
shareholders accumulation credit (if any) equal the amount specified in the
Letter. A purchase not originally made pursuant to an LOI may be included under
a backdated Letter executed within 90 days of such purchase (accumulation
credit). If total purchases pursuant to the Letter plus any accumulation credit
are less than the specified amount of the Letter, the shareholder must remit to
the Distributor an amount equal to the difference in the dollar amount of sales
charge the shareholder actually paid and the amount of sales charge which the
shareholder would have paid on the aggregate purchases if the total of such
purchases had been made at a single time. If the shareholder does not within 20
business days after written request by the dealer or bank or by the Distributor
pay such difference in sales charge, DST, upon instructions from the
Distributor, is authorized to cause to be repurchased (liquidated) an
appropriate number of the escrowed shares in order to realize such difference.
A shareholder irrevocably constitutes and appoints DST, as escrow agent, to
surrender for repurchase any or all escrowed shares with full power of
substitution in the premises and agree to the terms and conditions set forth in
the Prospectus and SAI. A LOI is not effective until it is accepted by the Distributor.
Automatic
Withdrawal Plan.
The Automatic Withdrawal Plan is designed to provide
a convenient method of receiving fixed redemption proceeds at regular intervals
from shares of a Fund deposited by the investor under this Plan. Class C shares
are not eligible, except for automatic withdrawals for the purpose of
retirement account distributions. Further details of the Automatic Withdrawal
Plan are given in the application, which is available from DST or the Funds.
that hold the shares as a capital asset, is not intended as a
substitute for careful tax planning, does not address any foreign, state or
local tax consequences of an investment in the Fund, and does not address the
tax considerations that may be relevant to investors subject to special
treatment under the Code. This summary should not be construed as legal or tax
advice. This summary is based on the provisions of the Code, applicable U.S.
Treasury regulations, administrative pronouncements of the Internal Revenue
Service and judicial decisions in effect as of March 2012. Those authorities
may be changed, possibly retroactively, or may be subject to differing
interpretations so as to result in U.S. federal income tax consequences
different from those summarized herein. Prospective investors should consult
their own tax advisors concerning the potential federal, state, local and
foreign tax consequences of an investment in the Fund, with specific reference
to their own tax situation.
As a
regulated investment company, a Fund will not be subject to federal income tax
on its net investment income and capital gain net income (net long-term capital
gains in excess of net short-term capital losses) that it distributes to
shareholders if at least 90% of its net investment company taxable income for
the taxable year is distributed. However, if for any taxable year a Fund does
not satisfy the requirements of Subchapter M of the Code, all of its taxable
income will be subject to tax at regular corporate income tax rates without any
deduction for distribution to shareholders, and such distributions will be
taxable to shareholders as dividend income to the extent of the Funds current
or accumulated earnings or profits.
Original
Issue Discount and Market Discount.
For federal income tax purposes,
debt securities purchased by the Funds may be treated as having original issue
discount. Original issue discount represents interest for federal income tax
purposes and can generally be defined as the excess of the stated redemption
price at maturity of a debt obligation over the issue price. Original issue
discount is treated for federal income tax purposes as income earned by the
Funds, whether or not any income is actually received, and therefore is subject
to the distribution requirements of the Code. Generally, the amount of original
issue discount included in the income of the Funds each year is determined on
the basis of a constant yield to maturity which takes into account the
compounding of accrued interest. Because the Funds must include original issue
discount in income, it will be more difficult for the Funds to make the
distributions required for them to maintain their status as a regulated
investment company under Subchapter M of the Code or to avoid the 4% excise tax
described above.
Subsidiary
. As described in the Prospectus,
the International Investors Gold Fund intends to invest a portion of its assets
in the Subsidiary, which will be classified as a corporation for U.S. federal
income tax purposes.
The
Internal Revenue Service may be taking the opportunity to reconsider whether
the use of a subsidiary to invest in commodities frustrates the intention of
the qualifying income requirement. The Internal Revenue Service has announced
an internal review of its position with respect to the tax treatment of a
regulated investment company subsidiary that invests in commodities or
commodity-related investments, and a moratorium on the issuance of new private
letter rulings with respect to them. International Investors Gold Fund has not
received a private letter ruling on its investment in the Subsidiary. In
addition, on December 20, 2011, the chairman and ranking member of the Senate
Permanent Subcommittee on Investigations wrote to the Commissioner of the
Internal Revenue Service, requesting the Internal Revenue Service to
re-evaluate its position with respect to such subsidiaries and conclude that
current law does not permit regulated investment companies to utilize them to
make investments in commodities. It is possible that a change in the Internal
Revenue Services position or Congressional action could cause the Internal
Revenue Service to treat distributions from the Subsidiary as income that is
not qualifying income for purposes of the 90% gross income requirement, which
could lead to significant adverse tax consequences for the International
Investors Gold Fund.
Dividends
of net investment income and the excess of net short-term capital gain over net
long-term capital loss are generally taxable as ordinary income to
shareholders. However, for taxable years beginning before January 1, 2013, a
portion of the dividend income received by a Fund may constitute qualified
dividend income eligible for a maximum rate of tax of 15% to individuals,
trusts and estates. If the aggregate amount of qualified dividend income
received by a Fund during any taxable year is less than 95% of the Funds gross
income (as specifically defined for that purpose), the qualified dividend rule
applies only if and to the extent reported by the Fund as qualified dividend income.
A Fund may report such dividends as qualified dividend income only to the
extent the Fund itself has qualified dividend income for the taxable year with
respect to which such dividends are made. Qualified dividend income is
generally dividend income from taxable domestic corporations and certain
foreign corporations (e.g., foreign corporations incorporated in a possession
of the United States or in certain countries with comprehensive tax treaties
with the United States, or the stock of which is readily tradable on an
established securities market in the United States), provided the Fund has held
the stock in such corporations for more than 60 days during the 121 day period
beginning on the date which is 60 days before the date on which such stock becomes
ex-dividend with respect to such dividend (the holding period requirement).
In order to be eligible for the 15% maximum rate on dividends from the Fund
attributable to qualified dividends, shareholders must separately satisfy the
holding period requirement with respect to their Fund shares. Distributions of
net capital gain (the excess of net long-term capital gain over net short-term
capital loss) that are properly reported by a Fund as such are taxable to
shareholders as long-term capital gain, regardless of the length of time the
shares of the Fund have been held by such shareholders, except to the extent of
gain from a sale or disposition of collectibles, such as precious metals,
taxable currently at a 28% rate. Any loss realized upon a taxable disposition
of shares within a year from the date of their purchase will be treated as a
long-term capital loss to the extent of any long-term capital gain
distributions received by shareholders during such period.
Each Fund
may be required to backup withhold federal income tax at a current rate of 28%
from dividends paid to any shareholder who fails to furnish a certified
taxpayer identification number (TIN) or who fails to certify that he or she
is exempt from such withholding, or who the Internal Revenue Service notifies
the Fund as having provided the Fund with an incorrect TIN or failed to
properly report interest or dividends for federal income tax purposes. Any such
withheld amount will be fully creditable on the shareholders U.S. federal
income tax return, provided certain requirements are met. If a shareholder
fails to furnish a valid TIN upon request, the shareholder can also be subject
to IRS penalties. The rate of backup withholding is set to increase to 31% for
amounts distributed or paid after December 31, 2012.
The audited
financial statements for the fiscal year ended December 31, 2011 of the Funds
are hereby incorporated by reference from the Funds Annual Reports to
shareholders, which are available at no charge by visiting the Van Eck website
at vaneck.com, or upon written or telephone request to the Trust at the address
or telephone number set forth on the first page of this SAI.
The Adviser intends to vote all proxies in accordance with applicable
rules and regulations, and in the best interests of clients without influence
by real or apparent conflicts of interest. To assist in its responsibility for
voting proxies and the overall voting process, the Adviser has engaged an
independent third party proxy voting specialist, Glass Lewis & Co., LLC.
The services provided by Glass Lewis include in-depth research, global issuer
analysis, and voting recommendations as well as vote execution, reporting and
recordkeeping.
Independent
Director
An independent
director has no material financial,
5
We will generally
take into consideration the size and nature of such charitable entities in
relation to the companys size and industry along with any other relevant
factors such as the directors role at the charity. However, unlike for other
types of related party transactions, Glass Lewis generally does not apply a
look-back period to affiliated relationships involving charitable
contributions; if the relationship ceases, we will consider the director to
be independent.
We find that a
directors past conduct is often indicative of future conduct and performance.
We often find directors with a history of overpaying executives or of serving
on boards where avoidable disasters have occurred appearing at companies that follow
these same patterns. Glass Lewis has a proprietary database of directors
serving at over 8,000 of the most widely held U.S. companies. We use this
database to track the performance of directors across companies.
Unofficially Controlled Companies and 20-50% Beneficial Owners
In our view, there is
no evidence to demonstrate that staggered boards improve shareholder returns in
a takeover context. Research shows that shareholders are worse off when a
staggered board blocks a transaction. A study by a group of Harvard Law
professors concluded that companies whose staggered boards prevented a takeover
reduced shareholder returns for targets ... on the order of eight to ten
percent in the nine months after a hostile bid was announced.
41
When a staggered board negotiates a friendly transaction, no statistically
significant difference in premiums occurs.
42
Further, one of those
same professors found that charter-based staggered boards reduce the market
value of a firm by 4% to 6% of its market capitalization and that staggered
boards bring about and not merely reflect this reduction in market value.
43
A subsequent study reaffirmed that classified boards reduce shareholder value,
finding that the ongoing process of dismantling staggered boards, encouraged
by institutional investors, could well contribute to increasing shareholder
wealth.
44
Evidence from a Natural Experiment, SSRN:
http://ssrn.com/abstract=1706806 (2010), p. 26.
Resolutions relating
to the repeal of staggered boards garnered on average over 70% support among
shareholders in 2008, whereas in 1987, only 16.4% of votes cast favored board
declassification.
46
Mandatory
Director Term and Age limits
While we understand
that age limits can be a way to force change where boards are unwilling to make
changes on their own, the long-term impact of age limits restricts experienced
and potentially valuable board members from service through an arbitrary means.
Further, age limits unfairly imply that older (or, in rare cases, younger)
directors cannot contribute to company oversight.
46
Lucian Bebchuk, John Coates IV and
Guhan Subramanian, The Powerful Antitakeover Force of Staggered Boards:
Theory, Evidence, and Policy,
54 Stanford
Law Review
887-951 (2002).
We expect to see a
number of shareholder proposals regarding this topic in 2012. For a discussion of
recent regulatory events in this area, along with a detailed overview of the
Glass Lewis approach to Shareholder Proposals regarding Proxy Access, refer to
Section V. Compensation,
Environmental, Social and Governance Shareholder Initiatives
.
During 2011, Glass
Lewis tracked over 40 proposals seeking to require a majority vote to elect
directors at annual meetings in the U.S., a slight increase over 2010 when we
tracked just under 35 proposals, but a sharp contrast to the 147 proposals
tracked during 2006. The large drop in the number of proposals being submitted
in recent years compared to 2006 is a result of many companies having already
adopted some form of
majority voting,
including approximately 79% of companies in the S&P 500 index, up from 56%
in 2008.
47
During 2009 these proposals received on average 59%
shareholder support (based on for and against votes), up from 54% in 2008.
Advantages of a majority vote standard
shareholder ratification [should] include the name(s) of the
senior auditing partner(s) staffed on the engagement.
48
Glass Lewis carefully
reviews the compensation awarded to senior executives, as we believe that this
is an important area in which the boards priorities are revealed. Glass Lewis
strongly believes executive compensation should be linked directly with the
performance of the business the executive is charged with managing. We believe
the most effective compensation arrangements provide for an appropriate mix of
performance-based short- and long-term incentives in addition to base salary.
examines whether the
company discloses the performance metrics used to determine executive
compensation. We recognize performance metrics must necessarily vary depending
on the company and industry, among other factors, and may include items such as
total shareholder return, earning per share growth, return on equity, return on
assets and revenue growth. However, we believe companies should disclose why
the specific performance metrics were selected and how the actions they are
designed to incentivize will lead to better corporate performance.
The Dodd-Frank Wall
Street Reform and Consumer Protection Act (the Dodd-Frank Act) required most
companies
50
to hold an advisory vote on executive compensation at
the first shareholder meeting that occurs six months after enactment of the
bill (January 21, 2011).
We believe that each
company should design and apply specific compensation policies and practices that
are appropriate to the circumstances of the company and, in particular, will
attract and retain competent executives and other staff, while motivating them
to grow the companys long-term shareholder value.
Where we identify
egregious compensation practices, we may also recommend voting against the
compensation committee based on the practices or actions of its members during
the year, such as approving large one-off payments, the inappropriate,
unjustified use of discretion, or sustained poor pay for performance practices.
our evaluation of
compensation committee effectiveness and we generally recommend voting against
compensation committee of companies with a pattern of failing our pay-for-performance
analysis.
Vote on Golden Parachute Arrangements
Our analysis is
primarily quantitative and focused on the plans cost as compared with the
businesss operating metrics. We run twenty different analyses, comparing the
program with absolute limits we believe are key to equity value creation and
with a carefully chosen peer group. In general, our model seeks to determine
whether the proposed plan is either absolutely excessive or is more than one
standard deviation away from the average plan for the peer group on a range of
criteria, including dilution to shareholders and the projected annual cost
relative to the companys financial performance. Each of the twenty analyses
(and their constituent parts) is weighted and the plan is scored in accordance
with that weight.
managers and
directors of the firm contribute to the creation of enterprise value but not
necessarily market capitalization (the biggest difference is seen where cash
represents the vast majority of market capitalization). Finally, we do not rely
exclusively on relative comparisons with averages because, in addition to
creeping averages serving to inflate compensation, we believe that some
absolute limits are warranted.
In short, repricings and option exchange programs change the
bargain between shareholders and employees after the bargain has been struck.
Backdating an option
is the act of changing an options grant date from the actual grant date to an
earlier date when the market price of the underlying stock was lower, resulting
in a lower exercise price for the option. Since 2006, Glass Lewis has
identified over 270 companies that have disclosed internal or government
investigations into their past stock-option grants.
A 2006 study of
option grants made between 1996 and 2005 at 8,000 companies found that option
backdating can be an indication of poor internal controls. The study found that
option backdating was more likely to occur at companies without a majority
independent board and with a long-serving CEO; both factors, the study
concluded, were associated with greater CEO influence on the companys
compensation and governance practices.
51
We believe the best
practice for companies is to provide robust disclosure to shareholders so that
they can make fully-informed judgments about the reasonableness of the proposed
compensation plan. To allow for meaningful shareholder review, we prefer that
disclosure should include specific performance metrics, a maximum award pool,
and a maximum award amount per employee. We also believe it is important to analyze
the estimated grants to see if they are reasonable and in line with the
companys peers.
Glass Lewis believes
that non-employee directors should receive reasonable and appropriate
compensation for the time and effort they spend serving on the board and its
committees. Director fees should be competitive in order to retain and attract
qualified
individuals. But excessive fees represent a financial cost to the company and
threaten to compromise the objectivity and independence of non-employee
directors. Therefore, a balance is required. We will consider recommending
supporting compensation plans that include option grants or other equity-based
awards that help to align the interests of outside directors with those of
shareholders. However, equity grants to directors should not be performance-based
to ensure directors are not incentivized in the same manner as executives but
rather serve as a check on imprudent risk-taking in executive compensation plan
design.
Poison Pills (Shareholder Rights Plans)
In certain
circumstances, we will support a poison pill that is limited in scope to
accomplish a particular objective, such as the closing of an important merger,
or a pill
that contains what we
believe to be a reasonable qualifying offer clause. We will consider supporting
a poison pill plan if the qualifying offer clause includes each of the
following attributes:
Similarly, Glass
Lewis may consider supporting a limited poison pill in the unique event that a
company seeks shareholder approval of a rights plan for the express purpose of
preserving Net Operating Losses (NOLs). While companies with NOLs can generally
carry these losses forward to offset future taxable income, Section 382 of the
Internal Revenue Code limits companies ability to use NOLs in the event of a
change of ownership.
52
In this case, a company may adopt or amend
a poison pill (NOL pill) in order to prevent an inadvertent change of
ownership by multiple investors purchasing small chunks of stock at the same
time, and thereby preserve the ability to carry the NOLs forward. Often such
NOL pills have trigger thresholds much lower than the common 15% or 20%
thresholds, with some NOL pill triggers as low as 5%.
Fair price
provisions, which are rare, require that certain minimum price and procedural
requirements be observed by any party that acquires more than a specified
percentage of a corporations common stock. The provision is intended to
protect minority shareholder value when an acquirer seeks to accomplish a
merger or other transaction which would eliminate or change the interests of
the minority stockholders. The provision is generally applied against the
acquirer unless the takeover is approved by a majority of continuing
directors and holders of a majority, in some cases a supermajority as high as
80%, of the combined voting power of all stock entitled to vote to alter,
amend, or repeal the above provisions.
EXCLUSIVE FORUM PROVISIONS
Advance Notice Requirements
Cumulative voting
increases the ability of minority shareholders to elect a director by allowing
shareholders to cast as many shares of the stock they own multiplied by the
number of directors to be elected. As companies generally have multiple
nominees up
for election,
cumulative voting allows shareholders to cast all of their votes for a single
nominee, or a smaller number of nominees than up for election, thereby raising
the likelihood of electing one or more of their preferred nominees to the
board. It can be important when a board is controlled by insiders or affiliates
and where the companys ownership structure includes one or more shareholders
who control a majority-voting block of company stock.
However, academic
literature indicates that where a highly independent board is in place and the
company has a shareholder-friendly governance structure, shareholders may be
better off without cumulative voting. The analysis underlying this literature
indicates that shareholder returns at firms with good governance structures are
lower and that boards can become factionalized and prone to evaluating the
needs of special interests over the general interests of shareholders
collectively.
Transaction of Other Business
V. Compensation, Environmental, Social and Governance Shareholder Initiatives
and/or protect shareholder
value and also those that promote the furtherance of shareholder rights. In
addition, we also generally recommend supporting proposals that promote
director accountability and those that seek to improve compensation practices,
especially those promoting a closer link between compensation and performance.
Glass Lewis carefully
reviews executive compensation since we believe that this is an important area
in which the boards priorities and effectiveness are revealed. Executives
should be compensated with appropriate base salaries and incentivized with
additional awards in cash and equity only when their performance and that of
the company warrants such rewards. Compensation, especially when also in line
with the compensation paid by the companys peers, should lead to positive
results for shareholders and ensure the use of appropriate incentives that
drives those results over time.
significant level
that is already required; we therefore typically recommend voting against
shareholder proposals seeking such detailed disclosure. We will, however,
review each proposal on a case by basis, taking into account the companys
history of aligning executive compensation and the creation of shareholder
value.
However, when
proposals are crafted to only require approval if the benefit exceeds 2.99
times the amount of the executives base salary plus bonus, Glass Lewis
typically supports such requests. Above this threshold, based on the
executives average annual compensation for the most recent five years, the
company can no longer deduct severance payments as an expense, and thus
shareholders are deprived of a valuable benefit without an offsetting incentive
to the executive. We believe that shareholders should be consulted before
relinquishing such a right, and we believe implementing such policies would
still leave companies with sufficient freedom to enter into appropriate
severance arrangements.
hold advisory
shareholder votes on compensation arrangements and understandings in connection
with merger transactions, also known as golden parachute transactions.
Effective April 4, 2011, the SEC requires that companies seeking shareholder
approval of a merger or acquisition transaction must also provide disclosure of
certain golden parachute compensation arrangements and, in certain
circumstances, conduct a separate shareholder advisory vote to approve golden
parachute compensation arrangements.
We believe it is
prudent for boards to adopt detailed and stringent policies whereby, in the
event of a restatement of financial results, the board will review all
performance related bonuses and awards made to senior executives during the
period covered by a restatement and will, to the extent feasible, recoup such
bonuses to the extent that performance goals were not achieved. While the Dodd-Frank
Act mandates that all companies adopt clawback policies that will require
companies to develop a policy to recover compensation paid to current and
former executives erroneously paid during the three year prior to a
restatement, the SEC has yet to finalize the relevant rules. As a result, we
expect to see shareholder proposals regarding clawbacks in the upcoming proxy
season.
Glass Lewis does not
believe that the payment of substantial, unearned posthumous compensation
provides an effective incentive to executives or aligns the interests of
executives with those of shareholders. Glass Lewis firmly believes that compensation
paid to executives should be clearly linked to the creation of shareholder
value. As such, Glass Lewis favors compensation plans centered on the payment
of awards contingent upon the satisfaction of sufficiently stretching and
appropriate performance metrics. The payment of posthumous unearned and
unvested awards should be subject to shareholder approval, if not removed from
compensation policies entirely. Shareholders should be skeptical regarding any
positive benefit they derive from costly payments made to executives who are no
longer in any position to affect company performance.
packages where
shareholders are unlikely to be aware of the total compensation an executive
may receive. Further, we believe that in instances where companies have
severance agreements in place for executives, payments made pursuant to such
arrangements are often large enough to soften the blow of any additional excise
taxes. Finally, such payments are not performance based, providing no incentive
to recipients and, if large, can be a significant cost to companies.
companies have
classified boards shareholders are deprived of the right to voice annual
opinions on the quality of oversight exercised by their representatives.
In addition to
evaluating the threshold for which written consent may be used (e.g. majority
of votes cast or outstanding), we will consider the following when evaluating
such shareholder proposals:
his or her own time
and money into organizing a successful campaign to unseat a poorly performing
director (or directors) or sought support for a shareholder proposal, we feel
that the shareholder should be entitled to reimbursement of expenses by other
shareholders, via the company. We believe that, in such cases, shareholders
express their agreement by virtue of their majority vote for the dissident (or
the shareholder proposal) and will share in the expected improvement in company
performance.
cumulative voting
proposals if the company has not adopted antitakeover protections and has been
responsive to shareholders.
Further, in July
2010, President Obama signed into law the
Dodd-Frank Wall Street Reform and Consumer Protection Act
,
(the Dodd-Frank Act). This Act provides the SEC with the authority to adopt
rules permitting shareholders to use issuer proxy solicitation materials to
nominate director candidates. The SEC received over 500 comments regarding
proposed proxy access, some of which questioned the agencys authority to adopt
such a rule. Nonetheless, in August 2010, the SEC adopted final Rule
14a-11
, which under
certain circumstances, gives shareholders (and shareholder groups) who have
collectively held at least 3% of the voting power of a companys securities
continuously for at least three years, the right to nominate up to 25% of a
boards directors and have such nominees included on a companys ballot and
described in its proxy statement. While final Rule 14a-11 was originally
scheduled to take effect on November 15, 2010, on October 4, 2010, the SEC
announced that it would delay the rules implementation following the filing of
a lawsuit by the U.S. Chamber Of Commerce and the Business Roundtable. In July
2011, the United States Court of Appeals for the District of Columbia ruled
against the SEC based on what it perceived to be the SECs failure to fully
consider the costs and the benefits of the proxy access rules. On September 6,
2011, the SEC announced that it would not be seeking rehearing of the decision.
However, while rule 14a-11 was vacated, the U.S. Court of Appeals issued a stay
on the private ordering amendments to Rule 14a-8, meaning that companies are
no longer able to exclude shareholder proposals requesting that they adopt
procedures to allow for shareholder nominees to be included in proxy statements
(Statement by SEC Chairman Mary L. Schapiro on Proxy Access Ligation.
SEC Press Release
. September 6, 2011).
There are significant financial, legal and reputational
risks to companies resulting from poor environmental practices or negligent
oversight thereof. We believe part of the boards role is to ensure that
management conducts a complete risk analysis of company operations, including
those that have environmental implications. Directors should monitor
managements performance in mitigating environmental risks attendant with
operations in order to eliminate or minimize the risks to the company and
shareholders.
Legal
and reputational risk
: Failure to
take action on important issues may carry the risk of damaging negative
publicity and potentially costly litigation. While the effect of high-profile
campaigns on shareholder value may not be directly measurable, in general we
believe it is prudent for firms to evaluate social and environmental risk as a
necessary part in assessing overall portfolio risk.
Companies with
records of poor labor relations may face lawsuits, efficiency-draining
turnover, poor employee performance, and/or distracting, costly investigations.
Moreover, as an increasing number of companies adopt inclusive EEO policies,
companies without comprehensive policies may face damaging recruitment,
reputational and legal risks. We believe that a pattern of making financial
settlements as a result of lawsuits based on discrimination could indicate
investor exposure to ongoing financial risk. Where there is clear evidence of
employment practices resulting in negative economic exposure, Glass Lewis may
support shareholder proposals addressing such risks.
Glass Lewis believes
that disclosure to shareholders of information on key company endeavors is
important. However, we generally do not support resolutions that call for
shareholder approval of policy statements for or against government programs,
most of which are subject to thorough review by the federal government and
elected officials at the national level. We also do not support proposals
favoring disclosure of information where similar disclosure is already mandated
by law, unless circumstances exist that warrant the additional disclosure.
Where a corporation operates in a foreign country, Glass
Lewis believes that the company and board should maintain sufficient controls
to prevent illegal or egregious conduct with the potential to decrease
shareholder value, examples of which include bribery, money laundering, severe
environmental violations or proven human rights violations. We believe that
shareholders should hold board members, and in particular members of the audit
committee and CEO, accountable for these issues when they face reelection, as
these concerns may subject the company to financial risk. In some instances, we
will support appropriately crafted shareholder proposals specifically
addressing concerns with the target firms actions outside its home
jurisdiction.
Health care reform in
the United States has long been a contentious political issue and Glass Lewis
therefore believes firms must evaluate and mitigate the level of risk to which
they may be exposed regarding potential changes in health care legislation.
Over the last several years, Glass Lewis has reviewed multiple shareholder
proposals requesting that boards adopt principles for comprehensive health
reform, such as the following based upon principles reported by the Institute
of Medicine:
Glass Lewis
recognizes the contentious nature of the production, procurement, marketing and
selling of tobacco products. We also recognize that tobacco companies are
particularly susceptible to reputational and regulatory risk due to the nature
of its operations. As such, we will consider supporting uniquely tailored and
appropriately crafted shareholder proposals requesting increased information or
the implementation of suitably broad policies at target firms on a case-by-case
basis. However, we typically do not support proposals requesting that firms
shift away from, or significantly alter, the legal production or marketing of
core products.
While corporate
contributions to national political parties and committees controlled by
federal officeholders are prohibited under federal law, corporations can
legally donate to state and local candidates, organizations registered under 26
USC Sec. 527 of the Internal Revenue Code and state-level political committees.
There is, however, no standardized manner in which companies must disclose this
information. As such, shareholders often must search through numerous campaign
finance reports and detailed tax documents to ascertain even limited
information. Corporations also frequently use trade associations, which are not
required to report funds they receive for or spend on political activity, as a
means for corporate political action.
When evaluating
whether a requested report would benefit shareholders, Glass Lewis seeks
answers to the following three key questions:
Glass Lewis believes
that it is prudent for management to assess potential exposure to regulatory,
legal and reputational risks associated with all business practices, including
those related to animal welfare. A high-profile campaign launched against a
company could result in shareholder action, a reduced customer base, protests
and potentially costly litigation. However, in general, we believe that the
board and management are in the best position to determine policies relating to
the care and use of animals. As such, we will typically vote against proposals
seeking to eliminate or limit board discretion regarding animal welfare unless
there is a clear and documented link between the boards policies and the
degradation of shareholder value.
censorship, freedom
of expression and freedom of access. Glass Lewis believes that it is prudent
for management to assess its potential exposure to risks relating to the
internet management and censorship policies. As has been seen at other firms,
perceived violation of user privacy or censorship of Internet access can lead
to high-profile campaigns that could potentially result in decreased customer
bases or potentially costly litigation. In general, however, we believe that
management and boards are best equipped to deal with the evolving nature of
this issue in various jurisdictions of operation.
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MULTI-MANAGER ALTERNATIVES FUND |
CLASS A: VMAAX / CLASS C: VMSCX / CLASS I: VMAIX / CLASS Y: VMAYX |
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A-1 |
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B-1 |
STATEMENT OF ADDITIONAL INFORMATION
The Trust is an open-end management investment company organized as a business trust under the laws of the Commonwealth of Massachusetts on April 3, 1985.
The
Trust currently consists of six separate series: Emerging Markets Fund, Global
Hard Assets Fund, International Investors Gold Fund and Multi-Manager
Alternatives Fund (the Fund), all of which currently offer Class A, Class C,
Class I and Class Y shares; and CM Commodity Index Fund and Long/Flat Commodity
Index Fund, both of which offer Class A, Class I and Class Y shares (except
that the Long/Flat Commodity Index Fund has not commenced operations as of the
date of this SAI).
This SAI only pertains to the Fund. Shares of the other series of the Trust are offered in separate prospectuses and statements of additional information. The Board of Trustees of the Trust (the Board) has authority, without the necessity of a shareholder vote, to create additional series or funds, each of which may issue separate classes of shares.
The
Fund is classified as a non-diversified fund under the Investment Company Act
of 1940, as amended (the 1940 Act). Van Eck Associates Corporation (the
Adviser) serves as investment adviser to the Fund.
I NVESTMENT POLICIES AND RISKS
The Fund pursues its objective by allocating its assets among (i) investment sub-advisers (the Sub-Advisers, also referred to as managers) with experience in managing alternative or non-traditional investment strategies, and (ii) affiliated and unaffiliated funds, including open end and closed end funds and exchange traded funds (ETFs), which employ a variety of investment strategies (collectively, the Underlying Funds).
The
following is additional information regarding the investment policies and
strategies used by the Fund in attempting to achieve its objective, and should
be read with the sections of the Funds Prospectus titled Fund summary
information Principal Investment Strategies, Fund summary information
Principal Risks and Investment objective, strategies, policies, risks and
other information.
Appendix B to this SAI contains an explanation of the rating categories of Moodys Investors Service Inc. (Moodys) and Standard & Poors Corporation (S&P) relating to the fixed-income securities and preferred stocks in which the Fund may invest.
E VALUATION AND SELECTION OF SUB-ADVISERS
The
Adviser, determines the allocation of the Funds assets among the various
Sub-Advisers and Underlying Funds. The Adviser has ultimate responsibility,
subject to the oversight of the Board, to oversee the Sub-Advisers, and to
recommend their hiring, termination and replacement. The Adviser may hire and
terminate Sub-Advisers in accordance with the terms of an exemptive order
obtained by the Fund and the Adviser from the Securities and Exchange
Commissions (SEC), under which the Adviser is permitted, subject to
supervision and approval of the Board, to enter into and materially amend sub
advisory agreements without seeking shareholder approval. The Adviser will
furnish shareholders of the Fund with information regarding a new Sub-Adviser
within 90 days of the hiring of the new Sub-Adviser.
Each Underlying Fund invests its assets in accordance with its investment strategy. The Fund may invest in Underlying Funds in excess of the limitations under the 1940 Act, pursuant to either an exemptive order obtained by the Fund and the Adviser from the SEC or an exemptive order obtained by an Underlying Fund from the SEC and consistent with the conditions specified in such order.
4
The Adviser conducts a due diligence process for selecting Sub-Advisers for the Fund by reviewing a wide range of factors for each Sub-Adviser including, but not limited to, past investment performance during various market conditions, investment strategies and processes used, structures of portfolios and risk management procedures, reputation, experience and training of key personnel, correlation of results with other Sub-Advisers, assets under management and number of clients.
As part of the due diligence process, the Adviser reviews information from its own as well as from outside sources, including third party providers and consultants. The Adviser uses the services of independent third parties to conduct a comprehensive review of each Sub-Adviser, its investment process and organization and to conduct interviews of key personnel of each Sub-Adviser as well as interviews with third party references and industry sources.
The Adviser regularly evaluates each Sub-Adviser to determine whether its investment program is consistent with the investment objective of the Fund and whether its investment performance is satisfactory.
The Fund may engage in transactions that attempt to exploit price differences of identical, related or similar securities on different markets or in different forms. The underlying relationships between securities in which the Fund takes investment positions may change in an adverse manner, in which case the Fund may realize losses.
Merger Arbitrage
Although a variety of strategies may be employed depending upon the nature of the reorganizations selected for investment, the most common merger arbitrage activity involves purchasing the shares of an announced acquisition target at a discount from the expected value of such shares upon completion of the acquisition. The size of the discount, or spread, and whether the potential reward justifies the potential risk, are functions of numerous factors affecting the riskiness and timing of the acquisition. Such factors include the status of the negotiations between the two companies (for example, spreads typically narrow as the parties advance from an agreement in principle to a definitive agreement), the complexity of the transaction, the number of regulatory approvals required, the likelihood of government intervention on antitrust or other grounds, the type of consideration to be received and the possibility of competing offers for the target company. The expected timing of each transaction is also extremely important since the length of time that the Funds capital must be committed to any given reorganization will affect the rate of return realized by the Fund, and delays can substantially reduce such returns.
The Fund may invest in asset-backed securities. Asset-backed securities, directly or indirectly, represent interests in, or are secured by and payable from, pools of consumer loans (generally unrelated to mortgage loans) and most often are structured as pass-through securities. Interest and principal payments ultimately depend on payment of the underlying loans, although the securities may be supported by letters of credit or other credit enhancements. The value of asset-backed securities may also depend on the creditworthiness of the servicing agent for the loan pool, the originator of the loans, or the financial institution providing the credit enhancement.
Asset-backed securities are subject to certain risks. These risks generally arise out of the security interest in the assets collateralizing the security. For example, credit card receivables are generally unsecured and the debtors are entitled to a number of protections from the state and through federal consumer laws, many of which give the debtor the right to offset certain amounts of credit card debts and thereby reducing the amounts due.
5
Investments in securities rated below investment grade that are eligible for purchase by the Fund are described as speculative by Moodys, S&P and Fitch, Inc. Investment in lower rated corporate debt securities (high yield securities or junk bonds) generally provides greater income and increased opportunity for capital appreciation than investments in higher quality securities, but they also typically entail greater price volatility and principal and income risk.
These high yield securities are regarded as predominantly speculative with respect to the issuers continuing ability to meet principal and interest payments. Analysis of the creditworthiness of issuers of debt securities that are high yield may be more complex than for issuers of higher quality debt securities.
High yield securities may be more susceptible to real or perceived adverse economic and competitive industry conditions than investment grade securities. The prices of high yield securities have been found to be less sensitive to interest-rate changes than higher-rated investments, but more sensitive to adverse economic downturns or individual corporate developments. A projection of an economic downturn or of a period of rising interest rates, for example, could cause a decline in high yield security prices because the advent of a recession could lessen the ability of a highly leveraged company to make principal and interest payments on its debt securities. If an issuer of high yield securities defaults, in addition to risking payment of all or a portion of interest and principal, the Fund by investing in such securities may incur additional expenses to seek recovery. In the case of high yield securities structured as zero-coupon or pay-in-kind securities, their market prices are affected to a greater extent by interest rate changes, and therefore tend to be more volatile than securities which pay interest periodically and in cash.
Borrowing to invest more is called leverage. The Fund may borrow from banks provided that the amount of borrowing is no more than one third of the net assets of the Fund plus the amount of the borrowings. The Fund is required to be able to restore borrowing to its permitted level within three days, if it should increase to more than one-third as stated above. Methods that may be used to restore borrowings in this context include selling securities, even if the sale hurts the Funds investment performance. Leverage exaggerates the effect of rises or falls in prices of securities bought with borrowed money. Borrowing also costs money, including fees and interest. The Fund expects to borrow only through negotiated loan agreements with commercial banks or other institutional lenders.
C OLLATERALIZED MORTGAGE OBLIGATIONS
The Fund may invest in collateralized mortgage obligations (CMOs). CMOs are fixed-income securities which are collateralized by pools of mortgage loans or mortgage-related securities created by commercial banks, savings and loan institutions, private mortgage insurance companies and mortgage bankers. In effect, CMOs pass through the monthly payments made by individual borrowers on their mortgage loans. Prepayments of the mortgages included in the mortgage pool may influence the yield of the CMO. In addition, prepayments usually increase when interest rates are decreasing, thereby decreasing the life of the pool. As a result, reinvestment of prepayments may be at a lower rate than that on the original CMO. There are different classes of CMOs, and certain classes have priority over others
6
with respect to prepayment of the mortgages. Timely payment of interest and principal (but not the market value) of these pools is supported by various forms of insurance or guarantees. The Fund may buy CMOs without insurance or guarantees if, in the opinion of the Adviser, the pooler is creditworthy or if rated A or better by S&P or Moodys. S&P and Moodys assign the same rating classifications to CMOs as they do to bonds. In the event that any CMOs are determined to be investment companies, the Fund will be subject to certain limitations under the 1940 Act.
The Fund may invest in commercial paper that is indexed to certain specific foreign currency exchange rates. The terms of such commercial paper provide that its principal amount is adjusted upwards or downwards (but not below zero) at maturity to reflect changes in the exchange rate between two currencies while the obligation is outstanding. The Fund will purchase such commercial paper with the currency in which it is denominated and, at maturity, will receive interest and principal payments thereon in that currency, but the amount or principal payable by the issuer at maturity will change in proportion to the change (if any) in the exchange rate between two specified currencies between the date the instrument is issued and the date the instrument matures. While such commercial paper entails the risk of loss of principal, the potential for realizing gains as a result of changes in foreign currency exchange rates enables the Fund to hedge or cross-hedge against a decline in the U.S. dollar value of investments denominated in foreign currencies while providing an attractive money market rate of return. The Fund will purchase such commercial paper for hedging purposes only, not for speculation.
For hedging purposes only, the Fund may invest in commercial paper with the principal amount indexed to the difference, up or down, in value between two foreign currencies. The Fund segregates asset accounts with an equivalent amount of cash, U.S. government securities or other highly liquid securities equal in value to this commercial paper. Principal may be lost, but the potential for gains in principal and interest may help the Fund cushion against the potential decline of the U.S. dollar value of foreign-denominated investments. At the same time, this commercial paper may provide an attractive money market rate of return.
The Fund may invest in securities that are convertible into common stock or other securities of the same or a different issuer or into cash within a particular period of time at a specified price or formula. Convertible securities are generally fixed income securities (but may include preferred stock) and generally rank senior to common stocks in a corporations capital structure and, therefore, entail less risk than the corporations common stock. The value of a convertible security is a function of its investment value (its value as if it did not have a conversion privilege), and its conversion value (the securitys worth if it were to be exchanged for the underlying security, at market value, pursuant to its conversion privilege).
To the extent that a convertible securitys investment value is greater than its conversion value, its price will be primarily a reflection of such investment value and its price will be likely to increase when interest rates fall and decrease when interest rates rise, as with a fixed-income security (the credit standing of the issuer and other factors may also have an effect on the convertible securitys value). If the conversion value exceeds the investment value, the price of the convertible security will rise above its investment value and, in addition, will sell at some premium over its conversion value. (This premium represents the price investors are willing to pay for the privilege of purchasing a fixed-income security with a possibility of capital appreciation due to the conversion privilege.) At such times the price of the convertible security will tend to fluctuate directly with the price of the underlying equity security. Convertible securities may be purchased by the Fund at varying price levels above their investment values and/or their conversion values in keeping with the Funds objective.
7
The Fund may invest in debt securities. The market value of debt securities generally varies in response to changes in interest rates and the financial condition of each issuer and the value of a hard asset if linked to the value of a hard asset. Debt securities with similar maturities may have different yields, depending upon several factors, including the relative financial condition of the issuers. A description of debt securities ratings is contained in Appendix B to the SAI. High grade means a rating of A or better by Moodys or S&P, or of comparable quality in the judgment of the Adviser or if no rating has been given by either service. Many securities of foreign issuers are not rated by these services. Therefore, the selection of such issuers depends to a large extent on the credit analysis performed by the Adviser. During periods of declining interest rates, the value of debt securities generally increases. Conversely, during periods of rising interest rates, the value of such securities generally declines. These changes in market value will be reflected in the Funds net asset value. Debt securities with similar maturities may have different yields, depending upon several factors, including the relative financial condition of the issuers. For example, higher yields are generally available from securities in the lower rating categories of S&P or Moodys.
However, the values of lower-rated securities generally fluctuate more than those of high-grade securities. Many securities of foreign issuers are not rated by these services. Therefore the selection of such issuers depends to a large extent on the credit analysis performed by the Adviser.
New issues of certain debt securities are often offered on a when-issued basis. That is, the payment obligation and the interest rate are fixed at the time the buyer enters into the commitment, but delivery and payment for the securities normally take place after the date of the commitment to purchase. The value of when-issued securities may vary prior to and after delivery depending on market conditions and changes in interest rate levels. However, the Fund does not accrue any income on these securities prior to delivery. The Fund will maintain in a segregated account with its Custodian an amount of cash or high quality securities equal (on a daily marked-to-market basis) to the amount of its commitment to purchase the when-issued securities. The Fund may also invest in low rated or unrated debt securities. Low rated debt securities present a significantly greater risk of default than do higher rated securities, in times of poor business or economic conditions, the Fund may lose interest and/or principal on such securities.
The Fund may also invest in various money market securities for cash management purposes or when assuming a temporary defensive position. Money market securities may include commercial paper, bankers acceptances, bank obligations, corporate debt securities, certificates of deposit, U.S. government securities and obligations of savings institutions.
The Fund may invest in Depositary Receipts, which represent an ownership interest in securities of foreign companies (an underlying issuer) that are deposited with a depositary. Depositary Receipts are not necessarily denominated in the same currency as the underlying securities. Depositary Receipts include American Depositary Receipts (ADRs), Global Depositary Receipts (GDRs) and other types of Depositary Receipts (which, together with ADRs and GDRs, are hereinafter collectively referred to as Depositary Receipts). ADRs are dollar-denominated Depositary Receipts typically issued by a U.S. financial institution which evidence an ownership interest in a security or pool of securities issued by a foreign issuer. ADRs are listed and traded in the United States. GDRs and other types of Depositary Receipts are typically issued by foreign banks or trust companies, although they also may be issued by U.S. financial institutions, and evidence ownership interests in a security or pool of securities issued by either a foreign or a U.S. corporation. Generally, Depositary Receipts in registered form are designed for use in the U.S. securities market and Depositary Receipts in bearer form are designed for use in securities markets outside the United States.
Depositary Receipts may be sponsored or unsponsored. Sponsored Depositary Receipts are established jointly by a depositary and the underlying issuer, whereas unsponsored Depositary Receipts
8
may be established by a depositary without participation by the underlying issuer. Holders of unsponsored Depositary Receipts generally bear all the costs associated with establishing unsponsored Depositary Receipts. In addition, the issuers of the securities underlying unsponsored Depository 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.
The Fund may also use futures contracts and options, forward contracts and swaps as part of various investment techniques and strategies, such as creating non-speculative synthetic positions (covered by segregation of liquid assets) or implementing cross-hedging strategies. A synthetic position is the duplication of cash market transaction when deemed advantageous by the Adviser for cost, liquidity or transactional efficiency reasons. A cash market transaction is the purchase or sale of the security or other asset for cash. Cross-hedging involves the use of one currency to hedge against the decline in the value of another currency. The use of such instruments as described herein involves several risks. First, there can be no assurance that the prices of such instruments and the hedge security or the cash market position will move as anticipated. If prices do not move as anticipated, the Fund may incur a loss on its investment, may not achieve the hedging protection it anticipated and/or may incur a loss greater than if it had entered into a cash market position. Second, investments in such instruments may reduce the gains which would otherwise be realized from the sale of the underlying securities or assets which are being hedged. Third, positions in such instruments can be closed out only on an exchange that provides a market for those instruments. There can be no assurance that such a market will exist for a particular futures contract or option. If the Fund cannot close out an exchange traded futures contract or option which it holds, it would have to perform its contract obligation or exercise its option to realize any profit and would incur transaction cost on the sale of the underlying assets. In addition, the use of derivative instruments involves the risk that a loss may be sustained as a result of the failure of the counterparty to the derivatives contract to make required payments or otherwise comply with the contracts terms.
When the Fund intends to acquire securities (or gold bullion or coins as the case may be) for its portfolio, it may use call options or futures contracts as a means of fixing the price of the security (or gold) it intends to purchase at the exercise price (in the case of an option) or contract price (in the case of futures contracts). An increase in the acquisition cost would be offset, in whole or part, by a gain on the option or futures contract. Options and futures contracts requiring delivery of a security may also be useful to the Fund in purchasing a large block of securities that would be more difficult to acquire by direct market purchases. If the Fund holds a call option rather than the underlying security itself, the Fund is partially protected from any unexpected decline in the market price of the underlying security and in such event could allow the call option to expire, incurring a loss only to the extent of the premium paid for the option. Using a futures contract would not offer such partial protection against market declines and the Fund would experience a loss as if it had owned the underlying security.
The Fund may invest in direct investments. Direct investments include (i) the private purchase from an enterprise of an equity interest in the enterprise in the form of shares of common stock or equity interests in trusts, partnerships, joint ventures or similar enterprises, and (ii) the purchase of such an equity interest in an enterprise from a principal investor in the enterprise. In each case the Fund will, at the time of making the investment, enter into a shareholder or similar agreement with the enterprise and one or more other holders of equity interests in the enterprise. The Adviser anticipates that these agreements may, in appropriate circumstances, provide the Fund with the ability to appoint a representative to the board of directors or similar body of the enterprise and for eventual disposition of the Fund investment in the enterprise. Such a representative of the Fund will be expected to provide the Fund with the ability to monitor its investment and protect its rights in the investment, and will not be appointed for the purpose of exercising management or control of the enterprise. Direct investments are
9
generally considered illiquid and will be aggregated with other illiquid investments for purposes of the limitation on illiquid investments.
Certain of the Funds direct investments will include investments in smaller, less seasoned companies. These companies may have limited product lines, markets or financial resources, or they may be dependent on a limited management group. The Fund does not anticipate making direct investments in start-up operations, although it is expected that in some cases the Funds direct investments will fund new operations for an enterprise which itself is engaged in similar operations or is affiliated with an organization that is engaged in similar operations.
Direct investments may involve a high degree of business and financial risk that can result in substantial losses. Because of the absence of any public trading market for these investments, the Fund may take longer to liquidate these positions than would be the case for publicly traded securities. Although these securities may be resold in privately negotiated transactions, the prices on these sales could be less than those originally paid by the Fund. Furthermore, issuers whose securities are not publicly traded may not be subject to public disclosure and other investor protection requirements applicable to publicly traded securities. If such securities are required to be registered under the securities laws of one or more jurisdictions before being resold, the Fund may be required to bear the expense of the registration. Direct investments can be difficult to price and will be valued at fair value as determined in good faith by the Board. The pricing of direct investments may not be reflective of the price at which these assets could be liquidated.
Investors should recognize that investing in foreign securities involves certain special considerations that are not typically associated with investing in United States securities. Since investments in foreign companies will frequently involve currencies of foreign countries, and since the Fund may hold securities and funds in foreign currencies, the Fund may be affected favorably or unfavorably by changes in currency rates and in exchange control regulations, if any, and may incur costs in connection with conversions between various currencies. Most foreign stock markets, while growing in volume of trading activity, have less volume than the New York Stock Exchange (NYSE), and securities of some foreign companies are less liquid and more volatile than securities of comparable domestic companies. Similarly, volume and liquidity in most foreign bond markets are less than in the United States, and at times volatility of price can be greater than in the United States. Fixed commissions on foreign securities exchanges are generally higher than negotiated commissions on United States exchanges, although the Fund endeavors to achieve the most favorable net results on its portfolio transactions. There is generally less government supervision and regulation of securities exchanges, brokers and listed companies in foreign countries than in the United States. In addition, with respect to certain foreign countries, there is the possibility of exchange control restrictions, expropriation or confiscatory taxation, political, economic or social instability, which could affect investments in those countries. Foreign securities such as those purchased by the Fund may be subject to foreign government taxes, higher custodian fees, higher brokerage commissions and dividend collection fees which could reduce the yield on such securities.
Trading in futures contracts traded on foreign commodity exchanges may be subject to the same or similar risks as trading in foreign securities.
The Fund may have a substantial portion of its assets in emerging markets. An emerging market or emerging country is any country that the World Bank, the International Finance Corporation or the United Nations or its authorities has determined to have a low or middle income economy.
10
Emerging countries can be found in regions such as Asia, Latin America, Africa and Eastern Europe. The countries that will not be considered emerging countries include the United States, Australia, Canada, Japan, New Zealand and most countries located in Western Europe such as Austria, Belgium, Denmark, Finland, France, Germany, Great Britain, Ireland, Italy, the Netherlands, Norway, Spain, Sweden and Switzerland.
Emerging market securities include securities which are (i) principally traded in the capital markets of an emerging market country; (ii) securities of companies that derive at least 50% of their total revenues from either goods produced or services performed in emerging countries or from sales made in emerging countries, regardless of where the securities of such companies are principally traded; (iii) securities of companies organized under the laws of, and with a principal office in an emerging country; (iv) securities of investment companies (such as country funds) that principally invest in emerging market securities; and (v) American Depositary Receipts (ADRs), American Depositary Shares (ADSs), European Depositary Receipts (EDRs) and Global Depositary Receipts (GDRs) with respect to the securities of such companies.
Investing in the equity and fixed income markets of developing countries involves exposure to potentially unstable governments, the risk of nationalization of businesses, restrictions on foreign ownership, prohibitions on repatriation of assets and a system of laws that may offer less protection of property rights. Emerging market economies may be based on only a few industries, may be highly vulnerable to changes in local and global trade conditions, and may suffer from extreme and volatile debt burdens or inflation rates.
The
securities markets in emerging markets are substantially smaller, less liquid
and more volatile than the major securities markets in the United States. A
high proportion of the shares of many issuers may be held by a limited number
of persons and financial institutions, which may limit the number of shares
available for investment by the portfolio. Similarly, volume and liquidity in
the bond markets in Asia, Eastern and Central Europe and other emerging markets
are less than in the United States and, at times, price volatility can be greater
than in the United States. A limited number of issuers in Asian and emerging
market securities markets may represent a disproportionately large percentage
of market capitalization and trading value. The limited liquidity of securities
markets in these regions may also affect the Funds ability to acquire or
dispose of securities at the price and time it wishes to do so. Accordingly,
during periods of rising securities prices in the more illiquid regions
securities markets, the Funds ability to participate fully in such price
increases may be limited by its investment policy of investing not more than
15% of its net assets in illiquid securities. Conversely, the inability of the
Fund to dispose fully and promptly of positions in declining markets will cause
the Funds net asset values to decline as the values of the unsold positions
are marked to lower prices. In addition, these securities markets are
susceptible to being influenced by large investors trading significant blocks
of securities. Also, stockbrokers and other intermediaries in emerging markets
may not perform in the way their counterparts in the United States and other
more developed securities markets do. The prices at which the Fund may acquire
investments may be affected by trading by persons with material non-public
information and by securities transactions by brokers in anticipation of
transactions by the Fund in particular securities.
The Fund may invest in Latin American, Asian, Eurasian and other countries with emerging economies or securities markets. Political and economic structures in many such countries may be undergoing significant evolution and rapid development, and such countries may lack the social, political and economic stability characteristic of the United States. Certain such countries have in the past failed to recognize private property rights and have at times nationalized or expropriated the assets of private companies. As a result, the risks described above, including the risks of nationalization or expropriation of assets, may be heightened. In addition, unanticipated political or social developments may affect the
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value of the Fund s investments in those countries and the availability to the Fund of additional investments in those countries.
FOREIGN SECURITIES FOREIGN CURRENCY TRANSACTIONS
Under normal circumstances, consideration of the prospects for currency exchange rates will be incorporated into the long-term investment decisions made for the Fund with regard to overall diversification strategies. Although the Fund values its assets daily in terms of U.S. dollars, it does not intend physically to convert its holdings of foreign currencies into U.S. dollars on a daily basis. The Fund will do so from time to time, and investors should be aware of the costs of currency conversion. Although foreign exchange dealers do not charge a fee for conversion, they do realize a profit based on the difference (the spread) between the prices at which they are buying and selling various currencies. Thus, a dealer may offer to sell a foreign currency to the Fund at one rate, while offering a lesser rate of exchange should the Fund desire to resell that currency to the dealer. The Fund will use forward contracts, along with futures contracts, foreign exchange swaps and put and call options (all types of derivatives), to lock in the U.S. Dollar price of a security bought or sold and as part of its overall hedging strategy. 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 exchange market, or through purchasing put and call options on, or entering into futures contracts or forward contracts to purchase or sell foreign currencies. See Derivatives.
Changes in currency exchange rates may affect the Funds net asset value and performance. There can be no assurance that the Adviser will be able to anticipate currency fluctuations in exchange rates accurately. The Fund may invest in a variety of derivatives and enter into hedging transactions to attempt to moderate the effect of currency fluctuations. The Fund may purchase and sell put and call options on, or enter into futures contracts or forward contracts to purchase or sell foreign currencies. This may reduce the Funds losses on a security when a foreign currencys value changes. Hedging against a change in the value of a foreign currency does not eliminate fluctuations in the prices of portfolio securities or prevent losses if the prices of such securities decline. Furthermore, such hedging transactions reduce or preclude the opportunity for gain if the value of the hedged currency should change relative to the other currency. Finally, when the Fund uses options and futures in anticipation of the purchase of a portfolio security to hedge against adverse movements in the securitys underlying currency, but the purchase of such security is subsequently deemed undesirable, the Fund may incur a gain or loss on the option or futures contract.
The Fund will enter into forward contracts to duplicate a cash market transaction.
In those situations where foreign currency options or futures contracts, or options on futures contracts may not be readily purchased (or where they may be deemed illiquid) in the primary currency in which the hedge is desired, the hedge may be obtained by purchasing or selling an option, futures contract or forward contract on a secondary currency. The secondary currency will be selected based upon the Advisers belief that there exists a significant correlation between the exchange rate movements of the two currencies. However, there can be no assurances that the exchange rate or the primary and secondary currencies will move as anticipated, or that the relationship between the hedged security and the hedging instrument will continue. If they do not move as anticipated or the relationship does not continue, a loss may result to the Fund on its investments in the hedging positions.
A forward foreign currency contract, like a futures contract, involves an obligation to purchase or sell a specific amount of currency at a future date, 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. Unlike foreign currency futures contracts which are standardized exchange-traded contracts, forward currency contracts are usually traded in the interbank market conducted directly between currency traders (usually large commercial banks) and their customers. A forward contract generally has no deposit requirement, and no commissions are charged at any stage for such trades.
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The Adviser will not commit the Fund, at time of purchase, to deliver under forward contracts an amount of foreign currency in excess of the value of the Funds portfolio securities or other assets or obligations denominated in that currency. The Funds Custodian will place the securities being hedged, cash, U.S. government securities or debt or equity securities into a segregated account of the Fund in an amount equal to the value of the Funds total assets committed to the consummation of forward foreign currency contracts to ensure that the Fund is not leveraged beyond applicable limits. If the value of the securities placed in the segregated account declines, additional cash or securities will be placed in the account on a daily basis so that the value of the account will equal the amount of the Funds commitments with respect to such contracts. At the maturity of a forward contract, the Fund may either sell the portfolio security and make delivery of the foreign currency, or it may retain the security and terminate its contractual obligation to deliver the foreign currency prior to maturity by purchasing an offsetting contract with the same currency trader, obligating it to purchase, on the same maturity date, the same amount of the foreign currency. There can be no assurance, however, that the Fund will be able to effect such a closing purchase transaction.
It is impossible to forecast the market value of a particular portfolio security at the expiration of the contract. Accordingly, if a decision is made to sell the security and make delivery of the foreign currency it may be necessary for the Fund to purchase additional foreign currency on the spot market (and bear the expense of such purchase) if the market value of the security is less than the amount of foreign currency that the Fund is obligated to deliver.
If the Fund retains the portfolio security and engages in an offsetting transaction, the Fund will incur a gain or a loss to the extent that there has been movement in forward contract prices. Additionally, although such contracts tend to minimize the risk of loss due to a decline in the value of the hedged currency, at the same time, they tend to limit any potential gain which might result should the value of such currency increase.
F UTURES, WARRANTS AND SUBSCRIPTION RIGHTS
The Fund may buy and sell futures contracts which may include financial futures, security and interest-rate futures, stock and bond index futures contracts, foreign currency futures contracts and commodity futures. The Fund may engage in these transactions for hedging purposes and for other purposes. A security or interest-rate futures contract is an agreement between two parties to buy or sell a specified security at a set price on a future date. An index futures contract is an agreement to take or make delivery of an amount of cash based on the difference between the value of the index at the beginning and at the end of the contract period. A foreign currency futures contract is an agreement to buy or sell a specified amount of a currency for a set price on a future date. A commodity futures contract is an agreement to take or make delivery of a specified amount of a commodity, such as gold, at a set price on a future date.
Futures
positions entered into for bona fide hedging purposes, as that term is
defined in the Commodity Exchange Act, are excluded from the 5% limitation. As
the value of the underlying asset fluctuates, either party to the contract is
required to make additional margin payments, known as variation margin, to
cover any additional obligation it may have under the contract. In addition,
cash or high quality securities equal in value to the current value of the
underlying securities less the margin requirement will be segregated, as may be
required, with the Funds custodian to ensure that the Funds position is
unleveraged. This segregated account will be marked-to-market daily to reflect
changes in the value of the underlying futures contract.
Pursuant to a notice of eligibility claiming exclusion from the definition of Commodity Pool Operator filed with the National Futures Association on behalf of the Fund, neither the Trust nor the individual Fund is deemed to be a commodity pool operator under the Commodity Exchange Act (CEA), and, accordingly, they are not subject to registration or regulation as such under the CEA.
The use of financial futures contracts and commodity futures contracts, options on such futures contracts and commodities, may reduce the Funds exposure to fluctuations in the prices of portfolio
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securities and may prevent losses if the prices of such securities decline. Similarly, such investments may protect the Fund against fluctuation in the value of securities in which the Fund is about to invest.
The use of financial futures and commodity futures contracts and options on such futures contracts and commodities as hedging instruments involves several risks. First, there can be no assurance that the prices of the futures contracts or options and the hedged security or the cash market position will move as anticipated. If prices do not move as anticipated, the Fund may incur a loss on its investment, may not achieve the hedging protection anticipated and/or incur a loss greater than if it had entered into a cash market position. Second, investments in options, futures contracts and options on futures contracts may reduce the gains which would otherwise be realized from the sale of the underlying securities or assets which are being hedged. Third, positions in futures contracts and options can be closed out only on an exchange that provides a market for those instruments. There can be no assurances that such a market will exist for a particular futures contract or option. If the Fund cannot close out an exchange traded futures contract or option which it holds, it would have to perform its contractual obligation or exercise its option to realize any profit, and would incur transaction costs on the sale of the underlying assets.
Warrants are instruments that permit, but do not obligate, the holder to subscribe for other securities. Subscription rights are similar to warrants, but normally have a short duration and are distributed directly by the issuer to its shareholders. Warrants and rights are not dividend-paying investments and do not have voting rights like common stock. They also do not represent any rights in the assets of the issuer. As a result, warrants and rights may be considered more speculative than direct equity investments. In addition, the value of warrants and rights do not necessarily change with the value of the underlying securities and may cease to have value if they are not exercised prior to their expiration dates.
It
is the policy of the Fund to meet the requirements of the Internal Revenue Code
of 1986, as amended (the Code) to qualify as a regulated investment company
and thus to prevent double taxation of the Fund and its shareholders. One of
the requirements is that at least 90% of the Funds gross income be derived
from dividends, interest, payment with respect to securities loans and gains
from the sale or other disposition of stocks or other securities. Gains from
commodity futures contracts do not currently qualify as income for purposes of
the 90% test. The extent to which the Fund may engage in options and futures
contract transactions may be materially limited by this test.
The Fund may invest in initial public offerings (IPOs) of common stock or other primary or secondary syndicated offerings of equity or debt securities issued by a corporate issuer. A purchase of IPO securities often involves higher transaction costs than those associated with the purchase of securities already traded on exchanges or markets. IPO securities are subject to market risk and liquidity risk. The market value of recently issued IPO securities may fluctuate considerably due to factors such as the absence of a prior public market, unseasoned trading and speculation, a potentially small number of securities available for trading, limited information about the issuer, and other factors. The Fund may hold IPO securities for a period of time, or may sell them soon after the purchase. Investments in IPOs could have a magnified impact either positive or negative on the Funds performance while the Funds assets are relatively small. The impact of an IPO on a Funds performance may tend to diminish as the Funds assets grow. In circumstances when investments in IPOs make a significant contribution to the Funds performance, there can be no assurance that similar contributions from IPOs will continue in the future.
I NVESTMENTS IN OTHER INVESTMENT COMPANIES
The Fund may invest in securities issued by other investment companies, including open end and closed end funds and ETFs, subject to the limitations under the 1940 Act. The Fund may invest in investment companies which are sponsored or advised by the Adviser and/or its affiliates (each, a Van
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Eck Investment Company). However, in no event will the Fund invest more than 5% of its net assets in any single Van Eck Investment Company.
The Funds investment in another investment company may subject the Fund indirectly to the underlying risks of the investment company. The Fund also will bear its share of the underlying investment companys fees and expenses, which are in addition to the Funds own fees and expenses. Shares of closed-end funds and ETFs may trade at prices that reflect a premium above or a discount below the investment companys net asset value, which may be substantial in the case of closed-end funds. If investment company securities are purchased at a premium to net asset value, the premium may not exist when those securities are sold and the Fund could incur a loss.
I NDEXED SECURITIES AND STRUCTURED NOTES
The Fund may invest in indexed securities, i.e., structured notes securities and index options, whose value is linked to one or more currencies, interest rates, commodities, or financial or commodity indices. An indexed security enables the investor to purchase a note whose coupon and/or principal redemption is linked to the performance of an underlying asset. Indexed securities may be positively or negatively indexed (i.e., their value may increase or decrease if the underlying instrument appreciates). Indexed securities may have return characteristics similar to direct investments in the underlying instrument or to one or more options on the underlying instrument. Indexed securities may be more volatile than the underlying instrument itself, and present many of the same risks as investing in futures and options. Indexed securities are also subject to credit risks associated with the issuer of the security with respect to both principal and interest.
Indexed securities may be publicly traded or may be two-party contracts (such two-party agreements are referred to hereafter collectively as structured notes). When the Fund purchases a structured note, it will make a payment of principal to the counterparty. Some structured notes have a guaranteed repayment of principal while others place a portion (or all) of the principal at risk. The Fund will purchase structured notes only from counterparties rated A or better by S&P, Moodys or another nationally recognized statistical rating organization. The Adviser will monitor the liquidity of structured notes under the supervision of the Board. Notes determined to be illiquid will be aggregated with other illiquid securities and will be subject to the Funds limitations on illiquid securities.
The Fund may write, purchase or sell covered call or put options. An options transaction involves the writer of the option, upon receipt of a premium, giving the right to sell (call option) or buy (put option) an underlying asset at an agreed upon exercise price. The holder of the option has the right to purchase (call option) or sell (put option) the underlying asset at the exercise price. If the option is not exercised or sold, it becomes worthless at its expiration date and the premium payment is lost to the option holder. As the writer of an option, the Fund keeps the premium whether or not the option is exercised. When the Fund sells a covered call option, which is a call option with respect to which the Fund owns the underlying assets, the Fund may lose the opportunity to realize appreciation in the market price of the underlying asset, or may have to hold the underlying asset, which might otherwise have been sold to protect against depreciation. A covered put option written by the Fund exposes it during the term of the option to a decline in the price of the underlying asset. A put option sold by the Fund is covered when, among other things, cash or short-term liquid securities are placed in a segregated account to fulfill the obligations undertaken. Covering a put option sold does not reduce the risk of loss.
The Fund may invest in options which are either listed on a domestic securities exchange or traded on a recognized foreign exchange. In addition, the Fund may purchase or sell over-the-counter options for dealers or banks to hedge securities or currencies as approved by the Board. In general, exchange traded options are third party contracts with standardized prices and expiration dates. Over-the-counter options are two party contracts with price and terms negotiated by the buyer and seller, are generally considered illiquid, and will be subject to the limitation on investments in illiquid securities.
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Securities paid for on an installment basis. A partly paid security trades net of outstanding installment paymentsthe buyer takes over payments. The buyers rights are typically restricted until the security is fully paid. If the value of a partly-paid security declines before the Fund finishes paying for it, the Fund will still owe the payments, but may find it hard to sell and as a result will incur a loss.
The Fund may invest in preferred stock. Preferred stock represents an equity interest in a company that generally entitles the holder to receive, in preference to the holders of other stocks such as common stocks, dividends and a fixed share of the proceeds resulting from a liquidation of the company. Some preferred stocks also entitle their holders to receive additional liquidation proceeds on the same basis as holders of a companys common stock, and thus also represent an ownership interest in that company.
The
Fund may not purchase or sell real estate, except that the Fund may invests in
securities of issuers that invest in real estate or interests therein. These
include equity securities of REITs and other real estate industry companies or
companies with substantial real estate investments. The Fund is therefore
subject to certain risks associated with direct ownership of real estate and
with the real estate industry in general. These risks include, among others:
possible declines in the value of real estate; possible lack of availability of
mortgage funds; extended vacancies of properties; risks related to general and
local economic conditions; overbuilding; increases in competition, property
taxes and operating expenses; changes in zoning laws; costs resulting from the
clean-up of, and liability to third parties for damages resulting from,
environmental problems; casualty or condemnation losses; uninsured damages from
floods, earthquakes or other natural disasters; limitations on and variations
in rents; and changes in interest rates.
REITs are pooled investment vehicles whose assets consist primarily of interest in real estate and real estate loans. REITs are generally classified as equity REITs, mortgage REITs or hybrid REITs. Equity REITs own interest in property and realize income from the rents and gain or loss from the sale of real estate interests. Mortgage REITs invest in real estate mortgage loans and realize income from interest payments on the loans. Hybrid REITs invest in both equity and debt. Equity REITs may be operating or financing companies. An operating company provides operational and management expertise to and exercises control over, many if not most operational aspects of the property. REITs are not taxed on income distributed to shareholders, provided they comply with several requirements of the Code.
Investing in REITs involves certain unique risks in addition to those risks associated with investing in the real estate industry in general. Equity REITs may be affected by changes in the value of the underlying property owned by the REITs, while mortgage REITs may be affected by the quality of any credit extended. REITs are dependent upon management skills, are not diversified, and are subject to the risks of financing projects. REITs are subject to heavy cash flow dependency, default by borrowers, self-liquidation and the possibilities of failing to qualify for the exemption from tax for distributed income under the Code. REITs (especially mortgage REITs) are also subject to interest rate risk (i.e., as interest rates rise, the value of the REIT may decline).
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The Fund may enter into a repurchase agreement. It is the current policy of the Fund not to invest in repurchase agreements that do not mature within seven days if any such investment, together with any other illiquid assets held by the Fund, amounts to more than 15% of its net assets.
Repurchase agreements, which may be viewed as a type of secured lending by the Fund, typically involve the acquisition by the Fund of debt securities from a selling financial institution such as a bank, savings and loan association or broker-dealer. The agreement provides that the Fund will sell back to the institution, and that the institution will repurchase, the underlying security serving as collateral at a specified price and at a fixed time in the future, usually not more than seven days from the date of purchase. The collateral will be marked-to-market daily to determine that the value of the collateral, as specified in the agreement, does not decrease below the purchase price plus accrued interest. If such decrease occurs, additional collateral will be requested and, when received, added to the account to maintain full collateralization. The Fund will accrue interest from the institution until the time when the repurchase is to occur. While repurchase agreements involve certain risks not associated with direct investments in debt securities, the Fund will only enter into a repurchase agreement where (i) the underlying securities are of the type which the Funds investment policies would allow it to purchase directly, (ii) the market value of the underlying security, including accrued interest, will be at all times be equal to or exceed the value of the repurchase agreement, and (iii) payment for the underlying securities is made only upon physical delivery or evidence of book-entry transfer to the account of the custodian or a bank acting as agent.
R ULE 144A AND SECTION 4(2) SECURITIES
The Fund may invest in securities which are subject to restrictions on resale because they have not been registered under the Securities Act of 1933, or which are otherwise not readily marketable.
Rule 144A under the Securities Act of 1933 allows a broader institutional trading market for securities otherwise subject to restriction on resale to the general public. Rule 144A establishes a safe harbor from the registration requirements of the Securities Act of 1933 of resale of certain securities to qualified institutional buyers.
The Adviser will monitor the liquidity of restricted securities in the Funds holdings under the supervision of the Board. In reaching liquidity decisions, the Adviser will consider, among other things, the following factors: (1) the frequency of trades and quotes for the security; (2) the number of dealers wishing to purchase or sell the security and the number of other potential purchasers; (3) dealer undertakings to make a market in the security; and (4) the nature of the security and the nature of the marketplace trades (e.g., the time needed to dispose of the security, the method of soliciting offers and the mechanisms of the transfer).
In addition, commercial paper may be issued in reliance on the private placement exemption from registration afforded by Section 4(2) of the Securities Act of 1933. Such commercial paper is restricted as to disposition under the federal securities laws and, therefore, any resale of such securities must be effected in a transaction exempt from registration under the Securities Act of 1933. Such commercial paper is normally resold to other investors through or with the assistance of the issuer or investment dealers who make a market in such securities, thus providing liquidity.
Securities eligible for resale pursuant to Rule 144A under the Securities Act of 1933 and commercial paper issued in reliance on the Section 4(2) exemption under the 1940 Act may be determined to be liquid in accordance with guidelines established by the Board for purposes of complying with investment restrictions applicable to investments by the Fund in illiquid securities. To the extent such securities are determined to be illiquid, they will be aggregated with other illiquid investments for purposes of the limitation on illiquid investments.
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The Fund may lend securities to parties such as broker-dealers or other institutions. Securities lending allows the Fund to retain ownership of the securities loaned and, at the same time, earn additional income. The borrower provides the Fund with collateral in an amount at least equal to the value of the securities loaned. The Fund maintains the ability to obtain the right to vote or consent on proxy proposals involving material events affecting securities loaned. If the borrower defaults on its obligation to return the securities loaned because of insolvency or other reasons, the Fund could experience delays and costs in recovering the securities loaned or in gaining access to the collateral. These delays and costs could be greater for foreign securities. If the Fund is not able to recover the securities loaned, the Fund may sell the collateral and purchase a replacement investment in the market. The value of the collateral could decrease below the value of the replacement investment by the time the replacement investment is purchased. Cash received as collateral through loan transactions will generally be invested in shares of a money market fund. Investing this cash subjects that investment, as well as the securities loaned, to market appreciation or depreciation
The Fund may make short sales of equity securities. The Fund will establish a segregated account with respect to its short sales and maintain in the account cash not available for investment or U.S. Government securities or other liquid, high-quality securities having a value equal to the difference between (i) the market value of the securities sold short at the time they were sold short and (ii) any cash, U.S. Government securities or other liquid, high-quality securities required to be deposited as collateral with the broker in connection with the short sale (not including the proceeds from the short sale). The segregated account will be marked to market daily, so that (i) the amount in the segregated account plus the amount deposited with the broker as collateral equals the current market value of the securities sold short and (ii) in no event will the amount in the segregated account plus the amount deposited with the broker as collateral fall below the original value of the securities at the time they were sold short.
The Fund may enter into swap agreements. A swap is a derivative in the form of an agreement to exchange the return generated by one instrument for the return generated by another instrument. The payment streams are calculated by reference to a specified index and agreed upon notional amount. The term specified index includes currencies, fixed interest rates, prices, total return on interest rate indices, fixed income indices, stock indices and commodity indices (as well as amounts derived from arithmetic operations on these indices). For example, the Fund may agree to swap the return generated by a fixed income index for the return generated by a second fixed income index. The currency swaps in which the Fund may enter will generally involve an agreement to pay interest streams in one currency based on a specified index in exchange for receiving interest streams denominated in another currency. Such swaps may involve initial and final exchanges that correspond to the agreed upon notional amount. The swaps in which the Fund may engage also include rate caps, floors and collars under which one party pays a single or periodic fixed amount(s) (or premium), and the other party pays periodic amounts based on the movement of a specified index.
Swaps do not involve the delivery of securities, other underlying assets, or principal. Accordingly, the risk of loss with respect to swaps is limited to the net amount of payments that the Fund is contractually obligated to make. If the other party to a swap defaults, the Funds risk of loss consists of the net amount of payments that the Fund is contractually entitled to receive. Currency swaps usually involve the delivery of the entire principal value of one designated currency in exchange for the other designated currency. Therefore, the entire principal value of a currency swap is subject to the risk that the other party to the swap will default on its contractual delivery obligations. If there is a default by the counterparty, the Fund may have contractual remedies pursuant to the agreements related to the transaction. The use of swaps is a highly specialized activity which involves investment techniques and risks different from those associated with ordinary fund securities transactions. If the Adviser is incorrect
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in its forecasts of market values, interest rates, and currency exchange rates, the investment performance of the Fund would be less favorable than it would have been if this investment technique were not used.
W HEN, AS AND IF ISSUED SECURITIES
The Fund may purchase securities on a when, as and if issued basis, under which the issuance of the security depends upon the occurrence of a subsequent event, such as approval of a merger, corporate reorganization or debt restructuring. The commitment for the purchase of any such security will not be recognized by the Fund until the Adviser determines that issuance of the security is probable. At that time, the Fund will record the transaction and, in determining its net asset value, will reflect the value of the security daily. At that time, the Fund will also earmark or establish a segregated account on the Funds books in which it will maintain cash, cash equivalents or other liquid portfolio securities equal in value to recognized commitments for such securities. The value of the Funds commitments to purchase the securities of any one issuer, together with the value of all securities of such issuer owned by the Fund, may not exceed 5% (2% in the case of warrants which are not listed on an exchange) of the value of the Funds total assets at the time the initial commitment to purchase such securities is made. An increase in the percentage of the Fund assets committed to the purchase of securities on a when, as and if issued basis may increase the volatility of its net asset value. The Fund may also sell securities on a when, as and if issued basis provided that the issuance of the security will result automatically from the exchange or conversion of a security owned by the Fund at the time of sale.
F UNDAMENTAL INVESTMENT RESTRICTIONS
The following investment restrictions are in addition to those described in the Prospectus. These investment restrictions are fundamental and may be changed with respect to the Fund only with the approval of the holders of a majority of the Funds outstanding voting securities as defined in the 1940 Act. As to any of the following investment restrictions, if a percentage restriction is adhered to at the time of investment, a later increase or decrease in percentage resulting from a change in value of portfolio securities or amount of net assets will not be considered a violation of the investment restriction. In the case of borrowing, however, the Fund will promptly take action to reduce the amount of the Funds borrowings outstanding if, because of changes in the net asset value of the Fund due to market action, the amount of such borrowings exceeds one-third of the value of the Funds net assets. The fundamental investment restrictions are as follows:
The Fund may not:
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Borrow money, except as permitted under the 1940 Act, as amended and as interpreted or modified by regulation from time to time. |
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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 in the disposition of restricted securities or in connection with its investments in other investment companies. |
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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 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. |
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Issue senior securities, except as permitted under the 1940 Act, as amended and as interpreted or modified by regulation from time to time. |
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Purchase or sell real estate, except that the Fund may (i) invest in securities of issuers |
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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. |
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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. |
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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. This limit does not apply to securities issued or guaranteed by the U.S. government, its agencies or instrumentalities. |
P ORTFOLIO HOLDINGS DISCLOSURE
The Fund has adopted policies and procedures governing the disclosure of information regarding the Funds portfolio holdings. They are reasonably designed to prevent selective disclosure of the Funds portfolio holdings to third parties, other than disclosures that are consistent with the best interests of the Funds shareholders. The Board is responsible for overseeing the implementation of these policies and procedures, and will review them annually to ensure their adequacy.
These policies and procedures apply to employees of the Funds Adviser, administrator, principal underwriter, and all other service providers to the Fund that, in the ordinary course of their activities, come into possession of information about the Funds portfolio holdings. These policies and procedures are made available to each service provider.
The following outlines the policies and procedures adopted by the Fund regarding the disclosure of portfolio related information:
Generally, it is the policy of the Fund that no current or potential investor (or their representative), including any Fund shareholder (collectively, Investors), shall be provided information about the Funds portfolio on a preferential basis in advance of the provision of that same information to other investors.
Disclosure to Investors: Limited portfolio holdings information for the Fund is available to all investors on the Van Eck website at vaneck.com. Information regarding the Funds top holdings and country and sector weightings, updated as of each month-end, is located on this website. Generally, this information is posted to the website within 30 days of the end of the applicable month. This information generally remains available on the website until new information is posted. The Fund reserves the right to exclude any portion of these portfolio holdings from publication when deemed in the best interest of the Fund, and to discontinue the posting of portfolio holdings information at any time, without prior notice.
Best Interest of the Fund: Information regarding the Funds specific security holdings, sector weightings, geographic distribution, issuer allocations and related information (Portfolio-Related Information), shall be disclosed to the public only (i) as required by applicable laws, rules or regulations, (ii) pursuant to the Funds Portfolio-Related Information disclosure policies and procedures, or (iii) otherwise when the disclosure of such information is determined by the Trusts officers to be in the best interest of Fund shareholders.
Conflicts of Interest: Should a conflict of interest arise between the Fund and any of the Funds service providers regarding the possible disclosure of Portfolio-Related Information, the Trusts officers shall resolve any conflict of interest in favor of the Funds interest. In the event that an officer of the Fund is unable to resolve such a conflict of interest, the matter shall be referred to the Trusts Audit Committee for resolution.
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Equality of Dissemination: Shareholders of the Fund shall be treated alike in terms of access to the Funds portfolio holdings. With the exception of certain selective disclosures, noted in the paragraph below, Portfolio-Related Information, with respect to the Fund, shall not be disclosed to any Investor prior to the time the same information is disclosed publicly (e.g., posted on the Funds website). Accordingly, all Investors will have equal access to such information.
Selective Disclosure of Portfolio-Related Information in Certain Circumstances: In some instances, it may be appropriate for the Fund to selectively disclose the Funds Portfolio-Related Information (e.g., for due diligence purposes, disclosure to a newly hired adviser or sub-adviser, or disclosure to a rating agency) prior to public dissemination of such information.
Conditional Use of Selectively-Disclosed Portfolio-Related Information: To the extent practicable, each of the Trusts officers shall condition the receipt of Portfolio-Related Information upon the receiving partys written agreement to both keep such information confidential and not to trade Fund shares based on this information.
Compensation: No person, including officers of the Fund or employees of other service providers or their affiliates, shall receive any compensation in connection with the disclosure of Portfolio-Related Information. Notwithstanding the foregoing, the Fund reserves the right to charge a nominal processing fee, payable to the Fund, to non-shareholders requesting Portfolio Related Information. This fee is designed to offset the Funds costs in disseminating such information.
Source of Portfolio Related Information: All Portfolio-Related Information shall be based on information provided by the Funds administrator(s)/accounting agent.
The Fund may provide non-public portfolio holdings information to third parties in the normal course of their performance of services to the Fund, including to the Funds auditors; custodian; financial printers; counsel to the Fund or counsel to the Funds independent trustees; regulatory authorities; and securities exchanges and other listing organizations. In addition, the Fund may provide non-public portfolio holdings information to data providers, fund ranking/rating services, and fair valuation services. The entities to which the Fund voluntarily discloses portfolio holdings information are required, either by explicit agreement or by virtue of their respective duties to the Fund, to maintain the confidentiality of the information disclosed. Generally, information that is provided to these parties, in the ordinary course of business, is provided on a quarterly basis, with at least a 30 day lag period.
There can be no assurance that the Funds policies and procedures regarding selective disclosure of the Funds portfolio holdings will protect the Fund from potential misuse of that information by individuals or entities to which it is disclosed.
The Board shall be responsible for overseeing the implementation of these policies and procedures. These policies and procedures shall be reviewed by the Board on an annual basis for their continuing appropriateness.
Additionally, the Fund shall maintain and preserve permanently in an easily accessible place a written copy of these policies and procedures. The Fund shall also maintain and preserve, for a period not less than six years (the first two years in an easily accessible place), all Portfolio-Related Information disclosed to the public.
Currently, there are no agreements in effect where non-public information is disclosed or provided to a third party. Should the Fund or Adviser establish such an agreement with another party, the agreement shall bind the party to confidentiality requirements and the duty not to trade on non-public information.
21
The
following information supplements and should be read in conjunction with the
section in the Prospectus entitled Shareholder Information Management of the
Fund.
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 acts as adviser or sub-adviser to other mutual funds, ETFs, other pooled investments and separate accounts. The Adviser serves as investment manager to the Fund pursuant to the Advisory Agreement between the Trust and the Adviser.
The
Adviser has entered into Sub-Advisory Agreements with the following
Sub-Advisers with respect to the Fund: Acorn Derivatives Management Corp.
(Acorn), Coe Capital Management, LLC (Coe Capital), Dix Hills Partners, LLC
(Dix Hills), Martingale Asset Management, L.P. (Martingale), Medley Credit
Strategies, LLC (Medley), Millrace Asset Group, Inc. (Millrace), PanAgora
Asset Management, Inc. (PanAgora), Primary Funds, LLC (Primary) and Tiburon
Capital Management, LLC (Tiburon). As of the date of this SAI, the Funds
assets have been allocated among Acorn, Coe Capital, Medley, Millrace, Primary
and Tiburon. The Adviser and Sub-Advisers furnish an investment program for the
Fund and determine, subject to the overall supervision and review of the Board,
what investments should be purchased, sold or held. With respect to the Fund,
the Adviser recommends to the Board the employment, termination and replacement
of Sub-Advisers.
The Adviser or its affiliates provide the Fund with office space, facilities and simple business equipment and provide the services of executive and clerical personnel for administering the affairs of the Fund. Except as provided for in the Advisory Agreement, the Adviser or its affiliates compensate all executive and clerical personnel and Trustees of the Trust if such persons are employees or affiliates of the Adviser or its affiliates. The advisory fee is computed daily and paid monthly.
The Advisory Agreement and Sub-Advisory Agreements each provide that it shall continue in effect from year to year with respect to the Fund as long as it is approved at least annually by (i) the Board or (2) by a vote of a majority of the outstanding voting securities of the Fund (as defined in the 1940 Act), provided that in either event such continuance is also 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 Advisory Agreement and Sub-Advisory Agreements are terminable without penalty, on 60 days notice, by the Board or by the vote of the holders of a majority (as defined in the 1940 Act) of the Funds outstanding voting securities. The Advisory Agreement and Sub-Advisory Agreements are also terminable upon 60 days notice by the Adviser and will terminate automatically if they are assigned (as defined in the 1940 Act).
The
management fee for the Fund is at an annual rate of (i) 1.00% of the Funds
average daily net assets that are managed by the Adviser, and not by a
Sub-Adviser, and that are invested in Underlying Funds; and (ii) 1.60% of the
Funds average daily net assets with respect to all other assets of the Fund.
These fees are computed daily and paid monthly. For the fiscal years ended
December 31, 2009, 2010 and 2011, the Adviser earned a fee in the amounts of
$87,250, $398,167 and $756,694, respectively, which amounts are equal to 1.31%,
1.32% and 1.37% of the average daily net asset value of the Fund for such year,
respectively.
The Adviser pays the Sub-Advisers a fee out of the management fee paid to the Adviser. The Fund is not responsible for the payment of the fee to the Sub-Advisers. For the fiscal years ended December 31, 2009, 2010 and 2011, the aggregate fees paid by the Adviser to the Sub-Advisers were $30,626, $71,102 and $220,720, respectively, which amounts are equal to 0.46%, 0.24% and 0.40% of the average daily net asset value of the Fund for such year, respectively.
For
the fiscal years ended December 31, 2009, 2010 and 2011, the Adviser waived or
assumed expenses in the amount of $33,664, $2,307 and $5,412, respectively.
22
Pursuant to the Advisory 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.
Shares
of the Fund are offered on a continuous basis and are distributed through Van
Eck Securities Corporation, the Distributor, 335 Madison Avenue, New York, New
York 10017, a wholly owned subsidiary of the Adviser. The Trustees of the Trust
have approved a Distribution Agreement appointing the Distributor as
distributor of shares of the Fund. The Trust has authorized one or more
intermediaries (who are authorized to designate other intermediaries) to accept
purchase and redemption orders on the Trusts behalf. The Trust will be deemed
to have received a purchase or redemption order when the authorized broker or
its designee accepts the order. Orders will be priced at the net asset value
next computed after they are accepted by the authorized broker or its designee.
The Distribution Agreement provides that the Distributor will pay all fees and expenses in connection with printing and distributing prospectuses and reports for use in offering and selling shares of the Fund and preparing, printing and distributing advertising or promotional materials. The Fund will pay all fees and expenses in connection with registering and qualifying their shares under federal and state securities laws. The Distribution Agreement is reviewed and approved annually by the Board.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
VAN ECK
SECURITIES
|
|
REALLOWANCE
|
|
||||||
|
|
|
|
|
|
|
||||||||
Multi-Manager Alternatives Fund |
|
|
2011 |
|
|
$ |
10,161 |
|
|
|
$ |
68,455 |
|
|
|
|
|
2010 |
|
|
$ |
16,955 |
|
|
|
$ |
107,333 |
|
|
P LAN OF DISTRIBUTION (12b-1 PLAN)
The
Fund (Class A and Class C) has adopted a Plan pursuant to Rule 12b-1 (a Plan)
which provides for the compensation of brokers and dealers who sell shares of
the Fund or provide servicing. The Plan is a compensation-type plan with a
carry-forward provision, which provide that the Distributor recoup distribution
expenses in the event the Plan is terminated. Pursuant to the Plan, the
Distributor provides the Fund at least quarterly with a written report of the
amounts expended under the Plan and the purpose for which such expenditures
were made. The Trustees review such reports on a quarterly basis.
The Plan is reapproved annually for the Fund, by the Trustees of the Trust, including a majority of the Trustees who are not interested persons of the Fund and who have no direct or indirect financial interest in the operation of the Plan.
The Plan shall continue in effect as to the Fund, provided such continuance is approved annually by a vote of the Trustees in accordance with the Act. The Plan may not be amended to increase materially the amount to be spent for the services described therein without approval of the shareholders of the Fund, and all material amendments to the Plan must also be approved by the Trustees in the manner described above. The Plan may be terminated at any time, without payment of any penalty, by vote of a majority of the Trustees who are not interested persons of the Fund and who have no direct or indirect financial interest in the operation of the Plan, or by a vote of a majority of the outstanding voting securities of the Fund (as defined in the Act) on written notice to any other party to the Plan. The Plan will automatically terminate in the event of its assignment (as defined in the 1940 Act). So long as the Plan is in effect, the election and nomination of Trustees who are not interested persons of the Trust shall be
23
committed to the discretion of the Trustees who are not interested persons. The Trustees have determined that, in their judgment, there is a reasonable likelihood that the Plan will benefit the Fund and their shareholders. The Fund will preserve copies of the Plan and any agreement or report made pursuant to Rule 12b-1 under the Act, for a period of not less than six years from the date of the Plan or such agreement or report, the first two years in an easily accessible place. For additional information regarding the Plan, see the Prospectus.
|
|
|
|
|
|
|
CLASS A |
|
|
|
|
|
||
|
|
|
|
|
Total 12b-1 Fees |
|
$ |
91,652 |
|
Compensation to Dealers |
|
|
(80,319 |
) |
|
|
|
|
|
Net 12b-1 Fees |
|
|
11,333 |
|
|
|
|
|
|
Expenditures: |
|
|
|
|
Printing and Mailing |
|
|
(21,970 |
) |
Telephone |
|
|
(1,351 |
) |
Marketing Department |
|
|
(10,650 |
) |
Sales Expenses |
|
|
(72,477 |
) |
|
|
|
||
Total Expenditures |
|
|
(106,418 |
) |
|
|
|
||
Expenditures in Excess of Net 12b-1 Fees |
|
|
(95,085 |
) |
|
|
|
A DMINISTRATIVE AND PROCESSING SUPPORT PAYMENTS.
The Fund may make payments (either directly or as reimbursement to the Distributor or an affiliate of the Distributor for payments made by the Distributor) to financial intermediaries (such as brokers or third party administrators) for providing the types of services that would typically be provided by the Funds transfer agent, including sub-accounting, sub-transfer agency or similar recordkeeping services, shareholder reporting, shareholder transaction processing, and/or the provision of call center support. These payments will be in lieu of, and may differ from, amounts paid to the Funds transfer agent for providing similar services to other accounts. These payments may be in addition to any amounts the intermediary may receive as compensation for distribution or shareholder servicing pursuant to the Plan or as part of any revenue sharing or similar arrangement with the Distributor or its affiliates, as described elsewhere in the Prospectus.
P ORTFOLIO MANAGER COMPENSATION
Adviser
The Advisers portfolio managers are paid a fixed base salary and a bonus. The bonus is based upon the quality of investment analysis and management of the funds for which they serve as portfolio manager. 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 affiliates manage accounts with incentive fees.
The Advisers portfolio managers may serve as portfolio managers to other clients. Such Other Clients may have investment objectives or may implement investment strategies similar to those of the Fund. When the portfolio managers implement investment strategies for Other Clients that are similar or
24
directly contrary to the positions taken by the Fund, the prices of the Funds securities may be negatively affected. The compensation that the Funds portfolio manager receives for managing other client accounts may be higher than the compensation the portfolio manager receives for managing the Fund. The portfolio manager does not believe that his activities materially disadvantage the Fund. The Adviser has implemented procedures to monitor trading across funds and its Other Clients.
Acorn
All employees of Acorn receive a base salary and a discretionary cash bonus that is based on the overall profitability of the firm and his/her contribution to the overall well-being of the firm to help reduce potential conflicts of interest. The portfolio management team manages accounts with incentive fees.
Coe Capital
Coe Capitals portfolio manager is responsible for managing multiple types of accounts that may, or may not, invest in securities in which the Fund may invest or pursue a strategy similar to the Fund. The portfolio manager who is responsible for managing the portion of the assets of the Fund may also manage other registered investment companies, in a sub-advisory capacity or for Coe Capital, unregistered funds and/or other pooled investment vehicles, separate accounts, and model portfolios.
The portfolio manager is compensated through management fees of the model portfolios and the hedge funds as well as a performance allocation based on the returns of the hedge funds. Total compensation is generally not fixed, but rather is based on the assets under management and performance of the accounts. As the portfolio manager is the managing member of Coe Capital, his take-home pay is the net result of the revenues and expenses of the firm.
Dix Hills
The identified Dix Hills portfolio manager is a founding shareholder of Dix Hills. The compensation of the identified portfolio manager has two primary components: (I) a base salary and (2) a percentage of the profits of the firm paid out quarterly. There are also certain retirement, insurance and other benefits that are broadly available to all Dix Hills employees. Compensation of other Dix Hills investment professionals is reviewed primarily on an annual basis. Cash bonuses and adjustments in base salary are typically paid or put into effect at or shortly after the December 31 fiscal year of Dix Hills.
