SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
Filed by Registrant [ X ]
Filed by a Party other than the Registrant [ ]
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[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Sec. 240.14a-11(c) or Sec. 240.14a-12
FIRST OPPORTUNITY FUND, INC.
(Name of Registrant as Specified In Its Charter)
Stephen C. Miller
2344 Spruce Street, Suite A
Boulder, Colorado 80302
(303) 442-2156
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transactions applies:
2) Aggregate number of securities to which transaction applies:
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pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
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paid previously. Identify the previous filing by registration statement
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[GRAPHIC OMITTED] 2344 Spruce Street
FIRST OPPORTUNITY FUND, INC. Suite A
Boulder, Colorado 80302
www.firstopportunityfund.com
June ____, 2009
Dear Fellow Stockholder,
You are invited to attend the 2009 Annual Meeting of Stockholders of First
Opportunity Fund, Inc. (the "Fund"), which will be held on _____ , 2009 at 9:00
a.m. _________ Daylight Time (local time), at _____________________________.
Details of the business to be presented at the meeting can be found in the
accompanying Notice of Annual Meeting and Proxy Statement. This is a very
important meeting at which the Fund's board of directors (the "Board") is asking
you to approve significant, and we believe, positive changes to the Fund.
Since the Fund's inception in 1986, Wellington Management Company, LLP
("Wellington Management") has served as the Fund's investment adviser. During
this time, the Board believes that the Fund has delivered a strong track record
of performance relative to its peer groups and the relevant indices. At past
meetings, members of the Board have discussed various ways of increasing the
potential future returns of the Fund including investing in hedge funds. As a
consequence of these discussions, ultimately the Board concluded that
stockholder value could be enhanced by investing a significant portion of the
Fund's assets in hedge funds, including some hedge funds sponsored by Wellington
Hedge Management, LLC ("WHM") (an indirect wholly owned subsidiary of Wellington
Management) and advised by Wellington Management (the "WHM Hedge Funds"). In
order to accommodate investing in any WHM Hedge Fund, the Fund must change its
investment adviser to an entity or entities that are not affiliated with the
current investment adviser, Wellington Management.
Accordingly, you are being asked to approve new investment advisory agreements
for the Fund. The Proxy Statement contains proposals for new advisory agreements
whereby Rocky Mountain Advisers, L.L.C. ("RMA") and Stewart Investment Advisers
("SIA") (together, the "New Advisers") would serve as the Fund's co-advisers,
and a new sub-advisory agreement proposal for Wellington Management to serve as
a temporary investment sub-adviser. Under the new structure, the New Advisers
would be permitted to invest significant assets of the Fund in hedge funds,
including WHM Hedge Funds. Under the Fund's present advisory structure, because
of affiliate prohibitions under the Investment Company Act, the Fund cannot
invest in a hedge fund managed by Wellington Management or its affiliates. We
believe this new structure, if approved by you, will provide greater advantages
in terms of enhancing investment opportunity and flexibility by permitting
investments in hedge funds, including WHM Hedge Funds, and leveraging the talent
pools of the New Advisers and Wellington Management.
As part of the restructuring, and to provide additional flexibility to the New
Advisers, the Board also recommends removing the Fund's fundamental
concentration policy of investing at least 65% of its assets in financial
services companies.
You are also being asked to consider a proposal which would classify or
"stagger" the Board. And finally, the Proxy Statement includes a proposal for
the election of the members of the Board. The enclosed Proxy Statement gives
details about each proposal which requires your approval and should be carefully
read and considered before you vote.
As Chairman of the Board, I encourage you to support all of the proposals. After
careful and extensive review, the members of the Board, including the
independent directors, unanimously approved and recommended to stockholders that
they approve all of the proposals as detailed in the Proxy Statement. We hope
you plan to attend the Annual Meeting. Your vote is important. Whether or not
you are able to attend, it is important that your shares be represented at the
Annual Meeting. Accordingly, we ask that you please sign, date, and return the
enclosed Proxy Card or vote via telephone or the Internet at your earliest
convenience.
On behalf of the Board and the management of First Opportunity Fund, Inc., I
extend our appreciation for your continued support.
Sincerely,
/s/ Joel W. Looney
Joel W. Looney
Chairman of the Board
[GRAPHIC OMITTED] 2344 Spruce Street
FIRST OPPORTUNITY FUND, INC. Suite A
Boulder, Colorado 80302
www.firstopportunityfund.com
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To Be Held on __________, 2009
To the Stockholders:
The Annual Meeting of Stockholders (the "Meeting") of First Opportunity Fund,
Inc., a Maryland corporation (the "Fund"), will be held on _________ 2009 at
9:00 a.m. ________ Daylight Time (local time), at
_______________________________, to consider and vote on the following
proposals, all of which are more fully described in the accompanying Proxy
Statement:
1. To approve or disapprove the proposed investment advisory agreement with
Rocky Mountain Advisers, L.L.C. ("RMA") (Proposal 1);
2. To approve or disapprove the proposed investment advisory agreement with
Stewart Investment Advisers ("SIA") (Proposal 2);
3. To approve or disapprove the proposed investment sub-advisory agreement
with Wellington Management Company, LLP ("Wellington") (Proposal 3);
4. To approve or disapprove eliminating the Fund's fundamental policy of
investing at least 65% of its assets in financial services companies (the
"Concentration Policy") (Proposal 4);
5. To approve or disapprove amending the Concentration Policy to reduce the
Fund's minimum threshold for investing in financial services companies to
25% (Proposal 5);
6. To approve or disapprove an amendment to the Fund's charter classifying the
board of directors of the Fund (the "Board") into three separate classes
and making related changes to the charter (Proposal 6);
7. The election of directors of the Fund (Proposal 7); and
8. To transact such other business as may properly come before the Meeting or
any adjournments and postponements thereof.
The Board of Directors of the Fund has fixed the close of business on ________,
2009 as the record date for the determination of stockholders of the Fund
entitled to notice of and to vote at the Meeting and any postponements or
adjournments thereof. The Proxy Statement, Notice of Annual Meeting, and proxy
card are first being mailed to stockholders on or about _____________, 2009.
By Order of the Board of Directors,
/s/ Stephanie Kelley
STEPHANIE KELLEY
Secretary
_____, 2009
--------------------------------------------------------------------------------
EVEN IF YOU PLAN TO ATTEND THE MEETING, STOCKHOLDERS ARE URGED TO SIGN THE
ENCLOSED PROXY CARD (UNLESS AUTHORIZING THEIR PROXY VIA TOUCH-TONE TELEPHONE OR
THROUGH THE INTERNET) AND MAIL IT IN THE ENCLOSED ENVELOPE SO AS TO ENSURE A
QUORUM AT THE MEETING. THIS IS IMPORTANT WHETHER YOU OWN FEW OR MANY SHARES.
--------------------------------------------------------------------------------
INSTRUCTIONS FOR SIGNING PROXY CARDS
The following general rules for signing proxy cards may be of assistance to
you and may avoid the time and expense to the Fund involved in validating your
vote if you fail to sign your proxy card properly.
1. Individual Accounts: Sign your name exactly as it appears in the
registration on the proxy card.
2. Joint Accounts: Either party may sign, but the name of the party signing
should conform exactly to a name shown in the registration.
3. All Other Accounts: The capacity of the individual signing the proxy
card should be indicated unless it is reflected in the form of registration. For
example:
Registration Valid Signature
------------ ---------------
Corporate Accounts
(1) ABC Corp. ABC Corp.
(2) ABC Corp. John Doe, Treasurer
(3) ABC Corp., c/o John Doe Treasurer John Doe
(4) ABC Corp. Profit Sharing Plan John Doe, Trustee
Trust Accounts
(1) ABC Trust Jane B. Doe, Trustee
(2) Jane B. Doe, Trustee, u/t/d 12/28/78 Jane B. Doe
Custodian or Estate Accounts
(1) John B. Smith, Cust., John B. Smith
f/b/o John B. Smith, Jr. UGMA
(2) John B. Smith John B. Smith, Jr., Executor
[GRAPHIC OMITTED] 2344 Spruce Street
FIRST OPPORTUNITY FUND, INC. Suite A
Boulder, Colorado 80302
www.firstopportunityfund.com
QUESTIONS & ANSWERS REGARDING THE MEETING AND PROPOSALS
Question 1: What changes are being proposed?
Answer: In addition to electing the Fund's board of directors (the
"Board"), stockholders are being asked to vote on other significant proposals:
approving new investment co-advisory agreements, approving a new investment
sub-advisory agreement and eliminating the Fund's fundamental policy of
investing at least 65% of its assets in financial services companies (together,
the "Restructuring"). In addition, the Board is asking stockholders to approve
an amendment to the Fund's charter (the "Charter") so as to classify or
"stagger" the Board into three separate classes.
Question 2: How does the Board recommend I vote on the Proposals?
Answer: The Board, including all of the directors who are not "interested
persons" of the Fund (as defined in the Investment Company Act of 1940, as
amended (the "1940 Act")) (the "Independent Directors"), has unanimously
recommended that stockholders vote FOR all of the Proposals. If no instructions
are indicated on your proxy, the representatives holding proxies will vote in
accordance with the recommendations of the Board.
Question 3: Who are the Fund's proposed new investment co-advisers?
Answer: The Board, including all of the Independent Directors, has
unanimously approved and recommends that stockholders approve investment
advisory agreements (the "Advisory Agreements") with Rocky Mountain Advisers,
L.L.C. ("RMA") and Stewart Investment Advisers ("SIA") (together the "New
Advisers"). If the Advisory Agreements are approved by stockholders, the New
Advisers will act as co-advisers to the Fund. Both New Advisers are controlled
by trusts and entities affiliated with the family of Stewart R. Horejsi
(together, the "Horejsi Affiliates"). The Horejsi Affiliates own [35.51]% of the
Fund's outstanding common stock. SIA and Boulder Investment Advisers, LLC
("BIA") currently provide investment advisory services to three other closed-end
investment companies: Boulder Total Return Fund, Inc. (NYSE:BTF), Boulder Growth
& Income Fund, Inc. (NYSE:BIF), and The Denali Fund Inc. (NYSE:DNY). BIA is an
affiliate of the New Advisers and the management and staffing of RMA is
substantially the same as that of BIA.
Question 4: Who is the Fund's proposed investment sub-adviser?
Answer: The Board, including all of the Independent Directors, has
unanimously approved and recommends that stockholders approve a temporary and
limited investment sub-advisory agreement with Wellington Management Company,
LLP ("Wellington Management") (the "Sub-Advisory Agreement"). Wellington
Management presently acts as the Fund's sole investment adviser and has done so
since the Fund's inception. Under the Sub-advisory Agreement, Wellington
Management will be responsible for managing a discrete portion of the Fund's
current assets with respect to which it has experience and familiarity (the
"Legacy Holdings"). Wellington Management will act in a sub-advisory capacity
for a period of two years after the effective date of the Restructuring (i.e.,
the date on which stockholders approve the Advisory Agreements and Sub-Advisory
Agreement) (the "Effective Date"). Under the terms of the Sub-Advisory
Agreement, Wellington Management would be responsible for managing the Legacy
Holdings with a view towards continuing to hold the securities, selling them in
its discretion and assisting the New Advisers in gaining familiarity with the
Legacy Holdings.
Question 5: Why does the Board think it is necessary to restructure the Fund?
Answer: Currently, the Fund is subject to regulatory constraints that limit its
investment flexibility as compared with hedge funds, including limitations on
leverage (which impacts the level of short sales and derivatives that can be
utilized), and other regulatory requirements that can impede the use of new
instruments, including derivatives. Compared to registered investment companies,
hedge funds have greater flexibility to engage in a broader array of investment
strategies, such as the use of short sales, leverage and derivatives. Over the
last several years, the Board has reviewed a number of options which would allow
the Fund to take greater advantage of the broader array of investment strategies
of Wellington Management and its investment personnel. The Board and New
Advisers believe that investments in hedge funds, including those sponsored by
Wellington Hedge Management LLC ("WHM"), an indirect wholly owned subsidiary of
Wellington Management ("WHM Hedge Funds"), offer the Fund the potential for
superior risk-adjusted returns arising from the fewer regulatory constraints on
hedge funds, and their resulting broader investment options. Under the Fund's
current structure with Wellington Management as the sole adviser, the Fund is
prohibited by regulations under the 1940 Act from investing any of its assets in
a hedge fund managed by an affiliate of Wellington Management. Appointing the
New Advisers as the Fund's primary investment advisers, and segregating the
Fund's assets temporarily into two portions - one managed by the New Advisers
and the other, the Legacy Holdings, temporarily managed by Wellington
Management- would permit the New Advisers, independent of Wellington
Management's influence or control, to invest significantly in hedge funds,
including WHM Hedge Funds. The New Advisers anticipate, in the near term and
based on the WHM Hedge Funds currently available and current market conditions,
that they would invest as much as 50% of the Fund's assets in certain WHM Hedge
Funds which emphasize investments in the financial services sector and are
managed in whole or part by the Fund's current portfolio manager. This
percentage could increase or decrease over time.
Question 6: Why is there a need for Wellington Management to continue in a
sub-advisory capacity?
Answer: The Fund is presently invested primarily in securities which were
analyzed, purchased, and are overseen by Wellington Management in its current
capacity as the Fund's sole adviser. The New Advisers may have limited
familiarity with these securities. It is anticipated that under the guidance of
the New Advisers, the Fund will contribute a number of these securities
"in-kind" in exchange for interests in several WHM Hedge Funds, although the
extent to which an "in-kind" contribution will occur cannot be determined until
after the Effective Date. In addition, on the Effective Date, the New Advisers
will assume responsibility for all of the cash or cash equivalent assets as well
as certain of the Fund's large cap equity holdings familiar and acceptable to
the New Advisers. All of the Fund's remaining assets for which the New Advisers
do not assume responsibility - anticipated to be fair-valued and other
securities with less market liquidity described above as the Legacy Holdings -
will be managed by Wellington Management in accordance with the Fund's
investment objective but with a view solely towards holding, liquidating the
assets to generate cash for the New Advisers to invest, and/or familiarizing the
New Advisers with the Legacy Holdings. After the Effective Date, Wellington
Management will not be responsible for purchasing any new securities directly
for the Fund. Although there is no set time frame for accomplishing its
objectives, by its terms, the proposed sub-advisory agreement with Wellington
Management would terminate in two years, and the New Advisers would assume
responsibility for managing any remaining Legacy Holdings at that time.
Question 7: How will the co-adviser and sub-adviser arrangement work? Will they
work together?
Answer: Under the terms of the Advisory Agreements, RMA and SIA would serve
as co-advisers to the Fund and would be jointly and severally responsible for
making investment decisions with respect to the Fund's holdings other than the
Legacy Holdings, including any decision to invest in the WHM Hedge Funds,
supplying investment research and portfolio management services, placing
purchase and sale orders for portfolio transactions, making asset allocation
decisions for the Fund and determining the extent, nature and application of the
Fund's leverage, if any. Under the terms of the Sub-Advisory Agreement,
Wellington Management would serve as sub-adviser and be responsible for making
investment decisions solely with respect to the Legacy Holdings, although once
liquidated, the proceeds from selling the Legacy Holdings will be transferred to
the New Advisers for investment.
Because the New Advisers could decide to invest assets in WHM Hedge Funds at any
time, the New Advisers and Wellington Management will not work together or
collaborate on their respective portfolios. Wellington Management will have sole
investment discretion with respect only to whether to continue to hold or
liquidate the Legacy Holdings and the New Advisers will have sole investment
discretion with respect to the remaining assets, including the WHM Hedge Fund
investments and any proceeds from the sale of Legacy Holdings. However, as a
sub-adviser to the Fund, Wellington Management will be subject to general
oversight and monitoring by RMA and SIA as the Fund's co-advisers.
Question 8: Will the Fund's expenses be affected by the Advisory Agreements and
the Sub-Advisory Agreement?
Answer: Yes. The Fund currently pays Wellington Management an advisory fee
of 1.125% on the Fund's net assets up to and including $150 million; 1.00% on
net assets between $150 million and $300 million; and 0.875% on net assets
exceeding $300 million (the "Current Fee"). As proposed, the Advisory Agreements
contemplate the New Advisers being paid an investment advisory fee of 1.25% on
the Fund's net assets, including leverage, although the Fund currently has no
leverage. However, under the Advisory Agreements, the New Advisers would waive
(i) up to 1.00% on the "look-through" advisory fees (but not the performance
fees) paid to WHM with respect to any investment by the Fund in a WHM Hedge Fund
and (ii) all fees paid by the Fund to Wellington under the Sub-Advisory
Agreement. Under the Sub-Advisory Agreement, Wellington Management would receive
fees from the Fund based on the Current Fee schedule, as applied only with
respect to the assets represented by the Legacy Holdings.
Based on current assets under management, and the New Advisers' anticipated
investment of approximately 50% of the Fund's assets in WHM Hedge Funds, the
advisory fees paid directly by the Fund would decrease by approximately
$_________ annually versus the Current Fee ($ ______ for the year ended
________), and the Fund's expense ratio would decrease from its current rate of
______ % to ______%. However, on a "look-through" basis (i.e., taking into
consideration the fees charged by the WHM Hedge Funds), advisory-related
expenses will increase slightly - by approximately $______________ annually
(excluding performance fees). On a "look-through" basis, the overall expense
ratio would increase from its current level of ______% to approximately _____%,
not including the impact of any performance fee paid to WHM. This expense ratio
may or may not fluctuate depending on fixed expenses as well as the size of the
Fund. Hedge fund managers, including WHM, typically are paid a 20% performance
fee with respect to annual gains generated in their hedge funds. Thus, under the
Restructuring, the increase in advisory-related fees could be significantly
higher when there are net gains in the hedge fund. Since performance fees will
necessarily vary from year to year, they have not been factored into the
foregoing estimated fee increase or expense ratio estimates. For the sake of
comparison, if the Fund invests 50% of its current assets in WHM Hedge Funds,
and during the first year after the Effective Date the value of WHM Hedge Funds
increase by 10%, and all the Fund's other assets remain unchanged, on a
"look-through" basis, the Fund would pay an additional $___________ in advisory
related fees. The Board believes that because the WHM Hedge Funds offer more
investment flexibility and the possibility of superior risk adjusted returns,
the likelihood that the Fund will pay higher look-through advisory-related fees
is an acceptable tradeoff.
Question 9: Will the Restructuring affect the Fund's investment objective or any
fundamental policies?
Answer: The Restructuring will not affect the Fund's investment objective
of "total return". However, as part of the Restructuring, stockholders are asked
to remove the Fund's fundamental policy of investing at least 65% of its assets
in financial services companies (the "Concentration Policy"). The Board believes
that the 65% minimum investment requirement in financial services companies
places a disproportionate industry risk on the Fund and stockholders. If the
Restructuring is approved and the Concentration Policy eliminated, the New
Advisers will be required to reduce the Fund's exposure to the financial
services industry to comply with this change.
The Fund will continue to have the flexibility to invest in a wide range of
investments, which could include, among others, common stocks, debt instruments,
preferred stocks, securities convertible into common stocks, interest rate and
credit default swaps, and cash and cash equivalents. In addition, the
Restructuring is intended to provide the Fund with the ability to invest in
hedge funds, including the WHM Hedge Funds, which carry a set of risks
particular to investing in hedge funds and which are discussed below. The
Restructuring and, in particular, removal of the Concentration Policy, is
intended to give the Fund and New Advisers additional flexibility in investing
the Fund's assets.
Question 10: Why are there two proposals (Proposals 4 and 5) dealing with the
Concentration Policy?
Answer: As discussed above, Proposal 4 contemplates the removal of the
Concentration Policy in its entirety as part of the Restructuring so that the
New Advisers will have additional flexibility when investing the Fund's assets.
Proposal 5 is a precautionary proposal which would become effective only if
stockholders do not approved the Restructuring (i.e., Proposals 1 through 4).
Proposal 5 would amend the Concentration Policy to reduce the Fund's minimum
holdings in financial services companies from 65% to 25% (subject to the Fund's
ability to take defensive measures to preserve value). Regardless of whether
Wellington Management or the New Advisers are the primary advisers to the Fund,
the Board believes that the 65% investment requirement in financial services
companies places a disproportionate industry risk on the Fund and stockholders
and needs to be eliminated or at the very least significantly reduced.
Question 11: Are the separate proposals of the Restructuring conditioned on
stockholder approval of the other proposals (e.g., approval of the
Advisory Agreements and Sub-Advisory Agreement)?
Answer: Passage of Proposals 1 and 2 (approval of the Advisory Agreements) and
Proposal 3 (approval of the Sub-Advisory Agreement) are conditioned on all such
Proposals being approved by stockholders (i.e., if one fails to achieve
stockholder approval, all three fail). However, the Board believes that
eliminating or amending the Concentration Policy is a change that should be
implemented regardless of whether Proposals 1 through 3 are approved. Thus,
stockholders are presented with two alternative proposals regarding the
Concentration Policy, and passage of Proposal 4 (eliminating the Concentration
Policy) will be conditioned on stockholder approval of Proposals 1 through 4. In
other words, if stockholders approve Proposal 4 but not Proposals 1 through 3,
Proposal 4 will not become effective. Proposal 5 (amending the Concentration
Policy) will be conditioned upon stockholder approval of Proposal 5 and their
failure to approve Proposals 1 through 3. Thus, if stockholders approve both
Proposals 4 and 5 and Proposals 1 through 3 pass, Proposal 4 will become
effective and Proposal 5 will not. However, if stockholders approve both
Proposals 4 and 5, but Proposals 1 through 3 do not pass, Proposal 5 will become
effective and Proposal 4 will not. Ultimately, the Board believes that
eliminating or significantly reducing the minimum threshold of the Concentration
Policy will mitigate industry risk and provide the Fund's adviser(s) with
additional flexibility and ease the Fund's future administrative burdens going
forward. If the Restructuring Proposals are not adopted and Wellington
Management stays on as investment adviser to the Fund , Wellington Management
intends to retain its primary focus on investments in the financial services
industry. Proposal 5 would give Wellington Management additional flexibility to
invest outside of the financial services sector, including during periods of
market turmoil.
Question 12: Describe any other anticipated change to the Fund's investment
strategies or operations and explain the anticipated benefits to
the Fund and its stockholders of any such change.
Answer: The primary impetus for the Restructuring is to provide the Fund with
more flexibility and increased access to hedge funds, including the less
constrained and broader investment tools of Wellington Management, the Fund's
current portfolio manager, by making investments in certain WHM Hedge Funds that
emphasize investments in the financial services sector. The New Advisers are
considering making a significant allocation (approximately 50%) of the Fund's
assets to WHM Hedge Funds, once the Restructuring is fully implemented. This
would represent an obvious change in investment approach as compared to the
Fund's historical universe of investments. The Board believes that giving the
Fund the ability to invest significantly in hedge funds, including WHM Hedge
Funds, ultimately offers more investment flexibility and the potential for
superior risk adjusted returns.
