Audit Committees – NYSE American

by Laura Anthony, Esq. on January 29, 2021 in Uncategorized

Like Nasdaq, I’ve written several times about the NYSE American listing requirements including the general listing requirements (see HERE) and annual compliance guidelines (see HERE).  As an aside, although the Nasdaq recently enacted significant changes to its initial listing standards, the NYSE American has not done the same and no such changes are currently anticipated.  I suspect that the NYSE American will see a large uptick in new company applicants as a result.

I recently drilled down on audit committee requirements and director independence standards for Nasdaq and in this and the next blog, I will do the same for the NYSE American.  As required by SEC Rule 10A-3, all exchange listed companies are required to have an audit committee consisting of independent directors.  NYSE American Company Guide Rule 803 delineates the requirements independent directors and audit committees.  Rule 803 complies with SEC Rule 10A-3 related to audit committees for companies listed on a national securities exchange.

SEC Rule 10A-3

SEC Rule 10A-3 requires that each national securities exchange have initial listing and ongoing qualification rules requiring each listed company to have an audit committee comprised of independent directors.  Although the NYSE American rule details its independence requirements, the SEC rule requires that at a minimum an independent director cannot directly or indirectly accept any consulting, advisory or other compensation or be affiliated with the company or any of its subsidiaries.  The prohibition against compensation does not include a reasonable compensation for serving as a director.

Like the NYSE American rules, the SEC allows for different independence standards for foreign private issuers (FPI) following their home country rules and even allows for affiliation as long as the person is not an executive officer of the FPI.

The audit committee of each listed company, in its capacity as a committee of the board of directors, must be directly responsible for the appointment, compensation, retention and oversight of the work of any registered public accounting firm engaged for auditing and audit-related services.  Furthermore, the SEC requires that an executive officer of a listed company promptly notify the national exchange if he or she becomes aware of any material noncompliance with the audit committee requirements by that listed company.

Although charter requirements are detailed in the NYSE American rule, the SEC rule requires that the audit committee establish certain processes and procedures for handling complaints regarding accounting, internal financial controls and auditing matters, including for the confidential submission by employees.  The SEC rule also requires that an audit committee be given the power, authority and funding to engage independent counsel and other advisors to carry out its tasks.  Funding must also be provided to hire audit firms and pay administrative expenses.

The SEC allows for a phase-in for compliance when a company is completing an initial public offering.  In particular, all but one director may be dependent for 90 days following the IPO and a minority of the audit committee may be dependent for one year from effectiveness of the registration statement.  The SEC rule also contains general exemptions from the audit committee requirements including: (i) for consolidated subsidiaries that are listed on another exchange with similar audit committee requirements; (ii) FPI’s that follow home country rules and have a similar committee to an audit committee and satisfy certain additional conditions; and (iii) related to the listing of certain options, futures, asset-backed issuers, investment trusts, a passive trust or foreign governments.  Specific disclosure is required when an exemption is being relied upon including an assessment of whether, and if so, how, such reliance would materially adversely affect the ability of the audit committee to act independently and to satisfy the other requirements of Rule 10A-3.

The SEC rule specifically requires that an exchange must give a listed company the opportunity to cure a defect in the audit committee requirements prior to delisting.  Moreover, the SEC rule provides that if an independent director on the audit committee loses independence as a result of factors outside of their control, that person may remain on the audit committee until the next annual shareholders meeting or one year from the date of the occurrence that caused the board member to no longer be independent.

NYSE American Rule 803

Audit Committee Composition

One of the corporate-governance-related listing requirements is that a company have an audit committee consisting solely of independent directors (for more information on independence qualifications, see HERE) who also satisfy the requirements of SEC Rule 10A-3 and who can read and understand fundamental financial statements including a balance sheet, income statement and cash flow statement. One member of the audit committee must have employment experience in finance or accounting, an accounting certification or other experience that results in the individual’s financial sophistication, including but not limited to being or having been a CEO, CFO or other senior officer with financial oversight.

