Division of Corporation Finance: Sarbanes-Oxley Act of 2002 – Frequently Asked Questions

Question 1:   Section 2(a)(7) of the Sarbanes-Oxley Act of 2002 (the "Act") defines an "issuer" as an "issuer (as defined in Section 3 of the Securities Exchange Act of 1934 (15 U.S.C. 78(c)), the securities of which are registered under Section 12 of that Act (15 U.S.C. 78l), or that is required to file reports under Section 15(d)…." A company has offered and sold debt securities pursuant to a registration statement filed under the Securities Act of 1933, thus subjecting it to the reporting requirements of Section 15(d). The company did not register the debt securities under Section 12 of the Exchange Act of 1934. Subsequently, the company's reporting obligations have been statutorily suspended under Section 15(d) because it had fewer than 300 security holders of record at the beginning of its fiscal year. The company has not filed a Form 15 and has continued to file reports pursuant to its indenture. Is the company considered an "issuer" under the Act?

Answer:   No. Because the issuer had fewer than 300 security holders of record at the beginning of its fiscal year, the suspension is granted by statute and is not contingent on filing a Form 15. The definition of issuer applies only to issuers required to file reports. However, see Question 9 regarding these kinds of filers under Section 302 of the Act.

Question 2:   Will the rules relating to Section 301 apply to issuers whose securities are traded on the over-the-counter bulletin board market?

Answer:   No. Securities traded on the over-the-counter bulletin board market currently are not considered listed securities.

Question 3:   An issuer is filing a Form 10-K report after August 29, 2002, the date Rules 13a-14, 13a-15, 15d-14 and 15d-15 became effective, for a period ending prior to the effective date. Section V of Release No. 33-8124 provides that the certification required to be included with the report need contain only the statements set forth in paragraphs (b)(1), (2) and (3) of Exchange Act Rules 13a-14 and 15d-14. However, the instructions to Forms 10-Q, 10-QSB, 10-K, 10-KSB, 20-F and 40-F indicate that the required certification must be in the exact form set forth in the report. Must a certification filed during the transition period for a period ended before August 29th include the statements set forth in paragraphs (b)(4), (5) and (6) of Rules 13a-14 and 15d-14?

Answer:   No. Paragraphs (b)(4), (5) and (6) of Rules 13a-14 and 15d-14 need only be included for quarterly and annual reports, including transition reports, filed for periods ending after August 29, 2002.

Question 4:   Does an amended quarterly or annual report filed after August 29, 2002, the effective date of Rules 13a-14 and 15d-14, that amends a report filed prior to August 29, 2002 have to be certified?

Answer:   Yes. See note 48 of Release 33-8124. The certification need not include paragraphs (b)(4), (5) and (6) of Rules 13a-14 and 15d-14.

Question 5:   A company is filing a Form 10-Q/A for a period ending prior to the effective date of Rules 13a-14 and 15d-14. The amendment will neither contain nor amend financial statements. May the principal executive officer and principal financial officer omit paragraph 3 from the certifications?

Answer:   Yes. Since there will be no financial statements in the Form 10-Q/A, paragraph 3 may be omitted.

Question 6:   If an issuer has filed a Form 10-Q before the effective date of Rules 13a-14 and 15d-14, but needs to file an amended Form 10-Q after August 29, does the issuer need to provide the disclosure required by Item 307 of Regulation S-K?

Answer:   No.

Question 7:   Does the new Item 15 of Form 20-F apply to periods ending prior to August 29, 2002?

Answer:   Issuers must comply with Item 15(b) but not Item 15(a).

Question 8:   Does Section 302 apply to Forms 8-K filed by asset-backed issuers?

