SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF
THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. __)
Filed by the Registrant [x]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[x] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to (ss.) 240.14a-11(c) or (ss.)
240.14a-12
Foxby Corp.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement if other than the Registrant)
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 transaction applies: (2)
Aggregate number of securities to which transaction applies: (3) Per unit
price or other underlying value of transaction computed pursuant to
Exchange Act
Rule 0-11 (Set forth the amount on which the filing fee is calculated
and state how it was determined):
(4) Proposed maximum aggregate value of transaction: (5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.: (3) Filing Party: (4)
Date Filed:
FOXBY CORP.
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Notice of Annual Meeting of Stockholders
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To the Stockholders:
Notice is hereby given that the 2004 Annual Meeting of Stockholders of
Foxby Corp. (the "Fund") will be held at the offices of the Fund at 11 Hanover
Square, 12th Floor, New York, New York on Tuesday, September 7, 2004 at 8:30
a.m., local time, for the following purpose:
1. To elect to the Board of Directors the Nominees, James E. Hunt as a
Class I Director, Bruce B. Huber as a Class II Director, and John B.
Russell as a Class V Director.
Stockholders of record at the close of business on June 30, 2004 are
entitled to receive notice of and to vote at the meeting.
By Order of the Board of Directors
/s/ Monica Pelaez
Monica Pelaez
Secretary
New York, New York
July 17, 2004
Please Vote Immediately by Signing and Returning the
Enclosed Proxy Card. Delay may cause the Fund to incur additional
expenses to solicit votes for the Meeting.
FOXBY CORP.
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PROXY STATEMENT
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Annual Meeting of Stockholders
to be held September 7, 2004
This Proxy Statement, dated July 17, 2004, is furnished in connection
with a solicitation of proxies by the Board of Directors (the "Board) of the
Foxby Corp. (the "Fund") to be voted at the 2004 Annual Meeting of Stockholders
of the Fund to be held at the offices of the Fund at 11 Hanover Square, 12th
Floor, New York, New York on Tuesday, September 7, 2004 at 8:30 a.m., and at any
postponement or adjournment thereof ("Meeting") for the purpose set forth in the
accompanying Notice of Annual Meeting of Stockholders. Only stockholders of
record at the close of business on June 30, 2004 ("Record Date") are entitled to
be present and to vote at the Meeting. Stockholders are entitled to one vote for
each Fund share held, and fractional votes for each fractional Fund share held.
Shares represented by executed and unrevoked proxies will be voted in accordance
with the instructions on the Proxy Card. A stockholder may revoke a proxy by
delivering to the Fund a signed proxy with a date later than the previously
delivered proxy or by sending a written revocation to the Fund. To be effective,
such revocation must be received prior to the Meeting. In addition, any
stockholder who attends the Meeting in person may vote by ballot at the Meeting,
thereby canceling any proxy previously given. As of the Record Date, the Fund
had 2,602,847 shares of common stock issued and outstanding. Stockholders of the
Fund vote as a single class.
It is estimated that proxy materials will be mailed to stockholders as
of the Record Date on or about July 23, 2004. The Fund's principal executive
offices are located at 11 Hanover Square, New York, New York 10005. Copies of
the Fund's most recent Annual and Semi-Annual Reports are available without
charge upon written request to the Fund at 11 Hanover Square, New York, New York
10005, or by calling toll-free 1-800-937-5449.
Proposal 1: Election of Directors
At the Board of Directors meeting held on June 9, 2004, the Fund's
Board approved an increase in the number of directors from four to five and an
increase in the number of classes of directors from four classes to five with
the term of office of one class expiring each year. At this meeting, the Board
approved the nominations of James E. Hunt as a Class I Director, Bruce B. Huber
as a Class II Director, and John B. Russell as a Class V Director, each to hold
office until, respectively, the 2008 annual meeting, 2009 annual meeting, and
2007 annual meeting, and until his successor is duly elected and qualifies.
George B. Langa resigned as a Class I member of the Board of Directors of the
Fund effective April 16, 2004. James E. Hunt was elected as a Class I Director
by the Board at a Special Meeting held on April 30, 2004. David R. Stack, who
currently serves as a Class II Director of the Fund, will resign effective upon
the date Bruce B. Huber is duly elected and qualifies. In the event Bruce B.
Huber is not duly elected, as proposed and qualifies, David R. Stack shall be
deemed holding over and shall continue to manage the business and affairs of the
Fund as a member of the Board of Directors until his successor is duly elected
and qualifies. If James E. Hunt, Bruce B. Huber, and John B. Russell are elected
as proposed, the size of the Board will be increased accordingly from four to
five members. The nominees will be elected by a plurality of the votes cast at
the Meeting. Unless otherwise noted, the address of record for the Directors and
officers is 11 Hanover Square, New York, New York 10005. The following table
sets forth certain information concerning the nominees for Class I, Class II and
Class V Directors of the Fund.
- 1 -
Number of Portfolios Other Public
Name, Principal Occupation, Business in Investment Company
Experience for Past Five Years, Address, Director Company Complex Directorships
and Age Since Overseen by Director Held by Director
- ------------------------------------------------------- ------------------ ----------------------------- ----------------------
Non-interested Nominees:
Class I:
JAMES E. HUNT - He is a Managing Director 2004 5 0
of Hunt Howe Partners LLC executive recruiting
consultants. He was born on December 14,
1930.
