Finally, there is some movement from the NYSE and Nasdaq on their corporate governance listing standards…
The NYSE filed amendments to its proposed listing standards on director independence with the SEC that excerpt their independence proposals from the broader filing made last summer. This will allow the SEC to address and publish them for comment separately.
As proposed, the NYSE’s proposal to require that boards have a majority of independent directors has not been changed. However, the amendments replace the per se independence bar for employees/former employees with a rebuttable presumption. This presumption is that any director who receives more than $100k/yr. in direct compensation from the company (other than director fees or forms of deferred compensation for prior service) is presumed not to be independent for 5 years following the year in which more than $100k was received. Because the presumption is rebuttable, a director may be deemed independent if all the independent directors determine that the compensatory relationship is not material – and this determination is explained in the company’s proxy statement.
The NYSE also added a bright-line standard for determining independence when a director is affiliated with another company that has a business relationship with the company – a director would not be independent if the director is an executive officer or employee of another company and: (1) that company accounts for the greater of 2% or $1 million of the company’s gross revenues; or (2) the company accounts for the greater of 2% or $1 million of the other company’s gross annual revenues. There is a 5-year look-back period. Like the NYSE’s initial proposals, the amended independence standards require the board to make an affirmative determination that a director has no material relationship with the listed company and permit the adoption of categorical standards to assist the board in making independence assessments.
In addition, although the NYSE initially proposed allowing companies 24 months from SEC approval of final listing standards to achieve majority independence, the amendments propose shortening that transition period to 18 months (30 months for companies with staggered boards).
The NYSE expects that its remaining corporate governance proposals will be published for comment separately – but that all proposals will be given final SEC approval and made effective as a whole (with appropriate transition periods for different provisions).
Nasdaq two revised proposals relate to the independence of boards/committees and codes of conduct. The amendments withdraw the earlier proposal to require audit committees to have a “financial expert” – thus, reverting to its existing requirement that at least one member of the audit committee have financial experience). The amendments also clarify that the required codes of conduct must have all of the elements required under Section 406 of Sarbanes-Oxley the SEC’s related rules.
Regarding board/committee independence, the Nasdaq proposals now establish that where a director has a family member who receives annual compensation in excess of $60k in the current or any of the past three fiscal years, the director is not disqualified from being independent unless the family member is an executive officer – as well as require that the audit committee charter set forth the committee’s purpose, which is to oversee the company’s accounting and financial reporting processes and audits of the company’s financial statements.
Yesterday, the Public Company Accounting Oversight Board met and proposed rules to allocate, assess and collect annual accounting support fees from issuers in accordance with Section 109 of Sarbanes-Oxley. The allocation formula would be used to cover the expenses of both the Board – and the accounting standard setting body.
Fees will be assessed against issuers registered under Section 12 of the Exchange Act, required to file reports under Section 15(d) of the Exchange Act, or that have filed a registration statment under the Securities Act that has not become effective and that has not been withdrawn. This would include foreign private issuers.
Certain classes of issuers will be exempt from the fees (such as who do not file audited financial statements, employee stock purchase savings and similar plans, asset-backed issuers and issuers in bankruptcy). In addition, operating company issuers with an average market cap less than $25 million will not be assessed fees. There was no discussion of exactly how the average monthly market capitalization will be computed.
Fees will be allocated based on a ratio of the issuer’s average monthly equity market capitalization over the 12 months immediately preceding the Board’s fiscal year to the total average monthly capitalization of all covered issuers.
The staff of the Board expects that this formula will result in operating companies paying 95% of the fees – and investment companies 5%. However, the staff was not able to give a ballpark figure on what the largest issuers might expect to be charged. That of course depends in part on the budget of the Board and also the budget for the standard setting body. However, the Washington Post reported that larger issuers would pay fees of about $2 million per year.
Under Sarbanes-Oxley, the registration or annual fees received from public accounting firms registered with the Board will be deducted from the budget expenses of the Board that are required to be paid by issuers. As the staff pointed out, since there were no such fees paid last year, the Board’s budget expenses for fiscal year 2003 will be funded entirely by fees charged to issuers. Under Sarbanes-Oxley, all of the expenses of the standard setting body are to be covered by fees paid by issuers.
Comments are due by April 4th. After the comment period, the Board has to approve final rules and submit them to the SEC – which then puts the rules out for comment and approves them.
The Board hopes to send notices of the fees due to issuers by late May for this 2003 fiscal year – and then going forward, the notice would be sent in late January or February each year. Apparently, the Board is using a calendar year fiscal year.
Before Congress, SEC Chair Donaldson testified that the SEC needs the entire 18% budget increase proposed by President Bush (i.e. $841.5 million) – to improve its technology, crack down on corporate fraud and hire more staff.
It is reported that Schering-Plough is preparing a “Wells notice” in response to a SEC enforcement investigation regarding an alleged Regulation FD violation. This is particularly significant because its a signal that new SEC chairman William Donaldson supports Reg FD (and Donaldson did not support Reg FD when it was initially proposed a few years ago).