The audit committee must have at least three members; however, a smaller reporting company is only required to have two members on its audit committee.  For the current definition of a smaller reporting company, see HERE.  Nasdaq does not have this carve-out for smaller reporting companies, though it does have it for compensation committees.

None of the committee members can have participated in the preparation of the financial statements of the company or any of its current subsidiaries for the prior three years.  An individual will be considered to have participated in the preparation of the company’s financial statements if the individual has played any role in compiling or reviewing those financial statements, including a supervisory role. An interim officer who signed or certified the company’s financial statements will be deemed to have participated in the preparation of the company’s financial statements and, therefore, could not serve on the audit committee for three years.

The eligibility requirements to serve on the audit committee apply to all committee members whether or not such member is afforded non-voting status or other limitations on their participation with the committee.  Lawyers that work at a law firm employed by the company cannot serve on the audit committee.

The NYSE American has a limited exception to the independence requirements where a director meets the independence standards in SEC Rule 10A-3 but not the more detailed requirements of the NYSE American company guide, is not currently an executive officer, employee or family member of an executive officer and exceptional circumstances makes the appointment of the person in the best interests of the company and its shareholders.  Specific disclosures are required in the company’s next proxy statement or annual 10-K when relying on this exception including the nature of the relationship that makes the person non-independent and the reasons for the board’s determination.  A committee member appointed under this exception may not serve for more than two years and cannot be chair of the audit committee.

Audit Committee Charter

NYSE American Company Guide Rule 803 requires that each company must certify that it has adopted a formal written committee charter and that the audit committee will review and reassess the charter on an annual basis.  The certification is submitted one time and a copy of the actual charter does not need to be provided to the NYSE American.  However, Item 407(d)(1) of Regulation S-K requires that companies report whether a current copy of its audit committee charter is available on its website and provide the website address.  If the charter is not on the website, companies should include the charter as an appendix to its proxy statement at least once every three years or in any year in which the charter has been materially amended.

The charter must specify: (i) the scope of the audit committee’s responsibilities and how it carries out those responsibilities including structure, processes and membership requirements; (ii) the audit committee’s responsibility to ensure that it receives written statements from the outside auditor regarding relationships between the auditor and the company and actively taking steps for ensuring the independence of the auditor; (iii) the committee’s purpose of overseeing the accounting and financial reporting processes of the company and the audits of the financial statements of the company; and (iv) the specific audit committee responsibilities and authority.

Audit Committee Responsibilities and Authority

The audit committee is responsible for items delineated in SEC Rule 10A-3 and in particular related to: (i) registered public accounting firms, (ii) complaints relating to accounting, internal accounting controls or auditing matters, (iii) authority to engage advisers, and (iv) funding as determined by the audit committee.

The audit committee is required to meet on at least a quarterly basis.  Nasdaq does not specify meeting requirements.

Cure Periods

All noncompliance with audit committee requirements requires prompt notification to the NYSE American.

Consistent with SEC Rule 10A-3, if a member of the audit committee loses independent status for reasons outside the member’s reasonable control, the audit committee member may remain on the audit committee until the earlier of its next annual shareholders meeting or one year from the occurrence of the event that caused the failure to comply with this requirement. A company relying on this provision must provide notice to the NYSE American immediately upon learning of the event or circumstance that caused the noncompliance.

If noncompliance is a result of a vacancy arising on the audit committee, the company will have until the earlier of the next annual shareholders meeting or one year from the occurrence of the event that caused the failure to comply with this requirement – provided, however, that if the annual shareholders meeting occurs no later than 180 days following the event that caused the vacancy, the company shall instead have 180 days from such event to regain compliance.  For a smaller reporting company, if the annual shareholders meeting occurs no later than 75 days following the event that caused the failure to comply with the audit composition requirement, a smaller reporting company shall instead have 75 days from such event to regain compliance.  Nasdaq does not have a different compliance cure period for smaller reporting companies.

Exception

If a company has a class of equity securities listed on another exchange with SEC Rule 10A-3 audit committee requirements, they may list securities of a consolidated subsidiary on the NYSE American without having a separate audit committee for that subsidiary.