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ence to the name of the registered owner,
way as similar depositories have operated since certificate or bond number or the like and, in
about 1937 in Europe. Depositors in CCS mainappropriate cases, may be on a net basis taking
tain shares of eligible securities in their CCS into account other transfers or pledges of the
accounts. The accounts are credited with the same security.
number of shares deposited in much the same Depository Trust accepts deposits of_securities listed on
way as a depositor's checking account is credited the Exchange or the American Stock Exchange or traded
with the value of his dollar deposits and stock over-the-counter from its members (which include broker
certificates representing these shares are regisage firms, other clearing corporations, banks and other
tered in the name of a common nominee, “Cede institutional holders of securities) which, when credited
& Co.” Neither CCS nor Cede & Co. has any beneto a member's account, may then be transferred or
ficial interest in the shares deposited. In addition to pledged pursuant to the foregoing provisions within the
all of the issues listed on the New York and Depository Trust system by the member to other members American Stock Exchanges, around 260 of the by computerized book-entry without movement of the
more than 10,000 issues traded in the over-thecertificates representing such securities, which remain in
counter market are eligible for deposit in Central the custody of Depository Trust or its custodian banks.
Certificate Service. Other groups within of (sic] Cede & Co. and the Central Certificate Service division
the securities industry hope to develop certificate of Stock Clearing (the predecessor to Depository Trust)
depositories and to eventually create a nationwere created by Stock Clearing, a wholly-owned sub
wide system of depositories for certificates. (emsidiary of the Exchange, in response to å felt need to
phasis added) Subcommittee on Securities of the reduce the enormous paperwork burden upon the secu
Senate Committee on Banking, Housing and rities industry created by the necessity of delivering paper
Urban Affairs, 92d Cong. 2d Sess., Securities stock certificates and bonds and putting them through a
Industry Study 14 (Comm. Print 1972). transfer agent each time a transaction is effected.
Additional information relating to Cede & Co. is available All members' securities (not just airline issues) which from Depository Trust, any one of the hundreds of brokers are deposited with Depository Trust are immediately regis- and other entities which are Depository Trust members, in tered in the name of Cede & Co., a New York partnership documents such as the Securities Industry Study cited comprised of employees of Depository Trust, which is above, in public records maintained at the Securities and Depository Trust's nominee. Deposited securities are Exchange Commission, the New York County Clerk's registered in the name of a nominee, as permitted by UCC office and at the New York State Tax Commission, and in § 8-320(1)(b), because it is far simpler to effect a transfer various publications describing CCS, the predecessor of of securities registered in the name of a partnership Depository Trust (e.g., New York Times, June 4, 1967, at nominee than in the name of a corporation.
FI, col. 1; American Banker, February 25, 1969, at 1, col. 1; New York Times, February 25, 1969, at 53, col. 1). Obviously, neither Cede & Co., its creator nor its users
is clandestine in nature or purpose. Information about Neither Depository Trust nor Cede & Co. is the bene
Cede & Co. and its function is readily available and ficial owner of, or has any knowledge of the identity of the Complainant apparently failed to make even a minimal beneficial owners of, securities so deposited. Depository inquiry as to the identity or function or Cede & Co. Trust and Cede & Co. have knowledge only of the identity of the Depository Trust members who make such deposits,
CEDE & co.'s PROXY VOTING PROCEDURE who may or may not be the beneficial owners of the securities. The deposit with Depository Trust and registration issuers, is entitled to vote such securities (New York
Cede & Co., as record holder of securities of New York in Cede & Co.'s name for the purpose of utilizing the Depository Trust book-entry transfer and pledge system ob
Business Corporation Law $612). A similar rule applies
with respect to securities of Delaware issuers (General viously effect no change in beneficial ownership. Prior to deposit by the member and registration in the name of Corporation Law of the State of Delaware 3219C)) and, Cede & Co., the securities so deposited may have been
we assume, with respect to securities of issuers of most, if
not all, other states (e.g., California Corporations Code registered in the name of the member (in “street name"), or in the name of the member's customer or its nominee;
$8 2215, 2218). But the question concerning to whom a in addition, they may have been beneficially owned by the corporation may look for the exercise of voting power, member or the member's customer or held
by the member laws, is quite different from the question of control under
which is, of course, a matter of each state's corporation or the member's customer in a fiduciary capacity, such as
Section 408 of the Federal Aviation Act, which is, of trustee, on behalf of third parties.
