Certifying the Accuracy of SEC Filings and Update on the Sarbanes-Oxley Act of 2002, NYSE and Nasdaq Proposals

Overview CEO and CFO Certification Sarbanes-Oxley Act of 2002 NYSE Proposals Nasdaq Proposals

SEC Proposals – 21(a) Order CEO and CFO Certification On June 27, the SEC issued an order requiring the CEOs and CFOs of the nation's 1000 largest public companies to certify the accuracy of their recent SEC filings. For most companies, the certification is required to be filed by August 14. The certification covers the most recently filed 10-K and any subsequently filed proxy statements or information statements, Forms 10-Q and 8-K. The certification must state: that, to the best knowledge of the officer, no covered report: contained an untrue statement of material fact; or omitted to state a material fact necessary to make the statements not misleading. whether the officer has reviewed the certification with the audit committee.

SEC Proposals – 21(a) Order CEO and CFO Certification (continued) In addition, on June 15, the SEC proposed a new rule that would require CEOs and CFOs to similarly certify the company's future annual and quarterly reports. Among other things, this certification would need to state that the relevant report contains all information that the officer believes is important to a reasonable investor. The proposal would also require a company to maintain procedures to provide reasonable assurance that it is able to collect the information required in its SEC reports. SEC proposal will be modified as per Sarbanes-Oxley (SEC Release No.34-46300, August 2, 2002).

Sarbanes-Oxley Act Section 906 Certification of Periodic Reports The Section 906 certification requires each periodic report filed under Section 13(a) or 15(d) of the Exchange Act that contains financial statements (e.g., any Form 10-Q, Form 10-K or Form 6-K) filed by a domestic or foreign issuer to “be accompanied by” a written statement of the CEO and CFO. In the Section 906 certification, the CEO and CFO must certify that: the periodic report fully complies with the requirements of Section 13(a) or 15(d) of the Exchange Act, and the information contained in the periodic report fairly presents, in all material respects, the financial condition and results of operations of the issuer.

Sarbanes-Oxley Act Section 302 Certification of Periodic Reports The Section 302 certification is required to be made “in” each annual or quarterly report. The Section 302 certification expressly applies both a materiality standard and a knowledge standard to the CEOs and CFOs required statements regarding the financial statements. Specifically, the principal executive officer and principal financial officer must certify that: the signing officer has reviewed the report. based on the officer's knowledge, the report does not contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which such statements were made, not misleading.

Sarbanes-Oxley Act Section 302 Certification of Periodic Reports (continued) based on such officer's knowledge, the financial statements, and other information included in the report, fairly present in all material respects the financial condition and results of operations of the issuer as of, and for, the periods presented in the report. the signing officers: are responsible for establishing and maintaining internal controls; have designed such internal controls to ensure that material information relating to the issuer and its consolidated subsidiaries is made known to such officers by others within those entities, particularly during the period in which the periodic reports are being prepared; have evaluated the effectiveness of the issuer’s internal controls as of a date within 90 days prior to the report; and have presented in the report their conclusions about the effectiveness of their internal controls based on their evaluation as of that date.

Sarbanes-Oxley Act Section 302 Certification of Periodic Reports (continued) the signing officers have disclosed to the issuer’s auditors and the audit committee of the board of directors: all significant deficiencies in the design or operation of internal controls that could adversely affect the issuer’s ability to record, process, summarize, and report financial data and have identified for the issuer’s auditors any material weaknesses in internal controls; and any fraud, whether or not material, that involves management or other employees who have a significant role in the issuer’s internal controls. the signing officers have indicated in the report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of their evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses.

Sarbanes-Oxley Act Section 302 Certification of Periodic Reports (continued) Because the Section 302 certification will be effective by the end of August, at the latest, companies should promptly begin to document their internal reporting systems so that any deficiencies in those procedures can be timely identified and corrected. The SEC has announced it will revise its officer certification rules proposed June 17 to reflect Section 302 of the Act, but has given no guidance on Section 906 certification obligations that affect the next periodic report with financial statements filed on or after the July 30 effective date of the Act.

Sarbanes-Oxley Act: Issues for Immediate Attention

Sarbanes-Oxley Act Ban on Loans to Executive Officers and Directors Section 402 of the Act amends Section 13 of the Exchange Act to prohibit most loans by an issuer to its executive officers and directors that are made, modified or renewed after enactment of the Act. The provision is effective immediately, subject to the SEC’s general rulemaking and exemptive authority. Under Section 402, companies may not directly or indirectly (including through a subsidiary) extend or maintain credit, arrange for the extension of credit, or renew any extension of credit, in the form of a personal loan to or for any executive officer or director of the company.

