1. Frank Hubach Partner-in-Charge Jones Day Dallas
Introduction
Frank Hubach
Partner-in-Charge
Jones Day Dallas

2. Regulation of Non-GAAP Financial Matters
Mark Betzen
Dallas Business Practice Group

3. New Rules Regarding Non-GAAP Financial Measures
Effective March 28, 2003
Regulation G:
Applies to all public disclosures of material information containing non-GAAP financial measures
Amendments to Item 10 of Regulation S-K:
Applies to the use of non-GAAP financial measures in SEC filings

4. New Rules Regarding Non-GAAP Financial Measures
Exceptions:
Certain communications regarding proposed business combinations
Non-GAAP measures required under GAAP or SEC rules (e.g., exclusion of prior period goodwill amortization; pro forma effects of acquisitions and dispositions)
Non-GAAP measures required under regulatory accounting principles

5. What is a Non-GAAP Financial Measure?
Definition: A numerical measure of financial performance, financial position or cash flows that:
Excludes amounts that are included in the most directly comparable GAAP measure; or
Includes amounts that are excluded from the most directly comparable GAAP measure

6. What is a Non-GAAP Financial Measure? (cont)
Examples of Non-GAAP Financial Measures:
Analytical measures such as EBIT and EBITDA
Ad hoc adjustments to GAAP measures to derive “normalized” or “recurring” results of operations

7. Requirements For All Public Disclosures
Reconciliation Requirement: A non-GAAP financial measure must be accompanied by:
Presentation of the most comparable GAAP financial measure; and
Quantitative reconciliation of the differences between the non-GAAP financial measure and the most comparable GAAP financial measure
Non-Misleading: A non-GAAP financial measure must not misstate a material fact or omit to state a material fact necessary to make the presentation of the non-GAAP financial measure not misleading

8. Requirements For All Public Disclosures (cont)
Oral Disclosures: If a non-GAAP financial measure is disclosed orally, the company must:
Post the comparable GAAP measure and reconciliation on the registrant’s web site; and
Disclose the location and availability of that information during the oral presentation

9. Additional Requirements for SEC Filings
Reasons why management believes the non-GAAP financial measure is useful to investors
If material, any additional purposes for which management uses the non-GAAP financial measure
Presentation of the non-GAAP financial measure may not be more prominent than presentation of comparable GAAP financial measure

10. Additional Requirements for SEC Filings (cont)
Prohibited Presentations of Non-GAAP Financial Measures in SEC Filings:
Excluding cash charges or liabilities from non-GAAP liquidity measures (other than EBIT and EBITDA)
Adjusting a non-GAAP performance measure to eliminate a “non-recurring, infrequent or unusual” item when (1) the item is reasonably likely to recur within the next two years or (2) a similar item occurred within the prior two years
Presenting non-GAAP measures on the face of GAAP financial statements or in the accompanying notes
Presenting non-GAAP measures on the face of pro forma financial statements required to be disclosed by Article 11 of Regulation S-X
Using titles or descriptions of non-GAAP financial measures that are confusingly similar to those used for GAAP financial measures

11. New Rules Regarding Earnings Releases
New Item 12 of Form 8-K:
Applies to earnings releases and similar announcements made after March 28, 2003
A Form 8-K must be furnished to the SEC within five business days after any public release or announcement of material non-public information regarding results of operations or financial condition for a completed quarter or year
The release or announcement should be identified and included as an exhibit

12. New Rules Regarding Earnings Releases (cont)
Consequences of “furnishing” versus “filing”:
Not subjected to lower liability standard applicable to “filed” information
Not incorporated into Securities Act registration statements
However, any non-GAAP financial measures must conform to certain requirements applicable to SEC filings (i.e., may not be more prominent than comparable GAAP measures; reasons for perceived utility to investors and others uses by management must be disclosed)

13. New Rules Regarding Earnings Releases (cont)
Subsequent Releases of Additional Material Information:
Generally trigger a new Item 12 filing obligations