course, a matter of federal law. Complainant has erroneously and irresponsibly alleged
Cede & Co. never votes securities of which it is the that “Cede & Co. . . . appears to be an instrument created by certain major stockholders of the airlines respondents Trust member (received by Cede & Co. through Deposi
record holder except on the instructions of the Depository for the purposes of concealing the identity of such stockholders.” Other interested and not uncritical parties have
tory Trust) to whose account such securities are credited. seen no mystery surrounding the creation, purpose and
It is the consistent practice of Cede & Co. (via Depository identity of Cede & Co., Depository Trust and its predeces- members as to the voting of securities credited to the
Trust) to solicit instructions from Depository Trust sors. As stated by the Senate Subcommittee on Securities:
Depository Trust account of such members and to vote In 1968 the New York Stock Exchange acti- such securities only as and to the extent that instructions vated its Central Certificate Service (“CČS”) as are received. If the member in turn holds such securities a division of Stock Clearing Corporation. CCS for the account of its customer(s), the member has reacts as a depository for the stock certificates of sponsibilities, at least under some circumstances, imposed participating broker-dealers in much the same upon it under the Securities Exchange Act of 1934 (see
NO CONTROL OVER BENEFICIAL OWNERS
Walsh and Levine v. Peoria and Eastern Railway Company, The agreement between Depository Trust and Cede & 222 F. Supp. 516 (S.D.N. Y, 1963)) and under the rules of Co. entered into pursuant to $3 of the partnership agreethe various exchanges of which it nay be a member (see, ment is substantially identical to the partnership agreee.g., Exchange Rules 450 et seq.) to solicit instructions ment itself and contains the same restrictions, quoted fro n such beneficial owner before voting such securities. above, upon Cede & Co.'s voting of securities. Moreover, Beyond voting the securities as directed, Cede & Co. has Depository Trust itself exercises no more discretion with no control over the action taken by the member and has respect to the voting of securities held in Cede & Co.'s no knowledge whether the instructions it receives are name than does Cede & Co. itself. Depository Trust inthose of the member itself or instructions given the member structs Cede & Co. to vote the securities registered in Cede by a third party beneficial owner.
& Co.'s name only to the extent that and as Depository Cede & Co. is specifically forbidden by the provisions Trust is instructed by the members who have such secuof the partnership agreement among the partners of rities credited to their account with Depository Trust. At Cede & Co. to vote such securities without instructions. no time does Depository Trust direct Cede & Co. to vote Section 4 of the partnership agreement provides in relevant such securities without such instructions. In the event that part:
no such instructions are received such securities are not
voted by Cede & Co. The business of the Partnership shall be, and is hereby limited to, serving as a nominee partnership of DTC (Depository Trust), and such
THE PRESUMPTION OF SECTION 408(F) other entity or entities as ĎTC shall hereafter
Turning now to the point raised in the second paragraph approve for all purposes of the system for the
of your letter, we would like first to observe that the statecentral handling of securities maintained by DTC ment that “[u]nder Section 408(f) of the Federal Aviation or such other entity or entities as DTC shall
Act of 1958 ..., any person that holds 10 percent or more hereafter approve, and, in this connection, hold- of the voting stock of an air carrier shall be presumed to be ing in the Partnership name stocks, bonds and in control of such air carrier ..." is not an accurate other securities of whatsoever kind, and property paraphrase of the provision, and it is the same incorrect for the account and subject to the instructions
interpretation of Section 408(f) which appears to be the of DTC and/or such other entity or entities as ground for Complainant's mistaken reliance on the preDTC shall hereafter approve, and otherwise sumption. The presumption provided for in Section 408(f) acting with respect to such securities and any is applicable only to beneficial owners and has no applicarights, benefits or privileges relating thereto, in tion to holders of record title. The purpose of the reference accordance with, and only in accordance with, to record holders is to measure the amount of stock which instructions of DTC and/or such other entity or must be owned by the beneficial owner, regardless of entities as DTC shall hereafter approve.
whether he is the holder, for the presumption to apply.