Dix Hills compensates its founding shareholders through a base salary and a percentage of the net profits of the firm. Other portfolio managers are compensated based primarily on the scale and complexity of their responsibilities, with the focus of the evaluation primarily based on success in achieving portfolio objectives for managed funds and accounts, and secondarily on the performance of the firm. Dix Hills seeks to compensate all portfolio managers commensurate with their responsibilities and performance, and competitive with other firms within the investment management industry.
Salaries, and more appropriately, profit participations are also influenced by the operating performance of Dix Hills. While the salaries of Dix Hillss founding shareholders are comparatively fixed, profit participations may fluctuate substantially from year to year, based on changes in financial performance.
Martingale
Martingales portfolio managers are generally responsible for managing multiple types of accounts that may, or may not, have investment objective, strategies, risks and fees similar to those of the Funds assets. The portfolio managers responsible for managing a portion of the assets of the Fund may also manage other client portfolios for sub-advised registered investment companies, collective investment trusts, unregistered funds and/or other pooled investment vehicles, separate accounts,
25
separately managed account programs (often referred to as wrap accounts) and model portfolios. In some cases, at the clients request, Martingales compensation can be based on investment performance.
Compensation for all Martingale investment professionals includes an annual base salary plus opportunities to earn a yearly bonus, a profit-sharing retirement plan and partnership income. Salary, bonus and profit-sharing partnership distributions are all cash-based compensation. Changes in salary or bonus for individual employees are based on traditional employee performance evaluation criteria. The pool of funds available for salary, bonuses and profit sharing are linked to the overall success of the firm.
Medley
Medleys investment team is paid on a competitive salary and bonus structure, which is determined both quantitatively and qualitatively. Salary and bonus are paid in cash. Total compensation is generally not fixed, but rather is based on the following factors: (i) leadership, teamwork and commitment, (ii) maintenance of current knowledge and opinions on companies owned in the portfolio; (iii) generation and development of new investment ideas, including the quality of security analysis and identification of appreciation catalysts; (iv) ability and willingness to develop and share ideas on a team basis; and (v) the performance results of the portfolios managed by the investment team.
Millrace
Millraces portfolio managers are paid an annual salary and are the only shareholders of Millrace. To the extent possible, the private fund managed by Millrace and the Fund will be invested in the same securities in the same relative proportions. The private funds general partner, which Messrs. Kitchel and Maroney control through a corporate structure, receives an incentive allocation of the profits of the private fund.
PanAgora
All
investment professionals receive industry competitive salaries (based on an
annual benchmarking study) and are rewarded with meaningful performance-based
annual bonuses. All employees of the PanAgora are evaluated by comparing their
annual performance against tailored and specific objectives. These goals are
developed and monitored through the cooperation of employees and their immediate
supervisors. Portfolio managers have specific goals regarding the investment
performance of the accounts they manage and not revenue associated with these
accounts.
Senior
employees of PanAgora can own up to 20% of PanAgora through restricted stocks
and options under the provisions of the PanAgora Employees Ownership Plan. To
ensure the retention benefit of the plan, the ownership is subject to a vesting
schedule. The ownership is primarily shared by members of the senior management
team as well as senior investment and research professionals.
Primary
Christopher Moshy and Timothy Madey each own 50% of Primary and are compensated equally based on the profits of Primary.
Tiburon
Peter M.
Lupoff, Charlie Trisiripisal, and Kenneth Staut are each paid the amount of
their living expenses which are drawn against Tiburons revenues. In addition,
in 2011, Tiburon anticipates that an annual fixed salary will be paid to each
of Mr. Lupoff, Mr. Trisiripisal and Mr. Staut along with performance-based
bonuses. The performance-based compensation received by Mr. Lupoff, Mr.
Trisiripisal and Mr. Staut is derived entirely from the performance fees
payable to Tiburon, (based on assets under management) by an onshore/offshore
master feeder fund and various separately managed accounts managed by Tiburon.
26
P ORTFOLIO MANAGER SHARE OWNERSHIP
The
portfolio holdings of each portfolio manager and investment team member, as of
December 31, 2011, is shown below.
|
|
|
|
|
|
|
|
Fund |
None |
$1 to
|
$10,001 to
|
$50,000 to
|
$100,001 to
|
$500,001 to
|
Over $1,000,000 |
Stephen H. Scott |
|||||||
Multi-Manager
|
|
|
X |
|
|
|
|
Jan F. van Eck |
|||||||
Multi-Manager
|
|
|
|
|
X |
|
|
The portfolio holdings of each portfolio manager and investment team member, as of March 31, 2012, is shown below.
|
|
|
|
|
|
|
|
Fund |
None |
$1 to
|
$10,001 to
|
$50,000 to
|
$100,001 to
|
$500,001 to
|
Over $1,000,000 |
Stephen H. Scott |
|||||||
Multi-Manager
|
|
|
X |
|
|
|
|
Jan F. van Eck |
|||||||
Multi-Manager
|
|
|
|
|
X |
|
|
|
O THER ACCOUNTS MANAGED BY THE PORTFOLIO MANAGERS
Below is a
table of the number of other accounts managed within each of the following
categories and the total assets in the accounts managed within each category,
as of December 31, 2011.
Adviser
|
|||||
|
|
|
|
|
|
Name of
|
Category of
|
Other Accounts
Managed
|
Accounts with
respect to which the advisory
|
||
Number of
|
Total Assets in
|
Number of Accounts |
Total Assets in
|
||
Stephen Scott |
Registered
|
1 |
$9.44 million |
0 |
$0 |
Other
pooled
|
0 |
$0 |
0 |
$0 |
|
Other accounts |
0 |
$0 |
0 |
$0 |
|
Jan van Eck |
Registered
|
1 |
$9.44 million |
0 |
$0 |
Other
pooled
|
0 |
$0 |
0 |
$0 |
|
Other accounts |
0 |
$0 |
0 |
$0 |
|
|
27
Acorn
|
|||||
|
|
|
|
|
|
Name of
|
Category of
|
Other Accounts
Managed
|
Accounts with
respect to which the advisory
|
||
Number of
|
Total Assets in
|
Number of Accounts |
Total Assets in
|
||
Andrew Greeley, CFA |
Registered
|
1 |
$3 million |
0 |
$0 |
Other
pooled
|
2 |
$30 million |
2 |
$30 million |
|
Other accounts |
6 |
$544 million |
6 |
$544 million |
|
Robert J. Groden |
Registered
|
1 |
$3 million |
0 |
$0 |
Other
pooled
|
2 |
$30 million |
2 |
$30 million |
|
Other accounts |
6 |
$544 million |
6 |
$544 million |
|
William O. Melvin, Jr. |
Registered
|
1 |
$3 million |
0 |
$0 |
Other
pooled
|
2 |
$30 million |
2 |
$30 million |
|
Other accounts |
6 |
$544 million |
6 |
$544 million |
|
|
Coe Capital
|
|||||
|
|
|
|
|
|
Name of
|
Category of
|
Other Accounts
Managed
|
Accounts with
respect to which the advisory
|
||
Number of
|
Total Assets in
|
Number of Accounts |
Total Assets in
|
||
Mark D. Coe |
Registered
|
2 |
$45 million |
0 |
$0 |
Other
pooled
|
5 |
$195 million |
5 |
$195 million |
|
Other accounts |
300 |
$100 million |
0 |
$0 |
|
|
Dix Hills
|
|||||
|
|
|
|
|
|
Name of
|
Category of
|
Other Accounts
Managed
|
Accounts with
respect to which the advisory
|
||
Number of
|
Total Assets in
|
Number of Accounts |
Total Assets in
|
||
Joseph Baggett |
Registered
|
2 |
$171 million |
0 |
$0 |
Other
pooled
|
4 |
$57.8 million |
4 |
$57.8 million |
|
Other accounts |
8 |
$397 million |
13 |
$334 million |
|
|
28
Martingale
|
|||||
|
|
|
|
|
|
Name of
|
Category of
|
Other Accounts
Managed
|
Accounts with
respect to which the advisory
|
||
Number of
|
Total Assets in
|
Number of Accounts |
Total Assets in
|
||
James M. Eysenbach |
Registered
|
1 |
$17.2 million |
0 |
$0 |
Other
pooled
|
11 |
$588.3 million |
1 |
$0 |
|
Other accounts |
37 |
$1.017 billion |
1 |
$118.5 million |
|
William E. Jacques |
Registered
|
1 |
$17.2 million |
0 |
$0 |
Other
pooled
|
11 |
$588.3 million |
1 |
$0 |
|
Other accounts |
37 |
$1.017 billion |
1 |
$118.5 million |
|
Samuel Nathans |
Registered
|
1 |
$17.2 million |
0 |
$0 |
Other
pooled
|
11 |
$588.3 million |
1 |
$0 |
|
Other accounts |
37 |
$1.017 billion |
1 |
$118.5 million |
|
|
Medley
|
|||||
|
|
|
|
|
|
Name of
|
Category of
|
Other Accounts
Managed
|
Accounts with
respect to which the advisory
|
||
Number of
|
Total Assets in
|
Number of Accounts |
Total Assets in
|
||
Robert Comizio |
Registered
|
1 |
$41 million |
1 |
$41 million |
Other
pooled
|
0 |
$0 |
0 |
$0 |
|
Other accounts |
0 |
$0 |
0 |
$0 |
|
Dean Crowe |
Registered
|
1 |
$41 million |
1 |
$41 million |
Other
pooled
|
0 |
$0 |
0 |
$0 |
|
Other accounts |
0 |
$0 |
0 |
$0 |
|
Joseph Princiotta |
Registered
|
1 |
$41 million |
1 |
$41 million |
Other
pooled
|
0 |
$0 |
0 |
$0 |
|
Other accounts |
0 |
$0 |
0 |
$0 |
|
Frank Wang |
Registered
|
1 |
$41 million |
1 |
$41 million |
Other
pooled
|
0 |
$0 |
0 |
$0 |
|
Other accounts |
0 |
$0 |
0 |
$0 |
|
|
29
Millrace
|
|||||
|
|
|
|
|
|
Name of
|
Category of
|
Other Accounts
Managed
|
Accounts with
respect to which the advisory
|
||
Number of
|
Total Assets in
|
Number of Accounts |
Total Assets in
|
||
William L. Kitchel III |
Registered
|
0 |
$0 |
0 |
$0 |
Other
pooled
|
1 |
$56.8 million |
1 |
$56.8 million |
|
Other accounts |
0 |
$0 |
0 |
$0 |
|
Whitney M. Maroney |
Registered
|
0 |
$0 |
0 |
$0 |
Other
pooled
|
1 |
$56.8 million |
1 |
$56.8 million |
|
Other accounts |
0 |
$0 |
0 |
$0 |
|
|
PanAgora
|
|||||
|
|
|
|
|
|
Name of
|
Category of
|
Other Accounts
Managed
|
Accounts with
respect to which the advisory
|
||
Number of
|
Total Assets in
|
Number of Accounts |
Total Assets in
|
||
Bryan Belton |
Registered
|
0 |
$0 |
0 |
$0 |
Other
pooled
|
3 |
$335.9 million |
1 |
$17.9 million |
|
Other accounts |
18 |
$1.449 billion |
7 |
$125.1 million |
|
Jonathan Beaulieu |
Registered
|
0 |
$0 |
0 |
$0 |
Other
pooled
|
3 |
$335.9 million |
1 |
$17.9 million |
|
Other accounts |
18 |
$1.449 billion |
7 |
$125.1 million |
|
Edward Qian |
Registered
|
0 |
$0 |
0 |
$0 |
Other
pooled
|
12 |
$1.774 billion |
2 |
$276.0 million |
|
Other accounts |
41 |
$3.950 billion |
9 |
$552.6 million |
|
|
30
Primary
|
|||||
|
|
|
|
|
|
Name of
|
Category of
|
Other Accounts
Managed
|
Accounts with
respect to which the advisory
|
||
Number of
|
Total Assets in
|
Number of Accounts |
Total Assets in
|
||
Timothy Madey |
Registered
|
1 |
$3.4 million |
1 |
$3.4 million |
Other
pooled
|
1 |
$9.5 million |
1 |
$9.5 million |
|
Other accounts |
2 |
$14.8 million |
2 |
$14.8 million |
|
Christopher Moshy |
Registered
|
1 |
$3.4 million |
1 |
$3.4 million |
Other
pooled
|
1 |
$9.5 million |
1 |
$9.5 million |
|
Other accounts |
2 |
$14.8 million |
2 |
$14.8 million |
Tiburon
|
|
|
|
|
|
Name of
|
Category of
|
Other Accounts
Managed
|
Accounts with
respect to which the advisory
|
||
Number of
|
Total Assets in
|
Number of Accounts |
Total Assets in
|
||
Peter M. Lupoff |
Registered
|
3 |
$46.3 million |
1 |
$6.3 million |
Other
pooled
|
0 |
$0 |
0 |
$0 |
|
Other accounts |
0 |
$0 |
0 |
$0 |
|
Kenneth Staut |
Registered
|
3 |
$46.3 million |
1 |
$6.3 million |
Other
pooled
|
0 |
$0 |
0 |
$0 |
|
Other accounts |
0 |
$0 |
0 |
$0 |
|
Charlie Trisiripisal |
Registered
|
3 |
$46.3 million |
1 |
$6.3 million |
Other
pooled
|
0 |
$0 |
0 |
$0 |
|
Other accounts |
0 |
$0 |
0 |
$0 |
|
|
31
P ORTFOLIO TRANSACTIONS AND BROKERAGE
When selecting brokers and dealers to handle the purchase and sale of portfolio securities, the Adviser and Sub-Advisers look for prompt execution of the order at a favorable price. Generally, the Adviser and Sub-Advisers work 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 and Sub-Advisers owe a duty to their clients to provide best execution on trades effected.
The Adviser and Sub-Advisers assume 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 and Sub-Advisers 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 and Sub-Advisers. 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.
The portfolio managers may deem it appropriate for one fund or account they manage to sell a security while another fund or account they manage is purchasing the same security. Under such circumstances, the portfolio managers may arrange to have the purchase and sale transactions effected directly between the funds and/or accounts (cross transactions). Cross transactions will be effected in accordance with procedures adopted pursuant to Rule 17a-7 under the 1940 Act.
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 and Sub-Advisers based upon their knowledge of available information as to the general level of commissions paid by other institutional investors for comparable services.
The Adviser or a Sub-Adviser may cause the Fund to pay a broker-dealer who furnishes brokerage and/or research services, a commission that is in excess of the commission another broker-dealer would have received for executing the transaction, if it is determined that such commission is reasonable in relation to the value of the brokerage and/or research services as defined in Section 28(e) of the Securities Exchange Act of 1934, as amended, which have been provided. Such research services may include, among other things, analyses and reports concerning issuers, industries, securities, economic factors and trends and portfolio strategy. Any such research and other information provided by brokers to the Adviser or a Sub-Adviser is considered to be in addition to and not in lieu of services required to be performed by the Adviser or a Sub-Adviser under its Agreement with the Trust. The research services provided by broker-dealers can be useful to the Adviser or a Sub-Adviser in serving its other clients or clients of the Advisers affiliates. The Trustees periodically review the Advisers and Sub-Advisers performance of its responsibilities in connection with the placement of portfolio transactions on behalf of the Fund. The Trustees also review the commissions paid by the Fund over representative periods of time to determine if they are reasonable in relation to the benefits to the Fund.
32
|
|
|
|
|
|
|
|
|
|
|
|
Multi-Manager
Alternatives
|
|
|
|
|
|
||
2011 |
|
$ |
489,119 |
|
2010 |
|
$ |
133,043 |
|
|
|
|
|
|
The Adviser does not consider sales of shares of the Fund as a factor in the selection of broker-dealers to execute portfolio transactions for the Fund. The Adviser has implemented policies and procedures pursuant to Rule 12b-1(h) that are reasonably designed to prevent the consideration of the sales of fund shares when selecting broker-dealers to execute trades.
Due to the potentially high rate of turnover, the Fund may pay a greater amount in brokerage commissions than a similar size fund with a lower turnover rate. The portfolio turnover rates of the Fund may vary greatly from year to year. In addition, since the Fund may have a high rate of portfolio turnover, the Fund may realize an increase in the rate of capital gains or losses. See Taxes in the Prospectus and the SAI.
LEADERSHIP STRUCTURE AND THE BOARD
33
The Independent Trustees regularly meet outside the presence of management and are advised by independent legal counsel. The Board has determined that its committees help ensure that the Trust has effective and independent governance and oversight. The Board also believes that its leadership structure facilitates the orderly and efficient flow of information to the Independent Trustees from management of the Trust, including the Adviser.
RISK OVERSIGHT
The Fund and the Trust are subject to a number of risks, including investment, compliance, operational, and valuation risks. Day-to-day risk management functions are within the responsibilities of the Adviser, the sub-advisers, the Distributor and the other service providers (depending on the nature of the risk) that carry out the Funds investment management, distribution and business affairs. Each of the Adviser, the sub-advisers, the Distributor and the other service providers have their own, independent interests and responsibilities in risk management, and their policies and methods of carrying out risk management functions will depend, in part, on their individual priorities, resources and controls.
The Board recognizes that not all risks that may affect the Trust can be identified, that it may not be practical or cost-effective to eliminate or mitigate certain risks, that it may be necessary to bear certain risks to achieve the Trusts goals, and that the processes, procedures and controls employed to address certain risks may be limited in their effectiveness. Moreover, reports received by the Trustees that may relate to risk management matters are typically summaries of the relevant information. As a result of the foregoing and other factors, the function of the Board with respect to risk management is one of oversight and not active involvement in, or coordination of, day-to-day-day risk management activities for the Trust. The Board may, at any time and in its discretion, change the manner in which it conducts its risk oversight role.
34
The Trustees of the Trust, their address, position with the Trust, age and principal occupations during the past five years are set forth below.
35
|
|
(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. The Board established a mandatory
retirement policy applicable to all Independent Trustees, which provides that
Independent Trustees shall resign from the Board on December 31 of the year
such Trustee reaches the age of 75.
|
(3) |
The Fund Complex consists of Van Eck Funds,
Van Eck VIP Trust and Market Vectors ETF Trust.
|
(A) |
Member of the Audit Committee.
|
(G) |
Member of the Governance Committee. |
Set forth below is additional information relating to the professional experience, attributes and skills of each Trustee relevant to such individuals qualifications to serve as a Trustee:
|
|
|
|
|
Jon Lukomnik has extensive business and financial experience, particularly in the investment management industry. He currently serves as Managing Partner of Sinclair Capital LLC, a consulting firm to the investment management industry and is Executive Director for Investor Responsibility Research Center Institute, a not-for-profit organization that funds research on corporate responsibility and investing. |
|
|
|
|
|
Jane DiRenzo Pigott has extensive business and financial experience and serves as Managing Director of R3 Group LLC, a firm specializing in providing leadership, change and diversity/inclusion consulting services. Ms. Pigott has prior experience as an independent trustee of other mutual funds and previously served as chair of the global Environmental Law practice group at Winston & Strawn LLP. |
|
|
|
|
|
Wayne Shaner
has extensive business and financial experience, particularly in the
investment management industry. He currently serves as the Managing Partner
of Rockledge Partners LLC, a registered investment adviser and as a Public
Member of the Investment Committee of the Maryland State Retirement System.
Mr. Shaner also has experience as an independent trustee of another mutual
funds.
|
|
|
|
|
|
Alastair Short has extensive business and financial experience, particularly in the investment management industry. He has served as a president, board member or executive officer of various businesses, including asset management and private equity investment firms. Mr. Short also serves as an independent director of an offshore investment company. |
|
|
|
Richard Stamberger has extensive business and financial experience and serves as the president, chief executive officer and board member of SmartBrief Inc., a media company. Mr. Stamberger has experience as a member of the board of directors of numerous not-for-profit organizations and has more than 15 years of experience as a member of the Board of the Trust. |
|
|
|
Robert Stelzl has extensive business and financial experience, particularly in the investment management and real estate industries. He currently serves as a court-appointed trustee for a number of family trusts for which he provides investment management services. |
The forgoing information regarding the experience, qualifications, attributes and skills of Trustees is provided pursuant to requirements of the SEC, and does not constitute holding out of the Board or any Trustee as having any special expertise or experience, and shall not impose any greater responsibility or liability on any such person or on the Board by reason thereof.
COMMITTEE STRUCTURE
The Board has established a standing Audit Committee and a standing Governance Committee to assist the Board in the oversight and direction of the business and affairs of the Trust. Each Committee is comprised of all of the members of the Board, all of whom are Independent Trustees.
36
The Independent Trustees shall, when identifying candidates for the position of Independent Trustee, consider candidates recommended by a shareholder of the Fund if such recommendation provides sufficient background information concerning the candidate and evidence that the candidate is willing to serve as an Independent Trustee if selected, and is received in a sufficiently timely manner. Shareholders should address recommendations in writing to the attention of the Governance Committee, c/o the Secretary of the Trust. The Secretary shall retain copies of any shareholder recommendations which meet the foregoing requirements for a period of not more than 12 months following receipt. The Secretary shall have no obligation to acknowledge receipt of any shareholder recommendations.
The executive officers of the Trust, their age and address, the positions they hold with the Trust, their term of office and length of time served and their principal business occupations during the past five years are shown below.
|
|
|
|
|
|
|
|
|
|
|
|||||||||
OFFICERS NAME,
|
|
|
POSITION(S) HELD
|
|
|
TERM OF
|
|
|
PRINCIPAL OCCUPATIONS
|
Russell G. Brennan, 47 |
|
|
Assistant Vice President and Assistant Treasurer |
|
|
Since 2008 |
|
|
Assistant Vice President of the Adviser, Van Eck Associates Corporation (Since 2008); Manager (Portfolio Administration) of the Adviser (September 2005-October 2008); Officer of other investment companies advised by the Adviser. |
Charles T. Cameron, 53 |
|
|
Vice President |
|
|
Since 1996 |
|
|
Director of Trading (Since 1995) and Portfolio Manager (Since 1997) for the Adviser; Officer of other investment companies advised by the Adviser. |
John Crimmins, 54 |
|
|
Vice President, Treasurer, Chief Financial Officer and Principal Accounting Officer |
|
|
Since 2009 (Treasurer); since 2012 (Vice President, Chief Financial Officer and Principal Accounting Officer) |
|
|
Vice President of Portfolio Administration of the Adviser (Since 2009); Vice President of Van Eck Securities Corporation (VESC) and Van Eck Absolute Return Advisers (VEARA) (Since 2009); Chief Financial, Operating and Compliance Officer, Kern Capital Management LLC (September 1997-February 2009); Officer of other investment companies advised by the Adviser. |
|
37
|
|
|
|
|
|
|
|
|
|
|
|||||||||
OFFICERS NAME,
|
|
|
POSITION(S) HELD
|
|
|
TERM OF
|
|
|
PRINCIPAL OCCUPATIONS
|
Wu-Kwan Kit, 30 |
|
|
Assistant Vice President and Assistant Secretary |
|
|
Since 2011 |
|
|
Assistant Vice President, Associate General Counsel and Assistant Secretary of the Adviser, VESC and VEARA (Since 2011); Associate, Schulte Roth & Zabel LLP (September 2007-August 2011) |
Susan C. Lashley, 57 |
|
|
Vice President |
|
|
Since 1998 |
|
|
Vice President of the Adviser and VESC; Officer of other investment companies advised by the Adviser. |
Thomas K. Lynch, 55 |
|
|
Vice President and Chief Compliance Officer |
|
|
Since 2007 |
|
|
Chief Compliance Officer of the Adviser and VEARA (Since December 2006) and VESC (Since August 2008); Officer of other investment companies advised by the Adviser. |
Laura I. Martínez, 32 |
|
|
Assistant Vice President and Assistant Secretary |
|
|
Since 2008 |
|
|
Assistant Vice President, Associate General Counsel and Assistant Secretary of the Adviser, VESC and VEARA (Since 2008); Associate, Davis Polk & Wardwell (October 2005-June 2008); Officer of other investment companies advised by the Adviser. |
Joseph J. McBrien, 63 |
|
|
Senior Vice President, Secretary and Chief Legal Officer |
|
|
Since 2005 |
|
|
Senior Vice President, General Counsel and Assistant Secretary of the Adviser, VESC and VEARA (Since December 2005); Director of VESC and VEARA (since October 2010); Officer of other investment companies advised by the Adviser. |
Jonathan R. Simon, 37 |
|
|
Vice President and Assistant Secretary |
|
|
Since 2006 |
|
|
Vice President, Associate General Counsel and Assistant Secretary of the Adviser, VESC and VEARA (Since 2006); Officer of other investment companies advised by the Adviser. |
Bruce J. Smith, 57 |
|
|
Senior Vice President |
|
|
Since 1985 |
|
|
Senior Vice President, Chief Financial Officer, Treasurer and Controller of the Adviser, VESC and VEARA (Since 1997); Director of the Adviser, VESC and VEARA (Since October 2010); Officer of other investment companies advised by the Adviser. |
Jan F. van Eck, 48 |
|
|
Chief Executive Officer and President |
|
|
Since 2005 (serves as Chief Executive Officer and President since 2010, prior thereto served as Executive Vice President) |
|
|
Director and Owner of the Adviser (Since July 1993); Executive Vice President of the Adviser (January 1985 - October 2010); Director (Since November 1985), President (Since October 2010) and Executive Vice President (June 1991 - October 2010) of VESC; Director and President of VEARA; Trustee, President and Chief Executive Officer of Market Vectors ETF Trust; Officer of other investment companies advised by the Adviser. |
|
|
|
(1) |
The
address for each Executive Officer is 335 Madison Avenue, 19th Floor, New
York, NY 10017.
|
(2) |
Officers are elected yearly by the Trustees. |
For each Trustee, the dollar range of equity securities beneficially owned by the Trustee in the Fund and in all registered investment companies advised by the Adviser (Family of Investment Companies) that are overseen by the Trustee is shown below.
|
|
|
|
|
|
||||
Name of Trustee |
|
Dollar Range
of Equity Securities in
|
|
Aggregate
Dollar Range of Equity
|
Jon Lukomnik |
|
Over $100,000 |
|
Over $100,000 |
Jane DiRenzo Pigott |
|
None |
|
Over $100,000 |
Wayne Shaner |
|
None |
|
$1 - $10,000 |
R. Alastair Short |
|
None |
|
Over $100,000 |
|
38
|
|
|
|
|
|
||||
Name of Trustee |
|
Dollar Range
of Equity Securities in
|
|
Aggregate
Dollar Range of Equity
|
Richard D. Stamberger |
|
$1 - $10,000 |
|
Over $100,000 |
Robert Stelzl |
|
None |
|
Over $100,000 |
|
* Includes shares which may be deemed to be beneficially owned through the Trustee Deferred Compensation Plan.
As to each Independent Trustee and his/her 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.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jon
|
|
Jane DiRenzo
|
|
Wayne
|
|
R. Alastair
|
|
Richard D.
|
|
Robert
|
|
||||||
|
|
|
|
|
|
|
|
|
||||||||||||
|
Aggregate Compensation from the Van Eck Trusts |
|
$ |
100,000 |
|
$ |
90,000 |
|
$ |
90,000 |
|
$ |
100,000 |
|
$ |
110,000 |
|
$ |
90,000 |
|
|
Aggregate Deferred Compensation from the Van Eck Trusts |
|
$ |
50,000 |
|
$ |
90,000 |
|
$ |
0 |
|
$ |
0 |
|
$ |
27,500 |
|
$ |
45,000 |
|
|
Pension or Retirement Benefits Accrued as Part of the Van Eck Trusts Expenses |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
Estimated Annual Benefits Upon Retirement |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
Total Compensation From the Van Eck Trusts and the Fund Complex (1) Paid to Trustee |
|
$ |
100,000 |
|
$ |
90,000 |
|
$ |
90,000 |
|
$ |
255,875 |
|
$ |
249,750 |
|
$ |
90,000 |
|
|
|
(1) |
The Fund Complex consists of the Van Eck Trusts and Market Vectors ETF Trust. |
|
Principal Holders Ownership
39
|
|
|
|
|
|
|
|
CLASS |
|
|
NAME AND ADDRESS OF OWNER |
|
|
PERCENTAGE
|
|
|
|
|
|
||||
|
|||||||
Class A |
|
UBS
Wealth Management USA
|
|
38.23 |
% |
||
|
|
|
|
|
|
||
Class A |
|
Van
Eck Absolute Return
|
|
6.53 |
% |
||
|
|
|
|
|
|
||
Class I |
|
Brown
Brothers Harriman & Co.
|
|
25.88 |
% |
||
|
|
|
|
|
|
||
Class I |
|
Van
Eck Absolute Return
|
|
21.08 |
% |
||
|
|
|
|
|
|
||
Class I |
|
Brown
Brothers Harriman & Co.
|
|
18.26 |
% |
||
|
|
|
|
|
|
||
Class I |
|
Brown
Brothers Harriman & Co.
|
|
13.61 |
% |
||
|
|
|
|
|
|
||
Class I |
|
Brown
Brothers Harriman & Co.
|
|
12.42 |
% |
||
|
|
|
|
|
|
||
Class I |
|
Brown
Brothers Harriman & Co.
|
|
5.10 |
% |
||
|
|
|
|
|
|
||
Class Y |
|
Charles
Schwab & Co Inc
|
|
35.24 |
% |
||
|
|
|
|
|
|
||
Class Y |
|
NFS
LLC FEBO
|
|
17.13 |
% |
||
|
|
|
|
|
|
||
Class Y |
|
LPL
Financial
|
|
8.31 |
% |
||
|
40
Control Person Ownership
|
|
|
|
|
|
|
|
FUND |
|
|
NAME AND ADDRESS OF OWNER |
|
|
PERCENTAGE
|
|
|
|
|
|
||||
|
|||||||
Multi-Manager Alternatives Fund |
|
UBS
Wealth Management USA
|
|
26.38 |
% |
||
|
|
|
|
|
|
P OTENTIAL CONFLICTS OF INTEREST
ADVISER
SUB-ADVISERS
Acorn
Acorns portfolio management team manages multiple accounts for institutional investors. The team is involved at all levels of the investment process which allows all accounts to benefit from the teams combined experience and knowledge. All accounts following the same strategy are traded pari passu, using bulk trades allocated according to net asset value to avoid any conflicts. Accounts with a different, yet similar strategy, will not be negatively impacted due to the high degree of liquidity in the options Acorn trades. The performance of all strategies is based on the difference between the strikes within the spreads of each strategy, thus limiting the possibility of conflicts even if strikes are on opposite sides in the different strategies.
41
Coe Capital
Dix Hills
Conflicts of interest may arise when a portfolio manager is responsible for the management of more than one account. The principal types of these potential conflicts may include:
Time and Attention . The management of multiple portfolios and/or accounts may give rise to potential conflicts of interest as the portfolio manager must allocate his or her time and investment ideas across multiple funds and accounts. This could result in a portfolio manager devoting unequal time and attention to the management of each portfolio and/or other accounts. The effect of this potential conflict may be more pronounced where portfolios and/or accounts overseen by a particular portfolio manager have different objectives, benchmarks, time horizons, and fees. Dix Hills Partners utilizes its core
42
investment research and expresses it in a coordinated fashion across all its portfolios to assure that all clients get the benefit of research in the way it intended.
Investment Opportunities . Dix Hills Partners seeks to manage such potential conflicts by using procedures intended to provide a fair allocation of buy and sell opportunities among portfolios and other accounts.
Variation in Incentives . A conflict of interest may arise where the financial or other benefits available to the portfolio manager differ among the portfolios and/or accounts that he or she manages. If the structure of the investment advisers management fee and/or the portfolio managers compensation differs among portfolios and/or accounts (such as where certain portfolios or accounts pay higher management fees or performance-based management fees), the portfolio manager might be motivated to help certain portfolios and/or accounts over others. In addition, the portfolio manager might be motivated to favor portfolios and/or accounts in which he or she has an interest or in which the investment adviser and/or its affiliates have interests. Similarly, the desire to maintain assets under management or to enhance the portfolio managers performance record or to derive other rewards, financial or otherwise, could influence the portfolio manager in affording preferential treatment to those portfolios and/or accounts that could most significantly benefit the portfolio manager. Dix Hills Partners manages this by not compensating portfolio managers on an account by account basis. Dix Hills Partners incents its portfolio managers to work for its clients fairly and equally, not on the basis of revenue to the firm or them personally.
Personal Accounts . Portfolio managers are prohibited from purchasing or selling securities for their own personal accounts or the personal accounts of family members around periods of client transactions, which could potentially influence the marketplace or security price for a client, or trade in a security that could be affected by a clients trade. To mitigate this potential conflict of interest, Dix Hills Partners has adopted Codes of Ethics or other policies and procedures governing the personal securities transactions of all employees, including its portfolio managers to avoid all such conflicts.
Differing Strategies . At times, a portfolio manager may take a position in an account that may be appropriate for only some of the portfolios and/or accounts for which he or she exercises investment responsibility, all based on pre-determined guidelines. In these cases, the portfolio manager may place separate transactions for one or more portfolios or accounts which may affect the market price of the security or the execution of the transaction, or both, to the detriment or benefit of one or more other portfolios and/or accounts.
Dix Hills Partners has adopted compliance policies and procedures, as applicable, that are designed to address these, and other, types of conflicts of interest. There is no guarantee, however, that such policies and procedures will be able to detect and/or prevent every situation where a conflict arises. As conflicts arise, Dix Hills Partners addresses them upfront and immediately.
Martingale
Martingales portfolio managers manage multiple accounts for a diverse client base, including private clients, institutions and investment funds. Martingale manages all portfolios on a team basis. The team is involved at all levels of the investment process. This allows for every portfolio manager to benefit from his peers and for clients to receive the firms best thinking, not that of a single portfolio manager. All accounts are rebalanced individually, and each account is managed to maximize its return per unit of risk. Martingales highly systematic investment process fosters equal treatment of all clients and avoids conflicts of interest. Although the potential for conflicts of interest exists when an investment adviser and portfolio managers manage other accounts that invest in securities in which the Fund may invest or that may pursue a strategy similar to one of the Funds component strategies, Martingale maintains and adheres to policies and procedures for trade allocation and account rebalancing schedules to prevent conflicts of interest from occurring to ensure all accounts are treated fairly and that the Fund is not disadvantaged.
43
As an adviser and a fiduciary to Martingales clients, its clients interests must always be placed first and foremost, and its trading practices and procedures prohibit unfair trading practices and seek to disclose and avoid any actual or potential conflicts of interests or resolve such conflicts in the clients favor. Martingales policy is to aggregate client transactions where possible and when advantageous to clients. In these instances clients participating in any aggregated transactions will receive an average share price and transaction costs will be shared equally and on a pro-rata basis. As a matter of policy, trade allocation procedures must be fair and equitable to all clients with no particular group or client(s) being favored or disfavored over any other clients. Martingales policy prohibits any allocation of trades in a manner that Martingales proprietary accounts, affiliated accounts, or any particular client(s) or group of clients receive more favorable treatment than other client accounts. In the event that Martingale trades a single security in many accounts on the same day, all accounts will be bundled together for execution and any partially completed trades will be allocated pro rata. This type of one off trade can be done any day during the month regardless of Martingales trading calendar.
Medley
Medley owes its clients honesty and full disclosure. Accordingly, Medley will conduct an annual review of its business practices to identify those that might pose a conflict of interest between Medley and its clients. The Compliance Officer will assure that all relevant disclosure concerning potential conflicts of interest is included in Medleys Form ADV, will review existing policies and procedures designed to address such conflicts and will develop and implement additional policies and procedures, as needed.
Millrace
Millrace manages all accounts on a comprehensive basis with all trades allocated to each account based on its relative size in relation to the total of all accounts managed. The private fund and the Fund are to be invested in the same positions, long and short, with the only exception being established positions of the private fund at the appointment of Millrace to the Fund which can not be duplicated because of the manner in which the private fund acquired the position, (e.g., through an offering or private placement).
The employees of Millrace are prohibited from investing in positions which are within the investment environment for the Millrace small cap growth strategy.
PanAgora
44
Primary
Primary is committed to fair and ethical business practices and takes special care to avoid conflicts of interests among its clients, employees and service providers. The firms conflict of interest policies are contained in its written Policies and Procedures and include, but are not limited to, Personal Security Transactions, Code of Employee Conduct, Trading Execution and Allocations, and Proxy Voting.
Employees must conduct their personal trading in a manner that does not conflict with the interests of any Client Account. Code of Employee Conduct governs employee compensation, beneficial ownership of securities and gifts & entertainment. Because the Firm has multiple clients, equitable allocation of trades is critically important. The Firm has adopted a trading and allocation policy to provide equal and fair treatment to its clients over time, consistent with the Firms duty of loyalty. The firms Proxy Voting procedure addresses conflicts of interest when voting proxies on behalf of clients and ensures that the firms interests will not be placed ahead of clients interests.
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P ROXY VOTING POLICIES AND PROCEDURES
The Funds proxy voting record is available upon request and on the SECs website at http://www.sec.gov . 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 is available through the Funds website, at vaneck.com, or by writing to 335 Madison Avenue, 19th Floor, New York, New York 10017. The Funds Form N-PX is also available on the SECs website at www.sec.gov.
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. A Personnel member may purchase securities in an IPO or private placement, provided that he or she obtains pre-clearance of the purchase and makes certain representations.
The Fund may invest in securities or futures contracts listed on foreign exchanges which trade on Saturdays or other customary United States national business holidays (i.e., days on which the Fund is not open for business). Consequently, since the Fund will compute its net asset values only Monday through Friday, exclusive of national business holidays, the net asset values of shares of the Fund may be significantly affected on days when an investor has no access to the Fund. The sale of shares will be suspended during any period when the determination of net asset value is suspended, and may be suspended by the Board whenever the Board judges it is in the Funds best interest to do so.
Certificates for shares of the Fund will not be issued.
The Fund may reject a purchase order for any reason, including an exchange purchase, either before or after the purchase.
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If you purchase shares through a financial intermediary, different purchase minimums may apply. Van Eck reserves the right to waive the investment minimums under certain circumstances.
Van Eck reserves the right to allow a financial intermediary that has a Class I Agreement with Van Eck to purchase shares for its own omnibus account and for its clients accounts in Class I shares of a Fund on behalf of its eligible clients which are Employer-Sponsored Retirement Plans with plan assets of $3 million or more.
B REAKPOINT LINKAGE RULES FOR DISCOUNTS
The term spouse also includes civil union and common law marriage as defined by the state laws of residence. The term child also includes stepchild. Trust accounts may be linked by trustee if the primary owner or family member is related, by trustee, by grantor and by beneficiary.
Shares of the Fund are sold at the public offering price, which is determined once each day the Fund is open for business and is the net asset value per share. The net asset values need not be computed on a day in which no orders to purchase, sell or redeem shares of the Fund have been received.
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MULTI-MANAGER
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Net asset value and repurchase price per share on $.001 par value capital shares outstanding |
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$ |
8.97 |
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Maximum sales charge (as described in the Prospectus) |
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0.55 |
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Maximum offering price per share |
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9.52 |
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The value of a financial futures or commodity futures contract equals the unrealized gain or loss on the contract that is determined by marking it to the current settlement price for a like contract acquired on the day on which the commodity futures contract is being valued. A settlement price may not be used if the market makes a limit move with respect to a particular commodity. Securities or futures contracts for which market quotations are readily available are valued at market value, which is currently determined using the last reported sale price. If no sales are reported as in the case of most securities traded over-the-counter, securities are valued at the mean of their bid and asked prices at the close of trading on the NYSE. In cases where securities are traded on more than one exchange, the securities are valued on the exchange designated by or under the authority of the Board as the primary market. Short-term investments having a maturity of 60 days or less are valued at amortized cost, which approximates market. Options are valued at the last sales price unless the last sales price does not fall within the bid and ask prices at the close of the market, at which time the mean of the bid and ask prices is used. All other securities are valued at their fair value as determined in good faith by the Trustees. Foreign securities or futures contracts quoted in foreign currencies are valued at appropriately translated foreign market closing prices or as the Board may prescribe.
Generally, trading in foreign securities and futures contracts, as well as corporate bonds, United States Government securities and money market instruments, is substantially completed each day at various times prior to the close of the NYSE. The values of such securities used in determining the net asset value of the shares of the Fund may be computed as of such times. Foreign currency exchange rates are also generally determined prior to the close of the NYSE. Occasionally, events affecting the value of such securities and such exchange rates may occur between such times and the close of the NYSE which will not be reflected in the computation of the Funds net asset values. If events materially affecting the value of such securities occur during such period, then these securities may be valued at their fair value as determined in good faith by the Board.
The Funds investments are generally valued based on market quotations. When market quotations are not readily available for a portfolio security, the Fund must use the securitys fair value as determined in good faith in accordance with the Funds Fair Value Pricing Procedures, which are approved by the Board. As a general principle, the current fair value of a security is the amount which the Fund might reasonably expect to receive for the security upon its current sale. The Funds Pricing Committee, whose members are selected by the senior management of the Adviser, is responsible for recommending fair value procedures to the Board and for administering the process used to arrive at fair value prices. Factors that may cause the Fund to use the fair value of a portfolio security to calculate the Funds NAV include, but are not limited to: (1) market quotations are not readily available because a portfolio security is not traded in a public market or the principal market in which the security trades is closed, (2) trading in a portfolio security is limited or suspended and not resumed prior to the time at which the Fund calculates its NAV, (3) the market for the relevant security is thin, or stale because its price doesnt change in 5 consecutive business days, (4) the Investment Adviser determines that a market quotation is inaccurate, for example, because price movements are highly volatile and cannot be verified by a reliable alternative pricing source, or (5) where a significant event affecting the value of a portfolio security is determined to have occurred between the time of the market quotation provided for a portfolio security and the time at which the Fund calculates its NAV.
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In determining the fair value of securities, the Pricing Committee will consider, among other factors, the fundamental analytical data relating to the security, the nature and duration of any restrictions on disposition of the security, and the forces influencing the market in which the security is traded.
Foreign securities in which the Fund invest may be traded in markets that close before the time that the Fund calculates its NAV. Foreign securities are normally priced based upon the market quotation of such securities as of the close of their respective principal markets, as adjusted to reflect the Investment Advisers determination of the impact of events, such as a significant movement in the U.S. markets occurring subsequent to the close of such markets but prior to the time at which the Fund calculates its NAV. In such cases, the Pricing Committee will apply a fair valuation formula to all foreign securities based on the Committees determination of the effect of the U.S. significant event with respect to each local market.
The Board authorized the Adviser to retain an outside pricing service to value certain portfolio securities. The pricing service uses an automated system incorporating a model based on multiple parameters, including a securitys local closing price (in the case of foreign securities), relevant general and sector indices, currency fluctuations, and trading in depositary receipts and futures, if applicable, and/or research evaluations by its staff, in determining what it believes is the fair valuation of the portfolio securities valued by such pricing service.
There can be no assurance that the Fund could purchase or sell a portfolio security at the price used to calculate the Funds NAV. Because of the inherent uncertainty in fair valuations, and the various factors considered in determining value pursuant to the Funds fair value procedures, there can be significant deviations between a fair value price at which a portfolio security is being carried and the price at which it is purchased or sold. Furthermore, changes in the fair valuation of portfolio securities may be less frequent, and of greater magnitude, than changes in the price of portfolio securities valued by an independent pricing service, or based on market quotations.
Shareholders of the Fund may exchange their shares for shares of the same class of other funds in the Trust. The Exchange Privilege will not be available if the proceeds from a redemption of shares of the Fund whose shares qualify are paid directly to the shareholder. The Exchange Privilege is not available for shares which are not on deposit with DST or State Street Bank and Trust Company (SSBT), or shares which are held in escrow pursuant to a Letter of Intent. If certificates representing shares of the Fund accompany a written exchange request, such shares will be deposited into an account with the same registration as the certificates upon receipt by DST.
The Fund reserves the right to (i) charge a fee of not more than $5.00 per exchange payable to the Fund or charge a fee reasonably intended to cover the costs incurred in connection with the exchange; (ii) establish a limit on the number and amount of exchanges made pursuant to the Exchange Privilege, as disclosed in the Prospectus and (iii) terminate the Exchange Privilege without written notice. In the event of such termination, shareholders who have acquired their shares pursuant to the Exchange Privilege will be afforded the opportunity to re-exchange such shares for shares of the Fund originally purchased without sales charge, for a period of not less than three (3) months.
By exercising the Exchange Privilege, each shareholder whose shares are subject to the Exchange Privilege will be deemed to have agreed to indemnify and hold harmless the Trust and each of its series, their Adviser, sub-investment adviser (if any), distributor, transfer agent, SSBT and the officers, directors, employees and agents thereof against any liability, damage, claim or loss, including reasonable costs and attorneys fees, resulting from acceptance of, or acting or failure to act upon, or acceptance of unauthorized instructions or non-authentic telephone instructions given in connection with, the Exchange Privilege, so long as reasonable procedures are employed to confirm the authenticity of such communications. (For more information on the Exchange Privilege, see the Prospectus).
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DIVIDEND REINVESTMENT PLAN. Reinvestments of dividends of the Fund will occur on a date selected by the Board.
An investor should realize that he is investing his funds in securities subject to market fluctuations, and accordingly the Automatic Exchange Plan does not assure a profit or protect against depreciation in declining markets. The Automatic Exchange Plan contemplates the systematic purchase of securities at regular intervals regardless of price levels.
The expenses of the Automatic Exchange Plan are general expenses of the Fund and will not involve any direct charge to the participating shareholder. The Automatic Exchange Plan is completely voluntary and may be terminated on fifteen days notice to DST.
AUTOMATIC INVESTMENT PLAN. Investors may arrange under the Automatic Investment Plan to have DST collect a specified amount once a month or quarter from the investors checking account and purchase full and fractional shares of the Fund at the public offering price next computed after receipt of
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the proceeds. Further details of the Automatic Investment Plan are given in the application which is available from DST or the Fund.
An investor should realize that he is investing his funds in securities subject to market fluctuations, and accordingly the Automatic Investment Plan does not assure a profit or protect against depreciation in declining markets. The Automatic Investment Plan contemplates the systematic purchase of securities at regular intervals regardless of price levels.
The expenses of the Automatic Investment Plan are general expenses of the Fund and will not involve any direct charge to the participating shareholder. The Automatic Investment Plan is completely voluntary. The Automatic Investment Plan may be terminated on thirty days notice to DST.
In order to open an Automatic Withdrawal Plan, the investor must complete the Application and deposit or purchase for deposit, with DST, the agent for the Automatic Withdrawal Plan, shares of the Fund having a total value of not less than $10,000 based on the offering price on the date the Application is accepted, except for automatic withdrawals for the purpose of retirement account distributions.
Income dividends and capital gains distributions on shares under an Automatic Withdrawal Plan will be credited to the investors Automatic Withdrawal Plan account in full and fractional shares at the net asset value in effect on the reinvestment date.
Periodic checks for a specified amount will be sent to the investor, or any person designated by him, monthly or quarterly (January, April, July and October). The Fund will bear the cost of administering the Automatic Withdrawal Plan.
Redemption of shares of the Fund deposited under the Automatic Withdrawal Plan may deplete or possibly use up the initial investment plus income dividends and distributions reinvested, particularly in the event of a market decline. In addition, the amounts received by an investor cannot be considered an actual yield or income on his investment, since part of such payments may be a return of his capital. The redemption of shares under the Automatic Withdrawal Plan may give rise to a taxable event.
The maintenance of an Automatic Withdrawal Plan concurrently with purchases of additional shares of the Fund would be disadvantageous because of the sales charge payable with respect to such purchases. An investor may not have an Automatic Withdrawal Plan in effect and at the same time have in effect an Automatic Investment Plan or an Automatic Exchange Plan. If an investor has an Automatic Investment Plan or an Automatic Exchange Plan, such service must be terminated before an Automatic Withdrawal Plan may take effect.
The Automatic Withdrawal Plan may be terminated at any time (1) on 30 days notice to DST or from DST to the investor, (2) upon receipt by DST of appropriate evidence of the investors death or (3) when all shares under the Automatic Withdrawal Plan have been redeemed. Upon termination, unless otherwise requested, certificates representing remaining full shares, if any, will be delivered to the investor or his duly appointed legal representatives.
S HARES PURCHASED BY NON-U.S. FINANCIAL INSTITUTIONS
Class A shares of the Fund which are sold with a sales charge may be purchased by a foreign bank or other foreign fiduciary account, with an international selling agreement, for the benefit of foreign investors at the sales charge applicable to the Funds $500,000 breakpoint level, in lieu of the sales
51
charge in the above scale. The Distributor has entered into arrangements with foreign financial institutions pursuant to which such institutions may be compensated by the Distributor from its own resources for assistance in distributing Fund shares. Clients of Netherlands insurance companies who are not U.S. citizens or residents may purchase shares without a sales charge. Clients of fee-only advisors that purchase shares through a foreign bank or other foreign fiduciary account for the benefit of foreign investors may purchase shares without a sales charge.
As used herein, the term U.S. investor means an investor that, for U.S. federal income tax purposes, is (1) an individual who is a citizen or resident of the U.S., (2) a corporation, or other entity taxable as a corporation, that is created or organized in or under the laws of the U.S. or of any political subdivision thereof, (3) an estate, the income of which is subject to U.S. federal income tax regardless of its source, or (4) a trust if (i) it is subject to the primary supervision of a court within the U.S. and one or more U.S. persons as described in Code Section 7701(a)(30) have the authority to control all substantial decisions of the trust or (ii) it has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person. If a partnership or other entity treated as a partnership holds the shares, the tax treatment of a partner in such partnership or equity owner in such other entity generally will depend on the status of the partner or equity owner and the activities of the partnership or other entity.
TAXATION OF THE FUND IN GENERAL
The Fund intends to continue to qualify and elect to be treated each taxable year as a regulated investment company under Subchapter M of the Code. To so qualify, the Fund must, among other things, (a) derive at least 90% of its gross income from dividends, interest, payments with respect to securities loans, gains from the sale or other disposition of stock, securities or foreign currencies, or other income (including gains from options, futures or forward contracts) derived with respect to its business of investing in such stock, securities or currencies; and (b) satisfy certain diversification requirements.
The Fund will be liable for a nondeductible 4% excise tax on amounts not distributed on a timely basis in accordance with a calendar year distribution requirement. To avoid the tax, during each calendar year the Fund must distribute, or be deemed to have distributed, (i) at least 98% of its ordinary income (not taking into account any capital gains or losses) for the calendar year, (ii) at least 98.2% of its capital
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gains in excess of its capital losses (adjusted for certain ordinary losses) for the twelve month period ending on October 31 (or December 31, if the Fund so elects), and (iii) all ordinary income and capital gains for previous years that were not distributed during such years. For this purpose, any income or gain retained by the Fund that is subject to corporate tax will be considered to have been distributed by year-end. The Fund intends to make sufficient distributions to avoid this 4% excise tax.
TAXATION OF THE FUNDS INVESTMENTS
TAXATION OF THE SHAREHOLDERS
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Dividends of net investment income and distributions of net capital gain will be taxable as described above whether received in cash or reinvested in additional shares. When distributions are received in the form of shares issued by the Fund, the amount of the dividend/distribution deemed to have been received by participating shareholders generally is the amount of cash which would otherwise have been received. In such case, participating shareholders will have a basis for federal income tax purposes in each share received from the Fund equal to such amount of cash.
Dividends and/or distributions by the Fund result in a reduction in the net asset value of the Funds shares. Should a dividend/distribution reduce the net asset value below a shareholders cost basis, such dividend/distribution nevertheless would be taxable to the shareholder as ordinary income or long-term capital gain as described above, even though, from an investment standpoint, it may constitute a partial return of capital. In particular, investors should be careful to consider the tax implications of buying shares just prior to a dividend/distribution. The price of shares purchased at that time includes the amount of any forthcoming dividend/distribution. Those investors purchasing shares just prior to a dividend/distribution will then receive a return of their investment upon payment of such dividend/distribution which will nevertheless be taxable to them.
If a shareholder (i) incurs a sales load in acquiring shares in the Fund, and (ii) by reason of incurring such charge or making such acquisition acquires the right to acquire shares of one or more regulated investment companies without the payment of a load or with the payment of a reduced load (reinvestment right), and (iii) disposes of the shares before the 91st day after the date on which the shares were acquired, and (iv) subsequently acquires shares in that regulated investment company or in another regulated investment company and the otherwise applicable load charge is reduced pursuant to the reinvestment right, then the load charge will not be taken into account for purposes of determining the shareholders gain or loss on the disposition. For sales charges incurred in taxable years beginning after December 22, 2010, this sales charge deferral rule shall apply only when a shareholder makes such new acquisition of Fund shares or shares of a different regulated investment company during the period beginning on the date the original Fund shares are disposed of and ending on January 31 of the calendar year following the calendar year of the disposition of the original Fund shares. To the extent such charge is not taken into account in determining the amount of gain or loss, the charge will be treated as incurred in connection with the subsequently acquired shares and will have a corresponding effect on the shareholders basis in such shares.
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The Fund may be subject to a tax on dividend or interest income received from securities of a non-U.S. issuer withheld by a foreign country at the source. The U.S. has entered into tax treaties with many foreign countries that entitle the Fund to a reduced rate of tax or exemption from tax on such income. It is impossible to determine the effective rate of foreign tax in advance since the amount of the Funds assets to be invested within various countries is not known. If more than 50% of the value of the Funds total assets at the close of a taxable year consists of stocks or securities in foreign corporations, and the Fund satisfies the holding period requirements, the Fund may elect to pass through to its shareholders the foreign income taxes paid thereby. In such case, the shareholders would be treated as receiving, in addition to the distributions actually received by the shareholders, their proportionate share of foreign income taxes paid by the Fund, and will be treated as having paid such foreign taxes. The shareholders generally will be entitled to deduct or, subject to certain limitations, claim a foreign tax credit with respect to such foreign income taxes. A foreign tax credit may be allowed for shareholders who hold shares of the Fund for at least 16 days during the 31-day period beginning on the date that is 15 days before the ex-dividend date. Under certain circumstances, individual shareholders who have been passed through foreign tax credits of no more than $300 ($600 in the case of married couples filing jointly) during a tax year can elect to claim the foreign tax credit for these amounts directly on their federal income tax returns (IRS Forms 1040) without having to file a separate Form 1116 or having to comply with most foreign tax credit limitations, provided certain other requirements are met.
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TAXATION OF NON-U.S. INVESTORS
The foregoing summary of certain federal income tax considerations does not apply to potential investors in the Fund that are not U.S. investors (Non-U.S. investors). Distributions of ordinary income paid to Non-U.S. investors generally will be subject to a 30% U.S. withholding tax unless a reduced rate of withholding or a withholding exemption is provided under an applicable treaty. Prospective investors are urged to consult their tax advisors regarding the specific tax consequences discussed above.
The Trust has elected to have the ability to redeem its shares in kind, committing itself to pay in cash all requests for redemption by any shareholder of record limited in amount with respect to each shareholder of record during any ninety-day period to the lesser of (i) $250,000 or (ii) 1% of the net asset value of such company at the beginning of such period.
A DDITIONAL PURCHASE AND REDEMPTION INFORMATION
Dealers and intermediaries may charge their customers a processing or service fee in connection with the purchase or redemption of fund shares. The amount and applicability of such a fee is determined and disclosed to its customers by each individual dealer. Processing or service fees typically are fixed, nominal dollar amounts and are in addition to the sales and other charges described in the Prospectus and this SAI. Your dealer will provide you with specific information about any processing or service fees you will be charged.
The Trust is an open-end management investment company organized as a business trust under the laws of the Commonwealth of Massachusetts on April 3, 1985. The Trustees of the Trust have authority to issue an unlimited number of shares of beneficial interest of the Fund, $.001 par value. The Trust currently consists of six separate series: Emerging Markets Fund, Global Hard Assets Fund, International Investors Gold Fund, Long/Flat Commodity Index Fund, CM Commodity Index Fund and the Fund.
The Fund is classified as a non-diversified fund under the 1940 Act. A diversified fund is a fund which meets the following requirements: At least 75% of the value of its total assets is represented by cash and cash items (including receivables), Government securities, securities of other investment companies and other securities for the purpose of this calculation limited in respect of any one issuer to an amount not greater than 5% of the value of the Funds total assets, and to not more than 10% of the outstanding voting securities of such issuer. A non-diversified fund is any fund other than a diversified fund. This means that the Fund at the close of each quarter of its taxable year must, in general, limit its investment in the securities of a single issuer to (i) no more than 25% of its assets, (ii) with respect to 50% of the Funds assets, no more than 5% of its assets, and (iii) the Fund will not own more than 10% of outstanding voting securities. The Fund is a separate pool of assets of the Trust which is separately managed and which may have a different investment objective from that of another Fund. The Board has the authority, without the necessity of a shareholder vote, to create any number of new series.
Each share of the Fund has equal dividend, redemption and liquidation rights and when issued is fully paid and non-assessable by the Trust. Under the Trusts Amended and Restated Master Trust Agreement, as amended (Master Trust Agreement), no annual or regular meeting of shareholders is required. Thus, there will ordinarily be no shareholder meetings unless required by the 1940 Act. The Trustees are a self-perpetuating body unless and until fewer than 50% of the Trustees, then serving as Trustees, are Trustees who were elected by shareholders. At that time a meeting of shareholders will be called to elect additional Trustees. On any matter submitted to the shareholders, the holder of each Trust share is entitled to one vote per share (with proportionate voting for fractional shares). Under the Master Trust Agreement, any Trustee may be removed by vote of two-thirds of the outstanding Trust shares, and
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holders of ten percent or more of the outstanding shares of the Trust can require Trustees to call a meeting of shareholders for purposes of voting on the removal of one or more trustees. Shares of the Fund vote as a separate class, except with respect to the election of Trustees and as otherwise required by the 1940 Act. On matters affecting an individual Fund, a separate vote of that Fund is required. Shareholders of the Fund are not entitled to vote on any matter not affecting that Fund. In accordance with the 1940 Act, under certain circumstances, the Trust will assist shareholders in communicating with other shareholders in connection with calling a special meeting of shareholders.
Under Massachusetts law, the shareholders of the Trust could, under certain circumstances, be held personally liability for the obligations of the Trust. However, the Master Trust Agreement disclaims shareholder liability for acts or obligations of the Trust and requires that notice of such disclaimer be given in each agreement, obligation or instrument entered into or executed by the Trust or the Trustees. The Master Trust Agreement provides for indemnification out of the Trusts property of all losses and expenses of any shareholder held personally liable for the obligations of the Trust. Thus, the risk of a shareholder incurring financial loss on account of shareholder liability is limited to circumstances in which the Trust itself would be unable to meet its obligations. The Adviser believes that, in view of the above, the risk of personal liability to shareholders is remote.
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CUSTODIAN . State Street Bank and Trust Company, One Lincoln Street, Boston, MA 02111 is the custodian of the Trusts portfolio securities, cash, coins and bullion. The Custodian is authorized, upon the approval of the Trust, to establish credits or debits in dollars or foreign currencies with, and to cause portfolio securities of the Fund to be held by its overseas branches or subsidiaries, and foreign banks and foreign securities depositories which qualify as eligible foreign custodians under the rules adopted by the SEC.
TRANSFER AGENT . DST Systems, Inc., 210 West 10th Street, Kansas City, MO 64105 serves as transfer agent for the Trust.
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM . Ernst & Young LLP, Five Times Square, New York, NY 10036 serves as independent registered public accounting firm for the Trust.
COUNSEL . Goodwin Procter LLP, Exchange Place, Boston, MA 02109 serves as counsel to the Trust.
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ADVISERS PROXY VOTING POLICIES
VAN ECK GLOBAL PROXY VOTING POLICIES
Van Eck Global (the Adviser) has adopted the following policies and procedures which are reasonably designed to ensure that proxies are voted in a manner that is consistent with the best interests of its clients in accordance with its fiduciary duties and Rule 206(4)-6 under the Investment Advisers Act of 1940. 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.
Rule 206(4)-6 also requires the Adviser to disclose information about the proxy voting procedures to its clients and to inform clients how to obtain information about how their proxies were voted. Additionally, Rule 204-2 under the Advisers Act requires the Adviser to maintain certain proxy voting records.
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.
The Adviser intends to vote all proxies in accordance with applicable rules and regulations, and in the best interests of clients without influence by real or apparent conflicts of interest. To assist in its responsibility for voting proxies and the overall voting process, the Adviser has engaged an independent third party proxy voting specialist, Glass Lewis & Co., LLC. The services provided by Glass Lewis include in-depth research, global issuer analysis, and voting recommendations as well as vote execution, reporting and recordkeeping.
Resolving Material Conflicts of Interest
When a material conflict of interest exists, proxies will be voted in the following manner:
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Strict adherence to the Glass Lewis guidelines , or |
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The potential conflict will be disclosed to the client: |
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with a request that the client vote the proxy, |
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with a recommendation that the client engage another party to determine how the proxy should be voted or |
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if the foregoing are not acceptable to the client, disclosure of how Van Eck 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 Chief Compliance Officer with a written explanation of the reason for the deviation.
A-1
A material conflict of interest means the existence of a business relationship between a portfolio company or an affiliate and the Adviser, any affiliate or subsidiary, or an affiliated person of a Van Eck mutual fund. Examples of when a material conflict of interest exists include a 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 the Advisers 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.
Client Inquiries
All inquiries by clients as to how the Adviser has voted proxies must immediately be forwarded to Portfolio Administration.
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Notification of Availability of Information |
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Client Brochure - The Client Brochure or Part II of Form ADV will inform clients that they can obtain information from the Adviser 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. |
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Availability of Proxy Voting Information |
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At the clients request or if the information is not available on the Advisers website, a hard copy of the accounts proxy votes will be mailed to each client. |
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Recordkeeping Requirements |
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Van Eck 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: |
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proxy statements received; |
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identifying number for the portfolio security; |
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shareholder meeting date; |
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brief identification of the matter voted on; |
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whether the vote was cast on the matter; |
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how the vote was cast (e.g., for or against proposal, or abstain; for or withhold regarding election of directors); |
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records of written client requests for information on how the Adviser voted proxies on behalf of the client; |
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a copy of written responses from the Adviser to any written or oral client request for information on how the Adviser voted proxies on behalf of the client; and any documents prepared by the Adviser that were material to the decision on how to |
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vote or that memorialized the basis for the decision, if such documents were prepared. |
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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. |
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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. |
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Proxy voting records will be maintained in an easily accessible place for five years, the first two at the office of the Adviser. 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. |
Voting Foreign Proxies
At times the Adviser may determine that, in the best interests of its clients, a particular proxy should not be voted. This may occur, for example, when the cost of voting a foreign proxy (translation, transportation, etc.) would exceed the benefit of voting the proxy or voting the foreign proxy may cause an unacceptable limitation on the sale of the security. Any such instances will be documented by the Portfolio Manager and reviewed by the Chief Compliance Officer.
Securities Lending
Certain portfolios managed by the Adviser participate in securities lending programs to generate additional revenue. Proxy voting rights generally pass to the borrower when a security is on loan. The Adviser will use its best efforts to recall a security on loan and vote such securities if the Portfolio Manager determines that the proxy involves a material event.
Proxy Voting Policy
The Adviser has reviewed the Glass Lewis Proxy Guidelines (Guidelines) and has determined that the Guidelines are consistent with the Advisers proxy voting responsibilities and its fiduciary duty with respect to its clients. The Adviser will review any material amendments to the Guidelines.
While it is the Advisers policy to generally follow the Guidelines, the Adviser retains the right, on any specific proxy, to vote differently from the Guidelines, if the Adviser believes it is in the best interests of its clients. Any such exceptions will be documented by the Adviser and reviewed by the Chief Compliance Officer.
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The portfolio manager or analyst covering the security is responsible for making proxy 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.
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A N O VERVIEW OF THE G LASS L EWIS A PPROACH TO P ROXY A DVICE
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I. A B
OARD
OF
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IRECTORS
T
HAT
S
ERVES
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HE
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NTERESTS
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F
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HAREHOLDERS
Election of Directors
The purpose of Glass Lewis proxy research and advice is to facilitate shareholder voting in favor of governance structures that will drive performance, create shareholder value and maintain a proper tone at the top. Glass Lewis looks for talented boards with a record of protecting shareholders and delivering value over the medium- and long-term. We believe that boards working to protect and enhance the best interests of shareholders are independent, have directors with diverse backgrounds, have a record of positive performance, and have members with a breadth and depth of relevant experience.
Independence
The independence of directors, or lack thereof, is ultimately demonstrated through the decisions they make. In assessing the independence of directors, we will take into consideration, when appropriate, whether a director has a track record indicative of making objective decisions. Likewise, when assessing the independence of directors we will also examine when a directors service track record on multiple boards indicates a lack of objective decision-making. Ultimately, we believe the determination of whether a director is independent or not must take into consideration both compliance with the applicable independence listing requirements as well as judgments made by the director.
We look at each director nominee to examine the directors relationships with the company, the companys executives, and other directors. We do this to evaluate whether personal, familial, or financial relationships (not including director compensation) may impact the directors decisions. We believe that such relationships make it difficult for a director to put shareholders interests above the directors or the related partys interests. We also believe that a director who owns more than 20% of a company can exert disproportionate influence on the board and, in particular, the audit committee.
Thus, we put directors into three categories based on an examination of the type of relationship they have with the company:
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Independent Director An independent director has no material financial, familial or other current relationships with the company, its executives, or other board members, except for board service and standard fees paid for that service. Relationships that existed within three to five years 1 before the inquiry are usually considered current for purposes of this test. |
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In our view, a director who is currently serving in an interim management position should be considered an insider, while a director who previously served in an interim management position for less than one year and is no longer serving in such capacity is considered independent. Moreover, a director who previously served in an interim management position for over one year and is no longer serving in such capacity is considered an affiliate for five years following the date of his/her resignation or departure from the interim management position. Glass Lewis applies a three-year look-back period to all directors who have an affiliation with the company other than former employment, for which we apply a five-year look-back. |
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Affiliated Director An affiliated director has a material financial, familial or other relationship with the company or its executives, but is not an employee of the company. 2 This includes directors whose employers have a material financial relationship with the company. 3 In addition, we view a director who owns or controls 20% or more of the companys voting stock as an affiliate. 4 |
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2 If a company classifies one of its non-employee directors as non-independent, Glass Lewis will classify that director as an affiliate.
3 We allow a five-year grace period for former executives of the company or merged companies who have consulting agreements with the surviving company. (We do not automatically recommend voting against directors in such cases for the first five years.) If the consulting agreement persists after this five-year grace period, we apply the materiality thresholds outlined in the definition of material.
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4 This includes a director who serves on a board as a representative (as part of his or her basic responsibilities) of an investment firm with greater than 20% ownership. However, while we will generally consider him/her to be affiliated, we will not recommend voting against unless (i) the |
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We view 20% shareholders as affiliates because they typically have access to and involvement with the management of a company that is fundamentally different from that of ordinary shareholders. More importantly, 20% holders may have interests that diverge from those of ordinary holders, for reasons such as the liquidity (or lack thereof) of their holdings, personal tax issues, etc. |
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Definition of Material: A material relationship is one in which the dollar value exceeds: |
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$50,000 (or where no amount is disclosed) for directors who are paid for a service they have agreed to perform for the company, outside of their service as a director, including professional or other services; or |
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$120,000 (or where no amount is disclosed) for those directors employed by a professional services firm such as a law firm, investment bank, or consulting firm where the company pays the firm, not the individual, for services. This dollar limit would also apply to charitable contributions to schools where a board member is a professor; or charities where a director serves on the board or is an executive; 5 and any aircraft and real estate dealings between the company and the directors firm; or |
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1% of either companys consolidated gross revenue for other business relationships (e.g., where the director is an executive officer of a company that provides services or products to or receives services or products from the company). |
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Definition of Familial: Familial relationships include a persons spouse, parents, children, siblings, grandparents, uncles, aunts, cousins, nieces, nephews, in-laws, and anyone (other than domestic employees) who shares such persons home. A director is an affiliate if the director has a family member who is employed by the company and who receives compensation of $120,000 or more per year or the compensation is not disclosed. |
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investment firm has disproportionate board representation or (ii) the director serves on the audit committee. |
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5 We will generally take into consideration the size and nature of such charitable entities in relation to the companys size and industry along with any other relevant factors such as the directors role at the charity. However, unlike for other types of related party transactions, Glass Lewis generally does not apply a look-back period to affiliated relationships involving charitable contributions; if the relationship ceases, we will consider the director to be independent. |
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Definition of Company: A company includes any parent or subsidiary in a group with the company or any entity that merged with, was acquired by, or acquired the company. |
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Inside Director An inside director simultaneously serves as a director and as an employee of the company. This category may include a chairman of the board who acts as an employee of the company or is paid as an employee of the company. In our view, an inside director who derives a greater amount of income as a result of affiliated transactions with the company rather than through compensation paid by the company (i.e., salary, bonus, etc. as a company employee) faces a conflict between making decisions that are in the best interests of the company versus those in the directors own best interests. Therefore, we will recommend voting against such a director. |
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Voting Recommendations on the Basis of Board Independence |
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Glass Lewis believes a board will be most effective in protecting shareholders interests if it is at least two-thirds independent. We note that each of the Business Roundtable, the Conference Board, and the Council of Institutional Investors advocates that two-thirds of the board be independent. Where more than one-third of the members are affiliated or inside directors, we typically 6 recommend voting against some of the inside and/or affiliated directors in order to satisfy the two-thirds threshold. |
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In the case of a less than two-thirds independent board, Glass Lewis strongly supports the existence of a presiding or lead director with authority to set the meeting agendas and to lead sessions outside the insider chairmans presence. |
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In addition, we scrutinize avowedly independent chairmen and lead directors. We believe that they should be unquestionably independent or the company should not tout them as such. |
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Committee Independence |
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We believe that only independent directors should serve on a companys audit, compensation, nominating, and governance committees. 7 We typically |
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6 With a staggered board, if the affiliates or insiders that we believe should not be on the board are not up for election, we will express our concern regarding those directors, but we will not recommend voting against the other affiliates or insiders who are up for election just to achieve two-thirds independence. However, we will consider recommending voting against the directors subject to our concern at their next election if the concerning issue is not resolved. |
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7 We will recommend voting against an audit committee member who owns 20% or more of the |
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recommend that shareholders vote against any affiliated or inside director seeking appointment to an audit, compensation, nominating, or governance committee, or who has served in that capacity in the past year. |
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Independent Chairman |
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Glass Lewis believes that separating the roles of CEO (or, more rarely, another executive position) and chairman creates a better governance structure than a combined CEO/chairman position. An executive manages the business according to a course the board charts. Executives should report to the board regarding their performance in achieving goals the board set. This is needlessly complicated when a CEO chairs the board, since a CEO/chairman presumably will have a significant influence over the board. |
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It can become difficult for a board to fulfill its role of overseer and policy setter when a CEO/chairman controls the agenda and the boardroom discussion. Such control can allow a CEO to have an entrenched position, leading to longer-than-optimal terms, fewer checks on management, less scrutiny of the business operation, and limitations on independent, shareholder-focused goal-setting by the board. |
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A CEO should set the strategic course for the company, with the boards approval, and the board should enable the CEO to carry out the CEOs vision for accomplishing the boards objectives. Failure to achieve the boards objectives should lead the board to replace that CEO with someone in whom the board has confidence. |
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Likewise, an independent chairman can better oversee executives and set a pro-shareholder agenda without the management conflicts that a CEO and other executive insiders often face. Such oversight and concern for shareholders allows for a more proactive and effective board of directors that is better able to look out for the interests of shareholders. |
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Further, it is the boards responsibility to select a chief executive who can best serve a company and its shareholders and to replace this person when his or her duties have not been appropriately fulfilled. Such a replacement becomes more difficult and happens less frequently when the chief executive is also in the position of overseeing the board. |
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companys stock, and we believe that there should be a maximum of one director (or no directors if the committee is comprised of less than three directors) who owns 20% or more of the companys stock on the compensation, nominating, and governance committees. |
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Glass Lewis believes that the installation of an independent chairman is almost always a positive step from a corporate governance perspective and promotes the best interests of shareholders. Further, the presence of an independent chairman fosters the creation of a thoughtful and dynamic board, not dominated by the views of senior management. Encouragingly, many companies appear to be moving in this directionone study even indicates that less than 12 percent of incoming CEOs in 2009 were awarded the chairman title, versus 48 percent as recently as 2002. 8 Another study finds that 41 percent of S&P 500 boards now separate the CEO and chairman roles, up from 26 percent in 2001, although the same study found that of those companies, only 21 percent have truly independent chairs.. 9 |
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We do not recommend that shareholders vote against CEOs who chair the board. However, we typically encourage our clients to support separating the roles of chairman and CEO whenever that question is posed in a proxy (typically in the form of a shareholder proposal), as we believe that it is in the long-term best interests of the company and its shareholders. |
Performance
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Voting Recommendations on the Basis of Performance |
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We disfavor directors who have a record of not fulfilling their responsibilities to shareholders at any company where they have held a board or executive position. We typically recommend voting against: |
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A director who fails to attend a minimum of 75% of board and applicable committee meetings, calculated in the aggregate. 10 |
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8 Ken Favaro, Per-Ola Karlsson and Gary Neilson. CEO Succession 2000-2009: A Decade of Convergence and Compression. Booz & Company (from Strategy+Business, Issue 59, Summer 2010). |
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9 Spencer Stuart Board Index, 2011, p. 6. |
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10 However, where a director has served for less than one full year, we will typically not recommend voting against for failure to attend 75% of meetings. Rather, we will note the poor attendance with a recommendation to track this issue going forward. We will also refrain from recommending to vote against directors when the proxy discloses that the director missed the meetings due to serious illness |
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A proper and well-functioning system exists, therefore, when the three main groups responsible for financial reporting the full board including the audit committee, financial |
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11
Audit Committee Effectiveness
What Works Best. PricewaterhouseCoopers. The Institute of Internal Auditors
Research Foundation. 2005.
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management including the internal auditors, and the outside auditors form a three legged stool that supports responsible financial disclosure and active participatory oversight. However, in the view of the Committee, the audit committee must be first among equals in this process, since the audit committee is an extension of the full board and hence the ultimate monitor of the process. |
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Standards for Assessing the Audit Committee |
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For an audit committee to function effectively on investors behalf, it must include members with sufficient knowledge to diligently carry out their responsibilities. In its audit and accounting recommendations, the Conference Board Commission on Public Trust and Private Enterprise said members of the audit committee must be independent and have both knowledge and experience in auditing financial matters. 12 |
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We are skeptical of audit committees where there are members that lack expertise as a Certified Public Accountant (CPA), Chief Financial Officer (CFO) or corporate controller or similar experience. While we will not necessarily vote against members of an audit committee when such expertise is lacking, we are more likely to vote against committee members when a problem such as a restatement occurs and such expertise is lacking. |
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Glass Lewis generally assesses audit committees against the decisions they make with respect to their oversight and monitoring role. The quality and integrity of the financial statements and earnings reports, the completeness of disclosures necessary for investors to make informed decisions, and the effectiveness of the internal controls should provide reasonable assurance that the financial statements are materially free from errors. The independence of the external auditors and the results of their work all provide useful information by which to assess the audit committee. |
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When assessing the decisions and actions of the audit committee, we typically defer to its judgment and would vote in favor of its members, but we would recommend voting against the following members under the following circumstances: 13 |
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12 Commission on Public Trust and Private Enterprise. The Conference Board. 2003. |
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13 Where the recommendation is to vote against the committee chair but the chair is not up for election because the board is staggered, we do not recommend voting against the members of the committee who are up for election; rather, we will simply express our concern with regard to the committee chair. |
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All members of the audit committee when options were backdated, there is a lack of adequate controls in place, there was a resulting restatement, and disclosures indicate there was a lack of documentation with respect to the option grants. |
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The audit committee chair, if the audit committee does not have a financial expert or the committees financial expert does not have a demonstrable financial background sufficient to understand the financial issues unique to public companies. |
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The audit committee chair, if the audit committee did not meet at least 4 times during the year. |
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The audit committee chair, if the committee has less than three members. |
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Any audit committee member who sits on more than three public company audit committees, unless the audit committee member is a retired CPA, CFO, controller or has similar experience, in which case the limit shall be four committees, taking time and availability into consideration including a review of the audit committee members attendance at all board and committee meetings. 14 |
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All members of an audit committee who are up for election and who served on the committee at the time of the audit, if audit and audit-related fees total one-third or less of the total fees billed by the auditor. |
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The audit committee chair when tax and/or other fees are greater than audit and audit-related fees paid to the auditor for more than one year in a row (in which case we also recommend against ratification of the auditor). |
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All members of an audit committee where non-audit fees include fees for tax services (including, but not limited to, such things as tax avoidance or shelter schemes) for senior executives of the company. Such services are now prohibited by the Public Company Accounting Oversight Board (PCAOB). |
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All members of an audit committee that reappointed an auditor that we no longer consider to be independent for reasons unrelated to fee |
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14 Glass Lewis may exempt certain audit committee members from the above threshold if, upon further analysis of relevant factors such as the directors experience, the size, industry-mix and location of the companies involved and the directors attendance at all the companies, we can reasonably determine that the audit committee member is likely not hindered by multiple audit committee commitments. |
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proportions. |
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All members of an audit committee when audit fees are excessively low, especially when compared with other companies in the same industry. |
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The audit committee chair 15 if the committee failed to put auditor ratification on the ballot for shareholder approval. However, if the non-audit fees or tax fees exceed audit plus audit-related fees in either the current or the prior year, then Glass Lewis will recommend voting against the entire audit committee. |
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All members of an audit committee where the auditor has resigned and reported that a section 10A 16 letter has been issued. |
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All members of an audit committee at a time when material accounting fraud occurred at the company. 17 |
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All members of an audit committee at a time when annual and/or multiple quarterly financial statements had to be restated, and any of the following factors apply: |
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The restatement
involves fraud or manipulation by insiders;
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The restatement is
accompanied by an SEC inquiry or investigation;
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The restatement
involves revenue recognition;
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The restatement results in a greater than 5% adjustment to costs of goods sold, operating expense, or operating cash flows; or |
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15 In all cases, if the chair of the committee is not specified, we recommend voting against the director who has been on the committee the longest. |
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16 Auditors are required to report all potential illegal acts to management and the audit committee unless they are clearly inconsequential in nature. If the audit committee or the board fails to take appropriate action on an act that has been determined to be a violation of the law, the independent auditor is required to send a section 10A letter to the SEC. Such letters are rare and therefore we believe should be taken seriously. |
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17 Recent research indicates that revenue fraud now accounts for over 60% of SEC fraud cases, and that companies that engage in fraud experience significant negative abnormal stock price declinesfacing bankruptcy, delisting, and material asset sales at much higher rates than do non-fraud firms (Committee of Sponsoring Organizations of the Treadway Commission. Fraudulent Financial Reporting: 1998-2007. May 2010). |
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The restatement results in a greater than 5% adjustment to net income, 10% adjustment to assets or shareholders equity, or cash flows from financing or investing activities. |
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18 The Council of Institutional Investors. Corporate Governance Policies, p. 4, April 5, 2006; and Letter from Council of Institutional Investors to the AICPA, November 8, 2006. |
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arrangements. It is important in establishing compensation arrangements that compensation be consistent with, and based on the long-term economic performance of, the businesss long-term shareholders returns. |
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Compensation committees are also responsible for the oversight of the transparency of compensation. This oversight includes disclosure of compensation arrangements, the matrix used in assessing pay for performance, and the use of compensation consultants. In order to ensure the independence of the compensation consultant, we believe the compensation committee should only engage a compensation consultant that is not also providing any services to the company or management apart from their contract with the compensation committee. It is important to investors that they have clear and complete disclosure of all the significant terms of compensation arrangements in order to make informed decisions with respect to the oversight and decisions of the compensation committee. |
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Finally, compensation committees are responsible for oversight of internal controls over the executive compensation process. This includes controls over gathering information used to determine compensation, establishment of equity award plans, and granting of equity awards. Lax controls can and have contributed to conflicting information being obtained, for example through the use of nonobjective consultants. Lax controls can also contribute to improper awards of compensation such as through granting of backdated or spring-loaded options, or granting of bonuses when triggers for bonus payments have not been met. |
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Central to understanding the actions of a compensation committee is a careful review of the Compensation Discussion and Analysis (CD&A) report included in each companys proxy. We review the CD&A in our evaluation of the overall compensation practices of a company, as overseen by the compensation committee. The CD&A is also integral to the evaluation of compensation proposals at companies, such as advisory votes on executive compensation, which allow shareholders to vote on the compensation paid to a companys top executives. |
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When assessing the performance of compensation committees, we will recommend voting against for the following: 19 |
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19 Where the recommendation is to vote against the committee chair and the chair is not up for election because the board is staggered, we do not recommend voting against any members of the committee who are up for election; rather, we will simply express our concern with regard to the |
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All members of the compensation committee who are up for election and served at the time of poor pay-for-performance (e.g., a company receives an F grade in our pay-for-performance analysis) when shareholders are not provided with an advisory vote on executive compensation at the annual meeting. 20 |
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Any member of the compensation committee who has served on the compensation committee of at least two other public companies that received F grades in our pay-for-performance model and who is also suspect at the company in question. |
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The compensation committee chair if the company received two D grades in consecutive years in our pay-for-performance analysis, and if during the past year the Company performed the same as or worse than its peers. 21 |
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All members of the compensation committee (during the relevant time period) if the company entered into excessive employment agreements and/or severance agreements. |
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All members of the compensation committee when performance goals were changed (i.e., lowered) when employees failed or were unlikely to meet original goals, or performance-based compensation was paid despite goals not being attained. |
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committee chair. |
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20 Where there are multiple CEOs in one year, we will consider not recommending against the compensation committee but will defer judgment on compensation policies and practices until the next year or a full year after arrival of the new CEO. In addition, if a company provides shareholders with a Say-on-Pay proposal and receives an F grade in our pay-for-performance model, we will recommend that shareholders only vote against the Say-on-Pay proposal rather than the members of the compensation committee, unless the company exhibits egregious practices. However, if the company receives successive F grades, we will then recommend against the members of the compensation committee in addition to recommending voting against the Say-on-Pay proposal. |
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21 In cases where the company received two D grades in consecutive years, but during the past year the company performed better than its peers or improved from an F to a D grade year over year, we refrain from recommending to vote against the compensation chair. In addition, if a company provides shareholders with a Say-on-Pay proposal in this instance, we will consider voting against the advisory vote rather than the compensation committee chair unless the company exhibits unquestionably egregious practices. |
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All members of the compensation committee if excessive employee perquisites and benefits were allowed. |
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The compensation committee chair if the compensation committee did not meet during the year, but should have (e.g., because executive compensation was restructured or a new executive was hired). |
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All members of the compensation committee when the company repriced options or completed a self tender offer without shareholder approval within the past two years. |
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All members of the compensation committee when vesting of in-the-money options is accelerated or when fully vested options are granted. |
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All members of the compensation committee when option exercise prices were backdated. Glass Lewis will recommend voting against an executive director who played a role in and participated in option backdating. |
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All members of the compensation committee when option exercise prices were spring-loaded or otherwise timed around the release of material information. |
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All members of the compensation committee when a new employment contract is given to an executive that does not include a clawback provision and the company had a material restatement, especially if the restatement was due to fraud. |
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The chair of the compensation committee where the CD&A provides insufficient or unclear information about performance metrics and goals, where the CD&A indicates that pay is not tied to performance, or where the compensation committee or management has excessive discretion to alter performance terms or increase amounts of awards in contravention of previously defined targets. |
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All members of the compensation committee during whose tenure the committee failed to implement a shareholder proposal regarding a compensation-related issue, where the proposal received the affirmative vote of a majority of the voting shares at a shareholder meeting, and when a reasonable analysis suggests that the compensation committee (rather than the governance committee) should have taken steps to implement the request. 22 |
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22 In all other instances (i.e. a non-compensation-related shareholder proposal should have been implemented) we recommend that shareholders vote against the members of the governance |
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23 Where we would recommend to vote against the committee chair but the chair is not up for election because the board is staggered, we do not recommend voting against any members of the committee who are up for election; rather, we will simply express our concern regarding the committee chair. |
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24 If the board does not have a governance committee (or a committee that serves such a purpose), we recommend voting against the entire board on this basis. |
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board failed to implement a shareholder proposal with a direct and substantial impact on shareholders and their rights - i.e., where the proposal received enough shareholder votes (at least a majority) to allow the board to implement or begin to implement that proposal. 25 Examples of these types of shareholder proposals are majority vote to elect directors and to declassify the board. |
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The governance committee chair, 26 when the chairman is not independent and an independent lead or presiding director has not been appointed. 27 |
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In the absence of a nominating committee, the governance committee chair when there are less than five or the whole nominating committee when there are more than 20 members on the board. |
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The governance committee chair, when the committee fails to meet at all during the year. |
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The governance committee chair, when for two consecutive years the company provides what we consider to be inadequate related party transaction disclosure (i.e. the nature of such transactions and/or the monetary amounts involved are unclear or excessively vague, thereby preventing an average shareholder from being able to reasonably interpret the independence status of multiple directors above and beyond what the company maintains is compliant with SEC or applicable stock-exchange listing requirements). |
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The governance committee chair, when during the past year the board |
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25 Where a compensation-related shareholder proposal should have been implemented, and when a reasonable analysis suggests that the members of the compensation committee (rather than the governance committee) bear the responsibility for failing to implement the request, we recommend that shareholders only vote against members of the compensation committee. |
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26 If the committee chair is not specified, we recommend voting against the director who has been on the committee the longest. If the longest-serving committee member cannot be determined, we will recommend voting against the longest-serving board member serving on the committee. |
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27 We believe that one independent individual should be appointed to serve as the lead or presiding director. When such a position is rotated among directors from meeting to meeting, we will recommend voting against as if there were no lead or presiding director. |
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adopted a forum selection clause (i.e. an exclusive forum provision) 28 without shareholder approval, or, if the board is currently seeking shareholder approval of a forum selection clause pursuant to a bundled bylaw amendment rather than as a separate proposal. |
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Regarding the nominating committee, we will recommend voting against the following: 29 |
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All members of the nominating committee, when the committee nominated or renominated an individual who had a significant conflict of interest or whose past actions demonstrated a lack of integrity or inability to represent shareholder interests. |
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The nominating committee chair, if the nominating committee did not meet during the year, but should have (i.e., because new directors were nominated or appointed since the time of the last annual meeting). |
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In the absence of a governance committee, the nominating committee chair 30 when the chairman is not independent, and an independent lead or presiding director has not been appointed. 31 |
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The nominating committee chair, when there are less than five or the whole nominating committee when there are more than 20 members on the board. 32 |
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28 A forum selection clause is a bylaw provision stipulating that a certain state, typically Delaware, shall be the exclusive forum for all intra-corporate disputes (e.g. shareholder derivative actions, assertions of claims of a breach of fiduciary duty, etc.). Such a clause effectively limits a shareholders legal remedy regarding appropriate choice of venue and related relief offered under that states laws and rulings. |
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29 Where we would recommend to vote against the committee chair but the chair is not up for election because the board is staggered, we do not recommend voting against any members of the committee who are up for election; rather, we will simply express our concern regarding the committee chair. |
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30 If the committee chair is not specified, we will recommend voting against the director who has been on the committee the longest. If the longest-serving committee member cannot be determined, we will recommend voting against the longest-serving board member on the committee. |
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31 In the absence of both a governance and a nominating committee, we will recommend voting against the chairman of the board on this basis. |
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32 In the absence of both a governance and a nominating committee, we will recommend voting against the chairman of the board on this basis. |
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The nominating committee chair, when a director received a greater than 50% against vote the prior year and not only was the director not removed, but the issues that raised shareholder concern were not corrected. 33 |
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Board-level Risk Management Oversight |
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Glass Lewis evaluates the risk management function of a public company board on a strictly case-by-case basis. Sound risk management, while necessary at all companies, is particularly important at financial firms which inherently maintain significant exposure to financial risk. We believe such financial firms should have a chief risk officer reporting directly to the board and a dedicated risk committee or a committee of the board charged with risk oversight. Moreover, many non-financial firms maintain strategies which involve a high level of exposure to financial risk. Similarly, since many non-financial firm have significant hedging or trading strategies, including financial and non-financial derivatives, those firms should also have a chief risk officer and a risk committee. |
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Our views on risk oversight are consistent with those expressed by various regulatory bodies. In its December 2009 Final Rule release on Proxy Disclosure Enhancements, the SEC noted that risk oversight is a key competence of the board and that additional disclosures would improve investor and shareholder understanding of the role of the board in the organizations risk management practices. The final rules, which became effective on February 28, 2010, now explicitly require companies and mutual funds to describe (while allowing for some degree of flexibility) the boards role in the oversight of risk. |
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When analyzing the risk management practices of public companies, we take note of any significant losses or writedowns on financial assets and/or structured transactions. In cases where a company has disclosed a sizable loss or writedown, and where we find that the companys board-level risk committee contributed to the loss through poor oversight, we would recommend that shareholders vote against such committee members on that basis. In addition, in cases where a company maintains a significant level of financial risk exposure but fails to disclose any explicit form of board-level risk oversight (committee or |
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33 Considering that shareholder discontent clearly relates to the director who received a greater than 50% against vote rather than the nominating chair, we review the validity of the issue(s) that initially raised shareholder concern, follow-up on such matters, and only recommend voting against the nominating chair if a reasonable analysis suggests that it would be most appropriate. In rare cases, we will consider recommending against the nominating chair when a director receives a substantial (i.e., 25% or more) vote against based on the same analysis. |
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otherwise) 34 , we will consider recommending to vote against the chairman of the board on that basis. However, we generally would not recommend voting against a combined chairman/CEO except in egregious cases. |
Experience
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Voting Recommendations on the Basis of Director Experience |
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We typically recommend that shareholders vote against directors who have served on boards or as executives of companies with records of poor performance, inadequate risk oversight, overcompensation, audit- or accounting-related issues, and/or other indicators of mismanagement or actions against the interests of shareholders. 35 |
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Likewise, we examine the backgrounds of those who serve on key board committees to ensure that they have the required skills and diverse backgrounds to make informed judgments about the subject matter for which the committee is responsible. |
Other Considerations
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Conflicts of Interest |
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34 A committee responsible for risk management could be a dedicated risk committee, or another board committee, usually the audit committee but occasionally the finance committee, depending on a given companys board structure and method of disclosure. At some companies, the entire board is charged with risk management. |
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35 We typically apply a three-year look-back to such issues and also research to see whether the responsible directors have been up for election since the time of the failure, and if so, we take into account the percentage of support they received from shareholders. |
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We believe board members should be wholly free of identifiable and substantial conflicts of interest, regardless of the overall level of independent directors on the board. Accordingly, we recommend that shareholders vote against the following types of affiliated or inside directors: |
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1. A CFO who is on the board: In our view, the CFO holds a unique position relative to financial reporting and disclosure to shareholders. Because of the critical importance of financial disclosure and reporting, we believe the CFO should report to the board and not be a member of it. |
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2. A director who is on an excessive number of boards: We will typically recommend voting against a director who serves as an executive officer of any public company while serving on more than two other public company boards and any other director who serves on more than six public company boards typically receives an against recommendation from Glass Lewis. Academic literature suggests that one board takes up approximately 200 hours per year of each members time. We believe this limits the number of boards on which directors can effectively serve, especially executives at other companies. 36 Further, we note a recent study has shown that the average number of outside board seats held by CEOs of S&P 500 companies is 0.6, down from 0.8 in 2006 and 1.2 in 2001. 37 |
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3. A director, or a director who has an immediate family member, providing material consulting or other material professional services to the company: These services may include legal, consulting, or financial services. We question the need for the company to have consulting relationships with its directors. We view such relationships as creating conflicts for directors, since they may be forced to weigh their own interests against shareholder interests when making board decisions. In addition, a companys decisions regarding where to turn for the best professional services may be compromised when doing business with the professional services firm of one of the companys directors. |
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36 Our guidelines are similar to the standards set forth by the NACD in its Report of the NACD Blue Ribbon Commission on Director Professionalism, 2001 Edition, pp. 14-15 (also cited approvingly by the Conference Board in its Corporate Governance Best Practices: A Blueprint for the Post-Enron Era, 2002, p. 17), which suggested that CEOs should not serve on more than 2 additional boards, persons with full-time work should not serve on more than 4 additional boards, and others should not serve on more than six boards. |
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37 Spencer Stuart Board Index, 2011, p. 8. |
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38 We do not apply a look-back period for this situation. The interlock policy applies to both public and private companies. We will also evaluate multiple board interlocks among non-insiders (i.e. multiple directors serving on the same boards at other companies), for evidence of a pattern of poor oversight. |
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39 Refer to Section IV. Governance Structure and the Shareholder Franchise for further discussion of our policies regarding anti-takeover measures, including poison pills. |
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40 The Conference Board, at p. 23 in its May 2003 report Corporate Governance Best Practices, Id., quotes one of its roundtable participants as stating, [w]hen youve got a 20 or 30 person corporate |
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Controlled Companies
Controlled companies present an exception to our independence recommendations. The boards function is to protect shareholder interests; however, when an individual or entity owns more than 50% of the voting shares, the interests of the majority of shareholders are the interests of that entity or individual. Consequently, Glass Lewis does not apply our usual two-thirds independence rule and therefore we will not recommend voting against boards whose composition reflects the makeup of the shareholder population.