Question 13: Will the risk profile of the Fund change as a result of the
Restructuring and, in particular, as a result of investing
significantly in hedge funds?
Answer: Yes. Because the New Advisers anticipate investing substantially in
hedge funds, including initially in the WHM Hedge Funds, the Fund could be
exposed to, among other things, the increased leverage and consequent risks
(with potential for increased returns) resulting from hedge funds' use of
certain investment strategies not currently used by the Fund. Therefore,
stockholders should be aware of the general risks associated with investing in
hedge funds.
Hedge funds are unregistered private investment funds or pools that invest and
trade in many different markets, investment strategies and instruments
(including securities, non-securities and derivatives) and are NOT subject to
the same regulatory and oversight requirements as registered investment
companies, including requirements to provide investors with periodic reporting
and certain standardized pricing and valuation information. Hedge fund offering
documents are not reviewed or approved by federal or state regulators. Hedge
funds may be leveraged and their performance may be volatile. A hedge fund's
manager generally has absolute trading authority over the hedge fund. Some hedge
funds may involve structures or strategies that may cause delays in the receipt
by their investors of important tax information. Hedge funds may provide limited
transparency regarding underlying investments. Hedge funds may execute a
substantial portion of trades on foreign exchanges which could mean higher risk
because they are subject to less regulation than U.S. exchanges and are subject
to adverse political or economic events in their respective markets. The Fund's
investment in a hedge fund may be illiquid and there may be significant
restrictions on liquidating or transferring interests in a hedge fund. There are
no secondary markets for the Fund's investment in any hedge fund and none are
expected to develop. A hedge fund's ongoing advisory and performance fees and
expenses may be substantial regardless of positive trading profits. Hedge funds
may invest in startup companies, small cap companies and distressed situations.
Hedge funds may engage in investment techniques such as short selling and
investing in futures contracts and may invest in certain securities such as
options, warrants, convertible securities and non-U.S. securities. Hedge funds
may invest in interest rate and credit default swaps and other derivative
instruments. Hedge funds may invest in securities denominated in foreign
currencies thus exposing their investors to foreign currency risk. This summary
is not a complete list of the risks involved in investing in a hedge fund.
Question 14: Describe the manner in which the current investment portfolio of
the Fund would be modified in connection with the Restructuring
and whether there will be any associated adverse costs or tax
consequences.
Answer: Initially the New Advisers are considering investing up to 50% of
the Fund's assets in two WHM Hedge Funds (up to 25% of the Fund's assets in each
WHM Hedge Fund). In addition, the New Advisers may in their discretion make
additional investments of up to 5% of the Fund's assets (at the time of
investment) in other hedge funds, including WHM Hedge Funds. Also as discussed
above, removing the Concentration Policy will allow the New Advisers more
flexibility in investing in hedge funds and managing the Fund's remaining
portfolio, allowing the New Advisers to invest the Fund's assets in a more
diversified array of industries and investments, both domestic and abroad. Due
to the recent market volatility and the credit crisis, it is difficult to
predict where or in what industries the New Advisers will focus.
As discussed above, Wellington Management, in its capacity as a sub-adviser
after the Restructuring, will be charged with the task of holding and/or
liquidating the Legacy Holdings in a timely and prudent manner, generating cash
for the New Advisers to invest opportunistically. With respect to the Legacy
Holdings, an adviser normally would be concerned about the tax consequence of
aggressively liquidating a large portion of the Fund's portfolio. However,
because the Fund has significant unrealized capital losses (i.e., $121 million
as of 3/31/09) and capital loss carry forwards (i.e., $25.8 million as of
3/31/09), the sale of existing portfolio securities is not expected to trigger
net capital gains. Also, it is anticipated that a significant portion of the
Fund's current portfolio may be able to be exchanged "in-kind" for an interest
in the WHM Hedge Funds without the expectation of immediate tax consequences. In
these circumstances, the Fund would retain its cost basis in the "in-kind"
securities and would realize a gain or loss only when the hedge fund sells the
respective in-kind securities. The extent of any in-kind contribution, however,
cannot be determined until after the Effective Date.
Question 15: What are the characteristics of the hedge funds in which the New
Advisers anticipate investing?
Answer: Presently, the New Advisers are considering investing in two WHM
Hedge Funds:
- The first takes aggressive, long positions in undervalued companies in
the financial services and related sectors that the fund's manager
believes offer attractive investment opportunities. Such opportunities
may be created by market fragmentation, the trend toward consolidation
in the financial services sector, the relative obscurity of smaller
companies, or investor misunderstanding of fundamental financial
characteristics. The fund may also take short positions in financial
services companies and related sectors as a hedge against specific
long positions and to take advantage of specific opportunities created
by market disequilibrium. Securities for the portfolio are selected
primarily on the basis of fundamental value. The fund's manager
focuses on companies with strong fundamental characteristics that are
undervalued relative to their long-term potential, specifically
analyzing the relationship between a company's underlying earnings
power and the market price of the stock. Attractive valuations are
often found in securities issued by institutions that are not widely
followed by institutional research analysts. The key objective of the
fund is to achieve superior total returns on an absolute basis. In
order to achieve this goal, the fund makes investments throughout the
capital structure (e.g., preferred stock, convertible securities,
fixed income securities) and invests in companies with solid
fundamentals and attractive valuations, while shorting securities in
those companies with unsustainable valuations. The fund may also
utilize leverage and derivatives, including listed and unlisted index
and stock options, to hedge positions and enhance returns.
- The second seeks capital appreciation through investments in both long
and short positions in the financial services sector as well as
through the use of leverage. The fund is managed by four experienced
investment managers as a team. The investment team takes a broad
approach to the global finance sector and invests in insurance
companies, securities brokers, asset management companies,
thrifts/building societies, banks, and companies that serve the
finance sector. Portfolio concentration in a sub-sector or sub-sectors
is determined by the number and risk/reward profiles of available
opportunities as well as general market conditions. The managers
employ a strict bottom-up approach and make investment decisions based
upon market valuations relative to company fundamentals. The objective
of the fund is to seek capital appreciation over the long-term. The
fund's manager uses allocation of capital, leverage, and the ability
to short sell securities as its primary tools in implementing
investment conclusions as to the relative attractiveness of individual
securities. The fund may also utilize derivatives, including listed
and unlisted index and stock options, to hedge positions and enhance
returns. It is expected that the fund's portfolio will generally be
net long.
Question 16: What will be the investment approach of the New Advisers?
Answer: In the near term, in addition to the anticipated investments in the
WHM Hedge Funds, the New Advisers expect to invest primarily in common stocks,
including dividend paying common stocks such as those issued by utilities, real
estate investment trusts ("REITs") and regulated investment companies under the
Code (as defined below) ("RICs"). The Fund may also invest in fixed income
securities such as U.S. government securities, preferred stocks and bonds.
Although the Fund expects to invest primarily in securities of U.S.-based
companies, it may invest without limitation in foreign equity securities and
sovereign debt, in each case denominated in foreign currency.
The New Advisers intend to focus on securities issued by companies across a
broad range of industries. The Fund will not necessarily be a "large-cap",
"mid-cap" or "anything-cap" fund since the New Advisers believe it is unwise to
restrict investments to any particular size company. When the Fund makes an
investment in a common stock, it may take large positions consistent with its
status as a "non-diversified" investment company. It is also likely to hold on
to its investments for a long time, allowing the investments to do what they are
expected to do - earn money and grow. The New Advisers believe such an approach
is in the long-term best interest of stockholders as, the longer stockholders
hold their investment without selling, the longer they defer paying taxes on any
gains. Since the Horejsi Affiliates own such a large stake in the Fund, the New
Advisers are not likely to invest in anything the Horejsi Affiliates would not
buy for themselves. In the long run, the New Advisers think that flexibility and
value-type investing will produce the best overall total return.
Question 17: What is a "classified board" and why is the Board recommending
stockholders approve a classified structure to the Board?
Answer: A "classified board", also referred to as a "staggered board",
consists of members who are elected to separate classes, with each class of
directors serving a staggered three-year term. Each class of directors is
elected in successive terms (i.e., one class is elected in 2009 to serve through
2012, one class is elected in 2010 to serve until 2013, and so on). The Board
recognizes that the overall effect of Proposal 6 will be to make any hostile
attempt to take control of the Fund through a proxy contest more difficult. In
order to change the membership of a majority of the Directors, at least two
years will be required. The Board believes that this will encourage persons
seeking to acquire control of the Fund to engage in good-faith, arm's-length
negotiations with the Board. The Board also believes that ensuring continuity of
service among the Board members and three-year commitments for Board service is
desirable and that the Proposal will facilitate the Fund's attracting and
retaining qualified Board candidates and hiring and retaining competent
management personnel by increasing the likelihood of a stable employment
environment.
The Board understands that the Fund's largest stockholders have a long-term
investment horizon and its remaining stockholder base generally is comprised of
many stockholders holding smaller positions who similarly have a long-term
investment horizon. A primary reason that these stockholders invest with the
Fund is the potential for long-term capital appreciation coupled with
responsible and deliberative asset management. Neither the Board nor the Fund's
stockholders contemplate or desire sudden, drastic changes in the makeup of the
Fund's investment portfolios.
Question 18: How do the Fund's largest stockholders intend to vote on these
Proposals?
Answer: The Fund's largest stockholders (described above as the "Horejsi
Affiliates") intend to vote in favor of the Restructuring and each of the
Proposals.
[GRAPHIC OMITTED] 2344 Spruce Street
FIRST OPPORTUNITY FUND, INC. Suite A
Boulder, Colorado 80302
www.firstopportunityfund.com
ANNUAL MEETING OF STOCKHOLDERS
________, 2009
PROXY STATEMENT
This proxy statement ("Proxy Statement") for First Opportunity Fund, Inc., a
Maryland corporation (the "Fund"), is furnished in connection with the
solicitation of proxies by the Fund's board of directors (collectively, the
"Board" and individually, the "Directors") for use at the Annual Meeting of
Stockholders of the Fund to be held on ____________ at 9:00 a.m. Pacific
Daylight Time (local time), at ___________________ and at any adjournments and
postponements thereof (the "Meeting"). A Notice of Annual Meeting of
Stockholders and proxy card for the Fund accompany this Proxy Statement. Proxy
solicitations will be made, beginning on or about June _____, 2009, primarily by
mail, but proxy solicitations may also be made by telephone, by Internet on the
Fund's website, or through email communications with stockholders who have
enrolled in the Fund's electronic duplicate communications service(see Footnote
+/- below), telegraph or personal interviews conducted by officers of the Fund,
_______________________, the Fund's proxy solicitor and Computershare Trust
Company, N.A., the transfer agent of the Fund. The costs of proxy solicitation
are expected to be approximately $________. Proxy solicitation expenses as well
as expenses incurred in connection with the preparation of this Proxy Statement
and its enclosures will be paid by the Fund. The Fund also will reimburse
brokerage firms and others for their expenses in forwarding solicitation
material to the beneficial owners of its shares. The Board has fixed the close
of business on June___, 2009 as the record date (the "Record Date") for the
determination of stockholders entitled to notice of and to vote at the Meeting
and any postponements or adjournments thereof.
The Annual Report of the Fund, including audited financial statements for the
fiscal year ended March 31, 2009, has been mailed to stockholders. Additional
copies of the Fund's most recent Annual Report are available upon request,
without charge, by writing to First Opportunity Fund, Inc., 2344 Spruce Street,
Suite A, Boulder, Colorado 80302 or by calling (877) 561-7914. The report is
also viewable online at the Fund's website at www.firstopportunityfund.com. The
Annual Report is not to be regarded as proxy solicitation material.
One Proxy Statement is being delivered to multiple stockholders sharing an
address, unless the Fund has received contrary instructions from one or more of
the stockholders. The Fund will undertake to deliver promptly, upon written or
oral request, a separate copy of the proxy statement to any stockholder who
contacts the Fund in writing, or by phone, as stated above. Similarly,
stockholders sharing an address can request single copies of a future proxy
statement or annual report by contacting the Fund in writing or by contacting
the Fund's transfer agent.
An electronic copy of the Notice of Annual Meeting of Stockholders, the Proxy
Statement, and a proxy card for the Fund for your vote at the Meeting is
available online at www.firstopportunityfund.com.
-------------------------------
Footnote:
+/- Stockholders can receive TIMELY information about the Fund quickly and
conveniently! The Fund offers the option for electronic delivery of DUPLICATE
copies of all stockholder communications. You can choose the timeliness and
convenience of receiving and reviewing stockholder communications, such as
annual reports and proxy statements, online in addition to, but more quickly
than, the hard copies you currently receive in the mail. If you sign up for the
option, you will receive an e-mail notification when stockholder communications
are available, containing a link to those communications on the Internet.
HOWEVER, presently you will not be able to vote your shares using these links
and will have to wait to vote using the hard copies you receive in the mail or
electronically from your broker, the transfer agent or proxyvote.com. For more
information, please visit the Fund's website at www.firstopportunityfund.com.
Wellington Management Company, LLP ("Wellington Management")at 75 State Street,
Boston, Massachusetts 02109, currently serves as the investment adviser to the
Fund. Fund Administrative Services, L.L.C. ("FAS"), 2344 Spruce Street, Suite A,
Boulder, Colorado 80302, and ALPS Fund Services, Inc., 1290 Broadway, Suite
1100, Denver, Colorado 80203, serve as co-administrators to the Fund.
Computershare Trust Company, N.A. acts as the transfer agent to the Fund and is
located at 250 Royall Street, Canton, Massachusetts 02021.
If the enclosed proxy is properly executed and returned by ______________, 2009,
in time to be voted at the Meeting, the Shares (as defined below) represented
thereby will be voted in accordance with the instructions marked thereon. Unless
instructions to the contrary are marked thereon, a proxy will be voted FOR each
of the Proposals and, in the discretion of the proxy holders, on any other
matters that may properly come before the Meeting. Any stockholder who has given
a proxy has the right to revoke it at any time prior to its exercise either by
attending the Meeting and casting his or her votes in person or by submitting a
letter of revocation or a later-dated proxy to the Fund's secretary at the above
address prior to the date of the Meeting.
A quorum of the Fund's stockholders is required for the conduct of business at
the Meeting. Under the bylaws of the Fund (the "Bylaws"), a quorum is
constituted by the presence in person or by proxy of the holders of a majority
of the outstanding shares of the Fund as of the Record Date. In the event that a
quorum is not present at the Meeting, the persons named as proxies may propose
and vote for one or more adjournments of the Meeting. An adjournment for lack of
a quorum requires the affirmative vote of the holders of a majority of the
shares entitled to vote at the Meeting and present in person or by proxy. In the
event that a quorum is present but sufficient votes to approve one or more
Proposals are not received, the persons named as proxies may propose and vote
for one or more adjournments of the Meeting to permit further solicitation of
proxies with respect to any Proposal that did not receive the votes necessary
for its passage. With respect to those Proposals for which there is represented
a sufficient number of votes in favor, actions taken at the Meeting will be
approved and implemented irrespective of any adjournments with respect to any
other Proposals. Any such adjournment will require the affirmative vote of a
majority of votes cast on the matter at the Meeting. If a quorum is present, the
persons named as proxies will vote those proxies which they are entitled to vote
FOR any Proposal in favor of such an adjournment and will vote those proxies
required to be voted AGAINST any Proposal against any such adjournment.
The Fund has one class of stock: common stock, par value $0.001 per share (the
"Common Stock" or the "Shares"). On the Record Date, there were 28,739,389
Shares issued and outstanding. Each Share is entitled to one vote at the Meeting
and fractional Shares are entitled to proportionate shares of one vote.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS. The following table sets forth
certain information regarding the beneficial ownership of the Shares as of the
Record Date by each person who is known by the Fund to beneficially own 5% or
more of the Common Stock.
Number of Shares Number of Shares Percentage
Name of Owner Directly Owned (1) Beneficially Owned Beneficially Owned
------------------------------------------ ----------------------- --------------------------- ----------------------
Stewart R. Horejsi Trust No. 2 (1)* 2,169,602 2,169,602 7.55%
Ernest Horejsi Trust No. 1B (1)* 1,271,427 1,271,427 4.42%
Lola Brown Trust No. 1B (1)* 3,000,693 3,000,693 10.44%
Mildred B. Horejsi Trust (1)* 2,025,122 2,025,122 7.05%
Susan L. Ciciora Trust (1)* 1,737,573 1,737,573 6.05%
----------------------- --------------------------- ----------------------
----------------------- --------------------------- ----------------------
Aggregate Shares Owned by Horejsi 10,204,417 10,204,417 35.51%
Affiliates (defined below)
------------------------------------------ ----------------------- --------------------------- ----------------------
------------------------------------------ ----------------------- --------------------------- ----------------------
T. Rowe Price Associates, Inc.** 2,171,631 2,171,631 7.56%
* The address of each listed owner is c/o The Alaska Trust Company, LLC, 1029
West Third Avenue, Ste 400 Anchorage, AK 99501.
** These securities are owned by various individual and institutional
investors for which T. Rowe Price Associates, Inc. ("Price Associates")
serves as investment adviser with power to direct investments and/or sole
power to vote the securities. For purposes of the reporting requirements of
the Securities and Exchange Act of 1934, Price Associates is deemed to be a
beneficial owner of such securities; however, Price Associates expressly
disclaims that it is, in fact, the beneficial owner of such securities.
Shares stated are as reported in a Schedule 13G Amendment No. 5 filed with
the Securities and Exchange Commission on February 12, 2009.
(1) Direct Ownership. The Susan L. Ciciora Trust (the "Susan Trust"), Mildred
B. Horejsi Trust (the "Mildred Trust"), Lola Brown Trust No. 1B (the "Brown
Trust"), Ernest Horejsi Trust No. 1B (the "EH Trust"), and Stewart R.
Horejsi Trust No. 2 ("SRH Trust") directly own the shares indicated for
such entity in the table above, totaling 10,204,417 (35.51%). These trusts
(the "Trusts") along with Alaska Trust Company ("ATC") and Stewart R.
Horejsi are, as a group, considered to be a "control person" of the Fund
(as that term is defined in Section 2(a)(9) of the Investment Company Act
of 1940, as amended). These entities and other trusts or companies with
interlocking trusteeship, management and/or common ownership may be deemed
to indirectly own additional Fund shares, which are included in the table
above. ATC is (i) the sole trustee of the Susan Trust; (ii) together with
Brian Sippy and Susan Ciciora (Mr. Horejsi's daughter), one of three
trustees of the Mildred Trust; and (iii) together with Larry Dunlap and Ms.
Ciciora, one of three trustees of both the Brown Trust and the EH Trust.
ATC is a commercial trust company organized under the laws of Alaska, of
which 98% of the outstanding and voting securities are owned by the Stewart
West Indies Trust ("West Indies Trust"). Douglas J. Blattmachr, President
of ATC, owns 2% of the outstanding shares of ATC. The Directors and
officers of ATC are Larry L. Dunlap (Director), Stephen C. Miller (Vice
President and Director), Mr. Blattmachr (President and Director), Brandon
Cintula (Vice President and Director), and Richard Thwaites
(Secretary/Treasurer and Director). ATC, its officers and its directors
disclaim beneficial ownership of shares owned directly by the Trusts.
----------------------------
Solely for ease of reference, the Susan Trust, Mildred Trust, Brown Trust, EH
Trust, ATC, SRH Trust, as well as other trusts and entities associated with the
Horejsi family are collectively referred to herein as the "Horejsi Affiliates".
Information as to beneficial ownership above has been obtained from a
representative of the beneficial owners; all other information as to beneficial
ownership is based on reports filed with the Securities and Exchange Commission
(the "SEC") by such beneficial owners.
As of the Record Date, Cede & Co., a nominee partnership of the Depository Trust
Company, held of record, but not beneficially,_______________ shares or ______%
of Common Stock outstanding of the Fund.
As of the Record Date, the Trusts, executive officers and directors of the Fund,
as a group, owned 10,254,743 shares of Common Stock (this amount includes the
aggregate shares of Common Stock owned by the Horejsi Affiliates set forth
above), representing [35.68%] of Common Stock.
OVERVIEW OF PROPOSALS
This Proxy Statement describes six proposals (together the "Proposals"). The
first four Proposals (the "Restructuring Proposals"), if approved, will provide
enhanced investment flexibility to the New Advisers (defined below) and expand
the universe of investments in which the Fund may invest. Proposals 1 and 2 ask
stockholders to approve new advisory agreements between the Fund and the New
Advisers (the "Advisory Agreements") and Proposal 3 asks stockholders to approve
a new sub-advisory agreement between Wellington Management, the New Advisers and
the Fund (the "Sub-Advisory Agreement"). Proposal 4 asks stockholders to remove
the Fund's fundamental policy of investing at least 65% of its assets in
financial services companies (the "Concentration Policy"). Proposal 5 is a
precautionary proposal which, if the Restructuring Proposals fail to pass, will
amend the Concentration Policy such that the threshold for investing in
financial services companies will be reduced to 25% from its current threshold
of 65%. Proposal 6 recommends amending the Fund's charter in order to classify
the Board into three separate classes. And finally, Proposal 7 is for the
election of Directors. The Board, including the Directors who are not
"interested persons" of the Fund within the meaning of Section 2(a)(19) of the
Investment Company Act of 1940, as amended (the "1940 Act") (the "Independent
Directors"), unanimously recommends that you vote "FOR" all the Proposals . The
Horejsi Affiliates, which hold approximately [35.51]% of the Fund's outstanding
Common Stock, have informed the Board that they will vote their Shares FOR all
the Proposals.
PROPOSALS 1 AND 2
TO APPROVE OR DISAPPROVE THE PROPOSED INVESTMENT ADVISORY AGREEMENTS WITH
RMA AND SIA
Background of the Proposals. Wellington Management, has managed the Fund since
its inception in 1986. Over this term of management, the Fund has significantly
outperformed its peer groups and the relevant indices. During the past several
years, in response to material changes in the financial services industry since
the Fund was initially launched, the Board has reviewed a number of options to
seek to improve the risk-adjusted return of the Fund by initially removing
certain investment restrictions. In 2008, the Board encouraged management to
identify unnecessary investment restrictions and streamline the Fund to provide
Wellington Management with additional investment flexibility to take advantage
of investment opportunities. In April 2008, Fund management, in conjunction with
Wellington Management, conducted a comprehensive survey of the investment
restrictions imposed on the Fund, and Fund management recommended fundamental
changes to the Fund's diversification status and investment policies. In May
2008, the Board held a special meeting to consider a set of proposals to
eliminate or revise the Fund's investment restrictions and policies, some of
which would be submitted to stockholders for consideration at the annual meeting
in July 2008. In particular, management recommended changing the name of the
Fund to eliminate the term "Financial", changing the investment objective to
"total return" and changing the Fund from a "diversified" to a "non-diversified"
investment company, the latter two requiring a vote of a majority of the Fund's
outstanding shares. In July 2008, stockholders approved changing the Fund's
investment objective to "total return" and reclassifying the investment
objective as non-fundamental. In addition, stockholders approved changing the
Fund's classification and related fundamental investment restriction to
"non-diversified" and approved elimination of the Fund's fundamental investment
restriction regarding the ability to hold greater than 5% in a single issuer.