Class II:
BRUCE B. HUBER, CLU, ChFC, MSFS - He - 3 0
is a Financial Representative with New England
Financial, specializing in financial, estate and
insurance matters. He was born on February 7, 1930.
Class V:
JOHN B. RUSSELL - He is a Director of - 3 0
Wheelock, Inc., a manufacturer of signal
products, and a consultant for the National
Executive Service Corps. He was born on
February 9, 1923.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS YOU VOTE FOR THE NOMINEES.
The following table sets forth certain information concerning the other
Directors currently serving on the Board of the Fund. Each Director who is
deemed to be an "interested person" because he is an "affiliated person" as
defined in the Investment Company Act of 1940, as amended (the "1940 Act"), is
indicated by an asterisk.
Number of Portfolios Other Public
Name, Principal Occupation, Business in Investment Company
Experience for Past Five Years, Address, Director Company Complex Directorships
and Age Since Overseen by Director Held by Director
- ------------------------------------------------------- ------------------ ----------------------------- ----------------------
Non-interested Director:
Class III:
PETER K. WERNER - Since 1996 he has 2002 5 None
taught and directed many programs at The
Governor Dummer Academy. Previously he was
Vice President of Money Market Trading at
Lehman Brothers. He was born on August 16,
1959.
- 2 -
Number of Portfolios Other Public
Name, Principal Occupation, Business in Investment Company
Experience for Past Five Years, Address, Director Company Complex Directorships
and Age Since Overseen by Director Held by Director
- ------------------------------------------------------- ------------------ ----------------------------- ----------------------
Interested Director:
Class IV:
THOMAS B. WINMILL* - He is President, 2002 5 Winmill & Co.
Chief Executive Officer, and General Counsel of Incorporated, Bexil
the Fund, as well as the other investment Corporation and Tuxis
companies (collectively, the "Investment Corporation
Company Complex") advised by CEF Advisers,
Inc. (the "Investment Manager") and its affiliates,
and of Winmill & Co. Incorporated ("WCI"). He also
is President of the Investment Manager. He is a
member of the New York State Bar and the SEC Rules
Committee of the Investment Company Institute. He
was born on June 25, 1959.
* He is an "interested person" of the Fund as defined in the 1940 Act due to his
affiliation with the Investment Manager.
The persons named in the accompanying form of proxy intend to vote each
such proxy FOR the election of the nominees listed above, unless a stockholder
specifically indicates on a proxy the desire to withhold authority to vote for
the nominees. It is not contemplated that the nominees will be unable to serve
as a Director for any reason, but if that should occur prior to the Meeting, the
proxy holders reserve the right to substitute another person or persons of their
choice as nominees. The nominees listed above have consented to being named in
this Proxy Statement and have agreed to serve as Directors if elected.
The Fund has an audit committee, the function of which is routinely to
review financial statements and other audit- related matters as they arise
throughout the year. The Fund has a nominating committee the function of which
is to identify and evaluate nominees for director and make its recommendations
to the Board. The Fund has an executive committee comprised of Thomas B.
Winmill, the function of which is to exercise the powers of the Board of
Directors between meetings of the Board to the extent permitted by law to be
delegated and not delegated by the Board to any other committee. The Fund has a
committee of Continuing Directors, as defined in th Bylaws to take such actions
as are required by the Charter and Bylaws of the Fund. Mr. Winmill is an
"interested person" because he is an "affiliated person" as defined in the 1940
Act. The Fund has no standing compensation committee or any committee performing
similar functions.
Unless otherwise noted, the address of record for the officers is 11
Hanover Square, New York, New York 10005. The executive officers, other than
those who serve as Directors, and their relevant biographical information are
set forth below:
Name and Age Principal Occupation During Past 5 years
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William G. Vohrer Chief Accounting Officer, Chief Financial Officer,
Born on August 17, 1950 Treasurer and Vice President since 2001.
He also is Chief Accounting Officer,
Chief Financial Officer, Treasurer and Vice
President of the other investment companies in the
Investment Company Complex, the Investment Manager
and WCI and its affiliates. From 1999 to 2001, he
consulted on accounting matters.Prior to 1999, he
was Chief Financial Officer and Financial
Operations Principal for Nafinsa Securities,Inc., a
Mexican securities broker/dealer.
- 3 -
Marion E. Morris Senior Vice President since 2000. She is also a
Born on June 17, 1945 Senior Vice President of the other investment
companies in the Investment Company Complex, the
Investment Manager and WCI and its affiliates.She
is Director of Fixed Income and a member of the
Investment Policy Committee of the Investment
Manager.From 1997 to 2000, she acted as general
manager of Michael Trapp, a landscape designer.
Previously, she served as Vice President of Salomon
Brothers, The First Boston Corporation, and Cantor
Fitzgerald.
Monica Pelaez Vice President, Secretary and Chief Compliance
Born on November 5, 1971 Officer since 2000.She also is Vice President,
Secretary and Chief Compliance Officer of the other
investment companies in the Investment Company
Complex, the Investment Manager, and WCI and its
affiliates.Previously, she was Special Assistant
Corporation Counsel to New York City Administration
for Children's Services from 1998 to 2000. She is a
member of the New York State Bar.
The following table sets forth information regarding the beneficial
ownership of the Fund's outstanding shares as of the Record Date by (i) each
director, nominee and executive officer and (ii) all directors and executive
officers as a group.
