NASD Investor Complaint Center 1735 K Street, NW Washington, D.C. 20006-1500
Re: Request for Investigation of Brokerage Conduct Involving CMKM Distribution
Dear Sir or Madam:
On November 5, 2005, a final order was entered by the SEC delisting the securities of CMKM Diamonds, Inc. (hereafter CMKM) Shortly thereafter, CMKM management appointed a “Task Force” to assist the company in determining their bonafide shareholders. I was invited to participate on this Task Force along with Attorney Don Stoecklein and Bob Maheu, a former board member of CMKM. The Task Force had a single job of identifying all bonafide shareholders of CMKM. Prior to delisting, the company had issued and outstanding 703 billion shares. There was evidence of billions of failed deliveries in this stock at the time the trading in this security was halted by the SEC. Trading was halted by the SEC for non reporting violations.
Shortly after delisting, CMKM sold a major company asset consisting of a large number of mineral claims in Canada. The sale of this asset resulted in the company receiving 45,000,000 shares of an OTCBB stock called Entourage Mining Ltd. (ETGMF) The purchase agreement stipulated that such shares shall be distributed to the shareholders of CMKM. Recent press releases state that Entourage has a drilling program in operation and there is expectation of future development of the claims which were once owned by CMKM. The Entourage stock now trades in the .20 to .30 USD range. There is evidence of potential appreciation of this Entourage stock.
Due to the indisputable evidence of large numbers of failed deliveries in this stock, CMKM elected to distribute the 45,000,000 shares of Entourage stock to all bonafide shareholders in what was described at that time as a windup distribution. CMKM has informed shareholders that only shareholders with valid certificates from the official company transfer agent will receive their pro rata distribution of Entourage stock. In November of 2005 CMKM shareholders began requesting certs from their brokers. CMKM is currently a private Nevada corporation in good standing per Nevada state statutes.
Nevada law NRS 78.235 mandates that each shareholder has the right to request and receive certificates of ownership from the company for their stock. Specifically, the statute states “..every stockholder is entitled to have a certificate, signed by officers or agents designated by the corporation for the purpose, certifying the number of shares owned by him in the corporation.”.
I am making this complaint in my capacity as a volunteer on the Task Force appointed by the company to determine its bonafide shareholders. I do not represent the company in any legal capacity other than being a volunteer to assist CMKM in identifying its bonafide shareholders. My law office has been the depository for shareholders to send copies of their certs once they receive the same from their broker. My office has worked closely with the official company transfer agent as we continue to gather evidence of bonafide ownership of CMKM stock. Consequently this office has documented complaints from hundreds of shareholders who have been attempting to obtain certs from their brokers since November of 2005 but have been unable to do so. The litany of excuses being given by various broker dealers for the refusal to honor their customers request for certs continues ad nauseum. At least three deadlines have been established in an effort to obtain cooperation from various brokers and to accommodate shareholders who received late notices of the request by the company.
The DTCC sent information to its participants in November of 2005 informing its participants of the CMKM request that certificates be obtained in the beneficial owner’s names. As the final deadline imposed by CMKM approached, the DTCC, working with the CMKM Task Force, directed all participants to request their certs on deposit at the DTCC or the DTCC would send all remaining certs to the transfer agent for distribution back to the brokers. Many brokers still did not request their certs on deposit at the DTCC and the DTCC emptied their vaults of CMKM securities as they had indicated they would do. As of the date of this letter, the DTCC is not involved in the transfer of CMKM stock between the beneficial owners, the company and any securities intermediaries. All stock transfer problems which exist at this time are between the securities intermediaries (broker/dealers) and the shareholders.
CMKX is no longer a publicly traded company. Its stock has not been publicly traded since October 31, 2005 per order of the SEC. All shares should be held directly by the beneficial owners of the stock and not by any securities intermediaries. This is not a defunct company or a no asset company. It is however clearly not a publicly traded security. As set out above, a number of the claims owned by the company have recently been sold for a value of several million dollars based on the market price of the stock which was obtained for the sale of the assets. Management still exists and is active in its efforts to identify its shareholders. Thus, there is no issue concerning “worthless securities” at this time.
