VIA ELECTRONIC MAIL
Jonathan G. Katz
Dear Mr. Katz:
On January 8, 2003 the Securities and Exchange Commission ("SEC") issued Proposed Rules under Section 301 of the Sarbanes-Oxley Act of 2002 ("SOA") (the "Proposed Rules")* relating to listed company audit committees and the criteria for determining whether a director is "independent" for purposes of audit committee service. We are submitting this letter in response to the request for comments regarding the Proposed Rules. As set out more fully herein, the Proposed Rules would be inconsistent with certain aspects of a dual parent structure, such as Reed Elsevier's, even though this type of structure does not implicate any of the concerns addressed by Section 301 or the Proposed Rules. Because the SEC has stated that it will not entertain exemptions from the final rules on a case-by-case basis, we request that the SEC incorporate in the final rules adopted under Section 301 an appropriate exemption for dual parent company structures or confirm that Reed Elsevier's corporate structure would not cause members of its board of directors to fail to meet the independence standards promulgated by the SEC.
Reed Elsevier came into existence on January 1, 1993 when Reed Elsevier PLC, a UK registered company, and Reed Elsevier NV, a Dutch registered company, contributed their businesses to two jointly owned companies, Reed Elsevier Group plc, a U.K. registered company, and Elsevier Reed Finance BV, a Dutch registered company. Reed Elsevier PLC and Reed Elsevier NV each hold a 50% interest in Reed Elsevier Group plc, which conducts or owns directly or indirectly through subsidiaries all of the commercial activities of Reed Elsevier. Reed Elsevier PLC holds a 39% interest and Reed Elsevier NV holds a 61% interest in Elsevier Reed Finance BV, which conducts certain treasury activities for the combined businesses of Reed Elsevier. Reed Elsevier PLC additionally holds a 5.8% indirect economic interest in Reed Elsevier NV. A diagram of this structure is attached as Exhibit A.
The Reed Elsevier group of companies constitutes a single economic enterprise. Reed Elsevier Group plc and Elsevier Reed Finance BV conduct their businesses solely for the benefit of their joint owners, Reed Elsevier PLC and Reed Elsevier NV, and the parent companies have no other significant assets other than their shareholdings in Reed Elsevier Group plc and Elsevier Reed Finance BV.
The Boards of Directors of Reed Elsevier PLC, Reed Elsevier NV and Reed Elsevier Group plc are harmonized, each having substantially identical members. All of the members of the Supervisory Board of Elsevier Reed Finance BV are also members of the Board of one or both of Reed Elsevier PLC and Reed Elsevier NV. The Audit Committees of Reed Elsevier PLC and Reed Elsevier NV are comprised of the same five non-executive directors. We have attached a chart showing our current board structure as Exhibit B.
The shares of both Reed Elsevier PLC and Reed Elsevier NV are listed and traded in ADR form on the New York Stock Exchange. Consistent with their combined operational and governance structures, and with the concurrence of the staff of the SEC, Reed Elsevier PLC and Reed Elsevier NV make joint filings in satisfaction of their respective reporting obligations under the Securities Exchange Act of 1934. Reed Elsevier reports combined financial results and the financial statements and other information regarding their activities are presented on a combined basis in their Annual Reports on Form 20-F as well as in the information provided to their shareholders pursuant to Dutch and UK law and stock exchange requirements. This structure complies with applicable requirements of English and Dutch law and has been accepted by the respective stock exchanges in the United Kingdom and The Netherlands.
Pursuant to the Proposed Rules, a member of an issuer's audit committee may not be an "affiliated person" of the issuer or any subsidiary of the issuer apart from in his or her capacity as a member of the board or any board committee of the issuer. A director of an affiliated person of the issuer would also be deemed to be an affiliate of the issuer and therefore barred from audit committee service. An affiliate of the issuer is defined as "any person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with" the issuer.
The Proposed Rules contain an exemption from the independence requirements for an audit committee member that sits on the board of directors of both a parent and its direct or indirect consolidated majority-owned subsidiaries (defined to include more than 50 percent owned subsidiaries) if the committee member otherwise meets the independence requirements for both the parent and the subsidiary.
As applied to the dual parent structure of Reed Elsevier, members of the Audit Committees of Reed Elsevier PLC and Reed Elsevier NV would not be considered independent by virtue of (i) the relationship of the parent companies to each other and (ii) the relationship of each parent company to Reed Elsevier Group plc and Elsevier Reed Finance BV. Reed Elsevier PLC and Reed Elsevier NV could be deemed affiliates of each other because of their overlapping boards - they could be regarded as under common control, since directors are regarded as control persons for purposes of the U.S. securities laws. Reed Elsevier PLC and Reed Elsevier NV are both affiliates of Reed Elsevier Group plc and Elsevier Reed Finance BV by virtue of (i) their equity ownership positions and (ii) their overlapping boards.
We believe this result is not required by or consistent with the intent behind Section 301. Because all of the activities of Reed Elsevier PLC and Reed Elsevier NV are conducted through their jointly held businesses, it cannot be reasonably concluded that they "control" each other. In addition, because the activities of Reed Elsevier are conducted as a single economic enterprise, the relationship among the boards does not present the conflicts of interest addressed by the Proposed Rules. Moreover, the non-executive directors of Reed Elsevier PLC and the supervisory board members of Reed Elsevier NV are, or will be, independent of those entities apart from their service on the boards of those companies or on companies controlled by these companies. Similarly, because Reed Elsevier Group plc and Elsevier Reed Finance BV are wholly-owned by Reed Elsevier PLC and Reed Elsevier NV, and are the entities through which all of Reed Elsevier's businesses are conducted, they are controlled in a manner identical to the nature of control by a single parent company over a majority-owned subsidiary.
The SEC has expressed the desire to avoid unintended consequences for foreign private issuers especially where, as here, the features of the audit committee are appropriately tailored to their home country corporate governance structures and legal requirements. However, because the SEC has stated that it will not entertain exemptions from the final rules on a case-by-case basis, we request that the SEC incorporate in the final rules adopted under Section 301 an appropriate exemption for dual parent company structures or confirm that Reed Elsevier's corporate structure would not cause members of its board of directors to fail to meet the independence standards promulgated by the SEC.
Given the importance of this matter to Reed Elsevier, we are available to meet with members of the staff to discuss these comments at your earliest convenience. Please contact the undersigned (tel. 011-44-207-227-5681), or D. Rhett Brandon (firstname.lastname@example.org) or Daniel Kamensky (email@example.com) of Simpson Thacher & Bartlett (tel. 212-455-2000) to schedule an appropriate time for a discussion or with any questions you may have.
The following is a simplified diagram of Reed Elsevier's structure:
The directors of each of Reed Elsevier PLC, Reed Elsevier NV, Reed Elsevier Group plc and Elsevier Reed Finance BV are: