January 31, 2000
Jonathan G. Katz, Secretary
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Comments on Release Nos. 33-7767, 34-42102, IC-24124 (File No. S7-26-99)
Dear Mr. Katz:
On behalf of the American Society of Corporate Secretaries, Inc., we are pleased to have the opportunity to respond to the Commission's request for comments on the proposals to allow "householding" of proxy and information statements under the Securities Act, the Securities Exchange Act and the Investment Company Act (the "Release").
The Society has over 4,000 members who represent approximately 2,800 corporations in the United States and Canada, ranging from large, multinational industrial companies to start-ups and other small companies. Our members typically have the responsibility to make company filings with the Commission and to comply with related securities laws and regulations.
We commend the Commission's efforts and fully support the initiative to promote householding to the maximum extent feasible while assuring that shareholder rights are fully protected. We believe that the careful implementation of householding by companies as well as by broker-dealers and banks ("intermediaries") will serve to enhance shareholder value without unduly disrupting the current proxy process, and we strongly urge that the proposed rules be implemented in time for the current proxy season in order to maximize the savings that the rules will allow companies to realize.
Comments on Householding by Companies to Record Holders
We believe that implied consent, when coupled with the issuer's obligation to promptly "undo" the householding and distribute separate copies of the materials upon request, is adequate to protect shareholder rights in all cases. Moreover, because we believe that our shareholders in general wish to be spared the inconvenience, wastefulness and expense to the corporations in which they own stock that arise from the receipt of multiple corporate materials, we believe that our shareholders would agree that a single notification and implied consent should suffice to cover householding of all materials-proxy or information statements, annual reports and prospectuses.
We also believe that so long as the company or the intermediary has a reasonable belief, however founded, that the shareholders at a specific address share a common household (rather than a business relationship), householding by implied consent should be allowed, irrespective of whether the shareholders share the same last name. A separate written notice of the intent to household should not be required; inclusion of the appropriate notice with another mailing to shareholders should suffice. Moreover, we do not think that companies should have to undertake notification on a periodic basis; an initial specific notification together with ongoing descriptions of the process in the proxy statement should be adequate. Continued separate notifications would in our opinion result in confusion and unnecessary expense, particularly as the shareholder can always request additional copies of the materials.
We strongly believe that the 90-day notice period proposed in the release is too long and should be shortened considerably. We are concerned that such a long period will serve the opposite purpose intended, that is, shareholders will put the notice aside as something for future action and forget about it rather than considering it thoughtfully. We would suggest a maximum of 30 days as more appropriate. We believe that 30 days provides adequate time both for a shareholder who does not want householding to apply to him to respond to the company and for the company to assure that the shareholder's intentions are honored. In fact, many of our members who have participated in our consideration of the Release feel strongly that including the initial notice provision (together with information on how to "undo" the householding) in the proxy materials themselves, rather than sending it separately at a prior date, would constitute adequate notice. Allowing companies to furnish the notice together with the proxy materials would have the important benefit of allowing this process to be in place for the 2000 proxy season for most companies, with the consequent savings of many millions of dollars to public companies and their shareholders.
We also think that the rules should provide that a shareholder may indicate his objection to householding by various means-in writing, by telephone or electronically.
We believe that companies should have reasonable flexibility to address householded proxy and information statements, including the flexibility to address annual reports, proxy statements and information statements to only one of the shareholders residing at a shared address using existing account nomenclature. We think that so long as each member of the household has the right to request materials, companies should be able to determine who is the "head of household" in the first instance.
We recognize that separate proxy cards will continue to be required even though proxy statements are householded, and we think that there may be technological issues, at least initially, with respect to whether multiple proxy cards can be included in one envelope. Nevertheless, we believe that the savings that are likely to be generated from the reduction in printing and postage expenses will fully justify householding of proxy statements even if the proxy cards continue to be mailed separately. Perhaps the householding of proxy cards can be phased in when the technology and public acceptance of householding become more widespread,
Noting the growing number of U.S. companies who post their proxy statements on the Internet, we do not believe that householding of proxy statements will interfere in any way with the exercise of voting rights. We believe that the undertakings set forth in the Release with respect to delivery of the proxy or information statement promptly upon request would be appropriate, and that there is no need for a more specific timeframe.
