767 Fifth Avenue
New York, NY 10153
(212) 418-6901 Fax
June 24, 2002
Mr. Jonathan G. Katz
U. S. Securities and Exchange Commission
450 Fifth Street, N.W.
Washington DC 20549
File No. S7-09-02
Dear Mr. Katz:
Maverick Capital is a manager of private investment funds with over $20 billion of gross assets under management. Our goal is to preserve as well as to grow our investors' capital. Maverick's investment style requires in-depth, fundamental research into every current and potential investment in our portfolio. Therefore, timely, accurate, relevant, and complete financial reporting is of the utmost importance to us, and we appreciate the opportunity to respond to the proposed changes in reporting requirements.
We support, in general, the Commission's proposal to require public companies to report certain transactions and arrangements of Directors and Executive Officers within two business days. This information is highly relevant to investors and should be provided and updated on a timely basis. The following are specific comments on the proposal.
We recommend that the definition of covered officers be modified to include specifically the principal financial and accounting officers as well as any other officer who performs a significant policy making role. While we expect that in most cases individuals in these capacities will be included in the category of executive officer, explicitly including these positions will ensure that transactions undertaken by individuals in these functions will be disclosed to investors on a timely basis.
We believe that there are certain beneficial owners of more than 10% of an entity's shares for which these disclosures also would be appropriate. When a company engages in business, financing, or other transactions with a 10% or more beneficial owner, we believe that the nature, frequency, or magnitude of the transactions can create a relationship between the investor and the company such that securities transactions of that investor may be considered material information by the investment community. It would also be useful to have the Commission specify the nature of relationships between a company and its principal security holders that would require such transactions of such investors to be subject to these requirements.
We strongly encourage the Commission to extend these requirements to foreign registrants. As stated previously, these arrangements and transactions are very relevant to investors. Requiring only domestic registrants to provide this information would create one more significant financial reporting advantage to foreign registrants over domestic registrants at the expense of investors.
We support the requirements to report transactions in equity and equity-related securities, including derivatives, that are undertaken with the company as well as with third parties. We also support the requirements for reporting loans and guarantees provided to or on behalf of Directors and Executive Officers by the company. In our judgment, the reporting requirements should extend to the foreclosure or forgiveness of a loan. In addition, we believe that the covered transactions should include transactions in any security of the company, for example, a convertible debt security.
We support the reporting requirements for 10b5-1 arrangements and modifications to those arrangements. We believe that the required disclosures should be expanded to enable the investor to understand whether, for example, an arrangement to sell is conditioned on a higher price or lower price than at the date of the arrangement, as well as other aspects of the arrangement that would provide a better understanding of the potential motivations behind such transactions.
While the $100,000 requirement would be sufficient, in our opinion, if this threshold represented aggregate transactions, we are concerned that individuals may conduct a series of transactions just under this $100,000 threshold to avoid the 2-day reporting requirement in an effort to obscure their true intent. This concern, as well as our expectation that the number of individuals to which these requirements would apply is relatively small, causes us to recommend that the Commission provide additional reporting guidance that requires the aggregation of multiple transactions with or by an individual. We would recommend that the transactions be reported at the earlier of 2 days subsequent to reaching the $100,000 reporting threshold for the aggregated transactions or the close of business on the second business day of the week following the week in which the first reportable transaction occurred.
We also believe that material employee benefit transactions should be reported on the same 2-day basis as other material non-employee benefit transactions. These transactions are relevant to investors regardless of whether they are transacted under the auspices of an employee benefit plan or otherwise. In addition, we are concerned that the definition of what constitutes an employee benefit plan is sufficiently loose as to permit companies to abuse the term to achieve a delay in the required reporting.
A tabular presentation format should be specified which, of course, may be supplemented as necessary with narrative discussion.
We appreciate the opportunity to comment on this proposal. Please contact Lee Ainslie at (212) 418-6910, or Jane Adams at (212) 418-6915, if you have any questions or issues that you would like to discuss.
Lee S. Ainslie III Jane B. Adams
Managing Partner Senior Analyst