Sarbanes-Oxley Act Section 16 Filing Deadlines The Act authorizes the SEC to provide for later than 2-day reporting in any case in which it determines that such 2-day reporting is “not feasible.” In addition, the SEC continues to have exemptive authority under Exchange Act Sections 12(h) and 36(a)(1) to prescribe due dates for Section 16 reports.

OTHER PROVISIONS OF THE ACT Disgorgement of Certain Executive Compensation upon Financial Statement Restatements (§ 304) Summary: Requires that CEOs and CFOs disgorge bonuses, other incentive- or equity-based compensation and profits on sales of issuer securities where an accounting restatement is required due to the material noncompliance of the issuer with any financial reporting requirement under the securities laws as a result of misconduct. Disgorgement is required for such compensation received or profits realized during the 12-month period following the first public issuance or filing with the SEC (whichever occurs first) of the document embodying the noncompliant report. The SEC may exempt any person from the application of this provision as it deems necessary and appropriate.

OTHER PROVISIONS OF THE ACT Insider Trades During Pension Fund Blackout Periods (§ 306) Summary: Prohibits executive officers and directors from acquiring or transferring company equity securities during pension fund "blackout periods." "Blackout period" is defined to include periods of more than three business days during which trading in the security by 50% or more of the beneficiaries or participants in a company retirement plan is suspended. The Employee Retirement Security Act of 1974 ("ERISA") is also amended to add provisions relating to blackout period notice requirements for plan administrators and related matters.

OTHER PROVISIONS OF THE ACT Improper Influence on Audits (§ 303) Summary: Makes it unlawful, under rules to be issued by the SEC, for an officer or director, or any person acting under the direction of an officer or director, to "fraudulently influence, coerce, manipulate or mislead" an auditor for the purpose of rendering the financial statements being audited materially misleading. The SEC is given sole civil enforcement authority to enforce this provision (i.e., no private cause of action is authorized).

OTHER PROVISIONS OF THE ACT Professional Conduct Rules for Attorneys (§ 307) Summary: Requires the SEC to establish minimum standards of professional conduct for attorneys practicing before the SEC in representation of public companies. The standards must include a requirement that attorneys report to the chief legal counsel or CEO of the company (and, if there is no appropriate response, the audit committee or the entire board of directors) evidence of material violations of the securities laws, breaches of fiduciary duty, and similar violations by public companies or their agents.

DISCLOSURE REQUIREMENTS Off-Balance Sheet Transactions (§ 401(a)) Summary: Requires the SEC to issue rules providing that each annual and quarterly financial report filed with the SEC disclose all material off-balance sheet transactions and other relationships of the issuer with unconsolidated entities or other persons that may have a material current or future impact on the issuer's financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses.

DISCLOSURE REQUIREMENTS Pro Forma Financial Information (§ 401(b)) Summary: Requires the SEC to issue rules providing that issuers who disseminate “pro forma” financial information in their filings with the SEC, press releases or other public disclosures must present such information in a manner that does not contain an untrue statement or omit to state a material fact necessary in order to make the information, in light of the circumstances under which it is presented, not misleading, and must reconcile such information with the issuer’s financial condition and the results of operations under generally accepted accounting principles. Codes of Ethics for Senior Financial Officers (§ 406) Summary: Requires the SEC to issue rules requiring (1) each issuer to disclose in periodic reports, whether or not it has adopted a code of ethics for senior financial officers and, if not, why not, and (2) the immediate disclosure on Form 8-K and dissemination by the Internet or other electronic means of any change in, or waiver of, the company’s code of ethics for senior financial officers.

DISCLOSURE REQUIREMENTS Audit Committee Financial Expert (§ 407) Summary: Requires the SEC to issue rules to require issuers to disclose in periodic reports whether its audit committee includes among its members at least one "financial expert," and if not, why not. In defining the term "financial expert," the SEC must consider whether a person has, through education and experience as a public accountant or auditor or a principal financial officer, comptroller, or principal accounting officer of an issuer, or position involving similar functions, an understanding of generally accepted accounting principles and financial statements, experience in preparing or auditing financial statements, experience with internal accounting controls, and an understanding of audit committee functions. SEC Review of Disclosures (§ 408) Summary: Directs the SEC to review the disclosures of public companies on a regular and systematic basis, and in any event at least once every three years.