We believe that it is important that there be consistency in all rules with respect to householding-for annual reports, prospectuses and proxy or information statements. Therefore, we believe that notification periods, requirements as to undertakings and disclosure requirements should be similar for all householded documents. As noted above, we do not believe that periodic re-notification should be required. Once an initial notification has occurred, we think that the information with respect to householding can be described in each company's Annual Report or Form 10-K. We also recommend that notification that householding is being utilized be included as part of the process of establishing an account rather than repeatedly given to existing shareholders.
We do not believe that state law meeting notice requirements present either legal or practical obstacles to householding. We think that the legal requirements can be met by including the requisite information on the proxy card for each individual even if a notice on the householded proxy statement would not meet state law requirements.
We believe that to achieve the maximum benefits, householding should be extended to business combination proxy statement-prospectuses at the company's option. Even if proxy cards are separately mailed in connection with these transactions, we believe that the savings in postage and printing fees resulting from householding of these often voluminous documents could be substantial and would justify extending the rules to cover these materials.
Comments on Householding by Intermediaries
Members of the Society believe that the rules permitting intermediaries to household to beneficial holders should not differ in any substantive way from those which permit companies to household to record shareholders. We think that intermediaries should be allowed to household annual reports, proxy statements and information statements to beneficial holders regardless of whether the company chooses to household to its record holders and without the express consent of the company. A company should not be required to reimburse the intermediary, however, if the company has not requested the householding. We do believe that an intermediary should be required to household at the direction of the company, and reimbursement is appropriate in that instance.
We believe that to maximize the benefits of householding and to avoid duplication and confusion, the criteria used to permit the householding of Annual Reports and proxy statements should utilize practices that are already developed and in use by the brokerage community with respect to account statements and transaction confirmations. Customers are familiar with those policies. We think that a beneficial shareholder's consent to householding of proxy statements and annual reports should be presumed if the holders have already given their implied consent by receiving brokerage account statements from the intermediary in householded form. Although we also believe that giving shareholders the option of limiting their consent to a particular company would best serve the interests of the shareholder, rather than the intermediary, we understand that there may be technological problems with such an approach, and therefore think that such an option should not be required.
With respect to reimbursement of intermediaries, we do not think at this time that issuers have a realistic idea of the expenses that householding will impose on intermediaries, nor the benefits that it will provide to them, and therefore are unable to comment on the specific fees discussed in the Release. We do think, however, that any fees which intermediaries are authorized to charge should relate to the reasonable costs incurred by them. For example, we are not sure that it would be reasonable to require that the $.50 postage elimination fee be paid in perpetuity for all suppressed mailings to a household.
We support in concept the idea of householding between record and beneficial shareholders sharing the same address, although we believe that issues of technology may prevent its implementation in the foreseeable future.
We do not believe that the proposals would have an adverse effect on competition, and we think that if adopted, the proposals would promote efficiency. We have no view on whether adoption of the proposals would promote competition and we think that they would have no effect on capital formation.
We continue to believe, as we noted in our comment letter on the release adopted with respect to householding of annual reports and prospectuses, that companies' ability to household proxy material will provide greater efficiency in the shareholder communication process without having any adverse effect on investor protection, and we urge that the Commission adopt householding rules for proxy and information statements promptly to enable companies to take advantage of the cost saving during the 2000 proxy season.
Should the Commission or its Staff have questions concerning the comments in this letter or desire additional information to assist it in preparing the adopting release, please do not hesitate to contact us.
Very truly yours,
Kathleen E. Shannon
cc: David B.H. Martin, Director, Division of Corporation Finance, Securities and Exchange Commission
Mauri Osheroff, Associate Director, Division of Corporation Finance, Securities and Exchange Commission
Elizabeth M. Murphy, Special Counsel, Office of Chief Counsel, Division of Corporation Finance, Securities and Exchange Commission
D. Craig Nordlund, Chairman, American Society of Corporate Secretaries
Gwenn L. Carr, Chairman-Elect, American Society of Corporate Secretaries
David W. Smith, President, American Society of Corporate Secretaries