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Independence Exceptions |
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The independence exceptions that we make for controlled companies are as follows: |
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1. We do not require that controlled companies have boards that are at least two-thirds independent. So long as the insiders and/or affiliates are connected with the controlling entity, we accept the presence of non-independent board members. |
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2. The compensation committee and nominating and governance committees do not need to consist solely of independent directors. |
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a. We believe that standing nominating and corporate governance committees at controlled companies are unnecessary. Although having a committee charged with the duties of searching for, selecting, and nominating independent directors can be beneficial, the unique composition of a controlled companys shareholder base makes such committees weak and irrelevant. |
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b. Likewise, we believe that independent compensation committees at controlled companies are unnecessary. Although independent directors are the best choice for approving and monitoring senior executives pay, controlled companies serve a unique shareholder population whose voting power ensures the protection of its interests. As such, we believe that having affiliated directors on a controlled companys compensation committee is acceptable. However, given that a controlled company has certain obligations to minority shareholders we feel that an insider should not serve on the compensation committee. Therefore, Glass Lewis will recommend voting against any insider (the CEO or otherwise) serving on the compensation committee. |
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board, its one way of assuring that nothing is ever going to happen that the CEO doesnt want to happen. |
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3. Controlled companies do not need an independent chairman or an independent lead or presiding director. Although an independent director in a position of authority on the board such as chairman or presiding director can best carry out the boards duties, controlled companies serve a unique shareholder population whose voting power ensures the protection of its interests. |
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Size of the Board of Directors |
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We have no board size requirements for controlled companies. |
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Audit Committee Independence |
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We believe that audit committees should consist solely of independent directors. Regardless of a companys controlled status, the interests of all shareholders must be protected by ensuring the integrity and accuracy of the companys financial statements. Allowing affiliated directors to oversee the preparation of financial reports could create an insurmountable conflict of interest. |
Unofficially Controlled
Companies and 20-50% Beneficial Owners
Where an individual or entity owns more than 50% of a companys voting power but the company is not a controlled company as defined by relevant listing standards, we apply a lower independence requirement of a majority of the board but believe the company should otherwise be treated like another public company; we will therefore apply all other standards as outlined above.
Similarly, where an individual or entity holds between 20-50% of a companys voting power, but the company is not controlled and there is not a majority owner, we believe it is reasonable to allow proportional representation on the board and committees (excluding the audit committee) based on the individual or entitys percentage of ownership.
Exceptions for Recent IPOs
We believe companies that have recently completed an initial public
offering (IPO) should be allowed adequate time to fully comply with
marketplace listing requirements as well as to meet basic corporate governance
standards. We believe a one-year grace period immediately following the date of
a companys IPO is sufficient time for most companies to comply with all
relevant regulatory requirements and to meet such corporate governance
standards. Except in egregious cases, Glass Lewis refrains from issuing voting
recommendations on the basis of corporate governance best practices (eg. board
independence, committee membership and structure, meeting attendance, etc.)
during the one-year period following an IPO.
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However, two specific cases warrant strong shareholder action against
the board of a company that completed an IPO within the past year:
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Adoption of a poison pill : in cases where a board implements a poison pill preceding an IPO, we will consider voting against the members of the board who served during the period of the poison pills adoption if the board (i) did not also commit to submit the poison pill to a shareholder vote within 12 months of the IPO or (ii) did not provide a sound rationale for adopting the pill and the pill does not expire in three years or less. In our view, adopting such an anti-takeover device unfairly penalizes future shareholders who (except for electing to buy or sell the stock) are unable to weigh in on a matter that could potentially negatively impact their ownership interest. This notion is strengthened when a board adopts a poison pill with a 5-10 year life immediately prior to having a public shareholder base so as to insulate management for a substantial amount of time while postponing and/or avoiding allowing public shareholders the ability to vote on the pills adoption. Such instances are indicative of boards that may subvert shareholders best interests following their IPO. |
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Adoption of an exclusive forum provision : consistent with our general approach to boards that adopt exclusive forum provisions without shareholder approval (refer to our discussion of nominating and governance committee performance in Section I of the guidelines), in cases where a board adopts such a provision for inclusion in a companys charter or bylaws before the companys IPO, we will recommend voting against the chairman of the governance committee, or, in the absence of such a committee, the chairman of the board, who served during the period of time when the provision was adopted. |
Further, shareholders should also be wary of companies in this category
that adopt supermajority voting requirements before their IPO. Absent explicit
provisions in the articles or bylaws stipulating that certain policies will be
phased out over a certain period of time (e.g. a predetermined declassification
of the board, a planned separation of the chairman and CEO, etc.) long-term
shareholders could find themselves in the predicament of having to attain a
supermajority vote to approve future proposals seeking to eliminate such
policies.
Mutual Fund Boards
Mutual funds, or investment companies, are structured differently from regular public companies (i.e., operating companies). Typically, members of a funds adviser are on the board and management takes on a different role from that of regular public companies.
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Thus, we focus on a short list of requirements, although many of our guidelines remain the same.
The following mutual fund policies are similar to the policies for regular public companies:
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1. Size of the board of directors: The board should be made up of between five and twenty directors. |
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2. The CFO on the board: Neither the CFO of the fund nor the CFO of the funds registered investment adviser should serve on the board. |
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3. Independence of the audit committee: The audit committee should consist solely of independent directors. |
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4. Audit committee financial expert: At least one member of the audit committee should be designated as the audit committee financial expert. |
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1. Independence of the board: We believe that three-fourths of an investment companys board should be made up of independent directors. This is consistent with a proposed SEC rule on investment company boards. The Investment Company Act requires 40% of the board to be independent, but in 2001, the SEC amended the Exemptive Rules to require that a majority of a mutual fund board be independent. In 2005, the SEC proposed increasing the independence threshold to 75%. In 2006, a federal appeals court ordered that this rule amendment be put back out for public comment, putting it back into proposed rule status. Since mutual fund boards play a vital role in overseeing the relationship between the fund and its investment manager, there is greater need for independent oversight than there is for an operating company board. |
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2. When the auditor is not up for ratification: We do not recommend voting against the audit committee if the auditor is not up for ratification because, due to the different legal structure of an investment company compared to an operating company, the auditor for the investment company (i.e., mutual fund) does not conduct the same level of financial review for each investment company as for an operating company. |
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3. Non-independent chairman: The SEC has proposed that the chairman of the fund board be independent. We agree that the roles of a mutual funds chairman and CEO should be separate. Although we believe this would be best at all companies, we recommend voting against the chairman of an investment companys nominating committee as well as the chairman of the board if the chairman and CEO of a mutual fund are the same person and the fund does not |
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have an independent lead or presiding director. Seven former SEC commissioners support the appointment of an independent chairman and we agree with them that an independent board chairman would be better able to create conditions favoring the long-term interests of fund shareholders than would a chairman who is an executive of the adviser. (See the comment letter sent to the SEC in support of the proposed rule at http://sec.gov/rules/proposed/s70304/s70304-179.pdf) |
Declassified Boards
Glass Lewis favors the repeal of staggered boards and the annual election of directors. We believe staggered boards are less accountable to shareholders than boards that are elected annually. Furthermore, we feel the annual election of directors encourages board members to focus on shareholder interests.
Empirical studies have shown: (i) companies with staggered boards reduce a firms value; and (ii) in the context of hostile takeovers, staggered boards operate as a takeover defense, which entrenches management, discourages potential acquirers, and delivers a lower return to target shareholders.
In our view, there is no evidence to demonstrate that staggered boards improve shareholder returns in a takeover context. Research shows that shareholders are worse off when a staggered board blocks a transaction. A study by a group of Harvard Law professors concluded that companies whose staggered boards prevented a takeover reduced shareholder returns for targets ... on the order of eight to ten percent in the nine months after a hostile bid was announced. 41 When a staggered board negotiates a friendly transaction, no statistically significant difference in premiums occurs. 42 Further, one of those same professors found that charter-based staggered boards reduce the market value of a firm by 4% to 6% of its market capitalization and that staggered boards bring about and not merely reflect this reduction in market value. 43 A subsequent study reaffirmed that classified boards reduce shareholder value, finding
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41 Lucian Bebchuk, John Coates IV, Guhan Subramanian, The Powerful Antitakeover Force of Staggered Boards: Further Findings and a Reply to Symposium Participants, 55 Stanford Law Review 885-917 (2002), page 1. |
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42 Id. at 2 (Examining a sample of seventy-three negotiated transactions from 2000 to 2002, we find no systematic benefits in terms of higher premia to boards that have [staggered structures].). |
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43 Lucian Bebchuk, Alma Cohen, The Costs of Entrenched Boards (2004). |
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that the ongoing process of dismantling staggered boards, encouraged by
institutional investors, could well contribute to increasing shareholder
wealth.
44
Shareholders have increasingly come to agree with this view. In 2011
more than 75% of S&P 500 companies had declassified boards, up from
approximately 41% a decade ago.
45
Clearly, more shareholders have supported the repeal of classified boards.
Resolutions relating to the repeal of staggered boards garnered on average over
70% support among shareholders in 2008, whereas in 1987, only 16.4% of votes
cast favored board declassification.
46
Given the empirical evidence suggesting staggered boards reduce a companys value and the increasing shareholder opposition to such a structure, Glass Lewis supports the declassification of boards and the annual election of directors.
Mandatory Director Term
and Age limits
Glass Lewis believes that director age and term limits typically are not in shareholders best interests. Too often age and term limits are used by boards as a crutch to remove board members who have served for an extended period of time. When used in that fashion, they are indicative of a board that has a difficult time making tough decisions.
Academic literature suggests that there is no evidence of a correlation between either length of tenure or age and director performance. On occasion, term limits can be used as a means to remove a director for boards that are unwilling to police their membership and to enforce turnover. Some shareholders support term limits as a way to force change when boards are unwilling to do so.
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44
Lucian Bebchuk, Alma Cohen and
Charles C.Y. Wang, Staggered Boards and the Wealth of Shareholders:
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45 Spencer Stuart Board Index, 2011, p. 14 |
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46 Lucian Bebchuk, John Coates IV and Guhan Subramanian, The Powerful Antitakeover Force of Staggered Boards: Theory, Evidence, and Policy, 54 Stanford Law Review 887-951 (2002). |
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In our view, a directors experience can be a valuable asset to shareholders because of the complex, critical issues that boards face. However, we support periodic director rotation to ensure a fresh perspective in the boardroom and the generation of new ideas and business strategies. We believe the board should implement such rotation instead of relying on arbitrary limits. When necessary, shareholders can address the issue of director rotation through director elections.
We believe that shareholders are better off monitoring the boards approach to corporate governance and the boards stewardship of company performance rather than imposing inflexible rules that dont necessarily correlate with returns or benefits for shareholders.
However, if a board adopts term/age limits, it should follow through and not waive such limits. If the board waives its term/age limits, Glass Lewis will consider recommending shareholders vote against the nominating and/or governance committees, unless the rule was waived with sufficient explanation, such as consummation of a corporate transaction like a merger.
Requiring Two or More Nominees per Board Seat
In an attempt to address lack of access to the ballot, shareholders sometimes propose that the board give shareholders a choice of directors for each open board seat in every election. However, we feel that policies requiring a selection of multiple nominees for each board seat would discourage prospective directors from accepting nominations. A prospective director could not be confident either that he or she is the boards clear choice or that he or she would be elected. Therefore, Glass Lewis generally will vote against such proposals.
Shareholder Access
We expect to see a number of shareholder proposals regarding this topic
in 2012. For a discussion of recent regulatory events in this area, along with
a detailed overview of the Glass Lewis approach to Shareholder Proposals
regarding Proxy Access, refer to
Section V. Compensation, Environmental, Social and
Governance Shareholder Initiatives
.
Majority Vote for the Election of Directors
In stark contrast to the failure of shareholder access to gain acceptance, majority voting for the election of directors is fast becoming the de facto standard in corporate board elections. In our view, the majority voting proposals are an effort to make the case for shareholder impact on director elections on a company-specific basis.
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While this proposal would not give shareholders the opportunity to nominate directors or lead to elections where shareholders have a choice among director candidates, if implemented, the proposal would allow shareholders to have a voice in determining whether the nominees proposed by the board should actually serve as the overseer-representatives of shareholders in the boardroom. We believe this would be a favorable outcome for shareholders.
During 2011, Glass Lewis tracked over 40 proposals seeking to require a
majority vote to elect directors at annual meetings in the U.S., a slight
increase over 2010 when we tracked just under 35 proposals, but a sharp
contrast to the 147 proposals tracked during 2006. The large drop in the number
of proposals being submitted in recent years compared to 2006 is a result of
many companies having already adopted some form of majority voting, including
approximately 79% of companies in the S&P 500 index, up from 56% in 2008.
47
During 2009 these proposals received on average 59% shareholder support (based
on for and against votes), up from 54% in 2008.
The plurality vote standard
Today, most US companies still elect directors by a plurality vote standard. Under that standard, if one shareholder holding only one share votes in favor of a nominee (including himself, if the director is a shareholder), that nominee wins the election and assumes a seat on the board. The common concern among companies with a plurality voting standard was the possibility that one or more directors would not receive a majority of votes, resulting in failed elections. This was of particular concern during the 1980s, an era of frequent takeovers and contests for control of companies.
Advantages of a majority vote standard
If a majority vote standard were implemented, a nominee would have to receive the support of a majority of the shares voted in order to be elected. Thus, shareholders could collectively vote to reject a director they believe will not pursue their best interests. We think that this minimal amount of protection for shareholders is reasonable and will not upset the corporate structure nor reduce the willingness of qualified shareholder-focused directors to serve in the future.
We believe that a majority vote standard will likely lead to more attentive directors. Occasional use of this power will likely prevent the election of directors with a record of ignoring shareholder interests in favor of other interests that conflict with those of
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47 Spencer Stuart Board Index, 2011, p. 14 |
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investors. Glass Lewis will generally support proposals calling for the election of directors by a majority vote except for use in contested director elections.
In response to the high level of support majority voting has garnered, many companies have voluntarily taken steps to implement majority voting or modified approaches to majority voting. These steps range from a modified approach requiring directors that receive a majority of withheld votes to resign (e.g., Ashland Inc.) to actually requiring a majority vote of outstanding shares to elect directors (e.g., Intel).
We feel that the modified approach does not go far enough because requiring a director to resign is not the same as requiring a majority vote to elect a director and does not allow shareholders a definitive voice in the election process. Further, under the modified approach, the corporate governance committee could reject a resignation and, even if it accepts the resignation, the corporate governance committee decides on the directors replacement. And since the modified approach is usually adopted as a policy by the board or a board committee, it could be altered by the same board or committee at any time.
II. T RANSPARENCY AND I NTEGRITY OF F INANCIAL R EPORTING
Auditor Ratification
The auditors role as gatekeeper is crucial in ensuring the integrity and transparency of the financial information necessary for protecting shareholder value. Shareholders rely on the auditor to ask tough questions and to do a thorough analysis of a companys books to ensure that the information provided to shareholders is complete, accurate, fair, and that it is a reasonable representation of a companys financial position. The only way shareholders can make rational investment decisions is if the market is equipped with accurate information about a companys fiscal health. As stated in the October 6, 2008 Final Report of the Advisory Committee on the Auditing Profession to the U.S. Department of the Treasury:
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The auditor is expected to offer critical and objective judgment on the financial matters under consideration, and actual and perceived absence of conflicts is critical to that expectation. The Committee believes that auditors, investors, public companies, and other market participants must understand the independence requirements and their objectives, and that auditors must adopt a mindset of |
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skepticism when facing situations that may compromise their independence. |
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As such, shareholders should demand an objective, competent and diligent
auditor who performs at or above professional standards at every company in
which the investors hold an interest. Like directors, auditors should be free
from conflicts of interest and should avoid situations requiring a choice
between the auditors interests and the publics interests. Almost without
exception, shareholders should be able to annually review an auditors
performance and to annually ratify a boards auditor selection. Moreover, in
October 2008, the Advisory Committee on the Auditing Profession went even
further, and recommended that to further enhance audit committee oversight and
auditor accountability ... disclosure in the company proxy statement regarding
shareholder ratification [should] include the name(s) of the senior auditing partner(s)
staffed on the engagement.
48
Most recently on August 16, 2011, the PCAOB issued a Concept Release seeking public comment on ways that auditor independence, objectivity and professional skepticism could be enhanced, with a specific emphasis on mandatory audit firm rotation. The PCAOB will convene a public roundtable meeting in March 2012 to further discuss such matters. Glass Lewis believes auditor rotation can ensure both the independence of the auditor and the integrity of the audit; we will typically recommend supporting proposals to require auditor rotation when the proposal uses a reasonable period of time (usually not less than 5-7 years) particularly at companies with a history of accounting problems.
Voting Recommendations on Auditor Ratification
We generally support managements choice of auditor except when we believe the auditors independence or audit integrity has been compromised. Where a board has not allowed shareholders to review and ratify an auditor, we typically recommend voting against the audit committee chairman. When there have been material restatements of annual financial statements or material weakness in internal controls, we usually recommend voting against the entire audit committee.
Reasons why we may not recommend ratification of an auditor include:
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When audit fees plus audit-related fees total less than the tax fees and/or other non-audit fees. |
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Recent material restatements of annual financial statements, including those |
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48 Final Report of the Advisory Committee on the Auditing Profession to the U.S. Department of the Treasury. p. VIII:20, October 6, 2008. |
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resulting in the reporting of material weaknesses in internal controls and including late filings by the company where the auditor bears some responsibility for the restatement or late filing. 49 |
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When the auditor performs prohibited services such as tax-shelter work, tax services for the CEO or CFO, or contingent-fee work, such as a fee based on a percentage of economic benefit to the company. |
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When audit fees are excessively low, especially when compared with other companies in the same industry. |
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When the company has aggressive accounting policies. |
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When the company has poor disclosure or lack of transparency in its financial statements. |
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Where the auditor limited its liability through its contract with the company or the audit contract requires the corporation to use alternative dispute resolution procedures without adequate justification. |
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We also look for other relationships or concerns with the auditor that might suggest a conflict between the auditors interests and shareholder interests. |
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Pension Accounting Issues
A pension accounting question often raised in proxy proposals is what effect, if any, projected returns on employee pension assets should have on a companys net income. This issue often arises in the executive-compensation context in a discussion of the extent to which pension accounting should be reflected in business performance for purposes of calculating payments to executives.
Glass Lewis believes that pension credits should not be included in measuring income that is used to award performance-based compensation. Because many of the assumptions used in accounting for retirement plans are subject to the companys discretion, management would have an obvious conflict of interest if pay were tied to pension income. In our view, projected income from pensions does not truly reflect a companys performance.
III. T HE L INK B ETWEEN
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49 An auditor does not audit interim financial statements. Thus, we generally do not believe that an auditor should be opposed due to a restatement of interim financial statements unless the nature of the misstatement is clear from a reading of the incorrect financial statements. |
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C OMPENSATION AND P ERFORMANCE
Glass Lewis carefully
reviews the compensation awarded to senior executives, as we believe that this
is an important area in which the boards priorities are revealed. Glass Lewis
strongly believes executive compensation should be linked directly with the
performance of the business the executive is charged with managing. We believe
the most effective compensation arrangements provide for an appropriate mix of
performance-based short- and long-term incentives in addition to base salary.
Glass Lewis believes that comprehensive, timely and
transparent disclosure of executive pay is critical to allowing shareholders to
evaluate the extent to which the pay is keeping pace with company performance.
When reviewing proxy materials, Glass Lewis examines whether the
company discloses the performance metrics used to determine executive
compensation. We recognize performance metrics must necessarily vary depending
on the company and industry, among other factors, and may include items such as
total shareholder return, earning per share growth, return on equity, return on
assets and revenue growth. However, we believe companies should disclose why
the specific performance metrics were selected and how the actions they are
designed to incentivize will lead to better corporate performance.
Moreover, it is rarely in shareholders interests to disclose competitive data about individual salaries below the senior executive level. Such disclosure could create internal personnel discord that would be counterproductive for the company and its shareholders. While we favor full disclosure for senior executives and we view pay disclosure at the aggregate level (e.g., the number of employees being paid over a certain amount or in certain categories) as potentially useful, we do not believe shareholders need or will benefit from detailed reports about individual management employees other than the most senior executives.
Advisory Vote on Executive Compensation (Say-on-Pay)
The Dodd-Frank Wall
Street Reform and Consumer Protection Act (the Dodd-Frank Act) required most
companies
50
to hold an advisory vote on executive compensation at
the first shareholder meeting that occurs six months after enactment of the
bill (January 21, 2011).
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50 Small reporting companies (as defined by the SEC as below $75,000,000 in market capitalization) received a two-year reprieve and will only be subject to say-on-pay requirements beginning at meetings held on or after January 21, 2013. |
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This practice of allowing shareholders a non-binding vote on
a companys compensation report is standard practice in many non-US countries,
and has been a requirement for most companies in the United Kingdom since 2003
and in Australia since 2005. Although Say-on-Pay proposals are non-binding, a
high level of against or abstain votes indicate substantial shareholder
concern about a companys compensation policies and procedures.
Given the complexity of most companies compensation programs, Glass Lewis applies a highly nuanced approach when analyzing advisory votes on executive compensation. We review each companys compensation on a case-by-case basis, recognizing that each company must be examined in the context of industry, size, maturity, performance, financial condition, its historic pay for performance practices, and any other relevant internal or external factors.
We believe that each company should design and apply specific compensation policies and practices that are appropriate to the circumstances of the company and, in particular, will attract and retain competent executives and other staff, while motivating them to grow the companys long-term shareholder value.
Where we find those specific policies and practices serve to reasonably align compensation with performance, and such practices are adequately disclosed, Glass Lewis will recommend supporting the companys approach. If, however, those specific policies and practices fail to demonstrably link compensation with performance, Glass Lewis will generally recommend voting against the say-on-pay proposal.
Glass Lewis focuses on four main areas when reviewing Say-on-Pay proposals:
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The overall design and structure of the Companys executive compensation program including performance metrics; |
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The quality and content of the Companys disclosure; |
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The quantum paid to executives; and |
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The link between compensation and performance as indicated by the Companys current and past pay-for-performance grades |
We also review any significant changes or modifications, and rationale for such changes, made to the Companys compensation structure or award amounts, including base salaries.
Say-on-Pay Voting
Recommendations
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In cases where we find deficiencies in a companys
compensation programs design, implementation or management, we will recommend
that shareholders vote against the Say-on-Pay proposal. Generally such
instances include evidence of a pattern of poor pay-for-performance practices
(i.e., deficient or failing pay for performance grades), unclear or
questionable disclosure regarding the overall compensation structure (e.g.,
limited information regarding benchmarking processes, limited rationale for
bonus performance metrics and targets, etc.), questionable adjustments to
certain aspects of the overall compensation structure (e.g., limited rationale
for significant changes to performance targets or metrics, the payout of
guaranteed bonuses or sizable retention grants, etc.), and/or other egregious
compensation practices.
Although not an exhaustive list, the following issues when weighed together may cause Glass Lewis to recommend voting against a say-on-pay vote:
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Inappropriate peer group and/or benchmarking issues |
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Inadequate or no rationale for changes to peer groups |
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Egregious or excessive bonuses, equity awards or severance payments, including golden handshakes and golden parachutes |
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Guaranteed bonuses |
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Targeting overall levels of compensation at higher than median without adequate justification |
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Bonus or long-term plan targets set at less than mean or negative performance levels |
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Performance targets not sufficiently challenging, and/or providing for high potential payouts |
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Performance targets lowered, without justification |
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Discretionary bonuses paid when short- or long-term incentive plan targets were not met |
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Executive pay high relative to peers not justified by outstanding company performance |
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The terms of the long-term incentive plans are inappropriate (please see Long-Term Incentives below) |
In the instance that a company
has simply failed to provide sufficient disclosure of its policies, we may
recommend shareholders vote against this proposal solely on this basis,
regardless of the appropriateness of compensation levels.
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Additional Scrutiny
for Companies with Significant Opposition in 2011
At companies that received a significant shareholder vote (anything greater than 25%) against their say on pay proposal in 2011, we believe the board should demonstrate some level of engagement and responsiveness to the shareholder concerns behind the discontent. While we recognize that sweeping changes cannot be made to a compensation program without due consideration and that a majority of shareholders voted in favor of the proposal, we will look for disclosure in the proxy statement and other publicly-disclosed filings that indicates the compensation committee is responding to the prior years vote results including engaging with large shareholders to identify the concerns causing the substantial vote against. In the absence of any evidence that the board is actively engaging shareholders on this issue and responding accordingly, we will recommend holding compensation committee members accountable for a failure to respond in consideration of the level of the vote against and the severity and history of the compensation problems.
Where we identify egregious compensation practices, we may also recommend voting against the compensation committee based on the practices or actions of its members during the year, such as approving large one-off payments, the inappropriate, unjustified use of discretion, or sustained poor pay for performance practices.
Short-Term Incentives
A short-term bonus or incentive (STI) should be demonstrably tied to performance. Whenever possible, we believe a mix of corporate and individual performance measures is appropriate. We would normally expect performance measures for STIs to be based on internal financial measures such as net profit after tax, EPS growth and divisional profitability as well as non-financial factors such as those related to safety, environmental issues, and customer satisfaction. However, we accept variations from these metrics if they are tied to the Companys business drivers.
Further, the target and potential maximum awards that can be achieved under STI awards should be disclosed. Shareholders should expect stretching performance targets for the maximum award to be achieved. Any increase in the potential maximum award should be clearly justified to shareholders.
Glass Lewis recognizes that disclosure of some measures may
include commercially confidential information. Therefore, we believe it may be
reasonable to exclude such information in some cases as long as the company
provides sufficient justification for non-disclosure. However, where a short-term
bonus has been paid, companies should disclose the extent to which performance
has been achieved against relevant targets, including disclosure of the actual
target achieved.
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Where management has received significant STIs but short-term
performance as measured by such indicators as increase in profit and/or EPS
growth over the previous year
prima facie
appears to be poor or negative, we believe the company should provide a clear
explanation why these significant short-term payments were made.
Long-Term Incentives
Glass Lewis recognizes the value of equity-based incentive programs. When used appropriately, they can provide a vehicle for linking an executives pay to company performance, thereby aligning their interests with those of shareholders. In addition, equity-based compensation can be an effective way to attract, retain and motivate key employees.
There are certain elements that Glass Lewis believes are common to most well-structured long-term incentive (LTI) plans. These include:
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No re-testing or lowering of performance conditions |
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Performance metrics that cannot be easily manipulated by management |
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Two or more performance metrics |
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At least one relative performance metric that compares the companys performance to a relevant peer group or index |
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Performance periods of at least three years |
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Stretching metrics that incentivize executives to strive for outstanding performance |
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Individual limits expressed as a percentage of base salary |
Performance measures should be carefully selected and should relate to the specific business/industry in which the company operates and, especially, the key value drivers of the companys business.
Glass Lewis believes that measuring a companys performance
with multiple metrics serves to provide a more complete picture of the
companys performance than a single metric, which may focus too much management
attention on a single target and is therefore more susceptible to manipulation.
External benchmarks should be disclosed and transparent, such as total shareholder
return (TSR) against a well-selected sector index, peer group or other
performance hurdle. The rationale behind the selection of a specific index or
peer group should be disclosed. Internal benchmarks (e.g. earnings per share
growth) should also be disclosed and transparent, unless a cogent case for
confidentiality is made and fully explained.
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We also believe shareholders should evaluate the relative
success of a companys compensation programs, particularly existing equity-based
incentive plans, in linking pay and performance in evaluating new LTI plans to
determine the impact of additional stock awards. We will therefore review the
companys pay-for-performance grade, see below for more information, and
specifically the proportion of total compensation that is stock-based.
Pay for Performance
Glass Lewis believes an integral part of a well-structured compensation package is a successful link between pay and performance. Therefore, Glass Lewis developed a proprietary pay-for-performance model to evaluate the link between pay and performance of the top five executives at US companies. Our model benchmarks these executives pay and company performance against four peer groups and across seven performance metrics. Using a forced curve and a school letter-grade system, we grade companies from A-F according to their pay-for-performance linkage. The grades guide our evaluation of compensation committee effectiveness and we generally recommend voting against compensation committee of companies with a pattern of failing our pay-for-performance analysis.
We also use this analysis to inform our voting decisions on say-on-pay proposals. As such, if a company receives a failing grade from our proprietary model, we are likely to recommend shareholders to vote against the say-on-pay proposal. However, there may be exceptions to this rule such as when a company makes significant enhancements to its compensation programs.
Recoupment (Clawback) Provisions
Section 954 of the Dodd-Frank Act requires the SEC to create a rule requiring listed companies to adopt policies for recouping certain compensation during a three-year look-back period. The rule applies to incentive-based compensation paid to current or former executives if the company is required to prepare an accounting restatement due to erroneous data resulting from material non-compliance with any financial reporting requirements under the securities laws.
These recoupment provisions are more stringent than under
Section 304 of the Sarbanes-Oxley Act in three respects: (i) the provisions
extend to current or former executive officers rather than only to the CEO and
CFO; (ii) it has a three-year look-back period (rather than a twelve-month look-back
period); and (iii) it allows for recovery of compensation based upon a
financial restatement due to erroneous data, and therefore does not require
misconduct on the part of the executive or other employees.
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Frequency of Say-on-Pay
The Dodd-Frank Act also requires companies to allow shareholders a non-binding vote on the frequency of say-on-pay votes, i.e. every one, two or three years. Additionally, Dodd-Frank requires companies to hold such votes on the frequency of say-on-pay votes at least once every six years.
We believe companies should submit say-on-pay votes to shareholders every year. We believe that the time and financial burdens to a company with regard to an annual vote are relatively small and incremental and are outweighed by the benefits to shareholders through more frequent accountability. Implementing biannual or triennial votes on executive compensation limits shareholders ability to hold the board accountable for its compensation practices through means other than voting against the compensation committee. Unless a company provides a compelling rationale or unique circumstances for say-on-pay votes less frequent than annually, we will generally recommend that shareholders support annual votes on compensation.
Vote on Golden Parachute Arrangements
The Dodd-Frank Act also requires companies to provide shareholders with a separate non-binding vote on approval of golden parachute compensation arrangements in connection with certain change-in-control transactions. However, if the golden parachute arrangements have previously been subject to a say-on-pay vote which shareholders approved, then this required vote is waived.
Glass Lewis believes the narrative and tabular disclosure of golden parachute arrangements will benefit all shareholders. Glass Lewis will analyze each golden parachute arrangement on a case-by-case basis, taking into account, among other items: the ultimate value of the payments particularly compared to the value of the transaction, the tenure and position of the executives in question, and the type of triggers involved (single vs double).
Equity-Based Compensation Plan Proposals
We believe that equity compensation awards are useful, when
not abused, for retaining employees and providing an incentive for them to act
in a way that will improve company performance. Glass Lewis evaluates equity-based
compensation plans using a detailed model and analytical review.
Equity-based compensation programs have important differences from cash compensation plans and bonus programs. Accordingly, our model and analysis takes into account factors such as plan administration, the method and terms of exercise,
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repricing history, express or implied rights to reprice, and the presence of evergreen provisions.
Our analysis is
primarily quantitative and focused on the plans cost as compared with the
businesss operating metrics. We run twenty different analyses, comparing the
program with absolute limits we believe are key to equity value creation and
with a carefully chosen peer group. In general, our model seeks to determine
whether the proposed plan is either absolutely excessive or is more than one
standard deviation away from the average plan for the peer group on a range of
criteria, including dilution to shareholders and the projected annual cost
relative to the companys financial performance. Each of the twenty analyses
(and their constituent parts) is weighted and the plan is scored in accordance
with that weight.
In our analysis, we compare the programs expected annual expense with the businesss operating metrics to help determine whether the plan is excessive in light of company performance. We also compare the option plans expected annual cost to the enterprise value of the firm rather than to market capitalization because the employees, managers and directors of the firm contribute to the creation of enterprise value but not necessarily market capitalization (the biggest difference is seen where cash represents the vast majority of market capitalization). Finally, we do not rely exclusively on relative comparisons with averages because, in addition to creeping averages serving to inflate compensation, we believe that some absolute limits are warranted.
We evaluate equity plans based on certain overarching principles:
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Companies should seek more shares only when needed. |
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Requested share amounts should be small enough that companies seek shareholder approval every three to four years (or more frequently). |
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If a plan is relatively expensive, it should not grant options solely to senior executives and board members. |
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Annual net share count and voting power dilution should be limited. |
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Annual cost of the plan (especially if not shown on the income statement) should be reasonable as a percentage of financial results and should be in line with the peer group. |
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The expected annual cost of the plan should be proportional to the businesss value. |
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The intrinsic value that option grantees received in the past should be reasonable compared with the businesss financial results. |
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Plans should deliver value on a per-employee basis when compared with |
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programs at peer companies. |
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Plans should not permit re-pricing of stock options. |
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Plans should not contain excessively liberal administrative or payment terms. 11. Selected performance metrics should be challenging and appropriate, and should be subject to relative performance measurements. |
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Stock grants should be subject to minimum vesting and/or holding periods sufficient to ensure sustainable performance and promote retention. |
Option Exchanges
Glass Lewis views option repricing plans and option exchange programs with great skepticism. Shareholders have substantial risk in owning stock and we believe that the employees, officers, and directors who receive stock options should be similarly situated to align their interests with shareholder interests.
We are concerned that option grantees who believe they will be rescued from underwater options will be more inclined to take unjustifiable risks. Moreover, a predictable pattern of repricing or exchanges substantially alters a stock options value because options that will practically never expire deeply out of the money are worth far more than options that carry a risk of expiration.
In short, repricings and option exchange programs change the
bargain between shareholders and employees after the bargain has been struck.
There is one circumstance in which a repricing or option exchange program is acceptable: if macroeconomic or industry trends, rather than specific company issues, cause a stocks value to decline dramatically and the repricing is necessary to motivate and retain employees. In this circumstance, we think it fair to conclude that option grantees may be suffering from a risk that was not foreseeable when the original bargain was struck. In such a circumstance, we will recommend supporting a repricing only if the following conditions are true:
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Officers and board members cannot participate in the program; |
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The stock decline mirrors the market or industry price decline in terms of timing and approximates the decline in magnitude; |
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The exchange is value-neutral or value-creative to shareholders using very conservative assumptions and with a recognition of the adverse selection problems inherent in voluntary programs; and |
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Management and the board make a cogent case for needing to motivate and |
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retain existing employees, such as being in a competitive employment market. |
Option Backdating, Spring-Loading, and Bullet-Dodging
Glass Lewis views option backdating, and the related practices of spring-loading and bullet-dodging, as egregious actions that warrant holding the appropriate management and board members responsible. These practices are similar to re-pricing options and eliminate much of the downside risk inherent in an option grant that is designed to induce recipients to maximize shareholder return.
Backdating an option
is the act of changing an options grant date from the actual grant date to an
earlier date when the market price of the underlying stock was lower, resulting
in a lower exercise price for the option. Since 2006, Glass Lewis has
identified over 270 companies that have disclosed internal or government
investigations into their past stock-option grants.
Spring-loading is granting stock options while in possession of material, positive information that has not been disclosed publicly. Bullet-dodging is delaying the grants of stock options until after the release of material, negative information. This can allow option grants to be made at a lower price either before the release of positive news or following the release of negative news, assuming the stocks price will move up or down in response to the information. This raises a concern similar to that of insider trading, or the trading on material non-public information.
The exercise price for an option is determined on the day of grant, providing the recipient with the same market risk as an investor who bought shares on that date. However, where options were backdated, the executive or the board (or the compensation committee) changed the grant date retroactively. The new date may be at or near the lowest price for the year or period. This would be like allowing an investor to look back and select the lowest price of the year at which to buy shares.
A 2006 study of
option grants made between 1996 and 2005 at 8,000 companies found that option
backdating can be an indication of poor internal controls. The study found that
option backdating was more likely to occur at companies without a majority
independent board and with a long-serving CEO; both factors, the study
concluded, were associated with greater CEO influence on the companys
compensation and governance practices.
51
Where a company granted backdated options to an executive who is also a director, Glass Lewis will recommend voting against that executive/director, regardless of who
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51 Lucian Bebchuk, Yaniv Grinstein and Urs Peyer. LUCKY CEOs. November, 2006. |
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decided to make the award. In addition, Glass Lewis will recommend voting against those directors who either approved or allowed the backdating. Glass Lewis feels that executives and directors who either benefited from backdated options or authorized the practice have breached their fiduciary responsibility to shareholders.
Given the severe tax and legal liabilities to the company from backdating, Glass Lewis will consider recommending voting against members of the audit committee who served when options were backdated, a restatement occurs, material weaknesses in internal controls exist and disclosures indicate there was a lack of documentation. These committee members failed in their responsibility to ensure the integrity of the companys financial reports.
When a company has engaged in spring-loading or bullet-dodging, Glass Lewis will consider recommending voting against the compensation committee members where there has been a pattern of granting options at or near historic lows. Glass Lewis will also recommend voting against executives serving on the board who benefited from the spring-loading or bullet-dodging.
162(m) Plans
Section 162(m) of the Internal Revenue Code allows companies to deduct compensation in excess of $1 million for the CEO and the next three most highly compensated executive officers, excluding the CFO, upon shareholder approval of the excess compensation. Glass Lewis recognizes the value of executive incentive programs and the tax benefit of shareholder-approved incentive plans.
We believe the best
practice for companies is to provide robust disclosure to shareholders so that
they can make fully-informed judgments about the reasonableness of the proposed
compensation plan. To allow for meaningful shareholder review, we prefer that
disclosure should include specific performance metrics, a maximum award pool,
and a maximum award amount per employee. We also believe it is important to analyze
the estimated grants to see if they are reasonable and in line with the
companys peers.
We typically recommend voting against a 162(m) plan where: a company fails to provide at least a list of performance targets; a company fails to provide one of either a total pool or an individual maximum; or the proposed plan is excessive when compared with the plans of the companys peers.
The companys record of aligning pay with performance (as
evaluated using our proprietary pay-for-performance model) also plays a role in
our recommendation. Where a company has a record of setting reasonable pay
relative to business
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performance, we generally recommend voting in favor of a
plan even if the plan caps seem large relative to peers because we recognize
the value in special pay arrangements for continued exceptional performance.
As with all other issues we review, our goal is to provide
consistent but contextual advice given the specifics of the company and ongoing
performance. Overall, we recognize that it is generally not in shareholders
best interests to vote against such a plan and forgo the potential tax benefit
since shareholder rejection of such plans will not curtail the awards; it will
only prevent the tax deduction associated with them.
Director Compensation Plans
Glass Lewis believes
that non-employee directors should receive reasonable and appropriate
compensation for the time and effort they spend serving on the board and its
committees. Director fees should be competitive in order to retain and attract qualified
individuals. But excessive fees represent a financial cost to the company and
threaten to compromise the objectivity and independence of non-employee
directors. Therefore, a balance is required. We will consider recommending
supporting compensation plans that include option grants or other equity-based
awards that help to align the interests of outside directors with those of
shareholders. However, equity grants to directors should not be performance-based
to ensure directors are not incentivized in the same manner as executives but
rather serve as a check on imprudent risk-taking in executive compensation plan
design.
Glass Lewis uses a proprietary model and analyst review to
evaluate the costs of equity plans compared to the plans of peer companies with
similar market capitalizations. We use the results of this model to guide our
voting recommendations on stock-based director compensation plans.
IV. G OVERNANCE S TRUCTURE AND THE S HAREHOLDER F RANCHISE
Anti-Takeover Measures
Poison Pills (Shareholder Rights Plans)
Glass Lewis believes that poison pill plans are not generally in shareholders best interests. They can reduce management accountability by substantially limiting opportunities for corporate takeovers. Rights plans can thus prevent shareholders from receiving a buy-out premium for their stock. Typically we recommend that shareholders
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vote against these plans to protect their financial interests and ensure that they have an opportunity to consider any offer for their shares, especially those at a premium.
We believe boards should be given wide latitude in directing company activities and in charting the companys course. However, on an issue such as this, where the link between the shareholders financial interests and their right to consider and accept buyout offers is substantial, we believe that shareholders should be allowed to vote on whether they support such a plans implementation. This issue is different from other matters that are typically left to board discretion. Its potential impact on and relation to shareholders is direct and substantial. It is also an issue in which management interests may be different from those of shareholders; thus, ensuring that shareholders have a voice is the only way to safeguard their interests.
In certain
circumstances, we will support a poison pill that is limited in scope to
accomplish a particular objective, such as the closing of an important merger,
or a pill that contains what we
believe to be a reasonable qualifying offer clause. We will consider supporting
a poison pill plan if the qualifying offer clause includes each of the
following attributes:
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The form of offer is not required to be an all-cash transaction; |
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The offer is not required to remain open for more than 90 business days; |
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The offeror is permitted to amend the offer, reduce the offer, or otherwise change the terms; |
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There is no fairness opinion requirement; and |
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There is a low to no premium requirement. |
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Where these requirements are met, we typically feel comfortable that shareholders will have the opportunity to voice their opinion on any legitimate offer.
NOL Poison Pills
Similarly, Glass
Lewis may consider supporting a limited poison pill in the unique event that a
company seeks shareholder approval of a rights plan for the express purpose of
preserving Net Operating Losses (NOLs). While companies with NOLs can generally
carry these losses forward to offset future taxable income, Section 382 of the
Internal Revenue Code limits companies ability to use NOLs in the event of a
change of ownership.
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In this case, a company may adopt or amend
a poison pill (NOL pill) in
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52 Section 382 of the Internal Revenue Code refers to a change of ownership of more than 50 percentage points by one or more 5% shareholders within a three-year period. The statute is intended to deter the trafficking of net operating losses. |
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order to prevent an inadvertent change of ownership by multiple investors purchasing small chunks of stock at the same time, and thereby preserve the ability to carry the NOLs forward. Often such NOL pills have trigger thresholds much lower than the common 15% or 20% thresholds, with some NOL pill triggers as low as 5%.
Glass Lewis evaluates NOL pills on a strictly case-by-case basis taking into consideration, among other factors, the value of the NOLs to the company, the likelihood of a change of ownership based on the size of the holding and the nature of the larger shareholders, the trigger threshold and whether the term of the plan is limited in duration (i.e., whether it contains a reasonable sunset provision) or is subject to periodic board review and/or shareholder ratification. However, we will recommend that shareholders vote against a proposal to adopt or amend a pill to include NOL protective provisions if the company has adopted a more narrowly tailored means of preventing a change in control to preserve its NOLs. For example, a company may limit share transfers in its charter to prevent a change of ownership from occurring.
Furthermore, we believe that shareholders should be offered the opportunity to vote on any adoption or renewal of a NOL pill regardless of any potential tax benefit that it offers a company. As such, we will consider recommending voting against those members of the board who served at the time when an NOL pill was adopted without shareholder approval within the prior twelve months and where the NOL pill is not subject to shareholder ratification.
Fair Price Provisions
Fair price
provisions, which are rare, require that certain minimum price and procedural
requirements be observed by any party that acquires more than a specified
percentage of a corporations common stock. The provision is intended to
protect minority shareholder value when an acquirer seeks to accomplish a
merger or other transaction which would eliminate or change the interests of
the minority stockholders. The provision is generally applied against the
acquirer unless the takeover is approved by a majority of continuing
directors and holders of a majority, in some cases a supermajority as high as
80%, of the combined voting power of all stock entitled to vote to alter,
amend, or repeal the above provisions.
The effect of a fair price provision is to require approval of any merger or business combination with an interested stockholder by 51% of the voting stock of the company, excluding the shares held by the interested stockholder. An interested stockholder is generally considered to be a holder of 10% or more of the companys outstanding stock, but the trigger can vary.
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Generally, provisions are put in place for the ostensible purpose of preventing a back-end merger where the interested stockholder would be able to pay a lower price for the remaining shares of the company than he or she paid to gain control. The effect of a fair price provision on shareholders, however, is to limit their ability to gain a premium for their shares through a partial tender offer or open market acquisition which typically raise the share price, often significantly. A fair price provision discourages such transactions because of the potential costs of seeking shareholder approval and because of the restrictions on purchase price for completing a merger or other transaction at a later time.
Glass Lewis believes that fair price provisions, while sometimes protecting shareholders from abuse in a takeover situation, more often act as an impediment to takeovers, potentially limiting gains to shareholders from a variety of transactions that could significantly increase share price. In some cases, even the independent directors of the board cannot make exceptions when such exceptions may be in the best interests of shareholders. Given the existence of state law protections for minority shareholders such as Section 203 of the Delaware Corporations Code, we believe it is in the best interests of shareholders to remove fair price provisions.
Reincorporation
In general, Glass Lewis believes that the board is in the best position to determine the appropriate jurisdiction of incorporation for the company. When examining a management proposal to reincorporate to a different state or country, we review the relevant financial benefits, generally related to improved corporate tax treatment, as well as changes in corporate governance provisions, especially those relating to shareholder rights, resulting from the change in domicile. Where the financial benefits are de minimis and there is a decrease in shareholder rights, we will recommend voting against the transaction.
However, costly, shareholder-initiated reincorporations are typically not the best route to achieve the furtherance of shareholder rights. We believe shareholders are generally better served by proposing specific shareholder resolutions addressing pertinent issues which may be implemented at a lower cost, and perhaps even with board approval. However, when shareholders propose a shift into a jurisdiction with enhanced shareholder rights, Glass Lewis examines the significant ways would the Company benefit from shifting jurisdictions including the following:
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Is the board sufficiently independent? |
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Does the Company have anti-takeover protections such as a poison pill or classified board in place? |
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Has the board been previously unresponsive to shareholders (such as failing to implement a shareholder proposal that received majority shareholder support)? |
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Do shareholders have the right to call special meetings of shareholders? |
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Are there other material governance issues at the Company? |
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Has the Companys performance matched or exceeded its peers in the past one and three years? |
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How has the Company ranked in Glass Lewis pay-for-performance analysis during the last three years? |
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Does the company have an independent chairman? |
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We note, however, that we will only support shareholder proposals to change a companys place of incorporation in exceptional circumstances.
EXCLUSIVE FORUM PROVISIONS
Glass Lewis believes that charter or bylaw provisions limiting a shareholders choice of legal venue are not in the best interests of shareholders. Such clauses may effectively discourage the use of shareholder derivative claims by increasing their associated costs and making them more difficult to pursue. As such, shareholders should be wary about approving any limitation on their legal recourse including limiting themselves to a single jurisdiction (e.g. Delaware) without compelling evidence that it will benefit shareholders.
For this reason, we recommend that shareholders vote against
any bylaw or charter amendment seeking to adopt an exclusive forum provision.
Moreover, in the event a board seeks shareholder approval of a forum selection
clause pursuant to a bundled bylaw amendment rather than as a separate
proposal, we will weigh the importance of the other bundled provisions when
determining the vote recommendation on the proposal. We will nonetheless
recommend voting against the chairman of the governance committee for bundling
disparate proposals into a single proposal (refer to our discussion of
nominating and governance committee performance in Section I of the
guidelines).
Authorized Shares
Glass Lewis believes that adequate capital stock is important to a companys operation. When analyzing a request for additional shares, we typically review four common reasons why a company might need additional capital stock:
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Stock Split We typically consider three metrics when evaluating whether we think a stock split is likely or necessary: The historical stock pre-split price, if any; the current price relative to the companys most common trading price over the |
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past 52 weeks; and some absolute limits on stock price that, in our view, either always make a stock split appropriate if desired by management or would almost never be a reasonable price at which to split a stock. |
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Shareholder Defenses Additional authorized shares could be used to bolster takeover defenses such as a poison pill. Proxy filings often discuss the usefulness of additional shares in defending against or discouraging a hostile takeover as a reason for a requested increase. Glass Lewis is typically against such defenses and will oppose actions intended to bolster such defenses. |
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Financing for Acquisitions We look at whether the company has a history of using stock for acquisitions and attempt to determine what levels of stock have typically been required to accomplish such transactions. Likewise, we look to see whether this is discussed as a reason for additional shares in the proxy. |
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Financing for Operations We review the companys cash position and its ability to secure financing through borrowing or other means. We look at the companys history of capitalization and whether the company has had to use stock in the recent past as a means of raising capital. |
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Issuing additional shares can dilute existing holders in limited circumstances. Further, the availability of additional shares, where the board has discretion to implement a poison pill, can often serve as a deterrent to interested suitors. Accordingly, where we find that the company has not detailed a plan for use of the proposed shares, or where the number of shares far exceeds those needed to accomplish a detailed plan, we typically recommend against the authorization of additional shares.
While we think that having adequate shares to allow management to make quick decisions and effectively operate the business is critical, we prefer that, for significant transactions, management come to shareholders to justify their use of additional shares rather than providing a blank check in the form of a large pool of unallocated shares available for any purpose.
Advance Notice Requirements
We typically recommend that shareholders vote against proposals that would require advance notice of shareholder proposals or of director nominees.
These proposals typically attempt to require a certain amount of notice before shareholders are allowed to place proposals on the ballot. Notice requirements typically range between three to six months prior to the annual meeting. Advance notice requirements typically make it impossible for a shareholder who misses the deadline to present a shareholder proposal or a director nominee that might be in the best interests of the company and its shareholders.
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We believe shareholders should be able to review and vote on all proposals and director nominees. Shareholders can always vote against proposals that appear with little prior notice. Shareholders, as owners of a business, are capable of identifying issues on which they have sufficient information and ignoring issues on which they have insufficient information. Setting arbitrary notice restrictions limits the opportunity for shareholders to raise issues that may come up after the window closes.
Voting Structure
Cumulative Voting
Cumulative voting
increases the ability of minority shareholders to elect a director by allowing
shareholders to cast as many shares of the stock they own multiplied by the
number of directors to be elected. As companies generally have multiple
nominees up for election,
cumulative voting allows shareholders to cast all of their votes for a single
nominee, or a smaller number of nominees than up for election, thereby raising
the likelihood of electing one or more of their preferred nominees to the
board. It can be important when a board is controlled by insiders or affiliates
and where the companys ownership structure includes one or more shareholders
who control a majority-voting block of company stock.
Glass Lewis believes that cumulative voting generally acts as a safeguard for shareholders by ensuring that those who hold a significant minority of shares can elect a candidate of their choosing to the board. This allows the creation of boards that are responsive to the interests of all shareholders rather than just a small group of large holders.
However, academic
literature indicates that where a highly independent board is in place and the
company has a shareholder-friendly governance structure, shareholders may be
better off without cumulative voting. The analysis underlying this literature
indicates that shareholder returns at firms with good governance structures are
lower and that boards can become factionalized and prone to evaluating the
needs of special interests over the general interests of shareholders
collectively.
We review cumulative voting proposals on a case-by-case
basis, factoring in the independence of the board and the status of the
companys governance structure. But we typically find these proposals on
ballots at companies where independence is lacking and where the appropriate
checks and balances favoring shareholders are not in place. In those instances
we typically recommend in favor of cumulative voting.
Where a company has adopted a true majority vote standard (i.e., where a director must receive a majority of votes cast to be elected, as opposed to a modified policy
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indicated by a resignation policy only), Glass Lewis will recommend voting against cumulative voting proposals due to the incompatibility of the two election methods. For companies that have not adopted a true majority voting standard but have adopted some form of majority voting, Glass Lewis will also generally recommend voting against cumulative voting proposals if the company has not adopted antitakeover protections and has been responsive to shareholders.
Where a company has not adopted a majority voting standard and is facing both a shareholder proposal to adopt majority voting and a shareholder proposal to adopt cumulative voting, Glass Lewis will support only the majority voting proposal. When a company has both majority voting and cumulative voting in place, there is a higher likelihood of one or more directors not being elected as a result of not receiving a majority vote. This is because shareholders exercising the right to cumulate their votes could unintentionally cause the failed election of one or more directors for whom shareholders do not cumulate votes.
Supermajority Vote Requirements
Glass Lewis believes that supermajority vote requirements impede shareholder action on ballot items critical to shareholder interests. An example is in the takeover context, where supermajority vote requirements can strongly limit the voice of shareholders in making decisions on such crucial matters as selling the business. This in turn degrades share value and can limit the possibility of buyout premiums to shareholders. Moreover, we believe that a supermajority vote requirement can enable a small group of shareholders to overrule the will of the majority shareholders. We believe that a simple majority is appropriate to approve all matters presented to shareholders.
Transaction of Other Business
We typically
recommend that shareholders not give their proxy to management to vote on any
other business items that may properly come before an annual or special
meeting. In our opinion, granting unfettered discretion is unwise.
Anti-Greenmail Proposals
Glass Lewis will support proposals to adopt a provision preventing the payment of greenmail, which would serve to prevent companies from buying back company stock at significant premiums from a certain shareholder. Since a large or majority shareholder could attempt to compel a board into purchasing its shares at a large premium, the anti-greenmail provision would generally require that a majority of shareholders other than the majority shareholder approve the buyback.
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Mutual Funds: Investment Policies and Advisory Agreements
Glass Lewis believes that decisions about a funds structure and/or a funds relationship with its investment advisor or sub-advisors are generally best left to management and the members of the board, absent a showing of egregious or illegal conduct that might threaten shareholder value. As such, we focus our analyses of such proposals on the following main areas:
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The terms of any amended advisory or sub-advisory agreement; |
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Any changes in the fee structure paid to the investment advisor; and |
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Any material changes to the funds investment objective or strategy. |
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We generally support amendments to a funds investment advisory agreement absent a material change that is not in the best interests of shareholders. A significant increase in the fees paid to an investment advisor would be reason for us to consider recommending voting against a proposed amendment to an investment advisory agreement. However, in certain cases, we are more inclined to support an increase in advisory fees if such increases result from being performance-based rather than asset-based. Furthermore, we generally support sub-advisory agreements between a funds advisor and sub-advisor, primarily because the fees received by the sub-advisor are paid by the advisor, and not by the fund.
In matters pertaining to a funds investment objective or strategy, we believe shareholders are best served when a funds objective or strategy closely resembles the investment discipline shareholders understood and selected when they initially bought into the fund. As such, we generally recommend voting against amendments to a funds investment objective or strategy when the proposed changes would leave shareholders with stakes in a fund that is noticeably different than when originally contemplated, and which could therefore potentially negatively impact some investors diversification strategies.
V. C
OMPENSATION,
E
NVIRONMENTAL,
S
OCIAL AND
G
OVERNANCE
S
HAREHOLDER
I
NITIATIVES
Glass Lewis typically prefers to leave decisions regarding
day-to-day management and policy decisions, including those related to social,
environmental or political issues, to management and the board, except when
there is a clear link between the proposal and value enhancement or risk
mitigation. We feel strongly that shareholders should not attempt to micromanage
the company, its businesses or its executives through the
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shareholder
initiative process. Rather, we believe shareholders should use their influence
to push for governance structures that protect shareholders and promote
director accountability. Shareholders should then put in place a board they can
trust to make informed decisions that are in the best interests of the business
and its owners, and then hold directors accountable for management and policy
decisions through board elections. However, we recognize that support of
appropriately crafted shareholder initiatives may at times serve to promote or
protect shareholder value.
To this end, Glass Lewis evaluates shareholder proposals on a case-by-case basis. We generally recommend supporting shareholder proposals calling for the elimination of, as well as to require shareholder approval of, antitakeover devices such as poison pills and classified boards. We generally recommend supporting proposals likely to increase and/or protect shareholder value and also those that promote the furtherance of shareholder rights. In addition, we also generally recommend supporting proposals that promote director accountability and those that seek to improve compensation practices, especially those promoting a closer link between compensation and performance.
The following is a discussion of Glass Lewis approach to
certain common shareholder resolutions. We note that the following is not an
exhaustive list of all shareholder proposals.
Compensation
Glass Lewis carefully
reviews executive compensation since we believe that this is an important area
in which the boards priorities and effectiveness are revealed. Executives
should be compensated with appropriate base salaries and incentivized with
additional awards in cash and equity only when their performance and that of
the company warrants such rewards. Compensation, especially when also in line
with the compensation paid by the companys peers, should lead to positive
results for shareholders and ensure the use of appropriate incentives that
drives those results over time.
However, as a general rule, Glass Lewis does not believe
shareholders should be involved in the approval and negotiation of compensation
packages. Such matters should be left to the boards compensation committee,
which can be held accountable for its decisions through the election of
directors. Therefore, Glass Lewis closely scrutinizes shareholder proposals
relating to compensation to determine if the requested action or disclosure has
already accomplished or mandated and whether it allows sufficient, appropriate
discretion to the board to design and implement reasonable compensation
programs.
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Disclosure of Individual Compensation
Glass Lewis believes that disclosure of information regarding compensation is critical to allowing shareholders to evaluate the extent to which a companys pay is based on performance. However, we recognize that the SEC currently mandates significant executive compensation disclosure. In some cases, providing information beyond that which is required by the SEC, such as the details of individual employment agreements of employees below the senior level, could create internal personnel tension or put the company at a competitive disadvantage, prompting employee poaching by competitors. Further, it is difficult to see how this information would be beneficial to shareholders. Given these concerns, Glass Lewis typically does not believe that shareholders would benefit from additional disclosure of individual compensation packages beyond the significant level that is already required; we therefore typically recommend voting against shareholder proposals seeking such detailed disclosure. We will, however, review each proposal on a case by basis, taking into account the companys history of aligning executive compensation and the creation of shareholder value.
Linking Pay with Performance
Glass Lewis views performance-based compensation as an effective means of motivating executives to act in the best interests of shareholders. In our view, an executives compensation should be specific to the company and its performance, as well as tied to the executives achievements within the company.
However, when firms have inadequately linked executive compensation and company performance we will consider recommending supporting reasonable proposals seeking that a percentage of equity awards be tied to performance criteria. We will also consider supporting appropriately crafted proposals requesting that the compensation committee include multiple performance metrics when setting executive compensation, provided that the terms of the shareholder proposal are not overly prescriptive. Though boards often argue that these types of restrictions unduly hinder their ability to attract talent we believe boards can develop an effective, consistent and reliable approach to remuneration utilizing a wide range (and an appropriate mix) of fixed and performance-based compensation.
Retirement Benefits & Severance
As a general rule, Glass Lewis believes that shareholders should not be involved in the approval of individual severance plans. Such matters should be left to the boards compensation committee, which can be held accountable for its decisions through the election of its director members.
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However, when
proposals are crafted to only require approval if the benefit exceeds 2.99
times the amount of the executives base salary plus bonus, Glass Lewis
typically supports such requests. Above this threshold, based on the
executives average annual compensation for the most recent five years, the
company can no longer deduct severance payments as an expense, and thus
shareholders are deprived of a valuable benefit without an offsetting incentive
to the executive. We believe that shareholders should be consulted before
relinquishing such a right, and we believe implementing such policies would
still leave companies with sufficient freedom to enter into appropriate
severance arrangements.
Following the passage of the Dodd-Frank Wall Street Reform
and Consumer Protection Act (Dodd-Frank), the SEC proposed rules that would
require that public companies hold advisory
shareholder votes on compensation arrangements and understandings in connection
with merger transactions, also known as golden parachute transactions.
Effective April 4, 2011, the SEC requires that companies seeking shareholder
approval of a merger or acquisition transaction must also provide disclosure of
certain golden parachute compensation arrangements and, in certain
circumstances, conduct a separate shareholder advisory vote to approve golden
parachute compensation arrangements.
Bonus Recoupments (Clawbacks)
We believe it is
prudent for boards to adopt detailed and stringent policies whereby, in the
event of a restatement of financial results, the board will review all
performance related bonuses and awards made to senior executives during the
period covered by a restatement and will, to the extent feasible, recoup such
bonuses to the extent that performance goals were not achieved. While the Dodd-Frank
Act mandates that all companies adopt clawback policies that will require
companies to develop a policy to recover compensation paid to current and
former executives erroneously paid during the three year prior to a
restatement, the SEC has yet to finalize the relevant rules. As a result, we
expect to see shareholder proposals regarding clawbacks in the upcoming proxy
season.
When examining proposals requesting that companies adopt
recoupment policies, Glass Lewis will first review any relevant policies
currently in place. When the board has already committed to a proper course,
and the current policy covers the major tenets of the proposal, we see no need
for further action. Further, in some instances, shareholder proposals may call
for board action that contravenes legal obligations under existing employment
agreements. In other cases proposals may excessively limit the boards ability
to exercise judgment and reasonable discretion, which may or may not be
warranted, depending on the specific situation of the company in question. We
believe
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it is reasonable that a mandatory recoupment policy should only affect
senior executives and those directly responsible for the companys accounting
errors.
We note that where a company is entering into a new executive employment contract that does not include a clawback provision and the company has had a material restatement in the recent past, Glass Lewis will recommend voting against the responsible members of the compensation committee. The compensation committee has an obligation to shareholders to include reasonable controls in executive contracts to prevent payments in the case of inappropriate behavior.
Golden Coffins
Glass Lewis does not believe that the payment of substantial, unearned posthumous compensation provides an effective incentive to executives or aligns the interests of executives with those of shareholders. Glass Lewis firmly believes that compensation paid to executives should be clearly linked to the creation of shareholder value. As such, Glass Lewis favors compensation plans centered on the payment of awards contingent upon the satisfaction of sufficiently stretching and appropriate performance metrics. The payment of posthumous unearned and unvested awards should be subject to shareholder approval, if not removed from compensation policies entirely. Shareholders should be skeptical regarding any positive benefit they derive from costly payments made to executives who are no longer in any position to affect company performance.
To that end, we will consider supporting a reasonably crafted shareholder proposal seeking to prohibit, or require shareholder approval of, the making or promising of any survivor benefit payments to senior executives estates or beneficiaries. We will not recommend supporting proposals that would, upon passage, violate existing contractual obligations or the terms of compensation plans currently in effect.
Retention of Shares until Retirement
We strongly support the linking of executive pay to the
creation of long-term sustainable shareholder value and therefore believe
shareholders should encourage executives to retain some level of shares
acquired through equity compensation programs to provide continued alignment
with shareholders. However, generally we do not believe that requiring senior
executives to retain all or an unduly high percentage of shares acquired
through equity compensation programs following the termination of their
employment is the most effective or desirable way to accomplish this goal.
Rather, we believe that restricting executives ability to exercise all or a
supermajority of otherwise vested equity awards until they leave the company
may hinder the ability of the compensation committee to both attract and retain
executive talent. In our view, otherwise qualified and willing candidates could
be dissuaded from accepting
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employment if he/she believes that his/her
compensation could be dramatically affected by financial results unrelated to
their own personal performance or tenure at the company. Alternatively, an
overly strict policy could encourage existing employees to quit in order to
realize the value locked in their incentive awards. As such, we will not
typically recommend supporting proposals requiring the retention of significant
amounts of equity compensation following termination of employment at target
firms.
Tax Gross-Ups
Tax gross-ups can act as an anti-takeover measure, as larger payouts to executives result in larger gross-ups, which could artificially inflate the ultimate purchase price under a takeover or merger scenario. Additionally, gross-ups can result in opaque compensation packages where shareholders are unlikely to be aware of the total compensation an executive may receive. Further, we believe that in instances where companies have severance agreements in place for executives, payments made pursuant to such arrangements are often large enough to soften the blow of any additional excise taxes. Finally, such payments are not performance based, providing no incentive to recipients and, if large, can be a significant cost to companies.
Given the above, we will typically recommend supporting proposals requesting that a compensation committee adopt a policy that it will not make or promise to make to its senior executives any tax gross-up payments, except those applicable to management employees of the company generally, such as a relocation or expatriate tax equalization policy.
Linking Executive Pay to Environmental and Social Criteria
We recognize that a companys involvement in environmentally sensitive and labor-intensive industries influences the degree to which a firms overall strategy must weigh environmental and social concerns. However, we also understand that the value generated by incentivizing executives to prioritize environmental and social issues is difficult to quantify and therefore measure, and necessarily varies among industries and companies.
When reviewing such proposals seeking to tie executive
compensation to environmental or social practices, we will review the target
firms compliance with (or contravention of) applicable laws and regulations,
and examine any history of environmental and social related concerns including
those resulting in material investigations, lawsuits, fines and settlements. We
will also review the firms current compensation policies and practice.
However, with respect to executive compensation, Glass Lewis generally believes
that such policies should be left to the compensation committee.
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Governance |
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Declassification of the Board |
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Glass Lewis believes that classified boards (or staggered boards) do not serve the best interests of shareholders. Empirical studies have shown that: (i) companies with classified boards may show a reduction in firm value; (ii) in the context of hostile takeovers, classified boards operate as a takeover defense, which entrenches management, discourages potential acquirers and delivers less return to shareholders; and (iii) companies with classified boards are less likely to receive takeover bids than those with single class boards. Annual election of directors provides increased accountability and requires directors to focus on the interests of shareholders. When companies have classified boards shareholders are deprived of the right to voice annual opinions on the quality of oversight exercised by their representatives. |
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Given the above, Glass Lewis believes that classified boards are not in the best interests of shareholders and will continue to recommend shareholders support proposals seeking their repeal. |
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Right of Shareholders to Call a Special Meeting |
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Glass Lewis strongly believes that shareholders should have the ability to call meetings of shareholders between annual meetings to consider matters that require prompt attention. However, in order to prevent abuse and waste of corporate resources by a small minority of shareholders, we believe that shareholders representing at least a sizable minority of shares must support such a meeting prior to its calling. Should the threshold be set too low, companies might frequently be subjected to meetings whose effect could be the disruption of normal business operations in order to focus on the interests of only a small minority of owners. Typically we believe this threshold should not fall below 10-15% of shares, depending on company size. |
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In our case-by-case evaluations, we consider the following: |
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Company size |
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Shareholder base in both percentage of ownership and type of shareholder (e.g., hedge fund, activist investor, mutual fund, pension fund, etc.) |
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Responsiveness of board and management to shareholders evidenced by progressive shareholder rights policies (e.g., majority voting, declassifying boards, etc.) and reaction to shareholder proposals |
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Company performance and steps taken to improve bad performance (e.g., new executives/directors, spin-offs, etc.) |
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Existence of anti-takeover protections or other entrenchment devices |
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Opportunities for shareholder action (e.g., ability to act by written consent) |
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Existing ability for shareholders to call a special meeting |
Right of Shareholders to Act by Written Consent
Glass Lewis strongly supports shareholders right to act by written consent. The right to act by written consent enables shareholders to take action on important issues that arise between annual meetings. However, we believe such rights should be limited to at least the minimum number of votes that would be necessary to authorize the action at a meeting at which all shareholders entitled to vote were present and voting.
In addition to evaluating the threshold for which written consent may be used (e.g. majority of votes cast or outstanding), we will consider the following when evaluating such shareholder proposals:
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Company size |
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Shareholder base in both percentage of ownership and type of shareholder (e.g., hedge fund, activist investor, mutual fund, pension fund, etc.) |
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Responsiveness of board and management to shareholders evidenced by progressive shareholder rights policies (e.g., majority voting, declassifying boards, etc.) and reaction to shareholder proposals |
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Company performance and steps taken to improve bad performance (e.g., new executives/directors, spin offs, etc.) |
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Existence of anti-takeover protections or other entrenchment devices |
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Opportunities for shareholder action (e.g., ability and threshold to call a special meeting) |
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Existing ability for shareholders to act by written consent |
Board Composition
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Glass Lewis believes the selection and screening process for identifying suitably qualified candidates for a companys board of directors is one which requires the judgment of many factors, including the balance of skills and talents, the breadth of experience and diversity of candidates and existing board members. Diversity of skills, abilities and points of view can foster the development of a more creative, effective and dynamic board. In general, however, we do not believe that it is in the best interests of shareholders for firms to be beholden to arbitrary rules regarding its board, or committee, composition. We believe such matters should be left to a boards |
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of not receiving a majority vote. This is because shareholders exercising the right to cumulate their votes could unintentionally cause the failed election of one or more directors for whom shareholders do not cumulate votes. |
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Given the above, where a company (i) has adopted a true majority vote standard; (ii) has simultaneously proposed a management-initiated true majority vote standard; or (iii) is simultaneously the target of a true majority vote standard shareholder proposal, Glass Lewis will recommend voting against cumulative voting proposals due to the potential incompatibility of the two election methods. |
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For companies that have not adopted a true majority voting standard but have adopted some form of majority voting, Glass Lewis will also generally recommend voting against cumulative voting proposals if the company has not adopted antitakeover protections and has been responsive to shareholders. |
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Supermajority Vote Requirements |
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We believe that a simple majority is appropriate to approve all matters presented to shareholders, and will recommend that shareholders vote accordingly. Glass Lewis believes that supermajority vote requirements impede shareholder action on ballot items critical to shareholder interests. In a takeover context supermajority vote requirements can strongly limit the voice of shareholders in making decisions on crucial matters such as selling the business. These limitations in turn may degrade share value and can reduce the possibility of buyout premiums for shareholders. Moreover, we believe that a supermajority vote requirement can enable a small group of shareholders to overrule the will of the majority of shareholders. |
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Independent Chairman |
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Glass Lewis views an independent chairman as better able to oversee the executives and set a pro-shareholder agenda in the absence of the conflicts that a CEO, executive insider, or close company affiliate may face. Separating the roles of CEO and chairman may lead to a more proactive and effective board of directors. The presence of an independent chairman fosters the creation of a thoughtful and dynamic board, not dominated by the views of senior management. We believe that the separation of these two key roles eliminates the conflict of interest that inevitably occurs when a CEO, or other executive, is responsible for self-oversight. As such, we will typically support reasonably crafted shareholder proposals seeking the installation of an independent chairman at a target company. However, we will not support proposals that include overly prescriptive definitions of independent. |
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Proxy Access |
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Shareholders have consistently sought mechanisms through which they could secure a meaningful voice in director elections in recent years. While many of these efforts have centered on regulatory changes at the SEC, the United States Congress and the Obama Administration have placed Proxy Access in the spotlight of the U.S. Governments most recent corporate governance-related financial reforms. Regulations allowing or mandating the reimbursement of solicitation expenses for successful board candidates exist and further regulation is pending. A 2009 amendment to the Delaware Corporate Code allows companies to adopt bylaw provisions providing shareholders proxy access. |
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Further, in July 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act , (the Dodd-Frank Act). This Act provides the SEC with the authority to adopt rules permitting shareholders to use issuer proxy solicitation materials to nominate director candidates. The SEC received over 500 comments regarding proposed proxy access, some of which questioned the agencys authority to adopt such a rule. Nonetheless, in August 2010, the SEC adopted final Rule 14a-11 , which under certain circumstances, gives shareholders (and shareholder groups) who have collectively held at least 3% of the voting power of a companys securities continuously for at least three years, the right to nominate up to 25% of a boards directors and have such nominees included on a companys ballot and described in its proxy statement. While final Rule 14a-11 was originally scheduled to take effect on November 15, 2010, on October 4, 2010, the SEC announced that it would delay the rules implementation following the filing of a lawsuit by the U.S. Chamber Of Commerce and the Business Roundtable. In July 2011, the United States Court of Appeals for the District of Columbia ruled against the SEC based on what it perceived to be the SECs failure to fully consider the costs and the benefits of the proxy access rules. On September 6, 2011, the SEC announced that it would not be seeking rehearing of the decision. However, while rule 14a-11 was vacated, the U.S. Court of Appeals issued a stay on the private ordering amendments to Rule 14a-8, meaning that companies are no longer able to exclude shareholder proposals requesting that they adopt procedures to allow for shareholder nominees to be included in proxy statements (Statement by SEC Chairman Mary L. Schapiro on Proxy Access Ligation. SEC Press Release . September 6, 2011). |
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Glass Lewis will consider supporting well-crafted and reasonable proposals requesting proxy access, as we believe that in some cases, adoption of this provision allows for improved shareholder rights and ensures that shareholders who maintain a long-term interest in the target company have an ability to nominate candidates for the board. Glass Lewis reviews proposals requesting proxy access on a case-by-case basis, and will consider the following in our analysis: |
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Company size; |
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The shareholder proponent and their reasoning for putting forth the proposal at the target company; |
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The percentage ownership requested and holding period requirement; |
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Shareholder base in both percentage of ownership and type of shareholder (e.g., hedge fund, activist investor, mutual fund, pension fund, etc.); |
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Responsiveness of board and management to shareholders evidenced by progressive shareholder rights policies (e.g., majority voting, declassifying boards, etc.) and reaction to shareholder proposals; |
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Company performance and steps taken to improve bad performance (e.g., new executives/directors, spin-offs, etc.); |
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Existence of anti-takeover protections or other entrenchment devices; and |
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Opportunities for shareholder action (e.g., ability to act by written consent or right to call a special meeting). |
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Environment
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There are significant financial, legal and reputational risks to companies resulting from poor environmental practices or negligent oversight thereof. We believe part of the boards role is to ensure that management conducts a complete risk analysis of company operations, including those that have environmental implications. Directors should monitor managements performance in mitigating environmental risks attendant with operations in order to eliminate or minimize the risks to the company and shareholders. |
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When management and the board have displayed disregard for environmental risks, have engaged in egregious or illegal conduct, or have failed to adequately respond to current or imminent environmental risks that threaten shareholder value, we believe shareholders should hold directors accountable. When a substantial environmental risk has been ignored or inadequately addressed, we may recommend voting against responsible members of the governance committee, or members of a committee specifically charged with sustainability oversight. |
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With respect to environmental risk, Glass Lewis believes companies should actively consider their exposure to: |
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Direct environmental risk: Companies should evaluate financial exposure to direct environmental risks associated with their operations. Examples of direct environmental risks are those associated with spills, contamination, hazardous leakages, explosions, or |
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reduced water or air quality, among others. Further, firms should consider their exposure to environmental risks emanating from systemic change over which they may have only limited control, such as insurance companies affected by increased storm severity and frequency resulting from climate change. |
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Risk due to legislation/regulation: Companies should evaluate their exposure to shifts or potential shifts in environmental regulation that affect current and planned operations. Regulation should be carefully monitored in all jurisdictions within which the company operates. We look closely at relevant and proposed legislation and evaluate whether the company has responded appropriately. |
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Legal and reputational risk: Failure to take action on important issues may carry the risk of damaging negative publicity and potentially costly litigation. While the effect of high-profile campaigns on shareholder value may not be directly measurable, in general we believe it is prudent for firms to evaluate social and environmental risk as a necessary part in assessing overall portfolio risk. |
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If there is a clear showing that a company has inadequately addressed these risks, Glass Lewis may consider supporting appropriately crafted shareholder proposals requesting increased disclosure, board attention or, in limited circumstances, specific actions. In general, however, we believe that boards and management are in the best position to address these important issues, and will only rarely recommend that shareholders supplant their judgment regarding operations. |
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Climate Change and Green House Gas Emission Disclosure |
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Glass Lewis will consider recommending a vote in favor of a reasonably crafted proposal to disclose a companys climate change and/or greenhouse gas emission strategies when (i) a company has suffered financial impact from reputational damage, lawsuits and/or government investigations, (ii) there is a strong link between climate change and its resultant regulation and shareholder value at the firm, and/or (iii) the company has inadequately disclosed how it has addressed climate change risks. Further, we will typically recommend supporting proposals seeking disclosure of greenhouse gas emissions at companies operating in carbon- or energy- intensive industries, such basic materials, integrated oil and gas, iron and steel, transportation, utilities, and construction. We are not inclined, however, to support proposals seeking emissions reductions, or proposals seeking the implementation of prescriptive policies relating to climate change. |
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Sustainability and other Environmentally-Related Reports |
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When evaluating requests that a firm produce an environmentally-related report, such as a sustainability report or a report on coal combustion waste or hydraulic fracturing, we will consider, among other things: |
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The financial risk to the company from the firms environmental practices and/or regulation; |
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The relevant companys current level of disclosure; |
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The level of sustainability information disclosed by the firms peers; |
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The industry in which the firm operates; |
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The level and type of sustainability concerns/controversies at the relevant firm, if any; |
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The time frame within which the relevant report is to be produced; and |
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The level of flexibility granted to the board in the implementation of the proposal. |
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In general, we believe that firms operating in extractive industries should produce reports regarding the risks presented by their environmental activities, and will consider recommending a vote for reasonably crafted proposals requesting that such a report be produced; however, as with all shareholder proposals, we will evaluate these report requests on a case by case basis. |
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Oil Sands |
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The procedure required to extract usable crude from oil sands emits significantly more greenhouse gases than do conventional extraction methods. In addition, development of the oil sands has a deleterious effect on the local environment, such as Canadas boreal forests which sequester significant levels of carbon. We believe firms should strongly consider and evaluate exposure to financial, legal and reputational risks associated with investment in oil sands. |
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We believe firms should adequately disclose their involvement in the oil sands, including a discussion of exposure to sensitive political and environmental areas. Firms should broadly outline the scope of oil sands operations, describe the commercial methods for producing oil, and discuss the management of greenhouse gas emissions. However, we believe that detailed disclosure of investment assumptions could unintentionally reveal sensitive information regarding operations and business strategy, which would not serve shareholders interest. We will review all proposals seeking increased disclosure of oil sands operations in the above context, but will typically not support proposals seeking cessation or curtailment of operations. |
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Sustainable Forestry
Sustainable forestry provides for the long-term sustainable management and use of trees and other non-timber forest products. Retaining the economic viability of forests is one of the tenets of sustainable forestry, along with encouraging more responsible corporate use of forests. Sustainable land use and the effective management of land are viewed by some shareholders as important in light of the impact of climate change. Forestry certification has emerged as a way that corporations can address prudent forest management. There are currently several primary certification schemes such as the Sustainable Forestry Initiative (SFI) and the Forest Stewardship Council (FSC).
There are nine main principles that comprise the SFI: (i) sustainable forestry; (ii) responsible practices; (iii) reforestation and productive capacity; (iv) forest health and productivity; (v) long-term forest and soil productivity; (vi) protection of water resources; (vii) protection of special sites and biodiversity; (viii) legal compliance; and (ix) continual improvement.
The FSC adheres to ten basic principles: (i) compliance with laws and FSC principles; (ii) tenure and use rights and responsibilities; (iii) indigenous peoples rights; (iv) community relations and workers rights; (v) benefits from the forest; (vi) environmental impact; (vii) management plan; (viii) monitoring and assessment; (ix) maintenance of high conservation value forests; and (x) plantations.
Shareholder proposals regarding sustainable forestry have typically requested that the firm comply with the above SFI or FSC principles as well as to assess the feasibility of phasing out the use of uncertified fiber and increasing the use of certified fiber. We will evaluate target firms current mix of certified and uncertified paper and the firms general approach to sustainable forestry practices, both absolutely and relative to its peers but will only support proposals of this nature when we believe that the proponent has clearly demonstrated that the implementation of this proposal is clearly linked to an increase in shareholder value.
Social Issues
Non-Discrimination Policies
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Companies with records of poor labor relations may face lawsuits, efficiency-draining turnover, poor employee performance, and/or distracting, costly investigations. Moreover, as an increasing number of companies adopt inclusive EEO policies, companies without comprehensive policies may face damaging recruitment, reputational and legal risks. We believe that a pattern of making financial settlements as a result of lawsuits based on discrimination could indicate investor exposure to ongoing |
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financial risk. Where there is clear evidence of employment practices resulting in negative economic exposure, Glass Lewis may support shareholder proposals addressing such risks. |
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MacBride Principles
To promote peace, justice and equality regarding employment in Northern Ireland, Dr. Sean MacBride, founder of Amnesty International and Nobel Peace laureate, proposed the following equal opportunity employment principles:
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Increasing the representation of individuals from underrepresented religious groups in the workforce including managerial, supervisory, administrative, clerical and technical jobs; |
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Adequate security for the protection of minority employees both at the workplace and while traveling to and from work; |
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The banning of provocative religious or political emblems from the workplace; |
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All job openings should be publicly advertised and special recruitment efforts should be made to attract applicants from underrepresented religious groups; |
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Layoff, recall, and termination procedures should not, in practice, favor particular religious groupings; |
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The abolition of job reservations, apprenticeship restrictions, and differential employment criteria, which discriminate on the basis of religion or ethnic origin; |
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The development of training programs that will prepare substantial numbers of current minority employees for skilled jobs, including the expansion of existing programs and the creation of new programs to train, upgrade, and improve the skills of minority employees; |
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The establishment of procedures to assess, identify and actively recruit minority employees with potential for further advancement; and |
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The appointment of senior management staff member to oversee the companys affirmative action efforts and setting up of timetables to carry out affirmative action principles. |
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Proposals requesting the implementation of the above principles are typically proposed at firms that operate, or maintain subsidiaries that operate, in Northern Ireland. In each case, we will examine the companys current equal employment opportunity policy and the extent to which the company has been subject to protests, fines, or litigation regarding discrimination in the workplace, if any. Further, we will examine any evidence of the firms specific record of labor concerns in Northern Ireland.
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Human Rights
Glass Lewis believes explicit policies set out by companies boards of directors on human rights provides shareholders with the means to evaluate whether the company has taken steps to mitigate risks from its human rights practices. As such, we believe that it is prudent for firms to actively evaluate risks to shareholder value stemming from global activities and human rights practices along entire supply chains. Findings and investigations of human rights abuses can inflict, at a minimum, reputational damage on targeted companies and have the potential to dramatically reduce shareholder value. This is particularly true for companies operating in emerging market countries in extractive industries and in politically unstable regions. As such, while we typically rely on the expertise of the board on these important policy issues, we recognize that, in some instances, shareholders could benefit from increased reporting or further codification of human rights policies.
Military and US Government Business Policies
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Glass Lewis believes that disclosure to shareholders of information on key company endeavors is important. However, we generally do not support resolutions that call for shareholder approval of policy statements for or against government programs, most of which are subject to thorough review by the federal government and elected officials at the national level. We also do not support proposals favoring disclosure of information where similar disclosure is already mandated by law, unless circumstances exist that warrant the additional disclosure. |
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Foreign Government Business Policies
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Where a corporation operates in a foreign country, Glass Lewis believes that the company and board should maintain sufficient controls to prevent illegal or egregious conduct with the potential to decrease shareholder value, examples of which include bribery, money laundering, severe environmental violations or proven human rights violations. We believe that shareholders should hold board members, and in particular members of the audit committee and CEO, accountable for these issues when they face reelection, as these concerns may subject the company to financial risk. In some instances, we will support appropriately crafted shareholder proposals specifically addressing concerns with the target firms actions outside its home jurisdiction. |
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Health Care Reform Principles
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Health care reform in the United States has long been a contentious political issue and Glass Lewis therefore believes firms must evaluate and mitigate the level of risk to which they may be exposed regarding potential changes in health care legislation. Over |
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the last several years, Glass Lewis has reviewed multiple shareholder proposals requesting that boards adopt principles for comprehensive health reform, such as the following based upon principles reported by the Institute of Medicine: |
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Health care coverage should be universal; |
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Health care coverage should be continuous; |
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Health care coverage should be affordable to individuals and families; |
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The health insurance strategy should be affordable and sustainable for society; and |
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Health insurance should enhance health and well-being by promoting access to high-quality care that is effective, efficient, safe, timely, patient-centered and equitable. |
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In general, Glass Lewis believes that individual corporate board rooms are not the appropriate forum in which to address evolving and contentious national policy issues. The adoption of a narrow set of principles could limit the boards ability to comply with new regulation or to appropriately and flexibly respond to health care issues as they arise. As such, barring a compelling reason to the contrary, we typically do not support the implementation of national health care reform principles at the company level. |
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Tobacco
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Glass Lewis recognizes the contentious nature of the production, procurement, marketing and selling of tobacco products. We also recognize that tobacco companies are particularly susceptible to reputational and regulatory risk due to the nature of its operations. As such, we will consider supporting uniquely tailored and appropriately crafted shareholder proposals requesting increased information or the implementation of suitably broad policies at target firms on a case-by-case basis. However, we typically do not support proposals requesting that firms shift away from, or significantly alter, the legal production or marketing of core products. |
Reporting Contributions and Political Spending
While corporate contributions to national political parties and committees controlled by federal officeholders are prohibited under federal law, corporations can legally donate to state and local candidates, organizations registered under 26 USC Sec. 527 of the Internal Revenue Code and state-level political committees. There is, however, no standardized manner in which companies must disclose this information. As such, shareholders often must search through numerous campaign finance reports and detailed tax documents to ascertain even limited information. Corporations also
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frequently use trade associations, which are not required to report funds they receive for or spend on political activity, as a means for corporate political action. |
Further, in 2010 the Citizens United v. Federal Election Commission decision by the Supreme Court affirmed that corporations are entitled to the same free speech laws as individuals and that it is legal for a corporation to donate to political causes without monetary limit. While the decision did not remove bans on direct contributions to candidates, companies are now able to contribute indirectly, and substantially, to candidates through political organizations. Therefore, it appears companies will enjoy greater latitude in their political actions by this recent decision.
When evaluating whether a requested report would benefit shareholders, Glass Lewis seeks answers to the following three key questions:
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Is the Companys disclosure comprehensive and readily accessible? |
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How does the Companys political expenditure policy and disclosure compare to its peers? |
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What is the Companys current level of oversight? |
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Glass Lewis will consider supporting a proposal seeking increased disclosure of corporate political expenditure and contributions if the firms current disclosure is insufficient, or if the firms disclosure is significantly lacking compared to its peers. Further, we will typically recommend voting for proposals requesting reports on lobbying or political contributions and expenditures when there is no explicit board oversight or there is evidence of inadequate board oversight. Given that political donations are strategic decisions intended to increase shareholder value and have the potential to negatively affect the company, we believe the board should either implement processes and procedures to ensure the proper use of the funds or closely evaluate the process and procedures used by management. We will also consider supporting such proposals when there is verification, or credible allegations, that the company is mismanaging corporate funds through political donations. If Glass Lewis discovers particularly egregious actions by the company, we will consider recommending voting against the governance committee members or other responsible directors. |
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Animal Welfare
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Glass Lewis believes that it is prudent for management to assess potential exposure to regulatory, legal and reputational risks associated with all business practices, including those related to animal welfare. A high-profile campaign launched against a company could result in shareholder action, a reduced customer base, protests and potentially |
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costly litigation. However, in general, we believe that the board and management are in the best position to determine policies relating to the care and use of animals. As such, we will typically vote against proposals seeking to eliminate or limit board discretion regarding animal welfare unless there is a clear and documented link between the boards policies and the degradation of shareholder value.
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Internet Censorship |
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Legal and ethical questions regarding the use and management of the Internet and the worldwide web have been present since access was first made available to the public almost twenty years ago. Prominent among these debates are the issues of privacy, censorship, freedom of expression and freedom of access. Glass Lewis believes that it is prudent for management to assess its potential exposure to risks relating to the internet management and censorship policies. As has been seen at other firms, perceived violation of user privacy or censorship of Internet access can lead to high-profile campaigns that could potentially result in decreased customer bases or potentially costly litigation. In general, however, we believe that management and boards are best equipped to deal with the evolving nature of this issue in various jurisdictions of operation. |
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Please note: Glass Lewis creates separate proxy voting policies designed specifically for each individual country. The following is a distillation of the various country-specific policies.
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I. ELECTION OF DIRECTORS
Board of Directors
Boards are put in place to represent shareholders and protect their interests. Glass Lewis seeks boards with a proven record of protecting shareholders and delivering value over the medium- and long-term. In our view, boards working to protect and enhance the best interests of shareholders typically include some independent directors (the percentage will vary by local market practice and regulations), boast a record of positive performance, have directors with diverse backgrounds, and appoint directors with a breadth and depth of experience.
Board Composition
When companies disclose sufficient relevant information, we look at each individual on the board and examine his or her relationships with the company, the companys executives and with other board members. The purpose of this inquiry is to determine whether pre-existing personal, familial or financial relationships are likely to impact the decisions of that board member. Where the company does not disclose the names and backgrounds of director nominees with sufficient time in advance of the shareholder meeting to evaluate their independence and performance, we will consider recommending abstaining on the directors election.
We vote in favor of governance structures that will drive positive performance and enhance shareholder value. The most crucial test of a boards commitment to the company and to its shareholders is the performance of the board and its members. The performance of directors in their capacity as board members and as executives of the company, when applicable, and in their roles at other companies where they serve is critical to this evaluation.
We believe a director is independent if he or she has no material financial, familial or other current relationships with the company, its executives or other board members except for service on the board and standard fees paid for that service. Relationships that have existed within the three-five years prior to the inquiry are usually considered to be current for purposes of this test.
In our view, a director is affiliated if he or she has a material financial, familial or other relationship with the company or its executives, but is not an employee of the company. This includes directors whose employers have a material financial relationship with the Company. This also includes a director who owns or controls 10-20% or more of the companys voting stock.
