CEO and CFO are required to certify periodic reports

• Per Sarbanes - Oxley Act 302 and 906
  and related SEC rules

CEO must also certify compliance with
NYSE and Nasdaq  listing standards

SOX Act 302

SOX Act 906

Rule 13a-14 / Rule 15d-14

• SEC rules for 302 / 906 CEO/CFO certification
• Parallel provisions

Rule 13a-14(a) / Rule 15d-14(a)

• Principal executive officer and principal financial officer
  are required to provide specified certifications
  about quarterly and annual reports
• Required for:

• Form 10-K / Form 10-Q  Domestic issuers
• Form 10-KSB / Form 10-QSB  Small business issuers
• Form 20-F  Foreign private issuers
• Form 40-F  Canadian issuers

• Required for any amendments to these reports
• Not required for current reports on Forms 8-K and 6-K
• Doesn't apply to XBRL-related documents

• Modified requirements for:

Registered investment companies

Asset-backed issuers

Required certifications are set forth in S-K 601(b)(31):

• Officer has reviewed periodic report
• No untrue statement or omission of a material fact knowledge qualified
• Fairly presents issuer's financial condition,
  results of operation and cash flows knowledge qualified

• Covers all financials including
  MD&A, footnotes, selected financial data

• Required statements about
  and internal control
• Must disclose any deficiencies in internal control / management fraud
• Must disclose any significant changes in internal control

SEC SOX Act FAQs

SEC No-action Letters

Rule 13a-14(b) / Rule 15d-14(b)

• CEO/CFO must certify any periodic reports with financials that are filed pursuant to Exchange Act 13(a) or 15(d)

• Required for:

• Form 10-K / Form 10-Q  Domestic issuers
• Form 10-KSB / Form 10-QSB  Small business issuers
• Form 20-F  Foreign private issuers
• Form 40-F  Canadian issuers
• Doesnt apply to Form 8-K, Form 6-K or Form 11-K filings
  See SEC release 33-8400 2004
• Part of federal criminal code,
  administered by the Department of Justice
• False certifications bear substantial criminal penalties

Required certifications:

• Report fully complies with Exchange Act 13(a) or 15(d)
• Fairly presents issuer's financial condition and
  results of operation

Certification:

• Must accompany the periodic report
• Furnished, not filed - unlike 302 certifications

• Thus not subject to liability under Exchange Act 18
• Not automatically incorporated by reference

• Failure to furnish the certification would cause the relevant periodic report to be deemed incomplete
• No specific form is specified
• Statute and SEC silent on whether certification is knowledge qualified

Section 302 certifications

• Are filed as S-K Item 31 exhibits to the periodic report

• S-K 601(b)(31)
• S-B 601(b)(31) for small business issuers

• Generally, can't alter the prescribed text
  but see SEC FAQ #5 re amended filings
• Must be signed personally (not by power of attorney)

Section 906 certifications

• Are filed as S-K Item 31 exhibits to the periodic report

• S-K 601(b)(32)
• S-B 601(b)(32) for small business issuers

• Generally, can't alter the prescribed text
  but see SEC FAQ #5 re amended filings
• Must be signed personally (not by power of attorney)
• Can be a single statement signed by both CEO and CFO

SEC finalized these filing practices in June 2003

• SEC final release 33-8238 2003

NYSE 303A.12(a)

Requires CEO to certify to NYSE annually that CEO is unaware of any violation of NYSE listing standards

• SEC certifications and NYSE certification to be disclosed in annual report to shareholders
• NYSE 303A.12(b) requires CEO to give prompt written notice to NYSE of any material non-compliance with NYSE 303A provisions

Final release 33-8238 2003

• Changed filing process to make 302 / 906 certifications exhibits to the relevant periodic report
• SEC summary
• Release primarily addressed internal control

• Proposal release 33-8138 2002
• Comment letters

Final release 33-8124 2002

• Adopted Rules 13a-15/15d-15, S-K 307
• SEC summary

• Proposal release 34-46300 2002
• Comment letters
• Proposal release 34-46079 2002

Modified certifications

• iShares COMEX Gold Trust 5.19.05
• streetTRACKS Gold Trust  2.18.05
• Enstar Income 8.07.04
• Mitsui 8.20.03
• Hechinger Liquidation Trust 5.15.03
• Merrill Lynch Depositor  3.28.03
• Mitsubishi Motors Credit 3.27.03
• Bank of America  11.13.02

Cedric Kushner Promotions Inc 2004

HealthSouth 2003

SEC v Rica Foods 2003

Sarbanes - Oxley Act 1001

• Non-binding "Sense of Senate" resolution
  that corporate tax returns be signed by CEO

SEC 2002 Order

• Preceded SOX Act certification requirements
• One-time requirement for 947 companies
• All but 16 certify accuracy of their reports
• SEC Order
• SEC FAQs
• Mandatory certification form
• SEC statement
• SEC's "compliance scorecard"
• SEC press release

Disclosure Controls  S-K 307

internal control  S-K 308

Audit Committees

Periodic Reports  10-Ks / 10-Qs