Although these changes provided Wellington Management significantly more
investment latitude, they still fell short of providing the flexibility utilized
by the WHM Hedge Funds.
In the past, at the Board's request in conjunction with the Board's annual
consideration of Wellington Management's investment advisory contract,
Wellington Management has provided the investment returns of certain hedge funds
sponsored by an affiliate of Wellington Management, Wellington Hedge Management
LLC ("WHM") (the "WHM Hedge Funds") and managed by Wellington Management and the
Fund's current portfolio manager. Even with the changes described above, the
Fund is subject to regulatory constraints that limit its investment flexibility
compared with hedge funds, and other regulatory requirements that can impede the
Fund's swift implementation of new strategies and use of new instruments,
including derivatives. Compared to registered investment companies, hedge funds
have less regulatory constraints that permit them greater flexibility to engage
in a broader array of, and less constrained, investment strategies, such as the
use of short sales, leverage and derivatives. The Board then asked management to
review options that would allow the Fund to take greater advantage of the
talents of Wellington Management and its investment personnel, and the broader
array of, and less constrained, investment strategies that hedge funds may
offer, to seek to improve the risk-adjusted return of the Fund for the benefit
of shareholders.
In October 2008, representatives of the Fund and Wellington Management met to
discuss the feasibility, and technical, operational and legal issues in
connection with a direct investment by the Fund in the WHM Hedge Funds. It was
quickly determined that, because of the affiliate restrictions under the 1940
Act, the Fund could not invest in any Wellington Management-affiliated hedge
funds while Wellington Management was the primary adviser to the Fund. As an
alternative, the parties discussed the possibility of Wellington Management
being replaced by the Board with the New Advisers as investment adviser, and
then the New Advisers making the investment decision to invest in the WHM Hedge
Funds. The Board believed this structure would indirectly provide stockholders
with better access to the unrestricted investment tools of Wellington Management
and its investment personnel. A set of issues arose out of the October
discussions that Fund management and counsel for the Fund had to research and
consider and, if feasible, present to the Board their recommendation at the next
regular meeting in February 2009.
At the February 2009 meeting, the Board reviewed memoranda prepared by
management and counsel addressing a number of technical, legal and tax issues
identified during the preceding months. In particular, these memoranda addressed
the threshold question of whether the Fund could make meaningful investments in
WHM Hedge Funds. It was determined that, under the proposed restructuring (i.e.,
the Board replacing Wellington Management with the New Advisers as the primary
advisers), the Fund would be able to make significant investments in the WHM
Hedge Funds. Over the next three months, management and counsel continued their
analysis of a potential restructuring and, at the Board's next regular meeting
in April 2009, management presented a formal proposal which contemplated
Wellington Management being replaced as the Fund's primary adviser, and the New
Advisers being appointed to that role, Wellington Management becoming a
sub-adviser to the Fund, and removing the Concentration Policy (together the
"Restructuring"). The Board also considered a memorandum prepared by Wellington
Management regarding issues to consider regarding the proposed Restructuring.
The Board considered the Restructuring at a special meeting of the Board on
April 16, 2009, and again at its regularly scheduled meeting on April 24, 2009.
At the meeting held on April 24, 2009, the Board, by unanimous vote (including a
separate vote of the Independent Directors), approved the Advisory Agreements,
Sub-Advisory Agreement and removing the Concentration Policy and recommended
they be submitted to stockholders for approval.
Summary of the Restructuring Proposals.
The Restructuring Proposals include three distinct proposals:
1. Approval of new co-advisory agreements (i.e., the Advisory Agreements)
between the Fund and Rocky Mountain Advisers, L.L.C. ("RMA") and
Stewart Investment Advisers ("SIA") (together, the "New Advisers");
2. Approval of a new sub-advisory agreement (i.e., the Sub-Advisory
Agreement) between the Fund and Wellington Management, whereby
Wellington Management will manage a discrete portfolio of securities
(defined below as the "Legacy Holdings") for a period of two years
after the effective date of the Restructuring (i.e., the date on which
stockholders approve the Restructuring Proposals) (the "Effective
Date"); and
3. Removing the Concentration Policy.
The Restructuring was conceived primarily to give the Fund significant access to
the WHM Hedge Funds. In order to accomplish this and to comply with federal
securities laws, the Restructuring contemplates segregating the Fund's assets
into two discrete portfolios:
1. The first portfolio, which would include any investment in a hedge
fund, including a WHM Hedge Fund, would be determined and managed by
the New Advisers in their sole discretion. Because the WHM Hedge Funds
and the Fund hold many of the same or similar securities, it is
anticipated that the Fund will make a significant "in-kind"
contribution of its current holdings to the WHM Hedge Funds in
exchange for an equity interest in the WHM Hedge Funds, although the
extent of any in-kind contribution cannot be determined until after
the Effective Date. In addition, the New Advisers would assume
responsibility for all cash or cash equivalent assets, as well as
certain of the Fund's large cap equity holdings familiar to the New
Advisers. Finally, as Legacy Holdings (defined below) are liquidated,
proceeds will be turned over to the New Advisers to be invested in
accordance with the Fund's investment objective.
2. The second portfolio, which would include all the Fund's remaining
assets not assumed by the New Advisers, anticipated to be fair-valued
and other liquidity-challenged securities (the "Legacy Holdings"),
would be managed by Wellington Management in accordance with the
Fund's investment objective but with a view toward liquidating the
assets to generate cash for the New Advisers to invest. Wellington
Management's role would be limited solely to continuing to hold or
selling the Legacy Holdings, and/or familiarizing the New Advisers
with the Legacy Holdings. Any proceeds realized from the sale of
Legacy Holdings would be turned over to the New Advisers to manage.
After the Effective Date, Wellington Management would have no
authority to directly purchase any security or investment for the
Fund. The Restructuring contemplates Wellington Management managing
the Legacy Holdings for a period not to exceed two years after the
Effective Date, at which time any Legacy Holdings still held by the
Fund would be turned over to the New Advisers and the Sub-Advisory
Agreement would terminate.
The Board believes it is important to engage Wellington Management as a
temporary sub-adviser because the Fund is presently invested primarily in
securities issued by smaller financial services companies which were chosen and
are overseen by Wellington Management in its current capacity as the Fund's sole
adviser and with respect to which the New Advisers have limited familiarity. The
two-year time limit is designed to give the New Advisers a chance to familiarize
themselves with the remaining Legacy Holdings.
Reasons for the Restructuring Proposals. The Board and New Advisers firmly
believe that increasing investment flexibility is crucial to maximizing
stockholder value and that giving the Fund the capabilities to invest in hedge
funds, including the WHM Hedge Funds gives stockholders maximum flexibility. The
Board and New Advisers also believe that restructuring the Fund so that it can
invest significantly in the WHM Hedge Funds will provide the opportunity for
superior risk-adjusted returns. Finally, the Board and the New Advisers believe
that recent market events including the sub-prime fiasco and the banking, credit
and liquidity crisis, have disproportionately impacted the Fund under its
Concentration Policy, and that the continuation of the Concentration Policy
could expose the Fund to considerable risk and volatility should the financial
services industry take a farther downturn.
Risks and Special Considerations Associated with the Restructuring Proposals.
The Restructuring Proposals will necessarily change the risk profile of the Fund
and stockholders should consider the following risks and special considerations
in determining whether to vote in favor of the Restructuring Proposals or
whether their investment in the Fund is suitable.
Risks Related to Types of Investments and Investment Strategies. Hedge fund
investments selected by the New Advisers (collectively, "Hedge Funds") may
invest and trade in a wide range of instruments and markets and may digress
from their expected investment strategies. Hedge Funds may invest in all
types of securities and financial instruments, including but not limited to
equities, fixed income investments, options, futures, swaps and other
derivatives or derivative transactions ("Derivatives"). Such investments
may be illiquid and highly leveraged, or subject to extreme volatility. In
addition, Hedge Funds may use a wide range of investment techniques. Hedge
Funds are generally not limited in the markets in which they are expected
to invest, or the investment discipline that their managers may employ,
such as value or growth or bottom-up or top-down analysis. Hedge Funds may
use various investment techniques for hedging and non-hedging purposes. A
Hedge Fund may, for example, sell securities short and purchase and sell
options contracts and enter into other Derivatives. The use of these
techniques may be an integral part of a Hedge Fund's investment strategy
and may involve certain risks and result in significant losses. Hedge Funds
may use leverage, which also entails risk.
Hedge Fund Strategy Risk. The Fund will be subject to Hedge Fund strategy
risk. Strategy risk refers to the failure or deterioration of investment or
trading techniques employed within or across strategies, such that some or
all managers employing such techniques may suffer significant losses.
Losses associated with strategy risk may result from excessive
concentration by multiple managers in the same or similar trading
positions. Likewise, broad events or market dislocations, particularly
those accompanied by illiquidity, may adversely affect a wide range of
Hedge Funds in certain strategies. Many of the trading or investment
strategies employed by Hedge Funds are speculative and involve substantial
risks. Specific strategy risks relating to Hedge Fund strategies include,
for example, strategies utilized by managers in the general hedged equity,
event driven, distressed securities, short-selling, opportunistic/macro and
international/emerging markets trading sectors. There can be no assurance
that WHM or other managers of Hedge Funds selected by the New Advisers will
succeed in any of these strategies.
Non-Diversified Status. As a non-diversified investment company, the Fund
is not subject to percentage limitations imposed by the 1940 Act on the
portion of its assets that may be invested in the securities of any one
issuer. Also, there are no requirements under the 1940 Act that the
investments of the Hedge Funds be diversified and the Hedge Funds may, in
some cases, concentrate their investments in a single industry or group of
related industries. As a result, the Fund's investment portfolio may be
subject to greater risk and volatility than if it were subject to the
diversification requirements under the 1940 Act. Presently under the 1940
Act, there are no percentage limitations regarding the level of investment
the Fund can make in Hedge Funds, although new laws or regulations may
change this at any time.
The Fund is, however, subject to certain asset diversification requirements
relating to its tax status as a regulated investment company (a "RIC")
under the Internal Revenue Code (the "Code"). Management of the Fund will
seek to satisfy these asset diversification requirements on a "look
through" basis with respect to the Fund's investments in Hedge Funds, such
that the Fund considers the underlying holdings of those Hedge Funds in
measuring the Fund's diversification for this purpose. Hedge funds are not
generally required to provide current complete holdings information
regarding their investments to their investors (including the Fund). Thus,
the Fund may not be able to determine whether such diversification
requirements have been met on a "look-through" basis.
Lack of Liquidity. The Fund's interests in the Hedge Funds will generally
be illiquid. The Fund may make investments in, or withdrawals from, the
Hedge Funds only at certain times specified in the governing documents of
the Hedge Funds. The Fund will typically be able to dispose of Hedge Fund
interests that it has purchased only on a periodic basis, subject to
advance notice requirements. In addition, Hedge Funds may impose certain
restrictions on withdrawals, such as lock-ups, gates, or suspensions of
withdrawal rights under certain circumstances, during which time the Fund
may not withdraw all or part of its interest in the Hedge Fund, or may
withdraw only by paying a penalty. There may be times when the New Advisers
intend to withdraw all or a portion of the Fund's investment in a Hedge
Fund but cannot immediately do so even when other investors in the Hedge
Fund are able to withdraw.
Fluctuations in Value. Since the New Advisers anticipate initially
investing 50% of the Fund's assets in Hedge Funds, the value of the Fund's
net assets will fluctuate significantly based on the fluctuation in the
value of the Hedge Funds in which it invests. To the extent that the
portfolio of a Hedge Fund is concentrated in securities of a single issuer
or issuers in a single industry or market, the risk of the Fund's
investment in that Hedge Fund will be increased. Hedge Funds may be more
likely than other types of funds to engage in the use of leverage, short
sales and Derivatives. A Hedge Fund's use of such transactions is likely to
cause the value of the Fund's portfolio to appreciate or depreciate at a
greater rate than if such techniques were not used. The investment
environment in which the Hedge Funds invest may be influenced by, among
other things, interest rates, inflation, politics, fiscal policy, current
events, competition, productivity, technological and regulatory change.
Multiple Fees and Expenses. As discussed below under "Advisory Agreements",
the New Advisers will be paid an asset-based fee (i.e., the Proposed Fee
(described below)) on the Managed Assets (described below) including any
investments in Hedge Funds. In addition, Hedge Fund managers typically are
paid an asset-based fee in the range of 1.00% to 2.00% of total assets.
Moreover, Hedge Fund managers typically are paid performance-based fees in
the range of 20% of profits with respect to annual gains generated in their
Hedge Funds. Thus, under the Restructuring, there is the potential for
multiple advisory fees to be paid and consequently advisory-related fees
could be significantly higher, especially when there are net gains in the
Hedge Fund. However, as described below, the New Advisers have agreed to
waive their fees in an amount equal to up to 1.00% of the Fund's assets
invested in a WHM Fund to offset any asset-based fees (but not any
performance-based fees) paid to WHM with respect to the Fund's assets. In
any event, an investor in the Fund may be subject to higher operating
expenses than otherwise if invested in another closed-end fund with a
different investment focus.
The receipt of a performance-based fee by a Hedge Fund manager may create
an incentive for the manager to make investments that are riskier or more
speculative than those that might have been made in the absence of such
fees. Further, because a performance-based fee will generally be calculated
on a basis that includes unrealized appreciation of the Fund's assets, such
fee may be greater than if it were based solely on realized gains. In
addition, a Hedge Fund manager will receive any performance-based fee to
which it is entitled, irrespective of the performance of the other Hedge
Funds in the Fund generally. Thus, a Hedge Fund manager with positive
performance may receive compensation from the Fund even if the Fund's
overall returns are negative.
Concentration. If the shareholders of the Fund approve Proposal 4, which
would remove the Concentration Policy, the Fund would intend not to
concentrate, or invest 25% or more of the value of its total assets in the
securities (other than U.S. Government securities) of issuers engaged in a
single industry or group of related industries (but the Fund may and
intends to invest 25% or more of the value of its total assets in Hedge
Funds). Hedge Funds generally are not subject to similar industry
concentration restrictions on their investments and, in some cases, may
invest 25% or more of the value of their total assets in a single industry
or group of related industries. It is possible that, at any given time, the
assets of Hedge Funds in which the Fund has invested will have investments
in a single industry or group of related industries that when combined with
the direct holdings of the Fund in the same industry or group of industries
might constitute 25% or more of the value of the Fund's total assets.
Because these circumstances may arise, the Fund is subject to greater
investment risk to the extent that a significant portion of its assets may
at some times be invested, directly or indirectly through Hedge Funds in
which it invests, in the securities of issuers engaged in similar
businesses that are likely to be affected by the same market conditions and
other industry-specific risk factors. Hedge Funds are not generally
required to provide current information regarding their investments to
their investors (including the Fund). Thus, the Fund and the New Advisers
may not be able to determine at any given time whether or the extent to
which Hedge Funds, in the aggregate, have invested 25% or more of their
combined assets in any particular industry or group of related industries.
If the shareholders of the Fund approve the Restructuring, including
Proposal 4, the Fund would likely be concentrated in the securities of
financial services companies immediately following the Effective Date, as a
result of the current effectiveness of the Concentration Policy. However,
the New Advisers would seek to reduce the Fund's holdings in financial
services companies to below 25% of the Fund's assets in a prompt and
prudent manner possible.
Duplicative Transaction Costs. Hedge Fund managers make the investment
decisions of their Hedge Funds independently of each other. Consequently,
at any particular time, one Hedge Fund may be purchasing interests in an
issuer that at the same time are being sold by another Hedge Fund.
Investing by the Hedge Funds in this manner will cause the Fund to
indirectly incur certain transaction costs without accomplishing any net
investment result. Similarly, Wellington Management , in its management of
the Legacy Holding or the New Advisers in managing non-Hedge Fund
investments, may be selling interests in an issuer that at the same time
are being purchased by another Hedge Fund, again causing the Fund to
indirectly incur certain transaction costs without accomplishing any net
investment results.
Hedge Funds Not Registered. The Hedge Funds generally will not be
registered as investment companies under the 1940 Act and the Fund, as an
investor in these Hedge Funds, will not have the benefit of the protections
afforded by the 1940 Act to investors in registered investment companies.
Although the New Advisers will periodically receive information from each
Hedge Fund regarding its investment performance and investment strategy,
the New Advisers may have little or no means of independently verifying
this information. Hedge Funds are not contractually or otherwise obligated
to inform their investors, including the Fund, of details surrounding
proprietary investment strategies. In addition, the Fund and the New
Advisers will have no control over the Hedge Funds' investment management,
brokerage, custodial arrangements or operations and must rely on the
experience and competency of each Hedge Fund manager in these areas.
Special Tax Risks. The Fund has elected to, and intends to meet the
requirements necessary to, qualify as a "regulated investment company" or
"RIC" under Subchapter M of the Code. As such, the Fund must satisfy, among
other requirements, certain ongoing asset diversification, source-of-income
and annual distribution requirements. Each of these ongoing requirements
for qualification for the favorable tax treatment available to RICs
requires that the Fund obtain information from the Hedge Funds in which the
Fund is invested. Management of the Fund will seek to satisfy the asset
diversification requirements on a "look through" basis with respect to the
Fund's investments in Hedge Funds, such that the Fund considers the
underlying holdings of those Hedge Funds in measuring the Fund's
diversification for this purpose.
If before the end of any quarter of its taxable year, the Fund believes
that it may fail the asset diversification requirement, the Fund may seek
to take certain actions to avert such a failure. The Fund may try to
acquire additional interests in Hedge Funds to bring itself into compliance
with the asset diversification test. However, the action frequently taken
by RICs to avert such a failure, the disposition of non-diversified assets,
may be difficult for the Fund to pursue because the Fund may redeem its
interest in a Hedge Fund only at certain times specified by the governing
documents of each respective Hedge Fund. While relevant provisions also
afford the Fund a 30-day period after the end of the relevant quarter in
which to cure a diversification failure by disposing of non-diversified
assets, the constraints on the Fund's ability to effect a redemption from a
Hedge Fund referred to above may limit utilization of this cure period.
If the Fund fails to satisfy the asset diversification or other RIC
requirements, it may lose its status as a RIC under the Code. In that case,
all of its taxable income would be subject to U.S. federal income tax at
regular corporate rates without any deduction for distributions to the
Fund's stockholders. In addition, all distributions (including
distributions of net capital gain) would be taxed to their recipients as
dividend income to the extent of the Fund's current and accumulated
earnings and profits. Accordingly, disqualification as a RIC would have a
material adverse effect on the value of the Fund's shares and the amount of
the Fund's distributions.
Investments by Hedge Funds.
Equity Securities. Hedge Funds may hold long and short positions in
common stocks, preferred stocks and convertible securities of U.S. and
non-U.S. issuers. Hedge Funds also may invest in depositary receipts
or shares relating to non-U.S. securities. Equity securities fluctuate
in value, often based on factors unrelated to the fundamental economic
condition of the issuer of the securities, including general economic
and market conditions, and these fluctuations can be pronounced. Hedge
Funds may purchase securities in all available securities trading
markets and may invest in equity securities without restriction as to
market capitalization.
Leverage. Some or all of the Hedge Funds may make margin purchases of
securities and, in connection with these purchases, borrow money from
brokers and banks for investment purposes. This practice, which is
known as "leverage," is speculative and involves certain risks.
Although the New Advisers do not currently anticipate that the Fund
will engage directly in leveraging, the Fund is permitted to deploy
leverage and other investment companies managed by BIA and SIA are
leveraged. So, it is likely that, eventually, the Fund will deploy
leverage, but only to the extent permitted by the 1940 Act.
Trading equity securities on margin involves an initial cash
requirement representing at least a percentage of the underlying
security's value. Borrowings to purchase equity securities are
typically secured by the pledge of those securities. Hedge Funds may
also finance securities purchases through the use of reverse
repurchase agreements with banks, brokers and other financial
institutions. Although leverage will increase investment returns if a
Hedge Fund earns a greater return on the investments purchased with
borrowed funds than it pays for the use of those funds, the use of
leverage will decrease the return on an Hedge Fund if the Hedge Fund
fails to earn as much on investments purchased with borrowed funds as
it pays for the use of those funds. The use of leverage will in this
way magnify the volatility of changes in the value of an investment in
the Hedge Funds. In the event that a Hedge Fund's equity or debt
instruments decline in value, the Hedge Fund could be subject to a
"margin call" or "collateral call," under which the Hedge Fund must
either deposit additional collateral with the lender or suffer
mandatory liquidation of the pledged securities to compensate for the
decline in value. In the event of a sudden, precipitous drop in value
of a Hedge Fund's assets, the Hedge Fund might not be able to
liquidate assets quickly enough to pay off its borrowing. Money
borrowed for leveraging will be subject to interest costs that may or
may not be recovered by return on the securities purchased. Hedge
Funds may be required to maintain minimum average balances in
connection with its borrowings or to pay a commitment or other fee to
maintain a line of credit; either of these requirements would increase
the cost of borrowing over the stated interest rate.
Section 18 of the 1940 Act requires a registered investment company
such as the Fund to satisfy certain asset coverage requirements
relative to its indebtedness. This limit is not expected to apply to
any of the Hedge Funds in which the Fund intends to invest so the
Fund's portfolio may be exposed to the risk of highly leveraged
investment programs of certain Hedge Funds and thus increase the
volatility of the Fund's investment. In seeking "leveraged" market
exposure in certain investments and in attempting to increase overall
returns, a Hedge Fund may purchase options and other synthetic
instruments that do not constitute "indebtedness" for purposes of the
1940 Act but may nevertheless involve significant economic leverage
and may, in some cases, involve significant risks of loss.
Short Sales. A Hedge Fund may attempt to limit its exposure to a
possible market decline in the value of its portfolio securities
through short sales of securities that its manager believes possess
volatility characteristics similar to those being hedged. A Hedge Fund
may also use short sales for non-hedging purposes to pursue its
investment objectives if, in the manager's view, the security is
over-valued in relation to the issuer's prospects for earnings growth.
Short selling is speculative in nature and, in certain circumstances,
can substantially increase the effect of adverse price movements on a
Hedge Fund's portfolio. A short sale of a security involves the risk
of an unlimited increase in the market price of the security that can
in turn result in an inability to cover the short position and a
theoretically unlimited loss. There can be no assurance that
securities necessary to cover a Hedge Fund's short position will be
available for purchase.
A Hedge Fund may make "short sales against-the-box," in which it will
sell short securities it owns or has the right to obtain without
payment of additional consideration. If a Hedge Fund makes a short
sale against-the-box, it will be required to set aside securities
equivalent in kind and amount to the securities sold short (or
securities convertible or exchangeable into those securities) and will
be required to hold those securities while the short sale is
outstanding. A Hedge Fund will incur transaction costs, including
interest expenses, in connection with initiating, maintaining and
closing out short sales against-the-box.
