January 2001 TO OUR CLIENTS AND FRIENDS:

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1 January 2001 TO OUR CLIENTS AND FRIENDS: One of the recent areas of concern for the Securities and Exchange Commission ("SEC") has been "auditor independence" - the mental state of objectivity and the lack of bias of certified public accountants that perform audits or review public company's financial statements or file reports or opinion with the SEC. On November 21, 2000, the SEC Office of Chief Accountant adopted new rules modernizing its views on auditor independence. On January 16, 2001, the SEC posted several questions and answers about the new rules on its website at In addition to imposing certain obligations on auditing firms, the new rules require companies audited by these firms to make certain audit-related disclosures. According to the SEC, investors armed with these new disclosures "will be better able to evaluate the independence of the auditors of the companies in which they invest." The new rules, including the new disclosure requirements, become effective February 5, Companies should use this time before the effective date to prepare for the impact of the new rule. The attached memo, SEC Adopts Rules Requiring New Audit-Related Disclosures in Proxy and Information Statements, by Ronald R. Levine, II and Peter H. Schwartz* contains two parts - a brief summary of the disclosure requirements and a few practical considerations for companies to consider. Please do not hesitate to contact the authors, or any other member of the DGS Finance and Acquisitions Group, to discuss issues relating to these new disclosures or any other issues raised under the new rules. Regards, DGS FINANCE AND ACQUISITIONS GROUP * Mr. Levine is a partner in and the head of the Finance and Acquisitions Group of Davis Graham & Stubbs LLP. Mr. Schwartz is an associate in the Finance and Acquisitions Group.

2 SEC Clarifies New Rules Requiring Audit-Related Disclosures In Proxy and Information Statements SUMMARY OF NEW DISCLOSURE REQUIREMENTS Which Companies are Subject to the New Disclosure Requirement? Each reporting company under the Securities Exchange Act of 1934, as amended, is subject to the new rules, except (1) a company reporting solely under Section 15(d) of the Exchange Act or (2) a foreign private issuer. Which Proxies are Subject to the New Disclosure Requirement? The new rules apply only to those proxies that relate to meetings of shareholders at which directors are to be elected (or solicitation of written consents in lieu of a meeting for that purpose). Where Should the New Disclosures Be Located in the Proxy Materials? According to the SEC staff, the new rules do not specify where in the proxy statement the new disclosures should appear. The SEC staff, however, has indicated that they "think it is certainly appropriate for the disclosures to accompany the disclosures required by [the portions of the proxy discussing the audit committee report or the independent public accountants]." The SEC staff also noted that any new disclosure made in the audit committee report would not be entitled to the "safe harbor" protections that apply to the audit committee report. Therefore, even if the new disclosure materials were included in the audit committee report, they would still be deemed to be "filed," to be "soliciting materials," and to be subject to Sections 14A and 14C of the Exchange Act. What Are the Components of the New Disclosure Requirement? The new disclosure requirement has three components: Fees: fees billed for services rendered by the principal accountant; Considerations By the Audit Committee: whether the audit committee considered the compatibility of the non-audit services the company received from its auditor and the independence of the auditor; and Leased Personnel: the employment of a significant percentage of leased personnel in connection with the audit.

