(The news
featured below is a selection from the news covered in the Federal Securities
Report Letter, which is distributed to subscribers of the Federal
Securities Law Reports.)
Rules on Listing Standards for
Audit Committee Compliance Adopted
The SEC voted to adopt rules
directing the national securities exchanges and national securities associations
to prohibit the listing of any security of an issuer that is not in compliance
with the audit committee requirements established by the Sarbanes-Oxley Act. The
new rules and amendments implement the requirements of Section 10A(m)(1) of the
Exchange Act, as added by Section 301 of the Sarbanes-Oxley Act.
Under the new rules, national
securities exchanges and national securities associations will be prohibited
from listing any security of an issuer that is not in compliance with the
following requirements. Initially, each member of the audit committee of the
issuer must be independent according to the specified criteria in Section
10A(m). The audit committee must also be directly responsible for the
appointment, compensation, retention and oversight of the work of any registered
public accounting firm engaged for the purpose of preparing or issuing an audit
report or performing other audit, review or attest services for the issuer, and
the registered public accounting firm must report directly to the audit
committee.
To satisfy the new rules
requirements, an issuer's audit committee must establish procedures for the
receipt, retention and treatment of complaints regarding accounting, internal
accounting controls or auditing matters, including procedures for the
confidential, anonymous submission by employees of concerns regarding
questionable accounting or auditing matters. The audit committee must also have
the authority to engage independent counsel and other advisors, as it determines
necessary to carry out its duties. The rule also specifies that the issuer must
provide appropriate funding for the audit committee.
Audit committee members of listed
issuers must be barred from accepting any consulting, advisory or compensatory
fee from the issuer or any subsidiary, other than in the member's capacity as a
member of the board or any board committee. To qualify for listing, an audit
committee member must also not be an affiliated person of the issuer or any
subsidiary apart from capacity as a member of the board or any board committee.
The new rules will apply to both
domestic and foreign listed issuers. The SEC stated that the rule contains
several provisions applicable only to foreign private issuers that seek to
address the special circumstances of particular foreign jurisdictions. These
provisions include: 1) allowing non-management employees to serve as audit
committee members, 2) allowing shareholders to select or ratify the selection of
auditors, 3) allowing alternative structures such as boards of auditors to
perform auditor oversight functions where such structures are provided for under
local law, and 4) addressing the issue of foreign government shareholder
representation on audit committees.
The new rules also will make
several updates to the Commission's disclosure requirements. The SEC will now
require updates to the audit committee financial expert disclosure requirements
for foreign private issuers.
The Commission voted to establish
two sets of implementation dates for listed issuers. Generally, listed issuers
will be required to comply with the new listing rules by the date of their first
annual shareholders meetings held after January 15, 2004. Compliance will be
required in any event no later than October 31, 2004. Foreign private issuers
and small business issuers will be required to comply by July 31, 2005.
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The adopting release will be published in a forthcoming REPORT.
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