Special Investment Instruments and Techniques. Hedge Funds may utilize
a variety of special investment instruments and techniques described
below to hedge the portfolios of the Hedge Funds against various
risks, such as changes in interest rates or other factors that affect
security values, or for non-hedging purposes in seeking to achieve a
Hedge Fund's investment objective. The New Advisers, on behalf of the
Fund, may also use these special investment instruments and techniques
for either hedging or non-hedging purposes. These strategies may be
executed through Derivatives. The instruments used and the particular
manner in which they are used may change over time as new instruments
and techniques are developed or regulatory changes occur. Certain of
these special investment instruments and techniques are speculative
and involve a high degree of risk, particularly in the context of
non-hedging transactions.
o Derivatives. Hedge Funds may invest in, or enter into, Derivatives.
Derivatives are financial instruments that derive their performance,
at least in part, from the performance of an underlying asset, index
or interest rate. Derivatives entered into by a Hedge Fund can be
volatile and involve various types and degrees of risk, depending upon
the characteristics of a particular Derivative and the portfolio of
the Hedge Fund as a whole. Derivatives permit a manager to increase or
decrease the level of risk of an investment portfolio, or change the
character of the risk, to which an investment portfolio is exposed in
much the same way as the manager can increase or decrease the level of
risk, or change the character of the risk, of an investment portfolio
by making investments in specific securities. Derivatives may entail
investment exposures that are greater than their cost would suggest,
meaning that a small investment in Derivatives could have a large
potential effect on performance of a Hedge Fund. The Hedge Fund
manager's use of Derivatives may include total return swaps, options
and futures designed to replicate the performance of a particular
Hedge Fund or to adjust market or risk exposure. If a Hedge Fund
invests in Derivatives at inopportune times or incorrectly judges
market conditions, the investments may lower the return of the Hedge
Fund or result in a loss. A Hedge Fund also could experience losses if
Derivatives are poorly correlated with its other investments, or if
the Hedge Fund is unable to liquidate the position because of an
illiquid secondary market. The market for many Derivatives is, or
suddenly can become, illiquid. Changes in liquidity may result in
significant, rapid and unpredictable changes in the prices for
Derivatives.
o Options and Futures. Hedge Funds may utilize options and futures
contracts and so-called "synthetic" options or other Derivatives
written by broker-dealers or other permissible financial
intermediaries. Options transactions may be effected on securities
exchanges or in the over-the-counter market. When options are
purchased over-the-counter, the Hedge Fund's portfolio bears the risk
that the counterparty that wrote the option will be unable or
unwilling to perform its obligations under the option contract.
Options may also be illiquid and, in such cases, the Hedge Fund may
have difficulty closing out its position. Over-the-counter options
also may include options on baskets of specific securities. Hedge
Funds may purchase call and put options on specific securities, and
may write and sell covered or uncovered call and put options for
hedging purposes in pursuing the investment objectives of the Hedge
Funds. A put option gives the purchaser of the option the right to
sell, and obligates the writer to buy, the underlying security at a
stated exercise price, typically at any time prior to the expiration
of the option. A call option gives the purchaser of the option the
right to buy, and obligates the writer to sell, the underlying
security at a stated exercise price, typically at any time prior to
the expiration of the option. A covered call option is a call option
with respect to which the seller of the option owns the underlying
security. The sale of such an option exposes the seller during the
term of the option to possible loss of opportunity to realize
appreciation in the market price of the underlying security or to
possible continued holding of a security that might otherwise have
been sold to protect against depreciation in the market price of the
security. A covered put option is a put option with respect to which
cash or liquid securities have been placed in a segregated account on
the books of or with a custodian to fulfill the obligation undertaken.
The sale of such an option exposes the seller during the term of the
option to a decline in price of the underlying security while
depriving the seller of the opportunity to invest the segregated
assets.
A Hedge Fund may close out a position when writing an option by
purchasing an option on the same security with the same exercise price
and expiration date as the option that it has previously written on
the security. In such a case, the Hedge Fund will realize a profit or
loss if the amount paid to purchase an option is less or more than the
amount received from the sale of the option.
Hedge Funds may enter into futures contracts in U.S. markets or on
exchanges located outside the United States. Non-U.S. markets may
offer advantages such as trading opportunities or arbitrage
possibilities not available in the United States. Non-U.S. markets,
however, may have greater risk potential than U.S. markets. For
example, some non-U.S. exchanges are principal markets in which no
common clearing facility exists and an investor may look only to the
broker for performance of the contract. In addition, any profits
realized could be eliminated by adverse changes in the exchange rate,
and the Fund or a Hedge Fund could incur losses as a result of those
changes. Transactions on non-U.S. exchanges may include both
commodities that are traded on U.S. exchanges and those that are not.
Unlike trading on U.S. commodity exchanges, trading on non-U.S.
commodity exchanges is not regulated by the U.S. Commodity Futures
Trading Commission.
Engaging in transactions in futures contracts involves risk of loss to
the Fund or the Hedge Fund that could adversely affect the value of
the Hedge Fund's and the Fund's net assets. There can be no assurance
that a liquid market will exist for any particular futures contract at
any particular time. Many futures exchanges and boards of trade limit
the amount of fluctuation permitted in futures contract prices during
a single trading day. Once the daily limit has been reached in a
particular contract, no trades may be made that day at a price beyond
that limit or trading may be suspended for specified periods during
the trading day. Futures contract prices could move to the limit for
several consecutive trading days with little or no trading, preventing
prompt liquidation of futures positions and potentially subjecting the
Fund or the Hedge Funds to substantial losses. Successful use of
futures also is subject to the New Advisers' or a Hedge Fund manager's
ability to predict correctly movements in the direction of the
relevant market, and, to the extent the transaction is entered into
for hedging purposes, to determine the appropriate correlation between
the transaction being hedged and the price movements of the futures
contract.
Positions of the SEC and its staff may require the Hedge Fund managers
to segregate permissible liquid assets in connection with their
options and commodities transactions in amounts generally equal to the
value of the underlying option or commodity. The segregation of these
assets will have the effect of limiting the manager's ability
otherwise to invest those assets. While the Hedge Funds may engage in
transactions involving options and commodities, the Fund will not
directly engage in, nor will it segregate assets in connection with,
such transactions.
o Call and Put Options on Securities Indices. Hedge Funds may purchase
and sell call and put options on stock indices listed on national
securities exchanges or traded in the over-the-counter market for
hedging purposes and non-hedging purposes in seeking to achieve the
investment objectives of the Hedge Funds. A stock index fluctuates
with changes in the market values of the stocks included in the index.
Successful use of options on stock indexes will be subject to the
Hedge Fund manager's ability to predict correctly movements in the
direction of the stock market generally or of a particular industry or
market segment, which requires different skills and techniques from
those involved in predicting changes in the price of individual
stocks.
o Warrants and Rights. Hedge Funds may invest in warrants and rights.
Warrants and rights may be purchased separately or may be received as
part of a unit or attached to securities purchased. Warrants are
Derivatives that permit, but do not obligate, their holders to
subscribe for other securities or commodities. Rights are similar to
warrants, but normally have shorter durations and are offered or
distributed to shareholders of a company. Warrants and rights do not
carry with them the right to dividends or voting rights with respect
to the securities that they entitle the holder to purchase, and they
do not represent any interest in the assets of the issuer. As a
result, warrants and rights may be more speculative than certain other
types of equity-like securities. In addition, the values of warrants
and rights do not necessarily change with the values of the underlying
securities or commodities and these instruments cease to have value if
they are not exercised prior to their expiration dates.
o Swap Agreements. Hedge Funds may enter into equity, interest rate,
index and currency rate swap agreements in order to obtain a
particular return when it is desirable to do so, possibly at a lower
cost than if the Hedge Fund had invested directly in the asset that
yielded the desired return. Swap agreements are two-party contracts
entered into primarily by institutional investors for periods ranging
from a few weeks to more than a year. In a standard swap transaction,
two parties agree to exchange the returns (or differentials in rates
of return) earned or realized on particular predetermined investments
or instruments, which may be adjusted for an interest factor. The
gross returns to be exchanged or "swapped" between the parties are
generally calculated with respect to a "notional amount," that is, the
return on or increase in value of a particular dollar amount invested
at a particular interest rate, in a particular non-U.S. currency, or
in a "basket" of securities representing a particular index. Most swap
agreements entered into by a Hedge Fund would require the calculation
of the obligations of the parties to the agreements on a "net basis."
Consequently, current obligations (or rights) under a swap agreement
generally will be equal only to the net amount to be paid or received
under the agreement based on the relative values of the positions held
by each party to the agreement (the "net amount"). The risk of loss
with respect to swaps is limited to the net amount of interest
payments that the Hedge Fund is contractually obligated to make. If
the other party to a swap defaults, the Hedge Fund's risk of loss
consists of the net amount of payments that the Hedge Fund
contractually is entitled to receive.
o Lending Portfolio Securities. Hedge Funds may lend their securities to
brokers, dealers and other financial institutions seeking to borrow
securities to complete certain transactions. The lending Hedge Fund
remains entitled to payments in amounts equal to the interest,
dividends or other distributions payable in respect of the loaned
securities, which affords the Hedge Fund an opportunity to earn
interest on the amount of the loan and on the loaned securities'
collateral. In connection with any such transaction, the Hedge Fund
will receive collateral consisting of cash, U.S. Government securities
or irrevocable letters of credit that will be maintained at all times
in an amount equal to at least 100% of the current market value of the
loaned securities. A Hedge Fund may experience loss if the institution
with which the Hedge Fund has engaged in a portfolio loan transaction
breaches its agreement with the Hedge Fund.
o When-Issued and Forward Commitment Securities. Hedge Funds may
purchase securities on a "when-issued" basis and may purchase or sell
securities on a "forward commitment" basis in order to hedge against
anticipated changes in interest rates and prices. These transactions
involve a commitment by a Hedge Fund to purchase or sell securities at
a future date (ordinarily one or two months later). The price of the
underlying securities, which is generally expressed in terms of yield,
is fixed at the time the commitment is made, but delivery and payment
for the securities takes place at a later date. No income accrues on
securities that have been purchased pursuant to a forward commitment
or on a when-issued basis prior to delivery to the Hedge Fund.
When-issued securities and forward commitments may be sold prior to
the settlement date. If a Hedge Fund disposes of the right to acquire
a when-issued security prior to its acquisition or disposes of its
right to deliver or receive against a forward commitment, it may incur
a gain or loss. The risk exists that securities purchased on a
when-issued basis may not be delivered and that the purchaser of
securities sold by a Hedge Fund on a forward basis will not honor its
purchase obligation. In such cases, a Hedge Fund may incur a loss.
Restricted and Illiquid Investments. A Hedge Fund may invest a
portion of the value of its total assets in restricted securities
and other investments that are illiquid. The Fund may likewise,
without limitation, invest in such securities and investments.
The Hedge Funds in which the Fund invests will themselves
generally be illiquid. Restricted securities are securities that
may not be sold to the public without an effective registration
statement under the Securities Act of 1933 (the "Securities Act")
or that may be sold only in a privately negotiated transaction or
pursuant to an exemption from registration. When registration is
required to sell a security, a Hedge Fund may be obligated to pay
all or part of the registration expenses, and a considerable
period may elapse between the decision to sell and the time the
Hedge Fund may be permitted to sell a security under an effective
registration statement. If adverse market conditions were to
develop during this period, a Hedge Fund might obtain a less
favorable price than the price that prevailed when the Hedge Fund
decided to sell. Hedge Funds may be unable to sell restricted and
other illiquid securities at the most opportune times or at
prices approximating the value at which they purchased the
securities.
o Counterparty Credit Risk. The markets in which the Hedge Funds effect
their transactions may be "over-the-counter" or "interdealer" markets.
The participants in these markets are typically not subject to credit
evaluation and regulatory oversight as are members of "exchange based"
markets. To the extent a Hedge Fund invests in swaps, Derivatives or
synthetic instruments, or other over-the-counter transactions in these
markets, the Hedge Fund may take a credit risk with regard to parties
with which it trades and also may bear the risk of settlement default.
These risks may differ materially from those involved in
exchange-traded transactions, which generally are characterized by
clearing organization guarantees, daily marking-to-market and
settlement, and segregation and minimum capital requirements
applicable to intermediaries. Transactions entered into directly
between two counterparties generally do not benefit from these
protections, which in turn may subject the Hedge Fund to the risk that
a counterparty will not settle a transaction in accordance with its
terms and conditions because of a dispute over the terms of the
contract or because of a credit or liquidity problem. Such
"counterparty risk" is increased for contracts with longer maturities
when events may intervene to prevent settlement. The ability of the
Hedge Funds to transact business with any one or any number of
counterparties, the lack of any independent evaluation of the
counterparties or their financial capabilities, and the absence of a
regulated market to facilitate settlement, may increase the potential
for losses by the Fund.
o Control Positions. Hedge Funds may take control positions in
companies. The exercise of control over a company imposes additional
risks of liability for environmental damage, product defects, failure
to supervise and other types of liability related to business
operations. In addition, the act of taking a control position, or
seeking to take such a position, may itself subject a Hedge Fund to
litigation by parties interested in blocking it from taking that
position. If those liabilities were to arise, or such litigation were
to be resolved adverse to the Hedge Funds, the investing Hedge Funds
likely would suffer losses on their investments.
Risks of Fund of Hedge Funds Structure. Since, under the Restructuring, a
substantial portion of the Fund will be invested in Hedge Funds,
stockholders should be aware of the principal risks that relate to the
"fund of hedge funds" investment approach:
o Hedge Funds Not Registered. The Hedge Funds generally will not be
registered as investment companies under the 1940 Act. The Fund, as an
investor in these Hedge Funds, will not have the benefit of the
protections afforded by the 1940 Act to investors in registered
investment companies. Although the New Advisers will receive
information from each Hedge Fund regarding its investment performance
and investment strategy, they may have little or no means of
independently verifying this information. A Hedge Fund may use
proprietary investment strategies that are not fully disclosed to the
New Advisers, which may involve risks under some market conditions
that are not anticipated by the New Advisers. The performance of the
Fund depends on the success of the New Advisers in selecting Hedge
Funds for investment by the Fund and the allocation and reallocation
of Fund assets among those funds.
o Availability of Information. For the Fund to complete its tax
reporting requirements and for the Fund to provide an audited annual
report to its stockholders, it must receive timely information from
the Hedge Funds. A Hedge Fund's delay in providing this information
could delay the Fund's preparation of tax information for investors.
The lack of available information also could impact the Fund's
compliance monitoring abilities with respect to, among other things,
industry concentration, valuation of Hedge Fund's interest and tax
diversification requirements.
o Multiple Levels of Fees and Expenses; Duplicative Transaction Costs.
An investor in the Fund meeting the eligibility conditions imposed by
the Hedge Funds may be able to invest directly in the Hedge Funds. By
investing in the Hedge Funds indirectly through the Fund, an investor
bears a portion of the Proposed Fee, administration and other expenses
at the Fund level. This layering of fees often occurs in fund-of-funds
or fund-of-hedge-funds structures.
Each Hedge Fund manager will receive any performance-based fees to
which it is entitled irrespective of the performance of the other
Hedge Fund managers and the Fund generally. As a result, a manager
with positive performance may receive compensation from the Hedge
Fund, and thus indirectly from the Fund and its stockholders, even if
the Fund's overall returns are negative. Generally, asset-based fees
payable to Hedge Fund managers will range from 1.00% to 2.00%
(annualized) of the net asset value of the Fund's investment in the
Hedge Fund, and performance-based fees will generally range from 10%
to 25% of the Fund's share of the net profits earned by the Hedge
Fund. In addition, Hedge Fund managers make investment decisions of
the Hedge Funds independently of each other so that, at any particular
time, one Hedge Fund may be purchasing shares of an issuer whose
shares are being sold at the same time by another Hedge Fund.
Investing by Hedge Funds in this manner will cause the Fund to
indirectly incur certain transaction costs without accomplishing any
net investment result.
o Hedge Fund Interests Generally Illiquid. The Fund may make investments
in, or withdrawals from, the Hedge Funds only at certain times
specified in the governing documents of the Hedge Funds. The Fund will
typically be able to dispose of Hedge Fund interests that it has
purchased only on a periodic basis such as monthly, quarterly,
semi-annually or over longer periods with specified advance notice
requirements and, if adverse market conditions were to develop during
any period in which the Fund is unable to sell Hedge Fund interests,
the Fund might obtain a less favorable price than that which prevailed
when it decided to buy or sell. In addition, Hedge Funds may impose
certain restrictions on withdrawals, such as lock-ups, gates, or
suspensions of withdrawal rights under certain circumstances, during
which time the Fund may not withdraw all or part of its interest in
the Hedge Fund, or may withdraw only by paying a penalty.
Some of the Hedge Funds may hold portions of their investments, in
particular investments that are illiquid, in so-called designated
investments or side pockets. Side pockets are sub-funds within the
Hedge Funds that create a structure to invest in illiquid securities
and are valued independently from the general portfolio with distinct
allocation, distribution and redemption terms. Their liquidation
generally occurs over a much longer period than that applicable to the
Hedge Funds' general portfolio. Were the Fund to seek to liquidate its
investment in a Hedge Fund which maintains some of its investments in
a side pocket, the Fund might not be able to fully liquidate its
investment without delay, which could be considerable. During the
period until the Fund fully liquidated its interest in the Hedge Fund,
the value of its investment would fluctuate.
There may be times when the New Advisers intend to withdraw all or a
portion of the Fund's investment in a Hedge Fund but cannot
immediately do so even when other investors in the Hedge Fund are able
to withdraw.
o In-Kind Distributions by Hedge Funds. Hedge Funds may be permitted by
their governing documents to distribute securities in kind to
investors, including the Fund. The Fund expects that in the event of
an in-kind distribution, it will typically receive securities that are
illiquid or difficult to value. In such circumstances, the New
Advisers would seek to dispose of these securities in a manner that is
in the best interest of the Fund. However, the New Advisers may not be
able to dispose of these securities at favorable prices or at all,
which would have an adverse effect on the Fund's performance, or at
favorable times, which may adversely affect the Fund's ability to make
other investments.
o Involuntary Redemptions by Hedge Funds. Hedge Funds are generally
permitted by their governing documents to force a redemption by
investors for different reasons, including to maintain a statutory
exemption or comply with regulatory requirements. If a Hedge Fund
forces a redemption of all or a part of the Fund's investment, it
could trigger adverse tax consequences, and additional transaction
costs to reposition the Fund's portfolio.
o Valuation. Certain securities in which the Hedge Funds invest may not
have readily ascertainable market prices and will be valued by the
Hedge Fund managers. Although the New Advisers will conduct a due
diligence review of the valuation methodology utilized by the Hedge
Funds and will monitor all Hedge Funds and compare their monthly
results with those of peer hedge fund managers, the valuations
provided generally will be conclusive with respect to the Fund unless
the Fund has a clearly discernible reason not to trust the accuracy of
such valuations. Reliance upon such valuations will occur even though
a Hedge Fund manager may face a conflict of interest in valuing the
securities, as their value will affect the manager's compensation. The
New Advisers are required to consider all relevant information
available at the time the Fund values its portfolio. However, in most
cases, the New Advisers will have limited ability to confirm
independently the accuracy of the valuations received from a Hedge
Fund because the advisers do not generally have access to all
necessary financial, underlying portfolio holdings and valuation of
the underlying holdings, and other information relating to the Hedge
Funds to determine independently the Hedge Funds' net asset values. In
addition, Hedge Fund performance and valuation data are available
typically only on a monthly basis. Thus, a significant component of
the Fund's portfolio will not be valued on a weekly basis as it has
been historically. This could result in potentially volatile swings in
the Fund's month-to-month calculation of NAV.
o Securities Believed to Be Undervalued or Incorrectly Valued.
Securities that a Hedge Fund manager believes are fundamentally
undervalued or incorrectly valued may not ultimately be valued in the
capital markets at prices and/or within the time frame the manager
anticipates.
o Dilution. If a Hedge Fund manager limits the amount of capital that
may be contributed to a Hedge Fund from the Fund, or if the Fund
declines to purchase additional interests in a Hedge Fund, continued
sales of interests in the Hedge Fund to others may dilute the returns
for the Fund from the Hedge Fund.
o Investments in Non-Voting Stock. The Fund may elect to hold its
interest in a Hedge Fund in non-voting form. Additionally, the Fund
may choose to limit the amount of voting securities it holds in any
particular Hedge Fund and may, as a result, hold substantial amounts
of non-voting securities in a particular Hedge Fund. To the extent the
Fund holds non-voting securities of a Hedge Fund, it will not be able
to vote on matters that require the approval of the investors in the
Hedge Fund. This restriction could diminish the influence of the Fund
in a Hedge Fund and adversely affect its investment in the Hedge Fund,
which could result in unpredictable and potentially adverse effects on
the Fund and stockholders.
o Hedge Funds' Turnover Rates. The Hedge Funds may invest on the basis
of short-term market considerations. The turnover rate within the
Hedge Funds may be significant, potentially involving substantial
brokerage commissions and fees. The Fund has no control over this
turnover. As a result, it is anticipated that a significant portion of
the Fund's income and gains, if any, may be derived from ordinary
income and short-term capital gains. In addition, the redemption by
the Fund of its interest in a Hedge Fund could involve expenses to the
Fund under the terms of the Fund's investment with that Hedge Fund.
o Misconduct by Managers. There is a risk of misconduct by Hedge Fund
managers. When the New Advisers invest the Fund's assets with a Hedge
Fund manager, the Fund does not have custody of the assets or control
over their investment. Therefore, there is always the risk that the
manager could divert or abscond with the assets, inaccurately or
fraudulently report the Hedge Fund's value, fail to follow agreed upon
investment strategies, provide false reports of operations, or engage
in other misconduct. The Hedge Fund managers with whom the New
Advisers invest the Fund's assets are generally private and have not
registered their securities under federal or state securities laws.
This lack of registration, with the attendant lack of regulatory
oversight, may enhance the risk of misconduct by Hedge Fund managers.