3 DISCLOSURES RELATING TO FEES What Captions Must Be Used For the New Fee Disclosures? The new rules require fee disclosure information under three captions: "Audit Fees" "Financial Information Systems Design and Implementation Fees" and "All Other Fees" Can These Fees Be Shown in a Table? Yes, but the three captions must be included in the table. According to the SEC Staff, "one way to satisfy this requirement is to provide a table consisting of two columns or rows, the first listing the three captions and the second listing the three amounts." The SEC staff also pointed out that "any further breakdown of the amounts is optional and could be included in the table itself, in a footnote to the table or in narrative disclosure in proximity to the table." Can or Must Companies Include Fees Billed in Prior Years? According to the SEC staff, the new rules do not require these types of comparative disclosures, but companies may voluntarily include that information. Whose Fees Must Be Disclosed? According to the SEC staff, the company must disclose the fees billed by the "principal accountant," as that term is defined in the auditing literature. In determining what services rendered by the principal accountant must be disclosed, all entities that comprise the "accountant," under the new rules should be included. "Accountant" includes not only the person or entity that furnishes reports or other documents that the company files with the SEC, but also all of that person's or entity's departments, divisions, parents, subsidiaries, and associated entities, including those located outside of the United States. In addition, if the principal accountant's billings or expected billings include fees for the work performed by others (such as where the principal accountant hires someone else to perform part of the work), then those fees should be included in the fees disclosed for the principal accountant. In some foreign jurisdictions, however, a company may be required to have a joint audit requiring both accountants to issue an audit report for the same fiscal year. In these circumstances, fees for each accountant should be separately disclosed as they are both "principal accountants." Finally, if the company has changed accountants during the year, the fee disclosure should be made only for the accountant who renders an audit opinion on the most recent year's financial statements.

4 How Does a Company Classify its Fees? "Audit fees" should include fees for financial statement audit and review services performed by the auditor that are customary under generally accepted auditing standards or that are customary for the purpose of rendering an opinion or review report on the financial statements. Examples of "professional services" that generate "audit fees" include: Attendance at audit committee meetings at which matters related to the audits or reviews are discussed; Consultations on audit or accounting matters that arise during or as a result of an audit or review; Preparation of a "management letter"; and Time incurred in connection with the audit of the income tax accrual. Examples of "professional services" that generate "non-audit" fees include: Work performed in connection with registration statements such as due diligence procedures or issuance of comfort letters; Due diligence procedures performed in connection with merger and acquisition procedures; Income tax services other than those directly related to the audit of the income tax accrual; Internal control advisory services outside of the scope of the audit; Risk management advisory services; Internal audit services; and Audits of employee benefit plans. What Other General Rules Apply to Calculating Fees? Each caption should include any "out-of-pocket" costs incurred in connection with providing the professional service and billed to the company. With respect to subsidiaries and investees of the company, audit fees billed pursuant to the engagement letter for the performance of the audit of the consolidated financial statements, as well as nonaudit fees billed to entities that are consolidated entities, should be included as part of the parent company's proxy disclosures.

5 What Information Must Be Disclosed Under "Audit Fees"? The aggregate fees billed for professional services rendered for (1) the audit of the company's annual financial statements for the most recent fiscal year and (2) the review of the company's financial statements included in the company's Forms 10-Q or 10-QSB for that fiscal year. This aggregate fee should include those fees billed or expected to be billed for the audit of the company's financial statements for the most recently completed fiscal year and the review of financial statements for any interim period within that year. If the company has not received the bill for such audit services prior to filing its definitive proxy statement with the SEC, then the company should ask the auditor for the amount that will be billed for those services, and include that amount in the disclosure. What Information Must Be Disclosed Under "Financial Information Systems Design and Implementation Fees"? The aggregate fees billed for services of "information technology services" rendered by the registrant's principal accountant during the most recent fiscal year. "Information technology services" includes designing or implementing a hardware or software system that aggregates source data underlying the financial statements or generates information that is significant to the audit client's financial statements taken as a whole. This aggregate fee should include amounts billed for services that were rendered during the most recent fiscal year, even if the auditor did not bill the company for those services until after year-end. What Information Must Be Disclosed Under "All Other Fees"? The aggregate fees billed for all other non-audit services rendered by the principal accountant during the most recent fiscal year, including fees for tax-related services. This aggregate fee should include amounts billed for services that were rendered during the most recent fiscal year, even if the auditor did not bill the company for those services until after year-end. In addition, fees for one-time information technology consulting projects that do not affect the financial statements should be included under the "All Other Fees" caption. Investment companies, however, must disclose fees billed for services rendered to the company, its adviser, and any entity in a control relationship with the adviser that provide services to the registrant. As long as the total of the aggregate fee is clearly stated, companies may include additional detail regarding the services rendered. DISCLOSURES RELATING TO CONSIDERATIONS BY AUDIT COMMITTEES The SEC adopted new disclosure rules in December 1999 regarding audit committees and auditor reviews of interim financial information. Those rules require companies to include audit committee reports in their proxy statements that state whether, among other things, the audit committees received the written disclosures and the letter from the independent auditors required by ISB Standard No. 1, and discussed

