April 15, 2007
We would like to share with you some of our experiences and concerns during the recent voting process to amend the NASD By-Laws.
We submitted a "no" vote using the Financial Industry Associations revised proxy. This was after we consulted with both Georgeson Inc and NASD personnel. Initially we were told that we could cross off the names T. Grant Callery and Barbara Z. Sweeney and replace them with John Busacca and Richard Goble. Later we were told that we could not tamper with the official ballot. Our request for written clarification from both Georgeson and the NASD went unanswered. Consequently we have no assurance that our "no" vote was in fact counted as a "no" vote. Further it is our understanding that the vote was not accomplished within the 30-day time period so the whole process may in fact be invalid. Frankly we viewed Georgeson Inc as nothing short of a telemarketing firm hired by the NASD to solicit a "yes" vote.
The NASD offered us an incentive of $35,000.00 and a reduction in our annual dues of $1,200.00 per year and encouraged us to vote yes for the By-Law amendment. When we inquired about these figures we were told by both Georgeson and the NASD that these figures were arrived at by attorneys and accountants retained by the NASD. When asked if those calculations and opinions of fairness could be shared with the members we were told no. When an NASD staff member questioned our trust in the calculations we responded that full disclosure would suffice. When we inquired about the $1+ billion that would remain in the NASD coffers after the above payments to members were made, we were told that these funds were needed over the next two years to cover "operating deficits". It doesnt take a CPA to figure out if you are using up your net worth to cover deficits you wont be in business for very long. Needless to say there were no written disclosures made so we can only guess at the numbers.
Overshadowing this whole voting procedure was the fear that if we did not act immediately, and favorably, the SEC was ready to step in and take action that would not be in the best interest of the association. In a letter dated December 28, 2006 that we received from William Alsover, Chairman of the NASD Small Firm Advisory Board, he indicated that statements by SEC Chairman Cox and Commissioner Nazareth make it clear that the SEC wants this consolidation to occur quickly. Mary Schapiro, NASD Chairman, in her message to members of November 28, 2006 also indicated the SEC supports the consolidation effort. What action the SEC was prepared to take was never specifically mentioned; however quick action by the members was required to prevent this undisclosed detrimental action by the SEC. All this quick action of course had to be squeezed into the holiday season with all the services, family, festivities, shopping, and vacation days; what timing
Repeatedly we were assured that the consolidation was supported by numerous industry groups and politicians. What concerns us is that most of these supporters seemed to be in favor of the consolidation well before the December 14th proxy publication was made available to them and the members. We are deeply concerned as to what, if any, incentives may have been offered to these early supporters.
The current structure of one vote for one member seems to be working; at least it has during our 23 years in business. Under the new consolidated proposal a token 7 members or 30% of the Board of Governors will come from the industry. Control will then rest with the remaining 70% of the Board. To place $1+ billion and all this power in the hands of an unknown, unproven, hand picked group of 17 individuals does not appear to be in the best interest of the industry or the investing public; it could well prove to be a lottery ticket for those selected few.
We favor consolidation if it is good for the industry and the public provided we retain the one member, one vote. We would simply ask for full and transparent disclosure of all material facts and figures. Then vote on the consolidation and if approved, amend the By-Laws, if necessary.
We ask that you table the consolidation as proposed and recommend the NASD go back to the drawing board. Ask them to put forth all of the facts and figures; demand FULL DISCLOSURE to all concerned parties. Let them come up with a workable solution that is good for the NASD, NYSE, association members, the industry, the public, the SEC, and our legislators. It will take a little time. We have structure in place that works; lets just fine tune it to meet the demands of todays marketplace.
Thank you for your consideration.