Answer:   No. Asset-Backed Issuers, as defined in Rules 13a-14(g) and 15d-14(g), do not need to file a certification with each Form 8-K. However, the certification that is filed with the Asset-Backed Issuer's Form 10-K will relate to certain Forms 8-K filed by the issuer in the preceding year. Please refer to Statement by the Staff of the Division of Corporation Finance of the Securities and Exchange Commission Regarding Compliance by Asset-Backed Issuers with Exchange Act Rules 13a-14 and 15d-14, dated August 27, 2002.

Question 9:   Is an issuer that is filing or submitting reports exclusively under Section 15(d) of the Exchange Act on a "voluntary" basis (for example, pursuant to a covenant in an indenture or similar document), due to a statutory suspension of the Section 15(d) filing obligation, subject to Rules 15d-14 and 15d-15 and the disclosure required by Item 307 of Regulations S-B and S-K?

Answer:   Yes. All companies filing or submitting reports under Section 13(a) or 15(d) must comply with those provisions whether or not a Form 15 has been filed pursuant to Rule 15d-6.

Question 10:   If only one other officer is certifying to the issuer's reports, is it permissible to revise paragraph 4 of the certification to make "other certifying officers" singular?

Answer:   Yes.

Question 11:   If an officer signs the certification without altering the wording to indicate he or she is providing the certification as principal financial officer, how will readers know whether the signatory is the principal executive officer or the principal financial officer?

Answer:   The officer should include his or her title under the signature.

Question 12:   If the same individual is both the principal executive officer and principal financial officer, must he or she sign two certifications?

Answer:   The individual may provide one certification and provide both titles underneath the signature.

Question 13:   A CEO resigned after the end of the quarter but before the filing of the upcoming Form 10-Q. The company appointed a new CEO prior to the filing. Who signs the certification?

Answer:   The new CEO because he or she is the principal executive officer at the time of the filing.

Question 14:   A company has a CEO who is resigning at the end of the year and is no longer performing the function of CEO although he is still employed with the company. In the interim, the company has another individual that is performing the functions of CEO. Can that other individual sign the certification despite the fact that the company still has another person with the CEO title?

Answer:   The person performing the function of CEO at the time of the filing should provide the certification. If it is not the person with the title of CEO, the company should disclose in the filing that the other individual is performing that function.

Question 15:   An issuer currently does not have a CEO/CFO. Who must execute the certifications required by Rules 13a-14 and 15d-14?

Answer:   As set forth in paragraph (a) of Rules 13a-14 and 15d-14, where an issuer does not have a CEO/CFO, the person or persons performing similar functions must execute the required certification.

Question 16:   Must co-principal executive officers (or co-principal financial officers) execute separate certifications or may both execute the same certification?

Answer:   Co-principal executive officers (or co-principal financial officers) should each execute separate certifications.

Question 17:   If Section 302 certifications are not included in, for example, a Form 10-K or 10-Q filing, and an amendment will be filed to include the certifications, must the entire document be re-filed or can the amendment include only the signature pages?

Answer:   Because the certification relates to the entire Form 10-K or 10-Q filing, the amendment should include the entire filing, not just the signature pages.

Question 18:   Using the same facts in question 17 above, if the amendment is not filed within the time period required for the periodic report, is the report deemed to be untimely?

Answer:   Yes. The periodic report will not be deemed timely for purposes of form eligibility and the issuer will not be deemed current until the amended periodic report containing the certification is filed.

Question 19:   A Canadian issuer is filing a Form F-10. Are certifications required because the Form F-10 incorporates prior Exchange Act filings?

Answer:   No.

Question 20:   What definition is the Commission currently using for internal controls and internal controls and procedures for financial reporting?

Answer:   In the release adopting the rules pursuant to Section 302 of the Act, the Commission noted the pre-existing concept of "internal controls" contained in Codification of Statements on Auditing Standards Section 319 ("AU Section 319"). See Release 33-8124 fn. 59 and accompanying text. In Release No. 33-8138, the Commission proposed defining "internal controls and procedures for financial reporting" by reference to AU Section 319, subject to any future modifications by the Public Company Accounting Oversight Board. Pending completion of rulemaking, the staff interprets both "internal controls and procedures for financial reporting" and "internal controls" for purposes of Exchange Act Rules 13a-14(b)(5) and (6) and 15d-14(b)(5) and (6) and Item 307 of Regulations S-B and S-K by reference to existing literature regarding generally accepted auditing standards, which would also be by reference to AU Section 319.