There also is a risk that governmental or other authorities may take
regulatory actions against Hedge Fund managers, which may expose
investors such as the Fund, which have placed assets with such
managers, to losses.
o Custody Risk. Custody of the Fund's assets will be held in accordance
with the requirements of Section 17(f) of the 1940 Act and the rules
thereunder, which require, among other things, that such assets be
held by certain qualified banks or companies and in compliance with
certain specified conditions. However, the Hedge Funds are not
required to, and may not, hold custody of their assets in accordance
with those requirements. As a result, bankruptcy or fraud at
institutions, such as brokerage firms, banks, or administrators, into
whose custody those Hedge Funds have placed their assets could impair
the operational capabilities or the capital position of the Hedge
Funds and may, in turn, have an adverse impact on the Fund.
o Litigation and Enforcement Risk. Hedge Fund managers might accumulate
substantial positions in the securities of a specific company and
engage in a proxy fight, become involved in litigation or attempt to
gain control of a company. Under such circumstances, the Fund
conceivably could be named as a defendant in a lawsuit or regulatory
action. There have been a number of widely reported instances of
violations of securities laws through the misuse of confidential
information, diverting or absconding with Hedge Fund assets, falsely
reporting Hedge Fund values and performance, and other violations of
the securities laws. Such violations may result in substantial
liabilities for damages caused to others, for the disgorgement of
profits realized and for penalties. Investigations and enforcement
proceedings are ongoing, and it is possible that the hedge fund
managers may be charged with involvement in such violations. If that
were the case with respect to the Hedge Fund managers, the performance
records of the managers would be misleading. Furthermore, if the
entity in which the Fund invested engaged in such violations, the Fund
could be exposed to losses.
o Regulatory Change. The regulation of the U.S. and non-U.S. securities
and futures markets and Hedge Funds and investment companies like the
Fund has undergone substantial change in the recent years, and such
change is expected to continue for the foreseeable future. For
example, the regulatory and tax environment for Derivatives in which
Hedge Funds may participate is evolving, and changes in the regulation
or taxation of Derivatives may materially adversely affect the value
of the Derivatives held by the Hedge Funds and the ability of the
Hedge Funds to pursue their trading strategies. Similarly, the
regulatory environment for leveraged investors and for hedge funds
generally is evolving, and potential regulatory constraints on short
selling may occur. The effect of regulatory change on the Fund, while
impossible to predict, could be substantial and adverse.
o Lack of Transparency. Hedge Funds may, consistent with applicable law,
not disclose the contents of their portfolios. This lack of
transparency may cause the Fund to be unable to determine the levels
of ownership in certain asset classes in the Hedge Funds.
The New Advisers.
Rocky Mountain Advisers, LLC. RMA was formed on September 5, 2008 as an Alaska
single-member limited liability company owned by the Susan L. Ciciora Trust (a
Horejsi Affiliate and private family trust domiciled in Alaska). RMA is
registered as an investment adviser under the Investment Advisers Act of 1940
(the "Advisers Act"). Although RMA is a newly formed LLC with no operating
history, it has identical principals, officers, staff, and portfolio managers as
Boulder Investment Advisers, LLC ("BIA"). BIA currently provides investment
advisory services to three other closed-end investment companies: Boulder Total
Return Fund, Inc. (NYSE:BTF), Boulder Growth & Income Fund, Inc. (NYSE:BIF), and
The Denali Fund Inc. (NYSE:DNY) (together, the "Boulder Funds"). RMA's principal
offices are located at 2344 Spruce Street, Suite A, Boulder, Colorado 80302. The
Susan L. Ciciora Trust is an "affiliated person" of the Fund (as that term is
defined in the 1940 Act). The executive officers of RMA and the principal
occupation of each are set forth in the table below:
------------------------------------------------- ---------------------------------------------------------
Name and Position with RMA Principal Occupation
================================================= =========================================================
Stephen C. Miller - President, General Counsel Manager (since 1999), FAS; Vice President (since
and Chief Executive Officer 1996), SIA; President (since 2002), BIF; President
(since 1999), BTF; President (since 2003), the Fund;
President (since 2007), DNY; Chief Compliance Officer
(2004-2007), BTF, BIF, the Fund, FAS, BIA, and SIA;
President and General Counsel, Horejsi, Inc. (liquidated
in 1999); General Counsel, Brown Welding Supply, LLC
(sold in 1999); Of Counsel (since 1991) to Krassa &
Miller, LLC; Manager and President, Badlands Trust
Company, LLC (dissolved in 2008); Vice President and
Director (since 2008), Alaska Trust Company.
Carl D. Johns - Investment Manager, Vice Vice President and Treasurer (since 1999), BIA;
President and Treasurer Assistant Manager (since 1999), FAS; Chief Financial
Officer, Chief Accounting Officer, Vice President and
Treasurer, BTF, BIF, FF and DNY.
Laura Rhodenbaugh - Secretary Secretary/Treasurer (since 1999), FAS; Treasurer (since
1996), SIA; Secretary and Treasurer, various Horejsi
Affiliates.
Stewart R. Horejsi - Senior Investment Manager Senior investment manager, RMA, BIA and SIA.
------------------------------------------------- ---------------------------------------------------------
Carl D. Johns, the Vice President and Treasurer of RMA, is also presently the
Fund's Chief Financial Officer, Chief Accounting Officer, Vice President and
Treasurer. Together with Stewart R. Horejsi, Mr. Johns will be responsible for
the Fund's portfolio and RMA's day-to-day advisory activities. Mr. Johns
received a Bachelor's degree in mechanical engineering from the University of
Colorado in 1985, and a Master's degree in finance from the University of
Colorado in 1991. He was employed by Flaherty & Crumrine, Incorporated, from
1992 to 1998. During that period he was an Assistant Treasurer for the Preferred
Income Fund Incorporated, the Preferred Income Opportunity Fund Incorporated,
and the Preferred Income Management Fund. Since 1999, he has been Chief
Financial Officer, Chief Accounting Officer, Vice President and Treasurer of
BTF, of BIF since 2002, of DNY since 2007, and of the Fund since 2003.
Stewart Investment Advisers. SIA or Stewart Investment Advisers (also known as
Stewart West Indies Trading Company, Ltd.) is a Barbados international business
company, incorporated on November 12, 1996, and is wholly owned by the West
Indies Trust,. Stewart R. Horejsi is not a beneficiary under the West Indies
Trust. However, Susan L. Ciciora (Stewart Horejsi's daughter) and John S.
Horejsi (Stewart Horejsi's son), who are the Fund's only "interested" directors,
are discretionary beneficiaries under the West Indies Trust. As a result, Ms.
Ciciora and Mr. John Horejsi may directly or indirectly benefit from the outcome
of Proposals 1 and 2. SIA is registered as an investment adviser under the
Advisers Act.
SIA is not domiciled in the United States and substantially all of its assets
are located outside the United States. As a result, it may be difficult to
realize judgments of courts of the United States predicated upon civil
liabilities under federal securities laws of the United States. The Fund has
been advised that there is substantial doubt as to the enforceability in
Barbados of such civil remedies and criminal penalties as are afforded by the
federal securities laws of the United States. Pursuant to the Advisory
Agreement, SIA has appointed the Fund's Secretary at its offices at 2344 Spruce
Street, Suite A, Boulder Colorado 80302, as its agent for service of process in
any legal action in the United States, thus subjecting it to the jurisdiction of
the United States courts.
Stewart R. Horejsi is an employee of both BIA and SIA. He is the primary
investment manager and, together with Mr. Johns, will be responsible for the
day-to-day management of the Fund's assets (other than the Legacy Holdings
managed by Wellington Management) and will be primarily responsible for the
Fund's asset allocation. Mr. Horejsi was a director of BTF until November, 2001;
General Manager, Brown Welding Supply, LLC (sold in 1999), Director, Sunflower
Bank (resigned); and the President or Manager of various subsidiaries of the
Horejsi Affiliates since June 1986. Mr. Horejsi has managed the investment
portfolios of the various Horejsi Affiliates since 1982. As of December 31,
2008, the size of these trusts' common stock portfolio was approximately $546.26
million. Mr. Horejsi has been the Director and President of the Horejsi
Charitable Foundation, Inc. since 1997. Mr. Horejsi received a Master's Degree
in Economics from Indiana University in 1961 and a Bachelor of Science Degree in
Industrial Management from the University of Kansas in 1959.
The executive officers of SIA and the principal occupation of each are set forth
below:
-------------------------------------------------- ---------------------------------------------------------
Name and Position with SIA Principal Occupation
================================================== =========================================================
Glade Christensen - President and Resident Office manager (since 1998) for SIA.
Managing Director
Stephen C. Miller - Director, Vice President and See description in table above.
Secretary
Stewart R. Horejsi - Investment Manager Senior investment manager (since 1999) for BIA and SIA.
Laura Rhodenbaugh - Treasurer Secretary(since 1999), FAS; Secretary (since 1999),
BIA; Secretary and Treasurer, various Horejsi
Affiliates.
-------------------------------------------------- ---------------------------------------------------------
The Advisory Agreements. Copies of the Advisory Agreements are set forth as
Exhibit A-1 and Exhibit A-2 to this Proxy Statement. If approved by
stockholders, the Advisory Agreements will become effective on the date of such
approval and continue initially for a two-year period and continue for
successive annual periods thereafter, provided such continuance is approved at
least annually by (a) a majority of the Independent Directors and a majority of
the full Board or (b) a majority of the outstanding voting securities of the
Fund. As used in this Proxy Statement, a "majority of the outstanding voting
securities" of the Fund shall have the meaning for such phrase as set forth in
the 1940 Act, that is, the affirmative vote of the lesser of (a) 67% or more of
the Shares present or represented by proxy at the Meeting or (b) more than 50%
of the outstanding Shares. This voting standard is referred to in this Proxy
Statement as a "1940 Act Majority Vote". The Advisory Agreements are terminable,
without penalty, on 60 days' written notice by the Board of Directors of the
Fund or by either New Adviser, as the case may be, upon written notice to the
other party to the Agreement. The Advisory Agreements will terminate
automatically upon assignment (as defined in the 1940 Act).
Under the Advisory Agreements, the New Advisers are jointly responsible for
making investment decisions, supplying investment research and portfolio
management services, placing purchase and sale orders for portfolio
transactions, making asset allocation decisions for the Fund and determining the
extent and nature of the Fund's leverage. The Advisory Agreements also provide
that the respective New Adviser will bear all expenses in connection with its
performance, including fees that it might pay to consultants, except that the
Fund is responsible for reimbursing the New Advisers for reasonable travel
expenses associated with attending regular and special board and stockholder
meetings.
Under the Advisory Agreements, the New Advisers will receive an annual fee,
payable monthly, in an aggregate amount calculated at a rate of 1.25% of the
Fund's total assets, less liabilities other than the aggregate indebtedness
entered into for purposes of leverage ("Managed Assets"). However, under the
Advisory Agreements, the New Advisers would waive (i) their fees in an amount
equal to up to 1.00% of the Fund's assets invested in a WHM Fund to offset any
asset-based fees (but not any performance-based fees) paid to WHM with respect
to the Fund's assets, and (ii) all fees paid to Wellington Management under the
Sub-Advisory Agreement (i.e., the fee currently paid to Wellington Management as
applied to the Legacy Holdings) (the foregoing fee arrangement is referred to as
the "Proposed Fee"). The Proposed Fee will be split between the New Advisers,
25% to RMA and 75% to SIA. This percentage split may be changed from time to
time by the Board without stockholder approval so long as the gross advisory fee
paid by the Fund is not increased. The New Advisers agreed to a waiver of
advisory fees such that, in the future, the advisory fees would be calculated at
the annual rate of 1.25% on Managed Assets up to $400 million, 1.10% on Managed
Assets between $400-$600 million; and 1.00% on Managed Assets exceeding $600
million. This fee waiver agreement has a one-year term and is renewable
annually.
The Fund currently pays Wellington Management an advisory fee of 1.125% on the
Fund's net assets up to and including $150 million; 1.00% on net assets between
$150 million and $300 million, and 0.875% on net assets exceeding $300 million
(together the "Current Fee"). Based on $____ million of current assets under
management, and the New Advisers' anticipated investment of approximately 50% of
the Fund's assets in WHM Hedge Funds, the advisory fees paid by the Fund would
decrease by approximately $____________ annually versus the Current Fee ($______
for the year ended _________), and the Fund's expense ratio would decrease from
its current rate of ________% to ______%. However, on a "look-through" basis
(i.e., taking into consideration the fees charged by WHM in managing the WHM
Hedge Funds), advisory-related expenses will increase slightly - by
approximately $_________ annually. On a "look-through" basis, the expense ratio
would increase from its current rate of _____% to approximately _____ %, not
including the impact of any performance fee paid to WHM. Hedge fund managers,
including WHM, typically are paid a 20% performance fee with respect to annual
gains generated in their hedge funds. Thus, under the Restructuring, the
increase in advisory-related fees could be significantly higher when there are
net gains in the hedge fund. Since performance fees will necessarily vary from
year to year, they have not been factored into the foregoing estimated fee
increase or expense ratio estimates. For the sake of comparison, if the Fund
invests 50% of its current assets in WHM Hedge Funds, and during the first year
after the Effective Date the value of the WHM Hedge Funds increases by 10%, and
all the Fund's other assets remain unchanged, on a "look-through" basis, the
Fund would pay an additional $___________ in advisory related fees. The Board
believes that the WHM Hedge Funds offer more investment flexibility and superior
risk adjusted returns and thus the likelihood that the Fund will pay higher
look-through advisory-related fees is an acceptable tradeoff.
The Advisory Agreements provide that the New Advisers will be indemnified by the
Fund for losses, claims and expenses not caused by the New Advisers' willful
misfeasance, bad faith or negligence in the performance of their duties or from
reckless disregard by the New Advisers of their obligations and duties under the
agreement.
Fees and Expenses. The following table shows the Fund's expenses as of March 31,
2009 (as adjusted), and pro forma expenses giving effect to the Advisory
Agreements and Sub-Advisory Agreement.
TABLE 1
Fees and Expenses - Historical and Pro Forma
as of ________, 2009
----------------------------------------------- ------------------------- ------------------------- -------------------------
[DATE] Pro Forma* Increase/(Decrease)
----------------------------------------------- ------------------------- ------------------------- -------------------------
[insert table]
* The pro forma information shown assumes that Proposals 1 through 3 in this
Proxy have been approved by stockholders. The pro forma Other Expenses have been
estimated.
Board Considerations Regarding the Proposed Advisory Agreements. The 1940 Act
requires that the Board, including a majority of the Independent Directors,
approve the terms of the Advisory Agreements. At a special meeting held on April
16, 2009, and at their regularly scheduled meeting on April 24, 2009, the Board
considered the Restructuring and, in particular, the Advisory Agreements and, by
a unanimous vote (including a separate vote of the Independent Directors),
approved the Advisory Agreements and recommended they be submitted to
stockholders for approval.
Factors Considered. Generally, the Board considered a number of factors in
approving the Advisory Agreements including, among other things, (i) the nature,
extent and quality of services to be furnished by the New Advisers to the Fund;
(ii) the investment performance of the Boulder Funds (i.e., the three other
closed-end investment companies managed by BIA and SIA), compared to relevant
market indices and the performance of peer groups of closed-end investment
companies pursuing similar strategies; (iii) the advisory fees and other
expenses to be paid by the Fund compared to the Current Fee (i.e., the fee paid
to Wellington Management) and those of similar funds managed by other investment
advisers; (iv) the profitability to the New Advisers of their investment
advisory relationship with the Fund; (v) the extent to which economies of scale
would be realized as the Fund grows and whether fee levels reflect any economies
of scale; (vi) support of the New Advisers by the Fund's principal stockholders;
and (vii) the relationship between the New Advisers and FAS, a Horejsi Affiliate
and the Fund's co-administrator. The Board also reviewed the ability of the New
Advisers to provide investment management and supervision services to the Fund,
including the background, education and experience of the key portfolio
management and operational personnel, the investment philosophy and
decision-making process of those professionals, and the ethical standards
maintained by the New Advisers.
Deliberative Process. To assist the Board in its evaluation of the quality of
the New Advisers' services and the reasonableness of the Proposed Fee, the Board
reviewed a memorandum from independent legal counsel to the Fund and the
Independent Directors discussing the factors generally regarded as appropriate
to consider in evaluating investment advisory arrangements and the duties of
directors in approving such arrangements. In connection with its evaluation, the
Board also requested and received various materials relating to the New
Advisers' investment services under the Advisory Agreements. These materials
included reports and presentations from the New Advisers that described, among
other things, the New Advisers' financial condition, pro forma profitability
from their anticipated relationship with the Fund, soft dollar commission and
trade allocation policies, organizational structure and compliance policies and
procedures. The Board also considered information received from SIA and BIA
throughout the year with respect to their oversight of the Boulder Funds,
including investment performance and expense ratio reports for the Boulder
Funds. The Board held additional discussions at both April meetings which
included an executive session among the Independent Directors and their
independent legal counsel at which no employees or representatives of the New
Advisers or Wellington Management were present. The information below summarizes
the Board's considerations in connection with its approval of the Advisory
Agreements. In deciding to approve the Advisory Agreements, the Board did not
identify a single factor as controlling and this summary does not describe all
of the matters considered. However, the Board concluded that each of the various
factors referred to below favored such approval.
Nature, Extent and Quality of the Services Provided; Ability to Provide
Services. The Board received and considered various data and information
regarding the nature, extent and quality of services to be provided to the
Fund by the New Advisers under the Advisory Agreements. Each New Adviser's
most recent investment adviser registration form on the SEC's Form ADV was
provided to the Board, as were the responses of the New Advisers to
information requests submitted by the Independent Directors through their
independent legal counsel. The Board reviewed and analyzed the materials,
which included information about the background, education and experience
of the New Advisers' key portfolio management and operational personnel and
the amount of attention to be devoted to the Fund by the New Advisers'
portfolio management personnel. In this regard, it was noted that BIA and
SIA's only clients are the three Boulder Funds (presently RMA does not have
clients). Accordingly, the Board was satisfied that the New Advisers'
investment personnel, including Stewart R. Horejsi, the New Advisers'
principal portfolio manager, would devote a significant portion of their
time and attention to the success of the Fund and its investment strategy.
The Board also considered the New Advisers' policies and procedures for
ensuring compliance with applicable laws and regulations. Based on the
above factors, the Board concluded that it was generally satisfied with the
nature, extent and quality of the investment advisory services to be
provided to the Fund by the New Advisers, and that the New Advisers
possessed the ability to continuously provide these services to the Fund in
the future. The Board was satisfied that the New Advisers have the
experience and personnel to manage the Fund's portfolio both as it existed
on April 24, 2009 (the date of the Board meeting), and as it would exist
under the Restructuring (i.e., with substantial investment in WHM Hedge
Funds). In reaching this conclusion, the Board noted that BIA and SIA have
satisfactorily managed the Boulder Funds, with respect to which all the
Independent Directors also act as independent board members.
Investment Performance. The Board considered the investment performance of
BTF since 1999, BIF since 2002, and DNY since 2007, when BIA and SIA took
over management of those funds. The Board noted that the personnel and
structure of BIA and RMA are essentially the same and thus the structure,
personnel and performance of BIA could be used as a proxy for that of RMA.
The Board observed that the long-term performance of the Boulder Funds
(i.e., performance since BIA and SIA began managing the respective funds'
portfolios) outperformed the Standard & Poor's 500 Index, each fund's
primary relevant benchmark, and the Dow Jones Industrial Average and Nasdaq
Composite, each fund's secondary benchmarks. In addition, the Board took
into consideration that BIF received 2008 Performance Achievement
Certificates from Lipper Analytical Services for the 1-year and 5-year
periods ended December 31, 2008, in Lipper's Core Funds category and DNY
received 2008 Performance Achievement Certificates from Lipper Analytical
Services for the 1-year and 5-year periods ended December 31, 2008, in
Lipper's Real Estate Fund category. Based on these factors, the Board
concluded that the overall performance results of the Boulder Funds
supported approval of the Advisory Agreements. In their consideration of
the New Advisers' performance, the Board noted that there are significant
differences between the investment focus of the Boulder Funds and that
traditionally held by the Fund, that the Boulder Funds have large
concentrations in Berkshire Hathaway (NYSE:BRK), and that none of the
Boulder Funds concentrate on financial services companies to the extent
concentrated by the Fund.
Costs of Services Provided and Profits Realized by the New Advisers. In
evaluating the costs of the services to be provided to the Fund by the New
Advisers, the Board received statistical and other information regarding
the Fund's total expense ratio and its various components. The Board
acknowledged that the Proposed Fee is at the higher end of the spectrum of
fees charged by similarly situated investment advisers of closed-end funds,
although it is the same as that charged by BIA and SIA to the Boulder
Funds, who are BIA's and SIA's only other clients. The Board also
considered that the New Advisers have a policy of not participating in (or
neutralizing the indirect cost to their clients of) soft dollar or directed
brokerage transactions, and that instead, the New Advisers directly bear
the cost of third-party research utilized by them, increasing the cost to
the New Advisers of providing investment management services to their fund
clients and decreasing their clients' transaction expenses. The Board also
obtained detailed information regarding the overall profitability of the
New Advisers and the combined profitability of the New Advisers, BIA and
FAS, which acts as co-administrator for the Fund. The combined
profitability information was obtained to assist the Board in determining
the overall benefits to the New Advisers from their relationship to the
Fund. In particular, the Board reviewed the costs anticipated to be
incurred by the New Advisers and FAS in providing services to the Fund.
Based on its analysis of this information, the Board determined that the
level of profits expected to be earned by the New Advisers from managing
the Fund bear a reasonable relationship to the services rendered, and
concluded that the fee under the Advisory Agreements was reasonable and
fair in light of the nature and quality of the services provided by the New
Advisers. The Board recognized that the Proposed Fee, on a "look-through"
basis, represents a modest increase compared to the cost of advisory
services currently provided to the Fund by Wellington Management. However,
the Board believed that the higher fee is justified primarily because the
New Advisers will have the added responsibility of overseeing the Fund's
hedge fund investments and Wellington Management as sub-adviser, each of
which will require an increased expenditure of resources, and determining
the Fund's asset allocation across the entire universe of investment
possibilities.
The Board took into consideration that, with respect to the Boulder Funds,
BIA and SIA have advocated removal of investment restrictions which
ultimately benefited stockholders, but that the Fund will require the New
Advisers to analyze a much broader universe of investments than those of
the Boulder Funds. The Board observed that in contrast, under the Fund's
present Concentration Policy, Wellington Management analyzed a relatively
narrow asset class (i.e., financial services companies) having fewer
investment prospects. Moreover, the Board noted that under the
Concentration Policy, Wellington Management is mandated to remain
substantially invested in financial services companies whether or not the
financial services industry is in or out of favor, and thus does not have
the burden of determining when and whether reducing the industry
concentration is appropriate and in the best interests of the stockholders.
The Board believed that the New Advisers will necessarily expend more time,
energy and resources in determining the most appropriate asset class at the
most appropriate time and thus are entitled to a higher fee than the
Current Fee.
