January 16, 2003
Jonathan G. Katz, Secretary
Re: Proposed Rules Relating to Audit Committee Independence
Dear Mr. Katz,
We are pleased to respond to Release No. 34-47137 (the "Proposing Release"), in which the Securities and Exchange Commission (the "Commission") solicited comments on its proposed rules implementing the provisions of the Sarbanes-Oxley Act of 2002 (the "Act") relating to audit committee independence.
As a general matter we support the Proposing Release's definition of the audit committee's role and what constitutes "independence" for audit committee purposes. However, we believe that the payment of an unconditional pension or other form of deferred compensation, the amount of which is not subject to discretion, should not be considered a "compensatory fee" for purposes of determining audit committee independence.
In its August 2002 proposed amendments to its listing standards, the New York Stock Exchange (the "NYSE") recognized non-contingent deferred compensation and pension payments as exceptions to its general rule against non-board-related compensation being paid to audit committee members. We believe the NYSE's conclusion is the correct one. Assuming a director is otherwise independent under applicable standards, we do not believe that his or her independence is in any way impaired by receipt of an unconditional payment of an amount that is calculated by reference to variables that cannot be manipulated. The certainty of the receipt and the formulaic determination of the amount of the payment prevent the board member from being placed in a compromising position.
We also believe that failure to recognize the NYSE's proposed exception will have the inadvertent effect of excluding from audit committee service the very board members who are best positioned to fulfill the audit committee's role. As a general rule recipients of deferred compensation payments will be retired executives of the issuer. We believe such experience will generally enable these board members to more readily identify areas of concern to the issuer and to better understand the industry-specific issues affecting an issuer. Assuming sufficient time has passed since the end of the board member's service as an executive to the issuer--for example, the NYSE proposes and we support a five-year "cooling off" period--we do not believe that receipt of deferred compensation should impair the independence of an otherwise independent director.
We would ask that the Commission's final rules permit the NYSE exception of non-discretionary pension or other deferred compensation payments from the types of non-board-related payments that are prohibited to be made to audit committee members.
Finally, in response to your question about the "look back" periods, we believe the Commission has correctly focused on disqualifying directors that currently receive payments form the issuer. We see no point in disqualifying an independent director who may have received fees in prior years, and who is no longer subject to the conflicts that such payments have posed in the past.
Thank you for consideration of our comments.