(Letter from SEC Chairman Budge to Senator Magnuson, The Partnership shall not .. : · vote :
115 Cong. Rec. 18243, 18244 (1969).) Section 408(f) of the any stocks . .. or other securities . . for the
Act provides: individual account of the Partnership or any of
(f) For the purposes of this section, any person its partners or for the account of anyone other
owning beneficially 10 per centum or more or the than DTC and such other entity or entities
voting securities or capital, as the case may be, as DTC shall hereafter approve or . vote
of an air carrier shall be presumed to be in con.. any stocks . .. or other securities
trol of such air carrier unless the Board finds for the account or upon the direction of DTC
otherwise. As used herein, beneficial ownership and such other entity or entities as DTC shall
of 10 percentum of the voting securities of a carhereafter approve except as directed by DTC
rier means ownership of such amount of its outand/or such other entity or entities as DTC shall
standing voting securities as entitles the holder hereafter approve.
thereof to cast 10 per centum of the aggregate In addition, 87 of the partnership agreement provides
votes which the holders of all the outstanding that
voting securities of such carrier are entitled to
cast. (nJeither the Partnership nor any member thereof shall have or claim any beneficial interest what
In addition to defining, in terms of voting power, the soever in any stocks . . . or other securities . . stock ownership necessary for the application of the preat any time held by the Partnership or registered
sumption, Section 408(f) anticipates the possibility that in its name All right, title, equity, in
the beneficial owner and the record holder may be difterest, lien, claim and demand whatsoever in
ferent persons, as is obviously the case with respect to and to any stocks . . . or other securities .
Cede & Co. For example, Cede & Co. might (even though at any time held ... by the Partnership . .
it is never the beneficial owner) be entitled as record are hereby irrevocably waived and disclaimed. holder of voting securities of a given air carrier to cast
10 percent or more of the aggregate votes which the holders Finally, § 3 of the partnership agreement provides that of all the outstanding voting securities of such air carrier
[t]he purpose of the Partnership is to enter into are entitled to cast; if 10 percent of such voting securities and form a contract with DTC and such other are benefically owned by one person the presumption is entity or entities as DTC shall hereafter ap
applicable, but it is applicable to such person and not to prove upon such terms and conditions as may be Cede & Co. expressed therein for the conduct of the business Application of the presumption to Cede & Co. would hereinafter mentioned.
not only render the prohibition of Section 408(a) applicable
CONTROL UNDER SECTION 408
to Cede & Co. when it in fact has no control over or interest determines how stock shall be voted. See 20 CAB at 640 & in controlling the management of any air carrier; it would n.8. By the same token, Cede & Co., being only the bare also defcat the purpose of Section 408(a) with respect record holder and being forbidden by its agreements and to those beneficial owners of stock who, by instructing long standing operating policies and procedures from Cede & Co. how to vote their shares, may in fact exercise voting securities of which it is record holder, can by no actual control over an air carrier. One effect of Section stretch of the imagination be deemed to have control of 408(f), in making the distinction between beneficial owner- any issuer of such securities regardless of the extent of its ship on the one hand and holder' entitled to vote on the record holdings. other, is to assure that a beneficial owner of 10 percent or The description which we have already provided of the more of an air carrier's voting securities cannot evade the structure and business of Depository Trust and Cede & intent of the Act by the simple expedient of registering Co. makes it perfectly clear that there is no basis for a such securities in a name other than his own.
finding of control by Čede & Co. of any air carrier within With respect to the third paragraph of your letter, it
the meaning of Section 408, both because the Section is correct that McClain v. Lanova Corp., 39 A. 2d 209
408(f) presumption is inapplicable and because there is no (Del.Ch. 1944) holds that mere record ownership of voting
basis whatever for a finding that there exists "as a matter stock entitles the holder to vote such stock even absent
of fact a power to dominate or the actual domination” by the directions of the beneficial owner. The MoCluin case,
Cede & Co. of any air carrier. In addition, there exists with however, has no bearing upon the meaning of control for respect to Depository Trust and Cede & Co. none of the purposes of Section 408(f) of the Act; it was not concerned
business relationships, understandings or agreements with the concept of control, but merely with the narrow
which existed in the cases cited which would provide a question of entitlement to vote stock or to execute proxies
basis for a determination of control on grounds other than with respect thereto. The person who is so entitled may
ownership of voting stock. or may not, depending upon the facts and as is recognized
VOTING WITHOUT DIRECTION ILLUSORY in Section 408(f), be the same person who has control.