Economies of Scale. The Board considered whether economies of scale might
occur with respect to the management of the Fund, whether the Fund could
appropriately benefit from any economies of scale, and whether the Proposed
Fee is reasonable in relation to the Fund's assets and any economies of
scale that may exist. Based on the relatively small size of the Fund, the
Board determined that no meaningful economies of scale would be realized
until the Fund achieved significantly higher asset levels. The Board also
noted that SIA's and BIA's internal costs of providing investment
management services to the Boulder Funds had increased over time, in part
due to administrative burdens and expenses resulting from legislative and
regulatory actions, and that the New Advisers might need to hire additional
personnel as their assets under management increase. Nevertheless, the
Board determined that breakpoints should be added to the Fund's advisory
fee schedule to reduce the advisory fees in the event the Fund's assets
increase over current levels. After some discussion, the New Advisers
agreed to a waiver of advisory fees such that the advisory fees would be
calculated at the annual rate of 1.25% on asset levels up to $400 million,
1.10% on assets between $400-$600 million; and 1.00% on assets exceeding
$600 million. This fee waiver agreement has a one-year term after the
Effective Date and is renewable annually. The Board concluded that these
breakpoint levels were acceptable and would appropriately benefit the Fund
from any economies of scale realized by the New Advisers if the Fund's
assets grow.
Support by Significant Stockholder. The Board placed considerable weight on
the views of the Horejsi Affiliates, the Fund's largest stockholders, which
are affiliated with Mr. Horejsi and the New Advisers. As of May 31, 2009,
the Horejsi Affiliates held approximately 35.51% of the Shares. The Board
understands from Mr. Horejsi that the Horejsi Affiliates are supportive of
the New Advisers and the approval of the Advisory Agreements.
Approval. The Board based its decision to approve the Advisory Agreements
on a careful analysis, in consultation with independent counsel for the
Fund and the Independent Directors, of these and other factors. In
approving the Advisory Agreements, the Board concluded that the terms of
the Advisory Agreements are reasonable and fair and that approval of the
Advisory Agreements is in the best interests of the Fund and its
stockholders.
How the Horejsi Affiliates will Vote. Representatives of the Horejsi Affiliates,
which hold approximately 35.51% of the Shares, who, because of their ownership
of the New Advisers, have an economic interest in approval of Proposal 1 and
Proposal 2, have informed the Board that the Horejsi Affiliates will vote their
shares FOR both Proposal 1 and Proposal 2.
Conditional Proposals. Passage of Proposals 1 and 2 (approval of the Advisory
Agreements) and Proposal 3 (approval of the Sub-Advisory Agreement) are
conditioned on all such Proposals being approved by stockholders (i.e., if one
fails to achieve stockholder approval, all three fail).
Required Vote. Approval of each of Proposals 1 and 2 requires a 1940 Act
Majority Vote.
THE BOARD OF DIRECTORS, INCLUDING ALL OF THE INDEPENDENT DIRECTORS,
UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS VOTE "FOR" PROPOSAL 1.
THE BOARD OF DIRECTORS, INCLUDING ALL OF THE INDEPENDENT DIRECTORS,
UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS VOTE "FOR" PROPOSAL 2.
PROPOSAL 3
TO APPROVE OR DISAAPROVE THE PROPOSED INVESTMENT SUB-ADVISORY
AGREEMENT WITH WELLINGTON MANAGEMENT COMPANY, LLP
Background of Proposal. See "Background" discussion under Proposals 1 and 2
above.
Wellington Management Company, LLP. Wellington Management is being proposed to
act as sub-adviser to the Fund with respect to the Legacy Holdings for a period
of two years following the Effective Date. Wellington Management is located at
75 State Street, Boston, Massachusetts. Wellington Management is a Massachusetts
limited liability partnership and a professional investment counseling firm
which provides investment services to investment companies, employee benefit
plans, endowments, foundations, and other institutions. Wellington Management
and its predecessor organizations have provided investment advisory services for
over 70 years. As of March 31, 2009, Wellington Management had investment
management authority with respect to approximately $396 billion in assets.
Wellington Management has managed the Fund since its inception in 1986. Nicholas
C. Adams, Senior Vice President, Partner and Equity Portfolio Manager, is
primarily responsible for the day-to-day management of the Fund and, if the
Restructuring is approved by stockholders, is expected to continue managing the
Legacy Holdings for a period of two years following the Effective Date. Mr.
Adams joined Wellington Management as an investment professional in 1983. The
names and principal occupations of the principal executive officers of
Wellington Management are set forth below. Unless otherwise stated below, the
business address of each such person is 75 State Street, Boston Massachusetts:
------------------------------------------------- ---------------------------------------------------------
Name and Position with Wellington Management Principal Occupation
================================================= =========================================================
Karl E. Bandtel Senior Vice President, Partner and Executive Committee
Member
Edward P. Bousa Senior Vice President, Partner and Executive Committee
Member
Cynthia M. Clarke Senior Vice President, Partner and Chief Legal Officer
Lucius T. Hill, III Senior Vice President, Partner and Executive Committee
Member
Jean M. Hynes Senior Vice President, Partner and Executive Committee
Member
Selwyn J. Notelovitz Senior Vice President, Partner and Chief Compliance
Officer
Saul J. Pannell Senior Vice President, Partner and Executive Committee
Member
Phillip H. Perelmuter Senior Vice President, Managing Partner and Executive
Committee Member
Edward J. Steinborn Senior Vice President, Partner and Chief Financial
Officer
Brendan J. Swords Senior Vice President, Managing Partner and Executive
Committee Member
Perry M. Traquina President, Chief Executive Officer, Managing Partner
and Executive Committee Member
James W. Valone Senior Vice President, Partner and Executive Committee
Member
------------------------------------------------- ---------------------------------------------------------
Current Agreement. Wellington Management has served as the sole investment
manager to the Fund from its inception in 1986. Pursuant to the terms of the
investment advisory agreement between Wellington Management and the Fund (the
"Current Advisory Agreement"), Wellington Management is responsible for managing
the Fund's investment portfolio. The Current Advisory Agreement was amended in
July 2006, after required approval was obtained from the Board and stockholders
to increase the fees payable to Wellington Management. Under the agreement, as
amended, Wellington Management is entitled to receive an investment advisory fee
at the annual rate of 1.125% of the Fund's average net assets, based on the net
assets on the last business day of each month, up to and including $150 million;
1.00% on net assets in excess of $150 million and up to and including $300
million; and 0.875% on net assets in excess of $300 million (defined above as
the "Current Fee").
The Sub-Advisory Agreement. A copy of the Sub-Advisory Agreement is set forth as
Exhibit B to this Proxy Statement. If approved by stockholders, the Sub-Advisory
Agreement will become effective on the Effective Date and continue for a
two-year period, at which time it will terminate by its terms. The Sub-Advisory
Agreement is terminable, without penalty, on 60 days' written notice by the
Board or by Wellington Management upon written notice to the Fund. The
Sub-Advisory Agreement will terminate automatically upon assignment (as defined
in the 1940 Act). Under the Sub-Advisory Agreement, Wellington Management is
solely responsible for making investment decisions regarding whether to continue
to hold or to sell Legacy Holdings (defined above) including, but not limited
to, supplying investment research and portfolio management services and placing
purchase and sale orders for portfolio transactions. However, Wellington
Management will manage the Legacy Holdings with a view toward liquidating the
assets to generate cash for the New Advisers to invest or familiarizing the New
Advisers with these holdings. Wellington Management will have no authority after
the Effective Date to directly purchase any new security for the Fund. The
Sub-Advisory Agreement also provides that Wellington Management will bear all
expenses in connection with its performance, including fees that it might pay to
consultants. Under the Sub-Advisory Agreement, Wellington Management will be
compensated at a rate equal to the Current Fee (the "Proposed Sub-Advisory
Fee").
Fees and Expenses. See Table 1 above which consolidates the fees and expenses
associated with Proposals 1 through 3.
Board Considerations Regarding the Sub-Advisory Agreement. The 1940 Act requires
that the Board, including a majority of the Independent Directors, approve the
terms of the Sub-Advisory Agreement. At a special meeting held on April 16,
2009, and at their regularly scheduled meeting on April 24, 2009, the Board
considered the Restructuring and, in particular, the Sub-Advisory Agreement and,
by a unanimous vote (including a separate vote of the Independent Directors),
approved the Sub-Advisory Agreement and recommended it be submitted to
stockholders for approval.
Factors Considered. Generally, the Board considered a number of factors in
approving the Sub-Advisory Agreement including, among other things, (i) the
nature, extent and quality of services to be furnished by Wellington Management
to the Fund; (ii) the investment performance of the Fund under Wellington
Management's management compared to relevant market indices and the performance
of comparable funds; (iii) the advisory fees and other expenses paid by the
Fund; (iv) the profitability to Wellington Management of its investment advisory
relationship with the Fund; (v) the extent to which economies of scale are
realized and whether fee levels reflect any economies of scale; (vi) support of
Wellington Management by the Fund's principal stockholders; and (vii) the
historical relationship between the Fund and Wellington Management. The Board
also reviewed the willingness of Wellington Management to provide temporary
investment management services to the Fund with respect to the Legacy Holdings
and its ability to provide supervision services to the Fund, including the
background, education and experience of the key portfolio management and
operational personnel, the investment philosophy and decision-making process of
those professionals, and the ethical standards maintained by Wellington
Management.
Deliberative Process. To assist the Board in its evaluation of the quality of
Wellington Management's services and the reasonableness of the fees under the
Sub-Advisory Agreement, the Board received a memorandum from independent legal
counsel to the Fund and the Independent Directors discussing the factors
generally regarded as appropriate to consider in evaluating investment advisory
arrangements and the duties of directors in approving such arrangements. In
connection with its evaluation, the Board also requested and received various
materials relating to Wellington Management's investment services under the
Current Advisory Agreement. These materials included reports and presentations
from Wellington Management that described, among other things, Wellington
Management's organizational structure, financial condition, internal controls,
policies and procedures on brokerage practices, soft-dollar commissions and
trade allocation, comparative investment performance results, comparative
sub-advisory fees, and compliance policies and procedures. The Board also
reviewed a report prepared by Wellington Management comparing the Fund's
performance to a group of closed-end and open-end mutual funds with similar,
though not identical, investment strategies as the Fund (the "Peer Group"). The
Board also considered information received from Wellington Management throughout
the year, including investment performance and returns as well as stock price
and net asset value. In advance of the April 24, 2009 meeting, the Independent
Directors held a special telephonic meeting with counsel to the Fund and the
Independent Directors. The purpose of this meeting was to discuss the
Restructuring and renewal of the Current Advisory Agreement and to review the
materials provided to the Board by Wellington Management in connection with the
annual review process. The Board held additional discussions at the April 24,
2009 Board meeting, which included a private session among the Independent
Directors and their independent legal counsel at which no employees or
representatives of the New Advisers or Wellington Management were present. The
information below summarizes the Board's considerations in connection with its
approval of the Sub-Advisory Agreement. In deciding to approve the Sub-Advisory
Agreement, the Board did not identify a single factor as controlling and this
summary does not describe all of the matters considered. However, the Board
concluded that each of the various factors referred to below favored such
approval.
Nature, Extent and Quality of the Services Provided; Ability to Provide
Services. The Board received and considered various data and information
regarding the nature, extent and quality of services currently provided to
the Fund by Wellington Management under the Current Advisory Agreement.
Wellington Management's most recent investment adviser registration form on
the SEC's Form ADV was provided to the Board, as were the responses of
Wellington Management to an information request submitted to it by the
Independent Directors through their independent legal counsel. The Board
reviewed and analyzed the materials, which included information about the
background, education and experience of Wellington Management's key
portfolio management and operational personnel and the amount of attention
currently devoted to the Fund by Wellington Management's portfolio
management personnel. The Board also reviewed Wellington Management's
policies and procedures on side-by-side management of hedge funds and other
accounts and any impact these might have on the success of the Fund. The
Board was satisfied that Wellington Management's investment personnel,
including Mr. Adams, the Fund's principal portfolio manager, would devote
an adequate portion of their time and attention to the success of the Fund
and its investment strategy, particularly given a reduction in the number
of accounts managed by Mr. Adams that occurred in 2006. Based on the above
factors, the Board concluded that it was generally satisfied with the
nature, extent and quality of the investment advisory services to be
provided to the Fund by Wellington Management, and that Wellington
Management possessed the ability to continue to provide these services to
the Fund in the future.
Investment Performance. The Board considered the investment performance of
the Fund as compared to relevant indices, the performance of three
comparable closed-end financial services funds (the "Closed-End Peer
Group") and the performance of 11 selected open-end financial services
funds (the "Open-End Peer Group") for the year-to-date, one-, three-, five-
and ten-year periods and since-inception period (for the indices only)
ended February 28, 2009. Certain information for certain periods were not
available, depending on the inception date of the index or comparable fund.
The Board noted that the Fund's returns gross of fees of were in line with
the returns of the S&P 500 Index, NASDAQ Composite Principal Index, NASDAQ
Banks Index, SNL All Daily Thrift Index, and MSCI World Financials ex-Real
Estate Index for the one-year, three-year and five-year periods, and that
the Fund had outperformed all of those indices for the ten-year and
since-inception periods. The Board noted that the financial services sector
of the stock market had experienced a significant decline in late 2008 and
early 2009, which accounted for the Fund's recent relative underperformance
as compared to broader market indices. The Board also observed that the
Fund had significantly outperformed the Closed-End Peer Group over the
year-to-date, one-, five- and ten-year periods except for one fund for the
one-year period. The Board further noted that the Fund outperformed the
Lipper Financial Services Fund Average and the Open-End Peer Group in all
time-period categories except for four funds in the one-year period, three
funds in the three-year period, and one fund in the five-year period. In
concluding that the Fund's overall investment performance supported renewal
of the Current Advisory Agreement and approval of the Sub-Advisory
Agreement under the Restructuring, the Board ascribed greater weight to the
long-term performance of the Fund against its benchmarks and other
financial services funds.
Costs of Services Provided and Profits Realized by Wellington Management.
In evaluating the costs of the services to be provided to the Fund by
Wellington Management, the Board relied on statistical and other
information regarding the Fund's total expense ratio and its various
components, including the Proposed Fee and Proposed Sub-Advisory Fee and
investment-related expenses. The Board also noted that in 2006, in
connection with a proposed increase in advisory fees under the Current
Advisory Agreement that was ultimately approved by the Board and
stockholders, it had conducted a detailed evaluation of the Fund's expense
ratio and the advisory fees charged by Wellington Management. The Board
noted that the the Proposed Sub-Advisory Fee is in the range of advisory
fees for funds in the Closed-End Peer Group and is comparable to the fees
earned by Wellington Management on other portfolios managed by Mr. Adams,
including certain WHM Hedge Funds. The Board also noted that the Proposed
Fee to be charged by the New Advisers is at the higher end of the spectrum
of fees charged by similarly situated investment advisers of closed-end
funds but that the Advisory Agreements with the New Advisers contain a
waiver of all fees paid to Wellington Management under the Sub-Advisory
Agreement.
The Board also obtained information regarding the overall profitability of
Wellington Management to assist the Board in determining the overall
benefits to Wellington Management from its relationship to the Fund. The
Board compared the overall profitability of Wellington Management to the
profitability of certain publicly traded investment management firms. Based
on its analysis of this information, the Board determined that the overall
level of profits earned by Wellington Management did not appear to be
unreasonable based on the profitability of other investment management
firms and the quality of the services rendered by Wellington Management.
Based on these factors, the Board concluded that the fee under the
Sub-Advisory Agreement was reasonable and fair in light of the nature and
quality of the services provided by Wellington Management.
Economies of Scale. The Board considered whether there have been economies
of scale with respect to the management of the Fund, whether the Fund has
appropriately benefited from any economies of scale, and whether the
Proposed Sub-Advisory Fee is reasonable in relation to the Fund's assets
and any economies of scale that may exist. The Board noted that that the
Proposed Sub-Advisory Fee includes breakpoints. In evaluating economies of
scale, the Board noted that Wellington Management's internal costs of
providing investment management services to the Fund had continued to
increase, particularly costs associated with attracting and retaining
talented investment personnel and compliance costs. The Board concluded
that the breakpoints in the fee schedule are acceptable and appropriately
reflect any economies of scale expected to be realized by Wellington
Management in managing the Legacy Holdings if the Fund's net assets
increase.
Support by Significant Stockholder. The Board placed considerable weight on
the views of the Horejsi Affiliates, the Fund's largest stockholders, which
are affiliated with Mr. Horejsi and the New Advisers. As of May 31, 2009,
the Horejsi Affiliates held approximately 35.51% of the Shares. The Board
understands from Mr. Horejsi that the Horejsi Affiliates are supportive of
the Restructuring and engaging Wellington Management to manage the Legacy
Holdings under the Sub-Advisory Agreement.
Approval. The Board based its decision to approve the Sub-Advisory
Agreement on a careful analysis, in consultation with independent counsel
to the Fund and the Independent Directors, of these and other factors. In
approving the Sub-Advisory Agreement, the Board concluded that the terms of
the Sub-Advisory are reasonable and fair and that approval of the
Sub-Advisory Agreement is in the best interests of the Fund and its
stockholders.
How the Horejsi Affiliates will Vote. Representatives of the Horejsi Affiliates,
which hold approximately [35.51]% of the Shares, who, because of their ownership
of the New Advisers, have an economic interest in approval of Proposals 1
through 3, have informed the Board that the Horejsi Affiliates will vote their
Shares FOR Proposal 3.
Conditional Proposal. Passage of Proposals 1 and 2 (approval of the Advisory
Agreements) and Proposal 3 (approval of the Sub-Advisory Agreement) are
conditioned on all such Proposals being approved by stockholders (i.e., if one
fails to achieve stockholder approval, all three fail).
Required Vote. Approval of Proposal 3 requires a 1940 Act Majority Vote.
THE BOARD OF DIRECTORS, INCLUDING ALL OF THE INDEPENDENT DIRECTORS,
UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS VOTE "FOR" PROPOSAL 3.
PROPOSAL 4
TO APPROVE OR DISAPPROVE ELIMINATING THE FUND'S FUNDAMENTAL
POLICY OF INVESTING AT LEAST 65% OF ITS ASSETS IN
FINANCIAL SERVICES COMPANIES
Summary of Proposal. The Fund has adopted a fundamental investment policy of
investing at least 65% of its assets in "financial services companies" (defined
above as the "Concentration Policy"). "Financial services companies" are broadly
defined to include, but are not limited to, savings and banking institutions,
mortgage banking institutions, real estate investment trusts, consumer finance
companies, credit collection and related service companies, insurance companies,
security and commodity brokerage companies, security exchange companies,
financial-related technology companies, investment advisory and asset management
firms, and financial conglomerates, and holding companies of any of these
companies. The Concentration Policy is "fundamental", meaning that it cannot be
changed without a 1940 Act Majority Vote. If approved, Proposal 4 will eliminate
the Concentration Policy in its entirety such that the Fund will no longer be
required to invest significantly (i.e., greater than 25%) in financial services
companies or the financial services or any other industry.
Reason for this Proposal. Under the Concentration Policy, the Fund is required
to invest greater than 65% of its total assets in financial services companies.
In 2006, in order to provide the Fund's adviser with more flexibility and
mitigate industry risk, stockholders approved an amendment to the Fund's
concentration policy which broadened the scope of financial companies in which
the Fund could invest and which would be included when determining whether the
Fund has met its concentration threshold (i.e., the "financial services
companies" described above). Management believes that, even in its broadened
form, the Concentration Policy is still overly restrictive and could unduly
expose the Fund to considerable downside risk and volatility should the
financial services industry take a further downturn. For example, the recent
sub-prime fiasco, the banking, credit and liquidity crisis, changes in the tax
laws and other factors have disproportionately impacted the Fund under its
Concentration Policy. Financial services companies are also affected by general
economic conditions. All of these risks are compounded because, under the
Concentration Policy, the Fund is "fundamentally bound" to invest in these types
of assets. Management believes that eliminating the financial mandate under the
Concentration Policy will mitigate the inherent risk of concentrating in the
financial services sector.
Generally, as with all equity funds, the Fund's net asset value can fall because
of weakness in the broad market, a particular industry, or specific holdings.
The market as a whole can decline for many reasons, including adverse political
or economic developments domestically or abroad, changes in investor psychology
or heavy institutional selling. The prospects for an industry or company may
deteriorate because of a variety of factors, including disappointing earnings or
changes in the competitive environment. In addition, the Fund's adviser's
assessment of companies held by the Fund may prove incorrect, resulting in
losses or poor performance even in a rising market. Finally, the Fund's
investment approach could fall out of favor with the investing public, resulting
in lagging performance compared to other types of stock funds. Foreign stock
holdings may lose value because of declining foreign currencies or adverse
political or economic events overseas. As with any investment company, there can
be no guarantee the Fund will achieve its objective.
If the Concentration Policy is eliminated under Proposal 4, going forward, the
Fund would be precluded from investing more than 25% of its assets in the
financial services or any other industry. However, the Fund would likely be
concentrated in the securities of financial services companies immediately
following the Effective Date as a result of the current effectiveness of the
Concentration Policy. The New Advisers would seek to reduce the Fund's holdings
in financial services companies to below 25% of the Fund's assets in a prudent
manner consistent with elimination of the Concentration Policy. As discussed, if
the Restructuring Proposals are approved by stockholders, the New Advisers
expect to invest significantly in the WHM Hedge Funds, which have significant
exposure to the financial services sector. However, the Fund will not "look
through" its investments in the WHM Hedge Funds to underlying portfolio holdings
in financial services companies in determining whether the Fund exceeds the 25%
maximum concentration threshold contemplated under this Proposal. The Fund could
therefore become indirectly concentrated in financial services companies by
virtue of the investments by the WHM Hedge Funds in such investments. If the
Restructuring Proposals are approved by stockholders, in the near term the New
Advisers expect to focus primarily on a broad range of companies which may or
may not include financial services companies.
Risks and Disadvantages of Eliminating the Concentration Policy. Eliminating the
Concentration Policy so that the Fund may no longer invest more than 25% of its
assets in financial services companies may, for some long-term investors, take
away some of their ability to invest in the Fund as a means of diversifying into
the financial services industry. However, management does not view eliminating
the current policy as increasing risk. Indeed, management believes that
eliminating the current 65% requirement will mitigate industry concentration
risks.
Board Considerations. At a special meeting held on April 16, 2009, and at their
regularly scheduled meeting on April 24, 2009, the Board considered, among other
things, amending the Concentration Policy. In view of the disproportionate
impact that the recent market downturn has had on financial services companies
generally, the Board concluded that maintaining the 65% requirement imposes a
disproportionate industry risk on the Fund and stockholders and should be
eliminated altogether should the Restructuring Proposals be approved by
stockholders.
Conditional Proposal. If Proposals 1 through 3 are not approved by stockholders
(i.e., Wellington Management continues as the Fund's primary investment
manager), Proposal 4 will not become effective regardless of whether or not it
is approved by stockholders.
Required Vote. Approval of Proposal 4 requires a 1940 Act Majority Vote.
THE BOARD OF DIRECTORS, INCLUDING ALL OF THE INDEPENDENT DIRECTORS,
UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS VOTE "FOR" PROPOSAL 4.
PROPOSAL 5
TO APPROVE OR DISAPPROVE AMENDING THE CONCENTRATION POLICY
Summary of Proposal. As discussed in Proposal 4, the Fund has adopted a
fundamental investment policy of investing at least 65% of its assets in
"financial services companies" (defined above as the "Concentration Policy").
