,RECENT GOVERNANCE DEVELOPMENTS IN THE UNITED STATES,Robert D. Strahota Assistant Director, Office of International Affairs* U.S. Securities and Exchange Commission Prepared for Fourth South Eastern Europe Corporate Governance Roundtable March 7, 2003 *The U.S. Securities and Exchange Commission, as a matter of policy, disclaims responsibility for any publication or presentation by its employees. The views expressed in this presentation are those of Mr. Strahota and do not necessarily reflect the views of the Commission, individual Commissioners, or Mr. Strahotas colleagues on the staff of the Commission.,SARBANES-OXLEY OVERVIEW,On July 30, 2002, President Bush signed the Sarbanes-Oxley Act of 2002 (SOX) into law SOX is the most important securities legislation affecting public companies and accounting oversight since the Securities and Exchange Commission (SEC) was formed in 1934 While the new law was prompted by problems encountered in the U.S., these problems are global in dimension SOX provisions generally make no distinction between U.S. and foreign issuers who seek to access U.S. capital markets The terms “issuer” and “public company” as used in many places throughout SOX mean an issuer the securities of which are registered under the Securities Exchange Act of 1934 (Exchange Act), which is required to file reports under the Exchange Act, or that has filed a registration statement for a public offering of its securities under the Securities Act of 1933 that has not become effective and that has not been withdrawn SECs mandate is to implement SOX fully for all issuers, foreign and domestic, but it is prepared to consider how it may fulfill this mandate through rulemaking and interpretive authority in ways that accommodate home country requirements and regulatory approaches to foreign issuers and accountants,SOX AUDIT COMMITTEE REQUIREMENTS,Before Enron and subsequent financial reporting abuses arose, the NYSE, AMEX and Nasdaq markets already had strengthened their audit committee requirements by requiring at the minimum a three-person committee comprised entirely of independent directors with financial sophistication and at least one committee member required to have accounting/auditing expertise In July 2002, the NYSE approved recommendations of its Corporate Accountability and Listing Standards Committee that would require domestic issuers to have a majority of independent directors, strengthen the definition of independent director, and require that audit committees of NYSE listed companies have the sole authority to hire and fire the independent auditors Before SOX, the markets audit committee, independent director and other corporate governance requirements generally have not applied to foreign issuers with listed securities,SOX AUDIT COMMITTEE REQUIREMENTS,SOX defines “audit committee” as: “a committee (or equivalent body) established by and amongst the board of directors of an issuer for purposes of overseeing the accounting and financial reporting processes of the issuer and audits of the financial statements of the issuer; and if no such committee exists with respect to an issuer, the entire board of directors of the issuer” For certain purposes, however, SOX imposes additional requirements regarding the composition and responsibilities of an “audit committee”,SOX AUDIT COMMITTEE REQUIREMENTS,SOX adds Section 10A(m) to the Exchange Act and requires that by April 26, 2003 the SEC, by rule, must direct the national securities exchanges and NASD to prohibit the listing of securities of any company, including foreign companies, that do not meet the following requirements: Each member of the companys audit committee must be a director and must otherwise be independent; : The audit committee must be responsible for hiring, retention, compensation and oversight of the independent auditors The audit committee must be responsible for pre-approval or all audit and non-audit services The audit committee must receive reports from the independent auditors regarding critical accounting polices and practices, discussions that have taken place with management regarding alternative treatments of financial information under GAAP, and any accounting disagreements and other material written communications between the auditors and management The audit committee must establish procedures to receive and address complaints regarding accounting, internal control and audit issues, and to provide company employees an opportunity to make confidential, anonymous submissions regarding accounting and auditing matters The audit committee must have authority to engage independent counsel and other advisers; the company must provide adequate funding for the committee,AUDIT COMMITTEE REQUIREMENTS,Section 10A(m)(1)(b) requires that SEC rules shall provide for an issuer to have an opportunity to cure any defects that would be a basis for the U.S. listing prohibition “Independence” means that an audit committee member is not