The Marsico Investment Fund
P.O. Box 3210
Milwaukee, WI 53201-321-
November 27, 2002
Jonathan G. Katz
U.S. Securities and Exchange Commission
450 Fifth Street, N.W.,
Washington, DC 20549-0609
Re: "Financial Expert" Requirement - File No. S7-40-02
Dear Mr. Katz:
I serve as an Independent Trustee to the Marsico Investment Fund (the "Trust") and chair its Nominating Committee ("Committee"). The Trust is a relatively small fund complex comprising four separate funds, with aggregate net assets of approximately $2.2 billion. In August 2002, the Board of Trustees was confronted with a vacancy and the Nominating Committee undertook the responsibility of finding an appropriate replacement.
Pursuant to that responsibility, the Committee, in consultation with Trust counsel and independent trustee counsel, reviewed applicable rules and regulations and became educated on the new Sarbanes-Oxley legislation ("SOA"). In particular, the Committee focused on Section 407, which requires the Securities and Exchange Commission ("Commission") (1) to issue rules to require issuers to disclose whether or not, and if not, the reasons therefor, its audit committee has at least one member who is a "financial expert;" and (2) as a part of that rule-making process, to define the term "financial expert." For the reasons set forth below, we urge the Commission in its defining the term "financial expert," not to make the definition so rigorous and inflexible that funds, and especially smaller fund complexes like ours, feel compelled to disclose to its shareholders that, notwithstanding an eminently qualified board member, none of the fund's board members is a "financial expert."
In our particular case, as noted above, our board vacancy coincided with the signing into law of the SOA. We began an extensive search for candidates who possessed a wide range of skills. Among the skill sets we considered were the attributes of a financial expert set out in Section 407 of the SOA. After reviewing and considering more than ten candidates, the Committee ultimately selected an individual whom it believed would be a valuable resource and an asset to the Board. This individual had a 20-year tenure with a major Wall Street brokerage firm. During that time, this individual held a number of key positions including Director of Long-Term Funding, Treasurer, and Chief Financial Officer for over five years.
As part of the Committee's candidate review and selection process, the Committee and the Board at large maintained its position that activities be conducted in a manner considered industry "best practice." The Committee took seriously the desirability of adding a "financial expert" to the Board. The Committee determined that the candidate's background was such that the candidate would clearly be the type of person contemplated when the term "financial expert" was drafted into the legislation. We have reviewed the proposed rule released on October 22, 2002. The proposal requires that the financial expert have five attributes. In order to conclude whether our financial expert satisfies the five attributes, our Board would be required under the proposed rule to consider nine specific factors. The proposal does not specify the number of listed factors that a financial expert should satisfy nor whether satisfaction of any specific number of factors would be sufficient. Additionally, many of these factors would require qualitative assessments of a potential financial expert's level of knowledge or experience.
In issuing the final rule, we would ask the Commission to consider our situation. We are a relatively small fund complex. Faced with a vacancy, we sought out and appointed an independent trustee whom we sincerely believe is a financial expert, someone whose knowledge and experience of accounting and financial statements will serve well our shareholders. We worked very hard to find someone of this caliber and to convince him to join our board. We encourage the Commission to give boards more guidance on how to apply the nine factors to the five attributes, and to create some flexibility for boards, as fiduciaries, to responsibly determine that one of its members is a financial expert and disclose that determination to it shareholders. . We believe the purpose of Section 407 was to encourage Boards to have financial experts be members of their audit committees. We believe the intent of Section 407 was to assure shareholders that their interests, in connection with the preparation and auditing of the financial statements of their companies, would be even better looked after. We urge the Commission, in issuing its final rule, to avoid making it too difficult for a public company, let alone a small fund complex like ourselves, to attract a board member who meets the general qualifications to be a board member and the definition of financial expert. Also, the final rule should not create a disincentive to a public company's board to recruiting specialized talent to sit on its audit committee.
We are confident and pleased with our most recent selection for Trustee. We hope the final rule will allow us to disclose to our shareholders that their interests are being even better protected by the presence of a financial expert on the audit committee of their fund's board.
I appreciate the opportunity to comment on this proposal.
Walter A. Koelbel, Jr.
Trustee and Chair, Nominating Committee of the Board of Trustees