Name of Director, Nominee or Officer Number of Shares Percent of Outstanding Shares
- ------------------------------------------------ ---------------------------------- -----------------------------------------------
Non-interested Nominees:
Bruce B. Huber None **
James E. Hunt None **
John B. Russell None **
Non-interested Director:
Peter K. Werner None **
Interested Director:
Thomas B. Winmill 200 **
Officers:
Marion E. Morris None **
Monica Pelaez None **
William G. Vohrer None **
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Total shares held by directors and officers 200 **
as a group === ==
** Less than 1% of the outstanding shares
Management believes that the following stockholders beneficially owned
5% or more of the outstanding shares of the Company:
Approximate Percentage
of the Company's Total
Name and Address Common Stock Outstanding Shares
- ------------------------------ ----------------- -------------------------
Richard J. Shaker (1) 379,100 shares 14.60%
D.B.A. Shaker Financial Services
1094 Magothy Circle
Annapolis, Maryland 21401
- 4 -
Investor Service Center, Inc. 184,000 shares 7.07%
11 Hanover Square
New York, New York 10005
Winmill & Co. Incorporated* 184,000 shares 7.07%
11 Hanover Square
New York, New York 10005
Bassett S. Winmill** 184,000 shares 7.07%
11 Hanover Square
New York, New York 10005
CSS LLC (2) 137,900 shares 5.30%
175 W. Jackson Street, Ste. 440
Chicago, IL 60604
(1) According to a Schedule 13G/A filed July 12, 2004.
(2) According to a Schedule 13G filed February 10, 2004.
* Winmill & Co. Incorporated has indirect beneficial ownership of these shares,
as a result of its status as a controlling person of Investor Service Center,
Inc., the direct beneficial owner.
**Bassett S. Winmill has indirect beneficial ownership of 184,000 of these
shares, as a result of his status as a controlling person of Winmill & Co.
Incorporated and Investor Service Center, Inc. the direct beneficial owner. Mr.
Winmill disclaims beneficial ownership of the shares held by Investor Service
Center, Inc.
The following table sets forth information describing the dollar range
of equity securities beneficially owned by each Director and nominee of the Fund
and, on an aggregate basis, the Investment Company Complex as of the Record
Date:
Aggregate Dollar Range of Equity
Securities in All Registered Investment
Dollar Range of Equity Companies Overseen by Director in
Name of Director, Nominee or Officer Securities in the Fund Investment Company Complex
- ------------------------------------------------ ---------------------------------- ------------------------------------------------
Non-interested Nominees:
Bruce B. Huber None N/A
James E. Hunt None $10,001-$50,000
John B. Russell None $10,001-$50,000
Non-interested Director:
Peter K. Werner None $1-$10,000
Interested Director:
Thomas B. Winmill $1-$10,000 $50,001-$100,000
Currently, the Fund pays its Directors who are not "interested persons"
or affiliated with the Investment Manager, an annual retainer of $500, and a per
meeting fee of $625, and reimburses them for their meeting expenses. The Fund
also pays such Directors $250 per special telephonic meeting attended and per
committee meeting attended. The Fund does not pay any other remuneration to its
executive officers and Directors, and the Fund has no bonus, pension,
profit-sharing or retirement plan. The Fund had four regular Board meetings, one
special Board meetings, two audit committee meetings, two special committee
meetings and no executive committee or nominating committee meetings during the
Fund's most recently completed full fiscal year ended December 31, 2003. Each
Director attended all Board and committee meetings held during such periods
during the time such Director was in office.
The aggregate amount of compensation paid to each Director and nominee
by the Fund and by the other investment companies in the Investment Company
Complex for which such Director or nominee was a board member (the number
- 5 -
of which is set forth in parenthesis next to the Director or nominee's name) for
the year ended December 31, 2003, is as follows:
Name of Director or Nominee
(Current Total Number of Investment Aggregate Compensation Total Compensation from the Fund and
Companies)* from the Fund Investment Company Complex
- ------------------------------------------------ ---------------------------------- ------------------------------------------------
Non-interested Nominees:
Bruce B. Huber (3) None $15,500
James E. Hunt (5) None $15,500
John B. Russell (3) None $15,500
Non-interested Director:
Peter K. Werner (5) $3,625 $17,250
Interested Director:
Thomas B. Winmill (5) $0 $0
* During the fiscal year 2003 there were five investment companies managed by
the Investment Manager and its affiliated investment adviser.
The Investment Manager, located at 11 Hanover Square, New York, New
York 10005, is a wholly-owned subsidiary of WCI, a publicly-owned company whose
securities are listed on The Nasdaq Stock Market. During the fiscal year ended
December 31, 2003, the Fund paid the Investment Manager investment management
fees of $67,731. Bassett S. Winmill, a Director of the Fund, may be deemed a
controlling person of WCI on the basis of his ownership of 100% of WCI's voting
stock and, therefore, a controlling person of the Investment Manager.
