NYSE and NASDAQ Corporate Governance Proposals

Transcription

1 NUMBER 203 FROM THE LATHAM & WATKINS CORPORATE DEPARTMENT BULLETIN NO. 203 JULY 10, 2002 NYSE and NASDAQ Corporate Governance Proposals The NYSE and the Nasdaq have proposed modifications to their corporate governance standards to enhance the accountability and integrity of their listed companies. Introduction The crisis in investor confidence caused by the failure of Enron Corp. and similar corporate and accounting failures at other large and well-regarded corporations has brought heightened scrutiny to the role of the board of directors as an independent and informed monitor of the corporation s affairs and its management. This focus on improving board oversight has prompted both the New York Stock Exchange (the NYSE) and the Nasdaq National Market (the Nasdaq) to propose modifications to their corporate governance listing standards in order to enhance the accountability and integrity of their listed companies. In step with these proposed modifications, The Business Roundtable, an association of chief executive officers of the largest companies in the United States, has issued its Principles of Corporate Governance (2002), a set of general principles intended to assist corporations in implementing best practices in corporate governance in the wake of Enron. In general, both the NYSE s and the Nasdaq s proposed modifications are intended to strengthen the independence of boards of directors in order to improve their oversight and decision-making functions. Although directors can exercise power only by acting collectively either as a board or a board committee judgment is exercised on an individual basis. Hence, these proposals focus on the independence of individual directors, as well as the board and committees of the board. Both the NYSE and the Nasdaq are soliciting public comment on their proposals, and each organization is expected to adopt some version of these proposals by summer s end. The changes will be reflected in new initial and continued listing requirements that will be subject to final approval by the Securities and Exchange Commission (the SEC). Given the likelihood of changes in corporate governance listing requirements, companies should undertake a review of their corporate governance policies and practices. A proactive approach now will enable companies to comply with any future changes in corporate governance listing standards efficiently and with minimal disruption and, in this current environment of investor distrust, could even bolster shareholder confidence and improve investor relations. NYSE Corporate Governance Reforms On June 6, 2002, the NYSE issued the report of its Corporate Accountability and Listing Standards Committee (the NYSE Report), which contains recommendations for changes to the NYSE s corporate governance listing standards. After a two-month comment period, the NYSE s board of directors is expected to take action on the NYSE Report at its August 1, 2002 meeting.

2 The NYSE Report s principal recommendations are as follows: Require listed companies to have a majority of independent directors: Companies would have two years in which to have a majority of independent directors as newly defined in the NYSE Report. Note that this may mean that a majority shareholder of an NYSE company would not, as a practical matter, be able to appoint a majority of the directors who are affiliated with that shareholder. Tighten the definition of independent director: No director would qualify as an independent director unless the board affirmatively determined that the director has no material relationship with the company, based on the facts and circumstances of the individual. The basis for the determination would be disclosed in the annual proxy statement. By definition, however, a director would not be independent unless at least five years have passed since the director (or any immediate family member) was an employee of the company, of its independent auditor, or of any other company whose compensation committee includes an officer of the company. In addition, a controlling shareholder would not be considered independent, and thus would not be permitted to control the board. Increase the role and authority of independent directors: Non-management directors would meet in regular executive sessions without management; and Independent directors would designate and publicly disclose the name of the director who would preside at these executive sessions. Increase the role and authority of board committees: Nominating/corporate governance committee members would all be independent; Compensation committee members would all be independent; Audit committee members would all be independent in addition, these directors could not receive any other compensation from the company other than their director s fees (which would include fees for serving on the audit committee), the chair would be required to have accounting or financial management experience, and any audit committee member who holds more than 20 percent of the company s stock (directly or indirectly) could not chair (or be a voting member of) the audit committee; and Audit committee would have sole responsibility for hiring and firing the company s independent auditors and for approving any significant non-audit work by the auditors. Adopt and disclose code of business conduct and ethics: The NYSE Report would require companies to adopt and publish a code of business conduct and ethics and disclose any waivers of this code for directors and executives. This code would address, among other things, conflicts of interest, corporate opportunity, confidentiality, fair dealing, protection and use of company assets, compliance with laws and reporting illegal or unethical behavior. Adopt and disclose corporate governance principles: Given the importance of corporate governance, the NYSE Report would require companies to adopt and disclose corporate governance principles, which would be required to be posted on companies websites. These principles would address, among other things, director qualification standards, director responsibilities, director compensation, management succession and annual performance evaluation of the board. Require the CEO to certify no violations of NYSE listing standards: To focus senior management on NYSE requirements, the NYSE Report would require the CEO to certify, among other things, that he or she has no reasonable cause to believe that the information provided to investors is not accurate and complete in all material respects, and that he or she is not aware of any company violations of NYSE listing standards. This is similar to the SEC s recent proposed rule to require CEO certification of annual and quarterly reports. 1 For a comparison of the NYSE Report with the current NYSE rules, please see the following chart. BULLETIN NO JULY 10, 2002