Question 21:   Are paragraphs (b)(5) and (b)(6) of Rules 13a-14 and 15d-14 currently operative given that there is no current requirement for evaluation of internal controls?

Answer:   Yes, these paragraphs are currently operative as to any filing relating to a period ending after August 29, 2002. See also Question 22.

Question 22:   New Exchange Act Rules 13a-14(b)(5) and (6) and 15d-14(b)(5) and (6) require an issuer's CEO and CFO to certify that:

• He or she and the other certifying officers have disclosed, based on their most recent evaluation, to the issuer's auditors and the audit committee of the board of directors (or persons fulfilling the equivalent function):
   
  • All significant deficiencies in the design or operation of internal controls which 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; and
     
• He or she and the other certifying 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 most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses.

In addition, paragraph (b) of Item 307 of Regulations S-B and S-K requires an issuer to disclose whether or not there were significant changes in the issuer's internal controls or in other factors that could significantly affect these controls subsequent to the date of their evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses. Is a quarterly evaluation of internal controls or internal controls and procedures for financial reporting required at this time, and if so, what are the particular standards? How should the issuer respond to Item 307(b) of Regulations S-B and S-K? How should the issuer's CEO and CFO address this situation in their certification statements?

Answer:   Although proposed amendments to Exchange Act Rules 13a-15 and 15d-15 would impose a requirement on an issuer's management to conduct an evaluation, with the participation of the issuer's CEO and CFO, of the effectiveness of the issuer's internal controls and procedures for financial reporting (See Release No. 33-8138), the Commission's rules currently do not specifically require an issuer's CEO or CFO, or the issuer itself, to conduct periodic evaluations of the issuer's internal controls or the issuer's internal controls and procedures for financial reporting. Some elements of internal controls are included in the definition of disclosure controls and procedures. There is a current evaluation requirement involving the CEO and the CFO of that portion of internal controls that is included within disclosure controls and procedures as part of the required evaluation of disclosure controls and procedures. We expect that issuers generally also would engage in an evaluation of internal controls. We believe that issuers generally currently evaluate internal controls, for example, in connection with reviewing compliance with Section 13(b) of the Exchange Act or in connection with the preparation or audit of financial statements.

In the case of Item 307(b) of Regulations S-K and S-B, to the extent that an issuer has conducted an evaluation of its internal controls as of the end of the period covered by the report, including under the circumstances described in the preceding paragraph, the issuer should disclose any significant changes to the internal controls or in other factors that could significantly affect these controls subsequent to the date of their evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses. If the issuer has made any significant changes to internal controls or in other factors that could significantly affect these controls, such changes would presumably follow some evaluation, in which case the required disclosure must be made. If the issuer has made no significant changes, then no disclosure is required. This response is also applicable to Item 15(b) of Form 20-F and Item 6(c) of Form 40-F.

Regarding the certifications under Exchange Act Rules 13a-14(b)(5) and (6) and 15d-14(b)(5) and (6), the disclosures under Item 307 of Regulations S-B and S-K described above following any evaluations of internal controls, including in the circumstances described above in which the CEO or the CFO participates, would satisfy the requirements of paragraph (6). Paragraph (5) would currently require that disclosure be made by the CEO and the CFO to the issuer's auditors and the audit committee of its board of directors of any events enumerated in paragraph (5) that have occurred of which the CEO or CFO become aware based on the most recent evaluation of internal controls, including in the circumstances described above, in which the CEO or CFO participates.