During the fiscal year ended December 31, 2003, Mr. Thomas B. Winmill
made several purchases and sales of shares of WCI, the parent of the Investment
Manager. Some transactions were made in connection with the WCI Long- Term
Incentive Plan. The table below describes such transactions:
Approximate Percentage of
Name and Principal Position Acquired or Disposed Number of Shares Outstanding Shares
- ------------------------------ -------------------------- ---------------------- -------------------------------
Thomas B. Winmill Acquired 55,000 3.51%
President Acquired 25,000 1.60%
Disposed 31,875 2.03%
Disposed 36,164 2.31%
Audit Committee Report
In accordance with its written charter adopted by the Board of
Directors, the Audit Committee assists the Board of Directors in fulfilling its
responsibility for oversight of the quality and integrity of the Fund's
financial reporting practices. The purposes of the Audit Committee are (i) to
oversee the Fund's accounting and financial reporting policies and practices,
its internal controls and, as appropriate, the internal controls of certain
service providers; (ii) to oversee the quality and objectivity of the Fund's
financial statements and the independent audit thereof; and (iii) to act as a
liaison between the Fund's independent auditors and the full Board of Directors.
The Audit Committee met twice in fiscal 2003.
In discharging its oversight responsibility as to the audit process,
the Audit Committee discussed with the independent auditors their independence
from the Fund and its management. In addition, the independent auditors provided
the Audit Committee with written disclosure regarding their independence and the
letter required by Independence Standards Board Standard No. 1. The Audit
Committee discussed and reviewed with the independent auditors all
communications required by generally accepted auditing standards, including
those described in Statement on Auditing Standards No. 61, "Communication with
Audit Committees," and discussed and reviewed the results of the independent
auditors' examination of the Fund's financial statements. The Audit Committee
- 6 -
reviewed the audited financial statements of the Fund for the fiscal year ended
December 31, 2003 with management and the independent auditors. Management has
the responsibility for the preparation of the Fund's financial statements and
the independent auditors have the responsibility for the examination of those
statements. Based upon review and discussions with management and the
independent auditors, the Audit Committee recommended to the Board of Directors
that the Fund's audited financial statements be included in its Annual Report
for the fiscal year ended December 31, 2003 for filing with the Securities and
Exchange Commission.
This report shall not be deemed incorporated by reference by any
general statement incorporating by reference this Proxy Statement into any
filing under the Securities Act of 1933, as amended, or the Securities Act of
1934, as amended, and shall not otherwise be deemed filed under such Acts. The
Audit Committee Members are: James E. Hunt, David R. Stack, and Peter K. Werner.
The Audit Committee members are independent, as defined in section 121(A) of the
listing standards of the American Stock Exchange.
Tait, Weller & Baker ("Tait, Weller") has been selected as independent
accountants for the Fund for the fiscal period commencing January 1, 2004. Tait,
Weller also acts as independent accountants of the Investment Manager, its
affiliates, and the other investment companies in the Investment Company
Complex. Apart from its fees received as independent auditors, neither Tait,
Weller nor any of its partners has a direct, or material indirect, financial
interest in the Fund or its affiliates. Representatives of Tait, Weller are not
expected to be present at the Meeting but have been given the opportunity to
make a statement if they so desire and are expected to be available to respond
to appropriate questions.
The Fund's financial statements for the fiscal years ended December 31,
2002 and 2003 were audited by Tait, Weller. The following table sets forth the
aggregate fees billed for professional services rendered by Tait, Weller:
Fiscal Year Ended Audit-Related All Aggregate Non-
December 31 Audit Fees Fees Tax Fees Other Fees Audit Fees*
- ---------------------- ---------------- ---------------- -------------- -------------- ----------------
2002 $8,500 $0 $2,500 $0 $34,250
2003 $8,000 $1,000 $2,000 $0 $41,065
- ---------------------- ---------------- ---------------- -------------- -------------- ----------------
* Tait, Weller also provides audit and non-audit services to the
Investment Manager, its affiliates, and the other investment companies in the
Investment Company Complex. The Audit Committee has considered the provision of
these services and has determined such services to be compatible with
maintaining Tait, Weller's independence. The following table sets forth the
aggregate fees billed for such professional services rendered by Tait, Weller:
Pursuant to the Fund's Audit Committee Charter, the Audit Committee
shall consider for pre-approval any non- audit services proposed to be provided
by the auditors to the Fund, and any non-audit services proposed to be provided
by such auditors to the Fund's investment manager, if any, which have a direct
impact on Fund operations or financial reporting. Such pre-approval of non-audit
services proposed to be provided by the auditors to the Fund is not necessary,
however, under the following circumstances: (i) all such services do not
aggregate to more than 5% of total revenues paid by the Fund to the auditor in
the fiscal year in which services are provided, (ii) such services were not
recognized as non- audit services at the time of the engagement, and (iii) such
services are brought to the attention of the Audit Committee, and approved by
the Audit Committee, prior to the completion of the audit.
Nominating Committee
The Board of Directors has a Nominating Committee composed of three
independent Directors. The members of the Nominating Committee are Messrs. James
E. Hunt, David R. Stack, and Peter K. Werner. Established in June 2004, the
Nominating Committee did not meet during the fiscal year ended December 31,
2003. The Nominating Committee generally meets once annually to identify and
evaluate nominees for director and make recommendations to the Board.
The Fund's Board of Directors adopted a charter for its Nominating
Committee, a copy of which is attached as Exhibit A. Pursuant to the charter,
the Nominating Committee identifies, evaluates and selects and nominates, or
recommends to the Board of Directors, candidates for the Board. It also may set
standards or qualifications for Directors. The Nominating Committee may consider
candidates as Directors submitted by current Directors, the Fund's investment
adviser, Fund stockholders and other appropriate sources. The Nominating
- 7 -
Committee will consider candidates submitted by a stockholder or group of
stockholders who have owned at least 5% of the Fund's outstanding common stock
for at least two years at the time of submission and who timely provide
specified information about the candidates and the nominating stockholder or
group. To be timely for consideration by the Nominating Committee, the
submission, including all required information, must be submitted in writing to
the attention of the Secretary at the principal executive offices of the Fund
not less than 120 days before the date of the proxy statement for the previous
year's annual meeting of stockholders. The Nominating Committee will consider
only one candidate submitted by such a stockholder or group for nomination for
election at an annual meeting of stockholders. The Nominating Committee will not
consider self-nominated candidates.