Other SEC Proposals 1. Proposed Rules for New 8-K Disclosure Item Proposed rules issued in May and June would require that several new items be reported on Form 8-K, including: transactions by directors and officers in company stock and options; the adoption or termination by a director or officer of a contract, instruction or plan for the purchase or sale of the company's stock; loans to a director or officer; entry into or termination of material agreements; creation of or events triggering a material direct or contingent financial obligation; any material impairments, write-offs, or restructuring charges;

Other SEC Proposals 1. Proposed Rules for New 8-K Disclosure Item (continued) certain rating agency actions; the beginning and end of lock-out periods affecting the company's retirement plans; and unregistered sales of securities. Sarbanes-Oxley will require modification of some of these proposals.

Other SEC Proposals 2. Proposed Rules for MD&A Disclosure, including Critical Accounting Policies In May, the SEC proposed rules for disclosure of critical accounting policies and estimates. The proposed rules would require disclosure of, among other things: critical accounting estimates made by the company, including the methodology used, line items affected, and how such line items would change if the estimates changed; and accounting policies having a material impact on a company's financial presentation.

The New York Stock Exchange Focus on Independent Board Members Additional Audit Committee Requirements Shareholder Approval of Options Corporate Governance

The New York Stock Exchange On August 1, the NYSE approved changes in their listing standards. These have been submitted to the SEC for approval. 1. Board Independence The board must have a majority of independent directors. Companies would have 24 months to comply with this new independence rule. To be "independent," the board must affirmatively determine that the director has no material relationship with the company (either directly or as a partner, shareholder or officer of an organization that has a relationship with the company) other than as a director. A board may adopt and disclose categorical standards to assist it in making determinations of independence and may make a general disclosure if a director meets these standards. Any determination of independence for a director who does not meet these standards must be specifically explained.

The New York Stock Exchange The following persons would not be considered independent until the expiration of a five-year "cooling off" period: a former employee of the listed company; a present or former employee of the company's present or former outside auditor; a present or former employee of any other company whose compensation committee includes (or included) an officer of the listed company; and any immediate family member of the above.

The New York Stock Exchange 2. New Requirements for Audit Committee Members and Committees Audit committee members must meet additional qualifications, including: director fees must be the only compensation an audit committee member receives from the company; a committee member who owns (or is affiliated with a person who owns) 20% or more of the company's stock cannot chair the committee or vote; and if a committee member serves simultaneously on the audit committee of more than three public companies, the board must determine that this would not impair the ability of the member to serve effectively and disclose such determination in the proxy statement.

The New York Stock Exchange 2. New Requirements for Audit Committee Members and Committees (continued) The audit committee must perform additional responsibilities (which must be set forth in its charter). Among other things, the audit committee must: meet separately, at least quarterly, with management, the internal auditors, and the outside auditor; have the authority to retain legal, accounting and other advisors without seeking board approval; discuss the MD&A disclosure, earnings releases and earnings guidance; (general discussion permitted) discuss the company's policies on risk management; assist board oversight of compliance with legal and regulatory requirements; and set clear policies for hiring employees or former employees of the outside auditor.

The New York Stock Exchange 3. Shareholder Approval of Option Plans Shareholders must approve all equity compensation plans. Exceptions for inducement options, corporate acquisitions and tax qualified and excess benefit plans need not be approved by shareholder vote. Brokers may not vote customer shares on any such plans unless the broker has the customer's instructions to do so. (Currently, the brokers can vote without instructions in certain circumstances.)

The New York Stock Exchange 4. Corporate Governance Principles and Codes of Conduct Companies must adopt and disclose a set of corporate governance principles, which should address: director qualification standards and responsibilities; director access to management and independent advisors; director compensation; director orientation and continuing education; management succession; and annual board self-evaluations.

The New York Stock Exchange 4. Corporate Governance Principles and Codes of Conduct (continued) Companies must also adopt and disclose a code of business conduct and ethics and promptly disclose any waivers of the code for directors or officers. At a minimum the code should address: conflicts of interest; corporate opportunities; confidentiality; fair dealing with the company's customers, suppliers, competitors and employees; protection and proper use of company assets; and encouraging the reporting of illegal or unethical behavior. Companies must publish on their Web site their corporate governance principles and codes of conduct, as well as the charters of their most important committees.

Nasdaq Proposals Shareholder Approval of all stock option plans Board Independence Majority of board independent Audit committee approval of related party transactions Independent directors cannot earn more than $60,000 in directors’ fees or own 20% of the voting stock, be a relative of an executive officer, be a former audit partner, or have other specified relationships Independent nominating committee (limited exception) Independent Director Approval of Executive Compensation Audit Committee (requirements similar to NYSE, with one exception to independence) Director Continuing Education