FASB commences its discussion of rulemaking to require expensing options today – by now, a number of accounting firms support the move, including E&Y, PwC, Deloitte, Grant Thornton – and allegedly even KPMG. See a related Washington Post article at http://www.washingtonpost.com/wp-dyn/articles/A12710-2003Mar11.html.
The Public Company Accounting Oversight Board has issued a proposing release with proposed registration rules and a proposed form for public accounting firms to register with the Board. Comments are due by March 31, 2003 – and may be filed electronically or in writing. The Release is available on the Board’s website at the following link by clicking on “Proposed Rules” at http://www.pcaobus.org.
The proposed registration rules do not exempt non-US public accounting firms – and would apply to non-US audit firms that play a substantial role (as defined) in the rules in the preparation or furnishing of audit reports (even though they do not issue the report). The Board initially announced plans for a public roundtable on the effect and operation of Board registration and oversight of foreign public accounting firms on March 21st – that date has been changed to March 31st. A list of questions the Board would like addressed by commentators is contained on pages 13-14 of the proposing release.
As reflected in an interview with Pat McGurn, as one of its new policies, ISS will recommend voting against ratification of a company’s auditors – as well as withholding for a company’s audit committee members – if the company does not meet a simple formula regarding the level of the audit and audit-related fees paid to the auditor compared to non-audit fees (ISS separately analyzes the types of fees in the “tax fees” column to determine which side of the equation each fee should go).
The bottom line is that companies should voluntarily comply with the SEC’s new audit fee table (which is adopted but not yet effective) to enable ISS to conduct its analysis. Otherwise, the company faces the prospect of numerous votes against ratification of auditors and withholding for audit committee members – ISS already has recommended this adversarial stance in the first instances it has arisen since ISS’ new policies took effect early last week. TheCorporateCounsel.net subscribers can learn more about all of ISS’ new policies in the Pat McGurn interview posted at http://www.thecorporatecounsel.net/member/InsideTrack/03_10_03_McGurn.htm.
Warren Buffett’s annual letter to shareholders always is interesting reading – this year’s letter criticizes derivatives (page 13), corporate governance, executive compensation and the accounting profession (page 16). You can read it at http://www.berkshirehathaway.com/letters/2002pdf.pdf.
The SEC has pronounced that the new listing standards on shareholder approval of equity compensation plans and broker voting will not go into effect for this proxy season. The current rules will be extended through June.
Yesterday, FASB chief Bob Herz testified before Congress on expensing options – and expressed his view that he would resist political pressure in his efforts towards mandating expensing. See the related Washington Post article at http://www.washingtonpost.com/wp-dyn/articles/A42477-2003Mar4.html.
Thanks to Mike Holliday – our roving friend and reporter – the following are some of the actions taken by the Public Company Accounting Oversight Board at its meeting today:
1. Approved putting out for comment proposed registration rules and forms for public auditing firms to register. Comments due by 5 p.m. on March 31st. After the comment period, the PCAOB has to approve the rules and forms and submit to the SEC, which will put out the rules for comment. The PCAOB time schedule is to send the rules and forms to the SEC by mid-April, with applications from auditing firms due to be filed by early September and firms registered by the end of October.
2. The PCAOB plans to put out proposals for allocation, assessment and collection of fees from issuers next week, with final rules to the SEC by mid-April. They plan to be able to send bills to issuers in mid-to-late spring.
3. The PCAOB plans to adopt transitional standards on auditing, quality control and independence in mid-April, and to announce standard setting procedures in April.
4. Non-US auditing firms – including non-US firms that play a substantial part in preparing audit reports even if the firm does not issue the report – are not exempt from the registration process.
5. The PCAOB plans to hold a roundtable the week of March 17, they mentioned Friday, March 21, to consider registration of non-US auditing firms and how the PCAOB should exercise its authority over non-US firms. They want to invite participation by US and non- US auditing firms, investors and financial regulatory authorities. There will be a separate release on this with a list of questions attached.
Although most of this regulation directly affects the auditing firms and not public companies, there are a few issues for companies to follow – in addition to the fees public companies will have to pay. The PCAOB will be collecting data, particularly in audit firm investigations, that may include some public company client information.
Also, SOX 105 specifically authorizes the Board to establish rules to request testimony of, and production of any document in the possession of, any other person including any client of an auditing firm, and to seek issuance by the SEC of a subpoena to require the testimony of or production of any document in the possession of any person including any client, with relevancy and materiality standards. Public companies will have an interest in how their confidential and proprietary information will be protected.
More than 100 companies with 12/31 year-ends filed their Form 10-Ks (and some 10-KSBs) within 60 days – meeting what will be the new deadline two years hence.
From these and other filings, for TheCorporateCounsel.net subscribers, we have excerpted sample disclosures related to loans under Section 402 and changes in accountants. We also have sample disclosures regarding audit committee financial experts. These are posted at http://www.thecorporatecounsel.net/member/Disclosure/.
The Public Company Accounting Oversight Board hired away George Diacont from the Nasdaq to be head of registration and inspections. George used to work at the SEC. The Oversight Board has a much anticipated meeting today at 12:30 est – tackling registration of foreign auditng firms among other issues. You can hear the webcast at http://www.connectlive.com/events/pcaob/.