The Concentration Policy is "fundamental", meaning that it cannot be changed
without a 1940 Act Majority Vote. If approved, Proposal 5 will amend the
Concentration Policy to reduce the minimum threshold level of the Fund's
investment in financial services companies to 25% of the Fund's assets. Proposal
5 will become effective only if the Proposal is approved by stockholders and
stockholders do not approve the Restructuring Proposals.
Reason for this Proposal. See discussion under Proposal 4 above. If the
Restructuring Proposals are not approved by stockholders, Wellington Management
would continue to manage the Fund and would do so with a continued focus on the
Fund's historic industry (i.e., financial services). However, as discussed in
Proposal 4, the Board determined that, regardless of whether or not the
Restructuring Proposals are approved, continuing Fund operations with a 65%
minimum threshold imposes a disproportionate industry risk on the Fund and
should be, at the very least, reduced to the minimum level permitted under the
1940 Act for an investment company which has declared a concentration policy
(i.e., 25%). In 2006, in order to provide the Fund's adviser with more
flexibility and mitigate industry risk, stockholders approved an amendment to
the Fund's concentration policy which broadened the scope of financial companies
in which the Fund could invest and which would be included when determining
whether the Fund has met its concentration threshold (i.e., the "financial
services companies" described above). Management believes that, even in its
broadened form, the Concentration Policy is still overly restrictive and could
unduly expose the Fund to considerable downside risk and volatility should the
financial services industry take a further downturn. For example, the recent
sub-prime fiasco, the banking, credit and liquidity crisis, changes in the tax
laws and other factors have disproportionately impacted the Fund under its
Concentration Policy. Financial services companies are also affected by general
economic conditions. All of these risks are compounded because, under the
Concentration Policy, the Fund is "fundamentally bound" to invest in these types
of assets. Management believes that, if the Restructuring Proposals are not
approved by stockholders, reducing the financial mandate under the Concentration
Policy will mitigate the inherent risk of concentrating in the financial
services sector.
Risks and Disadvantages of Amending the Concentration Policy. See discussion
under Proposal 4 above.
Board Considerations. See discussion under Proposal 4 above.
Conditional Proposal. Proposal 5 will become effective only if the Proposal is
approved by stockholders and Proposals 1 through 3 are not approved by
stockholders (i.e., Wellington Management continues as the Fund's primary
investment manager).
Required Vote. Approval of Proposal 5 requires a 1940 Act Majority Vote.
THE BOARD OF DIRECTORS, INCLUDING ALL OF THE INDEPENDENT DIRECTORS,
UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS VOTE "FOR" PROPOSAL 5.
PROPOSAL 6
AMENDMENT TO THE CHARTER CLASSIFYING THE BOARD OF DIRECTORS OF
THE FUND INTO THREE SEPARATE CLASSES AND MAKING
RELATED CHANGES TO THE CHARTER
The Board has considered and recommends to the Fund's stockholders amending the
Fund's charter (the "Charter") in order to classify the Boards into three
separate classes (the "Classification Proposal").
Presently the Charter provides that each Director serve a one-year term. The
Charter reads as follows:
The directors shall be elected at each annual meeting of the stockholders
commencing in 2004, except as necessary to fill any vacancies, and each
director elected shall hold office until his or her successor is duly
elected and qualifies, or until his or her earlier resignation, death, or
removal.
In addition, under Maryland General Corporation Law ("MGCL"), Directors may be
removed with or without cause by the affirmative vote of a majority of all the
votes entitled to be cast generally for election of directors. Thus, presently
under the Charter and the MGCL, only a single meeting of stockholders would be
required to effect a complete change in the Board.
In 2004, stockholders of the Fund approved "de-classification" of the Board from
three separate classes, each serving a three-year term, to a single class
elected on an annual basis. However, the Board now believes that a classified or
staggered board structure will best serve the Fund's longer-term interests.
Thus, if stockholders approve Proposal 6 and approve a new board structure with
three classes of directors, with each class serving a staggered three-year term
(instead of the current one-year term), the Charter will be amended accordingly
and such change will take effect immediately and with respect to the election of
Directors at the Meeting under Proposal 7. Class I Directors will hold office
initially for a term expiring at the 2010 annual meeting of stockholders, Class
II Directors will hold office initially for a term expiring at the 2011 annual
meeting of stockholders and Class III Directors will hold office initially for a
term expiring at the 2012 annual meeting of stockholders, with the members of
each class to hold office until their successors are duly elected and qualified.
At each annual meeting of the stockholders, the successors to the class of
Directors whose term expires at such meeting shall be elected to hold office for
a term expiring at the annual meeting of stockholders held in the third year
following the year of their election and until their successors are duly elected
and qualified. In the event of a vacancy on the Board of Directors due to the
removal or resignation of a Director during such Director's term of office, the
remaining Directors shall by their vote or written consent fill the vacancy for
the remainder of such Director's term.
Background on the Classification Proposal. In 2004, the Fund's stockholders
approved a comprehensive set of corporate governance proposals, one of which was
to "de-classify" the Boards such that Directors would serve an annual term (the
"2004 Proposal"). Prior to the 2004 Proposal, the Fund had a "classified" or
"staggered" board. Various industry trade groups, activist investor groups, the
New York Stock Exchange, and other industry professionals generally advocated
de-classification as well as the other corporate governance proposals advanced
by the Fund in 2004. It was thought at that time that having all Directors stand
for election every year would lead to better stockholder governance, a more
responsive Board and more access to fund management.
Since that time, the Board has had the opportunity to experience and review the
effect of the adoption of these corporate governance proposals, and in
particular the effect of the 2004 Proposal. In assessing the 2004 Proposal,
management paid close attention to the Fund's investment objectives, the makeup
of the Fund's stockholders and other developments within the past four years.
Board Considerations. At its regular meeting in February 2009, the Board
considered the Classification Proposal. At that meeting, the Board considered a
number of factors before concluding that a classified board would better serve
the long-term investment interest of the Fund and its stockholders.
The Board recognized that the overall effect of the Classification Proposal
would be to make any hostile attempt to take control of the Fund through a proxy
contest more difficult. In order to change the membership of a majority of the
Directors, at least two years would be required. The Board believes that this
would encourage persons seeking to acquire control of the Fund to engage in
good-faith, arm's-length negotiations with the Board. The Board also believes
that ensuring continuity of service among the Board members and three-year
commitments for Board service is desirable and that the Proposal will facilitate
the Fund's attracting and retaining qualified members of the Board and hiring
and retaining competent management personnel by increasing the likelihood of a
stable employment environment.
The Board understands the Fund's stockholder base to be generally comprised of
many stockholders holding smaller positions who have a long-term investment
horizon similar to that expressed by the Fund's largest stockholders (i.e., the
Horejsi Affiliates). A primary reason that these stockholders invest with the
Fund is the potential for long-term capital appreciation coupled with
responsible and deliberative asset management and an eye toward capital
preservation. Neither the Board nor the Fund's stockholders contemplate sudden,
drastic changes in the makeup of the Fund's investment portfolio.
The Board noted that, in general, closed-end funds such as the Fund seem to be
more subject than operating companies to pressures from "hostile" stockholders,
arbitrageurs and other groups of investors seeking to take advantage of
short-term market cycles for their own benefit. These activities are often
detrimental to stockholders seeking a particular investment style and a
long-term investment horizon. For example, twice in the past three years, one of
the Boulder Funds, BIF, was subject to activist pressure to change its
fundamental operations. In 2005, Scott Schultz and Phil Goldstein joined
together to pressure BIF to adopt a managed distribution program and, in October
2008, Ronald Olin and Ralph Bradshaw sought to float stockholder proposals that
called for removal of BIF's advisers, replacement of the current Board and an
aggressive level-rate distribution policy at odds with the then-current market
and BIF's long-term rate of return. Messrs. Olin's and Bradshaw's proposals have
since been withdrawn.
The Board ultimately concluded that Proposal 6 achieves a fair balance between
the corporate governance intent of the 2004 Proposal and protecting the
stockholders' long-term interests and recommends that stockholders vote "FOR"
this proposal.
The Board noted that, because Directors will be directly affected by Proposal 6,
they may be deemed to have an interest in its outcome.
If approved by the stockholders, the Proposal would impose the classified board
structure effective immediately and for this Meeting. The table below
illustrates the effect stockholder approval of the Proposal would have on the
terms of Directors:
---------- ---------- ---------
Class I Class II Class III
2009-10 2009-11 2009-12
---------- ---------- ---------
Richard Barr X
Susan Ciciora* X
John Horejsi* X
Dean Jacobson X
Joel Looney X
* "Interested person" of the Fund, as that term is defined in the 1940 Act.
Accordingly, Messrs. Horejsi and Jacobson will hold office initially for a term
expiring at the 2010 annual meeting of stockholders, Mr. Looney will hold office
initially for a term expiring at the 2011 annual meeting of stockholders and Ms.
Ciciora and Mr. Barr hold will hold office initially for a term expiring at the
2012 annual meeting of stockholders.
If at some point in the future, the Fund issues preferred stock, the amendment
also clarifies that (1) if holders of preferred stock are entitled to elect
additional directors in connection with dividend arrearages, the election of
such additional directors may cause the total number of Directors on the Board
to exceed five and (2) that the terms of Directors elected separately by holders
of preferred stock terminate if all such preferred stock is redeemed.
Attached at Exhibit C are Articles of Amendment containing the amendment to the
Charter (the "Amendment") which, if approved, will be filed with the State
Department of Assessments and Taxation of Maryland. If stockholders approve
Proposal 6, the Annual Meeting will be temporarily adjourned so that the
Amendment may be filed immediately and effective immediately. Thereafter, the
Annual Meeting will resume and Proposal 7 will be considered. If stockholders do
not approve this Proposal 6, but do approve Proposal 7, each of the Directors
will be elected to serve until the annual meeting of stockholders in 2010 and
until their successors are duly elected and qualified.
Vote required. Approval of Proposal 6 requires the affirmative vote of a
majority of all the votes entitled to be cast by the stockholders of the Fund on
the matter. Holders of record of Shares of the Fund at the close of business on
the Record Date will be entitled to one vote per share on each matter as to
which they are entitled to vote at the Meeting and any postponements or
adjournments thereof.
THE BOARD OF DIRECTORS, INCLUDING ALL OF THE INDEPENDENT DIRECTORS,
UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS VOTE "FOR" PROPOSAL 5.
PROPOSAL 7
ELECTION OF DIRECTORS OF THE FUND
The Charter currently provides that all of the Directors stand for election each
year. If stockholders approve Proposal 6, then the Charter will be amended,
effective immediately and for purposes of this Meeting, so that the terms of
each Director, if elected, would be classified in accordance with Proposal 6.
Thus, if Proposal 6 is approved, and the Directors as nominated in this Proposal
7 are elected, Messrs. Horejsi and Jacobson will hold office initially for a
term expiring at the 2010 annual meeting of stockholders, Mr. Looney will hold
office initially for a term expiring at the 2011 annual meeting of stockholders
and Mr. Barr and Ms. Ciciora will hold office initially for a term expiring at
the 2012 annual meeting of stockholders, with the members of each class to hold
office until their successors are duly elected and qualified. At each annual
meeting of the stockholders, the successors to the class of Directors whose term
expires at such meeting shall be elected to hold office for a term expiring at
the annual meeting of stockholders held in the third year following the year of
their election and until their successors are duly elected and qualified.
The Boards have nominated the following five Director nominees to stand for
election and serve terms as follows:
--------- ---------- ----------
Class I Class II Class III
2009-10 2009-11 2009-12
--------- ---------- ----------
Richard Barr X
Susan Ciciora* X
John Horejsi* X
Dean Jacobson X
Joel Looney X
* "Interested person" of the Fund, as that term is defined in the 1940 Act.
The above nominees have consented to serve as Directors if elected at the
Meeting for the term as indicated above. If the designated nominees decline or
otherwise become unavailable for election, however, the proxy confers
discretionary power on the persons named therein to vote in favor of a
substitute nominee or nominees for the Board.
INFORMATION ABOUT DIRECTORS AND OFFICERS. Set forth in the following table is
information about the nominees for election to the Board of Directors, all of
whom are currently Directors of the Fund:
-------------------- ---------------------- --------------------------------------------------------- ----------------
Name, Address*, Age Position, Length of Principal Occupation(s) and Other Directorships Number of
Term Served, and Funds in the
Term of Office Held During the Past Five Years Fund Complex
Overseen by
Director+
-------------------- ---------------------- --------------------------------------------------------- ----------------
Independent
Directors
-------------------- ---------------------- --------------------------------------------------------- ----------------
Joel W. Looney Director and Partner (since 1999), Financial Management Group, LLC 4
Chairman of the (investment adviser); Director (since 2001), Boulder
Chairman Board of the Fund Total Return Fund, Inc.; Director (since 2002) and
since 2003. Current Chairman (since 2003), Boulder Growth & Income Fund,
Age: 47 Nominee for a term Inc.; Director and Chairman (since 2007) The Denali
to expire at the Fund Inc.
2011 annual meeting.
Richard I. Barr Director of the Fund Retired (since 2001); Manager (1963-2001), Advantage 4
since 2001. Current Sales and Marketing, Inc. (food and beverage); Director
Age: 71 Nominee for a term (since 1999) and Chairman (since 2003), Boulder Total
to expire at the Return Fund, Inc.; Director (since 2002), Boulder
2012 annual meeting. Growth & Income Fund, Inc.; Director (since 2007), The
Denali Fund Inc.
Dr. Dean L. Director of the Fund Founder and President (since 1989), Forensic 4
Jacobson since 2003. Current Engineering, Inc. (engineering investigations);
Nominee for a term Professor Emeritus (since 1997), Arizona State
Age: 70 to expire at the University; Director (since 2004), Boulder Total Return
2010 annual meeting. Fund, Inc.; Director (since 2006), Boulder Growth &
Income Fund, Inc.; Director (since 2007), The Denali
Fund Inc.
-------------------- ---------------------- --------------------------------------------------------- ----------------
Interested
Directors**
-------------------- ---------------------- --------------------------------------------------------- ----------------
Susan L. Ciciora Director of the Fund Trustee (since 1994), the Brown Trust; Trustee (since 4
since 2003. Current 1992), the EH Trust; Director (since 1997), Horejsi
Age: 44 Nominee for a term Charitable Foundation, Inc. (private charitable
to expire at the foundation); Director (since 2006), Boulder Growth &
2012 annual Income Fund, Inc.; Director (since 2001), Boulder Total
meeting. Return Fund; Director (since 2007), The Denali Fund Inc.
John S. Horejsi Director of the Fund Director (since 1997), Horejsi Charitable Foundation 4
since 2006. Current (private charitable foundation); Director (since 2004),
Age: 41 nominee for a term Boulder Growth & Income Fund, Inc.; Director (since
to expire at the 2006), Boulder Total Return Fund, Inc.; Director (since
2010 annual meeting. 2007), The Denali Fund Inc.
* The Directors' respective addresses are c/o First Opportunity Fund, Inc.,
2344 Spruce Street, Suite A, Boulder, Colorado 80302.
** Ms. Ciciora and Mr. Horejsi are siblings and the children of Stewart R.
Horejsi. They each are "interested persons" of the Fund as a result of the
extent of their beneficial ownership of Fund shares and by virtue of their
indirect beneficial ownership of FAS.
+ Includes the Fund, Boulder Growth & Income Fund, Inc., Boulder Total Return
Fund, Inc. and The Denali Fund Inc.
----------------------------
From the late 1980s until January, 2001, Mr. Looney served, without
compensation, as one of three trustees of the Mildred Trust, an affiliate of the
EH Trust.
The names of the executive officers of the Fund are listed in the table below.
Each officer was elected to office by the Board at a meeting held on February 9,
2009. This table also shows certain additional information. Officers are elected
annually and each officer will hold such office until a successor has been
elected by the Board.
----------------------------- ---------------------------- -----------------------------------------------------------
Position, Length of
Principal Occupation(s) and Other Directorships held
Name, Address*, Age Term Served, and Term of
Office During the Past Five Years
----------------------------- ---------------------------- -----------------------------------------------------------
Stephen C. Miller President (since 2003) of President and General Counsel (since 1999), BIA; Manager
the Fund; Director and (since 1999), FAS; Vice President (since 1999), SIA;
Age: 56 Chairman (2003-2004); Director (1999-2004) and President (since 1999), Boulder
Chief Compliance Officer Total Return Fund, Inc.; Director (2002-2004) and
(2004-2007). Appointed President (since 2002), Boulder Growth & Income Fund,
annually. Inc.; President (since 2007), The Denali Fund Inc.; Of
Counsel, Krassa & Miller, LLC (since 1991).
Carl D. Johns Chief Financial Officer, Vice President and Treasurer (since 1999). BIA; Assistant
Chief Accounting Officer, Manager (since 1999), FAS; Vice President, Chief
Age: 46 Vice President and Financial Officer, Chief Accounting Officer and Treasurer
Treasurer (since 2003). (since 1999), Boulder Total Return Fund, Inc., (since
Appointed annually. 2002), Boulder Growth & Income Fund, Inc. and (since
2007), The Denali Fund Inc.
Joel L. Terwilliger Chief Compliance Officer Associate General Counsel (since 2006), BIA, SIA, FAS,
(since 2007). Appointed Boulder Growth & Income Fund, Inc., Boulder Total Return
Age: 40 annually. Fund, Inc., and the Fund, (since 2007), The Denali Fund
Inc.; Senior Associate/Legal Counsel (2002-2006),
Great-West Life & Annuity Insurance Company and
affiliated companies.
Stephanie J. Kelley Secretary (since 2003). Secretary (since 2000), Boulder Total Return Fund, Inc.;
Appointed annually. Secretary (since 2002); Boulder Growth & Income Fund,
Age: 52 Inc.; Secretary (since 2007), The Denali Fund Inc.;
Assistant Secretary and Assistant Treasurer of various
other entities affiliated with the Horejsi family;
employee ( since 1999), FAS.
Nicole L. Murphey Vice President (since Vice President (since 2008) and Assistant Secretary
2008); Assistant Secretary (since 2000) Boulder Total Return Fund, Inc.; Vice
Age: 32 (since 2003). Appointed President (since 2008) and Assistant Secretary (since
annually. 2002), Boulder Growth & Income Fund, Inc.; Vice President
(since 2008) and Assistant Secretary (since 2007), The
Denali Fund Inc.; employee (since 1999), FAS,.
* The address for all executive officers of the Fund is 2344 Spruce Street,
Suite A, Boulder, Colorado 80302.
Set forth in the following table are the nominees for election to the Board (all
of whom are current Directors of the Fund) together with the dollar range of
equity securities beneficially owned by each Director as of the Record Date.
OWNERSHIP OF THE FUND BY DIRECTORS
-------------------------------------------------------------------------------------------------------
Independent Directors and Nominees Dollar Range of Equity Aggregate Dollar Range of
Securities in the Fund Equity Securities in All Funds
in the Family of Investment
Companies
------------------------------------ --------------------------------- --------------------------------
Dean L. Jacobson Up to $10,001 $10,001 to $50,000
Richard I. Barr $10,001 to $50,000 Over $100,000
Joel W. Looney $50,001 to $100,000 Over $100,000
------------------------------------ --------------------------------- --------------------------------
------------------------------------ --------------------------------- --------------------------------
Interested Directors and Nominees
------------------------------------ --------------------------------- --------------------------------
Susan L. Ciciora Over $100,000+ Over $100,000
John S. Horejsi Over $100,000+ Over $100,000+
-------------------------------------------------------------------------------------------------------
+ 10,204,417 Shares of the Fund are held collectively by the Horejsi
Affiliates (defined above). Accordingly, Ms. Ciciora and Mr. Horejsi may be
deemed to have indirect beneficial ownership of such Shares. Ms. Ciciora
and Mr. Horejsi disclaim all such beneficial ownership. Neither Ms. Ciciora
nor Mr. Horejsi directly owns any shares of the Fund.
None of the Independent Directors or their family members owned beneficially or
of record any securities of the New Advisers, Wellington Management or any
person directly or indirectly controlling, controlled by, or under common
control with the New Advisers or Wellington Management.
DIRECTOR AND OFFICER COMPENSATION. The following table sets forth certain
information regarding the compensation of the Fund's Directors for the fiscal
year ended March 31, 2009. No persons (other than the Independent Directors, as
set forth below) currently receive compensation from the Fund for acting as a
Director or officer. Directors and executive officers of the Fund do not receive
pension or retirement benefits from the Fund. Independent Directors receive
reimbursement for travel and other out of pocket expenses incurred in connection
with Board meetings.
-------------------------------------------------------------------------------------------------------
Independent Directors Aggregate Compensation Total Compensation from the
from the Fund Paid to Directors Fund and Fund Complex Paid to
Directors+
------------------------------------ --------------------------------- --------------------------------
Dean L. Jacobson $28,500 $100,000
Richard I. Barr $28,500 $104,000
Joel W. Looney (Chairman) $35,500 $121,000
------------------------------------ --------------------------------- --------------------------------
------------------------------------ --------------------------------- --------------------------------
Interested Directors
------------------------------------ --------------------------------- --------------------------------
Susan L. Ciciora $0 $0
John S. Horejsi $0 $0
-------------------------------------------------------------------------------------------------------
+ Includes the Fund, Boulder Growth & Income Fund, Inc., Boulder Total Return
Fund, Inc. and The Denali Fund Inc.
Each Director of the Fund who is not a Director, officer, or employee of one of
the New Advisers, FAS, Wellington Management, or any of their affiliates,
receives a fee of $8,000 per annum plus $4,000 for each in person meeting of the
Board of Directors and $500 for each telephonic meeting of the Board. In
addition, the Chairman of the Board and the Chairman of the Audit Committee
receive $1,000 per meeting and each member of the Audit Committee receives $500
per meeting. Each Independent Director of the Fund is reimbursed for travel and
out-of-pocket expenses associated with attending Board and Committee meetings.
The Board held ten meetings (six of which were held by telephone conference
call) during the fiscal year ended March 31, 2009. Each Director currently
serving in such capacity for the entire fiscal year attended at least 75% of the
meetings of Directors and any Committee of which he is a member. The aggregate
remuneration paid to the Directors of the Fund for acting as such during the
fiscal year ended March 31, 2009 amounted to $92,500.
COMMITTEES OF THE BOARD OF DIRECTORS
AUDIT COMMITTEE; REPORT OF AUDIT COMMITTEE. The purpose of the Audit Committee
is to assist in Board oversight of the integrity of the Fund's financial
statements, the Fund's compliance with legal and regulatory requirements, the
independent auditor's qualifications and independence and the performance of the
Fund's independent auditors. The Audit Committee reviews the scope and results
of the Fund's annual audit with the Fund's independent accountants and
recommends the engagement of such accountants. Management, however, is
responsible for the preparation, presentation and integrity of the Fund's
financial statements, and the independent accountants are responsible for
planning and carrying out proper audits and reviews. The Board of Directors
adopted a written charter for the Audit Committee on August 19, 2003 and most
recently amended the joint Audit Committee Charter on January 25, 2008 to add
The Denali Fund Inc. Subsequent minor amendments to the Audit Committee Charter
were adopted on February 2, 2009. A copy of the Audit Committee Charter was
included in proxy materials delivered to stockholders on June 20, 2007.