14. New Rules Regarding Earnings Releases (cont)
Exception for Certain Post-Release Presentations:
Presentation must be complementary to, and occur within 48 hours after, a related earnings release or announcement;
The related earnings release or announcement must have been previously furnished under Item 12;
The presentation must be accessible to the public by dial-in conference call, webcast or similar technology;
The financial and statistical information contained in the presentation must be posted on the company’s website; and
The presentation must have been announced in advance by a press release that included instructions as to how to access the presentation and the location on the Company’s web site of the financial and statistical information

15. New Rules Regarding Off-Balance Sheet Arrangements
Apply to MD&A Disclosure for Years Ending On or After June 15, 2003
Apply to Arrangements that are “Reasonably Likely” to Have Material Effects

16. New Rules Regarding Off-Balance Sheet Arrangements (cont)
Definition of “Off-Balance Sheet Arrangement”:
Obligations under certain guarantee contracts;
Retained or contingent interests in assets transferred to an unconsolidated entity or similar arrangements that provide credit liquidity or market risk support to such an entity;
Obligations under derivative instruments that are classified as equity; and
Obligations under material variable interests in certain unconsolidated entities

17. New Rules Regarding Off-Balance Sheet Arrangements (cont)
Evolution of the Definition:
The definition originally proposed by the SEC would have included all contractual obligations and liabilities -- contingent or otherwise -- not fully reflected in the financial statements

18. Definition of “Off-Balance Sheet Arrangement”
The final definition is intended to target typical off-balance sheet transaction structures and other typical arrangements where risks of loss are not fully transparent
The final definition employs recognized accounting concepts in order to define covered categories of arrangements with precision

19. Definition of “Off-Balance Sheet Arrangement” (cont)
Guarantee Contracts Include:
Guarantees protecting third parties against changes in specified prices, rates or other variables
Contingent obligations to make payments upon another person’s failure to perform (e.g., performance guarantees)
Indirect guarantees of the indebtedness of others in the nature of “keepwell” agreements

20. Definition of “Off-Balance Sheet Arrangement” (cont)
Derivative instruments include instruments issued or held by a company that are indexed to its stock and classified as equity
Variable interests in unconsolidated entities include such interests in entities that provide financing, liquidity, market risk or credit support or leasing, hedging, or R&D services

21. Disclosure Concerns Associated with the Use of Off-Balance Sheet Arrangements
Does the disclosure reflect the economic substance of the arrangement and, in particular, the risks and exposures to which the company is subject?

22. Disclosure Concerns Associated with the Use of Off-Balance Sheet Arrangements (cont)
Does the disclosure effectively “unmask” costs and risks associated with a company’s operations that might otherwise be hidden by the arrangement?

23. Disclosure Concerns Associated with the Use of Off-Balance Sheet Arrangements (cont)
Would a termination of the arrangement have a material effect on the company and, if so, are the risks and consequences adequately disclosed?

24. Specific Disclosure Requirements
Specific disclosure requirements include:
the nature and business purpose of the arrangements;
the importance of the arrangements to the company in respect of liquidity, capital resources, risk management or other benefits;
the financial impact of the arrangements;

25. Specific Disclosure Requirements (cont)
Specific disclosure requirements include:
the exposure to risk resulting from the arrangements;
known events, demands, commitments, trends or uncertainties that may affect the company’s ability to continue to benefit from the arrangements; and
such other information that the company believes is necessary for an understanding of the arrangements and their material effects.

26. Tabular Presentation of Contractual Obligations
Applies to the MD&A Disclosures for Years Ending On or After December 15
Does Not Apply to “Small Business Issuers”
Proposed tabular presentation of payments due under specified contractual obligations

27. Tabular Presentation of Contractual Obligations (cont)

28. Audit Committee Matters
Jim O’Bannon
Dallas Business Practice Group

29. Audit Committee Financial Expert
Disclose whether or not this issuer has at least one audit committee financial expert serving on its audit committee
Identify the audit committee financial expert or experts by name
Disclose whether the audit committee financial expert is independent
If the issuer does not have an audit committee financial expert, it must explain why
For most issuers effective for annual reports filed after July 15, 2003

30. Liability Safe Harbor
SEC rules provide that the designation of an individual as an audit committee financial expert does not increase the duties, obligations or liability of that individual

31. Code of Ethics
Disclose whether the issuer has adopted a code of ethics that applies to the issuer’s principal executive, financial and accounting officers
If the issuer has not adopted a code of ethics, it must explain why it has not done so
Publication by exhibit filing, website posting or undertaking to provide a copy upon request
Mandatory reporting of amendments to or waivers of the Code of Ethics