The only custodians of CMKM stock other than those shareholders who possess valid certs are the securities intermediaries. The term “securities intermediaries” is defined in the discussions of the enactment of 17 CFR 240 as amended. The comments and discussions about the ownership rights by securities intermediaries is pertinent to this request for an investigation. The comments by the SEC do not suggest that securities intermediaries (brokers) acquire the rights of beneficial owners or that such rights can be distributed or denied at the whim of the brokers.
The most alarming problems are represented by those shareholders who have been requesting certs from their brokers since the company’s first announcement of a distribution seven months ago. Here is a sampling of excuses being given to shareholders as reasons for their inability to obtain a cert:
“We had your cert, but it is now lost. It will take us another 6 to 8 weeks to obtain another one.” “This stock purchase was a book entry only and no certificate is available.” “Your stock was classified as a worthless security and is no longer in your account.” “Our clearing firm has not been able to deliver these certificates due to a backlog of requests at the transfer agency.” “I have been instructed we are no longer pulling certs for CMKM and there is nothing I can do. You need to contact the company.” “CMKM Diamonds has a “K” code next to it, indicating that it is being held in safekeeping for the client. The clearing agent has made the decision not to issue certs but rather fax a copy of the certs it holds to the transfer agent.” “Attached herewith is evidence of ownership of shares held electronically by XYZ clearing for ABC broker. ABC to confirm receipt of this proof of shares of CMKM and related companies are held with XYZ.” “In light of the lack of cooperation (by the transfer agent), your May 15th, 2006 deadline must be bogus and must be extended, and Entourage shares could of course still be sent to ABC for the benefit of XYZ.” “MNO said they had discussed with the Task Force the acceptability of the affidavit as proof of ownership in lieu of the certificate, and that it would be accepted.” No such conversation ever occurred with the Task Force members. “We ordered your certificate, and it has been lost. You must now fill out a loss certificate.” The transfer agent confirms that no certificate was ever issued.
Each quoted statement above is taken verbatim from a shareholder’s letter or from a broker’s written response to a shareholder’s request for a cert. I could continue with pages and pages of documented incidences of these broker responses to the requests of the shareholders if such is necessary to establish the need for a full investigation.
It is my understanding of various SEC rulings and other regulatory holdings that the true beneficial owners are the only people or entities that own the stock and the rights package associated with stock ownership. Securities intermediaries are simply as their name implies. They are intermediaries. In the case of this Entourage distribution, the brokers have no rights to receive the distribution absent any proprietary holdings. Since CMKM is no longer a publicly traded company, it is my understanding that the brokers have no ownership interest and certainly would have no rights to ownership of the Entourage stock.
The Task Force has now received certs in the name of certain brokerage companies. Our investigation reveals a potentially huge naked short position in at least two of the very companies that have sent us certs. The certs sent to the Task Force by the brokers represent billions of shares of CMKM stock. It is not the intention of the company to distribute Entourage stock to securities intermediaries and clearing houses for them to distribute the stock at their discretion. It is clear from the Regulation SHO records in conjunction with other sources (ADP, the transfer agent and the DTCC) that huge fails to deliver in this stock currently exist. It would be a breach of the fiduciary duty of the company to distribute these assets to a broker in lieu of its true beneficial owner when there is evidence of known fails to deliver occurring at the same brokerage house.
There was a time in the market place when shareholder’s rights at least co-existed with the rights of the broker/dealers. You have now been presented with evidence of shareholders who have demanded that their brokers issue certs for their holdings. Many shareholders have been flatly refused by their broker. This violates Nevada state law and the spirit, if not the letter, of federal regulatory law. I call on you to begin an investigation into this injustice.
Sincerely,
Bill Frizzell Member CMKM Task Force Shareholder Attorney
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