The Nominating Committee will consider and evaluate candidates
submitted by stockholders on the basis of the same criteria as those used to
consider and evaluate candidates submitted from other sources. These criteria
include the candidate's relevant knowledge, experience, and expertise, the
candidate's ability to carry out his or her duties in the best interests of the
Fund and the candidate's ability to qualify as a disinterested Director. A
detailed description of the criteria used by the Nominating Committee as well as
information required to be provided by stockholders submitting candidates for
consideration by the Nominating Committee are included in Exhibit A.
The Fund's Board of Directors has adopted a process for stockholders to
send communications to the Board. To communicate with the Board of Directors or
an individual Director of the Fund, a stockholder must send a written
communication to that Fund's principal office at the address listed in the
Notice of Annual Meeting of Stockholders accompanying this Proxy Statement,
addressed to the Board of Directors of the Fund or the individual Director. All
stockholder communications received in accordance with this process will be
forwarded to the Board of Directors or the individual Director. The Funds does
not pay any fees to, or reimburses expenses of, any Director during a time when
the Director is considered an "interested person" of the Fund. The aggregate
compensation paid by the Fund to the Directors during the Fund's fiscal year
ended in 2003, the aggregate compensation paid to the Directors during calendar
year 2003 by all of the investment companies in the Investment Company Complex,
and the total number of investment companies in the Investment Company Complex
as to which the Directors are a director and the number of investment portfolios
as to which the Directors are directors are set forth above. Neither the Fund
nor any other investment company in the Investment Company Complex provides
compensation in the form of pension or retirement benefits to any of its
directors.
ADDITIONAL INFORMATION
The Fund's Board of Directors ("Board") has continuously availed itself
of methods specifically provided by, or consistent with, Maryland law and the
1940 Act to protect the Fund and its stockholders. Accordingly, the Fund
currently has provisions in its Charter and Bylaws (collectively, the "Governing
Documents") which could have the effect of limiting (i) the ability of other
entities or persons to acquire control of the Fund, (ii) the Fund's freedom to
engage in certain transactions, or (iii) the ability of the Fund's directors or
stockholders to amend the Governing Documents or effectuate changes in the
Fund's management. These provisions of the Governing Documents of the Fund may
be regarded as "anti- takeover" provisions. The Fund is also subject to certain
Maryland law provisions, including those which have been enacted since the
inception of the Fund, that make it more difficult for non-incumbents to gain
control of the Board. Last year, the Fund's Board amended and restated the
Bylaws of the Fund. In doing so, the Board consulted with counsel to the Fund
and Maryland counsel to the Fund and elected to become subject to various
provisions of the Maryland General Corporation Law (the "MGCL"). The Board also
adopted a Conflict of Interest and Corporate Opportunities Policy applicable to
its disinterested directors.
At the Meeting, the presence in person or by proxy of stockholders
entitled to cast a majority of all the votes entitled to be cast at the meeting
is sufficient to constitute a quorum. In the event that a quorum is not present
at the Meeting, or if a quorum is present but sufficient votes to approve a
proposal are not received, the chair of the meeting may adjourn the meeting to a
later date and time not more than 120 days after the original record date
without any other notice other than announcement at the Meeting. A stockholder
vote may be taken for one or more proposals prior to any adjournment if
sufficient votes have been received for approval. If a proxy is properly
executed and returned accompanied by instructions to withhold authority to vote,
represents a broker "non-vote" (that is, a proxy from a broker or nominee
indicating that such person has not received instructions from the beneficial
owner or other person entitled to vote shares of the Fund on a particular matter
with respect to which the broker or nominee does not have discretionary power)
or marked with an abstention (collectively, "abstentions"), the Fund's shares
represented thereby will be considered to be present at the Meeting for purposes
of determining the existence of a quorum for the transaction of business. Under
- 8 -
Maryland law, abstentions do not constitute a vote "for" or "against" a matter
and will be disregarded in determining "votes cast" on an issue.
In addition to the use of the mails, proxies may be solicited
personally, by telephone, or by other means, and the Fund may pay persons
holding its shares in their names or those of their nominees for their expenses
in sending soliciting materials to their beneficial owners. The Fund will bear
the cost of soliciting proxies. Authorizations to execute proxies may be
obtained by telephonic instructions in accordance with procedures designed to
authenticate the stockholder's identity. In all cases where a telephonic proxy
is solicited, the stockholder will be asked to provide his or her address,
social security number (in the case of an individual) or taxpayer identification
number (in the case of an entity) or other identifying information and the
number of shares owned and to confirm that the stockholder has received the
Fund's Proxy Statement and proxy card in the mail. Within 72 hours of receiving
a stockholder's telephonic voting instructions and prior to the Meeting, a
confirmation will be sent to the stockholder to ensure that the vote has been
taken in accordance with the stockholder's instructions and to provide a
telephone number to call immediately if the stockholder's instructions are not
correctly reflected in the confirmation. Stockholders requiring further
information with respect to telephonic voting instructions or the proxy
generally should contact the Fund's transfer agent at 1-800-937-5449. Any
stockholder giving a proxy may revoke it at any time before it is exercised by
submitting to the Fund a written notice of revocation or a subsequently executed
proxy or by attending the meeting and voting in person.