We define an inside director as one who simultaneously serves as a director and as an employee of the company. This category may include a chairman of the board who acts as an employee of the company or is paid as an employee of the company.
Although we typically vote for the election of directors, we will
recommend voting against directors for the following reasons:
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A director who attends less than 75% of the board and applicable committee meetings. |
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A director who is also the CEO of a company where a serious restatement has occurred after the CEO certified the pre-restatement financial statements. |
We also feel that the following conflicts of interest may hinder a directors performance and will therefore recommend voting against a:
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CFO who presently sits on the board. |
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Director who presently sits on an excessive number of boards. |
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Director, or a director whose immediate family member, provides material professional services to the company at any time during the past five years. |
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Director, or a director whose immediate family member, engages in airplane, real estate or other similar deals, including perquisite type grants from the company. |
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Director with an interlocking directorship. |
Slate Elections
In some countries, companies elect their board members as a slate, whereby shareholders are unable to vote on the election of each individual director, but rather are limited to voting for or against the board as a whole. If significant issues exist concerning one or more of the nominees or in markets where directors are generally elected individually, we will recommend voting against the entire slate of directors.
Board Committee Composition
We believe that independent directors should serve on a companys audit, compensation, nominating and governance committees. We will support boards with such a structure and encourage change where this is not the case.
Review of Risk Management Controls
We believe companies, particularly financial firms, should have a dedicated risk committee, or a committee of the board charged with risk oversight, as well as a chief risk officer who reports directly to that committee, not to the CEO or another executive. In cases where a company has disclosed a sizable loss or writedown, and where a reasonable analysis indicates that the companys board-level risk committee should be held accountable for poor oversight, we would recommend that shareholders vote against such committee members on that basis. In addition, in cases where a company maintains a significant level of financial risk exposure but fails to disclose any explicit form of board-level risk oversight (committee or otherwise), we will consider recommending to vote against the chairman of the board on that basis.
Classified Boards
Glass Lewis favors the repeal of staggered boards in favor of the
annual election of directors.
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We believe that staggered boards are less accountable to shareholders
than annually elected boards. Furthermore, we feel that the annual election of
directors encourages board members to focus on protecting the interests of
shareholders.
II. FINANCIAL REPORTING
Accounts and Reports
Many countries require companies to submit the annual financial statements, director reports and independent auditors reports to shareholders at a general meeting. Shareholder approval of such a proposal does not discharge the board or management. We will usually recommend voting in favor of these proposals except when there are concerns about the integrity of the statements/reports. However, should the audited financial statements, auditors report and/or annual report not be published at the writing of our report, we will recommend that shareholders abstain from voting on this proposal.
Income Allocation (Distribution of Dividend)
In many countries, companies must submit the allocation of income for shareholder approval. We will generally recommend voting for such a proposal. However, we will give particular scrutiny to cases where the companys dividend payout ratio is exceptionally low or excessively high relative to its peers and the company has not provided a satisfactory explanation.
Appointment of Auditors and Authority to Set Fees
We believe that role of the auditor is crucial in protecting shareholder value. Like directors, auditors should be free from conflicts of interest and should assiduously avoid situations that require them to make choices between their own interests and the interests of the shareholders.
We generally support managements recommendation regarding the selection of an auditor and support granting the board the authority to fix auditor fees except in cases where we believe the independence of an incumbent auditor or the integrity of the audit has been compromised.
However, we recommend voting against ratification of the auditor and/or authorizing the board to set auditor fees for the following reasons:
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When audit fees added to audit-related fees total less than one-half of total fees. |
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When there have been any recent restatements or late filings by the company where the auditor bears some responsibility for the restatement or late filing (e.g., a restatement due to a reporting error). |
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When the company has aggressive accounting policies. |
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When the company has poor disclosure or lack of transparency in financial statements. |
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When there are other relationships or issues of concern with the auditor that might suggest a conflict between the interest of the auditor and the interests of shareholders. |
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When the company is changing auditors as a result of a disagreement between the company and the auditor on a matter of accounting principles or practices, financial |
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statement disclosure or auditing scope or procedures. |
III. COMPENSATION
Compensation Report/Compensation Policy
We closely review companies remuneration practices and disclosure as outlined in company filings to evaluate management-submitted advisory compensation report and policy vote proposals. In evaluating these proposals, which can be binding or non-binding depending on the country, we examine how well the company has disclosed information pertinent to its compensation programs, the extent to which overall compensation is tied to performance, the performance metrics selected by the company and the levels of remuneration in comparison to company performance and that of its peers.
We will usually recommend voting against approval of the compensation report or policy when the following occur:
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Gross disconnect between pay and performance; |
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Performance goals and metrics are inappropriate or insufficiently challenging; |
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Lack of disclosure regarding performance metrics and goals as well as the extent to which the performance metrics, targets and goals are implemented to enhance company performance and encourage prudent risk-taking; |
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Excessive discretion afforded to or exercised by management or the compensation committee to deviate from defined performance metrics and goals in making awards; |
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Ex gratia or other non-contractual payments have been made and the reasons for making the payments have not been fully explained or the explanation is unconvincing; |
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Guaranteed bonuses are established; |
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There is no clawback policy; or |
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Egregious or excessive bonuses, equity awards or severance payments. |
Long Term Incentive Plans
Glass Lewis recognizes the value of equity-based incentive programs. When used appropriately, they can provide a vehicle for linking an employees pay to a companys performance, thereby aligning their interests with those of shareholders. Tying a portion of an employees compensation to the performance of the Company provides an incentive to maximize share value. In addition, equity-based compensation is an effective way to attract, retain and motivate key employees.
In order to allow for meaningful shareholder review, we believe that
incentive programs should generally include: (i) specific and appropriate
performance goals; (ii) a maximum award pool; and (iii) a maximum award amount
per employee. In addition, the payments made should be reasonable relative to
the performance of the business and total compensation to those covered by the
plan should be in line with compensation paid by the Companys peers.
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Performance-Based Equity Compensation |
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Glass Lewis believes in performance-based equity compensation plans for senior executives. We feel that executives should be compensated with equity when their performance and that of the company warrants such rewards. While we do not believe that equity-based compensation plans for all employees need to be based on overall company performance, we do support such limitations for grants to senior executives (although even some equity-based compensation of senior executives without performance criteria is acceptable, such as in the case of moderate incentive grants made in an initial offer of employment). |
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Boards often argue that such a proposal would hinder them in attracting talent. We believe that boards can develop a consistent, reliable approach, as boards of many companies have, that would still attract executives who believe in their ability to guide the company to achieve its targets. We generally recommend that shareholders vote in favor of performance-based option requirements. |
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There should be no retesting of performance conditions for all share- and option- based incentive schemes. We will generally recommend that shareholders vote against performance-based equity compensation plans that allow for re-testing. |
Director Compensation
Glass Lewis believes that non-employee directors should receive appropriate types and levels of compensation for the time and effort they spend serving on the board and its committees. Director fees should be reasonable in order to retain and attract qualified individuals. In particular, we support compensation plans that include non performance-based equity awards, which help to align the interests of outside directors with those of shareholders.
Glass Lewis compares the costs of these plans to the plans of peer companies with similar market capitalizations in the same country to help inform its judgment on this issue.
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Retirement Benefits for Directors |
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We will typically recommend voting against proposals to grant retirement benefits to non-executive directors. Such extended payments can impair the objectivity and independence of these board members. Directors should receive adequate compensation for their board service through initial and annual fees. |
Limits on Executive Compensation
As a general rule, Glass Lewis believes that shareholders should not be
involved in setting executive compensation. Such matters should be left to the
boards compensation committee. We view the election of directors, and
specifically those who sit on the compensation committee, as the appropriate
mechanism for shareholders to express their disapproval or support of board
A-84
policy on this issue. Further, we believe that companies whose
pay-for-performance is in line with their peers should be granted the
flexibility to compensate their executives in a manner that drives growth and
profit.
However, Glass Lewis favors performance-based compensation as an effective means of motivating executives to act in the best interests of shareholders. Performance-based compensation may be limited if a chief executives pay is capped at a low level rather than flexibly tied to the performance of the company.
IV. GOVERNANCE STRUCTURE
Amendments to the Articles of Association
We will evaluate proposed amendments to a companys articles of association on a case-by-case basis. We are opposed to the practice of bundling several amendments under a single proposal because it prevents shareholders from evaluating each amendment on its own merits. In such cases, we will analyze each change individually and will recommend voting for the proposal only when we believe that the amendments on balance are in the best interests of shareholders.
Anti-Takeover Measures
Poison Pills (Shareholder Rights Plans)
Glass Lewis believes that poison pill plans generally are not in the best interests of shareholders. Specifically, they can reduce management accountability by substantially limiting opportunities for corporate takeovers. Rights plans can thus prevent shareholders from receiving a buy-out premium for their stock.
We believe that boards should be given wide latitude in directing the activities of the company and charting the companys course. However, on an issue such as this where the link between the financial interests of shareholders and their right to consider and accept buyout offers is so substantial, we believe that shareholders should be allowed to vote on whether or not they support such a plans implementation.
In certain limited circumstances, we will support a limited poison pill to accomplish a particular objective, such as the closing of an important merger, or a pill that contains what we believe to be a reasonable qualifying offer clause.
Supermajority Vote Requirements
Glass Lewis favors a simple majority voting structure. Supermajority vote requirements act as impediments to shareholder action on ballot items that are critical to our interests. One key example is in the takeover context where supermajority vote requirements can strongly limit shareholders input in making decisions on such crucial matters as selling the business.
Increase in Authorized Shares
A-85
Glass Lewis believes that having adequate capital stock available for
issuance is important to the operation of a company. We will generally support
proposals when a company could reasonably use the requested shares for
financing, stock splits and stock dividends. While we think that having
adequate shares to allow management to make quick decisions and effectively
operate the business is critical, we prefer that, for significant transactions,
management come to shareholders to justify their use of additional shares
rather than providing a blank check in the form of large pools of unallocated
shares available for any purpose.
In general, we will support proposals to increase authorized shares up to 100% of the number of shares currently authorized unless, after the increase the company would be left with less than 30% of its authorized shares outstanding.
Issuance of Shares
Issuing additional shares can dilute existing holders in some circumstances. Further, the availability of additional shares, where the board has discretion to implement a poison pill, can often serve as a deterrent to interested suitors. Accordingly, where we find that the company has not disclosed a detailed plan for use of the proposed shares, or where the number of shares requested are excessive, we typically recommend against the issuance. In the case of a private placement, we will also consider whether the company is offering a discount to its share price.
In general, we will support proposals to issue shares (with pre-emption rights) when the requested increase is the lesser of (i) the unissued ordinary share capital; or (ii) a sum equal to one-third of the issued ordinary share capital. This authority should not exceed five years. In some countries, if the proposal contains a figure greater than one-third, the company should explain the nature of the additional amounts.
We will also generally support proposals to suspend pre-emption rights for a maximum of 5-20% of the issued ordinary share capital of the company, depending on the country in which the company is located. This authority should not exceed five years, or less for some countries.
Repurchase of Shares
We will recommend voting in favor of a proposal to repurchase shares when the plan includes the following provisions: (i) a maximum number of shares which may be purchased (typically not more than 15% of the issued share capital); and (ii) a maximum price which may be paid for each share (as a percentage of the market price).
V. ENVIRONMENTAL AND SOCIAL RISK
We believe companies should actively evaluate risks to long-term
shareholder value stemming from exposure to environmental and social risks and
should incorporate this information into their overall business risk
profile. In addition, we believe companies should consider their exposure
to changes in environmental or social regulation with respect to their
operations as well as related legal and reputational risks. Companies should
disclose to shareholders both the nature
A-86
and magnitude of such risks as well as steps they have taken or will
take to mitigate those risks.
When we identify situations where shareholder value is at risk, we may
recommend voting in favor of a reasonable and well-targeted shareholder
proposal if we believe supporting the proposal will promote disclosure of
and/or mitigate significant risk exposure. In limited cases where a company has
failed to adequately mitigate risks stemming from environmental or social
practices, we will recommend shareholders vote against: (i) ratification of
board and/or management acts; (ii) approving a companys accounts and reports
and/or; (iii) directors (in egregious cases).
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APPENDIX A-1
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Acorn Derivatives Management Corp. |
IA Policies and Procedures Manual |
11/8/2004 to Current |
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Proxy Voting
Policy
Acorn Derivatives Management Corp., as a matter of policy and practice, generally has no authority to vote proxies
on behalf of advisory clients. The firm may offer assistance as to proxy matters upon a clients request, but except as noted below, the client always retains the proxy voting responsibility. Acorn Derivatives Management Corp.s policy of generally having no proxy voting responsibility is disclosed to clients.
Background
Proxy voting is an important right of shareholders and reasonable care and diligence must be undertaken to ensure that such rights are properly and timely exercised.
Investment advisers registered with the SEC, and which exercise voting authority with respect to client securities, are required by Rule 206(4)-6 of the Advisers Act to (a) adopt and implement written policies and procedures that are reasonably designed to ensure that client securities are voted in the best interests of clients, which must include how an adviser addresses material conflicts that may arise between an advisers interests and those of its clients; (b) to disclose to clients how they may obtain information from the adviser with respect to the voting of proxies for their securities; (c) to describe to clients a summary of its proxy voting policies and procedures and, upon request, furnish a copy to its clients; and (d) maintain certain records relating to the advisers proxy voting activities when the adviser does have proxy voting authority.
Responsibility
Roberta G. Boyle has the responsibility for the implementation and monitoring of our proxy policy and to ensure that the firm does not accept or exercise any proxy voting authority on behalf of clients without an appropriate review and change of the firms policy with appropriate regulatory requirements being met and records maintained.
Procedure
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Acorn Derivatives Management Corp. discloses its proxy voting policy of not having proxy voting authority in the firms Disclosure Document or other client information, unless proxies cannot be sent directly to the client. |
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Acorn Derivatives Management Corp.s advisory agreements provide that the firm has no proxy voting responsibilities and that the advisory clients expressly retain such voting authority except where not possible. |
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Acorn Derivatives Management Corp.s new client information materials may also indicate that advisory clients retain proxy voting authority. |
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Roberta G. Boyle reviews the nature and extent of advisory services provided by the firm and monitors such services to periodically determine and confirm that client proxies are not being voted by the firm or anyone within the firm, except in certain circumstances where proxies must be sent to Acorn. In these circumstances, Acorn will contact the client to discuss how the proxy should be voted and vote accordingly. All records of the contact and voting will be maintained by Acorn Derivatives in accordance with SEC rules. |
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APPENDIX A-2
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Coe Capital Management, L.L.C. |
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Proxy Voting Policies |
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Coe Capital Management, L.L.C. (CCM) generally does not vote proxies for Client stock holdings. Generally CCM directs clients custodian(s) to forward voting and proxy material directly to the investor. CCM makes the appropriate disclosures regarding proxy voting in its ADV Part II ( brochure ) under item 17. |
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As CCM understands that proxy voting is an important right of shareholders, in the event an exception is made, CCM will agree and seek to vote proxies with the best economic interests of its client(s) in mind. CCM will implement procedures as to the handling, research, voting and reporting of proxy voting required in such instances. Additionally CCM will address any potential conflicts that might arise in voting proxies and will maintain appropriate records regarding proxy voting policies and voting records for client portfolios. |
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Prior to voting proxies, CCM will review Rule 206 (4)-6 under the Advisors Act to ensure compliance with the requirements for adequate review, control and reporting of proxy voting. CCM will also seek to obtain any information or records relevant for an adequate analysis of the particulars of each proxy, which may include a review of the voting trends of other shareholders voting on the same proxy. |
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CCM will establish a Proxy Committee that will be responsible for the monitoring and the reviewing of each proxy requiring CCM to vote on behalf of its client(s). The committee will generally consist of employees of CCM familiar with the investment style (portfolio manager) of the client, the specific company or investment (research) and voting procedures (operations) to allow CCM to adequately review each proxy. |
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CCM recognizes that the primary purpose and fiduciary responsibility when determining how to vote proxies is to maximize shareholder value, which is defined as share price and dividend appreciation. CCM will always seek to vote proxies in the best interests of its clients. As a policy, CCM will review and generally vote proxies on a case-by-case basis, as not all proxies and/or circumstances are the same (or use the same format). To determine how best to vote, CCM will distinguish proxies as either Routine on Non-Routine in nature. |
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Routine: Proxies deemed as routine relate to items such as, but not limited to: |
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Name changes |
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Directors in uncontested elections |
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Reincorporation that is not a takeover defense. |
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Director and Executive compensation not exceeding one year. |
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Indemnification of Directors |
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Non-routine: Proxies in this category relate to a broader spectrum of items such as, but not limited to: |
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Directors in contested elections |
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Approval of auditors |
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Limitation on number of other board seats |
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Confidential voting |
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Shareholders ability to remove directors |
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Shareholder rights to call special meetings |
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All other items of Corporate Governance |
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Director and Executive compensation in excess of one year |
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Golden Parachute clauses |
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Take-over defense |
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Capital Structure changes |
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Other shareholder Value Issues |
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Corporate Social and Environmental Policies |
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All other proxies not mentioned above |
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CCM will generally review Routine Proxies and will vote along with the recommendation of the board or request to vote along with the majority of proxy voters. Non-routine proxies will be reviewed and discussed by the committee to determine the best way to vote in the clients best interest. |
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CCM will then record any information specific to how a proxy was voted. |
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On occasion, a perceived conflict of interest may emerge between CCM and its client(s) regarding the outcome of certain proxy votes. In any such instance, CCM will vote in accordance with the Boards recommendation unless doing so will have a potential negative impact on shareholder value. In such case(s) CCM will review the proxy independently and treat on a case by case basis. |
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In some instances CCM may serve as an investment advisor to certain investment companies (under a separate sub-advisory agreement). These funds may invest in other investment companies that are not affiliated (Underlying Funds) and are required by the Investment Company Act of 1940, as amended (the 1940 Act) to handle proxies received from Underlying Funds in a certain manner. Notwithstanding the guidelines provided in these procedures, it is CCMs policy to vote all proxies received from the Underlying Funds in the same proportion that all shares of the Underlying Funds are voted, or in accordance with instructions received from fund shareholders, pursuant to Section 12(d)(1)(F) of the 1940 Act. After properly voted, the proxy materials are filed and maintained for future reference. |
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A-2-2
APPENDIX A-3
DIX HILLS
PROXY VOTING
Issue
Rule 206(4)-6 under the Advisers Act requires every investment adviser who exercises voting authority with respect to client securities to adopt and implement written policies and procedures, reasonably designed to ensure that the adviser votes proxies in the best interest of its Clients. The procedures must address material conflicts that may arise in connection with proxy voting. The Rule further requires the adviser to provide a concise summary of the advisers proxy voting process and offer to provide copies of the complete proxy voting policy and procedures to Clients upon request. Lastly, the Rule requires that the adviser disclose to Clients how they may obtain information on how the adviser voted their proxies.
The Companys obligation to vote proxies on behalf of Clients or the Funds is limited. Typically, Dix Hills will be required to vote proxies relating to routine matters for the money market funds that are held in accounts. Nevertheless, Dix Hills has adopted this comprehensive policy in the event that the Company is required to vote proxies of substantial concern.
Risks
In developing this policy and procedures, the Company considered the limited risks associated with its voting of client proxies. This analysis includes risks such as:
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The Company does not maintain a written proxy voting policy as required by Rule 206(4)-6. |
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Proxies are not voted in Clients best interests. |
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Proxies are not identified and voted in a timely manner. |
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Proxy voting records and client requests to review proxy votes are not maintained. |
The Company has established the following guidelines as an attempt to mitigate these risks.
Policy
It is the policy of the Company to vote proxies to maximize value for Clients or the Funds. Proxies are an asset of a client, which should be treated by the Company with the same care, diligence, and loyalty as any asset belonging to a client. To that end, the Company will vote in a way that it believes, consistent with its fiduciary duty, will cause the value of the issue to increase the most or decline the least. Consideration will be given to both the short and long term implications of the proposal to be voted on when considering the optimal vote.
Procedures for Identification and Voting of Proxies
These proxy voting procedures are designed to enable the Company to resolve material conflicts of interest before voting proxies.
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1. |
New account forms of broker-dealers, custodians, or futures commission merchants will state that the Company should receive proxy voting documentation in the event that the Client has determined that Dix Hills will vote proxies. The designation may also be made by contacting client service representatives. |
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2. |
The Portfolio Managers shall receive all proxy voting materials and will be responsible for ensuring that proxies are voted and submitted in a timely manner. |
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3. |
The CCO will reasonably try to assess any material conflicts between the Companys interests and those of its Clients with respect to proxy voting by considering the situations identified in the Conflicts of Interest section of this document. |
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4. |
Provided that no material conflicts of interest are identified, the Company will vote the proxy in the interest of maximizing shareholder value. The Company may also elect to abstain from voting if it deems such abstinence in its Clients best interests. The rationale for abstain votes will be documented and the documentation will be maintained in the permanent file. |
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The Company is not required to vote every proxy and such should not necessarily be construed as a violation of the Companys fiduciary obligations. There may be times when refraining from voting is in the clients best interest, such as when the Companys analysis of a particular proxy reveals that the cost of voting the proxy may exceed the expected benefit to the client. |
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If the CCO is made aware of a conflict of interest, the following process will be followed: |
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The Portfolio Managers and the CCO will consider the proposal by reviewing the proxy voting materials and any additional documentation necessary in determining the appropriate vote. The Portfolio Managers and the CCO may consider the following: |
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Whether adoption of the proposal would have a positive or negative impact on the issuers short term or long-term value. |
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Whether the issuer has already responded in some appropriate manner to the request embodied in a proposal. |
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Whether the proposal itself is well framed and reasonable. |
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Whether implementation of the proposal would achieve the objectives sought in the proposal. |
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Whether the issues presented would best be handled through government or issuer-specific action. |
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Upon the provision of a reasonable amount of time to consider the proposal, the Portfolio Manager and CCO will document their decision. |
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All proxy votes will be recorded and the following information will be maintained: |
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The name of the issuer of the portfolio Security; |
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The exchange ticker symbol of the portfolio Security; |
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The Council on Uniform Securities Identification Procedures (CUSIP) number for the portfolio Security; |
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The shareholder meeting date; |
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The number of shares the Company is voting on firm-wide; |
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A brief identification of the matter voted on; |
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Whether the matter was proposed by the issuer or by a Security holder; |
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Whether or not the Company cast its vote on the matter; |
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How the Company cast its vote (e.g., for or against proposal, or abstain; for or withhold regarding election of directors); |
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Whether the Company cast its vote with or against management; and |
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Whether any client requested an alternative vote of its proxy. |
Conflicts of Interest
The following is a non-exhaustive list of potential conflicts of interest that could influence the proxy voting process:
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Conflict: the Company is retained by a client, or is in the process of being retained by a client that is an officer or director of an issuer that is held in the Companys client portfolios. |
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Conflict: the Companys Employees maintain a personal and/or business relationship (not an advisory relationship) with issuers or individuals that serve as officers or directors of issuers. For example, the spouse of an Employee may be a high-level executive of an issuer that is held in the Companys client portfolios. The spouse could attempt to influence the Company to vote in favor of management. |
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Conflict: the Company or an Employee(s) personally owns a significant number of an issuers securities that are also held in the Companys client portfolios. |
Recordkeeping
The Company will maintain the documentation described in the following section for a period of not less than five (5) years, the first two (2) years at its principal place of business. The CCO will be responsible for the following procedures and for ensuring that the required documentation is retained.
Client request to review proxy votes :
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Any request, whether written (including e-mail) or oral, received by any Employee of the Company, must be promptly reported to the CCO. All written requests must be retained in the permanent file. |
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Furnish the information requested, free of charge, to the client within a reasonable time period (within 10 business days). Maintain a copy of the written record provided in response to clients written (including e-mail) or oral request. A copy of the written response should be attached and maintained with the clients written request, if applicable and maintained in the permanent file. |
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Clients are permitted to request the proxy voting record for the 5 year period prior to their request. |
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Proxy statements received regarding client securities: |
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Upon receipt of a proxy, copy or print a sample of the proxy statement or card and maintain the copy in a central file along with a sample of the proxy solicitation instructions. |
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Note: the Company is permitted to rely on proxy statements filed on the SECs EDGAR system instead of keeping its own copies. |
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Proxy voting records: |
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A record of how the Company voted Client proxies. |
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Documents prepared or created by the Company that were material to making a decision on how to vote, or that memorialized the basis for the decision. |
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Documentation or notes or any communications received from third parties, other industry analysts, third party service providers, companys management discussions, etc. that were material in the basis for the decision. |
Disclosure
The Company will ensure that Part II of Form ADV and/or the Funds PPM is updated as necessary to reflect: (i) all material changes to the Proxy Voting Policy and Procedures; and (ii) information about how Clients may obtain information on how the Company voted their securities.
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APPENDIX A-4 |
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MARTINGALE ASSET MANAGEMENT, L.P.
Proxy Policy
Martingale Asset Management, as a matter of policy and as a fiduciary to our clients, has responsibility for voting proxies for portfolio securities consistent with the best economic interests of the clients. Our firm maintains written policies and procedures as to the handling, research, voting and reporting of proxy voting and makes appropriate disclosures about our firms proxy policies and practices. Our policy and practice includes the responsibility to monitor corporate actions, receive and vote client proxies and disclose any potential conflicts of interest as well as making information available to clients about the voting of proxies for their portfolio securities and maintaining relevant and required records.
Martingale subscribes to ISS Governance Services (ISS) proxy product to aid in the administration of its proxy voting responsibilities. As a subscriber to this service, Martingale receives a base of proxy information, and ISS votes our clients proxies as directed in our stated proxy policy. ISS maintains complete and accurate records of all proxy votes.
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ISS |
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An MSCI Brand |
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2012 U.S. Proxy Voting Concise Guidelines |
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December 20, 2011 |
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Institutional Shareholder Services Inc.
Copyright © 2011 by ISS.
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Routine/Miscellaneous
Auditor Ratification
Vote FOR proposals to ratify auditors, unless any of the following apply:
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An auditor has a financial interest in or association with the company, and is therefore not independent; |
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There is reason to believe that the independent auditor has rendered an opinion which is neither accurate nor indicative of the companys financial position; |
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Poor accounting practices are identified that rise to a serious level of concern, such as: fraud; misapplication of GAAP; and material weaknesses identified in Section 404 disclosures; or |
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Fees for non-audit services (Other fees) are excessive. |
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Non-audit fees are excessive if: |
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Non-audit (other) fees >audit fees + audit-related fees + tax compliance/preparation fees |
►►►►►
Board of Directors
Voting on Director Nominees in Uncontested Elections
Votes on director nominees should be determined CASE-BY-CASE.
Four fundamental principles apply when determining votes on director nominees:
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Board Accountability |
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Board Responsiveness |
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Director Independence |
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Director Competence |
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Board Accountability |
Vote AGAINST
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or WITHHOLD from the entire board
of directors (except new nominees
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, who should be considered
CASE-BY-CASE) for the following:
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1 In general, companies with a plurality vote standard use Withhold as the contrary vote option in director elections; companies with a majority vote standard use Against. However, it will vary by company and the proxy must be checked to determine the valid contrary vote option for the particular company. |
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Problematic Takeover Defenses:
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A classified board structure; |
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A supermajority vote requirement; |
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Either a plurality vote standard in uncontested director elections or a majority vote standard with no plurality carve-out for contested elections; |
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The inability of shareholders to call special meetings; |
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The inability of shareholders to act by written consent; |
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A dual-class capital structure; and/or |
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A non-shareholder- approved poison pill. |
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Poison Pills: |
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The companys poison pill has a dead-hand or modified dead-hand feature. Vote WITHOLD or AGAINST every year until this feature is removed; |
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The board adopts a poison pill with a term of more than 12 months (long-term pill), or renews any existing pill, including any short-term pill (12 months or less), without shareholder approval. A commitment or policy that puts a newly adopted pill to a binding shareholder vote may potentially offset an adverse vote recommendation. Review such companies with classified boards every year, and such companies with annually elected boards at least once every three years, and vote AGAINST or WITHHOLD votes from all nominees if the company still maintains a non-shareholder-approved poison pill. This policy applies to all companies adopting or renewing pills after the announcement of this policy (Nov. 19, 2009); or |
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The board makes a material adverse change to an existing poison pill without shareholder approval. |
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Vote CASE-BY-CASE on all nominees if: |
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2 A new nominee is any current nominee who has not already been elected by shareholders and who joined the board after the problematic action in question transpired. If ISS cannot determine whether the nominee joined the board before or after the problematic action transpired, the nominee will be considered a new nominee if he or she joined the board within the 12 months prior to the upcoming shareholder meeting. |
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1.6. |
The board adopts a poison pill with a term of 12 months or less (short-term pill) without shareholder approval, taking into account the following factors: |
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The date of the pills adoption relative to the date of the next meeting of shareholders- i.e. whether the company had time to put the pill on ballot for shareholder ratification given the circumstances; |
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The issuers rationale; |
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The issuers governance structure and practices; and |
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The issuers track record of accountability to shareholders. |
Problematic Audit-Related Practices
Generally
vote AGAINST or WITHHOLD from the members of the Audit Committee if:
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1.7. |
The non-audit fees paid to the auditor are excessive (see discussion under Auditor Ratification ); |
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1.8. |
The company receives an adverse opinion on the companys financial statements from its auditor; or |
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||
|
1.9. |
There is persuasive evidence that the Audit Committee entered into an inappropriate indemnification agreement with its auditor that limits the ability of the company, or its shareholders, to pursue legitimate legal recourse against the audit firm. |
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|
|
Vote CASE-BY-CASE on members of the Audit Committee and potentially the full board if: |
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||
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1.10. |
Poor accounting practices are identified that rise to a level of serious concern, such as: fraud; misapplication of GAAP; and material weaknesses identified in Section 404 disclosures. Examine the severity, breadth, chronological sequence and duration, as well as the companys efforts at remediation or corrective actions, in determining whether WITHHOLD/AGAINST votes are warranted. |
Problematic Compensation
Practices/Pay for Performance Misalignment
In the absence of an Advisory Vote on Executive Compensation ballot item, or, in egregious situations, vote AGAINST or WITHHOLD from the members of the Compensation Committee and potentially the full board if:
|
|
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|
1.11. |
There is a significant misalignment between CEO pay and company performance (pay for performance); |
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1.12. |
The company maintains significant problematic pay practices; |
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1.13. |
The board exhibits a significant level of poor communication and responsiveness to shareholders; |
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1.14. |
The company fails to submit one-time transfers of stock options to a shareholder vote; or |
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1.15. |
The company fails to fulfill the terms of a burn rate commitment made to shareholders. |
|
A-4-5
Vote CASE-BY-CASE on Compensation Committee members (or, in
exceptional cases, the full board) and the Management Say-on-Pay proposal if:
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1.16. |
The companys previous say-on-pay proposal received the support of less than 70 percent of votes cast, taking into account: |
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The companys response, including: |
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o |
Disclosure of engagement efforts with major institutional investors regarding the issues that contributed to the low level of support; |
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o |
Specific actions taken to address the issues that contributed to the low level of support; |
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o |
Other recent compensation actions taken by the company; |
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Whether the issues raised are recurring or isolated; |
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The companys ownership structure; and |
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Whether the support level was less than 50 percent, which would warrant the highest degree of responsiveness. |
||
|
Governance Failures
Under extraordinary circumstances, vote AGAINST or WITHHOLD from directors individually, committee members, or the entire board, due to:
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||
|
1.17. |
Material failures of governance, stewardship, risk oversight, or fiduciary responsibilities at the company; |
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1.18. |
Failure to replace management as appropriate; or |
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1.19. |
Egregious actions related to a directors service on other boards that raise substantial doubt about his or her ability to effectively oversee management and serve the best interests of shareholders at any company. |
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2. |
Board Responsiveness |
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|
||
Vote AGAINST or WITHHOLD from the entire board of directors (except new nominees, who should be considered CASE-BY-CASE) if: |
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2.1. |
The board failed to act on a shareholder proposal that received the support of a majority of the shares outstanding the previous year; |
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2.2. |
The board failed to act on a shareholder proposal that received the support of a majority of shares cast in the last year and one of the two previous years; |
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2.3. |
The board failed to act on takeover offers where the majority of shares are tendered; |
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2.4. |
At the previous board election, any director received more than 50 percent withhold/against votes of the shares cast and the company has failed to address the issue(s) that caused the high withhold/against vote; or |
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2.5. |
The board implements an advisory vote on executive compensation on a less frequent basis than the frequency that received the majority of votes cast at the most recent shareholder meeting at which shareholders voted on the say-on-pay frequency. |
|
A-4-6
Vote CASE-BY-CASE on the entire board if:
|
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|
2.6. |
The board implements an advisory vote on executive compensation on a less frequent basis than the frequency that received a plurality, but not a majority, of the votes cast at the most recent shareholder meeting at which shareholders voted on the say-on-pay frequency, taking into account: |
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|
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The boards rationale for selecting a frequency that is different from the frequency that received a plurality; |
|
|
|
The companys ownership structure and vote results; |
|
|
|
ISS analysis of whether there are compensation concerns or a history of problematic compensation practices; and |
|
|
|
The previous years support level on the companys say-on-pay proposal. |
|
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|
3. |
Director Independence |
|
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|
||
Vote AGAINST or WITHHOLD from Inside Directors and Affiliated Outside Directors (per the Categorization of Directors) when: |
||
|
||
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|
|
3.1. |
The inside or affiliated outside director serves on any of the three key committees: audit, compensation, or nominating; |
|
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|
3.2. |
The company lacks an audit, compensation, or nominating committee so that the full board functions as that committee; |
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|
3.3. |
The company lacks a formal nominating committee, even if the board attests that the independent directors fulfill the functions of such a committee; or |
|
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|
||
|
3.4.
|
Independent directors make up
less than a majority of the directors.
|
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|
4. |
Director Competence |
|
|
|
|
|
||
Attendance at Board and Committee Meetings: |
||
|
|
|
Vote AGAINST or WITHHOLD from the entire board of directors (except new nominees, who should be considered CASE-BY-CASE) if: |
||
|
||
|
|
|
|
4.1. |
The companys proxy indicates that not all directors attended 75 percent of the aggregate board and committee meetings, but fails to provide the required disclosure of the names of the director(s) involved. |
|
|
|
Generally vote AGAINST or WITHHOLD from individual directors who: |
||
|
|
|
|
4.2. |
Attend less than 75 percent of the board and committee meetings (with the exception of new nominees). Acceptable reasons for director absences are generally limited to the following: |
|
|
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|
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|
|
Medical issues/illness; |
|
|
|
Family emergencies; and |
|
|||
|
|
|
Missing only one meeting. |
|
A-4-7
|
|
|
|
||
|
|
These reasons for directors absences will only be considered by ISS if disclosed in the proxy or another SEC filing. If the disclosure is insufficient to determine whether a director attended at least 75 percent of board and committee meetings in aggregate, vote AGAINST or WITHHOLD from the director. |
|
|
|
Overboarded Directors: |
||
|
||
|
|
|
Vote AGAINST or WITHHOLD from individual directors who: |
||
|
|
|
|
4.3. |
Sit on more than six public company boards; or |
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|
|
4.4. |
Are CEOs of public companies who sit on the boards of more than two public companies besides their own -withhold only at their outside boards. |
►►►►►
Voting for Director Nominees in Contested Elections
Vote CASE-BY-CASE on the election of directors in contested elections, considering the following factors:
|
|
|
|
|
Long-term financial performance of the target company relative to its industry; |
|
|
Managements track record; |
|
|
Background to the proxy contest; |
|
|
Qualifications of director nominees (both slates); |
|
|
Strategic plan of dissident slate and quality of critique against management; |
|
|
Likelihood that the proposed goals and objectives can be achieved (both slates); |
|
|
Stock ownership positions. |
►►►►►
Proxy Access
ISS supports proxy access as an important shareholder right, one that is complementary to other best-practice corporate governance features. However, in the absence of a uniform standard, proposals to enact proxy access may vary widely; as such, ISS is not setting forth specific parameters at this time and will take a case-by-case approach in evaluating these proposals.
Vote CASE-BY-CASE on proposals to enact proxy access, taking into account, among other factors:
|
|
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|
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|
|
Company-specific factors; and |
||
|
|
Proposal-specific factors, including: |
||
|
|
|
○ |
The ownership thresholds proposed in the resolution (i.e. , percentage and duration); |
|
|
|
○ |
The maximum proportion of directors that shareholders may nominate each year; and |
|
|
|
○ |
The method of determining which nominations should appear on the ballot if multiple shareholders submit nominations. |
|
►►►►►
A-4-8
Shareholder Rights & Defenses
Exclusive Venue
Vote CASE-BY-CASE on exclusive venue proposals, taking into account:
|
|
|
|
|
|
|
Whether the company has been materially harmed by shareholder litigation outside its jurisdiction of incorporation, based on disclosure in the companys proxy statement; and |
||
|
|
Whether the company has the following good governance features: |
||
|
|
|
○ |
An annually elected board; |
|
|
|
○ |
A majority vote standard in uncontested director elections; and |
|
|
|
○ |
The absence of a poison pill, unless the pill was approved by shareholders. |
|
►►►►►
Poison Pills Management Proposals
to Ratify Poison Pill
Vote CASE-BY-CASE on management proposals on poison pill ratification, focusing on the features of the shareholder rights plan. Rights plans should contain the following attributes:
|
|
|
|
|
No lower than a 20% trigger, flip-in or flip-over; |
|
|
A term of no more than three years; |
|
|
No dead-hand, slow-hand, no-hand or similar feature that limits the ability of a future board to redeem the pill; |
|
|
Shareholder redemption feature (qualifying offer clause); if the board refuses to redeem the pill 90 days after a qualifying offer is announced, 10 percent of the shares may call a special meeting or seek a written consent to vote on rescinding the pill. |
In addition, the rationale for adopting the pill should be
thoroughly explained by the company. In examining the request for the pill,
take into consideration the companys existing governance structure, including:
board independence, existing takeover defenses, and any problematic governance
concerns.
►►►►►
Poison Pills Management Proposals to Ratify a Pill to Preserve Net
Operating Losses (NOLs)
Vote
AGAINST proposals to adopt a poison pill for the stated purpose of protecting a
companys net operating losses (NOLs) if the term of the pill would exceed
the shorter of three years and the exhaustion of the NOL.
Vote CASE-BY-CASE on management proposals for poison pill ratification, considering the following factors, if the term of the pill would be the shorter of three years (or less) and the exhaustion of the NOL:
|
|
|
|
|
The ownership threshold to transfer (NOL pills generally have a trigger slightly below 5 percent); |
|
|
The value of the NOLs; |
|
|
Shareholder protection mechanisms (sunset provision, or commitment to cause expiration of the pill upon exhaustion or expiration of NOLs); |
|
|
The companys existing governance structure including: board independence, existing takeover defenses, track record of responsiveness to shareholders, and any other problematic governance concerns; and |
A-4-9
|
|
|
|
|
Any other factors that may be applicable. |
►►►►►
Shareholder Ability to Act by Written Consent
Generally vote AGAINST management and shareholder proposals to restrict or prohibit shareholders ability to act by written consent.
Generally vote FOR management and shareholder proposals that provide shareholders with the ability to act by written consent, taking into account the following factors:
|
|
|
|
|
Shareholders current right to act by written consent; |
|
|
The consent threshold; |
|
|
The inclusion of exclusionary or prohibitive language; |
|
|
Investor ownership structure; and |
|
|
Shareholder support of, and managements response to, previous shareholder proposals. |
Vote CASE-BY-CASE on shareholder proposals if, in addition to the considerations above, the company has the following governance and antitakeover provisions:
|
|
|
|
||
|
|
An unfettered 3 right for shareholders to call special meetings at a 10 percent threshold; |
|
||
|
|
A majority vote standard in uncontested director elections; |
|
|
No non-shareholder-approved pill; and |
|
|
An annually elected board. |
►►►►►
CAPITAL/RESTRUCTURING
Common Stock Authorization
Vote FOR proposals to increase the number of authorized common shares where the primary purpose of the increase is to issue shares in connection with a transaction on the same ballot that warrants support.
Vote AGAINST proposals at companies with more than one class of common stock to increase the number of authorized shares of the class of common stock that has superior voting rights.
Vote AGAINST proposals to increase the number of authorized common shares if a vote for a reverse stock split on the same ballot is warranted despite the fact that the authorized shares would not be reduced proportionally.
Vote CASE-BY-CASE on all other proposals to increase the number of shares of common stock authorized for issuance. Take into account company-specific factors that include, at a minimum, the following:
|
|
|
|
|
|
|
3 Unfettered means no restrictions on agenda items, no restrictions on the number of shareholders who can group together to reach the 10 percent threshold, and only reasonable limits on when a meeting can be called: no greater than 30 days after the last annual meeting and no greater than 90 prior to the next annual meeting. |
|
|
A-4-10
|
|
|
|
|
|
||||
|
|
Past Board Performance: |
||
|
||||
|
||||
|
|
|
○ |
The companys use of authorized shares during the last three years |
|
||||
|
||||
|
|
The Current Request: |
||
|
||||
|
||||
|
|
|
○ |
Disclosure in the proxy statement of the specific purposes of the proposed increase; |
|
||||
|
|
|
○ |
Disclosure in the proxy statement of specific and severe risks to shareholders of not approving the request; and |
|
||||
|
|
|
○ |
The dilutive impact of the request as determined by an allowable increase calculated by ISS (typically 100 percent of existing authorized shares) that reflects the companys need for shares and total shareholder returns. |
►►►►►
Preferred Stock Authorization
Vote FOR proposals to increase the number of authorized preferred shares where the primary purpose of the increase is to issue shares in connection with a transaction on the same ballot that warrants support.
Vote AGAINST proposals at companies with more than one class or series of preferred stock to increase the number of authorized shares of the class or series of preferred stock that has superior voting rights.
Vote CASE-BY-CASE on all other proposals to increase the number of shares of preferred stock authorized for issuance. Take into account company-specific factors that include, at a minimum, the following:
|
|
|
|
|
|
|
Past Board Performance: |
||
|
||||
|
|
|
○ |
The companys use of authorized preferred shares during the last three years; |
|
||||
|
|
The Current Request: |
||
|
||||
|
|
|
○ |
Disclosure in the proxy statement of the specific purposes for the proposed increase; |
|
||||
|
|
|
○ |
Disclosure in the proxy statement of specific and severe risks to shareholders of not approving the request; |
|
||||
|
|
|
○ |
In cases where the company has existing authorized preferred stock, the dilutive impact of the request as determined by an allowable increase calculated by ISS (typically 100 percent of existing authorized shares) that reflects the companys need for shares and total shareholder returns; and |
|
||||
|
|
|
○ |
Whether the shares requested are blank check preferred shares that can be used for antitakeover purposes. |
►►►►►
Dual Class Structure
Generally vote AGAINST proposals to create a new class of common stock unless:
|
|
|
|
|
|
|
The company discloses a compelling rationale for the dual-class capital structure, such as: |
||
|
||||
|
|
|
○ |
The companys auditor has concluded that there is substantial doubt about the companys ability to continue as a going concern; or |
|
||||
|
|
|
○ |
The new class of shares will be transitory; |
|
||||
|
|
The new class is intended for financing purposes with minimal or no dilution to current shareholders in both the short term and long term; and |
||
|
||||
|
|
The new class is not designed to preserve or increase the voting power of an insider or significant shareholder. |
||
|
A-4-11
Mergers and Acquisitions
Vote CASE-BY-CASE on mergers and acquisitions. Review and
evaluate the merits and drawbacks of the proposed transaction, balancing
various and sometimes countervailing factors including:
|
|
|
|
|
Valuation Is the value to be received by the target shareholders (or paid by the acquirer) reasonable? While the fairness opinion may provide an initial starting point for assessing valuation reasonableness, emphasis is placed on the offer premium, market reaction and strategic rationale. |
|
||
|
|
Market reaction How has the market responded to the proposed deal? A negative market reaction should cause closer scrutiny of a deal. |
|
||
|
|
Strategic rationale Does the deal make sense strategically? From where is the value derived? Cost and revenue synergies should not be overly aggressive or optimistic, but reasonably achievable. Management should also have a favorable track record of successful integration of historical acquisitions. |
|
||
|
|
Negotiations and process Were the terms of the transaction negotiated at arms-length? Was the process fair and equitable? A fair process helps to ensure the best price for shareholders. Significant negotiation wins can also signify the deal makers competency. The comprehensiveness of the sales process (e.g., full auction, partial auction, no auction) can also affect shareholder value. |
|
||
|
|
Conflicts of interest Are insiders benefiting from the transaction disproportionately and inappropriately as compared to non-insider shareholders? As the result of potential conflicts, the directors and officers of the company may be more likely to vote to approve a merger than if they did not hold these interests. Consider whether these interests may have influenced these directors and officers to support or recommend the merger. The CIC figure presented in the ISS Transaction Summary section of this report is an aggregate figure that can in certain cases be a misleading indicator of the true value transfer from shareholders to insiders. Where such figure appears to be excessive, analyze the underlying assumptions to determine whether a potential conflict exists. |
|
||
|
|
Governance Will the combined company have a better or worse governance profile than the current governance profiles of the respective parties to the transaction? If the governance profile is to change for the worse, the burden is on the company to prove that other issues (such as valuation) outweigh any deterioration in governance. |
|
►►►►►
COMPENSATION
Executive Pay Evaluation
Underlying all evaluations are five global principles that most investors expect corporations to adhere to in designing and administering executive and director compensation programs:
|
|
|
|
||
|
1. |
Maintain appropriate pay-for-performance alignment, with emphasis on long-term shareholder value: This principle encompasses overall executive pay practices, which must be designed to attract, retain, and appropriately motivate the key employees who drive shareholder value creation over the long term. It will take into consideration, among other factors, the link between |
|
A-4-12
|
|
|
|
||
|
|
pay and performance; the mix between fixed and variable pay; performance goals; and equity-based plan costs; |
|
||
|
2. |
Avoid arrangements that risk pay for failure: This principle addresses the appropriateness of long or indefinite contracts, excessive severance packages, and guaranteed compensation; |
|
||
|
3. |
Maintain an independent and effective compensation committee: This principle promotes oversight of executive pay programs by directors with appropriate skills, knowledge, experience, and a sound process for compensation decision-making (e.g., including access to independent expertise and advice when needed); |
|
||
|
4. |
Provide shareholders with clear, comprehensive compensation disclosures: This principle underscores the importance of informative and timely disclosures that enable shareholders to evaluate executive pay practices fully and fairly; |
|
||
|
5. |
Avoid inappropriate pay to non-executive directors: This principle recognizes the interests of shareholders in ensuring that compensation to outside directors does not compromise their independence and ability to make appropriate judgments in overseeing managers pay and performance. At the market level, it may incorporate a variety of generally accepted best practices. |
|
Advisory Votes on Executive Compensation- Management Proposals (Management Say-on-Pay)
Vote CASE-BY-CASE on ballot items related to executive pay
and practices, as well as certain aspects of outside director compensation.
Vote AGAINST Advisory Votes on Executive Compensation (Management Say-on-Pay MSOP) if:
|
|
|
|
|
There is a significant misalignment between CEO pay and company performance ( pay for performance ); |
|
||
|
|
The company maintains significant problematic pay practices ; |
|
||
|
|
The board exhibits a significant level of poor communication and responsiveness to shareholders. |
Vote AGAINST or WITHHOLD from the members of the Compensation Committee and potentially the full board if:
|
|
|
|
|
There is no MSOP on the ballot, and an AGAINST vote on an MSOP is warranted due to pay for performance misalignment, problematic pay practices, or the lack of adequate responsiveness on compensation issues raised previously, or a combination thereof; |
|
||
|
|
The board fails to respond adequately to a previous MSOP proposal that received less than 70 percent support of votes cast; |
|
||
|
|
The company has recently practiced or approved problematic pay practices, including option repricing or option backdating; or |
|
||
|
|
The situation is egregious. |
Vote AGAINST an equity plan on the ballot if:
|
|
|
|
|
|
|
A pay for performance misalignment is found, and a significant portion of the CEOs misaligned pay is attributed to non-performance-based equity awards, taking into consideration: |
||
|
||||
|
|
|
○ |
Magnitude of pay misalignment; |
|
||||
|
|
|
○ |
Contribution of non-performance-based equity grants to overall pay; and |
|
||||
|
|
|
○ |
The proportion of equity awards granted in the last three fiscal years concentrated at the named executive officer (NEO) level. |
|
A-4-13
Primary Evaluation Factors for Executive Pay
Pay-for-Performance
Evaluation
ISS annually conducts a pay-for-performance analysis to identify strong or satisfactory alignment between pay and performance over a sustained period. With respect to companies in the Russell 3000 index, this analysis considers the following:
|
|
|
|
|
|
1. |
Peer Group 4 Alignment: |
||
|
|
|
|
|
|
|
|
|
The degree of alignment between the companys TSR rank and the CEOs total pay rank within a peer group, as measured over one-year and three-year periods (weighted 40/60); |
|
|
|
|
|
|
|
|
|
The multiple of the CEOs total pay relative to the peer group median. |
|
|
|
|
|
|
2. |
Absolute Alignment: The absolute alignment between the trend in CEO pay and company TSR over the prior five fiscal years - i.e., the difference between the trend in annual pay changes and the trend in annualized TSR during the period. |
If the above analysis demonstrates significant unsatisfactory long-term pay-for-performance alignment or, in the case of non-Russell 3000 index companies, misaligned pay and performance are otherwise suggested, analyze the following qualitative factors to determine how various pay elements may work to encourage or to undermine long-term value creation and alignment with shareholder interests:
|
|
|
|
|
The ratio of performance- to time-based equity awards; |
|
|
|
|
|
The ratio of performance-based compensation to overall compensation; |
|
|
|
|
|
The completeness of disclosure and rigor of performance goals; |
|
|
|
|
|
The companys peer group benchmarking practices; |
|
|
|
|
|
Actual results of financial/operational metrics, such as growth in revenue, profit, cash flow, etc., both absolute and relative to peers; |
|
|
|
|
|
Special circumstances related to, for example, a new CEO in the prior fiscal year or anomalous equity grant practices (e.g. , biennial awards); and |
|
|
|
|
|
Any other factors deemed relevant. |
Problematic Pay Practices
The focus is on executive compensation practices that contravene the global pay principles, including:
|
|
|
|
|
Problematic practices related to non-performance-based compensation elements; |
|
|
|
|
|
Incentives that may motivate excessive risk-taking; and |
|
|
|
|
|
Options Backdating. |
|
|
|
|
||
|
||
4 The peer group is generally comprised of 14-24 companies that are selected using market cap, revenue (or assets for financial firms), and GICS industry group, via a process designed to select peers that are closest to the subject company, and where the subject company is close to median in revenue/asset size. The relative alignment evaluation will consider the companys rank for both pay and TSR within the peer group (for one- and three-year periods) and the CEOs pay relative to the median pay level in the peer group. |
||
|
A-4-14
Problematic Pay Practices related to Non-Performance-Based Compensation Elements
Pay elements that are not directly based on performance are generally evaluated CASE-BY-CASE considering the context of a companys overall pay program and demonstrated pay-for-performance philosophy. Please refer to ISS Compensation FAQ document for detail on specific pay practices that have been identified as potentially problematic and may lead to negative recommendations if they are deemed to be inappropriate or unjustified relative to executive pay best practices. The list below highlights the problematic practices that carry significant weight in this overall consideration and may result in adverse vote recommendations:
|
|
|
|
|
|
|
Repricing or replacing of underwater stock options/SARS without prior shareholder approval (including cash buyouts and voluntary surrender of underwater options); |
||
|
|
|
|
|
|
|
Excessive perquisites or tax gross-ups, including any gross-up related to a secular trust or restricted stock vesting; |
||
|
|
|
|
|
|
|
New or extended agreements that provide for: |
||
|
|
|
○ |
CIC payments exceeding 3 times base salary and average/target/most recent bonus; |
|
|
|
○ |
CIC severance payments without involuntary job loss or substantial diminution of duties (single or modified single triggers); |
|
|
|
○ |
CIC payments with excise tax gross-ups (including modified gross-ups). |
Incentives that may Motivate Excessive Risk-Taking
|
|
|
|
|
Multi-year guaranteed bonuses; |
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A single or common performance metric used for short- and long-term plans; |
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Lucrative severance packages; |
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High pay opportunities relative to industry peers; |
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Disproportionate supplemental pensions; or |
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Mega annual equity grants that provide unlimited upside with no downside risk. |
Factors that potentially mitigate the impact of risky incentives include rigorous claw-back provisions and robust stock ownership/holding guidelines.
Options Backdating
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The following factors should be examined CASE-BY-CASE to allow for distinctions to be made between sloppy plan administration versus deliberate action or fraud: |
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Reason and motive for the options backdating issue, such as inadvertent vs. deliberate grant date changes; |
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Duration of options backdating; |
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Size of restatement due to options backdating; |
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Corrective actions taken by the board or compensation committee, such as canceling or re-pricing backdated options, the recouping of option gains on backdated grants; and |
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Adoption of a grant policy that prohibits backdating, and creates a fixed grant schedule or window period for equity grants in the future. |
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Board Communications and Responsiveness
Consider the following factors CASE-BY-CASE when evaluating ballot
items related to executive pay on the boards responsiveness to investor input
and engagement on compensation issues:
A-4-15
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Failure to respond to majority-supported shareholder proposals on executive pay topics; or |
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Failure to adequately respond to the companys previous say-on-pay proposal that received the support of less than 70 percent of votes cast, taking into account: |
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The companys response, including: |
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Disclosure of engagement efforts with major institutional investors regarding the issues that contributed to the low level of support; |
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Specific actions taken to address the issues that contributed to the low level of support; |
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Other recent compensation actions taken by the company; |
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Whether the issues raised are recurring or isolated; |
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The companys ownership structure; and |
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Whether the support level was less than 50 percent, which would warrant the highest degree of responsiveness. |
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Frequency of Advisory Vote on Executive Compensation (Management Say on Pay)
Vote FOR annual advisory votes on compensation, which provide the most consistent and clear communication channel for shareholder concerns about companies executive pay programs.
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Voting on Golden Parachutes in an Acquisition, Merger, Consolidation, or Proposed Sale
Vote CASE-BY-CASE on proposals to approve the companys golden
parachute compensation, consistent with ISS policies on problematic pay
practices related to severance packages.
Features that may lead to a vote AGAINST include:
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Recently adopted or materially amended agreements that include excise tax gross-up provisions (since prior annual meeting); |
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Recently adopted or materially amended agreements that include modified single triggers (since prior annual meeting); |
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Single trigger payments that will happen immediately upon a change in control, including cash payment and such items as the acceleration of performance-based equity despite the failure to achieve performance measures; |
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Single-trigger vesting of equity based on a definition of change in control that requires only shareholder approval of the transaction (rather than consummation); |
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Potentially excessive severance payments; |
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Recent amendments or other changes that may make packages so attractive as to influence merger agreements that may not be in the best interests of shareholders; |
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In the case of a substantial gross-up from pre-existing/grandfathered contract: the element that triggered the gross-up (i.e., option mega-grants at low point in stock price, unusual or outsized payments in cash or equity made or negotiated prior to the merger); or |
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The companys assertion that a proposed transaction is conditioned on shareholder approval of the golden parachute advisory vote. ISS would view this as problematic from a corporate governance perspective. |
A-4-16
In cases where the golden parachute vote is incorporated into a companys separate advisory vote on compensation (management say on pay), ISS will evaluate the say on pay proposal in accordance with these guidelines, which may give higher weight to that component of the overall evaluation.
Equity-Based and Other Incentive Plans
Vote CASE-BY-CASE on equity-based compensation plans. Vote AGAINST the equity plan if any of the following factors apply:
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The total cost of the companys equity plans is unreasonable; |
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The plan expressly permits repricing; |
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A pay-for-performance misalignment is found; |
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The companys three year burn rate exceeds the burn rate cap of its industry group; |
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The plan has a liberal change-of-control definition; or |
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The plan is a vehicle for problematic pay practices. |
►►►►►
Social/Environmental Issues
Overall Approach
When evaluating social and environmental shareholder proposals, ISS considers the following factors:
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Whether adoption of the proposal is likely to enhance or protect shareholder value; |
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Whether the information requested concerns business issues that relate to a meaningful percentage of the companys business as measured by sales, assets, and earnings; |
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The degree to which the companys stated position on the issues raised in the proposal could affect its reputation or sales, or leave it vulnerable to a boycott or selective purchasing; |
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Whether the issues presented are more appropriately/effectively dealt with through governmental or company-specific action; |
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Whether the company has already responded in some appropriate manner to the request embodied in the proposal; |
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Whether the companys analysis and voting recommendation to shareholders are persuasive; |
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What other companies have done in response to the issue addressed in the proposal; |
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Whether the proposal itself is well framed and the cost of preparing the report is reasonable; |
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Whether implementation of the proposals request would achieve the proposals objectives; |
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Whether the subject of the proposal is best left to the discretion of the board; |
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Whether the requested information is available to shareholders either from the company or from a publicly available source; and |
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Whether providing this information would reveal proprietary or confidential information that would place the company at a competitive disadvantage. |
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A-4-17
Political Spending & Lobbying Activities
Generally vote AGAINST proposals asking the company to affirm political nonpartisanship in the workplace so long as:
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There are no recent, significant controversies, fines or litigation regarding the companys political contributions or trade association spending; and |
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The company has procedures in place to ensure that employee contributions to company-sponsored political action committees (PACs) are strictly voluntary and prohibit coercion. |
Vote AGAINST proposals to publish in newspapers and other media the companys political contributions. Such publications could present significant cost to the company without providing commensurate value to shareholders.
Generally vote FOR proposals requesting greater disclosure of a companys political contributions and trade association spending policies and activities. However, the following will be considered:
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The companys current disclosure of policies and oversight mechanisms related to its direct political contributions and payments to trade associations or other groups that may be used for political purposes, including information on the types of organizations supported and the business rationale for supporting these organizations; and |
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Recent significant controversies, fines, or litigation related to the companys political contributions or political activities. |
Vote AGAINST proposals asking for a list of company executives, directors, consultants, legal counsels, lobbyists, or investment bankers that have prior government service and whether such service had a bearing on the business of the company. Such a list would be burdensome to prepare without providing any meaningful information to shareholders.
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The companys current disclosure of relevant policies and oversight mechanisms; |
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Recent significant controversies, fines, or litigation related to the companys public policy activities; and |
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The impact that the policy issues may have on the companys business operations. |
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Generally vote FOR proposals requesting greater disclosure of a companys (natural gas) hydraulic fracturing operations, including measures the company has taken to manage and mitigate the potential community and environmental impacts of those operations, considering:
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The companys current level of disclosure of relevant policies and oversight mechanisms; |
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The companys current level of such disclosure relative to its industry peers; |
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A-4-18
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Potential relevant local, state, or national regulatory developments; and |
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Controversies, fines, or litigation related to the companys hydraulic fracturing operations. |
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Disclosure/Disclaimer
This document and all of the information contained in it, including without limitation all text, data, graphs, and charts (collectively, the Information) is the property of Institutional Shareholder Services Inc. (ISS), its subsidiaries, or, in some cases third party suppliers.
The Information has not been submitted to, nor received approval from, the United States Securities and Exchange Commission or any other regulatory body. None of the Information constitutes an offer to sell (or a solicitation of an offer to buy), or a promotion or recommendation of, any security, financial product or other investment vehicle or any trading strategy, and ISS does not endorse, approve, or otherwise express any opinion regarding any issuer, securities, financial products or instruments or trading strategies.
The user of the Information assumes the entire risk of any use it may make or permit to be made of the Information.
ISS MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE INFORMATION AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF ORIGINALITY, ACCURACY, TIMELINESS, NON-INFRINGEMENT, COMPLETENESS, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE) WITH RESPECT TO ANY OF THE INFORMATION.
Without limiting any of the foregoing and to the maximum extent permitted by law, in no event shall ISS have any liability regarding any of the Information for any direct, indirect, special, punitive, consequential (including lost profits), or any other damages even if notified of the possibility of such damages. The foregoing shall not exclude or limit any liability that may not by applicable law be excluded or limited.
A-4-19
MEDLEY CREDIT STRATEGIES, LLC
Disclosure Regarding Proxy Voting Policies and Procedures
September 2010
Policy Statement
These procedures apply to all Funds and other Client accounts for which the Adviser is responsible for voting proxies, including all limited partnerships, limited liability companies, separate accounts, other accounts for which it acts as investment adviser.
The Adviser generally invests Client assets in liquid debt investments (primarily fixed income securities and loan obligations) in the US and Europe. From time to time, the Adviser is asked to vote on or otherwise consent to certain actions on behalf of a Client as holder of such investments. In voting proxies, the Adviser is guided by general fiduciary principles. The Advisers goal is to act prudently, solely in the best interest of the beneficial owners of the accounts it manages. The Adviser attempts to consider all aspects of its vote that could affect the value of the investment; and where the Adviser votes proxies, it will do so in the manner that it believes will be consistent with efforts to maximize shareholder values.
Voting of Proxies
Proxy material is promptly reviewed to evaluate the issues presented. Regularly recurring matters are usually voted as recommended by the issuers board of directors or management, but there are many circumstances that might cause the Adviser to vote against such proposals. These might include, among others, excessive compensation, unusual management stock options, preferential voting or poison pills. The Adviser will decide these issues on a case-by-case basis.
The Adviser, may determine to abstain from voting a proxy or a specific proxy item when it concludes that the potential benefit of voting is outweighed by the cost or when it is not in the Client accounts best interest to vote. In many instances, the disparate interests of the Fund or other Client account may make it difficult for the Adviser to determine a manner in which to vote and, therefore, will abstain from voting. However, if the Adviser does vote, the Adviser shall cast ballots in a manner it believes to be consistent with the interests of the Fund or Client account and shall not subordinate Client interests to its own. When a Client has authorized the Adviser to vote proxies on its behalf, the Adviser will generally not accept instructions from the Client regarding how to vote proxies. If the Adviser exercises voting authority with respect to Client securities, the Adviser is required to adopt and implement written policies and procedures that are reasonably designed to ensure that the Adviser votes Client securities in a manner consistent with the best interests of such Client. (Rule 206(4)-6).
Conflicts of Interest
In furtherance of the Advisers goal to vote proxies in the best interests of Clients, the Adviser follows procedures designed to identify and address material conflicts that may arise between the Advisers interests and those of its Clients before voting proxies on behalf of such Clients.
Procedures for Identifying Conflicts of Interest.
The Adviser relies on the following to seek to identify conflicts of interest with respect to proxy voting:
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The Adviser shall monitor the potential for conflicts of interest on the part of the Adviser with respect to voting proxies on behalf of Client accounts as a result of personal relationships, |
A-5-1
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significant Client relationships (those accounting for greater than 5% of annual revenues) or special circumstances that may arise during the conduct of the Advisers business. |
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If the Adviser has a conflict of interest in voting proxies on behalf of Client accounts in respect of a specific issuer, the Advisers Compliance Officer shall maintain an up to date list of such issuers. The Adviser shall not vote proxies relating to issuers on such list on behalf of Client accounts until it has been determined that the conflict of interest is not material or a method for resolving such conflict of interest has been agreed upon and implemented, as described below. |
Procedures for Assessing Materiality of Conflicts of Interest and for Addressing Material Conflicts of Interest.
The Advisers Compliance Officer will determine whether a conflict of interest is material. A conflict of interest will be considered material to the extent that it is determined that such conflict has the potential to influence the Advisers decision-making in voting the proxy. A conflict of interest shall be deemed material in the event that the issuer that is the subject of the proxy or any executive officer of that issuer has a Client relationship with the Adviser of the type described above. All other materiality determinations will be based on an assessment of the particular facts and circumstances. The Advisers Compliance Officer shall maintain a written record of all materiality determinations.
If it is determined that a conflict of interest is not material, the Adviser may vote proxies notwithstanding the existence of the conflict.
If it is determined that a conflict of interest is material, one or more methods may be used to resolve the conflict, including:
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disclosing the conflict to the Client and obtaining its consent before voting; |
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suggesting to the Client that it engage another party to vote the proxy on its behalf; |
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engaging a third party to recommend a vote with respect to the proxy based on application of the policies set forth herein; or |
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such other method as is deemed appropriate under the circumstances, given the nature of the conflict. |
The Adviser shall maintain a written record of the method used to resolve a material conflict of interest.
Recordkeeping
The Adviser shall maintain the following records relating to proxy voting:
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a copy of these policies and procedures; |
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a copy of each proxy form (as voted); |
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a copy of each proxy solicitation (including proxy statements) and related materials with regard to each vote; |
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documentation relating to the identification and resolution of conflicts of interest; |
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any documents created by the Adviser that were material to a proxy voting decision or that memorialized the basis for that decision; and |
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a copy of each written Client request for information on how the Adviser voted proxies on behalf of the Client, and a copy of any written response by the Adviser to any (written or oral) Client request for information on how the Adviser voted proxies on behalf of the requesting Client. |
A-5-2
Such records shall be maintained and preserved in an easily accessible place for a period of not less than five years from the end of the fiscal year during which the last entry was made on such record, the first two years in the Advisers office.
In lieu of keeping copies of proxy statements, the Adviser may rely on proxy statements filed on the EDGAR system as well as on third party records of proxy statements and votes cast if the third party provides an undertaking to provide the documents promptly upon request.
The Compliance Officer shall review this policy on an annual basis and revise it as necessary.
A-5-3
PANAGORA ASSET MANAGEMENT, INC.
PROXY VOTING POLICY DISCLOSURE.
Introduction
PanAgora Asset Management (PanAgora) seeks to vote proxies in the best interests of its clients. In the ordinary course, this entails voting proxies in a way that PanAgora believes will maximize the monetary value of each portfolios holdings. PanAgora takes the view that this will benefit our direct clients and, indirectly, the ultimate owners and beneficiaries of those clients.
Oversight of the proxy voting process is the responsibility of the Investment Committee. The Investment Committee reviews and approves amendments to the PanAgora Proxy Voting Policy and delegates authority to vote in accordance with this policy to its third party proxy voting service. PanAgora retains the final authority and responsibility for voting. In addition to voting proxies, PanAgora:
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describes its proxy voting procedures to its clients in Part II of its Form ADV; |
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provides the client with this written proxy policy, upon request; |
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discloses to its clients how they may obtain information on how PanAgora voted the clients proxies; |
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generally applies its proxy voting policy consistently and keeps records of votes for each client in order to verify the consistency of such voting; |
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documents the reason(s) for voting for all non-routine items; and |
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keeps records of such proxy votes. |
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Process
PanAgoras Chief Compliance Officer is responsible for monitoring proxy voting. As stated above, oversight of the proxy voting process is the responsibility of the Investment Committee, which retains oversight responsibility for all investment activities of PanAgora.
In order to facilitate our proxy voting process, PanAgora retains a firm with expertise in the proxy voting and corporate governance fields to assist in the due diligence process. The Chief Compliance Officer has delegated the responsibility of working with this firm to the Compliance Manager responsible for oversight of PanAgoras third party proxy agent, for ensuring that proxies are submitted in a timely manner.
All proxies received on behalf of PanAgora clients are forwarded to our proxy voting firm. If (i) the request falls within one of the guidelines listed below, and (ii) there are no special circumstances relating to that company or proxy which come to our attention (as discussed below), the proxy is voted according to our proxy voting firms guidelines as adopted by the Investment Committee.
However, from time to time, proxy votes will be solicited which (i) involve special circumstances and require additional research and discussion or (ii) are not directly addressed by our policies. These proxies are identified through a number of methods, including but not limited to notification from our third party proxy voting specialist, concerns of clients or portfolio managers, and questions from consultants.
A-6-1
In instances of special circumstances or issues not directly addressed by our policies, the Chairman of the Investment Committee is consulted by the Chief Compliance Officer for a determination of the proxy vote. The first determination is whether there is a material conflict of interest between the interests of our client and those of PanAgora. If the Chairman of the Investment Committee determines that there is a material conflict, the process detailed below under Potential Conflicts is followed. If there is no material conflict, the Chairman will examine each of the issuers proposals in detail in seeking to determine what vote would be in the best interests of our clients. At this point, the Chairman of the Investment Committee makes a voting decision based on maximizing the monetary value of each portfolios holdings. However, the Chairman of the Investment Committee may determine that a proxy involves the consideration of particularly significant issues and present the proxy to the entire Investment Committee for a decision on voting the proxy.
PanAgora also endeavors to show sensitivity to local market practices when voting proxies of non-U.S. issuers.
Potential Conflicts
As discussed above under Process, from time to time, PanAgora will review a proxy that presents a potential material conflict. An example could arise when PanAgora has business or other relationships with participants involved in proxy contests, such as a candidate for a corporate directorship.
As a fiduciary to its clients, PanAgora takes these potential conflicts very seriously. While PanAgoras only goal in addressing any such potential conflict is to ensure that proxy votes are cast in the clients best interests and are not affected by PanAgoras potential conflict, there are a number of courses PanAgora may take. The final decision as to which course to follow shall be made by the Investment Committee.
Casting a vote which simply follows PanAgoras pre-determined policy eliminates PanAgoras discretion on the particular issue and hence avoid the conflict.
In other cases, where the matter presents a potential material conflict and is not clearly within one of the enumerated proposals, or is of such a nature that PanAgora believes more active involvement is necessary, the Chairman of the Investment Committee shall present the proxy to the Investment Committee, who will follow one of two courses of action. First, PanAgora may employ the services of a third party, wholly independent of PanAgora, its affiliates and those parties involved in the proxy issue, to determine the appropriate vote.
Second, in certain situations the Investment Committee may determine that the employment of a third party not feasible, impractical or unnecessary. In such situations, the Investment Committee shall make a decision as to the voting of the proxy. The basis for the voting decision, including the basis for the determination that the decision is in the best interests of PanAgoras clients, shall be formalized in writing. As stated above, which action is appropriate in any given scenario would be the decision of the Investment Committee in carrying out its duty to ensure that the proxies are voted in the clients, and not PanAgoras, best interests.
Recordkeeping
In accordance with applicable law, PanAgora shall retain the following documents for not less than five years from the end of the year in which the proxies were voted, the first two years in PanAgoras office:
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PanAgoras Proxy Voting Policy and any additional procedures created pursuant to such Policy; |
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A-6-2
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a copy of each proxy statement PanAgora receives regarding securities held by its clients (note: this requirement may be satisfied by a third party who has agreed in writing to do); |
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a record of each vote cast by PanAgora (note: this requirement may be satisfied by a third party who has agreed in writing to do so); |
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a copy of any document created by PanAgora that was material in making its voting decision or that memorializes the basis for such decision; and |
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a copy of each written request from a client, and response to the client, for information on how PanAgora voted the clients proxies. |
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Disclosure of Client Voting Information
Any client of PanAgora who wishes to receive information on how their proxies were voted should contact its Client Service Manager.
A-6-3
PRIMARY FUNDS, LLC
PROXY VOTING
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A. |
Proxy Voting Policy . |
The Firm instructs each custodian for a Client Account to deliver to the Firm all proxy solicitation materials that the custodian receives for that Client Account. The Firm reviews the securities held in its Client Accounts on a regular basis to confirm that the Firm receives copies of all proxy solicitation materials concerning such securities. The Firm marks each proxy solicitation with the date it is received by the Firm.
After carefully considering proxy solicitation materials and other available facts, the Firm votes all proxies on behalf of Client Accounts, except when it abstains from voting as described below. The CCO or the Lead Analyst make all voting decisions on behalf of a Client Account based solely on the CCOs or Lead Analysts determination of the best interests of that Client Account. The Firm uses reasonable efforts to respond to each proxy solicitation by the deadline for such response.
The CCO may designate an appropriate Employee to be responsible for insuring that all proxy statements are received and that the Firm responds to them in a timely manner.
1. Company Information . If the Firm is considering voting a proxy, it reviews all proxy solicitation materials it receives concerning securities held in a Client Account. The Firm evaluates all such information and may seek additional information from the party soliciting the proxy and independent corroboration of such information when the Firm considers it appropriate and when it is reasonably available.
2. Proxy Voting Policies .
a. The Firm votes FOR a proposal when it believes that the proposal serves the best interests of the Client Account whose proxy is solicited because, on balance, the following factors predominate:
(i) If adopted, the proposal would have a positive economic effect on shareholder value;
(ii) If adopted, the proposal would pose no threat to existing rights of shareholders;
(iii) The dilution, if any, of existing shares that would result from adoption of the proposal is warranted by the benefits of the proposal; and
(iv) If adopted, the proposal would not limit or impair the accountability of management and the board of directors to shareholders.
b. The Firm votes AGAINST a proposal if it believes that, on balance, the following factors predominate:
(i) If adopted, the proposal would have an adverse economic effect on shareholder value;
(ii) If adopted, the proposal would limit the rights of shareholders in a manner or to an extent that is not warranted by the benefits of adoption of the proposal;
A-7-1
(iii) If adopted, the proposal would cause significant dilution of shares that is not warranted by the benefits of the proposal;
(iv) If adopted, the proposal would limit or impair accountability of management or the board of directors to shareholders; or
(v) The proposal is a shareholder initiative that the Firm believes wastes time and resources of the company or reflects the grievance of one individual.
c. The Firm abstains from voting proxies when it believes that it is appropriate. This may occur when the Firm believes that a proposal either (i) holds negative but nonquantifiable implications for shareholder value but may express a legitimate concern or (ii) will not have a material effect on the Firms investment strategy for Client Accounts.
3. Conflicts of Interest . Due to the size and nature of the Firms operations and the Firms limited affiliations in the securities industry, the Firm does not expect that material conflicts of interest will arise between the Firm and a Client Account over proxy voting. The Firm recognizes, however, that such conflicts may arise from time to time, such as, for example, when the Firm or one of its affiliates has a business arrangement that could be affected by the outcome of a proxy vote or has a personal or business relationship with a person seeking appointment or re-appointment as a director of a company. If a material conflict of interest arises, the Firm will vote all proxies in accordance with A.2. The Firm will not place its own interests ahead of the interests of its Client Accounts in voting proxies.
If the Firm determines that the proxy voting policies in A.2 do not adequately address a material conflict of interest related to a proxy, it will provide the affected Client Account with copies of all proxy solicitation materials that the Firm receives with respect to that proxy, notify that Client Account of the actual or potential conflict of interest and of the Firms intended response to the proxy request (which response will be in accordance with the policies set forth in A.2(b), and request that the Client Account consent to the Firms intended response. If the Client Account consents to the Firms intended response or fails to respond to the notice within a reasonable period of time specified in the notice, the Firm will vote the proxy as described in the notice. If the Client Account objects to the intended response, the Firm will vote the proxy as directed by the Client Account.
4. Shareholder Proposals by the Firm . The Firm may submit a shareholder proposal on behalf of an Investment Fund only if permitted by the Investment Funds governing documents or by agreement between the Firm and the Investment Fund and if the Firm believes that the proposal would provide a substantial overall benefit to the Investment Fund. The Firm will submit a shareholder proposal on behalf of any other Client Account only at the request of the Client Account or with that Client Accounts prior written consent. The Firm will vote any shares in a Client Account on behalf of a proposal submitted by the Firm in accordance with A.2, unless otherwise directed by the Client Account.
5. Disclosures to Clients . The Firm includes in Part II of its Form ADV (1) a summary of these policies and procedures relating to proxy voting, (2) an offer to provide a copy of such policies and procedures to clients on request, and (3) information concerning how a client may obtain a report summarizing how the Firm voted proxies on behalf of such client. At the request of a Client Account, the Firm provides that Client Account with a copy of its proxy voting policy and a report summarizing all proxy solicitations the Firm received with respect to that Client Account during the period requested and action taken by the Firm on each such proxy.
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B. |
Non-Discretionary Accounts . |
The Firm currently has one non-discretionary Client Account. Pursuant to the terms of the Investment Advisory Agreement with that client, the Firm has no authority or responsibility to vote any proxy relating to that Client Account. The Firm therefore promptly forwards any proxy solicitation
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materials concerning securities held in that non-discretionary Client Account that the Firm receives to that client.
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C. |
Proxy Voting Records. |
The firm maintains the following records relating to proxy voting policies and procedures;
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a. |
Copies of (i) each proxy statement that the Firm receives regarding securities held in Discretionary Accounts, (ii) a record of each vote the Firm casts with respect to securities in each Discretionary Account, (iii) any document the Firm creates that is material to the Firms decision on voting a proxy or that describes the basis for that decision, (iv) each written request from a Discretionary Account for information about how the Firm votes proxies and (v) the Firms written response to each oral or written request from a Discretionary Account for such information. The Firm may delegate to a third party the duty to receive and keep the records identified in clauses (i) and (ii) of the preceding sentence, if that third party agrees to furnish such records to the Firm promptly on request. The Firm may elect not to keep a copy of a proxy statement if it can obtain such statement electronically via the SECs EDGAR system. |
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A written description of the Firms reasons for deciding to vote a proxy (i) in a manner inconsistent with any general guidelines set forth in this Statement; (ii) when such guidelines call for a case-by-case determination; or (iii) when the Firm has identified a material conflict of interest. |
A-7-3
Tiburon Capital Management, LLC
Proxy Voting Policies and Procedures
(as of March 1, 2011)
General Policy
Tiburon Capital Management, LLC (Tiburon) has adopted written proxy voting policies and procedures (TCM Proxy Policy). The Tiburon Onshore and Offshore Funds and all existing separately managed accounts (the TCM Funds) have delegated proxy voting responsibilities with respect to the TCM Funds and, to Tiburon.
The TCM Proxy Policy is designed and implemented in a manner reasonably expected to ensure that voting and consent rights are exercised prudently and solely in the best economic interests of the TCM Funds and their stakeholders considering all relevant factors and without undue influence from individuals or groups who may have an economic interest in the outcome of a proxy vote. Any conflict between the best economic interests of the TCM Funds and Tiburons interests will be resolved in the TCM Funds favor pursuant to the TCM Proxy Policy.
The TCM Proxy Policy sets forth Tiburons voting guidelines. The guidelines indicate Tiburons willingness to vote with management on matters of a routine administrative nature. Regarding special interest proposals, Tiburon is generally opposed to such proposals if they involve an economic cost to the company or restrict managements freedom to operate in the best interests of its shareholders, impede the liquidity of TCM Funds investments or preclude prospective events that Tiburon reasonably believes to be prospective. Conversely, should proposals hasten or enhance potential returns and/or liquidity, Tiburon is likely to vote in favor.
Tiburon carefully considers all matters which may have a potential major impact on the company, and it will generally vote against management on proposals that have the potential for a major adverse economic impact on the long-term value of the companys shares.
A-8-1
STANDARD & POORS ISSUE CREDIT RATING DEFINITIONS
A Standard & Poors issue credit rating is a current opinion of the creditworthiness of an obligor with respect to a specific financial obligation, a specific class of financial obligations, or a specific financial program (including ratings on medium-term note programs and commercial paper programs). It takes into consideration the creditworthiness of guarantors, insurers, or other forms of credit enhancement on the obligation and takes into account the currency in which the obligation is denominated. The opinion evaluates the obligors capacity and willingness to meet its financial commitments as they come due, and may assess terms, such as collateral security and subordination, which could affect ultimate payment in the event of default. The issue credit rating is not a recommendation to purchase, sell, or hold a financial obligation, inasmuch as it does not comment as to market price or suitability for a particular investor.
Issue credit ratings are based on current information furnished by the obligors or obtained by Standard & Poors from other sources it considers reliable. Standard & Poors does not perform an audit in connection with any credit rating and may, on occasion, rely on unaudited financial information. Credit ratings may be changed, suspended, or withdrawn as a result of changes in, or unavailability of, such information, or based on other circumstances.
Issue credit ratings can be either long term or short term. Short-term ratings are generally assigned to those obligations considered short-term in the relevant market. In the U.S., for example, that means obligations with an original maturity of no more than 365 daysincluding commercial paper. Short-term ratings are also used to indicate the creditworthiness of an obligor with respect to put features on long-term obligations. The result is a dual rating, in which the short-term rating addresses the put feature, in addition to the usual long-term rating. Medium-term notes are assigned long-term ratings.
Long-Term Issue Credit Ratings
Issue credit ratings are based, in varying degrees, on the following considerations:
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Likelihood of paymentcapacity and willingness of the obligor to meet its financial commitment on an obligation in accordance with the terms of the obligation; |
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Nature of and provisions of the obligation; |
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Protection afforded by, and relative position of, the obligation in the event of bankruptcy, reorganization, or other arrangement under the laws of bankruptcy and other laws affecting creditors rights. |
Issue ratings are an assessment of default risk, but may incorporate an assessment of relative seniority or ultimate recovery in the event of default. Junior obligations are typically rated lower than senior obligations, to reflect the lower priority in bankruptcy, as noted above. (Such differentiation may apply when an entity has both senior and subordinated obligations, secured and unsecured obligations, or operating company and holding company obligations.)
AAA
An obligation rated AAA has the highest rating assigned by Standard & Poors. The obligors capacity to meet its financial commitment on the obligation is extremely strong.
AA
An obligation rated AA differs from the highest-rated obligations only to a small degree. The obligors capacity to meet its financial commitment on the obligation is very strong.
B-1
A
An obligation rated A is somewhat more susceptible to the adverse effects of changes in circumstances and economic conditions than obligations in higher-rated categories. However, the obligors capacity to meet its financial commitment on the obligation is still strong.
BBB
An obligation rated BBB exhibits adequate protection parameters. However, adverse economic conditions or changing circumstances are more likely to lead to a weakened capacity of the obligor to meet its financial commitment on the obligation.
BB, B, CCC, CC, and C
Obligations rated BB, B, CCC, CC, and C are regarded as having significant speculative characteristics. BB indicates the least degree of speculation and C the highest. While such obligations will likely have some quality and protective characteristics, these may be outweighed by large uncertainties or major exposures to adverse conditions.
BB
An obligation rated BB is less vulnerable to nonpayment than other speculative issues. However, it faces major ongoing uncertainties or exposure to adverse business, financial, or economic conditions which could lead to the obligors inadequate capacity to meet its financial commitment on the obligation.
B
An obligation rated B is more vulnerable to nonpayment than obligations rated BB, but the obligor currently has the capacity to meet its financial commitment on the obligation. Adverse business, financial, or economic conditions will likely impair the obligors capacity or willingness to meet its financial commitment on the obligation.
CCC
An obligation rated CCC is currently vulnerable to nonpayment, and is dependent upon favorable business, financial, and economic conditions for the obligor to meet its financial commitment on the obligation. In the event of adverse business, financial, or economic conditions, the obligor is not likely to have the capacity to meet its financial commitment on the obligation.
CC
An obligation rated CC is currently highly vulnerable to nonpayment.
C
A C rating is assigned to obligations that are currently highly vulnerable to nonpayment, obligations that have payment arrearages allowed by the terms of the documents, or obligations of an issuer that is the subject of a bankruptcy petition or similar action which have not experienced a payment default. Among others, the C rating may be assigned to subordinated debt, preferred stock or other obligations on which cash payments have been suspended in accordance with the instruments terms or when preferred stock is the subject of a distressed exchange offer, whereby some or all of the issue is either repurchased for an amount of cash or replaced by other instruments having a total value that is less than par.
B-2
D
An obligation rated D is in payment default. The D rating category is used when payments on an obligation are not made on the date due even if the applicable grace period has not expired, unless Standard & Poors believes that such payments will be made during such grace period. The D rating also will be used upon the filing of a bankruptcy petition or the taking of similar action if payments on an obligation are jeopardized. An obligations rating is lowered to D upon completion of a distressed exchange offer, whereby some or all of the issue is either repurchased for an amount of cash or replaced by other instruments having a total value that is less than par.
Plus (+) or minus (-)
The ratings from AA to CCC may be modified by the addition of a plus (+) or minus (-) sign to show relative standing within the major rating categories.
NR
This indicates that no rating has been requested, that there is insufficient information on which to base a rating, or that Standard & Poors does not rate a particular obligation as a matter of policy.
SHORT-TERM ISSUE CREDIT RATINGS
A-1
A short-term obligation rated A-1 is rated in the highest category by Standard & Poors. The obligors capacity to meet its financial commitment on the obligation is strong. Within this category, certain obligations are designated with a plus sign (+). This indicates that the obligors capacity to meet its financial commitment on these obligations is extremely strong.
A-2
A short-term obligation rated A-2 is somewhat more susceptible to the adverse effects of changes in circumstances and economic conditions than obligations in higher rating categories. However, the obligors capacity to meet its financial commitment on the obligation is satisfactory.
A-3
A short-term obligation rated A-3 exhibits adequate protection parameters. However, adverse economic conditions or changing circumstances are more likely to lead to a weakened capacity of the obligor to meet its financial commitment on the obligation.
B
A short-term obligation rated B is regarded as having significant speculative characteristics. Ratings of B-1, B-2, and B-3 may be assigned to indicate finer distinctions within the B category. The obligor currently has the capacity to meet its financial commitment on the obligation; however, it faces major ongoing uncertainties which could lead to the obligors inadequate capacity to meet its financial commitment on the obligation.
B-1. A short-term obligation rated B-1 is regarded as having significant speculative characteristics, but the obligor has a relatively stronger capacity to meet its financial commitments over the short-term compared to other speculative-grade obligors.
B-3
B-2. A short-term obligation rated B-2 is regarded as having significant speculative characteristics, and the obligor has an average speculative-grade capacity to meet its financial commitments over the short-term compared to other speculative-grade obligors.
B-3. A short-term obligation rated B-3 is regarded as having significant speculative characteristics, and the obligor has a relatively weaker capacity to meet its financial commitments over the short-term compared to other speculative-grade obligors.
C
A short-term obligation rated C is currently vulnerable to nonpayment and is dependent upon favorable business, financial, and economic conditions for the obligor to meet its financial commitment on the obligation.
D
A short-term obligation rated D is in payment default. The D rating category is used when payments on an obligation are not made on the date due even if the applicable grace period has not expired, unless Standard & Poors believes that such payments will be made during such grace period. The D rating also will be used upon the filing of a bankruptcy petition or the taking of a similar action if payments on an obligation are jeopardized.
DUAL RATINGS
Standard & Poors assigns dual ratings to all debt issues that have a put option or demand feature as part of their structure. The first rating addresses the likelihood of repayment of principal and interest as due, and the second rating addresses only the demand feature. The long-term rating symbols are used for bonds to denote the long-term maturity and the short-term rating symbols for the put option (for example, AAA/A-1+). With U.S. municipal short-term demand debt, note rating symbols are used with the short-term issue credit rating symbols (for example, SP-1+/A-1+).
MOODYS CREDIT RATING DEFINITIONS
Aaa
Bonds and preferred stock which are rated Aaa are judged to be of the highest quality, with minimal credit risk.
Aa
Bonds and preferred stock which are rated Aa are judged to be of high quality and are subject to very low credit risk.
A
Bonds and preferred stock which are rated A are considered upper-medium grade and are subject to low credit risk.
Baa
Bonds and preferred stock which are rated Baa are subject to moderate credit risk. They are considered medium-grade and as such may possess certain speculative characteristics.
B-4
Ba
Bonds and preferred stock which are rated Ba are judged to have speculative elements and are subject to substantial credit risk.
B
Bonds and preferred stock which are rated B are considered speculative and are subject to high credit risk.
Caa
Bonds and preferred stock which are rated Caa are of poor standing and are subject to very high credit risk.
Ca
Bonds and preferred stock which are rated Ca are highly speculative and are likely in, or very near, default, with some prospect of recovery of principal and interest.
C
Bonds and preferred stock which are rated C are the lowest rated class of bonds/preferred stock and are typically in default, with little prospect for recovery of principal or interest.
B-5
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VAN ECK FUNDS |
STATEMENT OF ADDITIONAL INFORMATION |
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Dated May 1, 2012 |
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VAN ECK CM COMMODITY INDEX FUND |
CLASS A: CMCAX / CLASS I: COMIX / CLASS Y: CMCYX |
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STATEMENT OF ADDITIONAL INFORMATION |
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May 1, 2012 |
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The Trust is an open-end management investment company organized as a business trust under the laws of the Commonwealth of Massachusetts on April 3, 1985.
I NVESTMENT POLICIES AND RISKS
The Fund seeks to achieve its investment objective by investing in instruments that derive their value from the performance of the UBS Bloomberg Constant Maturity Commodity Total Return Index (the CMCI), as described below, and in bonds, debt securities and other fixed income instruments (Fixed Income Instruments) issued by various U.S. public- or private-sector entities. The Fund invests in commodity-linked derivative instruments, including commodity index-linked notes, swap agreements, commodity futures contracts and options on futures contracts that provide economic exposure to the investment returns of the commodities markets, as represented by the CMCI and its constituents. A derivative is an investment whose value depends on (or is derived from) that value of an underlying security. Commodities are assets that have tangible properties, such as oil, metals, and agricultural products. A commodity-linked derivative is a derivative instrument whose value is linked to the movement of a commodity, commodity index, commodity option or futures contract. The value of commodity-linked derivative instruments may be affected by overall market movements and other factors affecting the value of a particular industry or commodity, such as weather, disease, embargoes, or political and regulatory developments.
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rebalanced monthly back to the target weightings of the commodity components of the CMCI and the target weightings of all commodity components are revised twice per year. A more detailed description of the CMCI is contained in the section of this SAI entitled Additional Information About the CMCI.
The Fund will seek to track the returns of the CMCI by entering into swap contracts and commodity index-linked notes with one or more counterparties, which contracts and notes will rise and fall in value in response to changes in the value of the CMCI. As of the date of this SAI, UBS was the only available counterparty with which the Fund may enter into such swap contracts on the CMCI. The Fund may enter into such contracts and notes directly or indirectly through a wholly-owned subsidiary of the Fund (the Subsidiary). Commodity index-linked notes are derivative debt instruments with principal and/or coupon payments linked to the performance of commodity indices (such as the CMCI). These commodity index-linked notes are sometimes referred to as structured notes because the terms of these notes may be structured by the issuer and the purchaser of the note. The Fund may also seek to gain exposure to the individual commodity components of the CMCI by investing in futures contracts that comprise the CMCI, either directly or indirectly through the Subsidiary.
The following is additional information regarding the investment policies and strategies used by the Fund in attempting to achieve its objective, and should be read with the sections of the Funds Prospectus titled Fund Summary Information Principal Investment Strategies, Fund Summary Information Principal Risks and Investment Objective, Strategies, Policies, Risks and Other Information.
Appendix B to this SAI contains an explanation of the rating categories of Moodys Investors Service Inc. (Moodys) and Standard & Poors Corporation (S&P) relating to the fixed-income securities and preferred stocks in which the Fund may invest.
B ELOW INVESTMENT GRADE SECURITIES
These high yield securities are regarded as predominantly speculative with respect to the issuers continuing ability to meet principal and interest payments. Analysis of the creditworthiness of issuers of debt securities that are high yield may be more complex than for issuers of higher quality debt securities.