6 with the auditors the auditors' independence. ISB Standard No. 1 requires each auditor to disclose in writing to its client's audit committee all relationships between the auditor and the company that, in the auditor's judgment, reasonably may be thought to bear on independence and to discuss the auditor's independence with the audit committee. The new rules supplement those required disclosures with an additional disclosure, described below. The SEC stated that it believes "that our final rule, our new audit committee disclosure rules, and the new requirements of the NYSE, AMEX, NASD, and ISB should encourage auditors, audit committees, and management to conduct robust and probing discussion on all issues that might affect the auditor's independence." What Must a Company Disclose About Considerations Made By its Audit Committee? A company must disclose "whether the audit committee considered whether the principal accountant's provision of the information technology services and other non-audit services to the registrant is compatible with maintaining the principal accountant's independence." This disclosure focuses particularly on non-audit services and requires disclosure of whether the audit committee itself has focused on the issue. According to the SEC staff, a disclosure stating that "the audit committee did not consider whether the provision of financial information systems design and implementation services and other non-audit services is compatible with the principal accountant's independence" would, if true, be a sufficient disclosure under the new rule. The SEC also stated in the adopting release that it believed that "companies will be providing useful information to investors under the [new disclosure requirement]... and that investors will be aided by knowing whether the company's audit committee considered whether the provision of non-audit services by the company's principal accountant is compatible with maintaining the accountant's independence." Does a Company Have to Disclose the Conclusions Reached by the Audit Committee? No. The SEC stated that by limiting the scope of disclosure to whether or not the audit committee "considered" the issue, it saw "little possibility of private liability arising from these disclosures." The SEC staff has stated that "voluntary disclosures describing conclusions reached and factors considered are permitted." Does the New Rule Impose Any New Legal Requirements on Audit Committees? No. According to the SEC, "while the rule may serve to direct the attention of audit committees to the potential for independence issues arising from non-audit services, any action taken by audit committees will be business judgments." The SEC, however, stated that "the rule should help audit committees carry out their existing responsibilities by codifying the key legal requirements that may bear on audit committees' exercise of their business judgment." The SEC did indicate that "audit committees, as well as management, should engage in active discussions of independence-related issues with the outside auditors" and that "as with discussions over

7 the quality and acceptability of management's judgments, audit committees can be useful in considering whether assertions of independence rest on conservative or aggressive readings of the independence rules." Does a Company Have to Adopt Policies About Non-Audit Services? No. The SEC did, however, state that "audit committees may wish to consider whether to adopt formal or informal policies concerning when or whether to engage the company's auditing firm to provide non-audit services." The SEC took particular note of recommendations of the O'Malley Panel providing certain guiding factors for audit committees to consider in making business judgments about particular non-audit services stating that "the O'Malley Panel recommendations represent a thoughtful and appropriate approach to these issues by audit committees, and we encourage audit committees to consider the Panel's recommendations." According to the O'Malley Panel, one guiding principle should be whether the "service facilitates the performance of the audit, improves the client's financial reporting process, or is otherwise in the public interest." The O'Malley Panel provided other factors that companies should consider, including: Whether the service is being performed principally for the audit committee; The effects of the service, if any, on audit effectiveness or on the quality and timeliness of the entity's financial reporting process; Whether the service would be performed by specialists (e.g., technology specialists) who ordinarily also provide recurring audit support; Whether the service would be performed by audit personnel and, if so, whether it will enhance their knowledge of the entity's business and operations; Whether the role of those performing the service (e.g., a role where neutrality, impartiality and auditor skepticism are likely to be subverted) would be inconsistent with the auditor's role; Whether the audit firm's personnel would be assuming a management role or creating a mutuality of interest with management; Whether the auditors, in effect, would be auditing their own numbers; Whether the project must be started and completed very quickly; Whether the audit firm has unique expertise in the service; and The size of the fee(s) for the non-audit services.