Discretionary Authority; Submission Deadlines for Stockholder Proposals
Although no business may come before the Meeting other than that
specified in the Notice of Annual Meeting of Stockholders, shares represented by
executed and unrevoked proxies will confer discretionary authority to vote on
matters which the Fund did not have notice of a reasonable time prior to mailing
this Proxy Statement to stockholders. The Fund's Bylaws provide that in order
for a stockholder to nominate a candidate for election as a director at an
annual meeting of stockholders or propose business for consideration at such
meeting, written notice generally must be delivered to the Secretary of the
Fund, at the principal executive offices, not less than 90 days nor more than
120 days prior to the first anniversary of the mailing of the notice for the
preceding year's annual meeting. Accordingly, pursuant to such Bylaws and Rule
14a-5(e)(2) of the 1934 Act, a stockholder nomination or proposal intended to be
considered at the 2005 Annual Meeting must be received by the Secretary no
earlier than March 25, 2005 nor later than April 24, 2005. Proposals should be
mailed to the Fund, to the attention of the Fund's Secretary, Monica Pelaez, 11
Hanover Square, New York, New York 10005. In addition, if you wish to have your
proposal considered for the inclusion in the Fund's 2005 Proxy Statement, we
must receive it on or before March 25, 2005 pursuant to Rule 14a-8(e)(2). The
submission by a stockholder of a proposal for inclusion in the proxy statement
or presentation at the Meeting does not guarantee that it will be included or
presented. Stockholder proposals are subject to certain requirements under the
federal securities laws and the Maryland General Corporation Law and must be
submitted in accordance with the Fund's Bylaws.
Compliance with Section 16(a) Beneficial Ownership Reporting
Section 16(a) of the Securities Exchange Act of 1934, and rules
thereunder, requires the Fund's directors and officers, and any persons holding
10% or more of its common stock, to file reports of ownership and changes in
ownership with the Securities and Exchange Commission and the American Stock
Exchange. Based on the Fund's review of the copies of such forms it receives,
the Fund believes that during the calendar year ended 2003, such persons
complied with all such applicable filing requirements, except Mr. Shaker.
Notice to Banks, Broker/Dealers and Voting Trustees and Their Nominees
Please advise the Fund's transfer agent American Stock Transfer & Trust
Company at 1-800-937-5449 whether other persons are the beneficial owners of the
shares for which proxies are being solicited and, if so, the number of copies of
this Proxy Statement and other soliciting material you wish to receive in order
to supply copies to the beneficial owners of shares.
It is important that proxies be returned promptly. Therefore, stockholders who
do not expect to attend the meeting in person are urged to complete, sign, date
and return the enclosed proxy card in the enclosed postage-paid envelope.
-9-
EXHIBIT A
FOXBY CORP. NOMINATING COMMITTEE CHARTER
The Board of Directors of Foxby Corp. (the "Fund") has adopted this
Charter to govern the activities of the Nominating Committee (the "Committee")
of its Board.
Statement of Purposes and Responsibilities
The primary purposes and responsibilities of the Committee are (i) to identify
individuals qualified to become members of the Board in the event that a
position is vacated or created, (ii) to consider all candidates proposed to
become members of the Board, subject to the procedures and policies set forth in
this Charter, the Fund's Bylaws or resolutions of the Board, (iii) to select and
nominate, or recommend for nomination by the Board, candidates for election as
Directors and (iv) to set any necessary standards or qualifications for service
on the Board.
Organization and Governance
The Committee shall be composed of as many Directors as the Board shall
determine in accordance with the Fund's Bylaws, but in any event not less than
two Directors. The Committee must consist entirely of Board members
("Independent Directors") who are not "interested persons" of the Fund, as
defined in Section 2(a)(19) of the Investment Company Act of 1940, as amended.
The Board may remove or replace any member of the Committee at any time in its
sole discretion.
One or more members of the Committee may be designated by the Board as the
Committee's chairman or co-chairman, as the case may be.
The Committee will not have regularly scheduled meetings. Committee meetings
shall be held in accordance with the Fund's Bylaws as and when the Committee or
the Board determines necessary or appropriate. Except as may be otherwise set
forth in the Fund's Bylaws, the chairman, a co-chairman or any two members of
the Committee may set the time and place of its meeting unless the Board shall
otherwise provide.
Criteria for Director Nominees
The Committee may take into account a wide variety of criteria in considering
Director candidates, including (but not limited to): (i) the candidate's
knowledge in matters relating to the investment company industry; (ii) any
experience possessed by the candidate as a director or senior officer of other
public companies; (iii) the candidate's educational background; (iv) the
candidate's reputation for high ethical standards and personal and professional
integrity; (v) any specific financial, technical or other expertise possessed by
the candidate, and the extent to which such expertise would complement the
Board's existing mix of skills and qualifications; (vi) the candidate's
perceived ability to contribute to the ongoing functions of the Board, including
the candidate's ability and commitment to attend meetings regularly, work
collaboratively with other members of the Board and carry out his or her duties
in the best interests of the Fund; (vii) the candidate's ability to qualify as
an Independent Director for purposes of the Investment Company Act of 1940, as
amended; and (viii) such other criteria as the Nominating Committee determines
to be relevant in light of the existing composition of the Board and any
anticipated vacancies or other factors. It is the Board's policy that Directors
of the Fund normally may not serve in a similar capacity on the board of a
registered investment company that is not sponsored by the Fund's investment
adviser or its affiliates.