High yield securities may be more susceptible to real or perceived adverse economic and competitive industry conditions than investment grade securities. The prices of high yield securities have been found to be less sensitive to interest-rate changes than higher-rated investments, but more sensitive to adverse economic downturns or individual corporate developments. A projection of an economic downturn or of a period of rising interest rates, for example, could cause a decline in high yield security prices because the advent of a recession could lessen the ability of a highly leveraged company to make principal and interest payments on its debt securities. If an issuer of high yield securities defaults, in addition to risking payment of all or a portion of interest and principal, the Fund by investing in such securities may incur additional expenses to seek recovery. In the case of high yield securities structured as zero-coupon or pay-in-kind securities, their market prices are affected to a greater extent by interest rate changes, and therefore tend to be more volatile than securities which pay interest periodically and in cash.
The secondary market on which high yield securities are traded may be less liquid than the market for higher grade securities. Less liquidity in the secondary trading market could adversely affect the price at which the Fund could sell a high yield security, and could adversely affect the daily net asset value of the shares. Adverse publicity and investor perceptions, whether or not based on fundamental
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analysis, may decrease the values and liquidity of high yield securities, especially in a thinly-traded market. When secondary markets for high yield securities are less liquid than the market for higher grade securities, it may be more difficult to value the securities because such valuation may require more research, and elements of judgment may play a greater role in the valuation because there is less reliable, objective data available.
Borrowing to invest more is called leverage. The Fund may borrow from banks provided that the amount of borrowing is no more than one third of the net assets of the Fund plus the amount of the borrowings. The Fund is required to be able to restore borrowing to its permitted level within three days, if it should increase to more than one-third as stated above. Methods that may be used to restore borrowings in this context include selling securities, even if the sale hurts the Funds investment performance. Leverage exaggerates the effect of rises or falls in prices of securities bought with borrowed money. Borrowing also costs money, including fees and interest. The Fund expects to borrow only through negotiated loan agreements with commercial banks or other institutional lenders.
The Fund may invest in securities that are convertible into common stock or other securities of the same or a different issuer or into cash within a particular period of time at a specified price or formula. Convertible securities are generally fixed income securities (but may include preferred stock) and generally rank senior to common stocks in a corporations capital structure and, therefore, entail less risk than the corporations common stock. The value of a convertible security is a function of its investment value (its value as if it did not have a conversion privilege), and its conversion value (the securitys worth if it were to be exchanged for the underlying security, at market value, pursuant to its conversion privilege).
To the extent that a convertible securitys investment value is greater than its conversion value, its price will be primarily a reflection of such investment value and its price will be likely to increase when interest rates fall and decrease when interest rates rise, as with a fixed-income security (the credit standing of the issuer and other factors may also have an effect on the convertible securitys value). If the conversion value exceeds the investment value, the price of the convertible security will rise above its investment value and, in addition, will sell at some premium over its conversion value. (This premium represents the price investors are willing to pay for the privilege of purchasing a fixed-income security with a possibility of capital appreciation due to the conversion privilege.) At such times the price of the convertible security will tend to fluctuate directly with the price of the underlying equity security. Convertible securities may be purchased by the Fund at varying price levels above their investment values and/or their conversion values in keeping with the Funds objective.
The Fund may invest in debt securities. The market value of debt securities generally varies in response to changes in interest rates and the financial condition of each issuer and the value of a hard asset if linked to the value of a hard asset. Debt securities with similar maturities may have different yields, depending upon several factors, including the relative financial condition of the issuers. A description of debt securities ratings is contained in Appendix B to the SAI. High grade means a rating of A or better by Moodys or S&P, or of comparable quality in the judgment of the Adviser or if no rating has been given by either service. Many securities of foreign issuers are not rated by these services. Therefore, the selection of such issuers depends to a large extent on the credit analysis performed by the Adviser. During periods of declining interest rates, the value of debt securities generally increases. Conversely, during periods of rising interest rates, the value of such securities generally declines. These changes in market value will be reflected in the Funds net asset value. Debt securities with similar maturities may have different yields, depending upon several factors, including the relative financial
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condition of the issuers. For example, higher yields are generally available from securities in the lower rating categories of S&P or Moodys.
However, the values of lower-rated securities generally fluctuate more than those of high-grade securities. Many securities of foreign issuers are not rated by these services. Therefore the selection of such issuers depends to a large extent on the credit analysis performed by the Adviser.
New issues of certain debt securities are often offered on a when-issued basis. That is, the payment obligation and the interest rate are fixed at the time the buyer enters into the commitment, but delivery and payment for the securities normally take place after the date of the commitment to purchase. The value of when-issued securities may vary prior to and after delivery depending on market conditions and changes in interest rate levels. However, the Fund does not accrue any income on these securities prior to delivery. The Fund will maintain in a segregated account with its Custodian an amount of cash or high quality securities equal (on a daily marked-to-market basis) to the amount of its commitment to purchase the when-issued securities. The Fund may also invest in low rated or unrated debt securities. Low rated debt securities present a significantly greater risk of default than do higher rated securities, in times of poor business or economic conditions, the Fund may lose interest and/or principal on such securities.
The Fund may also invest in various money market securities for cash management purposes or when assuming a temporary defensive position. Money market securities may include commercial paper, bankers acceptances, bank obligations, corporate debt securities, certificates of deposit, U.S. government securities and obligations of savings institutions.
The Fund may also use futures contracts and options, forward contracts and swaps as part of various investment techniques and strategies, such as creating non-speculative synthetic positions (covered by segregation of liquid assets) or implementing cross-hedging strategies. A synthetic position is the duplication of cash market transaction when deemed advantageous by the Adviser for cost, liquidity or transactional efficiency reasons. A cash market transaction is the purchase or sale of the security or other asset for cash. Cross-hedging involves the use of one currency to hedge against the decline in the value of another currency. The use of such instruments as described herein involves several risks. First, there can be no assurance that the prices of such instruments and the hedge security or the cash market position will move as anticipated. If prices do not move as anticipated, the Fund may incur a loss on its investment, may not achieve the hedging protection it anticipated and/or may incur a loss greater than if it had entered into a cash market position. Second, investments in such instruments may reduce the gains which would otherwise be realized from the sale of the underlying securities or assets which are being hedged. Third, positions in such instruments can be closed out only on an exchange that provides a market for those instruments. There can be no assurance that such a market will exist for a particular futures contract or option. If the Fund cannot close out an exchange traded futures contract or option which it holds, it would have to perform its contract obligation or exercise its option to realize any profit and would incur transaction cost on the sale of the underlying assets. In addition, the use of derivative instruments involves the risk that a loss may be sustained as a result of the failure of the counterparty to the derivatives contract to make required payments or otherwise comply with the contracts terms.
When the Fund intends to acquire securities (or gold bullion or coins as the case may be) for its portfolio, it may use call options or futures contracts as a means of fixing the price of the security (or gold) it intends to purchase at the exercise price (in the case of an option) or contract price (in the case of futures contracts). An increase in the acquisition cost would be offset, in whole or part, by a gain on the option or futures contract. Options and futures contracts requiring delivery of a security may also be useful to the Fund in purchasing a large block of securities that would be more difficult to acquire by direct market purchases. If the Fund holds a call option rather than the underlying security itself, the Fund is partially protected from any unexpected decline in the market price of the underlying security and in such event could allow the call option to expire, incurring a loss only to the extent of the premium paid for the
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option. Using a futures contract would not offer such partial protection against market declines and the Fund would experience a loss as if it had owned the underlying security.
The Fund may invest directly in equity securities. Equity securities, such as common stock, represent an ownership interest, or the right to acquire an ownership interest, in an issuer.
Common stock generally takes the form of shares in a corporation. The value of a companys stock may fall as a result of factors directly relating to that company, such as decisions made by its management or lower demand for the companys products or services. A stocks value also may fall because of factors affecting not just the company, but also companies in the same industry or in a number of different industries, such as increases in production costs. The value of a companys stock also may be affected by changes in financial markets that are relatively unrelated to the company or its industry, such as changes in interest rates or currency exchange rates. In addition, a companys stock generally pays dividends only after the company invests in its own business and makes required payments to holders of its bonds, other debt and preferred stock. For this reason, the value of a companys stock will usually react more strongly than its bonds, other debt and preferred stock to actual or perceived changes in the companys financial condition or prospects. Stocks of smaller companies may be more vulnerable to adverse developments than those of larger companies. Stocks of companies that the portfolio manager believes are fast-growing may trade at a higher multiple of current earnings than other stocks. The value of such stocks may be more sensitive to changes in current or expected earnings than the values of other stocks.
Different types of equity securities provide different voting and dividend rights and priority in the event of the bankruptcy and/or insolvency of the issuer. In addition to common stock, equity securities may include preferred stock, convertible securities and warrants, which are discussed elsewhere in the Prospectus and this Statement of Additional Information. Equity securities other than common stock are subject to many of the same risks as common stock, although possibly to different degrees.
F UTURES, WARRANTS AND SUBSCRIPTION RIGHTS
Futures
positions entered into for bona fide hedging purposes, as that term is
defined in the Commodity Exchange Act, are excluded from the 5% limitation. As
the value of the underlying asset fluctuates, either party to the contract is
required to make additional margin payments, known as variation margin, to
cover any additional obligation it may have under the contract. In addition,
cash or high quality securities equal in value to the current value of the
underlying securities less the margin requirement will be segregated, as may be
required, with the Funds custodian to ensure that the Funds position is
unleveraged. This segregated account will be marked-to-market daily to reflect
changes in the value of the underlying futures contract.
Pursuant to a notice of eligibility claiming exclusion from the definition of Commodity Pool Operator filed with the National Futures Association on behalf of the Fund, neither the Trust nor the
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individual Fund is deemed to be a commodity pool operator under the Commodity Exchange Act (CEA), and, accordingly, they are not subject to registration or regulation as such under the CEA.
The use of financial futures contracts and commodity futures contracts, options on such futures contracts and commodities, may reduce the Funds exposure to fluctuations in the prices of portfolio securities and may prevent losses if the prices of such securities decline. Similarly, such investments may protect the Fund against fluctuation in the value of securities in which the Fund is about to invest.
The use of financial futures and commodity futures contracts and options on such futures contracts and commodities as hedging instruments involves several risks. First, there can be no assurance that the prices of the futures contracts or options and the hedged security or the cash market position will move as anticipated. If prices do not move as anticipated, the Fund may incur a loss on its investment, may not achieve the hedging protection anticipated and/or incur a loss greater than if it had entered into a cash market position. Second, investments in options, futures contracts and options on futures contracts may reduce the gains which would otherwise be realized from the sale of the underlying securities or assets which are being hedged. Third, positions in futures contracts and options can be closed out only on an exchange that provides a market for those instruments. There can be no assurances that such a market will exist for a particular futures contract or option. If the Fund cannot close out an exchange traded futures contract or option which it holds, it would have to perform its contractual obligation or exercise its option to realize any profit, and would incur transaction costs on the sale of the underlying assets.
Warrants are instruments that permit, but do not obligate, the holder to subscribe for other securities. Subscription rights are similar to warrants, but normally have a short duration and are distributed directly by the issuer to its shareholders. Warrants and rights are not dividend-paying investments and do not have voting rights like common stock. They also do not represent any rights in the assets of the issuer. As a result, warrants and rights may be considered more speculative than direct equity investments. In addition, the value of warrants and rights do not necessarily change with the value of the underlying securities and may cease to have value if they are not exercised prior to their expiration dates.
Risks Associated With Commodity Futures Contracts. The Fund may engage in transactions in commodity futures contracts. There are several additional risks associated with such transactions which are discussed below:
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Storage . Unlike the financial futures markets, in the commodity futures markets there are costs of physical storage associated with purchasing the underlying commodity. The price of the commodity futures contract will reflect the storage costs of purchasing the physical commodity, including the time value of money invested in the physical commodity. To the extent that the storage costs for an underlying commodity change while the Fund is invested in futures contracts on that commodity, the value of the futures contract may change proportionately. |
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Reinvestment . In the commodity futures markets, producers of the underlying commodity may decide to hedge the price risk of selling the commodity by selling futures contracts today to lock in the price of the commodity at delivery tomorrow. In order to induce speculators to purchase the other side of the same futures contract, the commodity producer generally must sell the futures contract at a lower price than the expected future spot price. Conversely, if most hedgers in the futures market are purchasing futures contracts to hedge against a rise in prices, then |
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speculators will only sell the other side of the futures contract at a higher futures price than the expected future spot price of the commodity. The changing nature of the hedgers and speculators in the commodity markets will influence whether futures prices are above or below the expected future spot price, which can have significant implications for the Fund. If the nature of hedgers and speculators in futures markets has shifted when it is time for the Fund to reinvest the proceeds of a maturing contract in a new futures contract, the Fund might reinvest at higher or lower futures prices, or choose to pursue other investments. |
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Other Economic Factors . The commodities which underlie commodity futures contracts may be subject to additional economic and non-economic variables, such as drought, floods, weather, livestock disease, embargoes, tariffs, and international economic, political and regulatory developments. These factors may have a larger impact on commodity prices and commodity-linked instruments, including futures contracts, than on traditional securities. Certain commodities are also subject to limited pricing flexibility because of supply and demand factors. Others are subject to broad price fluctuations as a result of the volatility of the prices for certain raw materials and the instability of supplies of other materials. These additional variables may create additional investment risks which subject the Funds investments to greater volatility than investments in traditional securities. |
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Combined Positions . The Fund may purchase and write options in any combination. For example, the Fund may purchase a put option and write a call option on the same underlying instrument, in order to construct a combined position whose risk and return characteristics are similar to selling a futures contract. Another possible combined position would involve writing a call option at one strike price and buying a call option at a lower price, in order to reduce the risk of the written call option in the event of a substantial price increase. Because combined options positions involve multiple trades, they result in higher transaction costs and may be more difficult to open and close out. |
I NDEXED SECURITIES AND STRUCTURED NOTES
The Fund may invest in indexed securities, i.e., structured notes securities and index options, whose value is linked to one or more currencies, interest rates, commodities, or financial or commodity indices. An indexed security enables the investor to purchase a note whose coupon and/or principal redemption is linked to the performance of an underlying asset. Indexed securities may be positively or negatively indexed (i.e., their value may increase or decrease if the underlying instrument appreciates). Indexed securities may have return characteristics similar to direct investments in the underlying instrument or to one or more options on the underlying instrument. Indexed securities may be more volatile than the underlying instrument itself, and present many of the same risks as investing in futures and options. Indexed securities are also subject to credit risks associated with the issuer of the security with respect to both principal and interest.
Indexed securities may be publicly traded or may be two-party contracts (such two-party agreements are referred to hereafter collectively as structured notes). When the Fund purchases a structured note, it will make a payment of principal to the counterparty. Some structured notes have a guaranteed repayment of principal while others place a portion (or all) of the principal at risk. The Fund will purchase structured notes only from counterparties rated A or better by S&P, Moodys or another nationally recognized statistical rating organization. The Adviser will monitor the liquidity of structured notes under the supervision of the Board. Notes determined to be illiquid will be aggregated with other illiquid securities and will be subject to the Funds limitations on illiquid securities.
The Fund may write, purchase or sell covered call or put options. An options transaction involves the writer of the option, upon receipt of a premium, giving the right to sell (call option) or buy (put option) an underlying asset at an agreed upon exercise price. The holder of the option has the right to purchase (call option) or sell (put option) the underlying asset at the exercise price. If the option is not exercised or
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sold, it becomes worthless at its expiration date and the premium payment is lost to the option holder. As the writer of an option, the Fund keeps the premium whether or not the option is exercised. When the Fund sells a covered call option, which is a call option with respect to which the Fund owns the underlying assets, the Fund may lose the opportunity to realize appreciation in the market price of the underlying asset, or may have to hold the underlying asset, which might otherwise have been sold to protect against depreciation. A covered put option written by the Fund exposes it during the term of the option to a decline in the price of the underlying asset. A put option sold by the Fund is covered when, among other things, cash or short-term liquid securities are placed in a segregated account to fulfill the obligations undertaken. Covering a put option sold does not reduce the risk of loss.
The Fund may invest in options which are either listed on a domestic securities exchange or traded on a recognized foreign exchange. In addition, the Fund may purchase or sell over-the-counter options for dealers or banks to hedge securities or currencies as approved by the Board. In general, exchange traded options are third party contracts with standardized prices and expiration dates. Over-the-counter options are two party contracts with price and terms negotiated by the buyer and seller, are generally considered illiquid, and will be subject to the limitation on investments in illiquid securities.
I NVESTMENTS IN OTHER INVESTMENT COMPANIES
The Fund may invest in securities issued by other investment companies, including open end and closed end funds and exchanged traded funds (ETFs), subject to the limitations under the 1940 Act. The Fund may invest in investment companies which are sponsored or advised by the Adviser and/or its affiliates (each, a Van Eck Investment Company). However, in no event will the Fund invest more than 5% of its net assets in any single Van Eck Investment Company.
The Funds investment in another investment company may subject the Fund indirectly to the underlying risks of the investment company. The Fund also will bear its share of the underlying investment companys fees and expenses, which are in addition to the Funds own fees and expenses. Shares of closed-end funds and ETFs may trade at prices that reflect a premium above or a discount below the investment companys net asset value, which may be substantial in the case of closed-end funds. If investment company securities are purchased at a premium to net asset value, the premium may not exist when those securities are sold and the Fund could incur a loss.
Preferred stocks may pay fixed or adjustable rates of return. Preferred stock is subject to issuer-specific and market risks applicable generally to equity securities. In addition, a companys preferred stock generally pays dividends only after the company makes required payments to holders of its bonds and other debt. For this reason, the value of preferred stock will usually react more strongly than bonds and other debt to actual or perceived changes in the companys financial condition or prospects. Preferred stock of smaller companies may be more vulnerable to adverse developments than preferred stock of larger companies.
11
R EPURCHASE AND REVERSE REPURCHASE AGREEMENTS
The Fund may enter into repurchase and reverse repurchase agreements. It is the current policy of the Fund not to invest in repurchase or reverse repurchase agreements that do not mature within seven days if any such investment, together with any other illiquid assets held by the Fund, amounts to more than 15% of its net assets.
Repurchase agreements, which may be viewed as a type of secured lending by the Fund, typically involve the acquisition by the Fund of debt securities from a selling financial institution such as a bank, savings and loan association or broker-dealer. The agreement provides that the Fund will sell back to the institution, and that the institution will repurchase, the underlying security serving as collateral at a specified price and at a fixed time in the future, usually not more than seven days from the date of purchase. The collateral will be marked-to-market daily to determine that the value of the collateral, as specified in the agreement, does not decrease below the purchase price plus accrued interest. If such decrease occurs, additional collateral will be requested and, when received, added to the account to maintain full collateralization. The Fund will accrue interest from the institution until the time when the repurchase is to occur. While repurchase agreements involve certain risks not associated with direct investments in debt securities, the Fund will only enter into a repurchase agreement where (i) the underlying securities are of the type which the Funds investment policies would allow it to purchase directly, (ii) the market value of the underlying security, including accrued interest, will be at all times be equal to or exceed the value of the repurchase agreement, and (iii) payment for the underlying securities is made only upon physical delivery or evidence of book-entry transfer to the account of the custodian or a bank acting as agent.
The Fund may also enter into reverse repurchase agreements. Reverse repurchase agreements involve sales by the Fund of portfolio assets concurrently with an agreement by the Fund to repurchase the same assets at a later date at a fixed price. Generally, the effect of such a transaction is that the Fund can recover all or most of the cash invested in the portfolio securities involved during the term of the reverse repurchase agreement, while the Fund will be able to keep the interest income associated with those portfolio securities. Such transactions are advantageous only if the interest cost to the Fund of the reverse repurchase transaction is less than the cost of obtaining the cash otherwise. Opportunities to achieve this advantage may not always be available, and the Fund intends to use the reverse repurchase technique only when it will be advantageous to the Fund.
R ULE 144A AND SECTION 4(2) SECURITIES
The Fund may invest in securities which are subject to restrictions on resale because they have not been registered under the Securities Act of 1933, or which are otherwise not readily marketable.
Rule 144A under the Securities Act of 1933 allows a broader institutional trading market for securities otherwise subject to restriction on resale to the general public. Rule 144A establishes a safe harbor from the registration requirements of the Securities Act of 1933 of resale of certain securities to qualified institutional buyers.
The Adviser will monitor the liquidity of restricted securities in the Funds holdings under the supervision of the Board. In reaching liquidity decisions, the Adviser will consider, among other things, the following factors: (1) the frequency of trades and quotes for the security; (2) the number of dealers wishing to purchase or sell the security and the number of other potential purchasers; (3) dealer
12
undertakings to make a market in the security; and (4) the nature of the security and the nature of the marketplace trades (e.g., the time needed to dispose of the security, the method of soliciting offers and the mechanisms of the transfer).
In addition, commercial paper may be issued in reliance on the private placement exemption from registration afforded by Section 4(2) of the Securities Act of 1933. Such commercial paper is restricted as to disposition under the federal securities laws and, therefore, any resale of such securities must be effected in a transaction exempt from registration under the Securities Act of 1933. Such commercial paper is normally resold to other investors through or with the assistance of the issuer or investment dealers who make a market in such securities, thus providing liquidity.
Securities eligible for resale pursuant to Rule 144A under the Securities Act of 1933 and commercial paper issued in reliance on the Section 4(2) exemption under the 1940 Act may be determined to be liquid in accordance with guidelines established by the Board for purposes of complying with investment restrictions applicable to investments by the Fund in illiquid securities. To the extent such securities are determined to be illiquid, they will be aggregated with other illiquid investments for purposes of the limitation on illiquid investments.
The Fund may lend securities to parties such as broker-dealers or other institutions. Securities lending allows the Fund to retain ownership of the securities loaned and, at the same time, earn additional income. The borrower provides the Fund with collateral in an amount at least equal to the value of the securities loaned. The Fund maintains the ability to obtain the right to vote or consent on proxy proposals involving material events affecting securities loaned. If the borrower defaults on its obligation to return the securities loaned because of insolvency or other reasons, the Fund could experience delays and costs in recovering the securities loaned or in gaining access to the collateral. These delays and costs could be greater for foreign securities. If the Fund is not able to recover the securities loaned, the Fund may sell the collateral and purchase a replacement investment in the market. The value of the collateral could decrease below the value of the replacement investment by the time the replacement investment is purchased. Cash received as collateral through loan transactions will generally be invested in shares of a money market fund. Investing this cash subjects that investment, as well as the securities loaned, to market appreciation or depreciation
Investments in the Subsidiary are expected to provide the Fund with exposure to the commodity markets within the limitations of Subchapter M of the Internal Revenue Code and recent IRS revenue rulings, as discussed below under Taxation. The Subsidiary is a company organized under the laws of the Cayman Islands, and is overseen by its own board of directors. The Fund is the sole shareholder of the Subsidiary, and it is not currently expected that shares of the Subsidiary will be sold or offered to other investors. It is expected that the Subsidiary will invest primarily in commodity-linked derivative instruments, including swap agreements, futures and options on futures. To the extent that the Fund invests in the Subsidiary, the Fund may be subject to the risks associated with those derivative instruments and other securities.
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The Fund may enter into swap agreements. A swap is a derivative in the form of an agreement to exchange the return generated by one instrument for the return generated by another instrument. The payment streams are calculated by reference to a specified index and agreed upon notional amount. The term specified index includes currencies, fixed interest rates, prices, total return on interest rate indices, fixed income indices, stock indices and commodity indices (as well as amounts derived from arithmetic operations on these indices). For example, the Fund may agree to swap the return generated by a fixed income index for the return generated by a second fixed income index. The currency swaps in which the Fund may enter will generally involve an agreement to pay interest streams in one currency based on a specified index in exchange for receiving interest streams denominated in another currency. Such swaps may involve initial and final exchanges that correspond to the agreed upon notional amount. The swaps in which the Fund may engage also include rate caps, floors and collars under which one party pays a single or periodic fixed amount(s) (or premium), and the other party pays periodic amounts based on the movement of a specified index.
Swaps do not involve the delivery of securities, other underlying assets, or principal. Accordingly, the risk of loss with respect to swaps is limited to the net amount of payments that the Fund is contractually obligated to make. If the other party to a swap defaults, the Funds risk of loss consists of the net amount of payments that the Fund is contractually entitled to receive. Currency swaps usually involve the delivery of the entire principal value of one designated currency in exchange for the other designated currency. Therefore, the entire principal value of a currency swap is subject to the risk that the other party to the swap will default on its contractual delivery obligations. If there is a default by the counterparty, the Fund may have contractual remedies pursuant to the agreements related to the transaction. In addition, as of the date of this SAI, UBS was the only available counterparty with which the Fund may enter into swap contracts on the CMCI. Accordingly, this increases the Funds exposure to these counterparty risks.
The use of swaps is a highly specialized activity which involves investment techniques and risks different from those associated with ordinary fund securities transactions. If the Adviser is incorrect in its forecasts of market values, interest rates, and currency exchange rates, the investment performance of the Fund would be less favorable than it would have been if this investment technique were not used. Also, if a counterpartys creditworthiness declines, the value of the swap would likely decline.
The Funds return may not match the return of the CMCI due to, among other factors, the Fund incurring operating expenses, and not being fully invested at all times as a result of cash inflows and cash reserves to meet redemptions.
U .S. GOVERNMENT AND RELATED OBLIGATIONS
U.S. Government obligations include U.S. Treasury obligations and securities issued or guaranteed by various agencies of the U.S. Government or by various instrumentalities which have been established or sponsored by the U.S. Government. U.S. Treasury obligations and securities issued or guaranteed by various agencies of the U.S. Government differ in their interest rates, maturities and time of issuance, as well as with respect to whether they are guaranteed by the U.S. Government. U.S. Government and related obligations may be structured as fixed-, variable- or floating-rate obligations.
While U.S. Treasury obligations are backed by the full faith and credit of the U.S. Government, securities issued or guaranteed by federal agencies and U.S. Government-sponsored instrumentalities may or may not be backed by the full faith and credit of the U.S. Government. These securities may be supported by the ability to borrow from the U.S. Treasury or only by the credit of the issuing agency or instrumentality and, as a result, may be subject to greater credit risk than securities issued or guaranteed by the U.S. Treasury. Obligations of U.S. Government agencies, authorities, instrumentalities and
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15
Component Selection and Target Weights
For a commodity contract to be included in the Index, the following primary and secondary requirements have to be satisfied:
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The primary requirements involve satisfying certain criteria related to the nature of the instrument as well as some technical characteristics including country of origin, trading characteristics, foreign exchange controls, availability and accuracy of contract, price and volume data. |
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The secondary requirements involve satisfying a series of purely financial thresholds based on liquidity, including, among other things, open interest and market volume. Open interest, which reflects positions in contracts that remain open on an overnight or multi-day basis, is used to assess past and future liquidity. Market volume, which reflects the number of contracts traded in a given period of time, indicates immediate interest, and over a period of time provides a usable measure of liquidity. |
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Target Weights |
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The weighting process for the Index is designed to reflect the economic significance and market liquidity of each commodity. The Index sponsors use a two-step approach to determine Target Weights: first, economic indicators (regional Consumer Price Indexes (CPI), Producer Price Indexes (PPI) and Gross Domestic Projects (GDP)), along with liquidity analysis, are used to determine the sector weights (Energy, Agriculture, Industrial Metals, Precious Metals and Livestock); secondly, global consumption data in conjunction with further liquidity analysis is used to calculate the individual component weights. In order to ensure a high level of diversification and avoid unnecessary dilution, the weight of any individual index component is limited to 20% and any commodity with a weight that is lower than 0.60% is excluded from the CMCI. |
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Changes in the Target Weights and/or Index Composition |
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The CMCI Governance Committee (in consultation with the CMCI Advisory Committee) reviews the selection and weightings of the futures contracts in the Index bi-annually, in October and April, or at any special meeting called by the CMCI Advisory Committee. New Target Weights are therefore established on a bi-annual basis during the CMCI Governance Committee meetings, subject to ratification by the Index Sponsors. |
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Tenors of Contracts |
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The Index represents a weighted average of all available CMCI constant maturities (ranging from three months to over three years). The distribution of weights to available tenors (time to maturity) is a function of relative liquidity of the underlying futures contracts. As of February 1, 2012, the average tenor of the futures contracts comprising the Index is approximately 7.7 months. As with most asset classes, the liquidity of commodity futures contracts tends to reduce as time to maturity increases. |
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Rebalancing of the Index Components |
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Due to price movements, the weight of each component in the Index will fluctuate from its Target Weight over time. The weight of each Index component is therefore rebalanced over the final three CMCI Business Days of each month in order to bring each underlying commodity and tenor back to its target. The process is automatic and is implemented via a pre-defined methodology. |
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In addition, twice annually in January and July there is a maintenance period at which time the Target Weights themselves are adjusted according to decisions of the CMCI Governance Committee as ratified by the Index Sponsors. |
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Calculation of the Index |
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The Index is calculated and disseminated by UBS approximately every fifteen seconds (assuming the Index level has changed within such fifteen-second interval) from 8:00 a.m. to 3:00 p.m., New York City time, and a daily closing Index level is published between 4:00 p.m. and 6:00 p.m., New York City |
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time, on each Trading Day. Index information is available via Bloomberg on pages CUBS, CMCN or CMCX and from Reuters on page UBSCMCI. Index information is also available on the Bloomberg website: http://www.bloomberg.com (Select COMMODITIES from the drop-down menu entitled Market Data). For further information on CMCI, investors can go to http://www.usb.com/cmci. Index values can also be found at http://www.ubs.com/keyinvest, choose United States, and then click on the Commodities tab. |
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Total Return |
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The Index is a total return index. In addition to uncollateralized returns generated from the futures contracts comprising the Index, a daily fixed-income return is added, which reflects the interest earned on a hypothetical 91-day Treasury Bill portfolio theoretically deposited as margin for hypothetical positions in the futures contracts comprising the Index. The rate used to calculate the daily fixed-income return is the 91-day U.S. Treasury Bill auction rate, as published by the Treasury Security Auction Results report, published by the Bureau of the Public Debt currently available on the website: http://www.treasurydirect.gov/annceresult/press/press.htm. The rate is generally published once per week on Monday and generally made effective with respect to the Index on the following Trading Day. |
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The following investment restrictions are in addition to those described in the Prospectus. These investment restrictions are fundamental and may be changed with respect to the Fund only with the approval of the holders of a majority of the Funds outstanding voting securities as defined in the 1940 Act. As to any of the following investment restrictions, if a percentage restriction is adhered to at the time of investment, a later increase or decrease in percentage resulting from a change in value of portfolio securities or amount of net assets will not be considered a violation of the investment restriction. In the case of borrowing, however, the Fund will promptly take action to reduce the amount of the Funds borrowings outstanding if, because of changes in the net asset value of the Fund due to market action, the amount of such borrowings exceeds one-third of the value of the Funds net assets. The fundamental investment restrictions are as follows: |
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The Fund may not: |
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Borrow money, except as permitted under the 1940 Act, as amended and as interpreted or modified by regulation from time to time. |
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2. |
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 in the disposition of restricted securities or in connection with its investments in other investment companies. |
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3. |
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 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. |
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Issue senior securities, except as permitted under the 1940 Act, as amended and as interpreted or modified by regulation from time to time. |
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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. |
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6. |
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. |
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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, provided that this restriction does not limit the Funds investments in (i) securities issued or guaranteed by the U.S. government, its agencies or instrumentalities, (ii) securities of other investment companies, and provided further that (iii) to the extent the benchmark index for the Fund is concentrated in a particular industry, the Fund will necessarily be concentrated in that industry. |
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The Fund has adopted policies and procedures governing the disclosure of information regarding the Funds portfolio holdings. They are reasonably designed to prevent selective disclosure of the Funds portfolio holdings to third parties, other than disclosures that are consistent with the best interests of the Funds shareholders. The Board is responsible for overseeing the implementation of these policies and procedures, and will review them annually to ensure their adequacy. |
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These policies and procedures apply to employees of the Funds Adviser, administrator, principal underwriter, and all other service providers to the Fund that, in the ordinary course of their activities, come into possession of information about the Funds portfolio holdings. These policies and procedures are made available to each service provider. |
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The following outlines the policies and procedures adopted by the Fund regarding the disclosure of portfolio related information: |
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Generally, it is the policy of the Fund that no current or potential investor (or their representative), including any Fund shareholder (collectively, Investors), shall be provided information about the Funds portfolio on a preferential basis in advance of the provision of that same information to other investors. |
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Disclosure to Investors: Limited portfolio holdings information for the Fund is available to all investors on the Van Eck website at vaneck.com. Information regarding the Funds top holdings and country and sector weightings, updated as of each month-end, is located on this website. Generally, this information is posted to the website within 30 days of the end of the applicable month. This information generally remains available on the website until new information is posted. The Fund reserves the right to exclude any portion of these portfolio holdings from publication when deemed in the best interest of the Fund, and to discontinue the posting of portfolio holdings information at any time, without prior notice. |
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Best Interest of the Fund: Information regarding the Funds specific security holdings, sector weightings, geographic distribution, issuer allocations and related information (Portfolio-Related Information), shall be disclosed to the public only (i) as required by applicable laws, rules or regulations, (ii) pursuant to the Funds Portfolio-Related Information disclosure policies and procedures, or (iii) otherwise when the disclosure of such information is determined by the Trusts officers to be in the best interest of Fund shareholders. |
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Conflicts of Interest: Should a conflict of interest arise between the Fund and any of the Funds service providers regarding the possible disclosure of Portfolio-Related Information, the Trusts officers shall resolve any conflict of interest in favor of the Funds interest. In the event that an officer of the Fund is unable to resolve such a conflict of interest, the matter shall be referred to the Trusts Audit Committee for resolution. |
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Equality of Dissemination: Shareholders of the Fund shall be treated alike in terms of access to the Funds portfolio holdings. With the exception of certain selective disclosures, noted in the paragraph below, Portfolio-Related Information, with respect to the Fund, shall not be disclosed to any Investor prior to the time the same information is disclosed publicly (e.g., posted on the Funds website). Accordingly, all Investors will have equal access to such information. |
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Selective Disclosure of Portfolio-Related Information in Certain Circumstances: In some instances, it may be appropriate for the Fund to selectively disclose the Funds Portfolio-Related Information (e.g., for due diligence purposes, disclosure to a newly hired adviser or sub-adviser, or disclosure to a rating agency) prior to public dissemination of such information. |
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Conditional Use of Selectively-Disclosed Portfolio-Related Information: To the extent practicable, each of the Trusts officers shall condition the receipt of Portfolio-Related Information upon the receiving partys written agreement to both keep such information confidential and not to trade Fund shares based on this information. |
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Compensation: No person, including officers of the Fund or employees of other service providers or their affiliates, shall receive any compensation in connection with the disclosure of Portfolio-Related Information. Notwithstanding the foregoing, the Fund reserves the right to charge a nominal processing fee, payable to the Fund, to non-shareholders requesting Portfolio Related Information. This fee is designed to offset the Funds costs in disseminating such information. |
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Source of Portfolio Related Information: All Portfolio-Related Information shall be based on information provided by the Funds administrator(s)/accounting agent. |
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The Fund may provide non-public portfolio holdings information to third parties in the normal course of their performance of services to the Fund, including to the Funds auditors; custodian; financial printers; counsel to the Fund or counsel to the Funds independent trustees; regulatory authorities; and securities exchanges and other listing organizations. In addition, the Fund may provide non-public portfolio holdings information to data providers, fund ranking/rating services, and fair valuation services. The entities to which the Fund voluntarily discloses portfolio holdings information are required, either by explicit agreement or by virtue of their respective duties to the Fund, to maintain the confidentiality of the information disclosed. Generally, information that is provided to these parties, in the ordinary course of business, is provided on a quarterly basis, with at least a 30 day lag period. |
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There can be no assurance that the Funds policies and procedures regarding selective disclosure of the Funds portfolio holdings will protect the Fund from potential misuse of that information by individuals or entities to which it is disclosed. |
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The Board shall be responsible for overseeing the implementation of these policies and procedures. These policies and procedures shall be reviewed by the Board on an annual basis for their continuing appropriateness. |
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Additionally, the Fund shall maintain and preserve permanently in an easily accessible place a written copy of these policies and procedures. The Fund shall also maintain and preserve, for a period not less than six years (the first two years in an easily accessible place), all Portfolio-Related Information disclosed to the public. |
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Currently, there are no agreements in effect where non-public information is disclosed or provided to a third party. Should the Fund or Adviser establish such an agreement with another party, the agreement shall bind the party to confidentiality requirements and the duty not to trade on non-public information. |
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The following information supplements and should be read in conjunction with the section in the Prospectus entitled Shareholder Information Management of the Fund. |
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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 acts as adviser or sub-adviser to other mutual funds, ETFs, other pooled investment vehicles and separate accounts. |
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The Adviser serves as investment adviser to the Fund pursuant to the Advisory Agreement between the Trust and the Adviser. The advisory fee is computed daily and paid monthly to the Adviser by the Fund at an annual rate of 0.75% of average daily net assets. Under the Advisory 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. |
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The Fund commenced operations on December 31, 2010. For the fiscal year ended December 31, 2011, the Adviser earned a fee in the amount of $242,624, which amount is equal to 0.75% of the Funds average daily net asset value for such year. During the same period, the Adviser waived or assumed expenses in the amount of $252,105. |
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Pursuant to the Advisory 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. |
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Shares of the Fund are offered on a continuous basis and are distributed through Van Eck Securities Corporation, the Distributor, 335 Madison Avenue, New York, New York, a wholly owned subsidiary of the Adviser. The Trustees of the Trust have approved a Distribution Agreement appointing the Distributor as distributor of shares of the Fund. The Trust has authorized one or more intermediaries (who are authorized to designate other intermediaries) to accept purchase and redemption orders on the Trusts behalf. The Trust will be deemed to have received a purchase or redemption order when the authorized broker or its designee accepts the order. Orders will be priced at the net asset value next computed after they are accepted by the authorized broker or its designee. |
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The Distribution Agreement provides that the Distributor will pay all fees and expenses in connection with printing and distributing prospectuses and reports for use in offering and selling shares of the Fund and preparing, printing and distributing advertising or promotional materials. The Fund will pay all fees and expenses in connection with registering and qualifying their shares under federal and state securities laws. The Distribution Agreement is reviewed and approved annually by the Board. |
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The Distributor retained distributing commissions on sales of shares of the Fund for the past fiscal year, after allowance to dealers are as follows: |
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VAN ECK SECURITIES
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REALLOWANCE
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CM Commodity Index Fund |
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2011 |
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$ |
57,392 |
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$ |
362,915 |
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20
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The Fund (Class A) has adopted a plan pursuant to Rule 12b-1 (a Plan) which provides for the compensation of brokers and dealers who sell shares of the Fund or provide servicing. The Plan is a compensation-type plan with a carry-forward provision, which provide that the Distributor recoup distribution expenses in the event the Plan is terminated. Pursuant to the Plan, the Distributor provides the Fund at least quarterly with a written report of the amounts expended under the Plan and the purpose for which such expenditures were made. The Trustees review such reports on a quarterly basis. |
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The Plan is reapproved annually for the Fund, by the Trustees of the Trust, including a majority of the Trustees who are not interested persons of the Fund and who have no direct or indirect financial interest in the operation of the Plan. |
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The Plan shall continue in effect as to the Fund, provided such continuance is approved annually by a vote of the Trustees in accordance with the 1940 Act. The Plan may not be amended to increase materially the amount to be spent for the services described therein without approval of the shareholders of the Fund, and all material amendments to the Plan must also be approved by the Trustees in the manner described above. The Plan may be terminated at any time, without payment of any penalty, by vote of a majority of the Trustees who are not interested persons of the Fund and who have no direct or indirect financial interest in the operation of the Plan, or by a vote of a majority of the outstanding voting securities of the Fund (as defined in the Act) on written notice to any other party to the Plan. The Plan will automatically terminate in the event of its assignment (as defined in the 1940 Act). So long as the Plan is in effect, the election and nomination of Trustees who are not interested persons of the Trust shall be committed to the discretion of the Trustees who are not interested persons. The Trustees have determined that, in their judgment, there is a reasonable likelihood that the Plan will benefit the Fund and their shareholders. The Fund will preserve copies of the Plan and any agreement or report made pursuant to Rule 12b-1 under the Act, for a period of not less than six years from the date of the Plan or such agreement or report, the first two years in an easily accessible place. For additional information regarding the Plan, see the Prospectus. |
|
|
|
|
The Fund may make payments (either directly or as reimbursement to the Distributor or an affiliate of the Distributor for payments made by the Distributor) to financial intermediaries (such as brokers or third party administrators) for providing the types of services that would typically be provided by the Funds transfer agent, including sub-accounting, sub-transfer agency or similar recordkeeping services, shareholder reporting, shareholder transaction processing, and/or the provision of call center support. These payments will be in lieu of, and may differ from, amounts paid to the Funds transfer agent for providing similar services to other accounts. These payments may be in addition to any amounts the intermediary may receive as compensation for distribution or shareholder servicing pursuant to the Plan or as part of any revenue sharing or similar arrangement with the Distributor or its affiliates, as described elsewhere in the Prospectus. |
|
|
|
|
The Advisers portfolio managers are paid a fixed base salary and a bonus. The bonus is based upon the quality of investment analysis and management of the funds for which they serve as portfolio manager. 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 affiliates manage accounts with incentive fees. |
|
The Advisers portfolio managers may serve as portfolio managers to other clients. Such Other Clients may have investment objectives or may implement investment strategies similar to those of the Fund. When the portfolio managers implement investment strategies for Other Clients that are similar or directly contrary to the positions taken by the Fund, the prices of the Funds securities may be negatively |
21
|
|
|
|
|
|
Name of
|
Category of
|
Other Accounts Managed
|
Accounts with respect to which the advisory
|
||
Number of
|
Total Assets in
|
Number of Accounts |
Total Assets in
|
||
Michael Mazier |
Registered
|
11 |
$1.487 billion |
0 |
$0 |
Other pooled
|
0 |
$0 |
0 |
$0 |
|
Other accounts |
0 |
$0 |
0 |
$0 |
|
|
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. |
|
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. |
|
The portfolio managers may deem it appropriate for one fund or account they manage to sell a security while another fund or account they manage is purchasing the same security. Under such circumstances, the portfolio managers may arrange to have the purchase and sale transactions effected directly between the funds and/or accounts (cross transactions). Cross transactions will be effected in accordance with procedures adopted pursuant to Rule 17a-7 under the 1940 Act. |
|
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. |
22
|
The Adviser may cause the Fund to pay a broker-dealer who furnishes brokerage and/or research services, a commission that is in excess of the commission another broker-dealer would have received for executing the transaction, if it is determined that such commission is reasonable in relation to the value of the brokerage and/or research services as defined in Section 28(e) of the Securities Exchange Act of 1934, as amended, which have been provided. Such research services may include, among other things, analyses and reports concerning issuers, industries, securities, economic factors and trends and portfolio strategy. Any such research and other information provided by brokers to the Adviser is considered to be in addition to and not in lieu of services required to be performed by the Adviser under its Advisory Agreement with the Trust. The research services provided by broker-dealers can be useful to the Adviser in serving its other clients or clients of the Advisers affiliates. The Trustees periodically review the Advisers performance of its responsibilities in connection with the placement of portfolio transactions on behalf of the Fund. The Trustees also review the commissions paid by the Fund over representative periods of time to determine if they are reasonable in relation to the benefits to the Fund. |
|
|
The Fund directed no transactions during the fiscal year ended December 31, 2011 in securities effected on an agency basis through a broker for, among other things, research services, and paid no commissions and concessions related to such transactions. |
|
The table below shows the commissions paid on purchases and sales of portfolio securities by the Fund for the fiscal year ended December 31, none of such amounts are paid to brokers or dealers which furnished daily quotations to the Fund for the purpose of calculating daily per share net asset value and to brokers and dealers which sold shares of the Fund. |
|
|
|
|
|
CM Commodity Index Fund |
|
|
|
|
|
|
2011 |
|
$0 |
|
23
|
|
The Board has determined that the Boards leadership structure is appropriate in light of the characteristics and circumstances of the Trust and each of the Funds in the Fund Complex, including factors such as the number of series or portfolios that comprise the Trust and the Fund Complex, the variety of asset classes those series reflect, the net assets of the Fund, the committee structure of the Trust, and the management, distribution and other service arrangements of the Fund. In connection with its determination, the Board considered that the Board is comprised of only Independent Trustees, and thus the Chairperson of the Board and the Chairperson of each Board committee is an Independent Trustee. In addition, to further align the Independent Trustees interests with those of Fund shareholders, the Board has, among other things, adopted a policy requiring each Independent Trustee to maintain a minimum direct or indirect investment in the Funds. |
|
The Chairperson presides at all meetings of the Board and participates in the preparation of the agenda for such meetings. He also serves as a liaison with management, service providers, officers, attorneys, and the other Independent Trustees generally between meetings. The Chairperson may also perform other such functions as may be delegated by the Board from time to time. The Independent Trustees believe that the Chairpersons independence facilitates meaningful dialogue between the Adviser and the Independent Trustees. Except for any duties specified herein or pursuant to the Trusts charter document, the designation of Chairperson does not impose on such Independent Trustee any duties, obligations or liability that is greater than the duties, obligations or liability imposed on such person as a member of the Board, generally. |
|
|
The Independent Trustees regularly meet outside the presence of management and are advised by independent legal counsel. The Board has determined that its committees help ensure that the Trust has effective and independent governance and oversight. The Board also believes that its leadership structure facilitates the orderly and efficient flow of information to the Independent Trustees from management of the Trust, including the Adviser. |
|
RISK OVERSIGHT |
|
The Fund and the Trust are subject to a number of risks, including investment, compliance, operational, and valuation risks. Day-to-day risk management functions are within the responsibilities of the Adviser, the Distributor and the other service providers (depending on the nature of the risk) that carry out the Funds investment management, distribution and business affairs. Each of the Adviser, the Distributor and the other service providers have their own, independent interests and responsibilities in risk management, and their policies and methods of carrying out risk management functions will depend, in part, on their individual priorities, resources and controls. |
|
|
Risk oversight forms part of the Boards general oversight of the Fund and the Trust and is addressed as part of various activities of the Board and its Committees. As part of its regular oversight of the Fund and Trust, the Board, directly or through a Committee, meets with representatives of various service providers and reviews reports from, among others, the Adviser, the Distributor, the Chief Compliance Officer of the Fund, and the independent registered public accounting firm for the Fund regarding risks faced by the Fund and relevant risk management functions. The Board, with the assistance of management, reviews investment policies and risks in connection with its review of the Funds performance. The Board has appointed a Chief Compliance Officer for the Fund who oversees the implementation and testing of the Funds compliance program and reports to the Board regarding compliance matters for the Fund and its principal service providers. The Chief Compliance Officers designation, removal and compensation must be approved by the Board, including a majority of the Independent Trustees. Material changes to the compliance program are reviewed by and approved by the Board. In addition, as part of the Boards periodic review of the Funds advisory, distribution and other service provider agreements, the Board may consider risk management aspects of their operations and the functions for which they are responsible, including the manner in which such service providers implement and administer their codes of ethics and related policies and procedures. For certain of its service providers, such as the Adviser and Distributor, the Board also reviews business continuity and disaster recovery plans. With respect to valuation, the Board approves and periodically reviews valuation policies and procedures applicable to valuing the Funds shares. The Adviser is responsible for the |
|
24
implementation and day-to-day administration of these valuation policies and procedures and provides reports periodically to the Board regarding these and related matters. In addition, the Board or the Audit Committee of the Board receives reports at least annually from the independent registered public accounting firm for the Fund regarding tests performed by such firm on the valuation of all securities. Reports received from the Adviser and the independent registered public accounting firm assist the Board in performing its oversight function of valuation activities and related risks.
The Board recognizes that not all risks that may affect the Trust can be identified, that it may not be practical or cost-effective to eliminate or mitigate certain risks, that it may be necessary to bear certain risks to achieve the Trusts goals, and that the processes, procedures and controls employed to address certain risks may be limited in their effectiveness. Moreover, reports received by the Trustees that may relate to risk management matters are typically summaries of the relevant information. As a result of the foregoing and other factors, the function of the Board with respect to risk management is one of oversight and not active involvement in, or coordination of, day-to-day-day risk management activities for the Trust. The Board may, at any time and in its discretion, change the manner in which it conducts its risk oversight role.
The Trustees of the Trust, their address, position with the Trust, age and principal occupations during the past five years are set forth below.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
TRUSTEE
S
|
|
|
POSITION(S) HELD
|
|
|
PRINCIPAL
|
|
|
NUMBER OF
|
|
|
OTHER
|
INDEPENDENT TRUSTEES: |
||||||||||||
Jon Lukomnik
|
|
|
Trustee since March 2006 |
|
|
Managing Partner, Sinclair Capital LLC (consulting firm), 2000 to present; Executive Director, Investor Responsibility Research Center Institute, 2008 to present. |
|
|
10 |
|
|
Chairman of the Board of the New York Classical Theatre; formerly Director of The Governance Fund, LLC; formerly Director of Sears Canada, Inc. |
Jane DiRenzo Pigott
|
|
|
Trustee since July 2007; Currently, Chairperson of the Governance Committee |
|
|
Managing Director, R3 Group LLC (consulting firm), 2002 to present. |
|
|
10 |
|
|
Director and Chair of Audit Committee of 3E Company (environmental services); formerly Director of MetLife Investment Funds, Inc. |
Wayne H. Shaner
|
|
|
Trustee since March 2006 |
|
|
Managing Partner, Rockledge Partners LLC, 2003 to present (investment adviser); Public Member of the Investment Committee, Maryland State Retirement System since 1991. |
|
|
10 |
|
|
Director, The Torray Funds (2 portfolios), since 1993 (Chairman of the Board since December 2005). |
|
25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
TRUSTEE
S
|
|
|
POSITION(S) HELD
|
|
|
PRINCIPAL
|
|
|
NUMBER OF
|
|
|
OTHER
|
INDEPENDENT TRUSTEES: |
||||||||||||
R. Alastair Short
|
|
|
Trustee since June 2004; Currently, Vice Chairperson of the Board and Chairperson of the Audit Committee |
|
|
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; Managing Director, The GlenRock Group, LLC (private equity investment firm), May 2004 to September 2007. |
|
|
63 |
|
|
Chairman and Independent Director, EULAV Asset Management; Independent Director, Tremont offshore funds; Director, Kenyon Review; formerly Director of The Medici Archive Project. |
Richard D. Stamberger
|
|
|
Trustee since 1995; Currently, Chairperson of the Board |
|
|
President and CEO, SmartBrief, Inc. (business media company), 1999 to present. |
|
|
63 |
|
|
Director, SmartBrief, Inc. |
Robert L. Stelzl
|
|
|
Trustee since July 2007 |
|
|
Trustee, Joslyn Family Trusts, 2003 to present; President, Rivas Capital, Inc. (real estate property management services company), 2004 to present. |
|
|
10 |
|
|
Lead Independent Director, Brookfield Properties, Inc.; Director and Chairman, Brookfield Residential Properties, Inc. |
|
|
|
|
(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. The Board established a mandatory retirement policy applicable to all Independent Trustees, which provides that Independent Trustees shall resign from the Board on December 31 of the year such Trustee reaches the age of 75. |
|
|
|
|
(3) |
The Fund Complex consists of Van Eck Funds, Van Eck VIP Trust and Market Vectors ETF Trust. |
|
|
|
|
(A) |
Member of the Audit Committee. |
|
|
|
|
(G) |
Member of the Governance Committee. |
Set forth below is additional information relating to the professional experience, attributes and skills of each Trustee relevant to such individuals qualifications to serve as a Trustee:
|
|
|
|
|
Jon Lukomnik has extensive business and financial experience, particularly in the investment management industry. He currently serves as Managing Partner of Sinclair Capital LLC, a consulting firm to the investment management industry and is Executive Director for Investor Responsibility Research Center Institute, a not-for-profit organization that funds research on corporate responsibility and investing. |
|
|
|
Jane DiRenzo Pigott has extensive business and financial experience and serves as Managing Director of R3 Group LLC, a firm specializing in providing leadership, change and diversity/inclusion consulting services. Ms. Pigott has prior experience as an independent trustee of other mutual funds and previously served as chair of the global Environmental Law practice group at Winston & Strawn LLP. |
|
|
|
Wayne Shaner has extensive business and financial experience, particularly in the investment management industry. He currently serves as the Managing Partner of Rockledge Partners LLC, a registered investment adviser and as a Public Member of the Investment Committee of the Maryland State Retirement System. Mr. Shaner also has experience as an independent trustee |
26
|
|
|
|
|
of another mutual funds. |
|
|
|
Alastair Short has extensive business and financial experience, particularly in the investment management industry. He has served as a president, board member or executive officer of various businesses, including asset management and private equity investment firms. Mr. Short also serves as an independent director of an offshore investment company. |
|
|
|
Richard Stamberger has extensive business and financial experience and serves as the president, chief executive officer and board member of SmartBrief Inc., a media company. Mr. Stamberger has experience as a member of the board of directors of numerous not-for-profit organizations and has more than 15 years of experience as a member of the Board of the Trust. |
|
|
|
Robert Stelzl has extensive business and financial experience, particularly in the investment management and real estate industries. He currently serves as a court-appointed trustee for a number of family trusts for which he provides investment management services. |
|
|
|
|
The forgoing information regarding the experience, qualifications, attributes and skills of Trustees is provided pursuant to requirements of the Securities and Exchange Commissions (SEC), and does not constitute holding out of the Board or any Trustee as having any special expertise or experience, and shall not impose any greater responsibility or liability on any such person or on the Board by reason thereof. |
|
|
COMMITTEE STRUCTURE
The Board has established a standing Audit Committee and a standing Governance Committee to assist the Board in the oversight and direction of the business and affairs of the Trust. Each Committee is comprised of all of the members of the Board, all of whom are Independent Trustees.
|
|
Audit Committee . This Committee met two times during 2011. The duties of this Committee include meeting with representatives of the Trusts independent registered public accounting firm to review fees, services, procedures, conclusions and recommendations of independent registered public accounting firms and to discuss the Trusts system of internal controls. Thereafter, the Committee reports to the Board the Committees findings and recommendations concerning internal accounting matters as well as its recommendation for retention or dismissal of the auditing firm. Mr. Short has served as the Chairperson of the Audit Committee since January 1, 2006. Except for any duties specified herein or pursuant to the Trusts charter document, the designation of Chairperson of the Audit Committee does not impose on such Independent Trustee any duties, obligations or liability that is greater than the duties, obligations or liability imposed on such person as a member of the Board, generally. |
|
Governance Committee. This Committee met two times during 2011. The duties of this Committee include consideration of recommendations on nominations for Trustees, review of the composition of the Board, and recommendations of meetings, compensation and similar matters. In addition, on an annual basis, the Governance Committee conducts an evaluation of the performance of the Board and its Committees, including the effectiveness of the Boards Committee structure and the number of Funds on whose Board each Trustee serves. When considering potential nominees for election to the Board and to fill vacancies occurring on the Board, where shareholder approval is not required, and as part of the annual self-evaluation, the Governance Committee reviews the mix of skills and other relevant experiences of the Trustees. Currently, Ms. Pigott serves as the Chairperson of the Governance Committee. |
|
The Independent Trustees shall, when identifying candidates for the position of Independent Trustee, consider candidates recommended by a shareholder of the Fund if such recommendation provides sufficient background information concerning the candidate and evidence that the candidate is willing to serve as an Independent Trustee if selected, and is received in a sufficiently timely manner. Shareholders should address recommendations in writing to the attention of the Governance Committee, c/o the Secretary of the Trust. The Secretary shall retain copies of any shareholder recommendations
27
which meet the foregoing requirements for a period of not more than 12 months following receipt. The Secretary shall have no obligation to acknowledge receipt of any shareholder recommendations.
The executive officers of the Trust, their age and address, the positions they hold with the Trust, their term of office and length of time served and their principal business occupations during the past five years are shown below.
|
|
|
|
|
|
|
|
OFFICERS NAME,
|
POSITION(S) HELD
|
TERM OF OFFICE AND
|
PRINCIPAL OCCUPATIONS
|
Russell G. Brennan, 47 |
Assistant Vice President and Assistant Treasurer |
Since 2008 |
Assistant Vice President of the Adviser, Van Eck Associates Corporation (Since 2008); Manager (Portfolio Administration) of the Adviser (September 2005-October 2008); Officer of other investment companies advised by the Adviser. |
Charles T. Cameron, 53 |
Vice President |
Since 1996 |
Director of Trading (Since 1995) and Portfolio Manager (Since 1997) for the Adviser; Officer of other investment companies advised by the Adviser. |
John Crimmins, 54 |
Vice President, Treasurer, Chief Financial Officer and Principal Accounting Officer |
Since 2009 (Treasurer); since 2012 (Vice President, Chief Financial Officer and Principal Accounting Officer) |
Vice President of Portfolio Administration of the Adviser (Since 2009); Vice President of Van Eck Securities Corporation (VESC) and Van Eck Absolute Return Advisers (VEARA) (Since 2009); Chief Financial, Operating and Compliance Officer, Kern Capital Management LLC (September 1997-February 2009); Officer of other investment companies advised by the Adviser. |
Wu-Kwan Kit, 30 |
Assistant Vice President and Assistant Secretary |
Since 2011 |
Assistant Vice President, Associate General Counsel and Assistant Secretary of the Adviser, VESC and VEARA (Since 2011); Associate, Schulte Roth & Zabel LLP (September 2007-August 2011) |
Susan C. Lashley, 57 |
Vice President |
Since 1998 |
Vice President of the Adviser and VESC; Officer of other investment companies advised by the Adviser. |
Thomas K. Lynch, 55 |
Vice President and Chief Compliance Officer |
Since 2007 |
Chief Compliance Officer of the Adviser and VEARA (Since December 2006) and VESC (Since August 2008); Officer of other investment companies advised by the Adviser. |
Laura I. Martínez, 32 |
Assistant Vice President and Assistant Secretary |
Since 2008 |
Assistant Vice President, Associate General Counsel and Assistant Secretary of the Adviser, VESC and VEARA (Since 2008); Associate, Davis Polk & Wardwell (October 2005-June 2008); Officer of other investment companies advised by the Adviser. |
Joseph J. McBrien, 63 |
Senior Vice President, Secretary and Chief Legal Officer |
Since 2005 |
Senior Vice President, General Counsel and Assistant Secretary of the Adviser, VESC and VEARA (Since December 2005); Director of VESC and VEARA (since October 2010); Officer of other investment companies advised by the Adviser. |
Jonathan R. Simon, 37 |
Vice President and Assistant Secretary |
Since 2006 |
Vice President, Associate General Counsel and Assistant Secretary of the Adviser, VESC and VEARA (Since 2006); Officer of other investment companies advised by the Adviser. |
Bruce J. Smith, 57 |
Senior Vice President |
Since 1985 |
Senior Vice President, Chief Financial Officer, Treasurer and Controller of the Adviser, VESC and VEARA (Since 1997); Director of the Adviser, VESC and VEARA (Since October 2010); Officer of other investment companies advised by the Adviser. |
|
|
|
|
28
|
|
|
|
|
|
|
|
OFFICERS NAME,
|
POSITION(S) HELD
|
TERM OF OFFICE AND
|
PRINCIPAL OCCUPATIONS
|
Jan F. van Eck, 48 |
Chief Executive Officer and President |
Since 2005 (serves as Chief Executive Officer and President since 2010, prior thereto served as Executive Vice President) |
Director and Owner of the Adviser (Since July 1993); Executive Vice President of the Adviser (January 1985 - October 2010); Director (Since November 1985), President (Since October 2010) and Executive Vice President (June 1991 - October 2010) of VESC; Director and President of VEARA; Trustee, President and Chief Executive Officer of Market Vectors ETF Trust; Officer of other investment companies advised by the Adviser. |
|
|
|
|
|
|
|
(1) |
The address for each Executive Officer is 335 Madison Avenue, 19th Floor, New York, NY 10017. |
|
|
||
(2) |
Officers are elected yearly by the Trustees. |
For each Trustee, the dollar range of equity securities beneficially owned by the Trustee in the Fund and in all registered investment companies advised by the Adviser (Family of Investment Companies) that are overseen by the Trustee is shown below.
|
|
|
|
|
|
|
|
|
|
Name of Trustee |
|
Dollar Range of Equity Securities in
|
|
Aggregate Dollar Range of Equity
|
Jon Lukomnik |
|
None |
|
Over $100,000 |
Jane DiRenzo Pigott |
|
None |
|
Over $100,000 |
Wayne Shaner |
|
None |
|
$1 - $10,000 |
R. Alastair Short |
|
None |
|
Over $100,000 |
Richard D. Stamberger |
|
$1 - $10,000 |
|
Over $100,000 |
Robert Stelzl |
|
None |
|
Over $100,000 |
|
|
|
|
|
* Includes shares which may be deemed to be beneficially owned through the Trustee Deferred Compensation Plan.
|
|
As of March 31, 2012, all of the Trustees and Officers as a group owned less than 1% of the Fund and each class of the Fund. |
|
As to each Independent Trustee and his/her 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.
|
|
|
The Trustees are paid for services rendered to the Trust and Van Eck VIP Trust (the Van Eck Trusts), each a registered investment company managed by the Adviser, which are allocated to each series of the Van Eck Trusts based on their average daily net assets. Each Independent Trustee is paid an annual retainer of $50,000, a per meeting fee of $7,500 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 Van Eck Trusts pay the Chairperson of the Board an annual retainer of $20,000, the Chairperson of the Audit Committee an annual retainer of $10,000 and the Chairperson of the Governance Committee an annual retainer of $10,000. The Van Eck Trusts also reimburse 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. |
|
29
The
table below shows the compensation paid to the Trustees for the fiscal year
ended December 31, 2011. Annual Trustee fees may be reviewed periodically and
changed by the Board.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
|
|
Jon
|
|
Jane DiRenzo
|
|
Wayne
|
|
R. Alastair
|
|
Richard D.
|
|
Robert
|
|
||||||
|
Aggregate Compensation from the Van Eck Trusts |
|
$ |
100,000 |
|
$ |
90,000 |
|
$ |
90,000 |
|
$ |
100,000 |
|
$ |
110,000 |
|
$ |
90,000 |
|
|
Aggregate Deferred Compensation from the Van Eck Trusts |
|
$ |
50,000 |
|
$ |
90,000 |
|
$ |
0 |
|
$ |
0 |
|
$ |
27,500 |
|
$ |
45,000 |
|
|
Pension or Retirement Benefits Accrued as Part of the Van Eck Trusts Expenses |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
Estimated Annual Benefits Upon Retirement |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
N/A |
|
|
Total Compensation From the Van Eck Trusts and the Fund Complex (1) Paid to Trustee |
|
$ |
100,000 |
|
$ |
90,000 |
|
$ |
90,000 |
|
$ |
255,875 |
|
$ |
249,750 |
|
$ |
90,000 |
|
|
|
(1) |
The Fund Complex consists of the Van Eck Trusts and Market Vectors ETF Trust. |
|
|
|
|
|
|
|
|
|
CLASS |
|
|
NAME AND ADDRESS OF OWNER |
|
|
PERCENTAGE
|
|
|
|
|
|
|
|||
|
|
|
|
|
|
||
Class A |
|
UBS Wealth Management US
|
|
43.10 |
% |
||
|
|
|
|
|
|
||
Class I |
|
California Institute of
Technology
|
|
64.20 |
% |
||
|
|
|
|
|
|
||
Class I |
|
Domenic J & Molly E Ferrante
Trust
|
|
17.15 |
% |
||
|
|
|
|
|
|
||
Class I |
|
State Street Bank & Trust
TTEE
|
|
8.35 |
% |
||
|
30
|
|
|
|
|
|
|
|
|
|||||||
CLASS |
|
|
NAME AND ADDRESS OF OWNER |
|
|
PERCENTAGE
|
|
|
|
|
|
|
|||
|
|
|
|
|
|
||
Class Y |
|
LPL Financial
|
|
28.10 |
% |
||
|
|
|
|
|
|
||
Class Y |
|
NFS LLC FEBO
|
|
5.28 |
% |
||
|
|
|
|
|
|
|
|
|
FUND |
|
|
NAME AND ADDRESS OF OWNER |
|
|
PERCENTAGE
|
|
|
|
|
|
|
|||
|
|
|
|
|
|
||
CM Commodity Index Fund |
|
California Institute of
Technology
|
|
29.81 |
% |
||
|
|
|
|
|
|
P OTENTIAL CONFLICTS OF INTEREST
P ROXY VOTING POLICIES AND PROCEDURES
The Funds
proxy voting record is 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.
31
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 is available through the Funds website, at vaneck.com, or by writing to 335 Madison Avenue, 19th Floor, New York, New York 10017. The Funds Form N-PX is also available on the SECs website at www.sec.gov.
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. A Personnel member may purchase securities in an IPO or private placement, provided that he or she obtains pre-clearance of the purchase and makes certain representations.
The Fund may invest in securities or futures contracts listed on foreign exchanges which trade on Saturdays or other customary United States national business holidays (i.e., days on which the Fund is not open for business). Consequently, since the Fund will compute its net asset values only Monday through Friday, exclusive of national business holidays, the net asset values of shares of the Fund may be significantly affected on days when an investor has no access to the Fund. The sale of shares will be suspended during any period when the determination of net asset value is suspended, and may be suspended by the Board whenever the Board judges it is in the Funds best interest to do so.
Certificates for shares of the Fund will not be issued.
The Fund may reject a purchase order for any reason, including an exchange purchase, either before or after the purchase.
If you purchase shares through a financial intermediary, different purchase minimums may apply. Van Eck reserves the right to waive the investment minimums under certain circumstances.
Van Eck reserves the right to allow a financial intermediary that has a Class I Agreement with Van Eck to purchase shares for its own omnibus account and for its clients accounts in Class I shares of a Fund on behalf of its eligible clients which are Employer-Sponsored Retirement Plans with plan assets of $3 million or more.
An
investor or the Broker or Agent must notify DST or the Distributor at the time
of purchase whenever a quantity discount or reduced sales charge is applicable
to a purchase. Quantity discounts described above may be modified or terminated
at any time without prior notice.
32
B REAKPOINT LINKAGE RULES FOR DISCOUNTS
The term spouse also includes civil union and common law marriage as defined by the state laws of residence. The term child also includes stepchild. Trust accounts may be linked by trustee if the primary owner or family member is related, by trustee, by grantor and by beneficiary.
The
net asset value per share of the Fund is computed by dividing the value of all
of the Funds securities plus cash and other assets, less liabilities, by the
number of shares outstanding. The net asset value per share is computed as of
the close of the NYSE, usually 4:00 p.m. New York time, Monday through Friday,
exclusive of national business holidays. The Fund will be closed on the
following national business holidays: New Years Day, Martin Luther King Jr.
Day, Presidents Day, Good Friday, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day (or the days on which these holidays are
observed).
Shares of the Fund are sold at the public offering price, which is determined once each day the Fund is open for business and is the net asset value per share.
The net asset values need not be computed on a day in which no orders to purchase, sell or redeem shares of the Fund have been received.
Dividends
paid by the Fund will be calculated in the same manner, at the same time and on
the same day and will be in the same amount, except that the higher
distribution services fee will be borne exclusively by that Class. The Trustees
have determined that currently no conflict of interest exists between the Class
A, Class I and Class Y shares. On an ongoing basis, the Board, pursuant to
their fiduciary duties under the 1940 Act and state laws, will seek to ensure
that no such conflict arises.
The Funds Class A shares are sold at the public offering price, which is determined once each day the Fund is open for business and is the net asset value per share plus a sales charge in accordance with the schedule set forth in the Prospectus.
Set forth below is an example of the computation of the public offering price for a Class A share of the Fund on December 31, 2011, under the then-current maximum sales charge:
|
|
|
|
|
|
|
|
|
CM COMMODITY INDEX
|
|
|||
|
|
|
||||
Net asset value and repurchase price per share on $.001 par value capital shares outstanding |
|
|
$ |
8.16 |
|
|
Maximum sales charge (as described in the Prospectus) |
|
|
$ |
0.50 |
|
|
Maximum offering price per share |
|
|
$ |
8.66 |
|
|
|
|
|
The value of a financial futures or commodity futures contract equals the unrealized gain or loss on the contract that is determined by marking it to the current settlement price for a like contract acquired on the day on which the commodity futures contract is being valued. A settlement price may not be used if the market makes a limit move with respect to a particular commodity. Securities or futures contracts for which market quotations are readily available are valued at market value, which is currently determined using the last reported sale price. If no sales are reported as in the case of most securities traded over-the-counter, securities are valued at the mean of their bid and asked prices at the close of trading on the NYSE. In cases where securities are traded on more than one exchange, the securities are valued on the exchange designated by or under the authority of the Board as the primary market. Short-term investments having a maturity of 60 days or less are valued at amortized cost, which
33
approximates market. Options are valued at the last sales price unless the last sales price does not fall within the bid and ask prices at the close of the market, at which time the mean of the bid and ask prices is used. All other securities are valued at their fair value as determined in good faith by the Trustees. Foreign securities or futures contracts quoted in foreign currencies are valued at appropriately translated foreign market closing prices or as the Board may prescribe.
Generally, trading in foreign securities and futures contracts, as well as corporate bonds, United States Government securities and money market instruments, is substantially completed each day at various times prior to the close of the NYSE. The values of such securities used in determining the net asset value of the shares of the Fund may be computed as of such times. Foreign currency exchange rates are also generally determined prior to the close of the NYSE. Occasionally, events affecting the value of such securities and such exchange rates may occur between such times and the close of the NYSE which will not be reflected in the computation of the Funds net asset values. If events materially affecting the value of such securities occur during such period, then these securities may be valued at their fair value as determined in good faith by the Board.
The Funds investments are generally valued based on market quotations. When market quotations are not readily available for a portfolio security, the Fund must use the securitys fair value as determined in good faith in accordance with the Funds Fair Value Pricing Procedures, which are approved by the Board. As a general principle, the current fair value of a security is the amount which the Fund might reasonably expect to receive for the security upon its current sale. The Funds Pricing Committee, whose members are selected by the senior management of the Adviser, is responsible for recommending fair value procedures to the Board and for administering the process used to arrive at fair value prices. Factors that may cause the Fund to use the fair value of a portfolio security to calculate the Funds NAV include, but are not limited to: (1) market quotations are not readily available because a portfolio security is not traded in a public market or the principal market in which the security trades is closed, (2) trading in a portfolio security is limited or suspended and not resumed prior to the time at which the Fund calculates its NAV, (3) the market for the relevant security is thin, or stale because its price doesnt change in 5 consecutive business days, (4) the Investment Adviser determines that a market quotation is inaccurate, for example, because price movements are highly volatile and cannot be verified by a reliable alternative pricing source, or (5) where a significant event affecting the value of a portfolio security is determined to have occurred between the time of the market quotation provided for a portfolio security and the time at which the Fund calculates its NAV.
In determining the fair value of securities, the Pricing Committee will consider, among other factors, the fundamental analytical data relating to the security, the nature and duration of any restrictions on disposition of the security, and the forces influencing the market in which the security is traded.
Foreign securities in which the Fund invest may be traded in markets that close before the time that the Fund calculates its NAV. Foreign securities are normally priced based upon the market quotation of such securities as of the close of their respective principal markets, as adjusted to reflect the Investment Advisers determination of the impact of events, such as a significant movement in the U.S. markets occurring subsequent to the close of such markets but prior to the time at which the Fund calculates its NAV. In such cases, the Pricing Committee will apply a fair valuation formula to all foreign securities based on the Committees determination of the effect of the U.S. significant event with respect to each local market.
The Board authorized the Adviser to retain an outside pricing service to value certain portfolio securities. The pricing service uses an automated system incorporating a model based on multiple parameters, including a securitys local closing price (in the case of foreign securities), relevant general and sector indices, currency fluctuations, and trading in depositary receipts and futures, if applicable, and/or research evaluations by its staff, in determining what it believes is the fair valuation of the portfolio securities valued by such pricing service.
There can be no assurance that the Fund could purchase or sell a portfolio security at the price used to calculate the Funds NAV. Because of the inherent uncertainty in fair valuations, and the various
34
factors considered in determining value pursuant to the Funds fair value procedures, there can be significant deviations between a fair value price at which a portfolio security is being carried and the price at which it is purchased or sold. Furthermore, changes in the fair valuation of portfolio securities may be less frequent, and of greater magnitude, than changes in the price of portfolio securities valued by an independent pricing service, or based on market quotations.
Shareholders of the Fund may exchange their shares for shares of the same class of other funds in the Trust. The Exchange Privilege will not be available if the proceeds from a redemption of shares of the Fund whose shares qualify are paid directly to the shareholder. The Exchange Privilege is not available for shares which are not on deposit with DST or State Street Bank and Trust Company (SSBT), or shares which are held in escrow pursuant to a Letter of Intent. If certificates representing shares of the Fund accompany a written exchange request, such shares will be deposited into an account with the same registration as the certificates upon receipt by DST.
The Fund reserves the right to (i) charge a fee of not more than $5.00 per exchange payable to the Fund or charge a fee reasonably intended to cover the costs incurred in connection with the exchange; (ii) establish a limit on the number and amount of exchanges made pursuant to the Exchange Privilege, as disclosed in the Prospectus and (iii) terminate the Exchange Privilege without written notice. In the event of such termination, shareholders who have acquired their shares pursuant to the Exchange Privilege will be afforded the opportunity to re-exchange such shares for shares of the Fund originally purchased without sales charge, for a period of not less than three (3) months.
By exercising the Exchange Privilege, each shareholder whose shares are subject to the Exchange Privilege will be deemed to have agreed to indemnify and hold harmless the Trust and each of its series, their Adviser, sub-investment adviser (if any), distributor, transfer agent, SSBT and the officers, directors, employees and agents thereof against any liability, damage, claim or loss, including reasonable costs and attorneys fees, resulting from acceptance of, or acting or failure to act upon, or acceptance of unauthorized instructions or non-authentic telephone instructions given in connection with, the Exchange Privilege, so long as reasonable procedures are employed to confirm the authenticity of such communications. (For more information on the Exchange Privilege, see the Prospectus).
Eligible
shareholders may convert their shares from one class to another class within
the same Fund, without any conversion fee, upon request by such shareholders or
their financial intermediaries. For federal income tax purposes, a same-fund
conversion from one class to another is not expected to result in the
realization by the shareholder of a capital gain or loss (non-taxable
conversion). Generally, Class C shares subject to a contingent deferred
redemption charge (CDRC) and Class A shares purchased after April 30, 2012
subject to a contingent deferred sales charge (CDSC) are not eligible for
conversion until the applicable CDRC or CDSC period has expired. Not all share
classes are available through all financial intermediaries or all their account
types or programs. To determine whether you are eligible to invest in a
specific class of shares, see the section of the Prospectus entitled
Shareholder Information - How to Choose a Class of Shares and contact your
financial intermediary for additional information.
DIVIDEND REINVESTMENT PLAN. Reinvestments of dividends of the Fund will occur on a date selected by the Board.
AUTOMATIC
EXCHANGE PLAN. Investors may arrange under the Automatic Exchange Plan to have
DST collect a specified amount once a month or quarter from the investors
account in the Fund and purchase full and fractional shares of another Fund in
the same class at the public offering price next
35
computed after receipt of the proceeds. Further details of the Automatic Exchange Plan are given in the application which is available from DST or the Fund.
An investor should realize that he is investing his funds in securities subject to market fluctuations, and accordingly the Automatic Exchange Plan does not assure a profit or protect against depreciation in declining markets. The Automatic Exchange Plan contemplates the systematic purchase of securities at regular intervals regardless of price levels.
The expenses of the Automatic Exchange Plan are general expenses of the Fund and will not involve any direct charge to the participating shareholder. The Automatic Exchange Plan is completely voluntary and may be terminated on fifteen days notice to DST.
LETTER
OF INTENT (LOI or Letter). For LOIs, out of an initial purchase (or
subsequent purchases if necessary), 5% of the specified dollar amount of an LOI
will be held in escrow by DST in a shareholders account until the
shareholders total purchases of the Funds (except the Money Fund) pursuant to
the LOI plus a shareholders accumulation credit (if any) equal the amount
specified in the Letter. A purchase not originally made pursuant to an LOI may
be included under a backdated Letter executed within 90 days of such purchase (accumulation
credit). If total purchases pursuant to the Letter plus any accumulation credit
are less than the specified amount of the Letter, the shareholder must remit to
the Distributor an amount equal to the difference in the dollar amount of sales
charge the shareholder actually paid and the amount of sales charge which the
shareholder would have paid on the aggregate purchases if the total of such
purchases had been made at a single time. If the shareholder does not within 20
business days after written request by the dealer or bank or by the Distributor
pay such difference in sales charge, DST, upon instructions from the
Distributor, is authorized to cause to be repurchased (liquidated) an
appropriate number of the escrowed shares in order to realize such difference.
A shareholder irrevocably constitutes and appoints DST, as escrow agent, to
surrender for repurchase any or all escrowed shares with full power of
substitution in the premises and agree to the terms and conditions set forth in
the Prospectus and SAI. A LOI is not effective until it is accepted by the
Distributor.
AUTOMATIC INVESTMENT PLAN. Investors may arrange under the Automatic Investment Plan to have DST collect a specified amount once a month or quarter from the investors checking account and purchase full and fractional shares of the Fund at the public offering price next computed after receipt of the proceeds. Further details of the Automatic Investment Plan are given in the application which is available from DST or the Fund.
An investor should realize that he is investing his funds in securities subject to market fluctuations, and accordingly the Automatic Investment Plan does not assure a profit or protect against depreciation in declining markets. The Automatic Investment Plan contemplates the systematic purchase of securities at regular intervals regardless of price levels.
The expenses of the Automatic Investment Plan are general expenses of the Fund and will not involve any direct charge to the participating shareholder. The Automatic Investment Plan is completely voluntary. The Automatic Investment Plan may be terminated on thirty days notice to DST.
AUTOMATIC WITHDRAWAL PLAN. The Automatic Withdrawal Plan is designed to provide a convenient method of receiving fixed redemption proceeds at regular intervals from shares of the Fund deposited by the investor under this Plan. Further details of the Automatic Withdrawal Plan are given in the application, which is available from DST or the Fund.
In order to open an Automatic Withdrawal Plan, the investor must complete the Application and deposit or purchase for deposit, with DST, the agent for the Automatic Withdrawal Plan, shares of the Fund having a total value of not less than $10,000 based on the offering price on the date the Application is accepted, except for automatic withdrawals for the purpose of retirement account distributions.
36
Income dividends and capital gains distributions on shares under an Automatic Withdrawal Plan will be credited to the investors Automatic Withdrawal Plan account in full and fractional shares at the net asset value in effect on the reinvestment date.
Periodic checks for a specified amount will be sent to the investor, or any person designated by him, monthly or quarterly (January, April, July and October). The Fund will bear the cost of administering the Automatic Withdrawal Plan.
Redemption of shares of the Fund deposited under the Automatic Withdrawal Plan may deplete or possibly use up the initial investment plus income dividends and distributions reinvested, particularly in the event of a market decline. In addition, the amounts received by an investor cannot be considered an actual yield or income on his investment, since part of such payments may be a return of his capital. The redemption of shares under the Automatic Withdrawal Plan may give rise to a taxable event.
The maintenance of an Automatic Withdrawal Plan concurrently with purchases of additional shares of the Fund would be disadvantageous because of the sales charge payable with respect to such purchases. An investor may not have an Automatic Withdrawal Plan in effect and at the same time have in effect an Automatic Investment Plan or an Automatic Exchange Plan. If an investor has an Automatic Investment Plan or an Automatic Exchange Plan, such service must be terminated before an Automatic Withdrawal Plan may take effect.
The Automatic Withdrawal Plan may be terminated at any time (1) on 30 days notice to DST or from DST to the investor, (2) upon receipt by DST of appropriate evidence of the investors death or (3) when all shares under the Automatic Withdrawal Plan have been redeemed. Upon termination, unless otherwise requested, certificates representing remaining full shares, if any, will be delivered to the investor or his duly appointed legal representatives.
S HARES PURCHASED BY NON-U.S. FINANCIAL INSTITUTIONS
Class A shares of the Fund which are sold with a sales charge may be purchased by a foreign bank or other foreign fiduciary account, with an international selling agreement, for the benefit of foreign investors at the sales charge applicable to the Funds $500,000 breakpoint level, in lieu of the sales charge in the above scale. The Distributor has entered into arrangements with foreign financial institutions pursuant to which such institutions may be compensated by the Distributor from its own resources for assistance in distributing Fund shares. Clients of Netherlands insurance companies who are not U.S. citizens or residents may purchase shares without a sales charge. Clients of fee-only advisors that purchase shares through a foreign bank or other foreign fiduciary account for the benefit of foreign investors may purchase shares without a sales charge.
The
following summary outlines certain federal income tax considerations relating
to an investment in the Fund by a taxable U.S. investor (as defined below).
This summary is intended only to provide general information to U.S. investors
that hold the shares as a capital asset, is not intended as a substitute for
careful tax planning, does not address any foreign, state or local tax
consequences of an investment in the Fund, and does not address the tax
considerations that may be relevant to investors subject to special treatment
under the Code. This summary should not be construed as legal or tax advice.
This summary is based on the provisions of the Code, applicable U.S. Treasury
regulations, administrative pronouncements of the Internal Revenue Service and
judicial decisions in effect as of March 2012. Those authorities may be
changed, possibly retroactively, or may be subject to differing interpretations
so as to result in U.S. federal income tax consequences different from those
summarized herein. Prospective investors should consult their own tax advisors
concerning the potential federal, state, local and foreign tax consequences of
an investment in the Fund, with specific reference to their own tax situation.
37
As used herein, the term U.S. investor means an investor that, for U.S. federal income tax purposes, is (1) an individual who is a citizen or resident of the U.S., (2) a corporation, or other entity taxable as a corporation, that is created or organized in or under the laws of the U.S. or of any political subdivision thereof, (3) an estate, the income of which is subject to U.S. federal income tax regardless of its source, or (4) a trust if (i) it is subject to the primary supervision of a court within the U.S. and one or more U.S. persons as described in Code Section 7701(a)(30) have the authority to control all substantial decisions of the trust or (ii) it has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person. If a partnership or other entity treated as a partnership holds the shares, the tax treatment of a partner in such partnership or equity owner in such other entity generally will depend on the status of the partner or equity owner and the activities of the partnership or other entity.
TAXATION OF THE FUND IN GENERAL
The Fund intends to operate in a manner that will permit it to qualify each taxable year for taxation as a regulated investment company under Subchapter M of the Code. To so qualify, the Fund must, among other things, (a) derive at least 90% of its gross income from dividends, interest, payments with respect to securities loans, gains from the sale or other disposition of stock, securities or foreign currencies, or other income (including gains from options, futures or forward contracts) derived with respect to its business of investing in such stock, securities or currencies; and (b) satisfy certain diversification requirements.
As a regulated investment company, the Fund will not be subject to federal income tax on its net investment income and capital gain net income (net long-term capital gains in excess of net short-term capital losses) that it distributes to shareholders if at least 90% of its net investment company taxable income for the taxable year is distributed. However, if for any taxable year the Fund does not satisfy the requirements of Subchapter M of the Code, all of its taxable income will be subject to tax at regular corporate income tax rates without any deduction for distribution to shareholders, and such distributions will be taxable to shareholders as dividend income to the extent of the Funds current or accumulated earnings or profits.
The Fund will be liable for a nondeductible 4% excise tax on amounts not distributed on a timely basis in accordance with a calendar year distribution requirement. To avoid the tax, during each calendar year the Fund must distribute, or be deemed to have distributed, (i) at least 98% of its ordinary income (not taking into account any capital gains or losses) for the calendar year, (ii) at least 98.2% of its capital gains in excess of its capital losses (adjusted for certain ordinary losses) for the twelve month period ending on October 31 (or December 31, if the Fund so elects), and (iii) all ordinary income and capital gains for previous years that were not distributed during such years. For this purpose, any income or gain retained by the Fund that is subject to corporate tax will be considered to have been distributed by year-end. The Fund intends to make sufficient distributions to avoid this 4% excise tax.
TAXATION OF THE FUNDS INVESTMENTS
ORIGINAL ISSUE DISCOUNT AND MARKET DISCOUNT. For federal income tax purposes, debt securities purchased by the Fund may be treated as having original issue discount. Original issue discount represents interest for federal income tax purposes and can generally be defined as the excess of the stated redemption price at maturity of a debt obligation over the issue price. Original issue discount is treated for federal income tax purposes as income earned by the Fund, whether or not any income is actually received, and therefore is subject to the distribution requirements of the Code. Generally, the amount of original issue discount included in the income of the Fund each year is determined on the basis of a constant yield to maturity which takes into account the compounding of accrued interest. Because the Fund must include original issue discount in income, it will be more difficult for the Fund to make the distributions required for it to maintain its status as a regulated investment company under Subchapter M of the Code or to avoid the 4% excise tax described above.
38
Debt
securities may be purchased by the Fund at a discount which exceeds the
original issue discount remaining on the securities, if any, at the time the
Fund purchased the securities. This additional discount represents market
discount for federal income tax purposes. In the case of any debt security
issued after July 18, 1984, having a fixed maturity date of more than one year
from the date of issue and having market discount, the gain realized on disposition
will be treated as interest to the extent it does not exceed the accrued market
discount on the security (unless the Fund elect to include such accrued market
discount in income in the tax years to which it is attributable). Generally,
market discount is accrued on a daily basis. The Fund may be required to
capitalize, rather than deduct currently, part or all of any direct interest
expense incurred or continued to purchase or carry any debt security having
market discount, unless it makes the election to include market discount
currently.
Options and Futures Transactions. Certain of the Funds investments may be subject to provisions of the Code that (i) require inclusion of unrealized gains or losses in the Funds income for purposes of the 90% test, the excise tax and the distribution requirements applicable to regulated investment companies, (ii) defer recognition of realized losses, and (iii) characterize both realized and unrealized gain or loss as short-term or long-term gain or loss. Such provisions generally apply to options and futures contracts. The extent to which the Fund makes such investments may be materially limited by these provisions of the Code.
Foreign Currency Transactions. Under Section 988 of the Code, special rules are provided for certain foreign currency transactions. Foreign currency gains or losses from foreign currency contracts (whether or not traded in the interbank market), from futures contracts on foreign currencies that are not regulated futures contracts, and from unlisted or equity options are treated as ordinary income or loss under Section 988. The Fund may elect to have foreign currency-related regulated futures contracts and listed non-equity options be subject to ordinary income or loss treatment under Section 988. In addition, in certain circumstances, the Fund may elect capital gain or loss treatment for foreign currency transactions. The rules under Section 988 may also affect the timing of income recognized by the Fund. Under future Treasury Regulations, any such transactions that are not directly related to a Funds investment in stock or securities (or its options contracts or futures contracts with respect to stock or securities) may have to be limited in order to enable the Fund to satisfy the qualifying income test described above.
Commodity-Linked
Derivatives and Subsidiary.
As described in the Prospectus, the Fund may gain
exposure to the commodities markets through investments in commodity
index-linked derivative instruments. In Revenue Ruling 2006-1, the IRS
concluded that income derived from commodity index-linked derivative contracts
is not qualifying income for purposes of the regulated investment company
income test described above. As such, the Funds ability to utilize commodity
index-linked swaps as part of its investment strategy is limited to a maximum
of 10 percent of its gross income.
In a subsequent revenue ruling, Revenue Ruling 2006-31, the IRS clarified the holding of Revenue Ruling 2006-1 by providing that income from certain investment instruments (such as certain commodity index-linked notes) that create commodity exposure may be considered qualifying income under the Internal Revenue Code. The Fund has received a private letter ruling from the IRS that concludes that certain commodity index-linked notes held by the Fund will produce qualifying income for purposes of the regulated investment company qualification tests. Based on this ruling, the Fund will continue to seek to gain exposure to the commodity markets primarily through investments in commodity index-linked notes and through investments in the Subsidiary (as discussed below).
The
Fund intends to invest a portion of its assets in the Subsidiary, which will be
classified as a corporation for U.S. federal income tax purposes. The Fund has
also received a private letter ruling from the IRS that concludes that income
from the Funds investment in a subsidiary that are structured substantially
similarly to the Subsidiary will constitute qualifying income for purposes of
Subchapter M of the Internal Revenue Code. However, the IRS has announced an
internal review of its position with respect to the tax treatment of a
regulated investment company subsidiary that invests in commodities or
commodity-related investments, and a moratorium on the issuance of new private
letter rulings with
39
respect to them. While the Funds private
letter ruling remains in effect, it is possible that a change in the IRSs
position with respect to the Subsidiary could cause the IRS to withdraw this
private letter ruling.
A foreign corporation, such as the Subsidiary, will generally not be subject to U.S. federal income taxation unless it is deemed to be engaged in a U.S. trade or business. It is expected that the Subsidiary will conduct its activities in a manner so as to meet the requirements of a safe harbor under Section 864(b)(2) of the Internal Revenue Code under which the Subsidiary may engage in trading in stocks or securities or certain commodities without being deemed to be engaged in a U.S. trade or business. However, if certain of the Subsidiarys activities were determined not to be of the type described in the safe harbor (which is not expected), then the activities of such Subsidiary may constitute a U.S. trade or business, or be taxed as such.
In general, foreign corporations, such as the Subsidiary, that do not conduct a U.S. trade or business are nonetheless subject to tax at a flat rate of 30 percent (or lower tax treaty rate), generally payable through withholding, on the gross amount of certain U.S.-source income that is not effectively connected with a U.S. trade or business. There is presently no tax treaty in force between the U.S. and the Cayman Islands that would reduce this rate of withholding tax. It is not expected that the Subsidiary will derive income subject to such withholding tax.
The Subsidiary will be treated as a controlled foreign corporation (CFC). The Fund will be treated as a U.S. shareholder of the Subsidiary. As a result, the Fund will be required to include in gross income for U.S. federal income tax purposes all of the Subsidiarys subpart F income, whether or not such income is distributed by the Subsidiary. It is expected that all of the Subsidiarys income will be subpart F income. The Funds recognition of the Subsidiarys subpart F income will increase the Funds tax basis in the Subsidiary. Distributions by the Subsidiary to the Fund will be tax-free, to the extent of its previously undistributed subpart F income, and will correspondingly reduce the Funds tax basis in the Subsidiary. Subpart F income is generally treated as ordinary income, regardless of the character of the Subsidiarys underlying income. If a net loss is realized by the Subsidiary, such loss is not generally available to offset the income earned by the Subsidiarys parent Fund.