3 NYSE Report Independent directors must comprise a majority of board. Non-management directors must meet without management in regular executive sessions. Companies must have an audit, a nominating, and a compensation committee, each comprised solely of independent directors. All audit committee members must be financially literate and chair of audit committee must have accounting or financial management experience. Audit committee must have sole responsibility for hiring and firing the company s auditors, and for approving any significant non-audit work by the auditors. For director to be deemed independent, board must affirmatively determine director has no material relationship with the company (either directly or as a partner, shareholder or officer of an organization that has a relationship with the company). By definition, independence requires a five-year cooling-off period for former employees of the company or of its independent auditor; for former employees of any other company whose compensation committee includes an officer of the company; and for immediate family members of the above. Director s fees and reasonable stock option awards are the sole compensation audit committee members can receive from company; any audit committee member associated with a major shareholder (owns 20 percent or more of the equity) may not chair or vote in audit committee proceedings. Companies must adopt a code of business conduct and ethics and must promptly disclose any waivers for directors or executives. Current Rule(s) Company must have an audit committee composed of at least three independent directors. Companies must have an audit committee comprised solely of independent directors. No NYSE requirement for establishment or composition of nominating or compensation committees, although SEC rules currently mandate a compensation committee with disclosure of overlapping board membership or interlocks. All committee members must be financially literate and at least one must have accounting or financial management expertise. Audit committee charter must provide that selection and firing of the independent auditor is subject to the ultimate authority of the audit committee and the board. Existing definition precludes any relationship with the company that may interfere with the exercise of director s independence from management and the company. Cooling-off period is three years; does not specifically apply to former employees of the auditor or any other company whose compensation committee includes an officer of the company. Board can make an exception for one former officer, provided the reason is explained in the next proxy statement. BULLETIN NO JULY 10, 2002

4 NYSE Report Shareholders must approve all equity-based compensation plans. Brokers may vote customer shares on proposals for such plans only pursuant to customer instructions. Current Rule(s) Shareholder approval is required for equity-compensation plans in which officers or directors may participate, subject to several exceptions including an exception for broadly-based plans and an exception for new hire grants. Broker can vote shares except when given instructions from the customer or when action is contested. Companies must adopt and disclose their corporate governance principles. Foreign private issuers must disclose any significant ways in which their corporate governance practices differ from NYSE rules. Each company s CEO must certify annually that the company has established and complied with procedures for verifying the accuracy and completeness of information provided to investors and that he or she has no reasonable cause to believe that the information is not accurate and complete. The CEO must further certify that he or she has reviewed with the board those procedures and the company s compliance with them. CEOs must certify annually that they are not aware of any company violations of NYSE rules. Upon finding a violation of an NYSE rule, the NYSE may issue a public reprimand letter and ultimately suspend or delist a company. The NYSE urges every company to establish an orientation program for new directors. In conjunction with leading corporate governance authorities, the NYSE will develop a Directors Institute. It is not clear if attendance will be mandatory for all NYSE company directors, or if continuing education requirements will be imposed. No current NYSE requirements, although CEOs and CFOs must sign annual reports on Form 10-K, quarterly reports on Form 10-Q, and 33 Act Registration Statements. No current provision for a public reprimand. No such recommendation has been made previously. NYSE has generally supported educational initiatives, but this will be the first formalized program designed for directors. BULLETIN NO JULY 10, 2002