32. Approval of Non-Audit Services
Prohibited Services
Tax Services
Approval Process and Procedures

33. Concerns Regarding Questionable Accounting or Auditing Matters
Confidential And Anonymous Submissions
Committee Procedures

34. Other Audit Committee Issues
Relationship with the Audit Firm
Audit Committee Charter
Review of Quarterly Financial Statements
Earnings Releases and Forecasts
Audit Fees

35. Other Audit Committee Issues (cont)
Review of Internal Controls
Use of Independent Advisors
Time Commitment
Retention/Recruitment
Compensation

36. Lawyers: Up The Ladder Reporting
Bob Estep
Dallas Business Practice Group

37. What The Act Requires
Section 307 requires the Commission to adopt minimum standards of professional conduct for attorneys appearing and practicing before the Commission. The standard would require attorneys to report evidence of a material violation of securities law, breach of fiduciary duty or a similar violation “up the ladder”
first to the chief legal officer or chief executive officer
next, if the response is not “appropriate” to the audit committee, another committee of independent directors or the full board

38. Broad Outline Of Proposed Sec Rule 205 November 2002
Would have required “up the ladder” reporting
Added concept of “qualified legal compliance committee” of the board (“QLCC”) as an alternative to which reports could be made
Added “noisy withdrawal” requirement -- if response “up the ladder” to a report of a material violation, which is ongoing or about to occur and likely to result in substantial injury to the company or investors, was not appropriate, attorneys were required to
withdraw for “professional reasons” (outside attorneys only)
inform the Commission in writing of the withdrawal within one day
disaffirm to the Commission in writing any document filed with the Commission (outside and inside attorneys)

39. Broad Outline Of Proposed Sec Rule 205 November 2002 (cont)
added permission to follow the same procedures if the violation was past (not ongoing or about to occur)
Specifically added permission to reveal client confidences to (1) prevent illegal acts likely to result in substantial injury to the company or investors, (2) prevent an illegal act likely to perpetuate a fraud on the Commission or (3) rectify the consequences of an illegal act in which the attorney’s services had been used.

40. Commentary On And Controversy About Proposed Rule 205
“Noisy Withdrawal” not required by Section 307 and contrary to legislative intent
Unwarranted attack on the attorney/client relationship - bad public policy
Power of Commission to “federalize” ethics rules and conflicts with state ethics rules
Scope of attorney coverage
Improper definition of some statutory terms and utter failure to define others at all
Guts board responsibility under corporate law
“Objective” reasonable lawyer standard -- hindsight judgment of whether there was “evidence”

41. Rule 205 As Adopted - What Does The Rule Require (Cautionary Note: Rule Text Not Out Yet)
Commission deferred noisy withdrawal and notice requirements for further comments
Rule requires “up the ladder” reporting of “material violations” to either
the chief legal officer (“CLO”) or the chief executive officer (“CEO”) and, if no appropriate response, to the audit committee, an independent directors’ committee or the full board or
a QLCC

42. Rule 205 As Adopted (cont) TIME OUT -- what is a QLCC?
The Rule permits a QLCC to handle certain aspects of the Rule’s reporting, inquiry and remedial steps. The QLCC must
Consist of one audit committee member and two or more non-employee directors
be authorized to investigate reports of material violations
have written procedures for confidential receipt, retention and consideration of reports
have authority and responsibility for
informing the CLO/CEO of any reports
deciding whether an investigation is necessary
if an investigation is necessary, notifying the audit committee (or full board), initiating the investigation and retaining expert personnel

43. Rule 205 As Adopted (cont) What is a QLCC (cont)
directing the issuer to adopt appropriate remedial steps
informing the CLO/CEO and the board of the results of the investigation
Each member (and each of the CLO/CEO) must have the individual authority and responsibility, if the issuer fails to take any remedial steps directed by the QLCC, to notify the Commission of a material violation and in writing disaffirm any document filed with the Commission that he or she materially believes false or misleading
END OF TIME OUT

