June 1, 2004
Drew Field Law Offices
25263 Flanders Drive
Carmel, CA 93923
Jonathan G. Katz, Secretary
Securities and Exchange Commission
Re: Securities Transactions Settlement
File No. S7-13-04
Dear Mr. Katz:
These are comments on how immobilization and dematerialization could affect corporate governance. We have acted as legal counsel for many Small Business Issuers in their initial public offerings and commencement of investor relations.
Our clients have no need for certificates, provided that they have access to current names and communications data for each of their security holders. Book-entry systems work well. Evidence of ownership, in case of record system failures, is easily protected by redundancies constructed into the process, as businesses do with accounts payable and receivable.
Mandated dematerialization would, in our opinion, be helpful to issuers, providing them with a ready answer to individual investors who express discomfort at not having a certificate.
Immobilization of certificates in central depositories is, in our opinion, a regressive and dangerous direction. Our experience with issuers is that nominee registration creates extra costs, confusion, mistakes and a barrier to communications with owners and creditors of the business. Patchwork directives to fix delivery of security holder communications still leave a remoteness between the business and the owners of its economic interests.
Issuers have a direct contractual relationship with their transfer agents. They can require correction of any impediments to communication. Central Securities Depositories are, by contrast, like Self Regulatory Organizations, serving multiple constituencies and responsive only to internal direction and government oversight. An issuer's corporate governance and constituent relations are only among many considerations for a CSD in its policies and actions.
The interposition of CSDs would likely minimize the Commission's steps to improve corporate governance. We believe that dematerialization will allow issuers and their transfer agents to maintain continuous delivery of information, electronically or by paper, and promote effective responses from security owners in votes, questions and comments.