Mr. Jonathan G. Katz
File No. S7-40-02
Dear Mr. Katz:
We represent SAP Aktiengesellschaft ("SAP AG"), a leading German software company, which is, amongst others, listed at the Frankfurt Stock exchange, Germany, and at the NYSE.
First of all, we would like to thank you for the opportunity to comment on the rules as proposed by the SEC on October 22nd, 2002 (File No. S7-40-02; hereafter the "Proposed Rules") Being a foreign private issuer, which falls under the rules of the Act, we have been closely following the rulemaking process for the Act, which we regard as an excellent tool to bring back investor confidence in the much-beaten stock market.
SAP AG, as well as many other European foreign private issuers, therefore strongly supports the SEC's considerable efforts to help the Act to a rapid and efficient enactment, while at the same time we are striving to align the legal requirements for our company arising out of the Act with those of the European Union and Germany, which SAP AG is obviously additionally subject to. We are aware of the fact that during the last weeks, reactions by European foreign private issuers regarding certain possible conflicts between the various law systems as a consequence of the issuance of the Act have already reached the SEC, some of them we have supported. Therefore, we would like to concentrate on the more practical issues for foreign private issuers following out of the rules as they were recently proposed by the SEC, specifically based on Sect. 407 of the Act (numbers of headings refer to the Proposed Rules numbering):
1. Proposed Disclosure Requirements
a) Names and Numbers
On page 4 of the Proposed Rules (see II. A 1), it is proposed that the number and names of persons that the board of directors has determined to be the financial experts serving on the company's audit committee be disclosed. According to the SEC, the financial expert's "enhanced level of financial sophistication or expertise can serve as a resource for the audit committee as a whole", and "the mere designation of the financial expert should not impose a higher degree of individual responsibility or obligation on the member of the audit committee" (see page 5).
We fear that, if any irregularity were to become known about the financial statements of a company, the public could be very quick to blame the financial expert alongside with the management for the irregularity, although it is the role of the audit committee or even the board of directors, not the financial expert's solely, to oversee the audit process. Therefore, we are convinced that the public exposure created by the disclosure of the financial expert's name in the company's annual report would certainly discourage accounting experts form serving as the audit committee's financial expert. The described discouraging effect would decrease the company's chance to attract valuable expertise to its board. Thus the disadvantages of the proposed disclosure in our eyes exceed its benefits.
Therefore, we strongly recommend against any additional disclosure of information, which goes beyond the disclosure requirements as proposed by Sect. 407 (a) of the Act itself.
We are generally concerned about the "independence"-issue as set forth in Sect. 301 of the Act and are awaiting the rulings of the SEC that will supposedly direct the national securities exchanges and national securities associations to require a company to have a completely independent audit committee as a condition to listing (see page 5 of the Proposed Rules.) On the same page, the SEC proposes to additionally require issuers to disclose whether the financial expert is independent. While we see the rationale behind the rule, we consider the independence requirement as a considerable hurdle for the company to attract knowledgeable experts to its audit committee. If rigorously applied it would even prevent to have persons on the audit committee who are only remotely economically connected to the company, say, as a board member of a company, which sells, in smallest amounts and at arm's length, everyday goods (e.g. office equipment, cars, cell phones) to the issuer. A de minimis number, effectively limiting the total services provided by an audit committee member to the issuer to an immaterial amount, could avoid such a restriction, which in our opinion is disproportionate.
Also, in our opinion the independence issue has to be seen from a different perspective if viewed pertaining to foreign private issuers, since many European countries have different corporate law settings and therefore, a differing corporate governance model. The SEC believes that the disclosure whether the financial expert is independent may be important to investors, since they might "be interested to know, for example, if the only financial expert on the audit committee is the company `s chief financial officer or another individual who is responsible for, or participates in, the preparation of the company's financial statements" (see page 5 of the Proposed Rules.). However, the German Stock Corporation Act (Sect.105 para1) does not allow a member of the supervisory board (as the entity, which controls the management board) to be, at the same time, a member of the management board or even of the upper management of the issuer. Therefore effectively a mix-up of the purposes of both boards is prevented and it is impossible for the CFO to serve on the audit committee as this committee is only open to members of the supervisory board.
From our perspective, we sincerely hope the SEC will acknowledge such differing perspectives and will re-consider a de minimis limit for the acceptance of fees by audit committee members and for the disclosure of whether a financial expert is independent.
2. Proposed Definition of "Financial Expert"
We understand that the SEC proposes the term `financial expert' to mean "a person who has, through education and experience as a public accountant or auditor, or a principal financial officer, controller, or principal accounting officer, of a company that, at the time the person held such position, was required to file reports pursuant to section 13(a) or 15(d) of the Exchange Act" (see proposed §229.309). SAP AG hereby asks the SEC to reconsider this rule, at least as regards to foreign private issuers. There are only a few German and European companies listed in the United States and therewith filing reports under section 13(a) or 15(d) of the Exchange Act. One can assume how very few public accountants, auditors, CFOs, controllers or principal accounting officers of such companies there are: These few persons would at the same time have to fulfil the many additional requirements newly listed by the SEC (see proposed §229.309) and, finally, they would have to be available for the position of a financial expert. Additionally, we do not think that the mere listing if a company adds to the quality of its financial reporting and therefore, to a potential financial expert's experience. In Germany, for instance, it is primarily the mere size of the company as expressed in employee numbers, total assets and revenue, not the legal form nor the listing, that is decisive for the legally required extent of its financial reporting. From this background, we also sincerely hope that the SEC will reconsider this issue.
We hope that our comments could add to the variety of feedback to the commission that the SEC itself deems valuable for its rulemaking process. In the case you wish to discuss abovementioned issues further, or if you have any other concerns or questions, please do not hesitate to contact Dr. Christoph Hütten (ext. 63475) or Michael Junge (ext. 44286) at any time.