Question 23:   For purposes of Rules 13a-14(b)(5) and (6) and 15d-14(b)(5) and (6), what do the terms "significant deficiencies" and "material weaknesses" mean?

Answer:   For purposes of Rules 13a-14(b)(5) and (6) and 15d-14(b)(5) and (6), the meaning of the terms "significant deficiencies" and "material weaknesses" should be determined by reference to generally accepted auditing standards. See generally, AU Section 325.

Question 24:   Where the registrant is a limited partnership that does not have an audit committee, who should be considered the persons performing the equivalent function as referenced in new Exchange Act Rules 13a-14(b)(5) and 15d-14(b)(5)?

Answer:   Many limited partnerships do not have audit committees. Many general partners of limited partnerships are themselves limited partnerships. In this case, look through each general partner of the limited partnerships acting as general partner until a corporate general partner or an individual general partner is reached. With respect to a corporate general partner, the registrant should look to the audit committee of the corporate general partner or to the full board of directors as fulfilling the role of the audit committee. With respect to an individual general partner, the registrant should look to the individual as fulfilling the role of the audit committee.

Question 25:   If a company otherwise maintains a dividend reinvestment plan that satisfies the exemptive conditions of Rule 16a-11, are automatic dividend reinvestments under a non-qualified deferred compensation plan also eligible for the Rule 16a-11 exemption, so that those reinvestment transactions would not be required to be reported, thus reducing the number of Forms 4 due?

Answer:   Non-qualified deferred compensation plans are not Excess Benefit Plans, as defined by Rule 16b-3(b)(2) under the Exchange Act, in which transactions are exempted by Rule 16b-3(c). See Interpretive Letter to American Bar Association (Feb. 10, 1999, Q. 2(c)). Under Rule 16a-3(g)(1), as amended in Release 34-46421 (Aug. 27, 2002), each transaction in a non-qualified deferred compensation plan must be reported on a Form 4 not later than the end of the second business day following the day on which the transaction was executed. However, if a company maintains a dividend reinvestment plan that satisfies the exemptive conditions of Rule 16a-11, automatic dividend reinvestments under a non-qualified deferred compensation plan are also eligible for the Rule 16a-11 exemption. See Interpretive letter to American Home Products (Dec. 15, 1992).

Question 26:   In order to reduce the number of Forms 4 due annually, an insider makes the following choices: In connection with the annual year-end election to defer some of the following year's salary into a non-qualified deferred compensation plan, the insider elects to have payroll deductions invested in the plan's interest-only account. The insider also elects for the deferred salary so invested to be "swept" on a quarterly basis into the plan's stock fund account. How should these "sweep" transactions be reported?

Answer:   Each "sweep" transaction would be reportable separately on Form 4. If the "sweep" election satisfies the Rule 16b-3(f ) exemptive conditions for Discretionary Transactions (as defined in Rule 16b-3(b)(1)), the "sweep" transactions would be reported using Code I. Further, if the reporting person does not select the date of execution for a "sweep" that is a Discretionary Transaction, Rules 16a-3(g)(3) and (4) would apply to determine the deemed execution date.

Question 27:   For purposes of satisfying the affirmative defense conditions of Rule 10b5-1(c), an insider adopts a written plan for the purchase or sale of issuer equity securities. In the plan, which was drafted by a broker-dealer, the broker-dealer specified the dates on which plan transactions will be executed. Can the insider rely on Rule 16a-3(g)(2) to compute the Form 4 due date for plan transactions based on a deemed execution date?

Answer:   No. By adopting a written plan that specifies the dates on which plan transactions will be executed, the insider will have selected the date of execution for plan transactions. Consequently, the insider will not be able to rely on Rule 16a-3(g)(2) to compute the Form 4 due date for plan transactions based on a deemed execution date.

Question 28:   When reporting more than one transaction on the same Form 4, what date should be stated in Box 4?

Answer:   The transaction date (not the deemed execution date) of the earliest transaction reported should be stated in Box 4.