TAXATION OF THE SHAREHOLDERS
Dividends
of net investment income and the excess of net short-term capital gain over net
long-term capital loss are generally taxable as ordinary income to
shareholders. However, for taxable years beginning before January 1, 2013, a
portion of the dividend income received by the Fund may constitute qualified
dividend income eligible for a maximum rate of tax of 15% to individuals,
trusts and estates. If the aggregate amount of qualified dividend income
received by the Fund during any taxable year is less than 95% of the Funds
gross income (as specifically defined for that purpose), the qualified dividend
rule applies only if and to the extent reported by the Fund as qualified
dividend income. The Fund may report such dividends as qualified dividend
income only to the extent the Fund itself has qualified dividend income for the
taxable year with respect to which such dividends are made. Qualified dividend
income is generally dividend income from taxable domestic corporations and
certain foreign corporations (e.g., foreign corporations incorporated in a
possession of the United States or in certain countries with comprehensive tax
treaties with the United States, or the stock of which is readily tradable on
an established securities market in the United States), provided the Fund has
held the stock in such corporations for more than 60 days during the 121 day
period beginning on the date which is 60 days before the date on which such
stock becomes ex-dividend with respect to such dividend (the holding period
requirement). In order to be eligible for the 15% maximum rate on dividends
from the Fund attributable to qualified dividends, shareholders must separately
satisfy the holding period requirement with respect to their Fund shares.
Distributions of net capital gain (the excess of net long-term capital gain
over net short-term capital loss) that are properly reported by the Fund as
such are taxable to shareholders as long-term capital gain, regardless of the
length of time the shares of the Fund have been held by such shareholders,
except to the extent of gain from a sale or disposition of collectibles, such
as precious metals, taxable currently at a 28% rate. Any loss realized upon a
taxable disposition of shares within a year from the date of their purchase
will be treated as a long-term capital loss to the extent of any long-term
capital gain distributions received by shareholders during such period.
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Dividends of net investment income and distributions of net capital gain will be taxable as described above whether received in cash or reinvested in additional shares. When distributions are received in the form of shares issued by the Fund, the amount of the dividend/distribution deemed to have been received by participating shareholders generally is the amount of cash which would otherwise have been received. In such case, participating shareholders will have a basis for federal income tax purposes in each share received from the Fund equal to such amount of cash.
Dividends and/or distributions by the Fund result in a reduction in the net asset value of the Funds shares. Should a dividend/distribution reduce the net asset value below a shareholders cost basis, such dividend/distribution nevertheless would be taxable to the shareholder as ordinary income or long-term capital gain as described above, even though, from an investment standpoint, it may constitute a partial return of capital. In particular, investors should be careful to consider the tax implications of buying shares just prior to a dividend/distribution. The price of shares purchased at that time includes the amount of any forthcoming dividend/distribution. Those investors purchasing shares just prior to a dividend/distribution will then receive a return of their investment upon payment of such dividend/distribution which will nevertheless be taxable to them.
If a shareholder (i) incurs a sales load in acquiring shares in the Fund, and (ii) by reason of incurring such charge or making such acquisition acquires the right to acquire shares of one or more regulated investment companies without the payment of a load or with the payment of a reduced load (reinvestment right), and (iii) disposes of the shares before the 91st day after the date on which the shares were acquired, and (iv) subsequently acquires shares in that regulated investment company or in another regulated investment company and the otherwise applicable load charge is reduced pursuant to the reinvestment right, then the load charge will not be taken into account for purposes of determining the shareholders gain or loss on the disposition. For sales charges incurred in taxable years beginning after December 22, 2010, this sales charge deferral rule shall apply only when a shareholder makes such new acquisition of Fund shares or shares of a different regulated investment company during the period beginning on the date the original Fund shares are disposed of and ending on January 31 of the calendar year following the calendar year of the disposition of the original Fund shares. To the extent such charge is not taken into account in determining the amount of gain or loss, the charge will be treated as incurred in connection with the subsequently acquired shares and will have a corresponding effect on the shareholders basis in such shares.
The Fund may be subject to a tax on dividend or interest income received from securities of a non-U.S. issuer withheld by a foreign country at the source. The U.S. has entered into tax treaties with many foreign countries that entitle the Fund to a reduced rate of tax or exemption from tax on such income. It is impossible to determine the effective rate of foreign tax in advance since the amount of the Funds assets to be invested within various countries is not known. If more than 50% of the value of the Funds total assets at the close of a taxable year consists of stocks or securities in foreign corporations, and the Fund satisfies the holding period requirements, the Fund may elect to pass through to its shareholders the foreign income taxes paid thereby. In such case, the shareholders would be treated as receiving, in addition to the distributions actually received by the shareholders, their proportionate share of foreign income taxes paid by the Fund, and will be treated as having paid such foreign taxes. The shareholders generally will be entitled to deduct or, subject to certain limitations, claim a foreign tax credit with respect to such foreign income taxes. A foreign tax credit may be allowed for shareholders who hold shares of the Fund for at least 16 days during the 31-day period beginning on the date that is 15 days before the ex-dividend date. Under certain circumstances, individual shareholders who have been passed through foreign tax credits of no more than $300 ($600 in the case of married couples filing jointly) during a tax year can elect to claim the foreign tax credit for these amounts directly on their federal income tax returns (IRS Forms 1040) without having to file a separate Form 1116 or having to comply with most foreign tax credit limitations, provided certain other requirements are met.
The Fund may be required to backup withhold federal income tax at a current rate of 28% from dividends paid to any shareholder who fails to furnish a certified taxpayer identification number (TIN) or who fails to certify that he or she is exempt from such withholding, or who the Internal Revenue Service notifies the Fund as having provided the Fund with an incorrect TIN or failed to properly report interest or
41
dividends for federal income tax purposes.
Any such withheld amount will be fully creditable on the shareholders U.S.
federal income tax return, provided certain requirements are met. If a
shareholder fails to furnish a valid TIN upon request, the shareholder can also
be subject to IRS penalties. The rate of backup withholding is set to increase
to 31% for amounts distributed or paid after December 31, 2012.
New Legislation. For taxable years beginning after January 1, 2013, a 3.8% Medicare contribution tax will be imposed on the net investment income of certain high-income individuals, trusts and estates. For this purpose, net investment income generally includes, among other things, distributions paid by the Fund, including capital gain dividends (but excluding exempt interest dividends), and any net gain from the sale of Fund shares.
FOREIGN ACCOUNT TAX COMPLIANCE ACT
The Foreign Account Tax Compliance Act (or
FATCA) may impose withholding taxes on certain types of U.S. source income
withholdable payments (including dividends, rents, gains from the sale of
equity securities and certain interest payments) made to foreign financial
institutions and certain other non-financial foreign entities unless (i) the
foreign financial institution undertakes certain diligence and reporting
obligations or (ii) the non-financial foreign entity either certifies it does
not have any substantial U.S. owners or furnishes identifying information
regarding each substantial U.S. owner. To avoid withholding upon receipt of
payments, a foreign financial institution must enter into an agreement with the
U.S. Treasury requiring, among other things, that it undertake to identify
accounts held by certain U.S. persons or U.S.-owned foreign entities, annually
report certain information about such accounts, and withhold 30% on payments to
account holders whose actions prevent it from complying with these reporting
and other requirements. Withholding under this legislation on withholdable
payments to foreign financial institutions and non-financial foreign entities
is expected to apply after December 31, 2014 with respect to gross proceeds of
a disposition of property that can produce U.S. source interest or dividends
and after December 31, 2013 with respect to other withholdable payments (although
the legislation may apply sooner for such other withholdable payments made to
non-financial foreign entities). Prospective investors should consult their own
tax advisors regarding this new legislation.
TAXATION OF NON-U.S. INVESTORS
The foregoing summary of certain federal income tax considerations does not apply to potential investors in the Fund that are not U.S. investors (Non-U.S. investors). Distributions of ordinary income paid to Non-U.S. investors generally will be subject to a 30% U.S. withholding tax unless a reduced rate of withholding or a withholding exemption is provided under an applicable treaty. Prospective investors are urged to consult their tax advisors regarding the specific tax consequences discussed above.
The Trust has elected to have the ability to redeem its shares in kind, committing itself to pay in cash all requests for redemption by any shareholder of record limited in amount with respect to each shareholder of record during any ninety-day period to the lesser of (i) $250,000 or (ii) 1% of the net asset value of such company at the beginning of such period.
A DDITIONAL PURCHASE AND REDEMPTION INFORMATION
Dealers and intermediaries may charge their customers a processing or service fee in connection with the purchase or redemption of fund shares. The amount and applicability of such a fee is determined and disclosed to its customers by each individual dealer. Processing or service fees typically are fixed, nominal dollar amounts and are in addition to the sales and other charges described in the Prospectus and this SAI. Your dealer will provide you with specific information about any processing or service fees you will be charged.
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The Trust is an open-end management investment company organized as a business trust under the laws of the Commonwealth of Massachusetts on April 3, 1985. The Trustees of the Trust have authority to issue an unlimited number of shares of beneficial interest of the Fund, $.001 par value. The Trust currently consists of six separate series: Emerging Markets Fund, Global Hard Assets Fund, International Investors Gold Fund, Multi-Manager Alternatives Fund, Long/Flat Commodity Index Fund and the Fund.
The Fund is classified as a non-diversified fund under the 1940 Act. A diversified fund is a fund which meets the following requirements: At least 75% of the value of its total assets is represented by cash and cash items (including receivables), Government securities, securities of other investment companies and other securities for the purpose of this calculation limited in respect of any one issuer to an amount not greater than 5% of the value of the Funds total assets, and to not more than 10% of the outstanding voting securities of such issuer. A non-diversified fund is any fund other than a diversified fund. This means that the Fund at the close of each quarter of its taxable year must, in general, limit its investment in the securities of a single issuer to (i) no more than 25% of its assets, (ii) with respect to 50% of the Funds assets, no more than 5% of its assets, and (iii) the Fund will not own more than 10% of outstanding voting securities. The Fund is a separate pool of assets of the Trust which is separately managed and which may have a different investment objective from that of another Fund. The Board has the authority, without the necessity of a shareholder vote, to create any number of new series.
Each share of the Fund has equal dividend, redemption and liquidation rights and when issued is fully paid and non-assessable by the Trust. Under the Trusts Amended and Restated Master Trust Agreement, as amended (Master Trust Agreement), no annual or regular meeting of shareholders is required. Thus, there will ordinarily be no shareholder meetings unless required by the 1940 Act. The Trustees are a self-perpetuating body unless and until fewer than 50% of the Trustees, then serving as Trustees, are Trustees who were elected by shareholders. At that time a meeting of shareholders will be called to elect additional Trustees. On any matter submitted to the shareholders, the holder of each Trust share is entitled to one vote per share (with proportionate voting for fractional shares). Under the Master Trust Agreement, any Trustee may be removed by vote of two-thirds of the outstanding Trust shares, and holders of ten percent or more of the outstanding shares of the Trust can require Trustees to call a meeting of shareholders for purposes of voting on the removal of one or more trustees. Shares of the Fund vote as a separate class, except with respect to the election of Trustees and as otherwise required by the 1940 Act. On matters affecting an individual Fund, a separate vote of that Fund is required. Shareholders of the Fund are not entitled to vote on any matter not affecting that Fund. In accordance with the 1940 Act, under certain circumstances, the Trust will assist shareholders in communicating with other shareholders in connection with calling a special meeting of shareholders.
Under Massachusetts law, the shareholders of the Trust could, under certain circumstances, be held personally liability for the obligations of the Trust. However, the Master Trust Agreement disclaims shareholder liability for acts or obligations of the Trust and requires that notice of such disclaimer be given in each agreement, obligation or instrument entered into or executed by the Trust or the Trustees. The Master Trust Agreement provides for indemnification out of the Trusts property of all losses and expenses of any shareholder held personally liable for the obligations of the Trust. Thus, the risk of a shareholder incurring financial loss on account of shareholder liability is limited to circumstances in which the Trust itself would be unable to meet its obligations. The Adviser believes that, in view of the above, the risk of personal liability to shareholders is remote.
CUSTODIAN . State Street Bank and Trust Company, One Lincoln Street, Boston, MA 02111 is the custodian of the Trusts portfolio securities, cash, coins and bullion. The Custodian is authorized, upon the approval of the Trust, to establish credits or debits in dollars or foreign currencies with, and to cause portfolio securities of the Fund to be held by its overseas branches or subsidiaries, and foreign
43
banks and foreign securities depositories which qualify as eligible foreign custodians under the rules adopted by the SEC.
TRANSFER AGENT . DST Systems, Inc., 210 West 10th Street, Kansas City, MO 64105 serves as transfer agent for the Trust.
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM . Ernst & Young LLP, Five Times Square, New York, NY 10036 serves as independent registered public accounting firm for the Trust.
COUNSEL . Goodwin Procter LLP, Exchange Place, Boston, MA 02109 serves as counsel to the Trust.
The audited
financial statements of the Fund for the fiscal year ended December 31, 2011
are incorporated by reference from the Funds Annual Report to shareholders,
which is available at no charge by visiting the Van Eck website at vaneck.com,
or upon written or telephone request to the Trust at the address or telephone
number set forth on the first page of this SAI.
L ICENSING AGREEMENT AND DISCLAIMER
Van Eck Associates Corporation (the Adviser) has entered into a licensing agreement with UBS AG, London and Bloomberg Finance L.P. to use the UBS Bloomberg Constant Maturity Commodity Total Return Index (the CMCI). The Van Eck CM Commodity Index Fund is entitled to use the CMCI pursuant to a sub-licensing arrangement with the Adviser.
UBS and Bloomberg own or exclusively license, solely or jointly as agreed between them all proprietary rights with respect to the CMCI. Any third-party product based on or related to the CMCI (Product) may only be issued upon the prior joint written approval of UBS and Bloomberg and upon the execution of a license agreement between UBS, Bloomberg and the party intending to launch a Product (a Licensee). In no way do UBS or Bloomberg sponsor or endorse, nor are they otherwise involved in the issuance and offering of a Product nor do either of them make any representation or warranty, express or implied, to the holders of the Product or any member of the public regarding the advisability of investing in the Product or commodities generally or in futures particularly, or as to results to be obtained from the use of the CMCI or from the Product. Further, neither UBS nor Bloomberg provides investment advice to any Licensee specific to the Product, other than providing the CMCI as agreed in the license agreement with the Licensee, and which will be done without consideration of the particular needs of the Product or the Licensee. UBS and Bloomberg each specifically disclaim any liability to any party for any inaccuracy in the data on which the CMCI is based, for any mistakes, errors, omissions or interruptions in the calculation and/or dissemination of the CMCI, or for the manner in which such is applied in connection with the issuance and offering of a Product. In no event shall UBS or Bloomberg have any liability to any party for any lost profits or indirect, punitive, special or consequential damages or losses.
THIS IS NOT AN OFFER OR SOLICITATION BY UBS OR BLOOMBERG OF AN OFFER TO BUY OR SELL ANY SECURITY OR INVESTMENT. PAST PERFORMANCE OF THE UBS BLOOMBERG CONSTANT MATURITY COMMODITY INDEX IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS.
44
ADVISERS PROXY VOTING POLICIES
VAN ECK GLOBAL PROXY VOTING POLICIES
Van Eck Global (the Adviser) has adopted the following policies and procedures which are reasonably designed to ensure that proxies are voted in a manner that is consistent with the best interests of its clients in accordance with its fiduciary duties and Rule 206(4)-6 under the Investment Advisers Act of 1940. 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.
Rule 206(4)-6 also requires the Adviser to disclose information about the proxy voting procedures to its clients and to inform clients how to obtain information about how their proxies were voted. Additionally, Rule 204-2 under the Advisers Act requires the Adviser to maintain certain proxy voting records.
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.
The Adviser intends to vote all proxies in accordance with applicable rules and regulations, and in the best interests of clients without influence by real or apparent conflicts of interest. To assist in its responsibility for voting proxies and the overall voting process, the Adviser has engaged an independent third party proxy voting specialist, Glass Lewis & Co., LLC. The services provided by Glass Lewis include in-depth research, global issuer analysis, and voting recommendations as well as vote execution, reporting and recordkeeping.
Resolving Material Conflicts of Interest
When a material conflict of interest exists, proxies will be voted in the following manner:
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Strict adherence to the Glass Lewis guidelines , or |
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The potential conflict will be disclosed to the client: |
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with a request that the client vote the proxy, |
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with a recommendation that the client engage another party to determine how the proxy should be voted or |
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if the foregoing are not acceptable to the client, disclosure of how Van Eck 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 Chief Compliance Officer with a written explanation of the reason for the deviation.
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A material conflict of interest means the existence of a business relationship between a portfolio company or an affiliate and the Adviser, any affiliate or subsidiary, or an affiliated person of a Van Eck mutual fund. Examples of when a material conflict of interest exists include a 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 the Advisers 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.
Client Inquiries
All inquiries by clients as to how the Adviser has voted proxies must immediately be forwarded to Portfolio Administration.
Disclosure to Clients:
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Notification of Availability of Information |
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Client Brochure - The Client Brochure or Part II of Form ADV will inform clients that they can obtain information from the Adviser 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. |
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Availability of Proxy Voting Information |
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At the clients request or if the information is not available on the Advisers website, a hard copy of the accounts proxy votes will be mailed to each client. |
Recordkeeping Requirements
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Van Eck 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: |
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proxy statements received; |
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identifying number for the portfolio security; |
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shareholder meeting date; |
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brief identification of the matter voted on; |
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whether the vote was cast on the matter; |
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how the vote was cast (e.g., for or against proposal, or abstain; for or withhold regarding election of directors); |
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records of written client requests for information on how the Adviser voted proxies on behalf of the client; |
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a copy of written responses from the Adviser to any written or oral client request for information on how the Adviser voted proxies on behalf of the client; and any documents prepared by the Adviser that were material to the decision on how to vote or that memorialized the basis for the decision, if such documents were prepared. |
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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. |
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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. |
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Proxy voting records will be maintained in an easily accessible place for five years, the first two at the office of the Adviser. 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. |
Voting Foreign Proxies
At times the Adviser may determine that, in the best interests of its clients, a particular proxy should not be voted. This may occur, for example, when the cost of voting a foreign proxy (translation, transportation, etc.) would exceed the benefit of voting the proxy or voting the foreign proxy may cause an unacceptable limitation on the sale of the security. Any such instances will be documented by the Portfolio Manager and reviewed by the Chief Compliance Officer.
Securities Lending
Certain portfolios managed by the Adviser participate in securities lending programs to generate additional revenue. Proxy voting rights generally pass to the borrower when a security is on loan. The Adviser will use its best efforts to recall a security on loan and vote such securities if the Portfolio Manager determines that the proxy involves a material event.
Proxy Voting Policy
The Adviser has reviewed the Glass Lewis Proxy Guidelines (Guidelines) and has determined that the Guidelines are consistent with the Advisers proxy voting responsibilities and its fiduciary duty with respect to its clients. The Adviser will review any material amendments to
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the Guidelines.
While it is the Advisers policy to generally follow the Guidelines, the Adviser retains the right, on any specific proxy, to vote differently from the Guidelines, if the Adviser believes it is in the best interests of its clients. Any such exceptions will be documented by the Adviser and reviewed by the Chief Compliance Officer.
The portfolio manager or analyst covering the security is responsible for making proxy 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.
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I. A Board of Directors That Serves the Interests of Shareholders |
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Election of Directors |
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The purpose of Glass Lewis proxy research and advice is to facilitate shareholder voting in favor of governance structures that will drive performance, create shareholder value and maintain a proper tone at the top. Glass Lewis looks for talented boards with a record of protecting shareholders and delivering value over the medium- and long-term. We believe that boards working to protect and enhance the best interests of shareholders are independent, have directors with diverse backgrounds, have a record of positive performance, and have members with a breadth and depth of relevant experience. |
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The independence of directors, or lack thereof, is ultimately demonstrated through the decisions they make. In assessing the independence of directors, we will take into consideration, when appropriate, whether a director has a track record indicative of making objective decisions. Likewise, when assessing the independence of directors we will also examine when a directors service track record on multiple boards indicates a lack of objective decision-making. Ultimately, we believe the determination of whether a director is independent or not must take into consideration both compliance with the applicable independence listing requirements as well as judgments made by the director. |
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We look at each director nominee to examine the directors relationships with the company, the companys executives, and other directors. We do this to evaluate whether personal, familial, or financial relationships (not including director compensation) may impact the directors decisions. We believe that such relationships make it difficult for a director to put shareholders interests above the directors or the related partys interests. We also believe that a director who owns more than 20% of a company can exert disproportionate influence on the board and, in particular, the audit committee. |
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Independent Director An independent director has no material financial, familial or other current relationships with the company, its executives, or other board members, except for board service and standard fees paid for that service. Relationships that existed within three to five years 1 before the inquiry are usually considered current for purposes of this test. |
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In our view, a director who is currently serving in an interim management position should be considered an insider, while a director who previously served in an interim management position for less than one year and is no longer serving in such capacity is considered independent. Moreover, a director who previously served in an interim management position for over one year and is no longer serving in such capacity is considered an affiliate for five years following the date of his/her resignation or departure from the interim management position. Glass Lewis applies a three-year look-back period to all directors who have an affiliation with the company other than former employment, for which we apply a five-year look-back. |
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Affiliated Director An affiliated director has a material financial, familial or other relationship with the company or its executives, but is not an employee of the company. 2 This includes directors whose employers have a material financial relationship with the company. 3 In addition, we view a director who owns or controls 20% or more of the companys voting stock as an affiliate. 4 |
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1 NASDAQ originally proposed a five-year look-back period but both it and the NYSE ultimately settled on a three-year look-back prior to finalizing their rules. A five-year standard is more appropriate, in our view, because we believe that the unwinding of conflicting relationships between former management and board members is more likely to be complete and final after five years. However, Glass Lewis does not apply the five-year look-back period to directors who have previously served as executives of the company on an interim basis for less than one year. |
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2 If a company classifies one of its non-employee directors as non-independent, Glass Lewis will classify that director as an affiliate. |
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3 We allow a five-year grace period for former executives of the company or merged companies who have consulting agreements with the surviving company. (We do not automatically recommend voting against directors in such cases for the first five years.) If the consulting agreement persists after this five-year grace period, we apply the materiality thresholds outlined in the definition of material. |
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4 This includes a director who serves on a board as a representative (as part of his or her basic responsibilities) of an investment firm with greater than 20% ownership. However, while we will generally consider him/her to be affiliated, we will not recommend voting against unless (i) the |
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We view 20% shareholders as affiliates because they typically have access to and involvement with the management of a company that is fundamentally different from that of ordinary shareholders. More importantly, 20% holders may have interests that diverge from those of ordinary holders, for reasons such as the liquidity (or lack thereof) of their holdings, personal tax issues, etc. |
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Definition of Material: A material relationship is one in which the dollar value exceeds: |
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$50,000 (or where no amount is disclosed) for directors who are paid for a service they have agreed to perform for the company, outside of their service as a director, including professional or other services; or |
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$120,000 (or where no amount is disclosed) for those directors employed by a professional services firm such as a law firm, investment bank, or consulting firm where the company pays the firm, not the individual, for services. This dollar limit would also apply to charitable contributions to schools where a board member is a professor; or charities where a director serves on the board or is an executive; 5 and any aircraft and real estate dealings between the company and the directors firm; or |
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1% of either companys consolidated gross revenue for other business relationships (e.g., where the director is an executive officer of a company that provides services or products to or receives services or products from the company). |
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Definition of Familial: Familial relationships include a persons spouse, parents, children, siblings, grandparents, uncles, aunts, cousins, nieces, nephews, in-laws, and anyone (other than domestic employees) who shares such persons home. A director is an affiliate if the director has a family member who is employed by the company and who receives compensation of $120,000 or more per year or the compensation is not disclosed. |
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investment firm has disproportionate board representation or (ii) the director serves on the audit committee. |
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5 We will generally take into consideration the size and nature of such charitable entities in relation to the companys size and industry along with any other relevant factors such as the directors role at the charity. However, unlike for other types of related party transactions, Glass Lewis generally does not apply a look-back period to affiliated relationships involving charitable contributions; if the relationship ceases, we will consider the director to be independent. |
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Definition of Company: A company includes any parent or subsidiary in a group with the company or any entity that merged with, was acquired by, or acquired the company. |
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Inside Director An inside director simultaneously serves as a director and as an employee of the company. This category may include a chairman of the board who acts as an employee of the company or is paid as an employee of the company. In our view, an inside director who derives a greater amount of income as a result of affiliated transactions with the company rather than through compensation paid by the company (i.e., salary, bonus, etc. as a company employee) faces a conflict between making decisions that are in the best interests of the company versus those in the directors own best interests. Therefore, we will recommend voting against such a director. |
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Voting Recommendations on the Basis of Board Independence |
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Glass Lewis believes a board will be most effective in protecting shareholders interests if it is at least two-thirds independent. We note that each of the Business Roundtable, the Conference Board, and the Council of Institutional Investors advocates that two-thirds of the board be independent. Where more than one-third of the members are affiliated or inside directors, we typically 6 recommend voting against some of the inside and/or affiliated directors in order to satisfy the two-thirds threshold. |
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In the case of a less than two-thirds independent board, Glass Lewis strongly supports the existence of a presiding or lead director with authority to set the meeting agendas and to lead sessions outside the insider chairmans presence. |
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In addition, we scrutinize avowedly independent chairmen and lead directors. We believe that they should be unquestionably independent or the company should not tout them as such. |
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Committee Independence |
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We believe that only independent directors should serve on a companys audit, compensation, nominating, and governance committees. 7 We typically |
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6 With a staggered board, if the affiliates or insiders that we believe should not be on the board are not up for election, we will express our concern regarding those directors, but we will not recommend voting against the other affiliates or insiders who are up for election just to achieve two-thirds independence. However, we will consider recommending voting against the directors subject to our concern at their next election if the concerning issue is not resolved. |
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7 We will recommend voting against an audit committee member who owns 20% or more of the |
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A-9
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recommend that shareholders vote against any affiliated or inside director seeking appointment to an audit, compensation, nominating, or governance committee, or who has served in that capacity in the past year. |
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Independent Chairman |
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Glass Lewis believes that separating the roles of CEO (or, more rarely, another executive position) and chairman creates a better governance structure than a combined CEO/chairman position. An executive manages the business according to a course the board charts. Executives should report to the board regarding their performance in achieving goals the board set. This is needlessly complicated when a CEO chairs the board, since a CEO/chairman presumably will have a significant influence over the board. |
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It can become difficult for a board to fulfill its role of overseer and policy setter when a CEO/chairman controls the agenda and the boardroom discussion. Such control can allow a CEO to have an entrenched position, leading to longer-than-optimal terms, fewer checks on management, less scrutiny of the business operation, and limitations on independent, shareholder-focused goal-setting by the board. |
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A CEO should set the strategic course for the company, with the boards approval, and the board should enable the CEO to carry out the CEOs vision for accomplishing the boards objectives. Failure to achieve the boards objectives should lead the board to replace that CEO with someone in whom the board has confidence. |
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Likewise, an independent chairman can better oversee executives and set a pro-shareholder agenda without the management conflicts that a CEO and other executive insiders often face. Such oversight and concern for shareholders allows for a more proactive and effective board of directors that is better able to look out for the interests of shareholders. |
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Further, it is the boards responsibility to select a chief executive who can best serve a company and its shareholders and to replace this person when his or her duties have not been appropriately fulfilled. Such a replacement becomes more difficult and happens less frequently when the chief executive is also in the position of overseeing the board. |
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companys stock, and we believe that there should be a maximum of one director (or no directors if the committee is comprised of less than three directors) who owns 20% or more of the companys stock on the compensation, nominating, and governance committees. |
A-10
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8 Ken Favaro, Per-Ola Karlsson and Gary Neilson. CEO Succession 2000-2009: A Decade of Convergence and Compression. Booz & Company (from Strategy+Business, Issue 59, Summer 2010). |
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9 Spencer Stuart Board Index, 2011, p. 6. |
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10 However, where a director has served for less than one full year, we will typically not recommend voting against for failure to attend 75% of meetings. Rather, we will note the poor attendance with a recommendation to track this issue going forward. We will also refrain from recommending to vote against directors when the proxy discloses that the director missed the meetings due to serious illness |
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A-11
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A proper and well-functioning system exists, therefore, when the three main groups responsible for financial reporting the full board including the audit committee, financial |
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or other extenuating circumstances. |
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11 Audit Committee Effectiveness What Works Best. PricewaterhouseCoopers. The Institute of Internal Auditors Research Foundation. 2005. |
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A-12
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management including the internal auditors, and the outside auditors form a three legged stool that supports responsible financial disclosure and active participatory oversight. However, in the view of the Committee, the audit committee must be first among equals in this process, since the audit committee is an extension of the full board and hence the ultimate monitor of the process. |
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Standards for Assessing the Audit Committee |
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For an audit committee to function effectively on investors behalf, it must include members with sufficient knowledge to diligently carry out their responsibilities. In its audit and accounting recommendations, the Conference Board Commission on Public Trust and Private Enterprise said members of the audit committee must be independent and have both knowledge and experience in auditing financial matters. 12 |
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We are skeptical of audit committees where there are members that lack expertise as a Certified Public Accountant (CPA), Chief Financial Officer (CFO) or corporate controller or similar experience. While we will not necessarily vote against members of an audit committee when such expertise is lacking, we are more likely to vote against committee members when a problem such as a restatement occurs and such expertise is lacking. |
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Glass Lewis generally assesses audit committees against the decisions they make with respect to their oversight and monitoring role. The quality and integrity of the financial statements and earnings reports, the completeness of disclosures necessary for investors to make informed decisions, and the effectiveness of the internal controls should provide reasonable assurance that the financial statements are materially free from errors. The independence of the external auditors and the results of their work all provide useful information by which to assess the audit committee. |
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When assessing the decisions and actions of the audit committee, we typically defer to its judgment and would vote in favor of its members, but we would recommend voting against the following members under the following circumstances: 13 |
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12 Commission on Public Trust and Private Enterprise. The Conference Board. 2003. |
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13 Where the recommendation is to vote against the committee chair but the chair is not up for election because the board is staggered, we do not recommend voting against the members of the committee who are up for election; rather, we will simply express our concern with regard to the committee chair. |
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A-13
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All members of the audit committee when options were backdated, there is a lack of adequate controls in place, there was a resulting restatement, and disclosures indicate there was a lack of documentation with respect to the option grants. |
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The audit committee chair, if the audit committee does not have a financial expert or the committees financial expert does not have a demonstrable financial background sufficient to understand the financial issues unique to public companies. |
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The audit committee chair, if the audit committee did not meet at least 4 times during the year. |
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The audit committee chair, if the committee has less than three members. |
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Any audit committee member who sits on more than three public company audit committees, unless the audit committee member is a retired CPA, CFO, controller or has similar experience, in which case the limit shall be four committees, taking time and availability into consideration including a review of the audit committee members attendance at all board and committee meetings. 14 |
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All members of an audit committee who are up for election and who served on the committee at the time of the audit, if audit and audit-related fees total one-third or less of the total fees billed by the auditor. |
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The audit committee chair when tax and/or other fees are greater than audit and audit-related fees paid to the auditor for more than one year in a row (in which case we also recommend against ratification of the auditor). |
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All members of an audit committee where non-audit fees include fees for tax services (including, but not limited to, such things as tax avoidance or shelter schemes) for senior executives of the company. Such services are now prohibited by the Public Company Accounting Oversight Board (PCAOB). |
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All members of an audit committee that reappointed an auditor that we no longer consider to be independent for reasons unrelated to fee |
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A-14
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proportions. |
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All members of an audit committee when audit fees are excessively low, especially when compared with other companies in the same industry. |
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The audit committee chair 15 if the committee failed to put auditor ratification on the ballot for shareholder approval. However, if the non-audit fees or tax fees exceed audit plus audit-related fees in either the current or the prior year, then Glass Lewis will recommend voting against the entire audit committee. |
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All members of an audit committee where the auditor has resigned and reported that a section 10A 16 letter has been issued. |
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All members of an audit committee at a time when material accounting fraud occurred at the company. 17 |
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All members of an audit committee at a time when annual and/or multiple quarterly financial statements had to be restated, and any of the following factors apply: |
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The restatement involves fraud or manipulation by insiders; |
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The restatement is accompanied by an SEC inquiry or investigation; |
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The restatement involves revenue recognition; |
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The restatement results in a greater than 5% adjustment to costs of goods sold, operating expense, or operating cash flows; or |
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15 In all cases, if the chair of the committee is not specified, we recommend voting against the director who has been on the committee the longest. |
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16 Auditors are required to report all potential illegal acts to management and the audit committee unless they are clearly inconsequential in nature. If the audit committee or the board fails to take appropriate action on an act that has been determined to be a violation of the law, the independent auditor is required to send a section 10A letter to the SEC. Such letters are rare and therefore we believe should be taken seriously. |
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17 Recent research indicates that revenue fraud now accounts for over 60% of SEC fraud cases, and that companies that engage in fraud experience significant negative abnormal stock price declinesfacing bankruptcy, delisting, and material asset sales at much higher rates than do non-fraud firms (Committee of Sponsoring Organizations of the Treadway Commission. Fraudulent Financial Reporting: 1998-2007. May 2010). |
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A-15
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18 The Council of Institutional Investors. Corporate Governance Policies, p. 4, April 5, 2006; and Letter from Council of Institutional Investors to the AICPA, November 8, 2006. |
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A-16
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arrangements. It is important in establishing compensation arrangements that compensation be consistent with, and based on the long-term economic performance of, the businesss long-term shareholders returns. |
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Compensation committees are also responsible for the oversight of the transparency of compensation. This oversight includes disclosure of compensation arrangements, the matrix used in assessing pay for performance, and the use of compensation consultants. In order to ensure the independence of the compensation consultant, we believe the compensation committee should only engage a compensation consultant that is not also providing any services to the company or management apart from their contract with the compensation committee. It is important to investors that they have clear and complete disclosure of all the significant terms of compensation arrangements in order to make informed decisions with respect to the oversight and decisions of the compensation committee. |
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Finally, compensation committees are responsible for oversight of internal controls over the executive compensation process. This includes controls over gathering information used to determine compensation, establishment of equity award plans, and granting of equity awards. Lax controls can and have contributed to conflicting information being obtained, for example through the use of nonobjective consultants. Lax controls can also contribute to improper awards of compensation such as through granting of backdated or spring-loaded options, or granting of bonuses when triggers for bonus payments have not been met. |
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Central to understanding the actions of a compensation committee is a careful review of the Compensation Discussion and Analysis (CD&A) report included in each companys proxy. We review the CD&A in our evaluation of the overall compensation practices of a company, as overseen by the compensation committee. The CD&A is also integral to the evaluation of compensation proposals at companies, such as advisory votes on executive compensation, which allow shareholders to vote on the compensation paid to a companys top executives. |
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When assessing the performance of compensation committees, we will recommend voting against for the following: 19 |
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19 Where the recommendation is to vote against the committee chair and the chair is not up for election because the board is staggered, we do not recommend voting against any members of the committee who are up for election; rather, we will simply express our concern with regard to the |
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A-17
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1. |
All members of the compensation committee who are up for election and served at the time of poor pay-for-performance (e.g., a company receives an F grade in our pay-for-performance analysis) when shareholders are not provided with an advisory vote on executive compensation at the annual meeting. 20 |
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Any member of the compensation committee who has served on the compensation committee of at least two other public companies that received F grades in our pay-for-performance model and who is also suspect at the company in question. |
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The compensation committee chair if the company received two D grades in consecutive years in our pay-for-performance analysis, and if during the past year the Company performed the same as or worse than its peers. 21 |
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All members of the compensation committee (during the relevant time period) if the company entered into excessive employment agreements and/or severance agreements. |
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All members of the compensation committee when performance goals were changed (i.e., lowered) when employees failed or were unlikely to meet original goals, or performance-based compensation was paid despite goals not being attained. |
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committee chair. |
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20 Where there are multiple CEOs in one year, we will consider not recommending against the compensation committee but will defer judgment on compensation policies and practices until the next year or a full year after arrival of the new CEO. In addition, if a company provides shareholders with a Say-on-Pay proposal and receives an F grade in our pay-for-performance model, we will recommend that shareholders only vote against the Say-on-Pay proposal rather than the members of the compensation committee, unless the company exhibits egregious practices. However, if the company receives successive F grades, we will then recommend against the members of the compensation committee in addition to recommending voting against the Say-on-Pay proposal. |
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21 In cases where the company received two D grades in consecutive years, but during the past year the company performed better than its peers or improved from an F to a D grade year over year, we refrain from recommending to vote against the compensation chair. In addition, if a company provides shareholders with a Say-on-Pay proposal in this instance, we will consider voting against the advisory vote rather than the compensation committee chair unless the company exhibits unquestionably egregious practices. |
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A-18
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All members of the compensation committee if excessive employee perquisites and benefits were allowed. |
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The compensation committee chair if the compensation committee did not meet during the year, but should have (e.g., because executive compensation was restructured or a new executive was hired). |
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All members of the compensation committee when the company repriced options or completed a self tender offer without shareholder approval within the past two years. |
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All members of the compensation committee when vesting of in-the-money options is accelerated or when fully vested options are granted. |
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All members of the compensation committee when option exercise prices were backdated. Glass Lewis will recommend voting against an executive director who played a role in and participated in option backdating. |
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All members of the compensation committee when option exercise prices were spring-loaded or otherwise timed around the release of material information. |
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All members of the compensation committee when a new employment contract is given to an executive that does not include a clawback provision and the company had a material restatement, especially if the restatement was due to fraud. |
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13. |
The chair of the compensation committee where the CD&A provides insufficient or unclear information about performance metrics and goals, where the CD&A indicates that pay is not tied to performance, or where the compensation committee or management has excessive discretion to alter performance terms or increase amounts of awards in contravention of previously defined targets. |
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14. |
All members of the compensation committee during whose tenure the committee failed to implement a shareholder proposal regarding a compensation-related issue, where the proposal received the affirmative vote of a majority of the voting shares at a shareholder meeting, and when a reasonable analysis suggests that the compensation committee (rather than the governance committee) should have taken steps to implement the request. 22 |
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22 In all other instances (i.e. a non-compensation-related shareholder proposal should have been implemented) we recommend that shareholders vote against the members of the governance |
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A-19
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committee. |
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23 Where we would recommend to vote against the committee chair but the chair is not up for election because the board is staggered, we do not recommend voting against any members of the committee who are up for election; rather, we will simply express our concern regarding the committee chair. |
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24 If the board does not have a governance committee (or a committee that serves such a purpose), we recommend voting against the entire board on this basis. |
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A-20
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board failed to implement a shareholder proposal with a direct and substantial impact on shareholders and their rights - i.e., where the proposal received enough shareholder votes (at least a majority) to allow the board to implement or begin to implement that proposal. 25 Examples of these types of shareholder proposals are majority vote to elect directors and to declassify the board. |
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2. |
The governance committee chair, 26 when the chairman is not independent and an independent lead or presiding director has not been appointed. 27 |
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In the absence of a nominating committee, the governance committee chair when there are less than five or the whole nominating committee when there are more than 20 members on the board. |
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The governance committee chair, when the committee fails to meet at all during the year. |
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The governance committee chair, when for two consecutive years the company provides what we consider to be inadequate related party transaction disclosure (i.e. the nature of such transactions and/or the monetary amounts involved are unclear or excessively vague, thereby preventing an average shareholder from being able to reasonably interpret the independence status of multiple directors above and beyond what the company maintains is compliant with SEC or applicable stock-exchange listing requirements). |
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The governance committee chair, when during the past year the board |
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25 Where a compensation-related shareholder proposal should have been implemented, and when a reasonable analysis suggests that the members of the compensation committee (rather than the governance committee) bear the responsibility for failing to implement the request, we recommend that shareholders only vote against members of the compensation committee. |
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26 If the committee chair is not specified, we recommend voting against the director who has been on the committee the longest. If the longest-serving committee member cannot be determined, we will recommend voting against the longest-serving board member serving on the committee. |
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27 We believe that one independent individual should be appointed to serve as the lead or presiding director. When such a position is rotated among directors from meeting to meeting, we will recommend voting against as if there were no lead or presiding director. |
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A-21
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adopted a forum selection clause (i.e. an exclusive forum provision) 28 without shareholder approval, or, if the board is currently seeking shareholder approval of a forum selection clause pursuant to a bundled bylaw amendment rather than as a separate proposal. |
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Regarding the nominating committee, we will recommend voting against the following: 29 |
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All members of the nominating committee, when the committee nominated or renominated an individual who had a significant conflict of interest or whose past actions demonstrated a lack of integrity or inability to represent shareholder interests. |
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The nominating committee chair, if the nominating committee did not meet during the year, but should have (i.e., because new directors were nominated or appointed since the time of the last annual meeting). |
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In the absence of a governance committee, the nominating committee chair 30 when the chairman is not independent, and an independent lead or presiding director has not been appointed. 31 |
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The nominating committee chair, when there are less than five or the whole nominating committee when there are more than 20 members on the board. 32 |
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28 A forum selection clause is a bylaw provision stipulating that a certain state, typically Delaware, shall be the exclusive forum for all intra-corporate disputes (e.g. shareholder derivative actions, assertions of claims of a breach of fiduciary duty, etc.). Such a clause effectively limits a shareholders legal remedy regarding appropriate choice of venue and related relief offered under that states laws and rulings. |
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29 Where we would recommend to vote against the committee chair but the chair is not up for election because the board is staggered, we do not recommend voting against any members of the committee who are up for election; rather, we will simply express our concern regarding the committee chair. |
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30 If the committee chair is not specified, we will recommend voting against the director who has been on the committee the longest. If the longest-serving committee member cannot be determined, we will recommend voting against the longest-serving board member on the committee. |
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31 In the absence of both a governance and a nominating committee, we will recommend voting against the chairman of the board on this basis. |
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32 In the absence of both a governance and a nominating committee, we will recommend voting against the chairman of the board on this basis. |
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A-22
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The nominating committee chair, when a director received a greater than 50% against vote the prior year and not only was the director not removed, but the issues that raised shareholder concern were not corrected. 33 |
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Board-level Risk Management Oversight |
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Glass Lewis evaluates the risk management function of a public company board on a strictly case-by-case basis. Sound risk management, while necessary at all companies, is particularly important at financial firms which inherently maintain significant exposure to financial risk. We believe such financial firms should have a chief risk officer reporting directly to the board and a dedicated risk committee or a committee of the board charged with risk oversight. Moreover, many non-financial firms maintain strategies which involve a high level of exposure to financial risk. Similarly, since many non-financial firm have significant hedging or trading strategies, including financial and non-financial derivatives, those firms should also have a chief risk officer and a risk committee. |
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Our views on risk oversight are consistent with those expressed by various regulatory bodies. In its December 2009 Final Rule release on Proxy Disclosure Enhancements, the SEC noted that risk oversight is a key competence of the board and that additional disclosures would improve investor and shareholder understanding of the role of the board in the organizations risk management practices. The final rules, which became effective on February 28, 2010, now explicitly require companies and mutual funds to describe (while allowing for some degree of flexibility) the boards role in the oversight of risk. |
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When analyzing the risk management practices of public companies, we take note of any significant losses or writedowns on financial assets and/or structured transactions. In cases where a company has disclosed a sizable loss or writedown, and where we find that the companys board-level risk committee contributed to the loss through poor oversight, we would recommend that shareholders vote against such committee members on that basis. In addition, in cases where a company maintains a significant level of financial risk exposure but fails to disclose any explicit form of board-level risk oversight (committee or |
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33 Considering that shareholder discontent clearly relates to the director who received a greater than 50% against vote rather than the nominating chair, we review the validity of the issue(s) that initially raised shareholder concern, follow-up on such matters, and only recommend voting against the nominating chair if a reasonable analysis suggests that it would be most appropriate. In rare cases, we will consider recommending against the nominating chair when a director receives a substantial (i.e., 25% or more) vote against based on the same analysis. |
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A-23
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otherwise) 34 , we will consider recommending to vote against the chairman of the board on that basis. However, we generally would not recommend voting against a combined chairman/CEO except in egregious cases. |
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Experience |
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We find that a directors past conduct is often indicative of future conduct and performance. We often find directors with a history of overpaying executives or of serving on boards where avoidable disasters have occurred appearing at companies that follow these same patterns. Glass Lewis has a proprietary database of directors serving at over 8,000 of the most widely held U.S. companies. We use this database to track the performance of directors across companies. |
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Voting Recommendations on the Basis of Director Experience |
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We typically recommend that shareholders vote against directors who have served on boards or as executives of companies with records of poor performance, inadequate risk oversight, overcompensation, audit- or accounting-related issues, and/or other indicators of mismanagement or actions against the interests of shareholders. 35 |
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Likewise, we examine the backgrounds of those who serve on key board committees to ensure that they have the required skills and diverse backgrounds to make informed judgments about the subject matter for which the committee is responsible. |
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Other Considerations |
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In addition to the three key characteristics independence, performance, experience that we use to evaluate board members, we consider conflict-of-interest issues as well as the size of the board of directors when making voting recommendations. |
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Conflicts of Interest |
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34 A committee responsible for risk management could be a dedicated risk committee, or another board committee, usually the audit committee but occasionally the finance committee, depending on a given companys board structure and method of disclosure. At some companies, the entire board is charged with risk management. |
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35 We typically apply a three-year look-back to such issues and also research to see whether the responsible directors have been up for election since the time of the failure, and if so, we take into account the percentage of support they received from shareholders. |
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We believe board members should be wholly free of identifiable and substantial conflicts of interest, regardless of the overall level of independent directors on the board. Accordingly, we recommend that shareholders vote against the following types of affiliated or inside directors: |
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A CFO who is on the board: In our view, the CFO holds a unique position relative to financial reporting and disclosure to shareholders. Because of the critical importance of financial disclosure and reporting, we believe the CFO should report to the board and not be a member of it. |
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2. |
A director who is on an excessive number of boards: We will typically recommend voting against a director who serves as an executive officer of any public company while serving on more than two other public company boards and any other director who serves on more than six public company boards typically receives an against recommendation from Glass Lewis. Academic literature suggests that one board takes up approximately 200 hours per year of each members time. We believe this limits the number of boards on which directors can effectively serve, especially executives at other companies. 36 Further, we note a recent study has shown that the average number of outside board seats held by CEOs of S&P 500 companies is 0.6, down from 0.8 in 2006 and 1.2 in 2001. 37 |
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3. |
A director, or a director who has an immediate family member, providing material consulting or other material professional services to the company: These services may include legal, consulting, or financial services. We question the need for the company to have consulting relationships with its directors. We view such relationships as creating conflicts for directors, since they may be forced to weigh their own interests against shareholder interests when making board decisions. In addition, a companys decisions regarding where to turn for the best professional services may be compromised when doing business with the professional services firm of one of the companys directors. |
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36 Our guidelines are similar to the standards set forth by the NACD in its Report of the NACD Blue Ribbon Commission on Director Professionalism, 2001 Edition, pp. 14-15 (also cited approvingly by the Conference Board in its Corporate Governance Best Practices: A Blueprint for the Post-Enron Era, 2002, p. 17), which suggested that CEOs should not serve on more than 2 additional boards, persons with full-time work should not serve on more than 4 additional boards, and others should not serve on more than six boards. |
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37 Spencer Stuart Board Index, 2011, p. 8. |
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A-25
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38 We do not apply a look-back period for this situation. The interlock policy applies to both public and private companies. We will also evaluate multiple board interlocks among non-insiders (i.e. multiple directors serving on the same boards at other companies), for evidence of a pattern of poor oversight. |
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39 Refer to Section IV. Governance Structure and the Shareholder Franchise for further discussion of our policies regarding anti-takeover measures, including poison pills. |
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40 The Conference Board, at p. 23 in its May 2003 report Corporate Governance Best Practices, Id., quotes one of its roundtable participants as stating, [w]hen youve got a 20 or 30 person corporate |
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A-26
Controlled Companies
Controlled companies present an exception to our independence recommendations. The boards function is to protect shareholder interests; however, when an individual or entity owns more than 50% of the voting shares, the interests of the majority of shareholders are the interests of that entity or individual. Consequently, Glass Lewis does not apply our usual two-thirds independence rule and therefore we will not recommend voting against boards whose composition reflects the makeup of the shareholder population.
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The independence exceptions that we make for controlled companies are as follows: |
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We do not require that controlled companies have boards that are at least two-thirds independent. So long as the insiders and/or affiliates are connected with the controlling entity, we accept the presence of non-independent board members. |
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The compensation committee and nominating and governance committees do not need to consist solely of independent directors. |
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We believe that standing nominating and corporate governance committees at controlled companies are unnecessary. Although having a committee charged with the duties of searching for, selecting, and nominating independent directors can be beneficial, the unique composition of a controlled companys shareholder base makes such committees weak and irrelevant. |
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b. |
Likewise, we believe that independent compensation committees at controlled companies are unnecessary. Although independent directors are the best choice for approving and monitoring senior executives pay, controlled companies serve a unique shareholder population whose voting power ensures the protection of its interests. As such, we believe that having affiliated directors on a controlled companys compensation committee is acceptable. However, given that a controlled company has certain obligations to minority shareholders we feel that an insider should not serve on the compensation committee. Therefore, Glass Lewis will recommend voting against any insider (the CEO or otherwise) serving on the compensation committee. |
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board, its one way of assuring that nothing is ever going to happen that the CEO doesnt want to happen. |
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A-27
A-28
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1. |
Adoption of a poison pill: in cases where a board implements a poison pill preceding an IPO, we will consider voting against the members of the board who served during the period of the poison pills adoption if the board (i) did not also commit to submit the poison pill to a shareholder vote within 12 months of the IPO or (ii) did not provide a sound rationale for adopting the pill and the pill does not expire in three years or less. In our view, adopting such an anti-takeover device unfairly penalizes future shareholders who (except for electing to buy or sell the stock) are unable to weigh in on a matter that could potentially negatively impact their ownership interest. This notion is strengthened when a board adopts a poison pill with a 5-10 year life immediately prior to having a public shareholder base so as to insulate management for a substantial amount of time while postponing and/or avoiding allowing public shareholders the ability to vote on the pills adoption. Such instances are indicative of boards that may subvert shareholders best interests following their IPO. |
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Adoption of an exclusive forum provision: consistent with our general approach to boards that adopt exclusive forum provisions without shareholder approval (refer to our discussion of nominating and governance committee performance in Section I of the guidelines), in cases where a board adopts such a provision for inclusion in a companys charter or bylaws before the companys IPO, we will recommend voting against the chairman of the governance committee, or, in the absence of such a committee, the chairman of the board, who served during the period of time when the provision was adopted. |
A-29
Thus, we focus on a short list of requirements, although many of our guidelines remain the same.
The following mutual fund policies are similar to the policies for regular public companies:
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Size of the board of directors: The board should be made up of between five and twenty directors. |
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The CFO on the board: Neither the CFO of the fund nor the CFO of the funds registered investment adviser should serve on the board. |
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Independence of the audit committee: The audit committee should consist solely of independent directors. |
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Audit committee financial expert: At least one member of the audit committee should be designated as the audit committee financial expert. |
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The following differences from regular public companies apply at mutual funds: |
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2. |
When the auditor is not up for ratification: We do not recommend voting against the audit committee if the auditor is not up for ratification because, due to the different legal structure of an investment company compared to an operating company, the auditor for the investment company (i.e., mutual fund) does not conduct the same level of financial review for each investment company as for an operating company. |
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3. |
Non-independent chairman: The SEC has proposed that the chairman of the fund board be independent. We agree that the roles of a mutual funds chairman and CEO should be separate. Although we believe this would be best at all companies, we recommend voting against the chairman of an investment companys nominating committee as well as the chairman of the board if the chairman and CEO of a mutual fund are the same person and the fund does not |
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have an independent lead or presiding director. Seven former SEC commissioners support the appointment of an independent chairman and we agree with them that an independent board chairman would be better able to create conditions favoring the long-term interests of fund shareholders than would a chairman who is an executive of the adviser. (See the comment letter sent to the SEC in support of the proposed rule at http://sec.gov/rules/proposed/s70304/s70304-179.pdf) |
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A-31
Given the empirical evidence suggesting staggered boards reduce a companys value and the increasing shareholder opposition to such a structure, Glass Lewis supports the declassification of boards and the annual election of directors.
Glass Lewis believes that director age and term limits typically are not in shareholders best interests. Too often age and term limits are used by boards as a crutch to remove board members who have served for an extended period of time. When used in that fashion, they are indicative of a board that has a difficult time making tough decisions.
Academic literature suggests that there is no evidence of a correlation between either length of tenure or age and director performance. On occasion, term limits can be used as a means to remove a director for boards that are unwilling to police their membership and to enforce turnover. Some shareholders support term limits as a way to force change when boards are unwilling to do so.
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A-32
In our view, a directors experience can be a valuable asset to shareholders because of the complex, critical issues that boards face. However, we support periodic director rotation to ensure a fresh perspective in the boardroom and the generation of new ideas and business strategies. We believe the board should implement such rotation instead of relying on arbitrary limits. When necessary, shareholders can address the issue of director rotation through director elections.
We believe that shareholders are better off monitoring the boards approach to corporate governance and the boards stewardship of company performance rather than imposing inflexible rules that dont necessarily correlate with returns or benefits for shareholders.
However, if a board adopts term/age limits, it should follow through and not waive such limits. If the board waives its term/age limits, Glass Lewis will consider recommending shareholders vote against the nominating and/or governance committees, unless the rule was waived with sufficient explanation, such as consummation of a corporate transaction like a merger.
Requiring Two or More Nominees per Board Seat
In an attempt to address lack of access to the ballot, shareholders sometimes propose that the board give shareholders a choice of directors for each open board seat in every election. However, we feel that policies requiring a selection of multiple nominees for each board seat would discourage prospective directors from accepting nominations. A prospective director could not be confident either that he or she is the boards clear choice or that he or she would be elected. Therefore, Glass Lewis generally will vote against such proposals.
Shareholder Access
Majority Vote for the Election of Directors
In stark contrast to the failure of shareholder access to gain acceptance, majority voting for the election of directors is fast becoming the de facto standard in corporate board elections. In our view, the majority voting proposals are an effort to make the case for shareholder impact on director elections on a company-specific basis.
A-33
While this proposal would not give shareholders the opportunity to nominate directors or lead to elections where shareholders have a choice among director candidates, if implemented, the proposal would allow shareholders to have a voice in determining whether the nominees proposed by the board should actually serve as the overseer-representatives of shareholders in the boardroom. We believe this would be a favorable outcome for shareholders.
Today, most US companies still elect directors by a plurality vote standard. Under that standard, if one shareholder holding only one share votes in favor of a nominee (including himself, if the director is a shareholder), that nominee wins the election and assumes a seat on the board. The common concern among companies with a plurality voting standard was the possibility that one or more directors would not receive a majority of votes, resulting in failed elections. This was of particular concern during the 1980s, an era of frequent takeovers and contests for control of companies.
Advantages of a majority vote standard
If a majority vote standard were implemented, a nominee would have to receive the support of a majority of the shares voted in order to be elected. Thus, shareholders could collectively vote to reject a director they believe will not pursue their best interests. We think that this minimal amount of protection for shareholders is reasonable and will not upset the corporate structure nor reduce the willingness of qualified shareholder-focused directors to serve in the future.
We believe that a majority vote standard will likely lead to more attentive directors. Occasional use of this power will likely prevent the election of directors with a record of ignoring shareholder interests in favor of other interests that conflict with those of
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A-34
investors. Glass Lewis will generally support proposals calling for the election of directors by a majority vote except for use in contested director elections.
In response to the high level of support majority voting has garnered, many companies have voluntarily taken steps to implement majority voting or modified approaches to majority voting. These steps range from a modified approach requiring directors that receive a majority of withheld votes to resign (e.g., Ashland Inc.) to actually requiring a majority vote of outstanding shares to elect directors (e.g., Intel).
We feel that the modified approach does not go far enough because requiring a director to resign is not the same as requiring a majority vote to elect a director and does not allow shareholders a definitive voice in the election process. Further, under the modified approach, the corporate governance committee could reject a resignation and, even if it accepts the resignation, the corporate governance committee decides on the directors replacement. And since the modified approach is usually adopted as a policy by the board or a board committee, it could be altered by the same board or committee at any time.
II. Transparency and Integrity of Financial Reporting
Auditor Ratification
The auditors role as gatekeeper is crucial in ensuring the integrity and transparency of the financial information necessary for protecting shareholder value. Shareholders rely on the auditor to ask tough questions and to do a thorough analysis of a companys books to ensure that the information provided to shareholders is complete, accurate, fair, and that it is a reasonable representation of a companys financial position. The only way shareholders can make rational investment decisions is if the market is equipped with accurate information about a companys fiscal health. As stated in the October 6, 2008 Final Report of the Advisory Committee on the Auditing Profession to the U.S. Department of the Treasury:
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The auditor is expected to offer critical and objective judgment on the financial matters under consideration, and actual and perceived absence of conflicts is critical to that expectation. The Committee believes that auditors, investors, public companies, and other market participants must understand the independence requirements and their objectives, and that auditors must adopt a mindset of |
A-35
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skepticism when facing situations that may compromise their independence. |
Voting Recommendations on Auditor Ratification
We generally support managements choice of auditor except when we believe the auditors independence or audit integrity has been compromised. Where a board has not allowed shareholders to review and ratify an auditor, we typically recommend voting against the audit committee chairman. When there have been material restatements of annual financial statements or material weakness in internal controls, we usually recommend voting against the entire audit committee.
Reasons why we may not recommend ratification of an auditor include:
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When audit fees plus audit-related fees total less than the tax fees and/or other non-audit fees. |
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Recent material restatements of annual financial statements, including those |
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48
Final
Report of the Advisory Committee on the Auditing Profession to the U.S.
Department of the Treasury. p. VIII:20, October 6, 2008.
A-36
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resulting in the reporting of material weaknesses in internal controls and including late filings by the company where the auditor bears some responsibility for the restatement or late filing. 49 |
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When the auditor performs prohibited services such as tax-shelter work, tax services for the CEO or CFO, or contingent-fee work, such as a fee based on a percentage of economic benefit to the company. |
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When audit fees are excessively low, especially when compared with other companies in the same industry. |
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When the company has aggressive accounting policies. |
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When the company has poor disclosure or lack of transparency in its financial statements. |
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Where the auditor limited its liability through its contract with the company or the audit contract requires the corporation to use alternative dispute resolution procedures without adequate justification. |
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We also look for other relationships or concerns with the auditor that might suggest a conflict between the auditors interests and shareholder interests. |
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Pension Accounting Issues
A pension accounting question often raised in proxy proposals is what effect, if any, projected returns on employee pension assets should have on a companys net income. This issue often arises in the executive-compensation context in a discussion of the extent to which pension accounting should be reflected in business performance for purposes of calculating payments to executives.
Glass Lewis believes that pension credits should not be included in measuring income that is used to award performance-based compensation. Because many of the assumptions used in accounting for retirement plans are subject to the companys discretion, management would have an obvious conflict of interest if pay were tied to pension income. In our view, projected income from pensions does not truly reflect a companys performance.
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A-37
III. The Link Between Compensation and Performance
Glass
Lewis carefully reviews the compensation awarded to senior executives, as we
believe that this is an important area in which the boards priorities are
revealed. Glass Lewis strongly believes executive compensation should be linked
directly with the performance of the business the executive is charged with
managing. We believe the most effective compensation arrangements provide for
an appropriate mix of performance-based short- and long-term incentives in
addition to base salary.
Glass
Lewis believes that comprehensive, timely and transparent disclosure of
executive pay is critical to allowing shareholders to evaluate the extent to
which the pay is keeping pace with company performance. When reviewing proxy
materials, Glass Lewis examines whether the company discloses the performance
metrics used to determine executive compensation. We recognize performance
metrics must necessarily vary depending on the company and industry, among
other factors, and may include items such as total shareholder return, earning
per share growth, return on equity, return on assets and revenue growth.
However, we believe companies should disclose why the specific performance
metrics were selected and how the actions they are designed to incentivize will
lead to better corporate performance.
Moreover, it is rarely in shareholders interests to disclose competitive data about individual salaries below the senior executive level. Such disclosure could create internal personnel discord that would be counterproductive for the company and its shareholders. While we favor full disclosure for senior executives and we view pay disclosure at the aggregate level (e.g., the number of employees being paid over a certain amount or in certain categories) as potentially useful, we do not believe shareholders need or will benefit from detailed reports about individual management employees other than the most senior executives.
Advisory Vote on Executive Compensation (Say-on-Pay)
The
Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank
Act) required most companies
50
to hold an advisory vote on
executive compensation at the first shareholder meeting that occurs six months
after enactment of the bill (January 21, 2011).
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50 Small reporting companies (as defined by the SEC as below $75,000,000 in market capitalization) received a two-year reprieve and will only be subject to say-on-pay requirements beginning at meetings held on or after January 21, 2013. |
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A-38
This
practice of allowing shareholders a non-binding vote on a companys
compensation report is standard practice in many non-US countries, and has been
a requirement for most companies in the United Kingdom since 2003 and in
Australia since 2005. Although Say-on-Pay proposals are non-binding, a high
level of against or abstain votes indicate substantial shareholder concern
about a companys compensation policies and procedures.
Given the complexity of most companies compensation programs, Glass Lewis applies a highly nuanced approach when analyzing advisory votes on executive compensation. We review each companys compensation on a case-by-case basis, recognizing that each company must be examined in the context of industry, size, maturity, performance, financial condition, its historic pay for performance practices, and any other relevant internal or external factors.
We believe that each company should design and apply specific compensation policies and practices that are appropriate to the circumstances of the company and, in particular, will attract and retain competent executives and other staff, while motivating them to grow the companys long-term shareholder value.
Where we find those specific policies and practices serve to reasonably align compensation with performance, and such practices are adequately disclosed, Glass Lewis will recommend supporting the companys approach. If, however, those specific policies and practices fail to demonstrably link compensation with performance, Glass Lewis will generally recommend voting against the say-on-pay proposal.
Glass Lewis focuses on four main areas when reviewing Say-on-Pay proposals:
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The overall design and structure of the Companys executive compensation program including performance metrics; |
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The quality and content of the Companys disclosure; |
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The quantum paid to executives; and |
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The link between compensation and performance as indicated by the Companys current and past pay-for-performance grades |
We also review any significant changes or modifications, and rationale for such changes, made to the Companys compensation structure or award amounts, including base salaries.
Say-on-Pay Voting Recommendations
A-39
In cases
where we find deficiencies in a companys compensation programs design,
implementation or management, we will recommend that shareholders vote against
the Say-on-Pay proposal. Generally such instances include evidence of a pattern
of poor pay-for-performance practices (i.e., deficient or failing pay for
performance grades), unclear or questionable disclosure regarding the overall
compensation structure (e.g., limited information regarding benchmarking
processes, limited rationale for bonus performance metrics and targets, etc.),
questionable adjustments to certain aspects of the overall compensation
structure (e.g., limited rationale for significant changes to performance
targets or metrics, the payout of guaranteed bonuses or sizable retention
grants, etc.), and/or other egregious compensation practices.
Although not an exhaustive list, the following issues when weighed together may cause Glass Lewis to recommend voting against a say-on-pay vote:
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Inappropriate peer group and/or benchmarking issues |
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Inadequate or no rationale for changes to peer groups |
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Egregious or excessive bonuses, equity awards or severance payments, including golden handshakes and golden parachutes |
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Guaranteed bonuses |
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Targeting overall levels of compensation at higher than median without adequate justification |
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Bonus or long-term plan targets set at less than mean or negative performance levels |
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Performance targets not sufficiently challenging, and/or providing for high potential payouts |
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Performance targets lowered, without justification |
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Discretionary bonuses paid when short- or long-term incentive plan targets were not met |
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Executive pay high relative to peers not justified by outstanding company performance |
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The terms of the long-term incentive plans are inappropriate (please see Long-Term Incentives below) |
In the
instance that a company has simply failed to provide sufficient disclosure of
its policies, we may recommend shareholders vote against this proposal solely
on this basis, regardless of the appropriateness of compensation levels.
A-40
Additional Scrutiny for Companies with
Significant Opposition in 2011
At companies that received a significant shareholder vote (anything greater than 25%) against their say on pay proposal in 2011, we believe the board should demonstrate some level of engagement and responsiveness to the shareholder concerns behind the discontent. While we recognize that sweeping changes cannot be made to a compensation program without due consideration and that a majority of shareholders voted in favor of the proposal, we will look for disclosure in the proxy statement and other publicly-disclosed filings that indicates the compensation committee is responding to the prior years vote results including engaging with large shareholders to identify the concerns causing the substantial vote against. In the absence of any evidence that the board is actively engaging shareholders on this issue and responding accordingly, we will recommend holding compensation committee members accountable for a failure to respond in consideration of the level of the vote against and the severity and history of the compensation problems.
Where we identify egregious compensation practices, we may also recommend voting against the compensation committee based on the practices or actions of its members during the year, such as approving large one-off payments, the inappropriate, unjustified use of discretion, or sustained poor pay for performance practices.
Short-Term Incentives
A short-term bonus or incentive (STI) should be demonstrably tied to performance. Whenever possible, we believe a mix of corporate and individual performance measures is appropriate. We would normally expect performance measures for STIs to be based on internal financial measures such as net profit after tax, EPS growth and divisional profitability as well as non-financial factors such as those related to safety, environmental issues, and customer satisfaction. However, we accept variations from these metrics if they are tied to the Companys business drivers.
Further, the target and potential maximum awards that can be achieved under STI awards should be disclosed. Shareholders should expect stretching performance targets for the maximum award to be achieved. Any increase in the potential maximum award should be clearly justified to shareholders.
Glass
Lewis recognizes that disclosure of some measures may include commercially
confidential information. Therefore, we believe it may be reasonable to exclude
such information in some cases as long as the company provides sufficient
justification for non-disclosure. However, where a short-term bonus has been
paid, companies should disclose the extent to which performance has been
achieved against relevant targets, including disclosure of the actual target
achieved.
A-41
Where
management has received significant STIs but short-term performance as measured
by such indicators as increase in profit and/or EPS growth over the previous
year
prima facie
appears to be
poor or negative, we believe the company should provide a clear explanation why
these significant short-term payments were made.
Long-Term Incentives
Glass Lewis recognizes the value of equity-based incentive programs. When used appropriately, they can provide a vehicle for linking an executives pay to company performance, thereby aligning their interests with those of shareholders. In addition, equity-based compensation can be an effective way to attract, retain and motivate key employees.
There are certain elements that Glass Lewis believes are common to most well-structured long-term incentive (LTI) plans. These include:
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No re-testing or lowering of performance conditions |
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Performance metrics that cannot be easily manipulated by management |
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Two or more performance metrics |
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At least one relative performance metric that compares the companys performance to a relevant peer group or index |
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Performance periods of at least three years |
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Stretching metrics that incentivize executives to strive for outstanding performance |
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Individual limits expressed as a percentage of base salary |
Performance measures should be carefully selected and should relate to the specific business/industry in which the company operates and, especially, the key value drivers of the companys business.
Glass
Lewis believes that measuring a companys performance with multiple metrics
serves to provide a more complete picture of the companys performance than a
single metric, which may focus too much management attention on a single target
and is therefore more susceptible to manipulation. External benchmarks should
be disclosed and transparent, such as total shareholder return (TSR) against
a well-selected sector index, peer group or other performance hurdle. The
rationale behind the selection of a specific index or peer group should be
disclosed. Internal benchmarks (e.g. earnings per share growth) should also be
disclosed and transparent, unless a cogent case for confidentiality is made and
fully explained.
A-42
We also
believe shareholders should evaluate the relative success of a companys
compensation programs, particularly existing equity-based incentive plans, in
linking pay and performance in evaluating new LTI plans to determine the impact
of additional stock awards. We will therefore review the companys
pay-for-performance grade, see below for more information, and specifically the
proportion of total compensation that is stock-based.
Pay for Performance
Glass Lewis believes an integral part of a well-structured compensation package is a successful link between pay and performance. Therefore, Glass Lewis developed a proprietary pay-for-performance model to evaluate the link between pay and performance of the top five executives at US companies. Our model benchmarks these executives pay and company performance against four peer groups and across seven performance metrics. Using a forced curve and a school letter-grade system, we grade companies from A-F according to their pay-for-performance linkage. The grades guide our evaluation of compensation committee effectiveness and we generally recommend voting against compensation committee of companies with a pattern of failing our pay-for-performance analysis.
We also use this analysis to inform our voting decisions on say-on-pay proposals. As such, if a company receives a failing grade from our proprietary model, we are likely to recommend shareholders to vote against the say-on-pay proposal. However, there may be exceptions to this rule such as when a company makes significant enhancements to its compensation programs.
Recoupment (Clawback) Provisions
Section 954 of the Dodd-Frank Act requires the SEC to create a rule requiring listed companies to adopt policies for recouping certain compensation during a three-year look-back period. The rule applies to incentive-based compensation paid to current or former executives if the company is required to prepare an accounting restatement due to erroneous data resulting from material non-compliance with any financial reporting requirements under the securities laws.
These
recoupment provisions are more stringent than under Section 304 of the
Sarbanes-Oxley Act in three respects: (i) the provisions extend to current or
former executive officers rather than only to the CEO and CFO; (ii) it has a
three-year look-back period (rather than a twelve-month look-back period); and
(iii) it allows for recovery of compensation based upon a financial restatement
due to erroneous data, and therefore does not require misconduct on the part of
the executive or other employees.
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Frequency of Say-on-Pay
The Dodd-Frank Act also requires companies to allow shareholders a non-binding vote on the frequency of say-on-pay votes, i.e. every one, two or three years. Additionally, Dodd-Frank requires companies to hold such votes on the frequency of say-on-pay votes at least once every six years.
We believe companies should submit say-on-pay votes to shareholders every year. We believe that the time and financial burdens to a company with regard to an annual vote are relatively small and incremental and are outweighed by the benefits to shareholders through more frequent accountability. Implementing biannual or triennial votes on executive compensation limits shareholders ability to hold the board accountable for its compensation practices through means other than voting against the compensation committee. Unless a company provides a compelling rationale or unique circumstances for say-on-pay votes less frequent than annually, we will generally recommend that shareholders support annual votes on compensation.
Vote on Golden Parachute Arrangements
The Dodd-Frank Act also requires companies to provide shareholders with a separate non-binding vote on approval of golden parachute compensation arrangements in connection with certain change-in-control transactions. However, if the golden parachute arrangements have previously been subject to a say-on-pay vote which shareholders approved, then this required vote is waived.
Glass Lewis believes the narrative and tabular disclosure of golden parachute arrangements will benefit all shareholders. Glass Lewis will analyze each golden parachute arrangement on a case-by-case basis, taking into account, among other items: the ultimate value of the payments particularly compared to the value of the transaction, the tenure and position of the executives in question, and the type of triggers involved (single vs double).
Equity-Based Compensation Plan Proposals
We believe
that equity compensation awards are useful, when not abused, for retaining
employees and providing an incentive for them to act in a way that will improve
company performance. Glass Lewis evaluates equity-based compensation plans
using a detailed model and analytical review.
Equity-based compensation programs have important differences from cash compensation plans and bonus programs. Accordingly, our model and analysis takes into account factors such as plan administration, the method and terms of exercise,
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repricing history, express or implied rights to reprice, and the presence of evergreen provisions.
Our
analysis is primarily quantitative and focused on the plans cost as compared
with the businesss operating metrics. We run twenty different analyses,
comparing the program with absolute limits we believe are key to equity value
creation and with a carefully chosen peer group. In general, our model seeks to
determine whether the proposed plan is either absolutely excessive or is more
than one standard deviation away from the average plan for the peer group on a
range of criteria, including dilution to shareholders and the projected annual
cost relative to the companys financial performance. Each of the twenty
analyses (and their constituent parts) is weighted and the plan is scored in
accordance with that weight.
In our analysis, we compare the programs expected annual expense with the businesss operating metrics to help determine whether the plan is excessive in light of company performance. We also compare the option plans expected annual cost to the enterprise value of the firm rather than to market capitalization because the employees, managers and directors of the firm contribute to the creation of enterprise value but not necessarily market capitalization (the biggest difference is seen where cash represents the vast majority of market capitalization). Finally, we do not rely exclusively on relative comparisons with averages because, in addition to creeping averages serving to inflate compensation, we believe that some absolute limits are warranted.
We evaluate equity plans based on certain overarching principles:
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Companies should seek more shares only when needed. |
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Requested share amounts should be small enough that companies seek shareholder approval every three to four years (or more frequently). |
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If a plan is relatively expensive, it should not grant options solely to senior executives and board members. |
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Annual net share count and voting power dilution should be limited. |
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Annual cost of the plan (especially if not shown on the income statement) should be reasonable as a percentage of financial results and should be in line with the peer group. |
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The expected annual cost of the plan should be proportional to the businesss value. |
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The intrinsic value that option grantees received in the past should be reasonable compared with the businesss financial results. |
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Plans should deliver value on a per-employee basis when compared with |
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programs at peer companies. |
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Plans should not permit re-pricing of stock options. |
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Plans should not contain excessively liberal administrative or payment terms. |
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Selected performance metrics should be challenging and appropriate, and should be subject to relative performance measurements. |
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Stock grants should be subject to minimum vesting and/or holding periods sufficient to ensure sustainable performance and promote retention. |
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Option Exchanges
Glass Lewis views option repricing plans and option exchange programs with great skepticism. Shareholders have substantial risk in owning stock and we believe that the employees, officers, and directors who receive stock options should be similarly situated to align their interests with shareholder interests.
We are concerned that option grantees who believe they will be rescued from underwater options will be more inclined to take unjustifiable risks. Moreover, a predictable pattern of repricing or exchanges substantially alters a stock options value because options that will practically never expire deeply out of the money are worth far more than options that carry a risk of expiration.
In short,
repricings and option exchange programs change the bargain between shareholders
and employees after the bargain has been struck.
There is one circumstance in which a repricing or option exchange program is acceptable: if macroeconomic or industry trends, rather than specific company issues, cause a stocks value to decline dramatically and the repricing is necessary to motivate and retain employees. In this circumstance, we think it fair to conclude that option grantees may be suffering from a risk that was not foreseeable when the original bargain was struck. In such a circumstance, we will recommend supporting a repricing only if the following conditions are true:
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Officers and board members cannot participate in the program; |
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The stock decline mirrors the market or industry price decline in terms of timing and approximates the decline in magnitude; |
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The exchange is value-neutral or value-creative to shareholders using very conservative assumptions and with a recognition of the adverse selection problems inherent in voluntary programs; and |
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Management and the board make a cogent case for needing to motivate and |
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retain existing employees, such as being in a competitive employment market. |
Option Backdating, Spring-Loading, and Bullet-Dodging
Glass Lewis views option backdating, and the related practices of spring-loading and bullet-dodging, as egregious actions that warrant holding the appropriate management and board members responsible. These practices are similar to re-pricing options and eliminate much of the downside risk inherent in an option grant that is designed to induce recipients to maximize shareholder return.
Backdating
an option is the act of changing an options grant date from the actual grant
date to an earlier date when the market price of the underlying stock was
lower, resulting in a lower exercise price for the option. Since 2006, Glass
Lewis has identified over 270 companies that have disclosed internal or
government investigations into their past stock-option grants.
Spring-loading is granting stock options while in possession of material, positive information that has not been disclosed publicly. Bullet-dodging is delaying the grants of stock options until after the release of material, negative information. This can allow option grants to be made at a lower price either before the release of positive news or following the release of negative news, assuming the stocks price will move up or down in response to the information. This raises a concern similar to that of insider trading, or the trading on material non-public information.
The exercise price for an option is determined on the day of grant, providing the recipient with the same market risk as an investor who bought shares on that date. However, where options were backdated, the executive or the board (or the compensation committee) changed the grant date retroactively. The new date may be at or near the lowest price for the year or period. This would be like allowing an investor to look back and select the lowest price of the year at which to buy shares.
A 2006
study of option grants made between 1996 and 2005 at 8,000 companies found that
option backdating can be an indication of poor internal controls. The study
found that option backdating was more likely to occur at companies without a
majority independent board and with a long-serving CEO; both factors, the study
concluded, were associated with greater CEO influence on the companys
compensation and governance practices.
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Where a company granted backdated options to an executive who is also a director, Glass Lewis will recommend voting against that executive/director, regardless of who
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51 Lucian Bebchuk, Yaniv Grinstein and Urs Peyer. LUCKY CEOs. November, 2006. |
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decided to make the award. In addition, Glass Lewis will recommend voting against those directors who either approved or allowed the backdating. Glass Lewis feels that executives and directors who either benefited from backdated options or authorized the practice have breached their fiduciary responsibility to shareholders.
Given the severe tax and legal liabilities to the company from backdating, Glass Lewis will consider recommending voting against members of the audit committee who served when options were backdated, a restatement occurs, material weaknesses in internal controls exist and disclosures indicate there was a lack of documentation. These committee members failed in their responsibility to ensure the integrity of the companys financial reports.
When a company has engaged in spring-loading or bullet-dodging, Glass Lewis will consider recommending voting against the compensation committee members where there has been a pattern of granting options at or near historic lows. Glass Lewis will also recommend voting against executives serving on the board who benefited from the spring-loading or bullet-dodging.
162(m) Plans
Section 162(m) of the Internal Revenue Code allows companies to deduct compensation in excess of $1 million for the CEO and the next three most highly compensated executive officers, excluding the CFO, upon shareholder approval of the excess compensation. Glass Lewis recognizes the value of executive incentive programs and the tax benefit of shareholder-approved incentive plans.
We believe
the best practice for companies is to provide robust disclosure to shareholders
so that they can make fully-informed judgments about the reasonableness of the
proposed compensation plan. To allow for meaningful shareholder review, we
prefer that disclosure should include specific performance metrics, a maximum
award pool, and a maximum award amount per employee. We also believe it is
important to analyze the estimated grants to see if they are reasonable and in
line with the companys peers.
We typically recommend voting against a 162(m) plan where: a company fails to provide at least a list of performance targets; a company fails to provide one of either a total pool or an individual maximum; or the proposed plan is excessive when compared with the plans of the companys peers.
The
companys record of aligning pay with performance (as evaluated using our
proprietary pay-for-performance model) also plays a role in our recommendation.
Where a company has a record of setting reasonable pay relative to business
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performance,
we generally recommend voting in favor of a plan even if the plan caps seem
large relative to peers because we recognize the value in special pay
arrangements for continued exceptional performance.
As with all other issues we review, our goal is to provide consistent but contextual advice given the specifics of the company and ongoing performance. Overall, we recognize that it is generally not in shareholders best interests to vote against such a plan and forgo the potential tax benefit since shareholder rejection of such plans will not curtail the awards; it will only prevent the tax deduction associated with them.
Director Compensation Plans
Glass
Lewis believes that non-employee directors should receive reasonable and
appropriate compensation for the time and effort they spend serving on the
board and its committees. Director fees should be competitive in order to
retain and attract qualified individuals. But excessive fees represent a
financial cost to the company and threaten to compromise the objectivity and
independence of non-employee directors. Therefore, a balance is required. We
will consider recommending supporting compensation plans that include option
grants or other equity-based awards that help to align the interests of outside
directors with those of shareholders. However, equity grants to directors
should not be performance-based to ensure directors are not incentivized in the
same manner as executives but rather serve as a check on imprudent risk-taking in
executive compensation plan design.
Glass
Lewis uses a proprietary model and analyst review to evaluate the costs of
equity plans compared to the plans of peer companies with similar market
capitalizations. We use the results of this model to guide our voting
recommendations on stock-based director compensation plans.
IV. G OVERNANCE S TRUCTURE AND THE S HAREHOLDER F RANCHISE
Anti-Takeover Measures
Poison Pills (Shareholder Rights Plans)
Glass Lewis believes that poison pill plans are not generally in shareholders best interests. They can reduce management accountability by substantially limiting opportunities for corporate takeovers. Rights plans can thus prevent shareholders from receiving a buy-out premium for their stock. Typically we recommend that shareholders
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vote against these plans to protect their financial interests and ensure that they have an opportunity to consider any offer for their shares, especially those at a premium.
We believe boards should be given wide latitude in directing company activities and in charting the companys course. However, on an issue such as this, where the link between the shareholders financial interests and their right to consider and accept buyout offers is substantial, we believe that shareholders should be allowed to vote on whether they support such a plans implementation. This issue is different from other matters that are typically left to board discretion. Its potential impact on and relation to shareholders is direct and substantial. It is also an issue in which management interests may be different from those of shareholders; thus, ensuring that shareholders have a voice is the only way to safeguard their interests.
In certain
circumstances, we will support a poison pill that is limited in scope to
accomplish a particular objective, such as the closing of an important merger,
or a pill that contains what we believe to be a reasonable qualifying offer
clause. We will consider supporting a poison pill plan if the qualifying offer
clause includes each of the following attributes:
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The form of offer is not required to be an all-cash transaction; |
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The offer is not required to remain open for more than 90 business days; |
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The offeror is permitted to amend the offer, reduce the offer, or otherwise change the terms; |
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There is no fairness opinion requirement; and |
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There is a low to no premium requirement. |
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Where these requirements are met, we typically feel comfortable that shareholders will have the opportunity to voice their opinion on any legitimate offer.
NOL Poison Pills
Similarly,
Glass Lewis may consider supporting a limited poison pill in the unique event
that a company seeks shareholder approval of a rights plan for the express
purpose of preserving Net Operating Losses (NOLs). While companies with NOLs
can generally carry these losses forward to offset future taxable income,
Section 382 of the Internal Revenue Code limits companies ability to use NOLs
in the event of a change of ownership.
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In this case, a company
may adopt or amend a poison pill (NOL pill) in
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order to prevent an inadvertent change of ownership by multiple investors purchasing small chunks of stock at the same time, and thereby preserve the ability to carry the NOLs forward. Often such NOL pills have trigger thresholds much lower than the common 15% or 20% thresholds, with some NOL pill triggers as low as 5%.
Glass Lewis evaluates NOL pills on a strictly case-by-case basis taking into consideration, among other factors, the value of the NOLs to the company, the likelihood of a change of ownership based on the size of the holding and the nature of the larger shareholders, the trigger threshold and whether the term of the plan is limited in duration (i.e., whether it contains a reasonable sunset provision) or is subject to periodic board review and/or shareholder ratification. However, we will recommend that shareholders vote against a proposal to adopt or amend a pill to include NOL protective provisions if the company has adopted a more narrowly tailored means of preventing a change in control to preserve its NOLs. For example, a company may limit share transfers in its charter to prevent a change of ownership from occurring.
Furthermore, we believe that shareholders should be offered the opportunity to vote on any adoption or renewal of a NOL pill regardless of any potential tax benefit that it offers a company. As such, we will consider recommending voting against those members of the board who served at the time when an NOL pill was adopted without shareholder approval within the prior twelve months and where the NOL pill is not subject to shareholder ratification.
Fair Price Provisions
Fair price
provisions, which are rare, require that certain minimum price and procedural
requirements be observed by any party that acquires more than a specified
percentage of a corporations common stock. The provision is intended to
protect minority shareholder value when an acquirer seeks to accomplish a
merger or other transaction which would eliminate or change the interests of
the minority stockholders. The provision is generally applied against the
acquirer unless the takeover is approved by a majority of continuing
directors and holders of a majority, in some cases a supermajority as high as
80%, of the combined voting power of all stock entitled to vote to alter,
amend, or repeal the above provisions.
The effect of a fair price provision is to require approval of any merger or business combination with an interested stockholder by 51% of the voting stock of the company, excluding the shares held by the interested stockholder. An interested stockholder is generally considered to be a holder of 10% or more of the companys outstanding stock, but the trigger can vary.
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Generally, provisions are put in place for the ostensible purpose of preventing a back-end merger where the interested stockholder would be able to pay a lower price for the remaining shares of the company than he or she paid to gain control. The effect of a fair price provision on shareholders, however, is to limit their ability to gain a premium for their shares through a partial tender offer or open market acquisition which typically raise the share price, often significantly. A fair price provision discourages such transactions because of the potential costs of seeking shareholder approval and because of the restrictions on purchase price for completing a merger or other transaction at a later time.
Glass Lewis believes that fair price provisions, while sometimes protecting shareholders from abuse in a takeover situation, more often act as an impediment to takeovers, potentially limiting gains to shareholders from a variety of transactions that could significantly increase share price. In some cases, even the independent directors of the board cannot make exceptions when such exceptions may be in the best interests of shareholders. Given the existence of state law protections for minority shareholders such as Section 203 of the Delaware Corporations Code, we believe it is in the best interests of shareholders to remove fair price provisions.
Reincorporation
In general, Glass Lewis believes that the board is in the best position to determine the appropriate jurisdiction of incorporation for the company. When examining a management proposal to reincorporate to a different state or country, we review the relevant financial benefits, generally related to improved corporate tax treatment, as well as changes in corporate governance provisions, especially those relating to shareholder rights, resulting from the change in domicile. Where the financial benefits are de minimis and there is a decrease in shareholder rights, we will recommend voting against the transaction.
However, costly, shareholder-initiated reincorporations are typically not the best route to achieve the furtherance of shareholder rights. We believe shareholders are generally better served by proposing specific shareholder resolutions addressing pertinent issues which may be implemented at a lower cost, and perhaps even with board approval. However, when shareholders propose a shift into a jurisdiction with enhanced shareholder rights, Glass Lewis examines the significant ways would the Company benefit from shifting jurisdictions including the following:
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Is the board sufficiently independent? |
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Does the Company have anti-takeover protections such as a poison pill or classified board in place? |
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Has the board been previously unresponsive to shareholders (such as failing to implement a shareholder proposal that received majority shareholder support)? |
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Do shareholders have the right to call special meetings of shareholders? |
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Are there other material governance issues at the Company? |
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Has the Companys performance matched or exceeded its peers in the past one and three years? |
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How has the Company ranked in Glass Lewis pay-for-performance analysis during the last three years? |
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Does the company have an independent chairman? |
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We note, however, that we will only support shareholder proposals to change a companys place of incorporation in exceptional circumstances.
EXCLUSIVE FORUM PROVISIONS
Glass Lewis believes that charter or bylaw provisions limiting a shareholders choice of legal venue are not in the best interests of shareholders. Such clauses may effectively discourage the use of shareholder derivative claims by increasing their associated costs and making them more difficult to pursue. As such, shareholders should be wary about approving any limitation on their legal recourse including limiting themselves to a single jurisdiction (e.g. Delaware) without compelling evidence that it will benefit shareholders.
For this reason, we recommend that shareholders vote against any bylaw
or charter amendment seeking to adopt an exclusive forum provision. Moreover,
in the event a board seeks shareholder approval of a forum selection clause
pursuant to a bundled bylaw amendment rather than as a separate proposal, we will
weigh the importance of the other bundled provisions when determining the vote
recommendation on the proposal. We will nonetheless recommend voting against
the chairman of the governance committee for bundling disparate proposals into
a single proposal (refer to our discussion of nominating and governance
committee performance in Section I of the guidelines).
Authorized Shares
Glass Lewis believes that adequate capital stock is important to a companys operation. When analyzing a request for additional shares, we typically review four common reasons why a company might need additional capital stock:
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Stock Split We typically consider three metrics when evaluating whether we think a stock split is likely or necessary: The historical stock pre-split price, if any; the current price relative to the companys most common trading price over the |
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past 52 weeks; and some absolute limits on stock price that, in our view, either always make a stock split appropriate if desired by management or would almost never be a reasonable price at which to split a stock. |
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Shareholder Defenses Additional authorized shares could be used to bolster takeover defenses such as a poison pill. Proxy filings often discuss the usefulness of additional shares in defending against or discouraging a hostile takeover as a reason for a requested increase. Glass Lewis is typically against such defenses and will oppose actions intended to bolster such defenses. |
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Financing for Acquisitions We look at whether the company has a history of using stock for acquisitions and attempt to determine what levels of stock have typically been required to accomplish such transactions. Likewise, we look to see whether this is discussed as a reason for additional shares in the proxy. |
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Financing for Operations We review the companys cash position and its ability to secure financing through borrowing or other means. We look at the companys history of capitalization and whether the company has had to use stock in the recent past as a means of raising capital. |
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Issuing additional shares can dilute existing holders in limited circumstances. Further, the availability of additional shares, where the board has discretion to implement a poison pill, can often serve as a deterrent to interested suitors. Accordingly, where we find that the company has not detailed a plan for use of the proposed shares, or where the number of shares far exceeds those needed to accomplish a detailed plan, we typically recommend against the authorization of additional shares.
While we think that having adequate shares to allow management to make quick decisions and effectively operate the business is critical, we prefer that, for significant transactions, management come to shareholders to justify their use of additional shares rather than providing a blank check in the form of a large pool of unallocated shares available for any purpose.
Advance Notice Requirements
We typically recommend that shareholders vote against proposals that would require advance notice of shareholder proposals or of director nominees.
These proposals typically attempt to require a certain amount of notice before shareholders are allowed to place proposals on the ballot. Notice requirements typically range between three to six months prior to the annual meeting. Advance notice requirements typically make it impossible for a shareholder who misses the deadline to present a shareholder proposal or a director nominee that might be in the best interests of the company and its shareholders.
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We believe shareholders should be able to review and vote on all proposals and director nominees. Shareholders can always vote against proposals that appear with little prior notice. Shareholders, as owners of a business, are capable of identifying issues on which they have sufficient information and ignoring issues on which they have insufficient information. Setting arbitrary notice restrictions limits the opportunity for shareholders to raise issues that may come up after the window closes.
Voting Structure
Cumulative Voting
Cumulative voting increases the ability of minority shareholders to
elect a director by allowing shareholders to cast as many shares of the stock
they own multiplied by the number of directors to be elected. As companies
generally have multiple nominees up for election, cumulative voting allows
shareholders to cast all of their votes for a single nominee, or a smaller
number of nominees than up for election, thereby raising the likelihood of
electing one or more of their preferred nominees to the board. It can be
important when a board is controlled by insiders or affiliates and where the
companys ownership structure includes one or more shareholders who control a
majority-voting block of company stock.
Glass Lewis believes that cumulative voting generally acts as a safeguard for shareholders by ensuring that those who hold a significant minority of shares can elect a candidate of their choosing to the board. This allows the creation of boards that are responsive to the interests of all shareholders rather than just a small group of large holders.
However, academic literature indicates that where a highly independent
board is in place and the company has a shareholder-friendly governance
structure, shareholders may be better off without cumulative voting. The
analysis underlying this literature indicates that shareholder returns at firms
with good governance structures are lower and that boards can become
factionalized and prone to evaluating the needs of special interests over the
general interests of shareholders collectively.
We review cumulative voting proposals on a case-by-case basis,
factoring in the independence of the board and the status of the companys governance
structure. But we typically find these proposals on ballots at companies where
independence is lacking and where the appropriate checks and balances favoring
shareholders are not in place. In those instances we typically recommend in
favor of cumulative voting.
Where a company has adopted a true majority vote standard (i.e., where a director must receive a majority of votes cast to be elected, as opposed to a modified policy
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indicated by a resignation policy only), Glass Lewis will recommend voting against cumulative voting proposals due to the incompatibility of the two election methods. For companies that have not adopted a true majority voting standard but have adopted some form of majority voting, Glass Lewis will also generally recommend voting against cumulative voting proposals if the company has not adopted antitakeover protections and has been responsive to shareholders.