The theoretical possibility that Cede & Co. might vote securities of which it is record holder without direc
tion from a Depository Trust member is illusory. For When applied to Cede & Co., the principles set forth in
Cede & Co. so to act would be a complete breach of the the decisions of the Civil Aeronautics Board ("the Board”)
agreements under which it operates. It would also be a which are cited in the last paragraph of your letter compel
complete breach of Depository Trust's and Cede & Co.'s the conclusion that Cede & Co. does not control any air
consistent and long standing practice and understanding carrier within the meaning of the Act. In each of these
with Depository Trust members, a factual consideration cases the Board considered the question whether there had
which is just as compelling a reason for a determination been an unlawful acquisition (or retention, in the Eastern
that no control exists as were the business relationships case) of control within the meaning of the Act. In each
and understandings which existed in the Railway Express case, the Board based its decision upon a careful, detailed
case compelling reasons for a determination that there consideration of
the facts surrounding the relationship control did exist. Any such action by Depository Trust between the alleged controlling party and the carrier ít
and Cede & Co. would result in a complete lack of faith in allegedly controlled. The applicable standard is clearly Depository Trust and Cede & Co. on the part of Destated in the Boston and Maine case:
pository Trust members and would, of course, place such
members in a completely untenable position with respect The decisions of the courts support the view that to those of their customers for whom they hold securities "control" as used in Section 408 does not neces- in Depository Trust and upon whose direction Cede & Co. sarily depend upon the ownership of any specific is required to vote such securities. Depository Trust minimum percentage of stock or other ownership members would in such event probably have no alternarights but rather depends, in the light of all the tive but to withdraw such securities from Depository facts and circumstances in a particular case, upon Trust so that they could fulfill their own responsibilities whether there exists as a matter of fact a power to and they might even feel compelled to terminate their dominate or an actual domination of one legal Depository Trust membership—consequences completely personality by another. [4 CAB at 381.)
at odds with Depository Trust's own business interests Each case was decided on the basis of that practical stand
and purposes, which are to provide a stock depository and ard of control in fact.
central system for the handling of securities. The Eastern case is particularly significant, not only by
BACK-OFFICE PROBLEMS virtue of the careful fuctual analysis given the question of Moreover, the consequences which would follow from a control but also because it specifically recognizes the dis- grant of relief of the sort sought by Complainant would tinction for the purpose of determining control, between constitute a serious setback to the securities industry's the record holder of stock and the person who actually efforts to resolve its back-office problems. The urgency of
resolving the problems involved in the clearance and 2 Boston and Maine and Maine Central Railroads, Control-Northeast settlement of securities transactions, and the significance Airlines, Inc., 4 CAB 379 (August 23, 1943); National-CaribbeanAtlantic Control Case, 6 CAB 671 (March 1, 1946); Eastern-Colonial
of Depository Trust and its predecessors in this area, were Control Case, 20 CAB 629 (April 29, 1955); Railway Express Agency,
recognized by the SEC in its Study of Unsafe and Unsound Inc. et al. Order No. E-26199 (December 29, 1967).
Practices of Brokers and Dealers. (Report and Recommen
dations of the Securities and Exchange Commission, H.R.
CAB AND KANE & CO.
