Board Director and Audit Committee Member Independence

Audit Committee Member independence as it relates to SOX section 301 definitions and SEC Rule10A-3 (specifically the definitions of “affiliate” and “affiliated person”) proves to be an area clouded by many shades of gray. In short, a clear and explicit definition of an “affiliated person” or “affiliate” is not defined. Rather, what is provided is a safe harbor definition suggesting that an individual is not an “affiliated person” if that person:

• is not an executive officer and,
• does not own more than 10% of the company stock.

Although this specific definition applies to ownership of securities, determining if a Director is an “affiliated person” appears to require more than that initial look.

What the rules are as of now.
Under SEC Rule 10A-3, all issuers must be in compliance with SOX Section 301 in order to be listed on any securities exchange. Specifically, they require each member of the Audit Committee of the issuer must be independent. The requirements establish two criteria and allow for each exchange to make more strict rules of their own:

• Audit committee members are barred from accepting any consulting, advisory or compensatory fee from the issuer or any subsidiary thereof, other than in the member’s capacity as a member of the board and any board committee.
• An Audit Committee Member of an issuer that is not an investment company must not be an affiliated person (see definition of “affiliate” below) of the issuer or any subsidiary apart from the member’s capacity as a member of the board or any board committee.

To answer the question about an “affiliated person”, the definition of an affiliated person by the SEC is “a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, [the issuer]”. The SEC defines control as “the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through ownership of voting securities, by contract or otherwise”. Finally, as part of the definitions by the SEC, they have provided a baseline determination for what may or may not be an affiliate by providing a safe harbor under which a person who is not an executive officer and is not a greater than 10% stockholder is not deemed to control the issuer, therefore not an “affiliated person”.

Based on many discussions and information, other than the safe harbor definition, clear or explicit requirements for who is defined as an “affiliate” are not provided. Rather, the determination of whether a person falls within the category of an “affiliate” requires a factual determination based on a consideration of all relevant facts and circumstances on a case by case basis by the Board. These facts and circumstances would look deeper into the relationship to determine if control or influence exists or whether interference with judgment may occur.

Given the impossibility of defining all the relationships with a company that may arise for Directors and Director candidates, we believe it is advisable that Boards retain discretion to decide independence on a case by case basis rather than use rigid standards.

However, if a company is looking to define or add more explicit language for the definition of an affiliated person, you can look beyond the SEC rules and Sarbanes Oxley to rules established by the national exchanges and other professional associations (e.g. NYSE, NASDAQ and NACD) where more strict independence requirements. These requirements although not explicitly defining “affiliate” look deeper into the relationships of the Board Directors and Audit Committee Members, including:

• NYSE – “No material relationship.” Under the NYSE listings, no director qualifies as independent unless the board of directors affirmatively determines that the director has “no material relationship” with the listed company, either directly or as a partner, shareholder or officer of an organization that has a relationship with the company.
• NASDAQ – “No interference with independent judgment.” The rules provide that an independent director is a person other than an officer or employee of the company or its subsidiaries or any other individual having a relationship that, in the opinion of the company’s board of directors, would interfere with the exercise of independent judgment in carrying out their responsibilities of a director.
• NACD – “The strictest definition of the term is a director whose only connection to the company is the receipt of director fees.”

If an organization is looking to define independence in the strictest sense, then the NACD definition would fit best; however, based on our experience and knowledge, most Boards follow listing standards of the national exchange for which they belong. In addition to the exchange definitions, they also allow their Boards the discretion to make judgment on member independence on a case by case basis.

---

This post was contributed by Sargon Youmara, a Partner with Vonya Global. If you would like to contact or connect with Sargon directly you can find his profile on LinkedIn: http://www.linkedin.com/in/syoumara.