8 Additionally, the O'Malley Panel recommends that audit committees pre-approve non-audit services that exceed a threshold determined by the committee. DISCLOSURES RELATING TO LEASED EMPLOYEES What Must a Company Disclose About Employees Leased By Its Principal Accountant? A company must disclose the percentage of hours expended by personnel the principal accountant leased or otherwise acquired from another entity, if those hours exceed fifty percent (50%) of the hours expended on the audit engagement. This disclosure requirement responds to a recent trend by some accounting firms to sell their nonaudit practices to financial services companies, such as American Express/TBS and other alternative practice structures. Often in these transactions, the partners and employees of the accounting firms become employees of the financial services firm. The accounting firm then leases assets, namely professional auditors, back from those companies to complete audit engagements. In such an arrangement, audit professionals become full- or part-time employees of the financial services company, but work on audit engagements for their former accounting firm. They receive compensation from the financial services firm and, in some situations, from the accounting firm, as well. The SEC concluded in the adopting release "that investors should be informed of arrangements whereby most of the auditors who work on an audit are employed elsewhere." * * * * * PRACTICAL CONSIDERATIONS 1. CONSIDER ADOPTING A WRITTEN FORMAL POLICY CONCERNING NON-AUDIT SERVICES PERFORMED BY YOUR AUDITING FIRM Although the SEC did not explicitly require formal or informal policies concerning these services, it did encourage audit committee to consider the O'Malley Panel's recommendations. To the extent an audit committee relies on a codified set of policies about the permissibility of particular non-audit services, the decisions of that committee would bolstered by the existence of that written policy. 2. CONSIDER REQUIRING PREAPPROVAL OF NON-AUDIT SERVICES THAT EXCEED A SPECIFIED THRESHOLD To limit the amount of non-audit services performed by your principal accountant, you might set a threshold level of non-audit services. Any non-audit services above that level would require preapproval by the audit committee. Before adopting this approach, you should consider who will be responsible for monitoring and compliance (e.g., the company or the principal accountant) and the costs associated with that monitoring and compliance effort. 3. AMEND YOUR AUDIT COMMITTEE CHARTER OR YOUR AUDIT COMMITTEE POLICIES TO INCLUDE CONSIDERATION OF THE COMPATIBILITY OF THE NON-AUDIT SERVICES PROVIDED

9 BY YOUR PRINCIPAL ACCOUNTANT WITH THAT ACCOUNTANT'S INDEPENDENCE To insure that you give appropriate consideration to this compatibility issue, you might incorporate into the audit committee's policies and procedures a specific duty or agenda item to consider this issue. Places where this duty or agenda item could be incorporated include the audit committee charter or the audit committee policy handbook. 4. ASK YOUR PRINCIPAL ACCOUNTANT TO INCLUDE IN ITS DISCLOSURE LETTER A SCHEDULE OF FEES INDICATING WHICH FEES ARE "AUDIT," "FINANCIAL INFORMATION SYSTEMS DESIGN AND IMPLEMENTATION," AND "OTHER" To assist you in classifying fees for the purpose of the proxy statement, consider asking your principal accountant to include, in its disclosure letter required under the December 1999 audit committee rules, a schedule of fees indicating which fees fall into which of the three fee categories. Although the principal accountant's allocation of these fees would not necessarily be dispositive and would not relieve the company of its obligation to make its own allocation, the schedule could assist the company in performing its own analysis. * * * * *