Where a company has not adopted a majority voting standard and is facing both a shareholder proposal to adopt majority voting and a shareholder proposal to adopt cumulative voting, Glass Lewis will support only the majority voting proposal. When a company has both majority voting and cumulative voting in place, there is a higher likelihood of one or more directors not being elected as a result of not receiving a majority vote. This is because shareholders exercising the right to cumulate their votes could unintentionally cause the failed election of one or more directors for whom shareholders do not cumulate votes.
Supermajority Vote Requirements
Glass Lewis believes that supermajority vote requirements impede shareholder action on ballot items critical to shareholder interests. An example is in the takeover context, where supermajority vote requirements can strongly limit the voice of shareholders in making decisions on such crucial matters as selling the business. This in turn degrades share value and can limit the possibility of buyout premiums to shareholders. Moreover, we believe that a supermajority vote requirement can enable a small group of shareholders to overrule the will of the majority shareholders. We believe that a simple majority is appropriate to approve all matters presented to shareholders.
Transaction of Other Business
We typically recommend that shareholders not give their proxy to
management to vote on any other business items that may properly come before an
annual or special meeting. In our opinion, granting unfettered discretion is
unwise.
Anti-Greenmail Proposals
Glass Lewis will support proposals to adopt a provision preventing the payment of greenmail, which would serve to prevent companies from buying back company stock at significant premiums from a certain shareholder. Since a large or majority shareholder could attempt to compel a board into purchasing its shares at a large premium, the anti-greenmail provision would generally require that a majority of shareholders other than the majority shareholder approve the buyback.
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Mutual Funds: Investment Policies and Advisory Agreements
Glass Lewis believes that decisions about a funds structure and/or a funds relationship with its investment advisor or sub-advisors are generally best left to management and the members of the board, absent a showing of egregious or illegal conduct that might threaten shareholder value. As such, we focus our analyses of such proposals on the following main areas:
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The terms of any amended advisory or sub-advisory agreement; |
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Any changes in the fee structure paid to the investment advisor; and |
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Any material changes to the funds investment objective or strategy. |
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We generally support amendments to a funds investment advisory agreement absent a material change that is not in the best interests of shareholders. A significant increase in the fees paid to an investment advisor would be reason for us to consider recommending voting against a proposed amendment to an investment advisory agreement. However, in certain cases, we are more inclined to support an increase in advisory fees if such increases result from being performance-based rather than asset-based. Furthermore, we generally support sub-advisory agreements between a funds advisor and sub-advisor, primarily because the fees received by the sub-advisor are paid by the advisor, and not by the fund.
In matters pertaining to a funds investment objective or strategy, we believe shareholders are best served when a funds objective or strategy closely resembles the investment discipline shareholders understood and selected when they initially bought into the fund. As such, we generally recommend voting against amendments to a funds investment objective or strategy when the proposed changes would leave shareholders with stakes in a fund that is noticeably different than when originally contemplated, and which could therefore potentially negatively impact some investors diversification strategies.
V. C
OMPENSATION
, E
NVIRONMENTAL
, S
OCIAL AND
G
OVERNANCE
S
HAREHOLDER
I
NITIATIVES
Glass Lewis typically prefers to leave decisions regarding day-to-day
management and policy decisions, including those related to social,
environmental or political issues, to management and the board, except when
there is a clear link between the proposal and value enhancement or risk mitigation.
We feel strongly that shareholders should not attempt to micromanage the
company, its businesses or its executives through the
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shareholder initiative process. Rather, we believe shareholders should
use their influence to push for governance structures that protect shareholders
and promote director accountability. Shareholders should then put in place a
board they can trust to make informed decisions that are in the best interests
of the business and its owners, and then hold directors accountable for
management and policy decisions through board elections. However, we recognize
that support of appropriately crafted shareholder initiatives may at times
serve to promote or protect shareholder value.
To this end, Glass Lewis evaluates shareholder proposals on a case-by-case basis. We generally recommend supporting shareholder proposals calling for the elimination of, as well as to require shareholder approval of, antitakeover devices such as poison pills and classified boards. We generally recommend supporting proposals likely to increase and/or protect shareholder value and also those that promote the furtherance of shareholder rights. In addition, we also generally recommend supporting proposals that promote director accountability and those that seek to improve compensation practices, especially those promoting a closer link between compensation and performance.
The following is a discussion of Glass Lewis approach to certain
common shareholder resolutions. We note that the following is not an exhaustive
list of all shareholder proposals.
Compensation
Glass Lewis carefully reviews executive compensation since we believe
that this is an important area in which the boards priorities and
effectiveness are revealed. Executives should be compensated with appropriate
base salaries and incentivized with additional awards in cash and equity only
when their performance and that of the company warrants such rewards.
Compensation, especially when also in line with the compensation paid by the
companys peers, should lead to positive results for shareholders and ensure
the use of appropriate incentives that drives those results over time.
However, as a general rule, Glass Lewis does not believe shareholders
should be involved in the approval and negotiation of compensation packages.
Such matters should be left to the boards compensation committee, which can be
held accountable for its decisions through the election of directors.
Therefore, Glass Lewis closely scrutinizes shareholder proposals relating to
compensation to determine if the requested action or disclosure has already
accomplished or mandated and whether it allows sufficient, appropriate
discretion to the board to design and implement reasonable compensation
programs.
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Disclosure of Individual Compensation
Glass Lewis believes that disclosure of information regarding compensation is critical to allowing shareholders to evaluate the extent to which a companys pay is based on performance. However, we recognize that the SEC currently mandates significant executive compensation disclosure. In some cases, providing information beyond that which is required by the SEC, such as the details of individual employment agreements of employees below the senior level, could create internal personnel tension or put the company at a competitive disadvantage, prompting employee poaching by competitors. Further, it is difficult to see how this information would be beneficial to shareholders. Given these concerns, Glass Lewis typically does not believe that shareholders would benefit from additional disclosure of individual compensation packages beyond the significant level that is already required; we therefore typically recommend voting against shareholder proposals seeking such detailed disclosure. We will, however, review each proposal on a case by basis, taking into account the companys history of aligning executive compensation and the creation of shareholder value.
Linking Pay with Performance
Glass Lewis views performance-based compensation as an effective means of motivating executives to act in the best interests of shareholders. In our view, an executives compensation should be specific to the company and its performance, as well as tied to the executives achievements within the company.
However, when firms have inadequately linked executive compensation and company performance we will consider recommending supporting reasonable proposals seeking that a percentage of equity awards be tied to performance criteria. We will also consider supporting appropriately crafted proposals requesting that the compensation committee include multiple performance metrics when setting executive compensation, provided that the terms of the shareholder proposal are not overly prescriptive. Though boards often argue that these types of restrictions unduly hinder their ability to attract talent we believe boards can develop an effective, consistent and reliable approach to remuneration utilizing a wide range (and an appropriate mix) of fixed and performance-based compensation.
Retirement Benefits & Severance
As a general rule, Glass Lewis believes that shareholders should not be involved in the approval of individual severance plans. Such matters should be left to the boards compensation committee, which can be held accountable for its decisions through the election of its director members.
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However, when proposals are crafted to only require approval if the
benefit exceeds 2.99 times the amount of the executives base salary plus
bonus, Glass Lewis typically supports such requests. Above this threshold,
based on the executives average annual compensation for the most recent five
years, the company can no longer deduct severance payments as an expense, and
thus shareholders are deprived of a valuable benefit without an offsetting
incentive to the executive. We believe that shareholders should be consulted
before relinquishing such a right, and we believe implementing such policies
would still leave companies with sufficient freedom to enter into appropriate
severance arrangements.
Following the passage of the Dodd-Frank Wall Street Reform and Consumer
Protection Act (Dodd-Frank), the SEC proposed rules that would require that
public companies hold advisory shareholder votes on compensation arrangements
and understandings in connection with merger transactions, also known as
golden parachute transactions. Effective April 4, 2011, the SEC requires that
companies seeking shareholder approval of a merger or acquisition transaction
must also provide disclosure of certain golden parachute compensation
arrangements and, in certain circumstances, conduct a separate shareholder
advisory vote to approve golden parachute compensation arrangements.
Bonus Recoupments (Clawbacks)
We believe it is prudent for boards to adopt detailed and stringent
policies whereby, in the event of a restatement of financial results, the board
will review all performance related bonuses and awards made to senior
executives during the period covered by a restatement and will, to the extent
feasible, recoup such bonuses to the extent that performance goals were not
achieved. While the Dodd-Frank Act mandates that all companies adopt clawback
policies that will require companies to develop a policy to recover compensation
paid to current and former executives erroneously paid during the three year
prior to a restatement, the SEC has yet to finalize the relevant rules. As a
result, we expect to see shareholder proposals regarding clawbacks in the
upcoming proxy season.
When examining proposals requesting that companies adopt recoupment
policies, Glass Lewis will first review any relevant policies currently in
place. When the board has already committed to a proper course, and the current
policy covers the major tenets of the proposal, we see no need for further
action. Further, in some instances, shareholder proposals may call for board
action that contravenes legal obligations under existing employment agreements.
In other cases proposals may excessively limit the boards ability to exercise
judgment and reasonable discretion, which may or may not be warranted,
depending on the specific situation of the company in question. We believe
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it is reasonable that a mandatory recoupment policy should only affect senior
executives and those directly responsible for the companys accounting errors.
We note that where a company is entering into a new executive employment contract that does not include a clawback provision and the company has had a material restatement in the recent past, Glass Lewis will recommend voting against the responsible members of the compensation committee. The compensation committee has an obligation to shareholders to include reasonable controls in executive contracts to prevent payments in the case of inappropriate behavior.
Golden Coffins
Glass Lewis does not believe that the payment of substantial, unearned posthumous compensation provides an effective incentive to executives or aligns the interests of executives with those of shareholders. Glass Lewis firmly believes that compensation paid to executives should be clearly linked to the creation of shareholder value. As such, Glass Lewis favors compensation plans centered on the payment of awards contingent upon the satisfaction of sufficiently stretching and appropriate performance metrics. The payment of posthumous unearned and unvested awards should be subject to shareholder approval, if not removed from compensation policies entirely. Shareholders should be skeptical regarding any positive benefit they derive from costly payments made to executives who are no longer in any position to affect company performance.
To that end, we will consider supporting a reasonably crafted shareholder proposal seeking to prohibit, or require shareholder approval of, the making or promising of any survivor benefit payments to senior executives estates or beneficiaries. We will not recommend supporting proposals that would, upon passage, violate existing contractual obligations or the terms of compensation plans currently in effect.
Retention of Shares until Retirement
We strongly support the linking of executive pay to the creation of
long-term sustainable shareholder value and therefore believe shareholders
should encourage executives to retain some level of shares acquired through
equity compensation programs to provide continued alignment with shareholders.
However, generally we do not believe that requiring senior executives to retain
all or an unduly high percentage of shares acquired through equity compensation
programs following the termination of their employment is the most effective or
desirable way to accomplish this goal. Rather, we believe that restricting
executives ability to exercise all or a supermajority of otherwise vested
equity awards until they leave the company may hinder the ability of the
compensation committee to both attract and retain executive talent. In our
view, otherwise qualified and willing candidates could be dissuaded from
accepting
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employment if he/she believes that his/her compensation could be
dramatically affected by financial results unrelated to their own personal
performance or tenure at the company. Alternatively, an overly strict policy
could encourage existing employees to quit in order to realize the value locked
in their incentive awards. As such, we will not typically recommend supporting
proposals requiring the retention of significant amounts of equity compensation
following termination of employment at target firms.
Tax Gross-Ups
Tax gross-ups can act as an anti-takeover measure, as larger payouts to executives result in larger gross-ups, which could artificially inflate the ultimate purchase price under a takeover or merger scenario. Additionally, gross-ups can result in opaque compensation packages where shareholders are unlikely to be aware of the total compensation an executive may receive. Further, we believe that in instances where companies have severance agreements in place for executives, payments made pursuant to such arrangements are often large enough to soften the blow of any additional excise taxes. Finally, such payments are not performance based, providing no incentive to recipients and, if large, can be a significant cost to companies.
Given the above, we will typically recommend supporting proposals requesting that a compensation committee adopt a policy that it will not make or promise to make to its senior executives any tax gross-up payments, except those applicable to management employees of the company generally, such as a relocation or expatriate tax equalization policy.
Linking Executive Pay to Environmental and Social Criteria
We recognize that a companys involvement in environmentally sensitive and labor-intensive industries influences the degree to which a firms overall strategy must weigh environmental and social concerns. However, we also understand that the value generated by incentivizing executives to prioritize environmental and social issues is difficult to quantify and therefore measure, and necessarily varies among industries and companies.
When reviewing such proposals seeking to tie executive compensation to
environmental or social practices, we will review the target firms compliance
with (or contravention of) applicable laws and regulations, and examine any
history of environmental and social related concerns including those resulting
in material investigations, lawsuits, fines and settlements. We will also
review the firms current compensation policies and practice. However, with
respect to executive compensation, Glass Lewis generally believes that such
policies should be left to the compensation committee.
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Declassification of the Board
Glass Lewis believes that classified boards (or staggered boards) do not serve the best interests of shareholders. Empirical studies have shown that: (i) companies with classified boards may show a reduction in firm value; (ii) in the context of hostile takeovers, classified boards operate as a takeover defense, which entrenches management, discourages potential acquirers and delivers less return to shareholders; and (iii) companies with classified boards are less likely to receive takeover bids than those with single class boards. Annual election of directors provides increased accountability and requires directors to focus on the interests of shareholders. When companies have classified boards shareholders are deprived of the right to voice annual opinions on the quality of oversight exercised by their representatives.
Given the above, Glass Lewis believes that classified boards are not in the best interests of shareholders and will continue to recommend shareholders support proposals seeking their repeal.
Right of Shareholders to Call a Special Meeting
Glass Lewis strongly believes that shareholders should have the ability to call meetings of shareholders between annual meetings to consider matters that require prompt attention. However, in order to prevent abuse and waste of corporate resources by a small minority of shareholders, we believe that shareholders representing at least a sizable minority of shares must support such a meeting prior to its calling. Should the threshold be set too low, companies might frequently be subjected to meetings whose effect could be the disruption of normal business operations in order to focus on the interests of only a small minority of owners. Typically we believe this threshold should not fall below 10-15% of shares, depending on company size.
In our case-by-case evaluations, we consider the following:
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Company size |
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Shareholder base in both percentage of ownership and type of shareholder (e.g., hedge fund, activist investor, mutual fund, pension fund, etc.) |
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Responsiveness of board and management to shareholders evidenced by progressive shareholder rights policies (e.g., majority voting, declassifying boards, etc.) and reaction to shareholder proposals |
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Company performance and steps taken to improve bad performance (e.g., new executives/directors, spin-offs, etc.) |
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Existence of anti-takeover protections or other entrenchment devices |
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Opportunities for shareholder action (e.g., ability to act by written consent) |
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Existing ability for shareholders to call a special meeting |
Right of Shareholders to Act by Written Consent
Glass Lewis strongly supports shareholders right to act by written consent. The right to act by written consent enables shareholders to take action on important issues that arise between annual meetings. However, we believe such rights should be limited to at least the minimum number of votes that would be necessary to authorize the action at a meeting at which all shareholders entitled to vote were present and voting.
In addition to evaluating the threshold for which written consent may be used (e.g. majority of votes cast or outstanding), we will consider the following when evaluating such shareholder proposals:
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Company size |
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Shareholder base in both percentage of ownership and type of shareholder (e.g., hedge fund, activist investor, mutual fund, pension fund, etc.) |
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Responsiveness of board and management to shareholders evidenced by progressive shareholder rights policies (e.g., majority voting, declassifying boards, etc.) and reaction to shareholder proposals |
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Company performance and steps taken to improve bad performance (e.g., new executives/directors, spin offs, etc.) |
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Existence of anti-takeover protections or other entrenchment devices |
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Opportunities for shareholder action (e.g., ability and threshold to call a special meeting) |
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Existing ability for shareholders to act by written consent |
Board Composition
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nominating committee, which is generally responsible for establishing
and implementing policies regarding the composition of the board. Members of
this committee may be held accountable through the director election process.
However, we will consider supporting reasonable, well-crafted proposals to
increase board diversity where there is evidence a boards lack of diversity
lead to a decline in shareholder value.
Reimbursement of Solicitation Expenses
Where a dissident shareholder is seeking reimbursement for expenses incurred in waging a contest or submitting a shareholder proposal and has received the support of a majority of shareholders, Glass Lewis generally will recommend in favor of reimbursing the dissident for reasonable expenses. In those rare cases where a shareholder has put his or her own time and money into organizing a successful campaign to unseat a poorly performing director (or directors) or sought support for a shareholder proposal, we feel that the shareholder should be entitled to reimbursement of expenses by other shareholders, via the company. We believe that, in such cases, shareholders express their agreement by virtue of their majority vote for the dissident (or the shareholder proposal) and will share in the expected improvement in company performance.
Majority Vote for the Election of Directors
If a majority vote standard were implemented, shareholders could collectively vote to reject a director they believe will not pursue their best interests. We think that this minimal amount of protection for shareholders is reasonable and will not upset the corporate structure nor reduce the willingness of qualified shareholder-focused directors to serve in the future.
We believe that a majority vote standard will likely lead to more attentive directors. Further, occasional use of this power will likely prevent the election of directors with a record of ignoring shareholder interests. Glass Lewis will generally support shareholder proposals calling for the election of directors by a majority vote, except for use in contested director elections.
Cumulative Vote for the Election of Directors
Glass Lewis believes that cumulative voting generally acts as a
safeguard for shareholders by ensuring that those who hold a significant
minority of shares can elect a candidate of their choosing to the board. This
allows the creation of boards that are responsive to the interests of all
shareholders rather than just a small group of large holders. However, when a
company has both majority voting and cumulative voting in place, there is a
higher likelihood of one or more directors not being elected as a result
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of not receiving a majority vote. This is because shareholders
exercising the right to cumulate their votes could unintentionally cause the
failed election of one or more directors for whom shareholders do not cumulate
votes.
Given the above, where a company (i) has adopted a true majority vote standard; (ii) has simultaneously proposed a management-initiated true majority vote standard; or (iii) is simultaneously the target of a true majority vote standard shareholder proposal, Glass Lewis will recommend voting against cumulative voting proposals due to the potential incompatibility of the two election methods.
For companies that have not adopted a true majority voting standard but have adopted some form of majority voting, Glass Lewis will also generally recommend voting against cumulative voting proposals if the company has not adopted antitakeover protections and has been responsive to shareholders.
Supermajority Vote Requirements
We believe that a simple majority is appropriate to approve all matters presented to shareholders, and will recommend that shareholders vote accordingly. Glass Lewis believes that supermajority vote requirements impede shareholder action on ballot items critical to shareholder interests. In a takeover context supermajority vote requirements can strongly limit the voice of shareholders in making decisions on crucial matters such as selling the business. These limitations in turn may degrade share value and can reduce the possibility of buyout premiums for shareholders. Moreover, we believe that a supermajority vote requirement can enable a small group of shareholders to overrule the will of the majority of shareholders.
Independent Chairman
Glass Lewis views an independent chairman as better able to oversee the executives and set a pro-shareholder agenda in the absence of the conflicts that a CEO, executive insider, or close company affiliate may face. Separating the roles of CEO and chairman may lead to a more proactive and effective board of directors. The presence of an independent chairman fosters the creation of a thoughtful and dynamic board, not dominated by the views of senior management. We believe that the separation of these two key roles eliminates the conflict of interest that inevitably occurs when a CEO, or other executive, is responsible for self-oversight. As such, we will typically support reasonably crafted shareholder proposals seeking the installation of an independent chairman at a target company. However, we will not support proposals that include overly prescriptive definitions of independent.
Proxy Access
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Shareholders have consistently sought mechanisms through which they
could secure a meaningful voice in director elections in recent years. While
many of these efforts have centered on regulatory changes at the SEC, the
United States Congress and the Obama Administration have placed Proxy Access
in the spotlight of the U.S. Governments most recent corporate governance-related
financial reforms. Regulations allowing or mandating the reimbursement of
solicitation expenses for successful board candidates exist and further
regulation is pending. A 2009 amendment to the Delaware Corporate Code allows
companies to adopt bylaw provisions providing shareholders proxy access.
Further, in July 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act , (the Dodd-Frank Act). This Act provides the SEC with the authority to adopt rules permitting shareholders to use issuer proxy solicitation materials to nominate director candidates. The SEC received over 500 comments regarding proposed proxy access, some of which questioned the agencys authority to adopt such a rule. Nonetheless, in August 2010, the SEC adopted final Rule 14a-11 , which under certain circumstances, gives shareholders (and shareholder groups) who have collectively held at least 3% of the voting power of a companys securities continuously for at least three years, the right to nominate up to 25% of a boards directors and have such nominees included on a companys ballot and described in its proxy statement. While final Rule 14a-11 was originally scheduled to take effect on November 15, 2010, on October 4, 2010, the SEC announced that it would delay the rules implementation following the filing of a lawsuit by the U.S. Chamber Of Commerce and the Business Roundtable. In July 2011, the United States Court of Appeals for the District of Columbia ruled against the SEC based on what it perceived to be the SECs failure to fully consider the costs and the benefits of the proxy access rules. On September 6, 2011, the SEC announced that it would not be seeking rehearing of the decision. However, while rule 14a-11 was vacated, the U.S. Court of Appeals issued a stay on the private ordering amendments to Rule 14a-8, meaning that companies are no longer able to exclude shareholder proposals requesting that they adopt procedures to allow for shareholder nominees to be included in proxy statements (Statement by SEC Chairman Mary L. Schapiro on Proxy Access Ligation. SEC Press Release . September 6, 2011).
Glass Lewis will consider supporting well-crafted and reasonable
proposals requesting proxy access, as we believe that in some cases, adoption
of this provision allows for improved shareholder rights and ensures that
shareholders who maintain a long-term interest in the target company have an
ability to nominate candidates for the board. Glass Lewis reviews proposals
requesting proxy access on a case-by-case basis, and will consider the
following in our analysis:
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Company size; |
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The shareholder proponent and their reasoning for putting forth the proposal at the target company; |
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The percentage ownership requested and holding period requirement; |
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Shareholder base in both percentage of ownership and type of shareholder (e.g., hedge fund, activist investor, mutual fund, pension fund, etc.); |
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Responsiveness of board and management to shareholders evidenced by progressive shareholder rights policies (e.g., majority voting, declassifying boards, etc.) and reaction to shareholder proposals; |
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Company performance and steps taken to improve bad performance (e.g., new executives/directors, spin-offs, etc.); |
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Existence of anti-takeover protections or other entrenchment devices; and |
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Opportunities for shareholder action (e.g., ability to act by written consent or right to call a special meeting). |
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Environment
There are significant financial, legal and reputational risks to
companies resulting from poor environmental practices or negligent oversight
thereof. We believe part of the boards role is to ensure that management
conducts a complete risk analysis of company operations, including those that
have environmental implications. Directors should monitor managements
performance in mitigating environmental risks attendant with operations in
order to eliminate or minimize the risks to the company and shareholders.
When management and the board have displayed disregard for environmental risks, have engaged in egregious or illegal conduct, or have failed to adequately respond to current or imminent environmental risks that threaten shareholder value, we believe shareholders should hold directors accountable. When a substantial environmental risk has been ignored or inadequately addressed, we may recommend voting against responsible members of the governance committee, or members of a committee specifically charged with sustainability oversight.
With respect to environmental risk, Glass Lewis believes companies should actively consider their exposure to:
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reduced water or air quality, among others. Further, firms should
consider their exposure to environmental risks emanating from systemic change
over which they may have only limited control, such as insurance companies
affected by increased storm severity and frequency resulting from climate
change.
Risk due to legislation/regulation : Companies should evaluate their exposure to shifts or potential shifts in environmental regulation that affect current and planned operations. Regulation should be carefully monitored in all jurisdictions within which the company operates. We look closely at relevant and proposed legislation and evaluate whether the company has responded appropriately.
Legal and reputational risk : Failure to take action on important issues may carry the risk of damaging negative publicity and potentially costly litigation. While the effect of high-profile campaigns on shareholder value may not be directly measurable, in general we believe it is prudent for firms to evaluate social and environmental risk as a necessary part in assessing overall portfolio risk.
If there is a clear showing that a company has inadequately addressed these risks, Glass Lewis may consider supporting appropriately crafted shareholder proposals requesting increased disclosure, board attention or, in limited circumstances, specific actions. In general, however, we believe that boards and management are in the best position to address these important issues, and will only rarely recommend that shareholders supplant their judgment regarding operations.
Climate Change and Green House Gas Emission Disclosure
Glass Lewis will consider recommending a vote in favor of a reasonably crafted proposal to disclose a companys climate change and/or greenhouse gas emission strategies when (i) a company has suffered financial impact from reputational damage, lawsuits and/or government investigations, (ii) there is a strong link between climate change and its resultant regulation and shareholder value at the firm, and/or (iii) the company has inadequately disclosed how it has addressed climate change risks. Further, we will typically recommend supporting proposals seeking disclosure of greenhouse gas emissions at companies operating in carbon- or energy- intensive industries, such basic materials, integrated oil and gas, iron and steel, transportation, utilities, and construction. We are not inclined, however, to support proposals seeking emissions reductions, or proposals seeking the implementation of prescriptive policies relating to climate change.
Sustainability and other Environmentally-Related Reports
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When evaluating requests that a firm produce an environmentally-related
report, such as a sustainability report or a report on coal combustion waste or
hydraulic fracturing, we will consider, among other things:
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The financial risk to the company from the firms environmental practices and/or regulation; |
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The relevant companys current level of disclosure; |
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The level of sustainability information disclosed by the firms peers; |
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The industry in which the firm operates; |
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The level and type of sustainability concerns/controversies at the relevant firm, if any; |
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The time frame within which the relevant report is to be produced; and |
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The level of flexibility granted to the board in the implementation of the proposal. |
In general, we believe that firms operating in extractive industries should produce reports regarding the risks presented by their environmental activities, and will consider recommending a vote for reasonably crafted proposals requesting that such a report be produced; however, as with all shareholder proposals, we will evaluate these report requests on a case by case basis.
Oil Sands
The procedure required to extract usable crude from oil sands emits significantly more greenhouse gases than do conventional extraction methods. In addition, development of the oil sands has a deleterious effect on the local environment, such as Canadas boreal forests which sequester significant levels of carbon.
We believe firms should strongly consider and evaluate exposure to
financial, legal and reputational risks associated with investment in oil
sands. We believe firms should adequately disclose their involvement in the oil
sands, including a discussion of exposure to sensitive political and
environmental areas. Firms should broadly outline the scope of oil sands
operations, describe the commercial methods for producing oil, and discuss the
management of greenhouse gas emissions. However, we believe that detailed
disclosure of investment assumptions could unintentionally reveal sensitive
information regarding operations and business strategy, which would not serve
shareholders interest. We will review all proposals seeking increased
disclosure of oil sands operations in the above context, but will typically not
support proposals seeking cessation or curtailment of operations.
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Sustainable Forestry
Sustainable forestry provides for the long-term sustainable management and use of trees and other non-timber forest products. Retaining the economic viability of forests is one of the tenets of sustainable forestry, along with encouraging more responsible corporate use of forests. Sustainable land use and the effective management of land are viewed by some shareholders as important in light of the impact of climate change. Forestry certification has emerged as a way that corporations can address prudent forest management. There are currently several primary certification schemes such as the Sustainable Forestry Initiative (SFI) and the Forest Stewardship Council (FSC).
There are nine main principles that comprise the SFI: (i) sustainable forestry; (ii) responsible practices; (iii) reforestation and productive capacity; (iv) forest health and productivity; (v) long-term forest and soil productivity; (vi) protection of water resources; (vii) protection of special sites and biodiversity; (viii) legal compliance; and (ix) continual improvement.
The FSC adheres to ten basic principles: (i) compliance with laws and FSC principles; (ii) tenure and use rights and responsibilities; (iii) indigenous peoples rights; (iv) community relations and workers rights; (v) benefits from the forest; (vi) environmental impact; (vii) management plan; (viii) monitoring and assessment; (ix) maintenance of high conservation value forests; and (x) plantations.
Shareholder proposals regarding sustainable forestry have typically requested that the firm comply with the above SFI or FSC principles as well as to assess the feasibility of phasing out the use of uncertified fiber and increasing the use of certified fiber. We will evaluate target firms current mix of certified and uncertified paper and the firms general approach to sustainable forestry practices, both absolutely and relative to its peers but will only support proposals of this nature when we believe that the proponent has clearly demonstrated that the implementation of this proposal is clearly linked to an increase in shareholder value.
Social Issues
Non-Discrimination Policies
Companies with records of poor labor relations may face lawsuits,
efficiency-draining turnover, poor employee performance, and/or distracting,
costly investigations. Moreover, as an increasing number of companies adopt
inclusive EEO policies, companies without comprehensive policies may face
damaging recruitment, reputational and legal risks. We believe that a pattern
of making financial settlements as a result of lawsuits based on discrimination
could indicate investor exposure to ongoing
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financial risk. Where there is clear evidence of employment practices
resulting in negative economic exposure, Glass Lewis may support shareholder
proposals addressing such risks.
MacBride Principles
To promote peace, justice and equality regarding employment in Northern Ireland, Dr. Sean MacBride, founder of Amnesty International and Nobel Peace laureate, proposed the following equal opportunity employment principles:
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Increasing the representation of individuals from underrepresented religious groups in the workforce including managerial, supervisory, administrative, clerical and technical jobs; |
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Adequate security for the protection of minority employees both at the workplace and while traveling to and from work; |
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The banning of provocative religious or political emblems from the workplace; |
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All job openings should be publicly advertised and special recruitment efforts should be made to attract applicants from underrepresented religious groups; |
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Layoff, recall, and termination procedures should not, in practice, favor particular religious groupings; |
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The abolition of job reservations, apprenticeship restrictions, and differential employment criteria, which discriminate on the basis of religion or ethnic origin; |
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The development of training programs that will prepare substantial numbers of current minority employees for skilled jobs, including the expansion of existing programs and the creation of new programs to train, upgrade, and improve the skills of minority employees; |
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The establishment of procedures to assess, identify and actively recruit minority employees with potential for further advancement; and |
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The appointment of senior management staff member to oversee the companys affirmative action efforts and setting up of timetables to carry out affirmative action principles. |
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Proposals requesting the implementation of the above principles are typically proposed at firms that operate, or maintain subsidiaries that operate, in Northern Ireland. In each case, we will examine the companys current equal employment opportunity policy and the extent to which the company has been subject to protests, fines, or litigation regarding discrimination in the workplace, if any. Further, we will examine any evidence of the firms specific record of labor concerns in Northern Ireland.
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Human Rights
Glass Lewis believes explicit policies set out by companies boards of directors on human rights provides shareholders with the means to evaluate whether the company has taken steps to mitigate risks from its human rights practices. As such, we believe that it is prudent for firms to actively evaluate risks to shareholder value stemming from global activities and human rights practices along entire supply chains. Findings and investigations of human rights abuses can inflict, at a minimum, reputational damage on targeted companies and have the potential to dramatically reduce shareholder value. This is particularly true for companies operating in emerging market countries in extractive industries and in politically unstable regions. As such, while we typically rely on the expertise of the board on these important policy issues, we recognize that, in some instances, shareholders could benefit from increased reporting or further codification of human rights policies.
Military and US Government Business Policies
Glass Lewis believes that disclosure to shareholders of information on
key company endeavors is important. However, we generally do not support
resolutions that call for shareholder approval of policy statements for or
against government programs, most of which are subject to thorough review by
the federal government and elected officials at the national level. We also do
not support proposals favoring disclosure of information where similar
disclosure is already mandated by law, unless circumstances exist that warrant
the additional disclosure.
Foreign Government Business Policies
Where a corporation operates in a foreign country, Glass Lewis believes
that the company and board should maintain sufficient controls to prevent
illegal or egregious conduct with the potential to decrease shareholder value,
examples of which include bribery, money laundering, severe environmental
violations or proven human rights violations. We believe that shareholders
should hold board members, and in particular members of the audit committee and
CEO, accountable for these issues when they face reelection, as these concerns
may subject the company to financial risk. In some instances, we will support
appropriately crafted shareholder proposals specifically addressing concerns
with the target firms actions outside its home jurisdiction.
Health Care Reform Principles
Health care reform in the United States has long been a contentious
political issue and Glass Lewis therefore believes firms must evaluate and
mitigate the level of risk to which they may be exposed regarding potential
changes in health care legislation. Over
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the last several years, Glass Lewis has reviewed multiple shareholder
proposals requesting that boards adopt principles for comprehensive health
reform, such as the following based upon principles reported by the Institute
of Medicine:
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Health care coverage should be universal; |
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Health care coverage should be continuous; |
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Health care coverage should be affordable to individuals and families; |
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The health insurance strategy should be affordable and sustainable for society; and |
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Health insurance should enhance health and well-being by promoting access to high-quality care that is effective, efficient, safe, timely, patient-centered and equitable. |
In general, Glass Lewis believes that individual corporate board rooms
are not the appropriate forum in which to address evolving and contentious
national policy issues. The adoption of a narrow set of principles could limit
the boards ability to comply with new regulation or to appropriately and
flexibly respond to health care issues as they arise. As such, barring a
compelling reason to the contrary, we typically do not support the
implementation of national health care reform principles at the company level.
Tobacco
Glass Lewis recognizes the contentious nature of the production,
procurement, marketing and selling of tobacco products. We also recognize that
tobacco companies are particularly susceptible to reputational and regulatory
risk due to the nature of its operations. As such, we will consider supporting
uniquely tailored and appropriately crafted shareholder proposals requesting
increased information or the implementation of suitably broad policies at
target firms on a case-by-case basis. However, we typically do not support
proposals requesting that firms shift away from, or significantly alter, the
legal production or marketing of core products.
Reporting Contributions and Political Spending
While corporate contributions to national political parties and
committees controlled by federal officeholders are prohibited under federal
law, corporations can legally donate to state and local candidates,
organizations registered under 26 USC Sec. 527 of the Internal Revenue Code and
state-level political committees. There is, however, no standardized manner in
which companies must disclose this information. As such, shareholders often
must search through numerous campaign finance reports and detailed tax
documents to ascertain even limited information. Corporations also
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frequently use trade associations, which are not required to report
funds they receive for or spend on political activity, as a means for corporate
political action.
Further, in 2010 the Citizens United v. Federal Election Commission decision by the Supreme Court affirmed that corporations are entitled to the same free speech laws as individuals and that it is legal for a corporation to donate to political causes without monetary limit. While the decision did not remove bans on direct contributions to candidates, companies are now able to contribute indirectly, and substantially, to candidates through political organizations. Therefore, it appears companies will enjoy greater latitude in their political actions by this recent decision.
When evaluating whether a requested report would benefit shareholders, Glass Lewis seeks answers to the following three key questions:
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Is the Companys disclosure comprehensive and readily accessible? |
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How does the Companys political expenditure policy and disclosure compare to its peers? |
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What is the Companys current level of oversight? |
Glass Lewis will consider supporting a proposal seeking increased
disclosure of corporate political expenditure and contributions if the firms
current disclosure is insufficient, or if the firms disclosure is
significantly lacking compared to its peers. Further, we will typically
recommend voting for proposals requesting reports on lobbying or political
contributions and expenditures when there is no explicit board oversight or
there is evidence of inadequate board oversight. Given that political donations
are strategic decisions intended to increase shareholder value and have the
potential to negatively affect the company, we believe the board should either
implement processes and procedures to ensure the proper use of the funds or
closely evaluate the process and procedures used by management. We will also
consider supporting such proposals when there is verification, or credible
allegations, that the company is mismanaging corporate funds through political
donations. If Glass Lewis discovers particularly egregious actions by the
company, we will consider recommending voting against the governance committee
members or other responsible directors.
Animal Welfare
Glass Lewis believes that it is prudent for management to assess
potential exposure to regulatory, legal and reputational risks associated with
all business practices, including those related to animal welfare. A
high-profile campaign launched against a company could result in shareholder
action, a reduced customer base, protests and potentially
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costly litigation. However, in general, we believe that the board and management are in the best position to determine policies relating to the care and use of animals. As such, we will typically vote against proposals seeking to eliminate or limit board discretion regarding animal welfare unless there is a clear and documented link between the boards policies and the degradation of shareholder value.
Internet Censorship
Legal and ethical questions regarding the use and management of the
Internet and the worldwide web have been present since access was first made
available to the public almost twenty years ago. Prominent among these debates
are the issues of privacy, censorship, freedom of expression and freedom of
access. Glass Lewis believes that it is prudent for management to assess its
potential exposure to risks relating to the internet management and censorship
policies. As has been seen at other firms, perceived violation of user privacy
or censorship of Internet access can lead to high-profile campaigns that could
potentially result in decreased customer bases or potentially costly
litigation. In general, however, we believe that management and boards are best
equipped to deal with the evolving nature of this issue in various
jurisdictions of operation.
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An Overview of the Glass Lewis Approach to International Proxy Advice for 2012
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I. ELECTION OF
DIRECTORS
Board of Directors
Boards are put in place to represent shareholders and protect their interests. Glass Lewis seeks boards with a proven record of protecting shareholders and delivering value over the medium- and long-term. In our view, boards working to protect and enhance the best interests of shareholders typically include some independent directors (the percentage will vary by local market practice and regulations), boast a record of positive performance, have directors with diverse backgrounds, and appoint directors with a breadth and depth of experience.
Board Composition
When companies disclose sufficient relevant information, we look at each individual on the board and examine his or her relationships with the company, the companys executives and with other board members. The purpose of this inquiry is to determine whether pre-existing personal, familial or financial relationships are likely to impact the decisions of that board member. Where the company does not disclose the names and backgrounds of director nominees with sufficient time in advance of the shareholder meeting to evaluate their independence and performance, we will consider recommending abstaining on the directors election.
We vote in favor of governance structures that will drive positive performance and enhance shareholder value. The most crucial test of a boards commitment to the company and to its shareholders is the performance of the board and its members. The performance of directors in their capacity as board members and as executives of the company, when applicable, and in their roles at other companies where they serve is critical to this evaluation.
We believe a director is independent if he or she has no material financial, familial or other current relationships with the company, its executives or other board members except for service on the board and standard fees paid for that service. Relationships that have existed within the three-five years prior to the inquiry are usually considered to be current for purposes of this test.
In our view, a director is affiliated if he or she has a material financial, familial or other relationship with the company or its executives, but is not an employee of the company. This includes directors whose employers have a material financial relationship with the Company. This also includes a director who owns or controls 10-20% or more of the companys voting stock.
We define an inside director as one who simultaneously serves as a director and as an employee of the company. This category may include a chairman of the board who acts as an employee of the company or is paid as an employee of the company.
Although we typically vote for the election of directors, we will
recommend voting against directors for the following reasons:
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A director who attends less than 75% of the board and applicable committee meetings. |
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A director who is also the CEO of a company where a serious restatement has occurred after the CEO certified the pre-restatement financial statements. |
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We also feel that the following conflicts of interest may hinder a directors performance and will therefore recommend voting against a: |
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CFO who presently sits on the board. |
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Director who presently sits on an excessive number of boards. |
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Director, or a director whose immediate family member, provides material professional services to the company at any time during the past five years. |
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Director, or a director whose immediate family member, engages in airplane, real estate or other similar deals, including perquisite type grants from the company. |
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Director with an interlocking directorship. |
Slate Elections
In some countries, companies elect their board members as a slate, whereby shareholders are unable to vote on the election of each individual director, but rather are limited to voting for or against the board as a whole. If significant issues exist concerning one or more of the nominees or in markets where directors are generally elected individually, we will recommend voting against the entire slate of directors.
Board Committee Composition
We believe that independent directors should serve on a companys audit, compensation, nominating and governance committees. We will support boards with such a structure and encourage change where this is not the case.
Review of Risk Management Controls
We believe companies, particularly financial firms, should have a dedicated risk committee, or a committee of the board charged with risk oversight, as well as a chief risk officer who reports directly to that committee, not to the CEO or another executive. In cases where a company has disclosed a sizable loss or writedown, and where a reasonable analysis indicates that the companys board-level risk committee should be held accountable for poor oversight, we would recommend that shareholders vote against such committee members on that basis. In addition, in cases where a company maintains a significant level of financial risk exposure but fails to disclose any explicit form of board-level risk oversight (committee or otherwise), we will consider recommending to vote against the chairman of the board on that basis.
Classified Boards
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II. FINANCIAL REPORTING
Accounts and Reports
Many countries require companies to submit the annual financial statements, director reports and independent auditors reports to shareholders at a general meeting. Shareholder approval of such a proposal does not discharge the board or management. We will usually recommend voting in favor of these proposals except when there are concerns about the integrity of the statements/reports. However, should the audited financial statements, auditors report and/or annual report not be published at the writing of our report, we will recommend that shareholders abstain from voting on this proposal.
Income Allocation (Distribution of Dividend)
In many countries, companies must submit the allocation of income for shareholder approval. We will generally recommend voting for such a proposal. However, we will give particular scrutiny to cases where the companys dividend payout ratio is exceptionally low or excessively high relative to its peers and the company has not provided a satisfactory explanation.
Appointment of Auditors and Authority to Set Fees
We believe that role of the auditor is crucial in protecting shareholder value. Like directors, auditors should be free from conflicts of interest and should assiduously avoid situations that require them to make choices between their own interests and the interests of the shareholders.
We generally support managements recommendation regarding the selection of an auditor and support granting the board the authority to fix auditor fees except in cases where we believe the independence of an incumbent auditor or the integrity of the audit has been compromised.
However, we recommend voting against ratification of the auditor and/or authorizing the board to set auditor fees for the following reasons:
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When audit fees added to audit-related fees total less than one-half of total fees. |
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When there have been any recent restatements or late filings by the company where the auditor bears some responsibility for the restatement or late filing (e.g., a restatement due to a reporting error). |
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When the company has aggressive accounting policies. |
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When the company has poor disclosure or lack of transparency in financial statements. |
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When there are other relationships or issues of concern with the auditor that might suggest a conflict between the interest of the auditor and the interests of shareholders. |
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When the company is changing auditors as a result of a disagreement between the company and the auditor on a matter of accounting principles or practices, financial |
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statement disclosure or auditing scope or procedures. |
III. COMPENSATION
Compensation Report/Compensation Policy
We closely review companies remuneration practices and disclosure as outlined in company filings to evaluate management-submitted advisory compensation report and policy vote proposals. In evaluating these proposals, which can be binding or non-binding depending on the country, we examine how well the company has disclosed information pertinent to its compensation programs, the extent to which overall compensation is tied to performance, the performance metrics selected by the company and the levels of remuneration in comparison to company performance and that of its peers.
We will usually recommend voting against approval of the compensation report or policy when the following occur:
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Gross disconnect between pay and performance; |
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Performance goals and metrics are inappropriate or insufficiently challenging; |
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Lack of disclosure regarding performance metrics and goals as well as the extent to which the performance metrics, targets and goals are implemented to enhance company performance and encourage prudent risk-taking; |
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Excessive discretion afforded to or exercised by management or the compensation committee to deviate from defined performance metrics and goals in making awards; |
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Ex gratia or other non-contractual payments have been made and the reasons for making the payments have not been fully explained or the explanation is unconvincing; |
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Guaranteed bonuses are established; |
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There is no clawback policy; or |
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Egregious or excessive bonuses, equity awards or severance payments. |
Long Term Incentive Plans
Glass Lewis recognizes the value of equity-based incentive programs. When used appropriately, they can provide a vehicle for linking an employees pay to a companys performance, thereby aligning their interests with those of shareholders. Tying a portion of an employees compensation to the performance of the Company provides an incentive to maximize share value. In addition, equity-based compensation is an effective way to attract, retain and motivate key employees.
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Performance-Based Equity Compensation |
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Glass Lewis believes in performance-based equity compensation plans for senior executives. We feel that executives should be compensated with equity when their performance and that of the company warrants such rewards. While we do not believe that equity-based compensation plans for all employees need to be based on overall company performance, we do support such limitations for grants to senior executives (although even some equity-based compensation of senior executives without performance criteria is acceptable, such as in the case of moderate incentive grants made in an initial offer of employment). |
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Boards often argue that such a proposal would hinder them in attracting talent. We believe that boards can develop a consistent, reliable approach, as boards of many companies have, that would still attract executives who believe in their ability to guide the company to achieve its targets. We generally recommend that shareholders vote in favor of performance-based option requirements. |
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There should be no retesting of performance conditions for all share- and option- based incentive schemes. We will generally recommend that shareholders vote against performance-based equity compensation plans that allow for re-testing. |
Director Compensation
Glass Lewis believes that non-employee directors should receive appropriate types and levels of compensation for the time and effort they spend serving on the board and its committees. Director fees should be reasonable in order to retain and attract qualified individuals. In particular, we support compensation plans that include non performance-based equity awards, which help to align the interests of outside directors with those of shareholders.
Glass Lewis compares the costs of these plans to the plans of peer companies with similar market capitalizations in the same country to help inform its judgment on this issue.
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Retirement Benefits for Directors |
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We will typically recommend voting against proposals to grant retirement benefits to non-executive directors. Such extended payments can impair the objectivity and independence of these board members. Directors should receive adequate compensation for their board service through initial and annual fees. |
Limits on Executive Compensation
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policy on this issue. Further, we believe that companies whose
pay-for-performance is in line with their peers should be granted the
flexibility to compensate their executives in a manner that drives growth and
profit.
However, Glass Lewis favors performance-based compensation as an effective means of motivating executives to act in the best interests of shareholders. Performance-based compensation may be limited if a chief executives pay is capped at a low level rather than flexibly tied to the performance of the company.
IV. GOVERNANCE STRUCTURE
Amendments to the Articles of Association
We will evaluate proposed amendments to a companys articles of association on a case-by-case basis. We are opposed to the practice of bundling several amendments under a single proposal because it prevents shareholders from evaluating each amendment on its own merits. In such cases, we will analyze each change individually and will recommend voting for the proposal only when we believe that the amendments on balance are in the best interests of shareholders.
Anti-Takeover Measures
Poison Pills (Shareholder Rights Plans)
Glass Lewis believes that poison pill plans generally are not in the best interests of shareholders. Specifically, they can reduce management accountability by substantially limiting opportunities for corporate takeovers. Rights plans can thus prevent shareholders from receiving a buy-out premium for their stock.
We believe that boards should be given wide latitude in directing the activities of the company and charting the companys course. However, on an issue such as this where the link between the financial interests of shareholders and their right to consider and accept buyout offers is so substantial, we believe that shareholders should be allowed to vote on whether or not they support such a plans implementation.
In certain limited circumstances, we will support a limited poison pill to accomplish a particular objective, such as the closing of an important merger, or a pill that contains what we believe to be a reasonable qualifying offer clause.
Supermajority Vote Requirements
Glass Lewis favors a simple majority voting structure. Supermajority vote requirements act as impediments to shareholder action on ballot items that are critical to our interests. One key example is in the takeover context where supermajority vote requirements can strongly limit shareholders input in making decisions on such crucial matters as selling the business.
Increase in Authorized Shares
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Glass Lewis believes that having adequate capital stock available for
issuance is important to the operation of a company. We will generally support
proposals when a company could reasonably use the requested shares for
financing, stock splits and stock dividends. While we think that having
adequate shares to allow management to make quick decisions and effectively operate
the business is critical, we prefer that, for significant transactions,
management come to shareholders to justify their use of additional shares
rather than providing a blank check in the form of large pools of unallocated
shares available for any purpose.
In general, we will support proposals to increase authorized shares up to 100% of the number of shares currently authorized unless, after the increase the company would be left with less than 30% of its authorized shares outstanding.
Issuance of Shares
Issuing additional shares can dilute existing holders in some circumstances. Further, the availability of additional shares, where the board has discretion to implement a poison pill, can often serve as a deterrent to interested suitors. Accordingly, where we find that the company has not disclosed a detailed plan for use of the proposed shares, or where the number of shares requested are excessive, we typically recommend against the issuance. In the case of a private placement, we will also consider whether the company is offering a discount to its share price.
In general, we will support proposals to issue shares (with pre-emption rights) when the requested increase is the lesser of (i) the unissued ordinary share capital; or (ii) a sum equal to one-third of the issued ordinary share capital. This authority should not exceed five years. In some countries, if the proposal contains a figure greater than one-third, the company should explain the nature of the additional amounts.
We will also generally support proposals to suspend pre-emption rights for a maximum of 5-20% of the issued ordinary share capital of the company, depending on the country in which the company is located. This authority should not exceed five years, or less for some countries.
Repurchase of Shares
We will recommend voting in favor of a proposal to repurchase shares when the plan includes the following provisions: (i) a maximum number of shares which may be purchased (typically not more than 15% of the issued share capital); and (ii) a maximum price which may be paid for each share (as a percentage of the market price).
V. ENVIRONMENTAL AND SOCIAL RISK
We believe companies should actively evaluate risks to long-term
shareholder value stemming from exposure to environmental and social risks and
should incorporate this information into their overall business risk
profile. In addition, we believe companies should consider their exposure
to changes in environmental or social regulation with respect to their
operations as well as related legal and reputational risks. Companies should
disclose to shareholders both the nature
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and magnitude of such risks as well as steps they have taken or will
take to mitigate those risks.
When we identify situations where shareholder value is at risk, we may
recommend voting in favor of a reasonable and well-targeted shareholder
proposal if we believe supporting the proposal will promote disclosure of
and/or mitigate significant risk exposure. In limited cases where a company has
failed to adequately mitigate risks stemming from environmental or social
practices, we will recommend shareholders vote against: (i) ratification of
board and/or management acts; (ii) approving a companys accounts and reports
and/or; (iii) directors (in egregious cases).
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STANDARD & POORS ISSUE CREDIT RATING DEFINITIONS
A Standard & Poors issue credit rating is a current opinion of the creditworthiness of an obligor with respect to a specific financial obligation, a specific class of financial obligations, or a specific financial program (including ratings on medium-term note programs and commercial paper programs). It takes into consideration the creditworthiness of guarantors, insurers, or other forms of credit enhancement on the obligation and takes into account the currency in which the obligation is denominated. The opinion evaluates the obligors capacity and willingness to meet its financial commitments as they come due, and may assess terms, such as collateral security and subordination, which could affect ultimate payment in the event of default. The issue credit rating is not a recommendation to purchase, sell, or hold a financial obligation, inasmuch as it does not comment as to market price or suitability for a particular investor.
Issue credit ratings are based on current information furnished by the obligors or obtained by Standard & Poors from other sources it considers reliable. Standard & Poors does not perform an audit in connection with any credit rating and may, on occasion, rely on unaudited financial information. Credit ratings may be changed, suspended, or withdrawn as a result of changes in, or unavailability of, such information, or based on other circumstances.
Issue credit ratings can be either long term or short term. Short-term ratings are generally assigned to those obligations considered short-term in the relevant market. In the U.S., for example, that means obligations with an original maturity of no more than 365 daysincluding commercial paper. Short-term ratings are also used to indicate the creditworthiness of an obligor with respect to put features on long-term obligations. The result is a dual rating, in which the short-term rating addresses the put feature, in addition to the usual long-term rating. Medium-term notes are assigned long-term ratings.
Long-Term Issue Credit Ratings
Issue credit ratings are based, in varying degrees, on the following considerations:
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Likelihood of paymentcapacity and willingness of the obligor to meet its financial commitment on an obligation in accordance with the terms of the obligation; |
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Nature of and provisions of the obligation; |
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Protection afforded by, and relative position of, the obligation in the event of bankruptcy, reorganization, or other arrangement under the laws of bankruptcy and other laws affecting creditors rights. |
Issue ratings are an assessment of default risk, but may incorporate an assessment of relative seniority or ultimate recovery in the event of default. Junior obligations are typically rated lower than senior obligations, to reflect the lower priority in bankruptcy, as noted above. (Such differentiation may apply when an entity has both senior and subordinated obligations, secured and unsecured obligations, or operating company and holding company obligations.)
AAA
An obligation rated AAA has the highest rating assigned by Standard & Poors. The obligors capacity to meet its financial commitment on the obligation is extremely strong.
AA
An obligation rated AA differs from the highest-rated obligations only to a small degree. The obligors capacity to meet its financial commitment on the obligation is very strong.
B-1
A
An obligation rated A is somewhat more susceptible to the adverse effects of changes in circumstances and economic conditions than obligations in higher-rated categories. However, the obligors capacity to meet its financial commitment on the obligation is still strong.
BBB
An obligation rated BBB exhibits adequate protection parameters. However, adverse economic conditions or changing circumstances are more likely to lead to a weakened capacity of the obligor to meet its financial commitment on the obligation.
BB, B, CCC, CC, and C
Obligations rated BB, B, CCC, CC, and C are regarded as having significant speculative characteristics. BB indicates the least degree of speculation and C the highest. While such obligations will likely have some quality and protective characteristics, these may be outweighed by large uncertainties or major exposures to adverse conditions.
BB
An obligation rated BB is less vulnerable to nonpayment than other speculative issues. However, it faces major ongoing uncertainties or exposure to adverse business, financial, or economic conditions which could lead to the obligors inadequate capacity to meet its financial commitment on the obligation.
B
An obligation rated B is more vulnerable to nonpayment than obligations rated BB, but the obligor currently has the capacity to meet its financial commitment on the obligation. Adverse business, financial, or economic conditions will likely impair the obligors capacity or willingness to meet its financial commitment on the obligation.
CCC
An obligation rated CCC is currently vulnerable to nonpayment, and is dependent upon favorable business, financial, and economic conditions for the obligor to meet its financial commitment on the obligation. In the event of adverse business, financial, or economic conditions, the obligor is not likely to have the capacity to meet its financial commitment on the obligation.
CC
An obligation rated CC is currently highly vulnerable to nonpayment.
C
A C rating is assigned to obligations that are currently highly vulnerable to nonpayment, obligations that have payment arrearages allowed by the terms of the documents, or obligations of an issuer that is the subject of a bankruptcy petition or similar action which have not experienced a payment default. Among others, the C rating may be assigned to subordinated debt, preferred stock or other obligations on which cash payments have been suspended in accordance with the instruments terms or when preferred stock is the subject of a distressed exchange offer, whereby some or all of the issue is either repurchased for an amount of cash or replaced by other instruments having a total value that is less than par.
B-2
D
An obligation rated D is in payment default. The D rating category is used when payments on an obligation are not made on the date due even if the applicable grace period has not expired, unless Standard & Poors believes that such payments will be made during such grace period. The D rating also will be used upon the filing of a bankruptcy petition or the taking of similar action if payments on an obligation are jeopardized. An obligations rating is lowered to D upon completion of a distressed exchange offer, whereby some or all of the issue is either repurchased for an amount of cash or replaced by other instruments having a total value that is less than par.
Plus (+) or minus (-)
The ratings from AA to CCC may be modified by the addition of a plus (+) or minus (-) sign to show relative standing within the major rating categories.
NR
This indicates that no rating has been requested, that there is insufficient information on which to base a rating, or that Standard & Poors does not rate a particular obligation as a matter of policy.
SHORT-TERM ISSUE CREDIT RATINGS
A-1
A short-term obligation rated A-1 is rated in the highest category by Standard & Poors. The obligors capacity to meet its financial commitment on the obligation is strong. Within this category, certain obligations are designated with a plus sign (+). This indicates that the obligors capacity to meet its financial commitment on these obligations is extremely strong.
A-2
A short-term obligation rated A-2 is somewhat more susceptible to the adverse effects of changes in circumstances and economic conditions than obligations in higher rating categories. However, the obligors capacity to meet its financial commitment on the obligation is satisfactory.
A-3
A short-term obligation rated A-3 exhibits adequate protection parameters. However, adverse economic conditions or changing circumstances are more likely to lead to a weakened capacity of the obligor to meet its financial commitment on the obligation.
B
A short-term obligation rated B is regarded as having significant speculative characteristics. Ratings of B-1, B-2, and B-3 may be assigned to indicate finer distinctions within the B category. The obligor currently has the capacity to meet its financial commitment on the obligation; however, it faces major ongoing uncertainties which could lead to the obligors inadequate capacity to meet its financial commitment on the obligation.
B-1. A short-term obligation rated B-1 is regarded as having significant speculative characteristics, but the obligor has a relatively stronger capacity to meet its financial commitments over the short-term compared to other speculative-grade obligors.
B-3
B-2. A short-term obligation rated B-2 is regarded as having significant speculative characteristics, and the obligor has an average speculative-grade capacity to meet its financial commitments over the short-term compared to other speculative-grade obligors.
B-3. A short-term obligation rated B-3 is regarded as having significant speculative characteristics, and the obligor has a relatively weaker capacity to meet its financial commitments over the short-term compared to other speculative-grade obligors.
C
A short-term obligation rated C is currently vulnerable to nonpayment and is dependent upon favorable business, financial, and economic conditions for the obligor to meet its financial commitment on the obligation.
D
A short-term obligation rated D is in payment default. The D rating category is used when payments on an obligation are not made on the date due even if the applicable grace period has not expired, unless Standard & Poors believes that such payments will be made during such grace period. The D rating also will be used upon the filing of a bankruptcy petition or the taking of a similar action if payments on an obligation are jeopardized.
DUAL RATINGS
Standard & Poors assigns dual ratings to all debt issues that have a put option or demand feature as part of their structure. The first rating addresses the likelihood of repayment of principal and interest as due, and the second rating addresses only the demand feature. The long-term rating symbols are used for bonds to denote the long-term maturity and the short-term rating symbols for the put option (for example, AAA/A-1+). With U.S. municipal short-term demand debt, note rating symbols are used with the short-term issue credit rating symbols (for example, SP-1+/A-1+).
MOODYS CREDIT RATING DEFINITIONS
Aaa
Bonds and preferred stock which are rated Aaa are judged to be of the highest quality, with minimal credit risk.
Aa
Bonds and preferred stock which are rated Aa are judged to be of high quality and are subject to very low credit risk.
A
Bonds and preferred stock which are rated A are considered upper-medium grade and are subject to low credit risk.
Baa
Bonds and preferred stock which are rated Baa are subject to moderate credit risk. They are considered medium-grade and as such may possess certain speculative characteristics.
B-4
Ba
Bonds and preferred stock which are rated Ba are judged to have speculative elements and are subject to substantial credit risk.
B
Bonds and preferred stock which are rated B are considered speculative and are subject to high credit risk.
Caa
Bonds and preferred stock which are rated Caa are of poor standing and are subject to very high credit risk.
Ca
Bonds and preferred stock which are rated Ca are highly speculative and are likely in, or very near, default, with some prospect of recovery of principal and interest.
C
Bonds and preferred stock which are rated C are the lowest rated class of bonds/preferred stock and are typically in default, with little prospect for recovery of principal or interest.
B-5
VAN ECK FUNDS
PART C
OTHER INFORMATION
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ITEM 28. |
EXHIBITS. |
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(a) |
(1) Amended and Restated Master Trust Agreement.(1) |
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(2) Amendment No. 1 to Amended and Restated Master Trust Agreement.(1) |
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(3) Amendment No. 2 to Amended and Restated Master Trust Agreement.(1) |
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(4) Amendment No. 3 to Amended and Restated Master Trust Agreement.(1) |
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(5) Amendment No. 4 to Amended and Restated Master Trust Agreement.(1) |
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(6) Amendment No. 5 to Amended and Restated Master Trust Agreement.(1) |
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(7) Amendment No. 6 to Amended and Restated Master Trust Agreement.(1) |
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(8) Amendment No. 7 to Amended and Restated Master Trust Agreement.(1) |
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(9) Amendment No. 8 to Amended and Restated Master Trust Agreement.(1) |
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(10) Amendment No. 9 to Amended and Restated Master Trust Agreement.(1) |
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(11) Amendment No. 10 to Amended and Restated Master Trust Agreement.(3) |
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(12) Amendment No. 11 to Amended and Restated Master Trust Agreement.(3) |
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(13) Amendment No. 12 to Amended and Restated Master Trust Agreement.(3) |
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(14) Amendment No. 13 to Amended and Restated Master Trust Agreement.(2) |
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(15) Amendment No. 15 to Amended and Restated Master Trust Agreement.(3) |
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(16) Amendment No. 16 to Amended and Restated Master Trust Agreement.(3) |
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(17) Amendment No. 17 to Amended and Restated Master Trust Agreement.(3) |
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(18) Amendment No. 18 to Amended and Restated Master Trust Agreement.(3) |
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(19) Amendment No. 19 to Amended and Restated Master Trust Agreement.(3) |
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(20) Amendment No. 20 to Amended and Restated Master Trust Agreement.(5) |
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(21) Amendment No. 21 to Amended and Restated Master Trust Agreement.(5) |
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(22) Amendment No. 22 to Amended and Restated Master Trust Agreement.(10) |
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(23) Amendment No. 23 to Amended and Restated Master Trust Agreement.(10) |
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(24) Amendment No. 24 to Amended and Restated Master Trust Agreement.(12) |
2
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(g) |
Custodian Agreement.(2) |
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(h) |
(1) |
Accounting and Administrative Services Agreement.(1) |
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(2) |
Letter Agreement adding International Investors Gold Fund to Accounting and Administrative Services Agreement.(1) |
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(3) |
Forms of Procedural Agreement, Customer Agreement and Safekeeping Agreement with Merrill Lynch Futures Inc. and Morgan Stanley.(1) |
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(4) |
Letter Agreement adding Emerging Markets Fund (formerly known as Global Balanced Fund) to Accounting and Administrative Services Agreement.(4) |
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(5) |
Data Access Service Agreement.(4) |
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(6) |
Transfer Agency Agreement.(4) |
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(7) |
Form of Trustee Indemnification Agreement.(6) |
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(8) |
Form of Participation Agreement with Unaffiliated Fund Complexes.(10) |
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(i) |
(1) |
Opinion and Consent of Counsel.(1) |
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(2) |
Opinion and Consent of Counsel with respect to the addition of Class I.(5) |
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(3) |
Opinion and Consent of Counsel with respect to the addition of Class A and Class I of Multi-Manager Alternatives Fund.(10) |
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(4) |
Opinion and Consent of Counsel with respect to the addition of Class Y.(12) |
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(5) |
Opinion and Consent of Counsel with respect to CM Commodity Index Fund and Long/Flat Commodity Index Fund.(13) |
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(6) |
Opinion and Consent of Counsel with respect to the addition of Class C of Multi-Manager Alternatives Fund, filed herewith. |
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(7) |
Opinion and Consent of Counsel with respect to Unconstrained Emerging Markets Bond Fund.(15) |
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(j) |
(1) |
Consent of Goodwin Procter LLP, filed herewith. |
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(2) |
Consent of Independent Registered Public Accounting Firm, filed herewith. |
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(3) |
Powers of Attorney.(7) |
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(4) |
Jan F. van Eck Power of Attorney.(13) |
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(k) |
Not applicable. |
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(l) |
Not applicable. |
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(m) |
(1) |
Form of Amended and Restated Plan of Distribution pursuant to Rule 12b-1.(13) |
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(m) |
(2) |
Amended Exhibit A to Amended and Restated Plan of Distribution pursuant to Rule 12b-1, filed herewith. |
3
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(1) |
Incorporated by reference to Post-Effective Amendment No. 51 to Registrants Registration Statement, File Nos. 002-97596 and 811-04297, filed on March 1, 1999. |
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(2) |
Incorporated by reference to Post-Effective Amendment No. 55 to Registrants Registration Statement, File Nos. 002-97596 and 811-04297, filed on March 19, 2001. |
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(3) |
Incorporated by reference to Post-Effective Amendment No. 62 to Registrants Registration Statement, File Nos. 02-97596 and 811-04297, filed on April 30, 2004. |
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(4) |
Incorporated by reference to Post Effective Amendment No. 63 to Registrants Registration Statement, File Nos. 02-97596 and 811-04297, filed February 25, 2005. |
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(5) |
Incorporated by reference to Post Effective Amendment No. 66 to Registrants Registration Statement, File Nos. 02-97596 and 811-04297, filed April 28, 2006. |
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(6) |
Incorporated by reference to Post Effective Amendment No. 67 to Registrants Registration Statement, File Nos. 02-97596 and 811-04297, filed April 27, 2007. |
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(7) |
Incorporated by reference to Post Effective Amendment No. 68 to Registrants Registration Statement, File Nos. 02-97596 and 811-04297, filed April 24, 2008. |
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(8) |
Incorporated by reference to Post-Effective Amendment No. 26 to the Registration Statement of Van Eck VIP Trust (formerly, Van Eck Worldwide Insurance Trust), File Nos. 033-13019 and 811-05083, filed on April 30, 2004. |
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(9) |
Incorporated by reference to Post-Effective Amendment No. 35 to the Registration Statement of Van Eck VIP Trust (formerly, Van Eck Worldwide Insurance Trust), File Nos. 033-13019 and 811-05083, filed February 15, 2008. |
4
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(10) |
Incorporated by reference to Post Effective Amendment No. 78 to Registrants Registration Statement, File Nos. 02-97596 and 811-04297, filed April 3, 2009. |
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(11) |
Incorporated by reference to Post Effective Amendment No. 79 to Registrants Registration Statement, File Nos. 02-97596 and 811-04297, filed April 22, 2009. |
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(12) |
Incorporated by reference to Post Effective Amendment No. 82 to Registrants Registration Statement, File Nos. 02-97596 and 811-04297, filed April 30, 2010. |
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(13) |
Incorporated by reference to Post Effective Amendment No. 100 to Registrants Registration Statement, File Nos. 02-97596 and 811-04297, filed November 22, 2010. |
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(14) |
Incorporated by reference to Post Effective Amendment No. 101 to Registrants Registration Statement, File Nos. 02-97596 and 811-04297, filed April 14, 2011. |
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(15) |
To be filed by amendment. |
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ITEM 29. |
PERSONS CONTROLLED BY OR UNDER COMMON CONTROL WITH THE FUND. |
Not Applicable.
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ITEM 30. |
INDEMNIFICATION. |
Reference is made to Article VI of the Amended and Restated Master Trust Agreement of the Registrant, as amended, Section 8 of the Advisory Agreement, Section 5 of the Distribution Agreement, Section 27 of the Custodian Agreement, and Section 6 of the Data Access Agreement.
The general effect of this Indemnification will be to indemnify the officers, trustees, employees and agents of the Registrant from costs and expenses arising from any action, suit or proceeding to which they may be made a party by reason of their being or having been a trustee, officer, employee or agent of the Registrant, except where such action is determined to have arisen out of the willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of the trustees, officers, employees or agents office.
Reference is also made to the individual Trustee Indemnification Agreements entered into with each of the Trustees of the Registrant. The Indemnification Agreements do not supersede or replace the indemnification under the Amended and Restated Master Trust Agreement of the Registrant, as amended. The Indemnification Agreements supplement the protections under the Amended and Restated Master Trust Agreement, by clarifying the scope of certain terms of the Amended and Restated Master Trust Agreement and providing a variety of procedural benefits, including with respect to protection from modification of the indemnification, term and survival of Registrants obligations, and procedural enhancements with respect to, among other things, advancement of expenses, determination of entitlement, indemnification for expenses incurred by a Trustee as a witness and selection of counsel.
Insofar as indemnification for liability arising under the Securities Act of 1933, as amended (1933 Act), may be permitted to trustees, officers and controlling persons of the Registrant pursuant to the foregoing or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission (SEC) such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a trustee, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such trustee, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue.
5
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ITEM 31. |
BUSINESS AND OTHER CONNECTIONS OF THE INVESTMENT ADVISER. |
Van Eck Associates Corporation is a registered investment adviser and provides investment advisory services to the Registrant. The description of Van Eck Associates Corporation under the caption Management of the Funds in the Registrants Prospectuses and under the caption Investment Advisory Services in the Registrants Statements of Additional Information, constituting Parts A and B, respectively, of this Registration Statement are incorporated herein by reference. Information as to any business, profession, vocation or employment of a substantial nature engaged in by investment adviser and its officers, directors or partners within the past two fiscal years is set forth under the caption Trustees and Officers in the Registrants Statements of Additional Information and in its Form ADV filed with the SEC (File No. 801-21340), both of which are incorporated herein by reference.
Each of Acorn Derivatives Management Corp. (SEC File No. 801-43760), Coe Capital Management, LLC (SEC File No. 801-56483), Dix Hills Partners, LLC (SEC File No. 801-62551), Martingale Asset Management, L.P. (SEC File No. 801-30067), Medley Credit Strategies, LLC (SEC File No. 801-71839), Millrace Asset Group, Inc. (SEC File No. 801-70920), PanAgora Asset Management, Inc. (SEC File No. 801-35497), Primary Funds, LLC (SEC File No. 801-69279) and Tiburon Capital Management, LLC (SEC File No. 801-71202) serves as a sub-adviser to Multi-Manager Alternatives Fund. The descriptions of each sub-adviser under the caption Management of the Fund in the Registrants Prospectus and under the caption Investment Advisory Services in the Registrants Statement of Additional Information, constituting Parts A and B, respectively, of this Registration Statement are incorporated herein by reference. Information on the directors and officers of each sub-adviser set forth in its Form ADV filed with the SEC is incorporated herein by reference.
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ITEM 32. |
PRINCIPAL UNDERWRITERS |
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(a) |
Van Eck Securities Corporation, principal underwriter for the Registrant, also distributes shares of Van Eck VIP Trust and Market Vectors ETF Trust. |
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NAME |
POSITIONS AND OFFICES WITH UNDERWRITER |
POSITIONS AND OFFICES
|
John Crimmins |
Vice President |
Vice President, Treasurer, Chief Financial Officer and Principal Accounting Officer |
Harvey Hirsch |
Senior Vice President |
N/A |
Wu-Kwan Kit |
Assistant Vice President and Assistant Secretary |
Assistant Vice President and Assistant Secretary |
Susan C. Lashley |
Vice President |
Vice President |
Allison Lovett |
Vice President |
N/A |
Patrick Lulley |
Vice President |
N/A |
Thomas K. Lynch |
Vice President and Chief Compliance Officer |
Vice President and Chief Compliance Officer |
Susan Marino |
Senior Vice President |
N/A |
6
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|
NAME |
POSITIONS AND OFFICES WITH UNDERWRITER |
POSITIONS AND OFFICES
|
Laura Martinez |
Assistant Vice President and Assistant Secretary |
Assistant Vice President and Assistant Secretary |
Joseph J. McBrien |
Director, Senior Vice President, General Counsel and Secretary |
Senior Vice President, Secretary and Chief Legal Officer |
Michele Medina |
Vice President Corporate Accounting |
N/A |
Bryan S. Paisley |
Assistant Vice President |
N/A |
Jonathan R. Simon |
Vice President, Associate General Counsel and Assistant Secretary |
Vice President and Assistant Secretary |
Bruce J. Smith |
Director, Senior Vice President, Chief Financial Officer, Treasurer and Controller |
Senior Vice President |
Glenn Smith |
Vice President |
N/A |
Jan F. van Eck |
Director and President |
Chief Executive Officer and President |
John Wolfe |
Vice President and Chief Administrative Officer |
N/A |
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(c) |
Not Applicable |
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ITEM 33. |
LOCATION OF ACCOUNTS AND RECORDS. |
The location of accounts, books and other documents required to be maintained pursuant to Section 31(a) of the Investment Company Act of 1940, as amended (1940 Act), and the Rules promulgated thereunder is set forth below.
Accounts, books and documents maintained pursuant to 17 CFR 270 31a-1(b)(1), 31a-1(b)(2)(i), 31a-1(b)(2)(ii), 31a-1(b)(2)(iii), 31a-1(b)(4), 31a-1(b)(5), 31a-1(b)(6), 31a-1(b)(7), 31a-1(b)(8), 31a-1(b)(9), 31a-1(b)(10), 31a-1(b)(11), 31a-1(b)(12), 31a-1(d), 31a-1(f), 31a-2(a)(1) and 31a-2(e) are located at Van Eck Associates Corporation, 335 Madison Avenue, 19th Floor, New York, New York 10017.
Accounts, books and documents relating to the sub-adviser are located at Acorn Derivatives Management Corp., 1266 E. Main Street, 7th Floor, Stamford, Connecticut 06902.
Accounts, books and documents relating to the sub-adviser are located at Coe Capital Management, LLC, 9 Parkway North, Suite 325 Deerfield, IL 60015.
Accounts, books and documents relating to the sub-adviser are located at Dix Hills Partners, LLC, 50 Jericho Quadrangle, Suite 117, Jericho, New York 11753.
Accounts, books and documents relating to the sub-adviser are located at Medley Credit Strategies, LLC, 375 Park Avenue, Suite 3304, New York, NY 10152.
Accounts, books and documents relating to the sub-adviser are located at Millrace Asset Group, Inc., 1205 Westlakes Drive, Suite 375. Berwyn, PA 19312.
Account, books and documents relating to the sub-adviser are located at PanAgora Asset Management, Inc., 470 Atlantic Avenue, 8th Floor, Boston, Massachusetts 02110.
7
Accounts, books and documents relating to the sub-adviser are located at Primary Funds, LLC, 1000 A St., Suite 408, San Rafael, CA 94901.
Accounts, books and documents relating to the sub-adviser are located at Tiburon Capital Management, LLC, 527 Madison Avenue, 6th Floor, New York, New York 10022.
Accounts, books and documents maintained pursuant to 17 CFR 270 31a-2(c) are located at Van Eck Securities Corporation, 335 Madison Avenue, 19th Floor, New York, New York 10017.
Accounts, books and documents relating to the custodian are located at State Street Bank and Trust Company, One Lincoln Street, Boston, Massachusetts 02111.
Accounts, books and documents maintained pursuant to 17 CFR 270 31a-1(b)(2)(iv) and 31a-2(a)(1) are located at DST Systems, Inc., 21 West Tenth Street, Kansas City, MO 64105.
Accounts, books and documents maintained pursuant to 17 CFR 270 31a-1(b)(3), 31a-1(c), 31a-1(e), 31a-2(b), 31a-2(d) and 31a-3 are not applicable to the Registrant. All other records are maintained at the offices of the Registrant at 335 Madison Avenue, 19th Floor, New York, New York 10017.
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ITEM 34. |
MANAGEMENT SERVICES. |
None
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ITEM 35. |
UNDERTAKINGS. |
Not applicable.
8
SIGNATURES
Pursuant to the requirements of the 1933 Act and the 1940 Act, the Registrant certifies that it meets all of the requirements for effectiveness of this registration statement under Rule 485(b) under the 1933 Act and has duly caused this post-effective amendment to the registration statement to be signed on its behalf by the undersigned, duly authorized, in the City of New York and State of New York on the 27 th day of April, 2012.
VAN ECK FUNDS
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By: |
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/s/ Jan F. van Eck |
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Name: |
Jan F. van Eck |
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Title: |
Chief Executive Officer & President |
Pursuant to the requirements of the 1933 Act, this post-effective amendment no. 106 to the registration statement has been signed below by the following persons in the capacities and on the date(s) indicated.
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Chief Executive Officer & President |
April 27, 2012 |
Jan F. van Eck
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||
|
Vice President, Treasurer, Chief Financial Officer and Principal Accounting Officer |
April 27, 2012 |
John Crimmins
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||
|
Trustee |
April 27, 2012 |
Jane DiRenzo Pigott*
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||
|
Trustee |
April 27, 2012 |
Jon Lukomnik*
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||
|
Trustee |
April 27, 2012 |
Wayne H. Shaner*
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||
|
Trustee |
April 27, 2012 |
R. Alastair Short*
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||
|
Trustee |
April 27, 2012 |
Richard D. Stamberger*
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||
|
Trustee |
April 27, 2012 |
Robert L. Stelzl*
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*BY: |
/s/ JOSEPH J. MCBRIEN |
|
Joseph J. McBrien |
|
Attorney-in-Fact |
|
April 27, 2012 |
EXHIBITS INDEX
|
|
(a)(27) |
Amendment No. 27 to Amended and Restated Master Trust Agreement |
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(b) |
Amended and Restated By-Laws |
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|
(d)(6)(ii) |
Schedule of Parties to Sub-Investment Advisory Agreements with respect to Multi-Manager Alternatives Fund |
|
|
(e)(7) |
Letter Agreement adding Class C shares of Multi-Manager Alternatives Fund and adding Unconstrained Emerging Markets Bond Fund to Distribution Agreement |
|
|
(i)(6) |
Opinion and Consent of Counsel with respect to the addition of Class C of Multi-Manager Alternatives Fund |
|
|
(j)(1) |
Consent of Goodwin Procter LLP |
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|
(j)(2) |
Consent of Independent Registered Public Accounting Firm |
|
|
(m)(2) |
Amended Exhibit A to Amended and Restated Plan of Distribution pursuant to Rule 12b-1 |
|
|
(p)(7) |
Code of Ethics of Acorn Derivatives Management Corp. |
|
|
(p)(8) |
Code of Ethics of Coe Capital Management, LLC |
|
|
(p)(9) |
Code of Ethics of Millrace Asset Group, Inc. |
|
|
(p)(10) |
Code of Ethics of Tiburon Capital Management, LLC |
10
Exhibit (a)(27)
VAN ECK FUNDS
AMENDMENT NO. 27
TO
THE AMENDED AND RESTATED MASTER TRUST AGREEMENT
Amendment No. 27 (the Amendment) to the Amended and Restated Master Trust Agreement dated February 6, 1992, as amended (the Agreement) of Van Eck Funds (the Trust), made at New York, New York, this 20 th day of April, 2012.
WITNESSETH:
WHEREAS, Article VII, Section 7.3 of the Agreement provides that the Agreement may be amended from time to time, as long as such amendment does not adversely affect the rights of any shareholder, and so long as such amendment is not in contravention of applicable law, including the Investment Company Act of 1940, as amended, by an instrument in writing, signed by an officer of the Trust pursuant to a vote of a majority of the Trustees of the Trust;
WHEREAS, Section 4.1 of the Agreement provides that the Trustees of the Trust may establish and designate Sub-Trusts of the Trust and classes thereof;
WHEREAS, on March 15, 2012, a majority of the Trustees voted to establish a new Sub-Trust of the Trust, which is designated as Unconstrained Emerging Markets Bond Fund, and to establish four classes of shares of the new Sub-Trust, which are designated as Class A, Class C, Class I and Class Y;
WHEREAS, on March 15, 2012, a majority of the Trustees voted to establish a new class of shares of Multi-Manager Alternatives Fund, which is designated as Class C;
WHEREAS, a majority of the Trustees have duly approved this Amendment to the Agreement and authorized the same to be filed with the Secretary of State of the Commonwealth of Massachusetts.
NOW, THEREFORE, the initial paragraph of Article IV, Section 4.2 of the Agreement is hereby amended to read in its entirety as follows:
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Section 4.2. ESTABLISHMENT AND DESIGNATION OF SUB-TRUSTS. Without limiting the authority of the Trustees set forth in Section 4.1 to establish and designate any further Sub-Trusts, the Trustees hereby establish and designate the following eight Sub-Trusts: Emerging Markets Fund (Class A, Class C, Class I and Class Y), Global Hard Assets Fund (Class A, Class C, Class I and Class Y), International Investors Gold Fund (Class A, Class C, Class I and Class Y), Multi-Manager Alternatives Fund (Class A, Class C, Class I and Class Y), CM Commodity Index Fund (Class A, Class C, Class I and Class Y), Long/Flat Commodity Index |
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Fund (Class A, Class C, Class I and Class Y), Commodities Series Fund III (Class A, Class C and Class I), Commodities Series Fund IV (Class A, Class C and Class I) and Unconstrained Emerging Markets Bond Fund (Class A, Class C, Class I and Class Y). Shares of each such Sub-Trust and any Shares of any further Sub-Trusts that may from time to time be established and designated by the Trustees shall, unless the Trustees otherwise determine with respect to some further Sub-Trust at the time of establishing and designating the same, have the same relative rights and preferences: |
The undersigned hereby certifies that the Amendment set forth above has been duly adopted in accordance with the provisions of the Agreement.
[SIGNATURE PAGE FOLLOWS]
2
IN WITNESS WHEREOF, the undersigned has hereto set his hands as of the day and year first above written.
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/s/ Joseph J. McBrien |
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Joseph J. McBrien, Secretary |
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STATE OF NEW YORK |
) |
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) |
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COUNTY OF NEW YORK |
) |
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Then personally appeared the above-named Joseph J. McBrien and acknowledged this instrument to be his free act and deed this 20 th day of April, 2012.
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/s/ Brian A. Allas |
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Notary Public, State of New York |
|
No. 01AL4900669 |
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Qualified in New York County |
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Commission Expires December 7, 2013 |
3
Exhibit (b)
AMENDED AND RESTATED BY-LAWS
OF
VAN ECK FUNDS
ARTICLE 1
Master Trust Agreement and Principal Office
1.1 Master Trust Agreement . These By-Laws shall be subject to the Master Trust Agreement, as from time to time in effect (the Master Trust Agreement), of Van Eck Funds, the Massachusetts business trust established by the Master Trust Agreement (the Trust).
1.2 Principal Office of the Trust . The principal office of the Trust shall be located at 335 Madison Avenue, New York, New York 10017.
1.3 Resident Agent . The resident agent for the Trust in Massachusetts shall be CT Corporation, 155 Federal Street, Suite 700, Boston, Massachusetts 02110 or such other person as the trustees (the Trustees) of the Trusts Board of Trustees (the Board) may from time to time designate.
ARTICLE 2
Meetings of Trustees
2.1 Regular and Special Meetings . Regular and Special meetings of the Trustees may be held at any time and at any place designated in the call of the meeting when called by the Chairperson of the Trustees, the President or the Treasurer or by two or more Trustees, sufficient notice thereof being given to each Trustee by the Secretary or an Assistant Secretary or by the officer of the Trustees calling the meeting.
2.2 Notice . It shall be sufficient notice to a Trustee of a special meeting to send notice by mail, facsimile, e-mail or other electronic transmission method at least twenty-four hours before the meeting addressed to the Trustee at his or her usual or last known business or residence address or to give notice to him or her in person or by telephone at least twenty-four hours before the meeting. Notice of a meeting need not be given to any Trustee if a written waiver of notice, executed by him or her before or after the meeting, is filed with the records of the meeting, or to any Trustee who attends the meeting without protesting prior thereto or at its commencement the lack of notice to him or her. Neither notice of a meeting nor a waiver of a notice need specify the purposes of the meeting.
2.3 Quorum . At any meeting of the Trustees a majority of the Trustees then in office shall constitute a quorum. Any meeting may be adjourned from time to time by a majority of the
votes cast upon the question, whether or not a quorum is present, and the meeting may be held as adjourned without further notice.
2.4 Participation by Telephone . One or more of the Trustees or of any committee of the Trustees may participate in a meeting thereof by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Except where in-person participation is required by the Investment Company Act of 1940, as amended (the 1940 Act), participation by conference telephone or similar communications equipment shall constitute presence in person at a meeting.
ARTICLE 3
Officers and Chairperson of the Trust
3.1 Enumeration; Qualification . The officers of the Trust shall be a President, a Treasurer, a Secretary, a Chief Compliance Officer and such other officers, including Vice Presidents, if any, as the Trustees from time to time may in their discretion elect. The Trust may also have such agents as the Trustees from time to time may in their discretion appoint. An officer may be but none need be a shareholder. An officer, except for the Chief Compliance Officer, may be but none need be a Trustee. Any two or more offices may be held by the same person.
The Trustees shall also appoint a Chairperson of the Trustees. The Chairperson of the Trustees shall be a Trustee who is not an interested person of the Trust (an Independent Trustee) within the meaning of Section 2(a)(19) of the 1940 Act, and shall not be deemed to be an officer of the Trust by reason of such appointment as Chairperson of the Trustees. Additionally, the Trustees may, in their sole discretion, appoint one or more other Independent Trustees to serve as a Vice-Chairperson of the Trustees and, in such capacity, to perform any or all duties of the Chairperson of the Trustees as may be delegated thereto from time to time by the Chairperson of the Trustees.
3.2 Election . The President, the Treasurer, and the Secretary shall be elected annually by the Trustees at a meeting held within the first six months of the Trusts fiscal year. The meeting at which the officers are elected shall be known as the annual meeting of Trustees. The Chief Compliance Officers designation and compensation must be approved by the Board, including a majority of the Independent Trustees. Other officers, if any, may be elected or appointed by the Trustees at said meeting or at any other time. Vacancies in any office may be filled at any time. The Trustees shall also consider the appointment of the Chairperson of the Trustees, and the Vice-Chairperson of the Trustees, if any, at least every two years.
3.3 Tenure . The President, the Treasurer, and the Secretary shall hold office until the next annual meeting of the Trustees and until their respective successors are chosen and qualified, or in each case until he or she sooner dies, resigns, is removed or becomes disqualified. The Chief Compliance Officer shall hold office until his or her successors designation as Chief Compliance Officer is approved by the Board, including a majority of the Independent Trustees, he or she is removed from his or her responsibilities by action of (and only with the approval of)
2
the Trusts Board, including a majority of the Independent Trustees, or he or she sooner dies or resigns. Each other officer shall hold office and each agent shall retain authority at the pleasure of the Trustees.
The Chairperson of the Trustees, and the Vice-Chairperson of the Trustees, if any, shall serve in such capacity for a term of two (2) years and until a successor is duly appointed, or until such earlier time as (i) the Trustee resigns or is removed by the Trustees; (ii) the Trustee ceases to be a Trustee; or (iii) such Trustee ceases to qualify as an Independent Trustee. A Trustee may serve as Chairperson of the Trustees or Vice-Chairperson of the Trustees for one or more consecutive terms, as determined by the Trustees.
3.4 Powers . Subject to the other provisions of these By-Laws, each officer shall have, in addition to the duties and powers herein and in the Master Trust Agreement set forth, such duties and powers as are commonly incident to the office occupied by him or her as if the Trust were organized as a Massachusetts business corporation and such other duties and powers as the Trustees may from time to time designate.
3.5 Chairperson of the Trustees . Unless the Trustees otherwise provide, the Chairperson of the Trustees, or, in the absence of the Chairperson of the Trustees, the Vice-Chairperson of the Trustees, or in the absence of the Vice-Chairperson of the Trustees, another Trustee selected by the Trustees, shall preside at all meetings of the shareholders and of the Trustees.
The Chairperson of the Trustees shall also have the following duties with respect to the Trust: (i) to preside at all meetings of the Trustees at which the Chairperson of the Trustees is present (and to delegate such duty to another Independent Trustee if neither the Chairperson nor Vice-Chairperson of the Trustees is present); (ii) to develop and set the agenda for all Trustee meetings in consultation with the officers of the Trust and management personnel of the service providers of the Trust (such officers and management personnel being referred to collectively as Management); (iii) to serve as a principal liaison with Management with respect to matters involving the Trustees; and (iv) to perform such other duties as may be necessary to comply with the requirements of Rule 0-1(a)(7)(iv) of the General Rules and Regulations under the 1940 Act. In fulfilling the duties hereunder, the Chairperson of the Trustees shall have access to such Management personnel as the Chairperson of the Trustees determines to be necessary or desirable and Management shall be obligated to make available to the Chairperson of the Trustees all information and assistance as may be reasonably necessary to permit the Chairperson of the Trustees to perform such duties.
3.6 President and Vice President . The President shall be the chief executive officer of the Trust. The Vice President, or if there be more than one Vice President, the Vice Presidents, in the order determined by the Trustees (or if there be no such determination, then in the order of their election) shall in the absence of the President or in the event of his inability or refusal to act, perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The President and Vice Presidents shall perform such other duties and have such other powers as the Board may from time to time prescribe.
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3.7 Treasurer . The Treasurer shall be the chief financial officer of the Trust, and shall, subject to the provisions of the Master Trust Agreement and to any arrangement made by the Trustees with a custodian, investment adviser or manager, or transfer, shareholder servicing or similar agent, be in charge of the valuable papers, and shall have such other duties and powers as may be designated from time to time by the Trustees or by the President.
3.8 Assistant Treasurer . The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Trustees (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.
3.9 Secretary . The Secretary shall record all proceedings of the shareholders and the Trustees in books to be kept therefor, which books or a copy thereof shall be kept at the principal office of the Trust. In the absence of the Secretary from any meetings of the shareholders or Trustees, an assistant secretary, or if there be none or if he or she is absent, a temporary secretary chosen at such meeting shall record the proceedings thereof in the aforesaid books.
3.10 Assistant Secretary . The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Trustees (or if there be no determination, then in the order of their election), shall, in the absence of the Secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.
3.11 Chief Compliance Officer . The Chief Compliance Officer shall administer the Trusts policies and procedures adopted by the Board pursuant to Rule 38a-1 under the 1940 Act (the Rule 38a-1 Policies and Procedures). The Chief Compliance Officer must no less frequently than annually (i) provide a written report to the Board on the operation of the Trusts Rule 38a-1 Policies and Procedures and those of its service providers as required by Rule 38a-1 under the 1940 Act and (ii) meet separately with the Trusts Independent Trustees.
3.12 Other Officers . The Trustees from time to time may appoint such other officers or agents as they may deem advisable, each of whom shall have such title, hold office for such period, have such authority and perform such duties as the Trustees may determine. The Trustees from time to time may delegate to one or more officers or agents the power to appoint any such subordinate officers or agents and to prescribe their respective rights, terms of office, authorities and duties.
3.13 Resignations and Removals . Any Trustee or officer may resign at any time by written instrument signed by him or her and delivered to the Chairperson of the Trustees, the President or the Secretary or to a meeting of the Trustees. Such resignation shall be effective upon receipt unless specified to be effective at some other time. The Trustees may remove any officer elected by them with or without cause. Except to the extent expressly provided in a written agreement with the Trust, no Trustees or officer resigning and no officer removed shall
4
have any right to any compensation for any period following his or her resignation or removal, or any right to damages on account of such removal.
ARTICLE 4
Committees
4.1 General . The Trustees, by vote of a majority of the Trustees then in office, may establish one or more committees, each of which may consist of all or fewer than all of the Trustees, and may delegate thereto some or all of their powers except those which by law, by the Master Trust Agreement, or by these By-Laws may not be delegated. Except as the Trustees may otherwise determine, any such committee may make rules for the conduct of its business, but unless otherwise provided by the Trustees or in such rules, its business shall be conducted so far as possible in the same manner as is provided by these By-Laws for the Trustees themselves. All members of such committees shall hold such offices at the pleasure of the Trustees. The Trustees may abolish any such committee at any time. Any committee to which the Trustees delegate any of their powers or duties shall keep records of its meetings and shall report its action to the Trustees. The Trustees shall have power to rescind any action of any committee, but no such rescission shall have retroactive effect.
ARTICLE 5
Reports
5.1 General . The Trustees and officers shall render reports at the time and in the manner required by the Master Trust Agreement or any applicable law. Officers and committees shall tender such additional reports as they may deem desirable or as may from time to time be required by the Trustees.