MILBANK, TWEED, HADLEY & McCloy,
New York, N.Y., May 17, 1973. for further remedial steps on the following
Mr. RICHARD J. O'MELIA, subjects:
Director, Bureau of Enforcement,
Civil Aeronautics Board, 1. Regulation of the process of effecting secu- Washington, D.C. rities transactions
DEAR MR. O'MELIA: On behalf of The Chase Manhattan There is no area of the securities business Bank (N.A.) and Kane & Co. we are glad to cooperate which offers more opportunity for reducing costs
in furnishing the further information requested in your as well as exposure to the kind of disruption which letter dated March 28, 1973. We regret that it has taken resulted in loss to customers during the 1969–70
time to assemble the information. period, than the improvement and modernization
1. Voting of Prories of the systems for clearing, settlement, delivery
The number of shares as to which Chase, as trustee or and transfer of securities. It was the archaic
agent, was authorized by the beneficial owners to vote method of achieving this simple objective which nearly drowned the financial community in a
proxies, in either sole or shared discretion, on June 14,
1972 was as follows: tidal wave of uncontrolled paper. It is clear that modern communications and computer technology have now advanced to a point where the
Number of transfer of stock ownership, the payment there
shares as to for, and the documents controlling and recording
Number of which voting
shares as to the transfer of ownership and payment can be
which Chase shared with dramatically simplified. Considerable progress
bad sole voting has been made in this direction. The Banking and
discretion Securities Industries Committee, at least four stock exchanges, and the NASD have made im- American Airlines, Inc.
2, 004, 441
28, 413 portant strides toward modernized clearance, National Airlines, Inc...
5, 700 settlement and delivery systems. What is needed
Eastern Air Lines, Inc.
1, 338, 067
3, 878 now is a force to direct and accelerate the evolu
Trans World Airlines, Inc....
3, 329 tion of these efforts into a single, integrated and nationwide system of securities clearance, settlement and delivery. From the individual and dis
Chase did not have power to vote all shares held in the
name of its nominee, Kane & Co. However, as trustee for parate attempts to improve the handling of the
various personal and pension trusts or as agent for various certificates and the process of clearance and
customers, Chase was authorized by the trust instruments settlement there have evolved the basic ingredi
or investment management agreements to vote the stock ents for such a system. The most recent increments held for the account of the trust or customer. In some such are the CCS depository developed by the NYSE,
cases Chase, as trustee or agent, had sole voting discretion the continuous net-by-net settlement system and in other cases voting discretion was shared with one or developed by the Midwest Stock Exchange, and more co-trustees or the customer. In cases where voting the net-by-net settlement system of NCC adopt- discretion was shared with a co-trustee or customer, Chase ed by the NASD. . . . Each is performing a executed the proxy and forwarded it to the co-trustee or valuable function which should be further devel
customer, who could approve or change Chase's vote and oped. (The Study, at 35, 36.)
then return the proxy to the corporation. See also, Statement of the Securities and Exchange Commission on the Future Structure of the Securities Markets at 16
PROXY EXECUTED IN BLANK (February 2, 1972). Yet, if it were determined that the Section 408(f) presumption was applicable, all stocks of
In cases where Chase had no voting discretion, Chase air carriers held by Cede & Co., to the extent that such
executed the proxy in blank and forwarded it to the party holdings equaled or exceeded 10 percent of an air carrier's
authorized to vote the shares. Chase did not and could total voting stock, would have to be removed from the not vote such shares “by default” since the proxy was Depository Trust system. Transactions in such shares could not returned to the corporation by Chase but by the party no longer be effected by the expeditious book-entry process
with power to vote the shares. provided by Depository Trust but would instead be rele- 2. We enclose copies of various types of "normal financial gated to the fomer inefficient and cumbersome procedure covenants” excerpted from several representative loun whereby stock certificates are shuttled back and forth agreements with air carriers.' The exact terms of financial between parties to a transaction and through the transfer covenants depend upon the particular circumstances and agent. All of this would result without in any way changing are subject to some extent to negotiation between borrower the beneficial ownership of the stock of the air carrier, and lender. The degree to which restrictions are imposed without in any way effecting the realities of "control”, will vary according to, among other things, the credit which would still reside in the person for whose benefit standing of the borrower. the stock is voted, while working a substantial disruption of Depository Trust in its efforts to upgrade the efficiency title or other interest in Leased Aircraft "as agent for
3. Transactions in which Chase, as of June 5, 1972, held of the securities transfer process. Very truly yours,
itself and others" or "for its own account”, are as follows: WILLIAM E. JACKSON. 1 Retained in CAB files.
29-553 0.74 - 23
Lessee of equipment
Lessor of equipment
American Airlines, Inc...
Feb. 15, 1969 3 Boeing 707-123B Chase Manhattan Bank, N.A... 100 percent.
