October 21, 2010
To whom it may concern,
I would like to provide the following comments in regards to Investor-to-Investor Communications (Elimination of OBO/NOBO)
The most important aspect that is held dearly by shareholders when discussing the OBO and NOBO designation is that of CONFIDENTIALITY. Shareholders do not want to be continuously harrassed by soliciting firms for voting instructions or tenders to offers. Furthermore, the designation of OBO garantees the shareholder that their personal information will not be sold to any other soliciting firms. As such, if it is considered that the designations be dropped, what garantees can the issuer provide shareholders that their personal information will only strictly be used for the purpose to sollicit votes and this only for shareholder meetings? What garantees can the issuer provide that the soliciting firm will not sell their personal information to another soliciting firm that has no bearing to the shareholder? As such, the right to confidentiality becomes a fundamental right for a shareholder as well as a matter of legislation.
The existing rules do inhibit issuers from effectively communicating with investors and this specifically in cases where the issuer is trying to achieve a quorum. The designation of OBO and NOBO was provided to shareholders in order to maintain confidentiality. However, as it has been suggested, are shareholders provided with detailed explanations as to the differences of both designations as well as to the consequences of being designated as OBO or NOBO? What may effectively inhibit the voting process and obtaining quorums can be as what was raised in the SEC Concept release whereby the lack of explanation by the broker with their client when opening the brokerage account and having the account coded as OBO or NOBO without it having been explained in detail to the client. As such, there is a level of responsibility that brokers play in such a matter and could be considered as detrimental to the voting process. As well, soliciting firms as such can also be classified as a detriment to the voting process as they place continuous calls to shareholders which prove to be an irritation to shareholders. Furthermore, soliciting firms upon obtaining shareholder lists may then sell these to other soliciting firms for matters that have no relation to the securities industry or to the shareholders security holdings. Then again, the issuer is also at fault as it to should play a more involved role to examine the implications of soliciting firms and its impact on shareholders and as such review the methods currently in place to solicit voting iunstructions. A method that will protect the confidentality of the shareholder.
Canadian investors of US securities often encounter situations whereby proxy materials are not delivered in a timely fashion across the border. It is difficult to determine the extenuating factor. The possibility exists that the issuer did not provide the materials in a timely fashion to be mailied. It is possible that not enough materials were available and as such the mailing was delayed until further documentation was provided in order to complete the mailing. There may have been delays in the US Postal Service as well as delays in the Canadian Postal service, or a combination of both. Or the mailing may have been delivered to the incorrect address to then be redirected to the right one. As such, the availability of web based materials is a welcomed one, however it does have its pros and cons. When obtaining a package in the mail, one is inclined to at least look at its content, whereas if the materials are sent to the shareholder electronically, no one can confirm as to the timeline at which the client will choose to look at the e-mails they received and thereby be able to partake in the vote before the deadline or even if the shareholder will have any interesy in opening the electronic documentaion received. It is common knowledge that web based materials for 95% of US issuers is available whereas it is only 5-7% for Canadian issuers. The demand on the Canadian side for web based materials is very high due to the quantatiive amounts of securities that various categories of shareholders hold in their accounts. They are continuously bombarded with physical mailings and thus the requirement for web based materials exists. Then again, the viewpoint or main concern for most shareholders would be to decrease the amount of mailings received so as to not be bothered with enormous amounts of physical shareholder mailings in the mailbox. And as such, this is another cause for concern as this inhibits the voting process.
Although the VIF appearance is that of a mutiple choice SAT exam, it provides a simplistic method to process voting instructions for shareholders as voting instructions can be processed via the internet, fax or telephone and even by mail. As to whether or not a change in the uniformity in the appearance of the proxy materials lead to more retail voting, one would need to test the theory. Proxy materials obtained from private issuers have a more personalized appearance whereby the proxy has the appearance of a "clean and visually clear" legal document briefly describing the resolutions to be voted for and providing the shareholder with instructions as to where it should be sent once completed. As such, it is more of an interactive process.
In both Canada and the United States there appears to be the common problem of achieving quorums and as such soliciting firms are called upon to reach out to investors in order to solicit voting instructions. The only way to encourage a more active participation would be to provide a summary of the type "voting for dummies". The summary would explore in detail and provide a more in depth explanation in simple English as to what exactly is at stake or of import at the shareholder meeting that is to take place to which the shareholder should actively partake to as they are a record holder. However, should such a suggestion be put into effect it would need to be advertised so that shareholders can then expect to receive the mailing and have a first hand look/experience of the summary. It may be wise to also include a response card in order to obtain shareholder feedback of the provided summary.
Whether or not additional investor education is made avilable to shareholders, such a program would at best draw curious interest at first to then be disregarded as not all shareholders have a direct implication with the securities industry and as such may be first time investors using the stock market much as a casino in the hopes of making a buy and sell for quick money. There may however exist a moderate base of shareholders that would in the long term find such a program beneficial. However, in order for the shareholder to trust the program and its contents it would need to be regulated by a responsible governed body that would ensure that all information contained therein is fact and that is constantly updated. The inclusion of an interactive Forum could also prove beneficial. Then again there is also the cost of such a program and its maintenance and then again who should bear the cost?
It may be true as stated in the SEC Concept Release that a great many shareholders when opening their accounts and provided with the choice of the OBO and NOBO designation that the shareholder may not have obtained a detailed explanation of either designation and as such the investment advisor that completed the account documentation with the client would have chosen any designation without thought or understanding. If such is the case, it should be taken upon the broker to provide a detailed explanation of both designations in order for the shareholder to fully understand the implications/consequences of either designation. It is well known that mailings for OBO will be processed by a third party mailing vendor in order to ensure that the client's personal information remains confidential and is not provided to the issuer or transfer agent. Whereas, the issuer's transfer agent is only able to process the NOBO portion of the mailing. Does the client if coded NOBO understand that if the transfer agent mailed out the proxy mailing for NOBO and that they lost their mailing and would like to request a duplicate that they need to contact the transfer agent and not the broker? Should the broker issue the duplicate proxy, the broker could then fall into an over voting situation. However, this is not I believe a dilemma in the United States as issuers contract a third party mailing vendor to process both OBO and NOBO.