ARTICLE 6
Fiscal Year
6.1 General . The fiscal year of the Trust shall be fixed by resolution of the Trustees.
ARTICLE 7
Seal
7.1 General . The seal of the Trust shall consist of a flat-faced die with the word Massachusetts, together with the name of the Trust and the year of its organization cut or engraved thereon, but, unless otherwise required by the Trustees, the seal shall not be necessary to be placed on, and its absence shall not impair the validity of, any document, instrument or other paper executed and delivered by or on behalf of the Trust.
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ARTICLE 8
Execution of Papers
8.1 General . Except as the Trustees may generally or in particular cases authorize the execution thereof in some other manner, all deeds, leases, contracts, notes and other obligations made by the Trustees shall be signed by the President, any Vice President, or by the Treasurer and need not bear the seal of the Trust.
ARTICLE 9
Issuance of Share Certificates
9.1 Share Certificates . In lieu of issuing certificates for shares, the Trustees or the transfer agent may either issue receipts therefor or may keep accounts upon the books of the Trust for the record holders of such shares, who shall in either case be deemed, for all purposes hereunder, to be the holders of certificates for such shares as if they had accepted such certificates and shall be held to have expressly assented and agreed to the terms hereof.
The Trustees may at any time authorize the issuance of share certificates either in limited cases or to all shareholders. In that event, a shareholder may receive a certificate stating the number of shares owned by him, in such form as shall be prescribed from time to time by the Trustees. Such certificates shall be signed by the president or a vice president and by the treasurer or assistant treasurer. Such signatures may be facsimiles or electronic signatures if the certificate is signed by a transfer agent, or by a registrar, other than a Trustee, officer or employees of the Trust. In case any officer who has signed or whose facsimile signature has been placed on such certificate shall cease to be such officer before such certificate is issued, it may be issued by the Trust with the same effect as if he were such officer at the time of its issue.
9.2 Loss of Certificates . In case of the alleged loss or destruction or the mutilation of a share certificate, a duplicate certificate may be issued in place thereof, upon such terms as the Trustees shall prescribe.
9.3 Issuance of New Certificate to Pledgee . A pledgee of shares transferred as collateral security shall be entitled to a new certificate if the instrument of transfer substantially describes the debt or duty that is intended to be secured thereby. Such new certificate shall express on its face that it is held as collateral security, and the name of the pledgor shall be stated thereon, who alone shall be liable as a shareholder, and entitled to vote thereon.
9.4 Discontinuance of Issuance of Certificates . The Trustees may at any time discontinue the issuance of share certificates and may, by written notice to each shareholder, require the surrender of shares certificates to the Trust for cancellation. Such surrender and cancellation shall not affect the ownership of shares in the Trust.
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ARTICLE 10
Dealings with Trustees and Officers
10.1 General . Any Trustee, officer or other agent of the Trust may acquire, own and dispose of shares of the Trust to the same extent as if he were not a Trustee, officer or agent; and the Trustees may accept subscriptions to shares or repurchase shares from any firm or company in which any Trustee, officer or other agent of the Trust may have an interest.
ARTICLE 11
11.1 Voting . Subject to the provisions of the Master Trust Agreement, shareholders entitled to vote may vote either in person or by proxy; provided, that either (1) the shareholder or his or her duly authorized attorney has signed and dated a written instrument authorizing such proxy to act, or (2) the Trustees adopt by resolution an electronic, telephonic, computerized or other alternative to execution of a written instrument authorizing the proxy to act, but if a proposal by anyone other than the officers or Trustees is submitted to a vote of the shareholders of any series or class, or if there is a proxy contest or proxy solicitation or proposal in opposition to any proposal by the officers or Trustees, shares may be voted only in person or by written proxy.
ARTICLE 12
Amendments to the By-Laws
12.1 General . These By-Laws may be amended or repealed, in whole or in part, by a majority of the Trustees then in office at any meeting of the Trustees, or by one or more writings signed by such a majority.
As amended and restated through March 15, 2012.
7
Exhibit (d)(6)(ii)
VAN ECK FUNDS
MULTI-MANAGER ALTERNATIVES FUND
Schedule Identifying Details of Sub-Advisory Contracts:
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PARTY |
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DATE SIGNED AGREEMENT |
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Acorn Derivatives Management Corp. |
May 19, 2011 |
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Coe Capital Management, LLC |
May 19, 2011 |
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Dix Hills Partners, LLC |
March 20, 2009 |
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Martingale Asset Management, L.P. |
May 1, 2003 |
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Medley Credit Strategies, LLC |
March 31, 2011 |
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Millrace Asset Group, Inc. |
May 19, 2011 |
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PanAgora Asset Management, Inc. |
May 1, 2003 |
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Primary Funds, LLC |
January 12, 2010 |
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Tiburon Capital Management, LLC |
November 9, 2011 |
Exhibit (e)(7)
Van Eck Funds
335 Madison Avenue, 19th Floor
New York, New York 10017
April 24, 2012
Van Eck
Securities Corporation
335 Madison Avenue, 19th Floor
New York, New York 10017
Ladies and Gentlemen:
Pursuant to Section 1 of the Distribution Agreement, dated July 30, 1985 (the Agreement), between Van Eck Funds (the Trust) and Van Eck Securities Corporation (the Distributor), please be advised that the Trust has established an additional class of shares, namely, Class C shares, for a series of the Trust, namely, Multi-Manager Alternatives Fund. Furthermore, the Trust has established an additional series of the Trust, namely, Unconstrained Emerging Markets Bond Fund which is expected to offer Class A, Class C, Class I and Class Y shares (together, with Multi-Manager Alternatives Fund, the Funds). The Trustees of the Trust have adopted the Agreement to retain the Distributor to render services contemplated by the Agreement for the Funds. 1 Shares of the Funds will be sold in accordance with the terms and conditions of the then-current prospectuses of the Trust, as from time to time amended.
Please confirm below your willingness to render such services.
VAN ECK FUNDS
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/s/ Joseph J. McBrien |
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Name: |
Joseph J. McBrien |
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Title: |
Secretary |
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Confirmed, Agreed to and Accepted this 24 th day of April, 2012:
VAN ECK SECURITIES CORPORATION
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/s/ Jan van Eck |
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Name: |
Jan van Eck |
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Title: |
President |
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1 |
The Board of Trustees of the Trust approved the establishment of Class C shares for Multi-Manager Alternatives Fund and the establishment of the Unconstrained Emerging Markets Bond Fund at its March 14-15, 2012 meeting. As of the date of this Letter Agreement, it is anticipated that the Class C shares for Multi-Manager Alternatives Fund will be offered beginning on or about May 1, 2012 and that the Unconstrained Emerging Markets Bond Fund will commence operations in the second quarter of 2012. |
Exhibit (i)(6)
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Philip H. Newman |
Goodwin Procter LLP |
617.570.1558 |
Counsellors at Law |
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pnewman@goodwinprocter.com |
Exchange Place |
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Boston, MA 02109 |
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T: 617.570.1000 |
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F: 617.523.1231 |
April 27, 2012
Van Eck Funds
335 Madison Avenue, 19th Floor
New York, New York 10017
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Re: |
Securities Registered under Registration Statement on Form N-1A |
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of Post-Effective Amendment No. 106 to the Registration Statement on Form N-1A (File Nos. 002-97596; 811-04297) (as so supplemented, the Registration Statement) pursuant to the Securities Act of 1933, as amended (the Securities Act), relating to the registration of the offering by Van Eck Funds (the Trust), a voluntary association with transferable shares under Chapter 182 of the Massachusetts General Laws, commonly referred to as a Massachusetts business trust, of an unlimited number of Class C shares of stock of the Trust (the Shares) representing interests in the Multi-Manager Alternatives Fund (the Fund), a series of the Trust, as more fully described in the prospectus and statement of additional information contained in the Registration Statement.
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinion expressed below. We have relied, without independent verification, on a certificate of the Secretary of the Commonwealth of Massachusetts and, as to matters of fact material to the opinion set forth below, on a certificate of the Secretary of the Trust.
We have assumed that the Shares will be issued and sold in accordance with the terms and conditions of the effective Registration Statement, including the prospectus and statement of additional information contained therein, as supplemented and/or amended from time to time, and that ownership of the Shares will be duly recorded in the books of the Trust.
The opinion expressed below is limited to Massachusetts law.
Based upon the foregoing, we are of the opinion that the Shares, when issued and sold, will be validly issued, fully-paid and non-assessable by the Trust.
We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement and to the references to our firm as legal counsel for the Trust in the Registration
Van Eck Funds
April 27, 2012
Page 2
Statement. This consent shall not constitute an acknowledgment that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, and the rules and regulations thereunder.
Very truly yours,
/s/ GOODWIN PROCTER LLP
GOODWIN PROCTER LLP
Exhibit (j)(1)
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Philip H. Newman |
Goodwin Procter LLP |
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617.570.1558 |
Counsellors at Law |
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pnewman@ |
Exchange Place |
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goodwinprocter.com |
Boston, MA 02109 |
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T: 617.570.1000 |
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F: 617.523.1231 |
April 27, 2012
Van Eck Funds
335 Madison Avenue, 19th Floor
New York, New York 10017
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Re: |
Van Eck Funds |
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Post-Effective Amendment No. 106 to Registration Statement on Form N-1A |
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File Nos. 002-97596; 811-04297 |
Ladies and Gentlemen:
Reference is hereby made to the Post-Effective Amendment No. 106 to the Registration Statement on Form N-1A of Van Eck Funds (the Registrant), being filed pursuant to Rule 485(b) under the Securities Act of 1933, as amended (the Registration Statement), together with the exhibits indicated as being filed therewith.
We hereby consent to the references to our firm as legal counsel for the Registrant in the Registration Statement. This consent shall not constitute an acknowledgment that we are within the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended, and the rules and regulations thereunder.
Sincerely,
/s/ Goodwin Procter LLP
GOODWIN PROCTER LLP
Exhibit (j)(2)
Consent of Independent Registered Public Accounting Firm
We consent to the references to our firm under the captions Financial Highlights and Other Information in the Prospectuses and Counsel and Independent Registered Public Accounting Firm in the Statements of Additional Information in Post-Effective Amendment No. 106 to the Registration Statement (Form N-1A, No. 002-97596 and No. 811-04297) of Van Eck Funds and to the incorporation by reference of our report dated February 23, 2012 for CM Commodity Index Fund, Emerging Markets Fund, Global Hard Assets Fund, International Investors Gold Fund and Multi-Manager Alternatives Fund (the investment funds constituting part of the Van Eck Funds) included in the Annual Report to Shareholders for the fiscal year ended December 31, 2011.
ERNST & YOUNG LLP
New York, NY
April 27, 2012
Exhibit (m)(2)
EXHIBIT A
AMENDED AND RESTATED
PLAN OF DISTRIBUTION PURSUANT TO RULE 12b-1
VAN ECK FUNDS
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Fund and Share Class |
Maximum 12b-1 Fees/Annual Limitation
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Emerging Markets Fund |
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Class A |
0.25% |
Class C |
1.00% |
Global Hard Assets Fund |
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Class A |
0.25% |
Class C |
1.00% |
International Investors Gold Fund |
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Class A |
0.25% |
Class C |
1.00% |
Multi-Manager Alternatives Fund |
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Class A |
0.25% |
Class C 1 |
1.00% |
CM Commodity Index Fund |
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Class A |
0.25% |
Long/Flat Commodity Index Fund |
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Class A |
0.25% |
Unconstrained Emerging Markets Bond Fund 1 |
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Class A |
0.25% |
Class C |
1.00% |
Exhibit A last amended on March 15, 2012
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1 |
The Board of Trustees of Van Eck Funds approved the establishment of Class C shares for Multi-Manager Alternatives Fund and the establishment of the Unconstrained Emerging Markets Bond Fund at its March 14-15, 2012 meeting. As of the date of this Exhibit A, it is anticipated that the Class C shares for Multi-Manager Alternatives Fund will be offered beginning on or about May 1, 2012 and that the Unconstrained Emerging Markets Bond Fund will commence operations in the second quarter of 2012. |
Exhibit (p)(7)
ACORN DERIVATIVES MANAGEMENT CORP.
CODE OF ETHICS PERSONAL TRADING PROCEDURES
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I. |
INTRODUCTION |
High ethical standards are essential for the success of the Adviser and to maintain the confidence of clients and investors in investment funds managed by the Adviser (clients). The Advisers long-term business interests are best served by adherence to the principle that the interests of clients come first. We have a fiduciary duty to clients to act solely for the benefit of our clients. All personnel of the Adviser, including directors, officers and employees of the Adviser must put the interests of the Advisers clients before their own personal interests and must act honestly and fairly in all respects in dealings with clients. All personnel of the Adviser must also comply with all federal securities laws. In recognition of the Advisers fiduciary duty to its clients and the Advisers desire to maintain its high ethical standards, the Adviser has adopted this Code of Ethics (the Code) containing provisions designed to prevent improper personal trading, identify conflicts of interest and provide a means to resolve any actual or potential conflicts in favor of the Advisers clients.
Adherence to the Code of Ethics and the related restrictions on personal investing is considered a basic condition of employment by the Adviser. If you have any doubt as to the propriety of any activity, you should consult with the Compliance Officer, who is charged with the administration of this Code of Ethics.
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II. |
DEFINITIONS |
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1. |
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Access Person means any partner, officer, director or employee of the Adviser, or other person who provides investment advice on behalf of the Adviser and is subject to the supervision and control of the Adviser (i) who has access to nonpublic information regarding any clients purchase or sale of securities, or nonpublic information regarding portfolio holdings of any reportable fund or (ii) who is involved in making securities recommendations to clients (or who has access to such recommendations that are nonpublic). |
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2. |
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Automatic Investment Plan means a program in which regular periodic purchases (or withdrawals) are made automatically in (or from) investment accounts in accordance with a predetermined schedule and allocation, including a dividend reinvestment plan. |
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3. |
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Beneficial ownership includes ownership by any person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares a direct or indirect financial interest other than the receipt of an advisory fee. |
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4. |
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Covered Person means any director/manager, officer, employee or Access Person of the Adviser. |
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5. |
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Personal Account means any account in which a Covered Person has any beneficial ownership. |
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6. |
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Reportable Security means a security as defined in section 202(a)(18) of the Act (15 U.S.C. 80b-2(a)(18)) and includes any derivative, commodities, options or forward contracts relating thereto, except that it does not include: |
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(i) |
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Direct obligations of the Government of the United States; |
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(ii) |
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Bankers acceptances, bank certificates of deposit, commercial paper and high quality short-term debt instruments, including repurchase agreements; |
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(iii) |
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Shares issued by money market funds; |
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(iv) |
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Shares issued by registered open-end funds other than exchange-traded funds and other than registered funds managed by the Adviser or registered funds whose adviser or principal underwriter controls the Adviser, is controlled by the Adviser, or is under common control with the Adviser (each a Reportable Fund); and |
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(v) |
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Shares issued by unit investment trusts that are invested exclusively in one or more registered open-end funds, none of which are reportable funds. |
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7. |
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Restricted Security means any security that (1) a client owns or is in the process of buying or selling; or (2) the Adviser is researching, analyzing or considering buying or selling for a client. |
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8. |
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Short Sale means the sale of securities that the seller does not own. A Short Sale is against the box to the extent that the seller contemporaneously owns or has the right to obtain securities identical to those sold short, at no added cost. |
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III. |
APPLICABILITY OF CODE OF ETHICS |
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Personal Accounts of Covered Persons . This Code of Ethics applies to all Personal Accounts of all Covered Persons. |
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A Personal Account also includes an account maintained by or for: |
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A Covered Persons spouse (other than a legally separated or divorced spouse of the Covered Person) and minor children; |
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Any immediate family members who live in the Covered Persons household; |
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Any persons to whom the Covered Person provides primary financial support, and either (i) whose financial affairs the Covered Person controls, or (ii) for whom the Covered Person provides discretionary advisory services; and |
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Any partnership, corporation or other entity in which the Covered Person has a 25% or greater beneficial interest, or in which the Covered Person exercises effective control. |
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A comprehensive list of all Covered Persons and Personal Accounts will be maintained by the Advisers Compliance Officer. |
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IV. |
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RESTRICTIONS ON PERSONAL INVESTING ACTIVITIES |
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1. |
General . It is the responsibility of each Covered Person to ensure that a particular securities transaction being considered for his or her Personal Account is not subject to a restriction contained in this Code of Ethics or otherwise prohibited by any applicable laws. Personal securities transactions for Covered Persons may be effected only in accordance with the provisions of this Section. |
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Prohibitions on Trading in Securities . A Covered Person may not execute any personal securities transaction of any kind in securities currently traded for the firms clients, or the securities of any current clients. |
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3. |
Initial Public Offerings, Private Placements and Limited Offerings . A Covered Person must obtain the prior written approval of the Compliance Officer before engaging in any transaction in any initial public offering, private placement or limited offering. Based on the investment strategy of the Adviser, fixed income offerings are specifically exempted from this requirement. |
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Any approval given under this paragraph will remain in effect for 24 hours. |
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Private Placements . A Covered Person may, if accepted by the General Partner, acquire a beneficial ownership in a fund in which the Adviser is the General Partner, with prior notice to the Compliance Officer. |
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5. |
Service on Boards of Directors; Other Business Activities . A Covered Person shall not serve as a director (or similar position) on the board or a member of a creditors committee of any company, including a publicly traded company (but excluding non-profit organizations, unless such non-profit organization is a client) without prior written approval of the Compliance Officer. At the time a Covered Person submits the initial holdings report in accordance with Section V(1) of this Code of Ethics, the Covered Person will submit to the Compliance Officer a description of any business activities in which the Covered Person has a significant role, and must immediately notify the Compliance Officer of any change thereafter. Any outside business activities of an Access Person must be approved by the Compliance Officer. |
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6. |
Management of Non-Adviser Accounts . Covered Persons are prohibited from managing accounts for third parties who are not clients of the Adviser or serving as a trustee for third parties unless the Compliance Officer preclears the arrangement and finds that the arrangement would not harm any client. The Compliance Officer may require the Covered Person to report transactions for such account and may impose such conditions or restrictions as are warranted under the circumstances. |
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V. |
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REPORTING |
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Disclosure of Securities Holdings . All Covered Persons will, within 10 days of commencement of employment with the Adviser, submit an initial statement to the Compliance Officer listing all of the securities in which the Covered Person has any beneficial ownership, (including title and exchange ticker symbol or CUSIP number, type of security, number of shares and principal amount (if applicable) of each reportable security in which the Covered Person has any beneficial ownership); |
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the names of any brokerage firms or banks where the Covered Person has an account in which ANY securities are held. |
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b. |
The report must be dated the day the Covered Person submits it, and must contain information that is current as of a date no more than 45 days prior to the date the person becomes a Covered Person of the Adviser. Covered Persons will annually submit to the Compliance Officer an updated statement, which must be current as of a date no more than 45 days prior to the date the report was submitted. A form of the initial report is set forth in Attachment C. |
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2. |
New Accounts . Each Covered Person must notify the Compliance Officer promptly if the Covered Person opens any new account in which any securities are held with a broker or custodian or moves such an existing account to a different broker or custodian. |
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Quarterly Reporting of Securities Transactions . All Covered Persons must submit to the Compliance Officer a report of their securities transactions no later than 30 days after the end of each calendar quarter. The report must set forth each transaction in a Reportable Security in which the Covered Person had any beneficial interest during the period covered by the report. In lieu of listing every transaction, the Covered Person may direct their brokers or custodians or any persons managing the Covered Persons account in which any Reportable Securities are held to supply the Compliance Officer with duplicate copies the Covered Persons monthly and quarterly brokerage statements. |
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Exceptions to Reporting Requirements . A Covered Person need not submit any report with respect to securities held in accounts over which the Covered Person has no direct or indirect influence or control or transaction reports with respect to transactions effected pursuant to an automatic investment plan. |
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5. |
Covered Persons must report immediately any suspected violations to the Compliance Officer. |
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VI. |
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RECORDKEEPING |
The Compliance Officer will keep in an easily accessible place for at least five (5) years copies of this Code of Ethics, all reports of Covered Persons, copies of all preclearance forms, records of violations and actions taken as a result of violations, acknowledgments and other memoranda relating to the administration of this Code of Ethics.
All Brokers periodic statements of Covered Persons may be kept electronically in a computer database.
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VII. |
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OVERSIGHT OF CODE OF ETHICS |
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Acknowledgment . The Compliance Officer will annually distribute a copy of the Code of Ethics to all Covered Persons. The Compliance Officer will also distribute promptly all amendments to the Code of Ethics. All Covered Persons are required annually to sign and acknowledge their receipt of this Code of Ethics by signing the form of acknowledgment or such other form as may be approved by the Compliance Officer. |
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2. |
Review of Transactions . Each Covered Persons transactions in his/her Personal Account will be reviewed on a regular basis and compared with restricted securities as defined in Section IV(2) above. Any Covered Person transactions that are believed to be a violation of this Code of Ethics will be reported promptly to the senior management of the Adviser. An officer of the Adviser will review the Compliance Officers transactions and preclearance requests. |
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3. |
Sanctions . Advisers management, with advice of legal counsel, at their discretion, will consider reports made to them and upon determining that a violation of this Code of Ethics has occurred, may impose such sanctions or remedial action as they deem appropriate or to the extent required by law. These sanctions may include, among other things, disgorgement of profits, suspension or termination of employment and/or criminal or civil penalties. |
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4. |
Authority to Exempt Transactions . The Compliance Officer has the authority to exempt any Covered Person or any personal securities transaction of a Covered Person from any or all of the provisions of this Code of Ethics if the Compliance Officer determines that such exemption would not be against any interests of a client and in accordance with applicable law. The Compliance Officer will prepare and file a written memorandum of any exemption granted, describing the circumstances and reasons for the exemption. |
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5. |
ADV Disclosure . The Compliance Officer will ensure that the Advisers Form ADV (1) describes the Code of Ethics in Item 11 of Part 2A and (2) offers to provide a copy of the Code of Ethics to any client or prospective client upon request. |
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VIII. |
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CONFIDENTIALITY |
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All reports of personal securities transactions and any other information filed pursuant to this Code of Ethics will be treated as confidential to the extent permitted by law. |
Exhibit (p)(8)
Coe Capital Management, LLC
Code of Ethics
March, 2012
{Amendment #__}
Cover letter from Managing Member/CCO/Management
March 01, 2012
In order to meet the requirements put forth by SEC Rule 204 A-1 (Release No. 275.204A-1)
Coe Capital Management, LLC has created the Following Code of Ethics.
Thank you,
Coe Capital Management, LLC
2
Execution Page
Effective immediately, this Code of Ethics (COE) supersedes or cancels all previous COEs and other directives pertaining to previous COEs. Pursuant to Coe Capital Management, LLCs policy, each Access Person must read, understand, and agree to abide by the rules set forth herein and with the Coe Capital Management, LLCs Policies & Procedures Manual. The rules set forth are based on applicable securities laws and regulations. Failure to comply may result in disciplinary action. By conforming to them, both in letter and in spirit, the Supervised Person (shall service his/her own best interest by serving the clients best interest.
Date, sign, and return the attached Certification of this COE to the Chief Compliance Officer of Coe Capital Management, LLC. Be sure to maintain your copy of this COE for reference purposes.
Coe Capital Management, LLC :
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Date: |
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Print Name |
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Managing Member |
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Date: |
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Print Name |
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Chief Compliance Officer |
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EXHIBIT I
Certification
of the
Coe Capital
Management, LLC
Code of Ethics
Initial each paragraph:
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I certify that I have received a personal copy and have read the Code of Ethics dated March 01, 2012 |
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I certify that I will comply with these policies and procedures during the course of my employment or affiliation with Coe Capital Management, LLC . |
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I agree to promptly report to the Chief Compliance Officer any violation, or possible violation, of the Policy of which I became aware. |
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I understand that violation of the Policy will be grounds for disciplinary action or dismissal and may also be a violation of federal and/or state securities laws. |
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I certify that I have not and will not discuss material non-public information, particularly regarding client account holdings, with anyone who does not have a bona fide business need to know the information. |
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Print Name |
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Signature |
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Signed copy will be retained in Coe Capital Management, LLC Compliance Department files.
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Table of Contents
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Introduction and Purpose |
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Standards of Conduct |
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6 |
Persons Covered by the COE |
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7 |
Personal Securities Transactions |
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Securities Covered by the COE |
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8 |
Material Non-Public Information (Insider information): |
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Review of Reports: |
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9 |
Conflicts of Interest |
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Confidentiality |
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10 |
Gifts and Gratuities |
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10 |
Political Contributions |
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11 |
Reporting Violations |
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Glossary of Terms |
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12 |
5
Introduction and Purpose
Clients of
Coe Capital Management, LLC
are entitled
to expect high ethical standards of conduct in all of their dealings with us.
Coe Capital Management, LLC
strives to
foster a culture that supports our ability to meet our clients expectations.
To assist us in minimizing potential conflicts and prevent inappropriate
activity by
access persons
of
Coe Capital Management, LLC
, we have
developed a Code of Ethics.
Standards of Conduct
The following principals
will be the foundation on which
Coe Capital
Management, LLC
will build our reputation for being committed to
ethical activities.
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Integrity : Strong adherence to a strict code of moral values is the foundation of ethical behavior. The position of trust you are placed in mandates that you perform your duty according to the strictest codes of honesty and integrity. It is unacceptable to seek personal gain or advantage at the expense of a client. |
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Competence : This is a measure of a persons ability to perform a duty. The duties you are required to perform include satisfying your clients needs and complying with all applicable laws and procedures. It is our desire to see that in obligating these duties, you employ and continually strive to achieve the utmost competence and good faith. Where necessary, this includes acquiring additional training to ensure competency and proficiency. |
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Professionalism : Crucial to proper business conduct is the ability to act in a professional manner. The professionalism presented to clients and the public speaks louder than any statement that can be made. Professionalism should provide those around you with a positive experience, which includes disclosing compensation that is received by CCM for its services. It is unprofessional to engage in any conduct, which reflects adversely upon yourself, your colleagues, Coe Capital Management, LLC , or the profession. |
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Fiduciary Duty : This capacity requires that when conducting business and dealing with clients, it is always the clients best interests that are served first. It is paramount that conflicts are disclosed and every effort is made to direct conflict situations to conclusions that benefit clients, based on their suitability. |
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Objectivity : When making decisions and providing advice, it is fundamental that you do so without distorting the facts by personal prejudices or feelings. Every effort should be made to ensure that decisions made and conclusions drawn are free from any and all emotional influences. |
Persons covered by the COE are not permitted, in connection with the purchase or sale, directly or indirectly, of a security held or to be acquired by a client:
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a. |
To defraud such client in any manner; |
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b. |
To mislead such client, including by making a statement that omits material facts; |
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c. |
To engage in any act, practice or course of conduct which operates or would operate as a fraud or deceit upon such client; |
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d. |
To engage in any manipulative practice with respect to such client; or |
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e. |
To engage in any manipulative practice with respect to securities, including price manipulation. |
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Furthermore, at all times persons covered by the COE must adhere to these specific provisions: |
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At all times, the interests of the Firms clients must come first; |
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b. |
Personal securities transactions must be conducted consistent with the Code. |
The principles and provisions listed above should govern all conduct of Coe Capital Management, LLC employees, although more specific guidelines on conduct may be outlined below or in the Coe Capital Management, LLC Policies and Procedures Manual (PPM) or by consulting the Chief Compliance Officer (CCO).
Employees of CCM, whether Investment Advisor Representatives, Associated Persons, Independent Contractors and /or Access Persons are required to comply with all applicable city, state, and federal securities laws and the Coe Capital Management, LLC Policies and Procedures Manual(s). Additionally any other Access Persons (not employed by CCM) are still subject to all applicable city, state, and federal securities laws.
Persons Covered by the COE
For clarity,
throughout the remainder of this COE, management, employees, Investment Adviser
Representatives, independent contractors and any other
access person
will be referred to as
Supervised Persons
.
Because of the sensitive nature of client data, all supervised persons of Coe Capital Management, LLC who have access to material non-public information regarding companies, client holdings or recommendations given to clients, including directors, officers, employees, investment adviser representatives and all other access and/or supervised persons are required to adhere to the COE.
Portions of the COE, such as Personal Securities Transactions and handling of material non-public information , also extend to the trading activity of the immediate family, the spouse, children, and/or other family member(s) living in the same household or receiving material financial support from of the Supervised Person . In addition, the same provisions apply to any other account in which the Supervised Person has a direct or indirect beneficial interest (i.e. a Trust account).
Personal Securities Transactions
Supervised Persons
agree to abide by the rules outlined in this code as well as the rules
regarding personal securities trading set forth in the Policies and Procedures
Manual.
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Initial and Annual Holdings Reports: |
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Covered Persons must report all personal securities holdings to the Chief Compliance Officer or compliance designee (as described in the Coe Capital |
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Management, LLC Policies and Procedures Manual) at the time they become a Supervised Person and at least once per year thereafter (i.e. with an end of the year account statement). The report must be current as of a date not more than 45 days prior to submission. |
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Quarterly Reports: |
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Covered Persons are required to have reports of all personal securities transactions submitted to the Chief Compliance Officer or designee no later than 30 days after the end of each calendar quarter (April 30, July 31, October 31 or January 31). |
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The report must contain at a minimum, the following information about each transaction involving a reportable security in which the access person had, or as a result of the transaction acquired, any direct or indirect beneficial ownership: |
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The date of the transaction, the title, and as applicable the exchange ticker symbol or CUSIP number, interest rate and maturity date, number of shares, and principal amount of each reportable security involved; |
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The nature of the transaction (i.e., purchase, sale or any other type of acquisition or disposition); |
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The price of the security at which the transaction was effected; |
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The name of the broker, dealer or bank with or through which the transaction was effected; and |
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The date the access person submits the report. |
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In the event that CCM can obtain records of personal securities transactions of accounts in the form of Account Statements physically or electronically, additional reporting is not required by the Access Person . |
There are two exceptions to personal securities transactions covered by the COE:
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Transactions effected pursuant to an automatic investment plan. |
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Securities held in accounts over which the access person had no direct or indirect influence or control. |
Securities Covered by the COE
All
Covered
Persons
are required to submit reports for reportable securities in which the person
has or acquires any direct or indirect beneficial ownership. A
Covered Person
is presumed to be a
beneficial owner
of securities that are
held by his or her immediate family members sharing the
Covered Person
s household.
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Covered Security means any stock, bond, future, investment contract or any other instrument that is considered a security under the Investment Advisers Act of 1940, including:
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Equity Securities including ETFs; |
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Options on securities, on indexes, and on currencies; |
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All kinds of limited partnerships; |
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Foreign unit trusts and foreign mutual funds; and |
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Private investment funds, hedge funds, and investment clubs. |
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Broad Market ETFs |
CCMs current policy only allows Supervised Persons to invest in ETFs and Open-end Mutual funds (where CCM does not act as an adviser to the fund). While CCM believes these two items appear to present little opportunity for improper trading, to help CCM maintain the high standard discussed in the COE, they are still subject to CCMs pre-approval procedures as outlined in CCMs Policies and Procedures Manual under Personal Securities Transactions. As the name implies, this procedure is completed before any transactions occur. Details of CCM preapproval procedure can be found in the PPM.
Per Rule 204A-1, Supervised Persons are required to obtain pre-approval prior to investing in an Initial Public Offering (IPO) or a Limited Offering (Limited Partnerships). Preapproval may be obtained through the Chief Compliance Officer or the appointed designee. Care should be taken in granting approval to ensure the Supervised Person is not misappropriating an investment opportunity that should first be offered to eligible clients. No Supervised Person shall pre-clear his/her own trades.
Material Non-Public Information (Insider information):
All
Access Persons
have the responsibility to
promptly bring to the attention of the CCO any material non-public information
of which he or she may become aware that may affect CCMs normal business
operations, investments, research, etc. Further, any
access person
in possession of
material non-public information
is prohibited from using
such knowledge for his/her own benefit or share such information with others
who may do the same.
Failure
to
comply may result in disciplinary action. For further information regarding
Material Non-Public Information
, please
refer to the Insider Trading Procedures in the PPM.
Review of Reports:
The initial, annual
and quarterly reports submitted by a
Supervised
Person
will be reviewed by the CCO periodically in order to identify
improper trades or patterns, violations of
Federal
Securities Laws
and/or the requirements of this Code of trading by
Supervised Persons
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Conflicts of Interest
As a fiduciary,
Coe Capital Management, LLC
has an
affirmative duty of care, loyalty, honesty, and good faith to act in the best
interests of its clients. Compliance with this
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duty can be achieved by trying to avoid conflicts of interest and by fully disclosing all material facts concerning any conflict that does arise with respect to any client. Individuals subject to the code must try to avoid situations that have even the appearance of conflict or impropriety.
Coe Capital Management, LLC utilizes the Form ADV Part 2 (Brochure) to disclose general conflicts of interest to clients. Specific conflicts to avoid include:
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Conflicts among Client Interests . Conflicts of interest may arise where Coe Capital Management, LLC or its supervised persons have reason to favor the interests of one client over another. Some examples include: |
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Favoring larger accounts over smaller accounts; |
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Favoring accounts in which employees have made material personal investments; |
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Favoring accounts of close friends or relatives of supervised persons. |
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Favoritism of one account over another could constitute a breach of fiduciary duty. |
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Competing with Client Trades . Supervised Persons are prohibited from using knowledge about pending or currently considered securities transactions for clients to profit personally, directly or indirectly, as a result of such transactions, including by purchasing or selling such securities. |
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Personal Interest in a Security . Investment personnel are prohibited from recommending, implementing or considering any securities transaction for a client prior to disclosing any material B eneficial Ownership , business or personal relationship or other material interest in the issuer or its affiliates. |
Confidentiality
Supervised
Persons
are reminded of
their responsibility under Regulation S-P to ensure the confidentiality of all
client information, including client account holdings and recommendations, for
current and former clients, is protected. All
Access
Persons
are required to abide by CCMs Privacy Procedures detailed
in the PPM.
Gifts and Gratuities
A Covered Person
shall not accept or give, directly or indirectly, from or to any person or firm
(other than
Coe Capital Management, LLC
)
compensation of any nature, as a bonus, marketing reimbursement, commission,
fee, contest prize, gratuity, excessive entertainment, loan, or other
consideration, in connection with any securities transaction(s), in excess of
$100.00 per year, without the prior permission of the
Coe Capital Management, LLC
Compliance
Officer. Should a Covered Person receive a gift, they are required to adhere to
the procedures outlined in the applicable Policies and Procedures Manual.
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Political Contributions
In accordance with SEC Rule 206(4)-5
under the Investment Advisory Act of 1940, prohibiting an investment adviser
from providing investment advisory services for compensation to a government
entity within two years after a contribution to an official of the government
entity is made by the investment adviser or any covered associate (supervised
person) of the investment adviser. CCM has adopted a Pre-Clearance process
applicable to all Supervised Persons under the COE. Specific details regarding
the Policy can be found in the PPM section 11.3.12 Political Contributions.
Reporting Violations
Covered Persons are required to
promptly report suspected violations of the COE to the Chief Compliance
Officer. Reports of suspected violations may be directed through the Covered
Persons supervisor, who is required to report all suspected violations to the
CCO. All reported suspected violations of the COE will be investigated by the
CCO or an appropriate designee. Any confirmed violation of the COE will be
documented and reported to management of
Coe
Capital Management, LLC
by the CCO.
Coe Capital Management, LLCs
Obligation to Protect
Covered Persons Who Report Violations
Coe Capital
Management, LLC
respects the
integrity of those who report possible violations of the COE and feels an
obligation to protect reporters from possible retaliation. Instances of
retaliation are considered a violation of the COE and could result in the same
disciplinary sanctions as any other violation. These sanctions include (but are
not limited to:
Warning, Fine, Prohibitions
on trading, suspension and/or possible termination.
Coe Capital Management, LLC
will take all
measures available to protect the identity of persons who report possible
violations of the COE. Should it be determined by
Coe Capital Management, LLC
that a person is reporting
violations of the COE as a form of harassment against a Covered Person, the
reporter may be found to have violated the COE and will be subject to sanctions
(as described above).
Certification of Compliance
By signing and returning the attached
Certification, Covered Persons agree to abide by the spirit of the Code of
Ethics. Failure to comply may result in disciplinary action.
Additional Guidance
The CCO of
Coe Capital Management, LLC
is available to Covered Persons
for guidance on application of the COE to specific situations. From time to
time, the CCO may determine that continuing education for all Covered Persons
or a specific group of Covered Persons may be necessary. In the event that an
updated COE goes into effect, CCM will make the revised COE available to each
supervised Person to read and may require a signed acknowledgement of receipt.
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Glossary of Terms
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Access Person: Any Supervised Person (refer to Supervised Person below) and all Directors, Officers, and Partners (as applicable) of the company. |
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Affiliate: Are (1) all of CCMs officers, partners, or directors (or anyone in a similar capacity or performing the same functions); all persons directly or indirectly controlling or controlled by CCM; and all current employees . |
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3. |
Automatic Investment Plan: means a program in which regular periodic purchases (or withdrawals) are made automatically from investment accounts in accordance with a pre-determined schedule or allocation. An Automatic Investment Plan can include a dividend reinvestment plan or a Direct Investment Plan (Drip) account. |
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4. |
Beneficial Ownership: Is applied as used in the same manner as described in section 16 of the Securities Exchange Act of 1934 as amended and the rules and regulations thereunder. And in the broad sense can be described as any individual, group of individuals or entity that, either directly or indirectly enjoys the benefits, gains or profits of ownership. A person, for example, would be deemed to have a beneficial ownership of securities if he or she directly owns the securities, his or her spouse or minor children own the securities, or if such person, by contract, arrangement, understanding or relationship, has sole or shared voting or investment power over the securities held by such person. |
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Client: Any person who has entered an Investment Advisory Contract with CCM. Irrespective of whether or not CCM receives compensation for those services. |
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Control: The power, directly or indirectly, to direct or influence the management or policies of a company whether through ownership of securities, by contract, or otherwise. |
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Each of the firms officers, partners, or directors exercising executive responsibility is presumed to be a control person. |
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A person is presumed to control a corporation if they have the ability to vote 25% or more of a corporations voting securities; or has the power to sell or direct the sale of 25% or more of a class of the corporations voting securities. |
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A person is presumed to control a partnership if the person has the right to receive upon dissolution, or has contributed, 25% or more of the capital of the partnership. |
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A person is presumed to control a limited liability company (LLC) if directly or indirectly has the right to vote 25% or more of a class of the interests in the LLC; has the right to receive upon dissolution, or has contributed, 25% or more of the capital of the LLC, or is elected the manager of the LLC. |
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A person is presumed to control a trust if the person is a trustee or a managing agent of the trust. |
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Employee: This term includes any person who is hired to provide services for CCM on a regular basis in exchange for compensation and does not provide these services as part of an independent business. |
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8. |
Fiduciary: A person legally appointed and authorized to hold assets in trust for another person. The fiduciary manages the assets for the benefit of the other person rather than for his or her own profit. |
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9. |
Federal Securities Laws: Refers to Securities Act of 1933, the Securities Exchange Act of 1934, the Sarbanes-Oxley Act of 2002, the Investment Company Act of 1940, the Investment Advisers Act of 1940, Title V of the Gramm-Leach-Bliley Act, Dodd-Frank Financial Regulatory Reform Bill of 2010, any rules adopted by the Commission under any of these statutes, the Bank Secrecy Act as it applies to funds and investment advisers, and any rules adopted thereunder by the Commission or the Department of the Treasury. |
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Found: This term includes adverse final actions related to a review or investigation of a violation to the Code of Ethics or the Policies & Procedures Manual. |
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Fraud: A deliberate deception practiced in order to secure unfair or unlawful gain or advantage. This may include misrepresentation (providing false information, withholding key information) and offering or acting on inside information. |
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12. |
Initial Public Offering: Refers to an offering of securities registered under the Securities Act of 1933, the issuer of which, immediately before the registration, was not subject to the reporting requirements of sections 13 or 15(d) of the Securities Exchange Act of 1934. |
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13. |
Investment Adviser Representative: Any CCM employee who is also a registered Investment Adviser of the company. |
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Limited Offering: Refers to an offering that is exempt from registration under the Securities Act of 1933 pursuant to section 4(2) or section 4(6) or pursuant to Rule 504, Rule 505, or Rule 506 of the Securities Act of 1933. |
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15. |
Market Timing: means frequent buying or selling shares of the same mutual fund, or buying or selling mutual fund shares across different markets (or exchanges) in order to exploit inefficiencies in mutual fund pricing. |
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16. |
Material Non-Public Information: Is also on occasion referred to as Insider Information and refers to Material information, about certain aspects of a company, that have not yet been made public but that may have (at least) a small impact on the companys share price once released. It is illegal for holders of material insider |
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information to use the information - however it was received - to their advantage in trading stock, or to provide the information to family members or friends so they can use it to benefit from the information. |
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17. |
Related Security: Means any security convertible within sixty (60) days into a Security and any future or option on the Security. |
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18. |
Security: means a security as defined in Section 202(a)(18) of the Advisers Act, as amended, except that it does not include: |
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direct obligations of the U.S. Government; |
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any security issued by a mutual fund (other than a mutual fund advised by CCM or an affiliate) or a unit investment trust that invests exclusively in one or more unaffiliated mutual funds; and |
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any money market fund securities or money market instruments, including bankers acceptances, certificates of deposit, and commercial paper. |
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Supervised Person: Any individual (including employees, part-time employees, independent contractors or third parties) who has access to nonpublic information regarding any clients purchase or sale of securities, or nonpublic information regarding the portfolio holdings of any reportable fund, or who is involved in making securities recommendations to clients, or who has access to such recommendations that are nonpublic information. The spouse, minor child, and any relative resident in the household of a person fitting the above description. |
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20. |
Violation: Failure to follow, abide or conform to any of the steps, rules or standards of conduct set forth in the CCM Code of Ethics (COE). A breach can refer to failure to follow the Code of Ethics either in the letter or in the spirit (intent) of the COE. |
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Exhibit (p)(9)
CODE OF ETHICS
Adopted January 23, 2006
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I. |
INTRODUCTION |
High ethical standards are essential for the success of the Adviser and to maintain the confidence of clients and investors in investment funds managed by the Adviser (clients). The Advisers long-term business interests are best served by adherence to the principle that the interests of clients come first. We have a fiduciary duty to clients to act solely for the benefit of our clients. All personnel of the Adviser, including directors, officers and employees of the Adviser must put the interests of the Advisers clients before their own personal interests and must act honestly and fairly in all respects in dealings with clients. All personnel of the Adviser must also comply with all federal securities laws. In recognition of the Advisers fiduciary duty to its clients and the Advisers desire to maintain its high ethical standards, the Adviser has adopted this Code of Ethics (the Code) containing provisions designed to prevent improper personal trading, identify conflicts of interest and provide a means to resolve any actual or potential conflicts in favor of the Advisers clients.
Adherence to the Code of Ethics and the related restrictions on personal investing is considered a basic condition of employment by the Adviser. If you have any doubt as to the propriety of any activity, you should consult with the Compliance Officer, who is charged with the administration of this Code of Ethics.
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II. |
DEFINITIONS |
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1. |
Access Person means any partner, officer, director, member, or employee of the Adviser, or other person who provides investment advice on behalf of the Adviser and is subject to the supervision and control of the Adviser (i) who has access to nonpublic information regarding any clients purchase or sale of securities, or nonpublic information regarding portfolio holdings of any reportable fund or (ii) who is involved in making securities recommendations to clients (or who has access to such recommendations that are nonpublic). |
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2. |
Automatic Investment Plan means a program in which regular periodic purchases (or withdrawals) are made automatically in (or from) investment accounts in accordance with a predetermined schedule and allocation, including a dividend reinvestment plan. |
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3. |
Beneficial ownership includes ownership by any person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares a direct or indirect financial interest other than the receipt of an advisory fee. |
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4. |
Covered Person means any director/manager, officer, employee or Access Person of the Adviser. |
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5. |
Personal Account means any account in which a Covered Person has any beneficial ownership. |
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6. |
Reportable Security means a security as defined in section 202(a)(18) of the Act (15 U.S.C. 80b-2(a)(18)) and includes any derivative, commodities, options or forward contracts relating thereto, except that it does not include: |
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(i) |
Direct obligations of the Government of the United States; |
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(ii) |
Bankers acceptances, bank certificates of deposit, commercial paper and high quality short-term debt instruments, including repurchase agreements; |
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(iii) |
Shares issued by money market funds; |
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(iv) |
Shares issued by registered open-end funds other than registered funds managed by the Adviser or registered funds whose adviser or principal underwriter controls the Adviser, is controlled by the Adviser, or is under common control with the Adviser (each a Reportable Fund); and |
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(v) |
Shares issued by unit investment trusts that are invested exclusively in one or more registered open-end funds, none of which are reportable funds. |
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7. |
Restricted Security means any security that (1) a client owns or is in the process of buying or selling; or (2) the Adviser is researching, analyzing or considering buying or selling for a client. This includes any security with a market capitalization of $5 billion or less. |
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8. |
Short Sale means the sale of securities that the seller does not own. A Short Sale is against the box to the extent that the seller contemporaneously owns or has the right to obtain securities identical to those sold short, at no added cost. |
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III. |
APPLICABILITY OF CODE OF ETHICS |
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Personal Accounts of Covered Persons . This Code of Ethics applies to all Personal Accounts of all Covered Persons. |
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A Personal Account also includes an account maintained by or for: |
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A Covered Persons spouse (other than a legally separated or divorced spouse of the Covered Person) and minor children; |
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Any immediate family members who live in the Covered Persons household; |
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Any persons to whom the Covered Person provides primary financial support, and either (i) whose financial affairs the Covered Person controls, or (ii) for whom the Covered Person provides discretionary advisory services; and |
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Any partnership, corporation or other entity in which the Covered Person has a 25% or greater beneficial interest, or in which the Covered Person exercises effective control. |
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A comprehensive list of all Covered Persons and Personal Accounts will be maintained by the Advisers Chief Financial Officer who has been delegated the responsibility to monitor personal trading activity of the covered persons by the Chief Compliance Officer. The Chief Compliance Officer will monitor the trading activity of the Chief Financial Officer. |
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IV. |
RESTRICTIONS ON PERSONAL INVESTING ACTIVITIES |
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1. |
General . It is the responsibility of each Covered Person to ensure that a particular securities transaction being considered for his or her Personal Account is not subject to a restriction contained in this Code of Ethics or otherwise prohibited by any applicable laws. Personal securities transactions for Covered Persons may be effected only in accordance with the provisions of this Section. |
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2. |
It is the policy of the Adviser to restrict personal trading of each Covered Person to stocks with a market capitalizations over $5.0 Billion. This policy is intended to avoid activity that would overlap with securities that would potentially be on a restricted list due to potential inclusion in a client portfolio of the Adviser. The Adviser concentrates its investments for its clients in the small capitalization sector of the market. The personal accounts of the Covered Persons will be reviewed quarterly by the Chief Financial Officer. |
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3 |
Initial Public Offerings . A Covered Person may not acquire any direct or indirect beneficial ownership in ANY securities in any initial public offering. |
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4. |
Private Placements and Investment Opportunities of Limited Availability . A Covered Person may not acquire any beneficial ownership in ANY securities in any private placement of securities or investment opportunity of limited availability unless the Compliance Officer has given express prior written approval. The Compliance Officer, in determining whether approval should be given, will take into account, among other factors, whether the investment opportunity should be reserved for clients and whether the opportunity is being offered to the Covered Person by virtue of his or her position with the Adviser. |
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5. |
Service on Boards of Directors; Other Business Activities . A Covered Person shall not serve as a director (or similar position) on the board or a member of a creditors committee of any company unless the Covered Person has received written approval from the Compliance Officer and the Adviser has adopted policies to address such service. Authorization will be based upon a determination that the board service would not be inconsistent with the interest of any client account. At the time a Covered Person submits the initial holdings report in accordance with Section V(b) of this Code of Ethics, the Covered Person will submit to the Compliance Officer a description of any business activities in which the Covered Person has a significant role. This policy does not apply to charitable non-profit organizations. |
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6. |
Short Term or Excessive Trading . The Adviser believes that short term or excessive personal trading by its Covered Persons can raise compliance and conflicts issues. Accordingly, no Covered Person may engage in more than 20 personal securities transactions during any 30 day period. |
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7. |
Management of Non-Adviser Accounts . Covered Persons are prohibited from managing accounts for third parties who are not clients of the Adviser or serving as a trustee for third parties unless the Compliance Officer preclears the arrangement and finds that the arrangement would not harm any client. The Compliance Officer may require the Covered Person to report transactions for such account and may impose such conditions or restrictions as are warranted under the circumstances. |
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8. |
Gifts and Business Entertainment Policy . In order to address conflicts of interest that may arise when a Covered Person accepts or gives a gift, favor, special accommodation, or other items of value, the Adviser places restrictions on gifts and certain types of business entertainment. Set forth below is the Advisers policy relating to gifts and business entertainment: |
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Gifts |
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General - No Covered Person may give or receive any gift, service, or other item of more than de minimis value, which for the purpose of this Code of Ethics is $100, to or from any person or entity that does business with or potentially could conduct business with or on behalf of the Adviser without the prior written approval of the Compliance Officer. |
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Solicited Gifts - No Covered Person may use his or her position with the Adviser to obtain anything of value from a client, supplier, person to whom the Covered Person refers business, or any other entity with which the Adviser does business. |
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Cash Gifts - No Covered Person may give or accept cash gifts or cash equivalents to or from an investor, prospective investor, or any entity that does business with or potentially could conduct business with or on behalf of the Adviser. |
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Business Entertainment |
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General Covered Persons may provide or accept a business entertainment event, such as dinner or a sporting event, of reasonable value. |
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Extravagant Entertainment - No Covered Person may provide or accept extravagant or excessive entertainment to or from an investor, prospective investor, or any person or entity that does or potentially could do business with or on behalf of the Adviser. |
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Reporting/Recordkeeping |
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Gifts - Each Covered Person must report any gifts in excess of de minimis value received in connection with the Covered Persons employment to the Compliance Officer. The Compliance Officer may require that any such gift be returned to the provider or that an expense be repaid by the Covered Person. |
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Business Entertainment Each Covered Person must report any event likely to be viewed as so frequent or of such high value as to raise a question or impropriety. Any such event must be approved by the Compliance Officer. |
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Recordkeeping - The Compliance Officer will maintain records of any gifts and/or business entertainment events so reported. |
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VI. |
REPORTING |
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1. |
Duplicate Copies of Brokers Confirmations and Account Statements to Adviser . All Covered Persons must direct their brokers or custodians or any persons managing the Covered Persons account in which any Reportable Securities are held to supply the Chief Financial Officer with the Covered Persons quarterly brokerage statements. |
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2. |
New Accounts . Each Covered Person must notify the Chief Financial Officer promptly if the Covered Person opens any new account in which any securities are held with a broker or custodian or moves such an existing account to a different broker or custodian. |
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3. |
Disclosure of Securities Holdings . All Covered Persons will, within 10 days of commencement of employment with the Adviser, submit an initial statement to the Chief Financial Officer listing all of the securities in which the Covered Person has any beneficial ownership, (including title and exchange ticker symbol or CUSIP number, type of security, number of shares and principal amount (if applicable) of each reportable security in which the Covered Person has any beneficial ownership) the names of any brokerage firms or banks where the Covered Person has an account in which ANY securities are held. The statement must contain information that is current as of a date no more than 90 days prior to the date the person becomes a Covered Person of the Adviser. |
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4. |
Covered Persons must report immediately any suspected violations to the Compliance Officer. |
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VII. |
RECORDKEEPING |
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The Compliance Officer will keep in an easily accessible place for at least five (5) years copies of this Code of Ethics, all Brokers statements and reports of Covered Persons, copies of all preclearance forms, records of violations and actions taken as a result of violations, acknowledgments and other memoranda relating to the administration of this Code of Ethics |
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The Compliance Officer will maintain a list of all Covered Persons (which includes all Access Persons) of the Adviser currently and for the last five (5) years. Such list is attached as Appendix A1. |
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All Brokers Confirmations and periodic statements of Covered Persons may be kept electronically in a computer database. |
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VIII. |
OVERSIGHT OF CODE OF ETHICS |
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1. |
Acknowledgment . The Compliance Officer will annually distribute a copy of the Code of Ethics to all Covered Persons. The Compliance Officer will also distribute promptly all amendments to the Code of Ethics. All Covered Persons are required annually to sign and acknowledge their receipt of this Code of Ethics by signing the form of acknowledgment. |
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2. |
Review of Transactions . Each Covered Persons statements for his/her Personal Account will be reviewed quarterly for compliance with the $5 billion market capitalization restriction. Any Covered Person transactions that are believed to be a violation of this Code of Ethics will be reported promptly to the management of the Adviser. The Chief Financial Officer of the Adviser will review the Compliance Officers statements. The Compliance Officer will review the Chief Financial Officers statements. |
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3. |
Sanctions . Advisers management, with advice of legal counsel, at their discretion, will consider reports made to them and upon determining that a violation of this Code of Ethics has occurred, may impose such sanctions or remedial action as they deem appropriate or to the extent required by law. These sanctions may include, among other things, disgorgement of profits, suspension or termination of employment and/or criminal or civil penalties. |
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4. |
Authority to Exempt Transactions . The Compliance Officer has the authority to exempt any Covered Person or any personal securities transaction of a Covered Person from any or all of the provisions of this Code of Ethics if the Compliance Officer determines that such exemption would not be against any interests of a client and in accordance with applicable law. The Compliance Officer will prepare and file a written memorandum of any exemption granted, describing the circumstances and reasons for the exemption. |
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5. |
ADV Disclosure. The Compliance Officer will ensure that the Advisers Form ADV (1) describes the Code of Ethics in Part 2 and (2) offers to provide a copy of the Code of Ethics to any client or prospective client upon request. |
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IX. |
CONFIDENTIALITY |
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All reports of personal securities transactions and any other information filed pursuant to this Code of Ethics will be treated as confidential to the extent permitted by law. |
Exhibit (p)(10)
TIBURON CAPITAL MANAGEMENT LLC
CODE OF ETHICS
A. BACKGROUND, PURPOSE AND DUTIES
1. Background
This Code of Ethics (the Code) has been
adopted by Tiburon Capital Management (the Adviser),
on behalf of its investing clients, inclusive of any the offshore fund and any
separately managed accounts (the Accounts) pursuant to Rule 17j-1 under the
Investment Company Act of 1940, as amended (the 1940 Act), and Rules
204-2(a)(12), 204-2(a)(13) and 204A-1 under the Investment Advisers Act of
1940, as amended (the Advisers Act) (collectively, the Rules).
An Index of Defined Terms can be found at the end of this Code (section H-10).
2. Purpose And Scope Of This Code
This Code is based upon the precept that all officers, directors and employees of the Adviser, owe a fiduciary duty to the Accounts to:
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place the interests of the Accounts first at all times; |
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conduct their personal securities transactions in a manner so as to be consistent with this Code and to avoid any actual or potential conflict of interest or any abuse of such persons position of trust and responsibility; |
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refrain from taking inappropriate advantage of the relationship with the Accounts; |
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maintain the confidentiality of security holdings and financial circumstances of the Accounts; and |
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maintain independence in the investment decision making process. |
This Code sets forth the minimum standard of conduct believed appropriate for employees, officers and directors of the Adviser. Technical compliance with the provisions of this Code will not insulate your actions from scrutiny for evidence of abuse of the fiduciary relationship.
If you are confronted with a potential or apparent conflict of interest, you should consult the Tiburon Compliance Department for advice concerning the propriety of your actions, and obtain prior approval, if required. All discussions will be treated as confidential.
3. Duties Under This Code
As fiduciaries, the Adviser and their employees have an affirmative duty of care, loyalty, honesty and good faith to act in the best interests of the Accounts.
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This Code has five basic requirements: |
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that you comply with all applicable federal and state securities laws; |
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that you avoid all conflicts of interest and fully disclose all material facts concerning any conflict that may arise with respect to any Account; |
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that your conduct conforms to the ethical standards applicable to you set forth in the Code; |
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that your personal securities transactions comply with the Code; and |
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that you obtain prior approval for securities transactions and file reports to the extent required under this Code. |
4. General Prohibitions
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(A) |
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Directors, officers and employees of the Adviser may not: |
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In connection with the purchase or sale, directly or indirectly, of a security held or to be acquired by an Account: |
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employ any device, scheme or artifice to defraud an Account in any manner; |
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make any untrue statement of a material fact to any Account or omit to state to any Account a material fact necessary in order to make the statement made to the Account, in light of the circumstances under which they were made, not misleading; |
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engage in any act, practice or course of business that operates or would operate as a fraud or deceit upon an Account; |
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engage in any manipulative practice with respect to an Account; |
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materially mislead an Account; |
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knowingly start or spread rumors in order the manipulate security prices; or |
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engage in any manipulative practice with respect to securities, including price manipulation; |
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Favor the interests of one Account over another Account that would constitute a breach of fiduciary duty; |
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Use knowledge about pending or currently considered securities transactions in an Account to profit personally, directly or indirectly, as a result of such transactions, including by purchasing or selling such securities; |
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Recommend, implement or consider any securities transaction for an Account without disclosing any material beneficial ownership, business or personal relationship or other material interest in the issuer of such securities or its affiliates to the Trader/Director of Research and the Chief Compliance Officer. Trader/ Director of Research and Chief Compliance Officer as used in this Code shall include their respective designees; |
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Trade, either personally or on behalf of others, while in possession of material, non-public information or communicate material non-public information to others in violation of securities laws; or |
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Fail to comply, or cause another person to fail to comply, with any provisions of the 1940 Act, the Advisers Act, the Securities Act of 1933, as amended (the 1933 Act), the Securities Exchange Act of 1934, the Sarbanes-Oxley Act of 2002, Title V of the Gramm-Leach-Bliley Act, any rules adopted by the Securities and Exchange Commission (the SEC) under any of these statutes, the Bank Secrecy Act as it applies to the Adviser, and any rules adopted thereunder by the SEC or the Department of the Treasury. |
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(B) |
Tiburon personnel may not, in connection with the purchase or sale, directly or indirectly, of a Covered Security (as defined in Section B) held or to be acquired by the relevant Account: |
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employ any device, scheme or artifice to defraud the Account(s) in any manner; |
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make any untrue statement of a material fact to the Account(s) or omit to state a |
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material fact necessary in order to make the statement made to the Account(s), in light of the circumstances under which it was made, not misleading; |
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engage in any act, practice or course of business that operates or would operate as a fraud or deceit upon the Tiburon Fund; or |
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engage in any manipulative practice with respect to the Account(s). |
5. Persons To Whom This Code Applies
This Code applies to ALL employees, officers, and Trustees/Directors (as applicable) of the Adviser. All employees, officers and Trustees/Directors (as applicable) of the Adviser are considered to be Access Persons for purposes of this Code and subject to its requirements to the extent described herein. Any exceptions to this rule can be made only with the consent of the General Counsel and the Chief Compliance Officer.
Only certain provisions of this Code apply to Board Members/Partners of the Adviser with specific distinctions made between non-interested and interested Board Members. See section A-6 Special Rules for Tiburon Board Members.
6. Special Rules for Tiburon Board Members
To the extent that there are Non-Interested Board Members 1 of Tiburon, they are not subject to the pre-clearance, personal trade monitoring, or reporting requirements of this Code or any other requirements of this Code other than the duties and prohibitions contained in this Code which are specifically applicable to them. However, if a Non-Interested Board Member knew, or in the ordinary course of fulfilling his or her official duties as a Board Member should have known, that during the 15-day period immediately before or after the Board Members purchase or sale of a Covered Security, the Account(s) purchased or sold the Covered Security, or the Account(s) or the Adviser (or any sub-adviser to the Account(s)) considered purchasing or selling the Covered Security for the Account(s) the Non-Interested Board Member will be required to submit a quarterly transaction report for such period as described in section B-4. Notwithstanding any other provision of this Code, the description of the accounts to which this Code applies and the definition of beneficial ownership contained in Section B-1, are applicable to a Non-Interested Board Member of the Account(s) to the extent such terms would apply as a result of the reporting obligation described above.
Interested Board Members who are employees of the Adviser will be deemed to be subject to the entire Code.
Interested Board Members who are not employees of the Adviser are subject to the duties and prohibitions discussed in section A of the Code and as noted elsewhere in this Code. Additionally, Interested Board Members who are not employees of the Adviser are required to provide to the Chief Compliance Officer quarterly holdings reports and copies of all investment statements.
Board Members are reminded that the penalties for insider trading include civil injunctions, permanent bars from employment in the securities industry, civil penalties of up to three times the profits made or losses avoided, criminal fines and jail sentences.
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1 Interested person is defined in Section 2(a)(19) of the 1940 Act. A Non-Interested Board Member of a Fund is any Board Member who is not an interested person of the Fund. |
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B. PERSONAL TRADE MONITORING
1. Accounts To Which This Code Applies
The provisions of this Code apply to all securities and accounts that are beneficially owned by an Access Person. This means that you will have to obtain pre-clearance of transactions in accounts held by members of your household, as well as accounts you hold personally. You will also have to report the holdings of all those accounts.
You should consider yourself to have beneficial ownership of any securities:
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in which you have a direct or indirect pecuniary interest; |
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held in any account over which you have sole or shared voting power or investment discretion; |
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in which you have the right to obtain a direct or indirect pecuniary interest or sole or shared voting or investment power within 60 days; or |
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held in any account in which you have the authority to enter purchase or sale orders for securities. |
You should consider yourself to have beneficial ownership of accounts held in your name and in the names of your spouse or domestic partner, your minor children, or any relative 1 who lives in your home or under other circumstances indicating a sharing of financial interest. 2
This Code applies to all accounts in which an Access Person has beneficial ownership, including without limitation:
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brokerage accounts, |
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advisory accounts, |
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trust accounts, |
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Individual Retirement Accounts (IRAs), Rollover IRAs or Coverdell IRAs, |
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other retirement accounts, |
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Tiburon 401 (k) Plan accounts, |
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Uniform Gifts to Minors/Uniform Transfers to Minors Act accounts and |
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Section 529 Plan accounts. |
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1 Relatives include spouse, child, parent, sibling or any such in-laws. |
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2 Reports under the Code may contain a statement that the report will not be construed as an admission that the person making the report has any direct or indirect beneficial ownership in the security to which the report relates. |
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2. Restrictions On Personal Securities Transactions
General Prohibition . No Access Person may buy or sell any security for his or her account if he or she knows at the time of the transaction that the security is being purchased or sold, or is being considered for purchase or sale, by an Account. A security is considered for purchase or sale when a recommendation to purchase or sell a security is being made or has been made and communicated and is recommended when the person making the recommendation seriously considers making the recommendation.
Initial Public Offerings and Private Placements . An Access Person may purchase securities in an initial public offering (IPO) or in a private placement (an offering exempt from registration under the 1933 Act, pursuant to Section 4(2) or Section 4(6), or pursuant to Regulation D under the 1933 Act), provided that he or she makes the required representations on the pre-clearance form and obtains approval of the purchase, and the transaction meets FINRA Rule 2790 Restrictions on the Purchase and Sale of Initial Equity Public Offerings. Rule 2790 prohibits any individual who is associated with a broker dealer (all Tiburon access persons are affiliated with the Distributor) from investing in any new issues (IPOs). The definition of new issues in the rule specifically excludes private placements, exempt securities, restricted securities, securities of commodity pools, rights offerings, exchange offers, offerings in a merger or acquisition, asset-backed securities, convertible securities, preferred securities, offerings of an investment company and offerings of a business development company.
In deciding whether to approve the purchase, the Trader, the Head of Portfolio Management and the Chief Compliance Officer will take into account, among other factors, whether the investment opportunity represented by the IPO or the private placement should be reserved for Accounts, and whether the opportunity is being offered to the Access Person by virtue of that persons position with a Tiburon Company. Any approval granted will record the reasons for approval of the purchase and must be maintained as part of the Tiburon Companies books and records.
Any Access Person who has been granted approval to purchase securities in an IPO or a private placement must disclose that investment to the other investment personnel participating in the decision if at any time he or she participates in a decision to purchase securities of that issuer for an Account. In that event, the decision to purchase securities of that issuer must be reviewed by investment personnel with no interest in the issuer.
Blackout Period . Access Persons may not buy or sell any security on the day that a Tiburon Fund or Account trades, or contemplates trading, in that security. Any profits realized on a trade within the blackout period will be disgorged to the Tiburon Fund or Account or to charity.
Short-Term Trading . Unless an exception is granted by the Chief Compliance Officer, no Access Person may engage in short-term trading of any security, except non-Tiburon Funds and all money market funds. Short-term trading is defined as the purchase and sale, or sale and purchase, of a security within a 60-day period, including through selling and/or closing a position with futures or options contracts. Any profits realized on trades within the 60-day period will be disgorged to the Account or to charity.
As and when there exist shares of any Tiburon Funds, they are specifically included as securities that cannot be purchased and sold, or sold and purchased, within a 60-day period. While non-Tiburon Funds are excluded from the 60-day short-term trading prohibition, Access Persons are
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urged to abide by the short-term trading policies and limitations on exchanges of any non-Tiburon Fund in which they invest.
The Chief Compliance Officer may grant exceptions on a case-by-case basis where there is no possibility of abuse from the short-term trading.
3. Pre-Clearance Of Securities Transactions
General Rule . All Access Persons must obtain prior approval from Compliance for every transaction in securities, except as noted below. An Access Person may purchase securities in an IPO or private placement, provided that he or she obtains pre-clearance of the purchase and makes certain representations. See Initial Public Offerings and Private Placements.
Securities for Which Pre-Clearance Is Not Required.
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Mutual Funds. Pre-clearance is required for any Exchange Traded Fund (ETF) or Closed-End Fund. |
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Direct obligations of the U.S. government (U.S. Treasury Obligations but not indirect obligations of the U.S. Government, such as GNMA, FNMA, FHLMC, etc.) |
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Bankers acceptances, bank certificates of deposit, commercial paper and high quality (i.e., top two ratings categories) short-term debt instruments, including repurchase agreements |
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Unit investment trusts that invest exclusively in one or more Mutual Funds. |
Transactions for Which Pre-Clearance Is Not Required .
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Transactions in accounts over which the supervised person has no direct or indirect influence or control (see Discretionary Accounts) |
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Transactions pursuant to an automatic investment plan, which is defined as a program in which regular periodic purchases (or withdrawals) are made automatically in (or from) investment accounts in accordance with a predetermined schedule and allocation, and includes a dividend reinvestment plan. |
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Purchases effected upon exercise of rights issued by an issuer pro rata to all holders of a class of its securities, to the extent such rights were acquired from such issuers, and sales of such rights so acquired |
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Acquisition of securities through stock dividends, dividend reinvestments, stock splits, reverse stock splits, mergers, consolidations, spin-offs, and similar corporate reorganizations or distributions generally applicable to all holders of the same class of securities |
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Complete the applicable pre-clearance form on-line and submit to Compliance by 11a.m. on the date for which pre-clearance is requested. |
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Compliance will check with Portfolio Management, Trading, restricted securities list and |
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make any other inquiries deemed necessary. |
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Notice of approval of pre-clearance or denial of pre-clearance will be given by email by 1:30 p.m. |
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If notice is not received from Compliance it should be assumed that pre-clearance has been denied. |
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Print the pre-clearance form for IPOs or private placements from the Tiburon intranet site. |
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Manually complete the form and sign it. |
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Obtain required signatures on the form Trading, Head of Portfolio Management and Chief Compliance Officer. |
Pre-clearance is effective ONLY for the day it is given. If the trade is not executed on the day approved, the entire pre-clearance process must be repeated on any subsequent day.
4. Reporting Requirements
a. Quarterly Reporting
General Rule . All Access Persons must report all transactions in securities, with the exceptions noted below, to the Chief Compliance Officer no later than 10 days after the end of each calendar quarter. The report must provide the information required by the Rules for each transaction during that quarter.
An Access Person will not be required to submit a quarterly transaction report if the report would duplicate information contained in broker trade confirmations and account statements received by the Chief Compliance Officer within 30 days after the end of each quarter and those confirmations and account statements contain all the information required by the Rules.
Mutual Funds and Other Investment Companies . All Access Persons must report all transactions involving:
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all Tiburon Funds (as and when such exist), |
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all closed-end funds, |
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all exchange-traded funds and |
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all unit investment trusts, except unit investment trusts that are invested exclusively in one or more Mutual Funds, none of which is a Tiburon Fund. |
b. Exceptions from Quarterly Reporting
Exempt Securities. The following types of securities are excepted from the quarterly reporting requirements:
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Direct obligations of the U.S. Government (specifically US Treasury bills, bonds and notes) |
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Bankers acceptances, bank certificates of deposit, commercial paper and high quality short-term deb |
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Funds See note below |
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Money market funds |
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Unit investment trusts that are invested exclusively in one or more Mutual Funds, none of which are managed by the Adviser. |
Note: Portfolio Managers, Research Personnel and the Senior Officers of the Tiburon Funds, the Adviser and Distributor are required to report each quarter transactions in any non-Tiburon Fund, except money market funds. The Chief Compliance Officer will review the transactions of the foregoing individuals to detect evidence of market timing.
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Transactions in accounts over which the Access Person has no direct or indirect influence or control (see Discretionary Accounts) |
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Transactions effected pursuant to an automatic investment plan |
c. Reporting at the Commencement of Employment and Annually Thereafter
Holdings Reports . All Access Persons must submit to the Chief Compliance Officer, no later than 10 days after the person becomes an Access Person and at least once each 12-month period thereafter, a holdings report containing the information required by the Rules for each security or account in which the Access Person has any direct or indirect beneficial ownership.
The information in the holdings report must be current as of a date no more than 45 days prior to the date the person becomes an Access Person, for an initial holdings report, and as of a date no more than 45 days prior to the date the report was submitted, for an annual report. The Tiburon Companies require the annual holdings report to be submitted each year within 45 days of December 31 st of the previous year.
Representations in Annual Holdings Report . Each Access Person must represent in the annual holdings report that he or she has made all the reports required by this Code and has not engaged in any conduct prohibited by the Code. If the Access Person cannot make these representations, he or she must report any violations.
Exception from Annual Holdings Report Requirement . Accounts over which the Access Person has no direct or indirect influence or control do not have to be reported on the annual holdings report.
An Access Person will not be required to submit an annual holdings report if the report would duplicate information contained in broker trade confirmations and account statements received by the Chief Compliance Officer within 45 days after the end of the year and those confirmations and account statements contain all the information required by the Rules.
5. Opening New Securities Accounts
Required Permission from the Chief Compliance Officer . All Access Persons must obtain the permission of the Chief Compliance Officer prior to opening any new accounts in which securities may be traded. The Access Person must inform the broker-dealer or bank maintaining the account that they are to send duplicate copies of all account statements and trade
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confirmations to the Compliance Department.
The Chief Compliance Officer retains the right to restrict Access Persons from using certain broker-dealers or to require Access Persons to use only certain broker-dealers.
Tiburon Funds . Should any Tiburon Fund trade publicly, all Access Persons must report accounts in any Tiburon Fund to the Compliance Department. Duplicate copies of account statements and trade confirmations for all employee accounts in the Tiburon Funds must be sent to the Compliance Department.
Exception . Opening of accounts in which only shares of non-Tiburon Funds may be purchased and sold do not require advance permission from the Chief Compliance Officer.
6. Discretionary Accounts
Access Persons may maintain accounts over which a person other than the Access Person has full investment discretion and over which the Access Person has no direct or indirect influence or control (discretionary accounts). Transactions in discretionary accounts are exempt from the pre-clearance and reporting requirements of this Code, provided that (a) the Access Person certifies to the Chief Compliance Officer that the Access Person has no direct or indirect influence or control over the account and (b) the Chief Compliance Officer has obtained confirmation of that certification from the broker or other person who is managing the account. This certification must be provided prior to approval of opening the discretionary account. If the discretionary account was opened prior to the Access Persons employment with a Tiburon Company, the certification must be provided at the time of commencement of employment.
C. CONFLICT OF INTEREST POLICY
Each employee is required to report, to the best of his or her knowledge, any conflict of interest that may exist. Conflict of interest refers to situations in which financial or other personal considerations may adversely affect, or have the appearance of adversely affecting, an employees judgment in exercising any work duty or responsibility.
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A conflict of interest exists even if no unethical or improper act results from it. |
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A conflict of interest can create an appearance of impropriety that can undermine confidence. |
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A conflict of interest may arise if you, your spouse or your dependent children have a financial interest in any entity providing goods or services to a Tiburon Company. |
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A conflict of interest may arise if you, your spouse or your dependent children have any relatives that work for or own any entity providing goods or services to a Tiburon Company. |
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The best way to defuse any issues regarding a conflict of interest is to disclose it to all parties involved. |
If at any time an employee becomes aware of a potential conflict of interest, he or she must immediately report it to his or her supervisor and to the Chief Compliance Officer. Each
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employee will be required to prepare a conflict of interest survey (see exhibit C) at the commencement of employment and annually thereafter. Additionally, the form must be updated at any time that an employee becomes aware of any potential conflict of interest, such as when a new vendor is being considered by a Tiburon Company. A list of significant clients, vendors, service providers and brokers is available from Compliance for review.
Additionally, all employees are required to disclose all Boards and Credit Committees of which they are a member.
D. GIFTS & ENTERTAINMENT POLICY
Giving or receiving gifts and gratuities in a business setting may give rise to an appearance of impropriety or raise a potential conflict of interest. As a general rule, while an employee may accept a nominal gift or occasional, normal and customary meals and/or business entertainment, an employee should not accept an inappropriate or significant gift from or participate in inappropriate or excessive entertainment with a third party having business dealings with a Tiburon Company, such as a customer, broker, or vendor.
While inappropriate or significant may be difficult to define, an employee should not give or accept gifts and should refrain from participating in entertainment that is so excessive, frequent or extensive as to raise any question of impropriety. Ultimately, gifts or entertainment must have a clear business benefit to a Tiburon Company, and are not acceptable if an independent third party might think that the employee would be influenced in conducting business. Any questions should be directed to your supervisor or the Chief Compliance Officer, and in the case of FINRA-registered representatives conducting business on behalf of the Distributor, to your registered supervisory principal.
1. Employees Providing Entertainment - Employees may attend business meals, sporting events and other entertainment events, at a Tiburon Companys expense, with personnel from companies with which a Tiburon Company currently or potentially will do business, provided that the expense is reasonable, not lavish or extravagant in nature. If the total cost of the meal, event, etc. is greater than $350 per person, the employee must report his/her attendance at the event and the name and company of the individuals involved to the Chief Compliance Officer on the Entertainment Provided Report at Exhibit D within 7 days of the event. The form must be completed on the Tiburon intranet site and submitted electronically to Compliance. An entertainment provided log is maintained by Compliance.
2. Employees Receiving Entertainment - Employees may attend business meals, sporting events and other entertainment events at the expense of a person from companies with which a Tiburon Company currently or potentially will do business, provided that the expense is reasonable, not lavish or extravagant in nature. If the total estimated cost of the meal, event, etc. is greater than $350 per person, the employee must report his/her attendance at the event to the Chief Compliance Officer on the Entertainment Received Report at Exhibit E within 7 days of the event. The form must be completed on the Tiburon intranet site and submitted electronically to Compliance. An entertainment received log is maintained by Compliance.
If an event is highly publicized such that tickets for the event may be selling in excess of their face value, the employee must consider the mark-up for the reporting requirements.
3. Employees Giving Gifts Each Tiburon Company and its employees are prohibited from
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giving gifts that may be deemed excessive, and each employee must obtain approval from his/her department head prior to giving any gifts to any Account, prospective Account or any individual or entity that a Tiburon Company is currently doing business with or seeking to do business with in the future. Gifts in excess of $100 will be deemed excessive and cannot be given. Employees must report the giving of all non-logo-ed gifts to business relationships to the Chief Compliance Officer on the Gift Given Report at Exhibit F within 7 days of the sending of the gift. The form must be completed on the Tiburon intranet site and submitted electronically to Compliance. A gifts received log is maintained by Compliance. Employees must report the giving of logo-ed items to Marketing (Derek Clark).
4. Employees Receiving Gifts Employees are prohibited from receiving gifts that may be deemed excessive. All gifts received in excess of $100 will be deemed excessive and must be returned to the sender. Employees must report the receipt of all gifts (other than de minimus amounts such as logo-ed pens) from business relationships to the Chief Compliance Officer on the Gift Received Report at Exhibit G within 7 days of the receipt of the gift. The form must be completed on the Tiburon intranet site and submitted electronically to Compliance. A gifts received log is maintained by Compliance.
5. Examples and Further Explanations
A. Gifts versus Entertainment - a gift is something received from the giver for use by the receiver in any way deemed appropriate to the receiver. Entertainment is provided in the company of the person paying for it. For example, receiving tickets to a baseball game from a giver is a gift while going to a baseball game with the person paying for the tickets is entertainment. Another example, receiving a bottle of wine from a giver is a gift while going out for a few glasses of wine with the person paying for the wine is entertainment.
B. Gifts - the following are some guidelines or examples of acceptable, nominal gifts:
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An acceptable gift should be of nominal value, but may not exceed a face value of $100 per third party, per year. |
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Purely personal gifts are permissible. Personal gifts are gifts that serve a personal (not business) purpose, are paid for by the giver (not the givers employer) and are between close friends or family members (e.g., gifts that are related to commonly recognized personal events, such as births, promotion, wedding or retirement). |
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Discounts or rebates on merchandise or services that do not exceed those available to arms length clients. The final total cost or value of goods or services is subject to a $100 limit per third party, per year. |
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Advertising or promotional items with a value of not more than $100 per third party, per year. |
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C. B USINESS M EALS AND E NTERTAINMENT - THE FOLLOWING ARE GUIDELINES REGARDING ACCEPTABLE BUSINESS MEALS AND ENTERTAINMENT : |
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Normal, customary and occasional business meals or entertainment where the person providing the entertainment is present. A good test is whether a Tiburon Company would consider such an expense reasonable, if not paid for by a third party. Also, a good rule of thumb is whether an employee can eat, drink or enjoy the entertainment as part of a single meeting. |
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Business meals and entertainment should be consistent with FINRA guidance and advice. For example, guidelines suggest that the total value of the event should not exceed $350 per person, per event, subject to an annual maximum amount of $1,000 per third party. The cost of local transportation does not count towards the $350 per event/$1,000 annual limit; provided that the mode of transportation is reasonable. |
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Entertainment, such as tickets to sporting events, golf fees, or ski lift tickets, will be evaluated based on the published ticket price or estimated value. Again, in all cases, both the giver and the recipient must be present in order for the event to be deemed entertainment. |
Except as described above, employees and their immediate family members (living in the same household, including domestic partners) are not permitted to accept fees, gifts, entertainment, payments or other favors in connection with any business of a Tiburon Company without the prior consent of the employees manager and the Chief Compliance Officer. Any fees, gifts or entertainment received by such immediate family members will be treated as if received by the employee.
If you are unclear on the requirements of this policy, please come discuss it with Compliance or Legal.
E. FOREIGN CORRUPT PRACTICES ACT
All employees must comply with the Foreign Corrupt Practices Act of 1977 (FCPA). The FCPA makes it a criminal offense to pay, offer, or give anything of value to a foreign official, a foreign political party, or candidate for public office, for purposes of influencing the decisions of those officials, parties or candidates. Having someone else take such actions on your behalf is also a criminal offense under the FCPA . A foreign official is broadly defined and can include employees of an instrumentality of a government which can include any employee of a government owned company . Anything of value is also broadly defined and can include cash, gifts such as jewelry or perfume, or payment of expenses such as airfare, hotels or meals.
Additionally, the FCPA sets forth recordkeeping and accounting requirements that require a company to maintain records that accurately and fairly reflect all its commercial transactions. If a questionable payment is made, how a company recorded that payment in its books and records, and why the companys internal controls did not stop the payment, will be subject to scrutiny. Individuals responsible for recording such payments can be charged under the FCPA.
The FCPA is applicable to all U.S. persons and entities in all countries, regardless of any local customs or practices that might exist which may deem such payments, offers or gifts as acceptable or necessary in order to do business. A person in the U.S. can be charged under the FCPA for an action taken by a third party in a foreign country through approval of such act or even misrepresenting the payment in the books and records of the company. Such person may never have been to the country where the act took place. Particular caution should be taken when dealing with agents, as the actions of an agent on behalf of a company could easily be interpreted as approved actions of the company or manager of the company, putting the company and/or the manager in violation of the FCPA.
Criminal penalties for violating the FCPA include:
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Company may be fined up to $2,000,000 |
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Officer, director, shareholder, employee or other agent of a company may be fined up to $250,000 and imprisoned up to 5 years. |
Given the complexity of the FCPA and the extent of the potential penalties, all employees are required to consult with the General Counsel prior to making any payment, offer or gift to a foreign official, party, candidate or anyone that might fall into any of the categories.
Additionally, whenever making any payment, offer or gift to a foreign official, party, candidate or anyone that might fall into any of the categories, Compliance must be informed. Compliance will maintain a log of all such instances for review by Legal and senior management.
F. CERTIFICATION OF COMPLIANCE WITH THE CODE
All employees must sign an acknowledgment that they have received, read and understand all provisions of this Code and agreed to be subject to this Code, and any amendments, within 10 days of the commencement of employment and on an annual basis thereafter. The annual certification is due 15 days following year end. Any violations of the Code during the period covered by the certification must be described in the certification.
Each employee must notify the Chief Compliance Officer promptly whenever he or she becomes aware of a violation of the Code.
H. OTHER PROVISIONS
1. Reporting to the Tiburon Funds Board
At least annually, as part of the review of the Tiburon Funds compliance program required by Rule 38a-1 under the 1940 Act, the Tiburon Funds, the Adviser and the Distributor shall provide to the Tiburon Funds Board, and the Tiburon Funds Board shall consider, a written report on the administration of this Code. The report will:
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Describe any issues arising under the Code or procedures since the last report including, among other things, information about any material violations of the Code or procedures and sanctions imposed in response to the material violations; and |
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Certify that the Tiburon Funds, the Adviser and the Distributor have adopted procedures reasonably necessary to prevent violations of the Code by Access Persons. |
2. Confidentiality of Account Information
Except as provided in the Tiburon Procedures on Disclosure of Portfolio Information and where disclosure is required by applicable law, all information about Accounts (including accounts previously managed by Tiburon that have been closed) must be kept in strict confidence, including the identity of the owner of the Account (unless the owner of the Account consents to this disclosure), the financial circumstances of the owner of the Account, the security holdings of the Account and advice furnished to the Account by the Adviser.
Access Persons are referred to the Tiburon Procedures on Disclosure of Portfolio Information
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and to the Tiburon policies under Regulation S-P for further information on disclosure of Account information.
3. Service as a Board Member or as a Member of a Creditors Committee
An Access Person may serve as a member of the board or as a member of a creditors committee of a company that has issued securities for which there is a public market if approval is obtained in advance from the Access Persons supervisor and the Chief Compliance Officer. Requests for approval to serve on the board or on a creditors committee of such a company should set out in detail the amount of time expected to be involved in such service and the compensation to be received. If the proposed board membership or service on a creditors committee presents a conflict of interest or an apparent conflict of interest with an Account or a Tiburon Company, such approval will not be granted.
An Access Person who serves as a board member or as a member of a creditors committee of a company that has issued securities for which there is a public market and who participates in the management of Accounts will be isolated from those persons making investment decisions regarding that company.
4. Violations And Sanctions
All Access Persons are obligated to report apparent or suspected violations of this Code to the Chief Compliance Officer. All reports of violations will be treated in confidence to the extent permitted by law. Reports of violations will be investigated promptly and appropriately.
a. Access Persons (except Board Members)
The following types of activities are examples of violations of this Code with respect to Access Persons (except for a Board Member):
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failure to comply with any of the securities laws, rules and regulations to which the Tiburon Funds or the Tiburon Companies are subject; |
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fraud or illegal acts involving any aspect of the Tiburon Companies businesses; |
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material misstatements in regulatory filings, internal books and records, or Account records or reports; |
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activity that is harmful to Accounts, including Tiburon Fund shareholders; |
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taking investment opportunities that belong to the Accounts, and |
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deviations from required controls and procedures that safeguard the Accounts and the Tiburon Companies. |
Retaliation against an Access Person who has reported a violation is prohibited and constitutes a further violation of this Code.
Any violation of the Code may result in disciplinary action. An Access Person accused of a violation of the Code will be given the opportunity to explain the situation. If the Chief Compliance Officer determines that an Access Person (except for a Board Member) has or may have violated this Code, he or she shall submit his or her determination and a recommendation of appropriate sanctions in writing, along with any additional explanatory material, to the Board of the applicable Tiburon Company with respect to which the violation occurred and to the Board of the Tiburon Funds.
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Sanctions may include any or all of the following:
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Letter of education, |
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Formal warning by senior management, |
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Fines or disgorgement of any profit or benefit derived from the violation, |
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Suspension from employment, |
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Dismissal from employment, |
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Civil referral to the SEC or other civil regulatory authorities, or |
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Criminal referral. |
Access Persons are reminded that the penalties for insider trading include civil injunctions, permanent bars from employment in the securities industry, civil penalties of up to three times the profits made or losses avoided, criminal fines and jail sentences.
b. Board Members
In the event a Board Member has or may have violated this Code, such violation shall be presented to the Board of the relevant Tiburon Fund with respect to which the violation occurred. A majority of the Non-Interested Board Members of such Tiburon Fund shall determine the appropriate sanction for such Board Member.
5. Access To Reports Under This Code
Every reasonable effort will be made to keep confidential all reports of securities transactions and any other information you file with the Chief Compliance Officer or you furnish to any person under this Code. The reports and information are subject to review as provided in this Code and by representatives of the SEC or other regulatory authorities. Reports and other information may be made available to any federal or state regulatory or law enforcement agency or to any self regulatory organization, including the FINRA, or to any other party as, in the sole discretion of the Board of the Tiburon Company or the Tiburon Fund, is deemed consistent with the Tiburon Companys or Tiburon Funds duty to that other party.
6. Review Of Transactions And Reports
The Compliance Department shall periodically review personal securities transactions and holdings reports. The Chief Compliance Officer shall arrange for the independent review of his/her transactions and reports on a periodic basis.
7. Record Retention
The following records shall be maintained in the manner and for the periods set forth in the Rules, and shall be available for examination by representatives of the SEC:
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A copy of this Code and any other code which is, or was at any time within the past five years, in effect. |
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A record of any violation of this Code and of any action taken as a result of such violation. |
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A copy of all written acknowledgements for each person who currently, or within the past five years was, a supervised person. |
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A copy of each report made by an Access Person or by an officer or Board Member of a Tiburon Fund. |
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A list of all persons who are, or within the past five years have been, Access Persons. |
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A record of any decision, and the reasons supporting the decision, to approve the acquisition of securities by an Access Person in an IPO or a private placement. |
8. Amendments To The Code
This Code may be amended as provided for in the Rules, provided that any material change to the Code must be approved by the Tiburon Funds Board no later than six months after the material change is adopted, and further provided that any amendment submitted to the Board must be accompanied by a certification from the Tiburon Fund, the Adviser and the Distributor that they have adopted procedures reasonably necessary to prevent Access Persons from violating the Code.
9. Legal Framework For The Code
Section 17(j) of the 1940 Act makes it unlawful for certain persons to engage in any fraudulent, deceptive or manipulative act, practice or course of business in connection with personal transactions in any security held or to be acquired by a registered investment company. Rule 17j-1 requires each registered investment company, its investment adviser and principal underwriter to adopt a written code of ethics designed to prevent Access Persons from engaging in the acts prohibited by section 17(j) of the 1940 Act, and to use reasonable diligence, and to institute procedures reasonably necessary, to prevent violations of the Code.
Rule 204A-1 under the Advisers Act requires all investment advisers to establish, maintain and enforce a written code of ethics that, at a minimum: includes standards of business conduct required of Supervised Persons to reflect the advisers fiduciary obligations and those of its supervised persons; requires supervised persons to comply with applicable federal securities laws; requires Access Persons to report, and the adviser to review, personal securities transactions and holdings; and requires Supervised Persons to report any violations of the Code. Further, the Rules require advisory and fund personnel to file reports, and each investment adviser, and each investment company, its investment adviser and principal underwriter, to maintain records of securities transactions covered under the Rules, as well as certain other information.
10. Index of Defined Terms
Access Persons under the Rules are Supervised Persons who may have access to non-public information regarding a Accounts purchase or sale of securities or to non-public information regarding the portfolio holdings of any Tiburon Fund, who are involved in making securities recommendations to Accounts, or who have access to such recommendations that are non-public. Access Persons include Board Members, officers and Advisory Persons of a Tiburon Fund.
Advisory Persons make, participate in, or obtain information regarding the purchase or sale of any security by a Tiburon Fund or are involved in making, or have information concerning, recommendations regarding Tiburon Fund transactions as part of their regular duties. Advisory persons include persons in a control relationship to a Tiburon Fund or a Tiburon Company that obtains information about recommendations made to the Tiburon Fund regarding the purchase or sale of securities.
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Covered Security shall have the same meaning as a security as set forth in Section 2(a)(36) of the 1940 Act, except that it shall not include shares of Mutual Funds (as defined below), securities issued by the United States government within the meaning of Section 2(a)(16) of the 1940 Act (i.e., U.S. Treasury securities, as distinct from securities of U.S. government agencies or instrumentalities), bankers acceptances, bank certificates of deposit, commercial paper and high quality short-term debt instruments, including repurchase agreements.
Covered Security held or to be acquired shall mean (i) any Covered Security which, within the most recent 15 days, is or has been held by the relevant Tiburon Fund or is being or has been considered by the relevant Tiburon Fund or the Adviser for purchase by the relevant Tiburon Fund and (ii) any option to purchase or sell, and any security convertible into or exchangeable for, a Covered Security described in clause (i) above.
Mutual Fund shall mean an open-end management investment company whose shares are not traded on an exchange.
Purchase or Sale includes, among other things, writing put and call options on a Security or Covered Security.
Security shall have the meaning set forth in Section 2(a)(36) of the 1940 Act and specifically includes Mutual Funds (as defined below), futures and options. Futures and options may not be used to evade the restrictions of this Code.
Security held or to be acquired shall mean (i) any security which, within the most recent 15 days, is or has been held by an Account or is being or has been considered by an Account or the Adviser for purchase by an Account and (ii) any option to purchase or sell, and any security convertible into or exchangeable for, a security described in clause (i) above.
Supervised Persons are defined in the Advisers Act as partners, officers, directors (or other persons occupying a similar status or performing similar functions) or employees of an investment adviser, or other persons who provide investment advice on behalf of the investment adviser and are subject to the supervision and control of the investment adviser.
Tiburon Fund shall mean a publicly trade Fund (mutual fund, or otherwise) advised by a Tiburon Company.
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Appendix A
List of Access Persons
December
31, 2011
Peter M. Lupoff
Kenneth Staut
Charlie Trisiripisal
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