884 Navesink River Road
Locust, NJ 07760
Securities and Exchange Commission
July 1, 2003
I currently serve on the Board of a NASDAQ listed company. To our Board's credit, we have been aggressive in taking the intent and spirit of Sarbane-Oxley seriously. In so doing, we (perhaps prematurely) adopted a proposed NASD rule (Release No. 34-47516; File No. SR-NASD-2002-141), regarding the nominating and re-nominating process of directors. It seems however, that that by adopting this rule there were unintended consequences. The SEC is currently accepting comments relative to this proposed rule.
The rule seems to have gone to an extreme to give control to "independent members" but if these members do not abide by some guidelines themselves, they can place themselves in position of running the company, to the exclusion of the remainder of the board and management. The major concern is that the independents may choose friends, acquaintances or simply incompetents, who meet the legal definition of "independent", but individuals who are not independent in thought from each other.
Generally, many Independents bring with them a specific skill set. However, they often lack a detailed knowledge of the businesses they serve and therefore full Board involvement should be required wherever possible. Currently, most nominating procedures require that the Nominating Committee make its recommendations to the full board. Given that the whole Board is duly elected, I do not believe that the final selection of Nominees should rest solely with any committee, as is currently proposed.
Finally, under the proposed rule "independents" will control many committees, while the full board would have to appoint committee members drawn possibly from board members from which they had no choosing or perhaps even any input.
I have proposed to our Board that the following guidelines be included in the nominating procedures and I request that the SEC consider these recommendations as well.
1. The nominating process should have the input of the whole board.
Each and every Board Member, after receipt of a resume, should have the opportunity to meet and question, if even by phone call or conference call, each nominee candidate put forth by the Nominating Committee. In turn, it would be the obligation of each Board member to provide detailed comments, especially his concerns, to the Nominating Committee. Given that each and every Board member was duly elected by all the shareholders, their input should not be ignored.
2. The Nominating Committee should consider more nominee candidates than are being sought.
Each Board Member should have the opportunity to see the résumé of each nominee candidate that satisfies the overall requirements of the Nominating Committee. It is unreasonable to assume that if only two seats are being sought, that only two willing and qualified people could be identified. One would think that the Nominating Committee could present four or five qualified candidates to the full board for their consideration and input.
3. The nominating committee should explain on which committee each nominee candidate would be qualified to serve.
The new Board prospects, especially independents, will be filling the vital roles of serving on various committees, so it is important to understand, in advance, how the Nominating Committee perceives the full role of each candidate. It is unfair to require that the full Board appoint members to any committee when those voting do not have a full understanding of the qualifications of each proposed committee member.
4. The nominating committee should qualify and identify whether or not the prospect is in fact independent.
The Nominating Committee should determine whether or not a candidate would be legally defined as "independent" which definition might require assistance from counsel. It is also important that each independent member is totally independent of thought and therefore these members must also be independent from each other. The Nominating Committee should disclose whether or not any proposed candidate is acquainted in any way whatsoever with any member of management or any board member, including members of the Nominating Committee, itself. They should also fully disclose if there was any past business affiliation, directly or indirectly with the Company.
I believe the essence of the preceding should be considered by NASD and the SEC for inclusion into its rules governing the Board Nominating process.
Very truly yours,