The Audit Committee is composed entirely of the Fund's Independent Directors,
consisting of Dr. Jacobson and Messrs. Looney and Barr. The Board of Directors
has determined that Joel Looney qualifies as an "audit committee financial
expert," as defined under the Securities and Exchange Commission's Regulation
S-K, Item 401(h). The Audit Committee is in compliance with applicable rules of
the listing requirements for closed-end fund audit committees, including the
requirement that all members of the audit committee be "financially literate"
and that at least one member of the audit committee have "accounting or related
financial management expertise," as determined by the Board. The Audit Committee
is required to conduct its operations in accordance with applicable requirements
of the Sarbanes-Oxley Act, and the Fund's independent publicly registered
accounting firm is required to comply with the rules and regulations promulgated
under the Sarbanes-Oxley Act and by the Public Company Accounting Oversight
Board. The members of the Audit Committee are subject to the fiduciary duty to
exercise reasonable care in carrying out their duties. Each member of the Audit
Committee is independent, as that term is defined by the NYSE Listing Standards.
The Audit Committee met three times during the fiscal year ended March 31, 2009.
In connection with the audited financial statements as of and for the period
ended March 31, 2009 included in the Fund's Annual Report for the period ended
March 31, 2009 (the "Annual Report"), at a meeting held on ___________, 2009,
the Audit Committee considered and discussed the audited financial statements
with management and the independent accountants, and discussed the audit of such
financial statements with the independent accountants.
The Audit Committee has received the written disclosures and letter from the
independent accountants required by Independence Standards Board Standard No. 1
(Independence Discussions with Audit Committees) and has discussed with
independent accountants their independence. The Audit Committee discussed with
the independent accountants the accounting principles applied by the Fund and
such other matters brought to the attention of the Audit Committee by the
independent accountants required by Statement of Auditing Standards No. 61,
Communications With Audit Committees, as currently modified or supplemented.
On April 1, 2008 the Fund adopted the Financial Accounting Standards Board's
("FASB") Statement of Financial Accounting Standards No. 157 ("FAS 157"). FAS
157 is important in the context of helping the Fund define "fair value" for the
underlying securities or investments it holds. In addition, FAS 157 expands
disclosures about fair value measurements.
The members of the Audit Committee are not professionally engaged in the
practice of auditing or accounting and are not employed by the Fund in any
accounting, financial management, or internal control capacity. Moreover, the
Audit Committee relies on and makes no independent verification of the facts
presented to it or representations made by management or the independent
accountants. Accordingly, the Audit Committee's oversight does not provide an
independent basis to determine that management has maintained appropriate
accounting and financial reporting principles and policies, or internal controls
and procedures, designed to assure compliance with accounting standards and
applicable laws and regulations. Furthermore, the Audit Committee's
considerations and discussions referred to above do not provide assurance that
the audit of the Fund's financial statements has been carried out in accordance
with generally accepted accounting standards or that the financial statements
are presented in accordance with generally accepted accounting principles.
Based on its consideration of the audited financial statements and the
discussions referred to above with management and the independent accountants
and subject to the limitation on the responsibilities and role of the Audit
Committee set forth in the Audit Committee Charter and those discussed above,
the Audit Committee of the Fund recommended to the Board that the audited
financial statements be included in the Fund's Annual Report and be mailed to
stockholders and filed with the SEC.
Submitted by the Audit Committee of the Fund's Board of Directors: Joel W.
Looney, Richard I. Barr and Dean L. Jacobson
NOMINATING COMMITTEE. The Board of Directors has a nominating committee (the
"Nominating Committee") composed of the Fund's Independent Directors, consisting
of Dr. Jacobson and Messrs. Looney and Barr, which Nominating Committee is
responsible for considering candidates for election to the Board in the event a
position is vacated or created. Each member of the Nominating Committee is
independent, as that term is defined by the NYSE Listing Standards. The
Nominating Committee met on ___________, 2009 with regard to the nomination of
the Director nominees set forth in the proposal above. The Nominating Committee
met [once] during the fiscal year ended March 31, 2009. The Board of Directors
has adopted a charter for the Nominating Committee that is available on the
Fund's website, www.firstopportunityfund.com. The Nominating Committee does not
have a formal process for identifying candidates. The Nominating Committee takes
into consideration such factors as it deems appropriate when nominating
candidates. These factors may include judgment, skill, diversity, experience
with investment companies and other organizations of comparable purpose,
complexity, size and subject to similar legal restrictions and oversight, the
interplay of the candidate's experience with the experience of other Board
members, and the extent to which the candidate would be a desirable addition to
the Board and any committees thereof.
The Nominating Committee will consider all qualified candidates in the same
manner. The Nominating Committee may modify its policies and procedures for
director nominees and recommendations in response to changes in the Fund's
circumstances, and as applicable legal or listing standards change. The
Nominating Committee would consider director candidates recommended by
stockholders (if a vacancy were to exist) and submitted in accordance with
applicable law and procedures as described in this Proxy Statement (see
"Submission of Stockholder Proposals" below). Such recommendations should be
mailed to the Secretary of the Fund.
The Fund does not have a compensation committee.
OTHER BOARD-RELATED MATTERS
Stockholders who wish to send communications to the Board should send them to
the address of the Fund and to the attention of the Board. All such
communications will be directed to the Board's attention.
The Fund does not have a formal policy regarding Board member attendance at the
Annual Meeting of Stockholders; however, all of the Directors of the Fund who
were Directors at the time, attended the July 28, 2008, Annual Meeting of
Stockholders.
Required Vote. The election of each of Messrs. Looney, Barr and Horejsi, Dr.
Jacobson and Ms. Ciciora as Directors of the Fund will require the affirmative
vote of a plurality of the votes cast by holders of the Common Stock at the
Meeting in person or by proxy.
THE BOARD OF DIRECTORS, INCLUDING ALL OF THE INDEPENDENT DIRECTORS,
UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" THE ELECTION OF ALL
THE NOMINEES.
SUBMISSION OF STOCKHOLDER PROPOSALS
Notice is hereby given that for a stockholder proposal to be considered for
inclusion in the Fund's proxy material relating to its 2010 annual meeting of
stockholders, the stockholder proposal must be addressed to, and received by,
the Fund not earlier than _____________, 2009 and not later than ____________,
2009 Any such proposal shall set forth as to each matter the stockholder
proposes to bring before the meeting (i) a brief description of the business
desired to be brought before the meeting and the reasons for conducting such
business at the meeting, (ii) the name and address, as they appear on the Fund's
books, of the stockholder proposing such business, (iii) the class and number of
shares of the capital stock of the Fund which are beneficially owned by the
stockholder, and (iv) any material interest of the stockholder in such business.
Stockholder proposals, including any accompanying supporting statement, may not
exceed 500 words. A stockholder desiring to submit a proposal must be a record
or beneficial owner of Shares with a market value of at least $2,000 and must
have held such Shares for at least one year. Further, the stockholder must
continue to hold such Shares through the date on which the meeting is held.
Documentary support regarding the foregoing must be provided along with the
proposal. Joint proposals to more than one fund are not permissible;
stockholders may not submit one proposal (plus the required additional
documentation) for more than one fund. There are additional requirements
regarding proposals of stockholders, and a stockholder contemplating submission
of a proposal is referred to Rule 14a-8 promulgated under the Securities
Exchange Act of 1934 (the "Exchange Act"). The timely submission of a proposal
does not guarantee its inclusion in the Fund's proxy materials.
Pursuant to the Fund's Bylaws, at any annual meeting of the stockholders, only
business that has been properly brought before the meeting will be conducted. To
be properly brought before the annual meeting, the business must be (i)
specified in the notice of meeting, (ii) by or at the direction of the Board of
Directors, or (iii) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before the annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Fund. To be timely, a stockholder's notice must be received
by the Secretary at 2344 Spruce Street, Suite A, Boulder, Colorado 80302 by 5:00
P.M. Mountain Time not earlier than the 150th day and not later than the 120th
day prior to the first anniversary of the date of public release of the notice
for the preceding year's annual meeting. However, if the date of the annual
meeting is advanced or delayed by more than 30 days from the first anniversary
of the date of the preceding year's annual meeting, for notice by the
stockholder to be timely, it must be received by the Secretary not later than
5:00 P.M. Mountain Time on the later of the 120th day prior to the date of such
annual meeting or the tenth day following the day on which public announcement
of the date of such meeting is first made. The public announcement of a
postponement or adjournment of an annual meeting shall not commence a new time
period for the giving of a stockholder's notice as described above.
Pursuant to the Fund's Bylaws, such stockholder's notice shall set forth (i) as
to each individual whom the stockholder proposes to nominate for election or
reelection as a director, (A) the name, age, business address and residence
address of such individual, (B) the class, series and number of any shares of
stock of the Fund that are beneficially owned by such individual, (C) the date
such shares were acquired and the investment intent of such acquisition, (D)
whether such stockholder believes any such individual is, or is not, an
"interested person" of the Fund, as defined in the 1940 Act and information
regarding such individual that is sufficient, in the discretion of the Board of
Directors or any committee thereof or any authorized officer of the Fund, to
make such determination, (E) the extent to which such individual (including such
individual's principals) has entered into any hedging transaction or arrangement
with the effect or intent of mitigating or otherwise managing profit, loss or
risk of changes in the value of the common stock or the daily quoted market
price of the Fund held by such individual (including such individual's
principals), or increasing or decreasing the voting power of such individual
(including such individual's principals), including independently verifiably
information in support of the foregoing, (F) the investment strategy or
objective - including any related disclosure documents or other independently
verifiable information in support of the foregoing - for such individual
(including such individual's principals), and (G) all other information relating
to such individual that is required to be disclosed in solicitations of proxies
for election of directors in an election contest (even if an election contest is
not involved), or is otherwise required, in each case pursuant to Regulation 14A
(or any successor provision) under the Exchange Act and the rules thereunder
(including such individual's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (ii) as to any
other business that the stockholder proposes to bring before the meeting, a
description of such business, the reasons for proposing such business at the
meeting and any material interest in such business of such stockholder and any
Stockholder Associated Person (as defined below), individually or in the
aggregate, including any anticipated benefit to the stockholder and the
Stockholder Associated Person therefrom; (iii) as to the stockholder giving the
notice and any Stockholder Associated Person, the class, series and number of
all shares of stock of the Fund which are owned by such stockholder and by such
Stockholder Associated Person, if any, and the nominee holder for, and number
of, shares owned beneficially but not of record by such stockholder and by any
such Stockholder Associated Person; (iv) as to the stockholder giving the notice
and any Stockholder Associated Person covered by the immediately preceding
clauses (ii) or (iii), the name and address of such stockholder, as they appear
on the Fund's stock ledger and current name and address, if different, and of
such Stockholder Associated Person; and (v) to the extent known by the
stockholder giving the notice, the name and address of any other stockholder
supporting the nominee for election or reelection as a director or the proposal
of other business on the date of such stockholder's notice. "Stockholder
Associated Person" of any stockholder shall mean (i) any person controlling,
directly or indirectly, or acting in concert with, such stockholder, (ii) any
beneficial owner of shares of stock of the Fund owned of record or beneficially
by such stockholder and (iii) any person controlling, controlled by or under
common control with such Stockholder Associated Person. Stockholders may not
submit more than one notice (plus the required additional documentation) for
more than one Fund.
ADDITIONAL INFORMATION
INDEPENDENT ACCOUNTANTS. At its regularly scheduled Board meeting held on April
24, 2009, the Audit Committee of the Board, consisting of those Directors who
are not "interested persons" (as defined in the 1940 Act) of the Fund, selected,
and the Board ratified, the selection of Deloitte & Touche LLP ("Deloitte") of
Denver, Colorado as the Fund's independent registered public accounting firm for
the Fund's fiscal year ending March 31, 2010. Deloitte served as independent
accountants for the Fund's fiscal years ending March 31, 2008 and March 31,
2009.
In addition to performing independent audit services for the Fund, Deloitte also
performs certain non-audit related services, i.e., tax, and consulting, on
behalf of the Fund's adviser, Wellington Management Company, L.P. (the
"investment adviser"). Under the Sarbanes-Oxley rules, as adopted by the SEC,
and under the Audit Committee Charter, the Audit Committee must pre-approve all
non-audit services to be provided by the auditors to the Fund, and all non-audit
services to be provided by the auditors to the Fund's investment adviser and any
service providers controlling, controlled by or under common control with the
Fund's investment adviser ("adviser affiliates") that provide on-going services
to the Fund, if the engagement relates directly to the operations and financial
reporting of the Fund, or must establish detailed pre-approval policies and
procedures for such services in accordance with applicable laws. The Audit
Committee has reviewed the non-audit services to be provided by Deloitte to the
investment adviser (no such services are provided to the Fund) and has
pre-approved the provision of those services. Accordingly, all of the audit,
audit-related, non-audit, and tax services described below for which Deloitte
billed the Fund fees for the fiscal years ended March 31, 2008 and March 31,
2009, were either pre-approved by the Audit Committee or were for services that
were unrelated to the direct operations and/or financial reporting of the Fund.
Deloitte has informed the Fund that it has no direct or indirect financial
interest in the Fund.
A representative of Deloitte will not be present at the Meeting but will be
available by telephone and will have an opportunity to make a statement if the
representative so desires and will be available to respond to appropriate
questions.
Set forth below are audit fees and non-audit related fees billed to the Fund for
professional services received from Deloitte for the Fund's fiscal years ended
March 31, 2008 and March 31, 2009.
Fiscal Year Ended Audit Fees Audit-Related Fees Tax Fees* All Other Fees
3/31/2008 $29,000 $ - $5,175 $ -
3/31/2009 $29,000 $ - $7,250 $ -
* "Tax Fees" are those fees billed to the Fund by Deloitte in connection
with tax consulting services, including primarily the review of the Fund's
income tax returns.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE. Section 16(a) of the
Exchange Act and Section 30(h) of the 1940 Act require the Fund's Directors and
officers, persons affiliated with the Fund's investment advisers, and persons
who own more than 10% of a registered class of the Fund's securities, to file
reports of ownership and changes of ownership with the SEC and the New York
Stock Exchange. Directors, officers and greater-than-10% stockholders are
required by SEC regulations to furnish the Fund with copies of all Section 16(a)
forms they file. Based solely upon the Fund's review of the copies of such forms
it receives and written representations from such persons, the Fund believes
that through the date hereof all such filing requirements applicable to such
persons were complied with.
BROKER NON-VOTES AND ABSTENTIONS. A proxy for shares held by brokers or nominees
as to which (i) instructions have not been received from the beneficial owners
or the persons entitled to vote and (ii) the broker or nominee does not have
discretionary voting power on a particular matter, is a broker "non-vote".
Proxies that reflect abstentions or broker non-votes (collectively
"abstentions") will be counted as shares that are present and entitled to vote
on the matter for purposes of determining the presence of a quorum. Accordingly,
abstentions and broker non-votes effectively will be a vote against adjournment
and Proposals 1, 2, 3, 4, 5 and 6.
OTHER MATTERS TO COME BEFORE THE MEETING. The Fund does not intend to present
any other business at the Meeting, nor is it aware that any stockholder intends
to do so. If, however, any other matters are properly brought before the
Meeting, the persons named in the accompanying form of proxy will vote thereon
in accordance with their discretion.
--------------------------------------------------------------------------------
IT IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY EVEN IF YOU PLAN TO ATTEND THE
MEETING. STOCKHOLDERS ARE URGED TO SIGN THE ENCLOSED PROXY CARD (UNLESS
AUTHORIZING THEIR PROXY VIA TOUCH-TONE TELEPHONE OR THROUGH THE INTERNET) AND
MAIL IT IN THE ENCLOSED ENVELOPE SO AS TO ENSURE A QUORUM AT THE MEETING. THIS
IS IMPORTANT WHETHER YOU OWN FEW OR MANY SHARES. INSTRUCTIONS FOR THE PROPER
EXECUTION OF PROXIES ARE SET FORTH ON THE INSIDE COVER.
--------------------------------------------------------------------------------
EXHIBIT A-1
PROPOSED INVESTMENT CO-ADVISORY AGREEMENT WITH RMA
EXHIBIT A-2
PROPOSED INVESTMENT CO-ADVISORY AGREEMENT WITH SIA
EXHIBIT B
PROPOSED SUB-ADVISORY AGREEMENT WITH WELLINGTON MANAGEMENT
EXHIBIT C
FORM OF ARTICLES OF AMENDMENT
[GRAPHIC OMITTED]
FIRST OPPORTUNITY FUND, INC.
www.firstopportunityfund.com
PROXY
FIRST OPPORTUNITY FUND, INC.
PROXY SOLICITED BY THE BOARD OF DIRECTORS
The undersigned holder of shares of Common Stock of First Opportunity Fund,
Inc., a Maryland corporation (the "Fund"), hereby appoints Stephen C. Miller,
Carl D. Johns, and Nicole L. Murphey, or any of them, as proxies for the
undersigned, with full powers of substitution in each of them, to attend the
Annual Meeting of Stockholders (the "Annual Meeting") to be held at
____________________ at ___ a.m. Pacific Daylight Time (local time), on
_____________, 2009, and any adjournments or postponements thereof, to cast on
behalf of the undersigned all votes that the undersigned is entitled to cast at
the Annual Meeting and to otherwise represent the undersigned at the Annual
Meeting with all the powers possessed by the undersigned if personally present
at the Meeting.
The votes entitled to be cast will be cast as instructed below. If this Proxy is
executed but no instruction is given, the votes entitled to be cast by the
undersigned will be cast "FOR" each of the proposals described in the Proxy
Statement.
The undersigned hereby acknowledges receipt of the Notice of Annual Meeting and
Proxy Statement. In their discretion, the proxies are authorized to vote upon
such other business as may properly come before the Meeting. A majority of the
proxies present and acting at the Special Meeting in person or by substitute
(or, if only one shall be so present, then that one) shall have and may exercise
all of the power and authority of said proxies hereunder. The undersigned hereby
revokes any proxy previously given.
CONTINUED AND TO BE SIGNED ON REVERSE SIDE
Please indicate your vote by an "X" in the appropriate box below.
This proxy, if properly executed, will be voted in the manner directed by the
undersigned stockholder. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR
ALL PROPOSALS.
Please refer to the Proxy Statement for a discussion of the Proposals.
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
1. To approve or disapprove the proposed investment advisory FOR____ AGAINST___ ABSTAIN ___
agreement with Rocky Mountain Advisers, LLC.
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
----------------------------------------------------------------------------------------------------------------------------------
THE BOARD OF DIRECTORS, INCLUDING ALL OF THE INDEPENDENT DIRECTORS, UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" THIS
PROPOSAL, AS MORE FULLY DESCRIBED IN THE PROXY STATEMENT
----------------------------------------------------------------------------------------------------------------------------------
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
2. To approve or disapprove the proposed investment advisory FOR___ AGAINST ___ ABSTAIN ___
agreement with Stewart Investment Advisers.
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
----------------------------------------------------------------------------------------------------------------------------------
THE BOARD OF DIRECTORS, INCLUDING ALL OF THE INDEPENDENT DIRECTORS, UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" THIS
PROPOSAL, AS MORE FULLY DESCRIBED IN THE PROXY STATEMENT
----------------------------------------------------------------------------------------------------------------------------------
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
3. To approve or disapprove the proposed investment FOR ___ AGAINST ___ ABSTAIN ____
sub-advisory agreement with Wellington Management LLP.
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
----------------------------------------------------------------------------------------------------------------------------------
THE BOARD OF DIRECTORS, INCLUDING ALL OF THE INDEPENDENT DIRECTORS, UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" THIS
PROPOSAL, AS MORE FULLY DESCRIBED IN THE PROXY STATEMENT
----------------------------------------------------------------------------------------------------------------------------------
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
4. To approve or disapprove elimination of the Fund's FOR ___ AGAINST ___ ABSTAIN ___
fundamental policy of investing at least 65% of its assets
in financial services companies (the "Concentration
Policy").
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
----------------------------------------------------------------------------------------------------------------------------------
THE BOARD OF DIRECTORS, INCLUDING ALL OF THE INDEPENDENT DIRECTORS, UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" THIS
PROPOSAL, AS MORE FULLY DESCRIBED IN THE PROXY STATEMENT
----------------------------------------------------------------------------------------------------------------------------------
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
5. To approve or disapprove amending the Concentration Policy FOR ___ AGAINST ___ ABSTAIN ___
to reduce the Fund's minimum threshold for investing in
financial services companies to 25%.
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
----------------------------------------------------------------------------------------------------------------------------------
THE BOARD OF DIRECTORS, INCLUDING ALL OF THE INDEPENDENT DIRECTORS, UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" THIS
PROPOSAL, AS MORE FULLY DESCRIBED IN THE PROXY STATEMENT
----------------------------------------------------------------------------------------------------------------------------------
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
6. To approve or disapprove an amendment to the Fund's FOR ___ AGAINST ___ ABSTAIN ____
charter classifying the board of directors of the Fund
into three separate classes and making related changes to
the charter
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
----------------------------------------------------------------------------------------------------------------------------------
THE BOARD OF DIRECTORS, INCLUDING ALL OF THE INDEPENDENT DIRECTORS, UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" THIS
PROPOSAL, AS MORE FULLY DESCRIBED IN THE PROXY STATEMENT
----------------------------------------------------------------------------------------------------------------------------------
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
7. Election of Directors: Nominees are Richard I. Barr, John FOR ___ WITHHOLD ___ FOR ALL EXCEPT ____
S. Horejsi, Susan L. Ciciora, Dr. Dean L. Jacobson, and
Joel W. Looney
------------ ------------------------------------------------------------ ----------- ------------------ -------------------------
----------------------------------------------------------------------------------------------------------------------------------
Instruction: If you do not wish your shares voted "for" a particular nominee, mark the "For All Except" box and strike a line
through the name(s) of the nominee(s). Your shares will be voted "For" the remaining nominee(s). THE BOARD OF DIRECTORS,
INCLUDING ALL OF THE INDEPENDENT DIRECTORS, UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" ELECTION OF ALL THE NOMINEES
----------------------------------------------------------------------------------------------------------------------------------
MARK HERE FOR ADDRESS CHANGE AND NOTE AT LEFT ____
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE.
NOTE: Please sign exactly as your name appears on this Proxy. If joint owners,
EACH should sign this Proxy. When signing as attorney, executor, administrator,
trustee, guardian or corporate officer, please give your full title.
Signature:
-------------------------
Date:
-------------------------
Signature:
-------------------------
Date:
-------------------------