Pursuant to the Fund's Bylaws:
(a) To qualify as a nominee for a Directorship, an individual, at the time of
nomination, (i)(A) shall be a resident United States citizen and have
substantial expertise, experience or relationships relevant to the business of
the Fund, (B) shall have a master's degree in economics, finance, business
administration or accounting, a graduate professional degree in law from an
accredited university or college in the United States or the equivalent degree
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from an equivalent institution of higher learning in another country, or a
certification as a public accountant in the United States, or be deemed an
"audit committee financial expert" as such term is defined in Item 401 of
Regulation S-K (or any successor provision) promulgated by the Securities and
Exchange Commission; (C) shall not serve as a director or officer of another
closed- end investment company unless such company is managed by the Fund's
investment manager or investment adviser or by an affiliate of either; and (D)
shall not serve or have served within the past 3 years as a director of any
closed-end investment company which, while such individual was serving as a
director or within one year after the end of such service, ceased to be a
closed-end investment company registered under the 1940 Act, unless such
individual was initially nominated for election as a director by the board of
directors of such closed-end investment company, or (ii) shall be a current
Director of the Fund.
(b) In addition, to qualify as a nominee for a directorship or election as a
Director, (i) an incumbent nominee shall not have violated any provision of the
Conflicts of Interest and Corporate Opportunities Policy (the "Policy"), adopted
by the Board on July 8, 2003, as subsequently amended or modified, and (ii) an
individual who is not an incumbent Director shall not have a relationship, hold
any position or office or otherwise engage in, or have engaged in, any activity
that would result in a violation of the Policy if the individual were elected as
a Director.
(c) The Nominating Committee of the Board of Directors, in its sole discretion,
shall determine whether an individual satisfies the foregoing qualifications.
Any individual who does not satisfy the qualifications set forth under the
foregoing provisions of this section shall not be eligible for nomination or
election as a Director.
(d) In addition, no person shall be qualified to be a Director unless the
Nominating Committee, in consultation with counsel to the Fund, has determined
that such person, if elected as a Director, would not cause the Fund to be in
violation of, or not in compliance with, applicable law, regulation or
regulatory interpretation, or the Fund's Charter, or any general policy adopted
by the Board of Directors regarding either retirement age or the percentage of
Interested Persons and non-Interested Persons to comprise the Fund's Board of
Directors.
Identification of Nominees
In identifying potential nominees for the Board, the Committee may consider
candidates recommended by one or more of the following sources: (i) the Fund's
current Directors, (ii) the Fund's officers, (iii) the Fund's investment
adviser(s), (iv) the Fund's stockholders (see below) and (v) any other source
the Committee deems to be appropriate. The Committee will not consider
self-nominated candidates. The Committee may, but is not required to, retain a
third party search firm at the Fund's expense to identify potential candidates.
Consideration of Candidates Recommended by Stockholders
The Committee will consider and evaluate nominee candidates properly submitted
by stockholders on the basis of the same criteria used to consider and evaluate
candidates recommended by other sources. Nominee candidates proposed by
stockholders will be properly submitted for consideration by the Committee only
if the qualifications and procedures set forth in Appendix A of this Charter, as
it may be amended from time to time by the Committee or the Board, are met and
followed (recommendations not properly submitted will not be considered by the
Committee).
APPENDIX A
Procedures for the Nominating Committee's Consideration of Candidates Submitted
by Stockholders
A candidate for nomination as a Director submitted by a stockholder
will not be deemed to be properly submitted to the Committee for the Committee's
consideration unless the following qualifications have been met and procedures
followed:
1. A stockholder or group of stockholders (referred to in either case as a
"Nominating Stockholder") that, individually or as a group, has beneficially
owned at least 5% of the Fund's common stock for at least two years prior to the
A-2
date the Nominating Stockholder submits a candidate for nomination as a Director
may submit one candidate to the Committee for consideration at an annual meeting
of stockholders.
2. The Nominating Stockholder must submit any such recommendation (a
"Stockholder Recommendation") in writing to the Fund, to the attention of the
Secretary, at the address of the principal executive offices of the Fund.
3. The Stockholder Recommendation must be delivered to or mailed and received at
the principal executive offices of the Fund not less than 120 calendar days
before the first anniversary date of the Fund's proxy statement released to
stockholders in connection with the previous year's annual meeting.