6 Boeing 707-331 1969 (Irving Trust Co., as percent interest
in equity portion
of the trust. May 15, 1967 4 DC 8–62, 1 DC Braniff DC 8_Trust (Irving Approximately 15 8-62F aircraft. Trust Co., as Trustee).
percent interest in equity portion
of the trust. Sept. 22, 1970 Flight simulator.---. Chase Manhattan Service Cor- 100 percent.
Braniff Airways, Inc.-.
Western Air Lines, Inc.
We understand that your request does not relate to Dominican Republic. It also has world wide authority lease transactions in which Chase had title or other interest under Defense Department contracts, and holds authority as corporate trustee or as trustee for various personal to transport cargo to Central and South America. and pension trusts.
(Southern Air Transport is not related to Southern I hope that you will find this information helpful in Airways, a domestic scheduled airline that serves the your consideration of the answer of Chase and Kane & southern United States.) Co. to the third-party complaint.
Williams joined Southern in its operations department Very truly yours,
in 1949 and, according to his biographical statement, WILLIAM E. JACKSON. worked his way up to president. He is also listed as a
one-third owner, along with Percival F. Brundage and
Brundage was director of the Bureau of the Budget
during the Eisenhower administration and McGuire was [From the Washington Star-News, Aug. 13, 1973]
a deputy assistant secretary of defense and later an assistCIA and the Southern Airline
ant secretary for international security affairs during the
same periods. SALE HEARING RAISES SPY QUESTIONS
Last March, Williams asked the CAB for authority to
acquire all of the stock in Southern for about $5.1 million. (By Stephen M. Aug, Star-News Staff Writer) Within a few days several supplemental airlines that com
pete with Southern decided to intervene in the matter. Southern Air Transport is an airline with the authority They include Overseas National Airways, Trans Interto operate a charter business nearly anywhere in the national Airlines, World Airways and Saturn Airways. world. Stanley G. Williams is the president of Southern, The case was turned over to Shapiro for hearings. and he would like very much to buy the line from its
Almost from the start, Southern officials balked at present owners.
providing any information about the company or its All in all a simple enough matter, complicated only by ownership other than that which they had volunteered one thing: Southern has, for about 13 years, apparently in the first place. been owned-secretly and perhaps illegally—by the In early June, virtually on the eve of the hearings, Central Intelligence Agency.
ONA, Trans International and World asked for a postIt is a set of circumstances that has led to one of the
ponement. The material that Southern had provided, most bizarre airline acquisition cases ever to come before they said, raised serious questions as to what kind of the Civil Aeronautics Board. With the hearings ended, business Southern was engaged in. CAB Administrative Law Judge Milton Shapiro has Then there was something called Actus Technology, a begun writing his report on the case.
corporation which appears to have served no other purpose Lawyers representing Williams have tried to keep all
than as a conduit for funding Southern. Actus subleases mention of the CIA out of the case.
some space at Miami International Airport to Southern, They have been successful in convincing Shapiro to which has a base there. hold nearly the entire hearing on the matter in secret
Williams, McGuire and Brundage are the officers, stockwith those taking part being required to take an oath holders and directors of Actus as well as of Southern. that they wouldn't disclose what transpired.
Federal law requires CAB approval before the same They have even been able to keep out of the public individuals may be associated with an airline and an record parts of some complaints made by rival charter aeronautics firm. No such approval was sought or received airlines who fear that Williams is getting a windfall by here. being allowed to purchase from a government agency CAB documents indicate that Actus' main role was privately--without public bidding--an airline with valu lending money to Southern-more than $11.6 million able CAB operating authority.
since 1969. Actus received money from Air America, CAB records show that Southern Air Transport was nearly $9.4 million between 1960 and 1973. During the incorporated in Florida in 1947. The firm holds authority same period, Southern itself borrowed nearly $7.4 million to transport inclusive charter tours within this country from Air America. And Air America's parent, the Pacific and between the United States and American Samoa, Corp., guaranteed $6.6 million of loans from ManufacGuam, the Johnston Islands, the Marshall Islands, Oki- turers Hanover Trust Co. to Southern. nawa, Wake and points in Australia, Indonesia and Asia, The District of Columbia telephone directory lists Air as well as to Caribbean Islands including Haiti and the America, the Pacific Corp., Civil Air Transport is the