5 Nasdaq Corporate Governance Reforms The Nasdaq s corporate governance reforms are less detailed than the NYSE s, but are similarly focused on improving board oversight by requiring greater degrees of independence in the board. On May 24, 2002, the Nasdaq announced that its board of directors approved several modifications to its corporate governance standards and that its Listing and Hearing Review Council will continue to review other corporate governance issues throughout the summer. Preclude former auditors from serving on audit committees during a cooling-off period; Expand the scope of the audit committee s authority to approve or dismiss outside auditors without full board approval; and Increase the use of corporate codes of conduct and support compliance methods. Business Roundtable Principles of Corporate Governance The principal rule changes approved on May 24, 2002, On May 14, 2002, The Business Roundtable issued its are as follows: Principles of Corporate Governance (2002) in order to assist corporations in implementing best practices of Extend definition of independent director: The corporate governance. These best practices are, in definition of independent director would be many respects, similar to the proposed changes extended to prohibit any payments, other than in the NYSE Report and include the following: director s fees but including political contributions, to a director or a family member of the director in Ensure that a substantial majority of the board is excess of $60,000. It is not clear if this figure would comprised of independent directors; include the fair value of options, restricted stock Require that only independent directors may sit on grants or other stock-based compensation, or the each of the audit, governance and compensation fair value of benefits provided to directors such as committees; retirement or life insurance benefits. In addition, a Require the audit committee to recommend the director would not be independent if the company selection and tenure of the outside auditor and makes payments to a charity in which the director consider what policies should be adopted by the is an executive officer and such payments exceed company with respect to changing the outside the greater of $200,000 or five percent of either auditor, rotating the audit engagement team the company s or the charity s gross revenues. personnel or limiting the hiring of such personnel; Approve all related-party transactions: A company s Create and publish corporate governance principles audit committee or comparable body would be so that everyone from employees to potential required to approve all related-party transactions. investors can understand the rules under which It is not clear if this would exclude non-material the company is operating; transactions between a parent and a partiallyowned subsidiary. Require stockholder approval of stock options and restricted stock plans in which directors or executives Require shareholder approval of option plans: participate; Shareholder approval would be required for all stock Provide employees with a way to alert management option plans that include executives or directors. and the board to potential misconduct without The Nasdaq Listing and Hearing Review Council is fear of retribution; considering the following proposals: Ensure prompt disclosure of significant developments; and Require a majority of independent directors on corporate boards (similar to the NYSE proposal); Establish a management compensation structure Require compensation committees to be that directly links the interests of management to composed solely of independent directors; the long-term interests of stockholders, which includes a mix of long- and short-term incentives. 5 BULLETIN NO. 203 JULY 10, 2002

6 Conclusion This is a time of dynamic change in the regulation of our public financial markets and companies access to those markets. Given the current public and political attitudes toward corporate America, we expect that many of the proposed modifications described in this Client Alert will, in one form or another, eventually be adopted. Therefore, we urge our clients and friends to give careful consideration to their corporate governance, with the goal of improving or supplementing their practices or policies in light of the NYSE and the Nasdaq proposals and The Business Roundtable s principles, keeping in mind The Business Roundtable s acknowledgement that no one structure is appropriate for all corporations. Among other things: Companies should examine all director relationships, including those that do not require disclosure but could cause regulators to question directors independence; Companies should review their board committee structures and charters or, if necessary, prepare new charters for board review and approval once the proposed listing standards are adopted; the SEC s proposed rule that management disclose whether or not they have reviewed the new Application of Critical Accounting Policies section in the Management s Discussion and Analysis that appears in quarterly and annual reports and 33 Act Registration Statements; 2 Companies should review all board and committee meeting schedules in particular, the audit committee s to ensure that they enable directors to thoroughly address their board and committee agenda items; and Counsel should consider beginning to prepare a set of principles that will, at some point in the near future, need to be adopted by the board and made available to all management employees and disclosed to the public. Finally, if companies disagree with any of the proposals, they should submit comments to the NYSE or the Nasdaq promptly. Endnotes 1 Proposed Rule: Certification of Disclosure in Companies Quarterly and Annual Reports, Release No , 67 FR 42,014 (June 25, 2002) (available at 2 Proposed Rule: Disclosure in Management s Discussion and Analysis Audit committees in particular need to review their charter and procedures not only because of the importance of their special role but also because of Client Alert is published by Latham & Watkins as a news reporting service to clients and other friends. The information contained in this publication should not be construed as legal advice. Should further analysis or explanation of the subject matter be required, please contact the attorneys listed to the right or the attorney whom you normally consult Latham & Watkins. All Rights Reserved. BOSTON BRUSSELS CHICAGO FRANKFURT HAMBURG HONG KONG LONDON LOS ANGELES MILAN MOSCOW NEW JERSEY NEW YORK NORTHERN VIRGINIA ORANGE COUNTY PARIS SAN DIEGO SAN FRANCISCO SILICON VALLEY SINGAPORE TOKYO WASHINGTON, D.C. BULLETIN NO JULY 10, 2002 about the Application of Critical Accounting Policies, Release Nos , , 67 Fed. Reg. 35,620 (May 20, 2002)(available at If you have any questions about this Client Alert, please contact Raymond Y. Lin or Jeffrey L. Rothschild in our New York office, William P. O Neill, John J. Huber or Thomas J. Kim in our Washington, D.C. office, or any of the following attorneys. CHICAGO Mark D. Gerstein Christopher D. Lueking (312) LOS ANGELES Thomas W. Dobson Thomas C. Sadler (213) NEW YORK Raymond Y. Lin Jeffrey L. Rothschild (212) ORANGE COUNTY Patrick T. Seaver (714) SAN DIEGO Scott N. Wolfe (619) SAN FRANCISCO Tracy K. Edmonson (415) SILICON VALLEY Robert A. Koenig (650) WASHINGTON, D.C. William P. O Neill John J. Huber Thomas J. Kim (202)