4. The Stockholder Recommendation must include: (i) a statement in writing
setting forth (A) the name, date of birth, business address and residence
address of the person recommended by the Nominating Stockholder (the
"candidate"); (B) any position or business relationship of the candidate,
currently or within the preceding five years, with the Nominating Stockholder or
an Associated Person of the Nominating Stockholder (as defined below); (C) the
class or series and number of all shares of the Fund owned of record or
beneficially by the candidate, as reported to such Nominating Stockholder by the
candidate; (D) any other information regarding the candidate that is required to
be disclosed about a nominee in a proxy statement or other filing required to be
made in connection with the solicitation of proxies for election of Directors
pursuant to Section 20 of the Investment Company Act of 1940, as amended (the
"1940 Act") and the rules and regulations promulgated thereunder; (E) whether
the Nominating Stockholder believes that the candidate is or will be an
"interested person" of the Fund (as defined in the 1940 Act) and, if believed
not to be an "interested person," information regarding the candidate that will
be sufficient for the Fund to make such determination; and (F) information as to
the candidate's knowledge of the investment company industry, experience as a
director or senior officer of public companies, directorships on the boards of
other registered investment companies and educational background; (ii) the
written and signed consent of the candidate to be named as a nominee and to
serve as a Director if elected; (iii) the written and signed agreement of the
candidate to complete a directors' and officers' questionnaire if elected; (iv)
the Nominating Stockholder's consent to be named as such by the Fund; (v) the
class or series and number of all shares of the Fund owned beneficially and of
record by the Nominating Stockholder and any Associated Person of the Nominating
Stockholder and the dates on which such shares were acquired, specifying the
number of shares owned beneficially but not of record by each, and stating the
names of each as they appear on the Fund's record books and the names of any
nominee holders for each; and (vi) a description of all arrangements or
understandings between the Nominating Stockholder, the candidate and/or any
other person or persons (including their names) pursuant to which the
recommendation is being made by the Nominating Stockholder. "Associated Person
of the Nominating Stockholder" as used in this paragraph 4 means any person
required to be identified pursuant to clause (vi) and any other person
controlling, controlled by or under common control with, directly or indirectly,
(a) the Nominating Stockholder or (b) any person required to be identified
pursuant to clause (vi).
5. The Committee may require the Nominating Stockholder to furnish such other
information as it may reasonably require or deem necessary to verify any
information furnished pursuant to paragraph 4 above or to determine the
qualifications and eligibility of the candidate proposed by the Nominating
Stockholder to serve on the Board. If the Nominating Stockholder fails to
provide such other information in writing within seven days of receipt of
written request from the Committee, the recommendation of such candidate as a
nominee will be deemed not properly submitted for consideration, and will not be
considered, by the Committee.
PROXY CARD
FOXBY CORP.
This proxy is solicited by and on behalf of the Fund's Board of Directors for
the Annual Meeting of Stockholders on September 7, 2004, and at any postponement
or adjournment thereof.
The undersigned stockholder of Foxby Corp. (the "Fund") hereby appoints Thomas
B. Winmill and Monica Pelaez and each of them, the attorneys and proxies of the
undersigned, with full power of substitution in each of them, to attend the 2004
Annual Meeting of Stockholders to be held at the offices of the Fund at 11
Hanover Square, 12th Floor, New York, New York on Tuesday, September 7, 2004 at
8:30 a.m., and at any postponement or adjournment thereof ("Meeting") to cast on
behalf of the undersigned all votes that the undersigned is entitled to cast at
the Meeting and otherwise to represent the undersigned at the Meeting with all
of the powers possessed by the undersigned if personally present at the Meeting.
The undersigned hereby acknowledges receipt of the Notice of Annual Meeting and
the accompanying Proxy Statement and revokes any proxy heretofore given for the
Meeting.
The votes entitled to be cast by the undersigned will be cast as instructed on
the reverse side hereof. If this Proxy is executed but no instruction is given,
the votes entitled to be cast by the undersigned will be cast "for" the nominees
as proposed in the Proxy Statement and in any event in the discretion of the
Proxy holder on any other matter that may properly come before the Meeting.
(Continued and to be signed on the reverse side)
ANNUAL MEETING OF STOCKHOLDERS OF FOXBY CORP.
September 7, 2004
Please detach along perforated line and mail in
the envelope provided Please date, sign and mail your
proxy card in the envelope provided as soon as possible.
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR
VOTE IN BLUE OR BLACK INK AS SHOWN HERE [x]
1. To elect to the Board of Directors the Nominees, James E. Hunt as Class I
Director, Bruce B. Huber as Class II Director, and John B. Russell as Class V
Director.
NOMINEES:
[ ] FOR ALL NOMINEES ( ) James E. Hunt
[ ] WITHHOLD AUTHORITY ( ) Bruce B. Huber
FOR ALL NOMINEES ( ) John B. Russell
[ ] FOR ALL EXCEPT
(See instructions below)
(Instruction: To withhold authority to vote for any individual nominee(s), mark
"FOR ALL EXCEPT" and fill in the circle next to each nominee you wish to
withhold, as shown here: (X)
Your vote is important! Please sign and date the proxy/voting instructions card
below and return it promptly in the enclosed postage-paid envelope or otherwise
to Foxby Corp.c/o American Stock Transfer & Trust Company, 59 Maiden Lane, New
York, NY 10038 so that your shares can be represented at the Meeting. If no
instructions are given on a proposal, the proxies will vote FOR the proposal, in
accordance with the Fund Board's recommendations.
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE.
To change the address on your account, please check the box at right and
indicate your new address in the address space above. Please note that changes
to the registered name(s) on the account may not be submitted via this method.
Signature of Stockholder ___________Date:_____
Signature of Stockholder ___________Date:_____
Note: Please sign exactly as your name or names appear on this Proxy. When
shares are held jointly, each holder should sign. When signing as executor,
administrator, attorney, trustee or guardian, please give full title as such. If
the signer is a corporation, please sign full corporate name by duly authorized
officer, giving full title as such. If signer is a partnership, please sign in
partnership name by authorized person.