44. Rule 205 As Adopted (cont)
The new Rule’s reporting obligation applies to inside and outside attorneys (and supervising attorneys?) “appearing and practicing before the Commission”
“Appearing and practicing before the Commission” means
providing legal services to an issuer in an attorney/client relationship
while “having notice” documents the attorney is preparing or assisting in preparing will be filed with or submitted to the Commission
What triggers the reporting obligation?
“evidence” of a “material violation of securities law or breach of fiduciary duty or similar violation by the Company or any agent”

45. Rule 205 As Adopted (cont)
“evidence” means “credible evidence, based upon which it would be unreasonable, under the circumstances, for a prudent and competent attorney not to conclude that it is reasonably likely that a material violation has occurred, is ongoing or is about to occur” (i.e., an “objective” standard)
“material” means “conduct or information about which a reasonable investor would want to be informed before making an investment decision”

46. Rule 205 As Adopted (cont) Which laws?
State and federal securities laws - clearly an omission or misleading statement in a prospectus, proxy statement or report filed with the Commission, in a press release or other public statement
breaches of fiduciary duty recognized at common law
other “similar violations” undefined - (?)

47. Rule 205 As Adopted (cont) How does the reporting obligation work?
The initial report must be made “forthwith” directly (in person, by telephone, electronically or in writing) to the CLO, the CEO or both or
to a QLCC
The reporting attorney must take reasonable steps to document the report and the response from the CLO/CEO
CLO/CEO, after receiving initial report, must either cause an inquiry to be made or refer the report to a QLCC
If inquiry results in CLO/CEO making a “reasonable” determination there is no material violation, the CLO/CEO must so advise the reporting attorney

48. Rule 205 As Adopted (cont)
If inquiry results in “reasonable” belief there is a material violation, CLO/CEO must either
remedy the violation (including rectifying a past violation), document the inquiry and report the actions taken to both the reporting attorney and the audit committee (or full board) or
report the evidence to the QLCC
Reporting attorney duties upon response
if response is “appropriate,” no further action required
if it is not (or no timely response), reporting lawyer must go “up the ladder”

49. Rule 205 As Adopted (cont)
if the audit or other board committee (or the board) does not “appropriately” (or timely) respond, the reporting lawyer must document that fact and explain the reasons the attorney thinks the response is not appropriate to the CLO/CEO or directors to whom the attorney reported
The Rule also expressly permits attorneys to reveal confidential client information to
prevent the issuer from committing a material violation likely to cause substantial injury to the financial interests or property of the issuer or investors
Prevent the issuer from committing an illegal act
Rectify the consequences of a material violation or illegal act in which the attorney’s services have been used
The Rule is effective 180 days after publication

50. Other Actions At Commission Meeting on January 23
Extended comment period for 60 days
Will accept comments on Rule 205 as adopted
Solicited further comments on the originally proposed “noisy withdrawal” and related provisions. This proposal is not dead.

51. Other Actions At Commission Meeting on January 23 (cont)
Proposed a “compromise” alternative to the noisy withdrawal provisions
Attorney would be required to withdraw if response not appropriate but not required to report to the Commission or disaffirm Commission filings
The issuer would have to report the withdrawal on Form 8-K within two days
The attorney would be permitted, but not required, to report withdrawal to the Commission if the issuer did not timely file the 8-K report

52. What Steps Need To Be Taken?
Defer until text of Rule is known
For management of issuers, a priority will clearly be deciding whether or not to encourage boards to establish QLCCs
Directors and management will need to be familiarized with the Rule, how it works and what the consequences are

53. What Steps Need To Be Taken? (cont)
Inside and outside counsel should consider establishing protocols for compliance
Protocol for relationship of inside counsel and issuer on the one hand and outside counsel on the other, perhaps including modified or new engagement agreements
Protocol for inside counsel reporting compliance, including control and education of “supervised” and other lawyers
Protocol in law firms for outside counsel reporting compliance, including control and education of “supervised” and other lawyers

54. Getting Back To Business: The New SEC Rules Lawyers: Up The Ladder Reporting
ATTACHMENTS
1. Jones Day Client Advisory re: Adopted
Rule 205
2. Jones Day Client Advisory re:
Proposed Rule 205
3. Jones Day Comment Letter to Securities
and Exchange Commission re: Proposed