Professional Documents
Culture Documents
•Title VI is related to SEC’s resources and authority and Title VII requires
some studies and reports to be conducted;
- Increased SEC funding;
-Codified SEC’s authority to censure and deny temporarily or
permanently preparing and practicing before,
-To reduce the migration of fraud, SEC was authorized to bar securities
industry employees barred from other financial sectors,
What Sarbanes-Oxley Brings
Major Provisions of Sarbanes-Oxley
Title VI is related to SEC’s resources and authority and Title
VII requires some studies and reports to be conducted;
-Required special studies;
-Sec. 701-Consolidation of public accounting firms
(Comptroller General)
-Sec. 702-Role of credit rating agency in the operation of
securities markets (SEC)
-Sec. 705-Role of investment bankers and financial advisers
in assisting public companies manipulation of their earnings
(GAO)
What Sarbanes-Oxley Brings
Major Provisions of Sarbanes-Oxley
SOA imposes new criminal penalties for fraud and other
wrongful act;
-Creates a new federal criminal violation, called securities
fraud, violation of this statue will be punishable by fine and
imprisonment upto 25 years,
-Strengthens the existing penalties of mail and wire fraud,
-Direct respond to Arthur Andersen`s shredding event,
creates new document destruction crime,
-Contains federal protection for whistle blowers when act
lawfully to disclose information,
-Increases statue of limitation in private lawsuits,
What Sarbanes-Oxley Brings
Critics of Sarbanes-Oxley
•An election year is not proper to overhaul a complicated area
like securities regulation.
•Simply follows headlines from Enron and others with little
appreciation for systemic problems
•The efforts of SEC and other SROs is not taken into account
by Congress.
•Little appreciation for markets` response to the scandals.
•Many provisions are simply delegations of authority to the
SEC to adopt rules, some of them involve the SEC or the other
SROs had already undertaken rulemaking initiatives.
•May cause long-term systemic harm to the competitiveness
of US capital markets.
Regulations of Sarbanes-Oxley
Affecting Corporate Responsibility and Its Disclosure
Audit Committees
Sec. 301-SEC Proposed Rule ”Standards Relating to Listed
Company Audit Committees”
•Sec. 301 requires the SEC to direct the exchanges and NASD to
prohibit the listing of securities of companies not complying with
certain audit committee requirements.
•Definition- A committee (or equivalent body) established by and
composed of members of an issuer’s board of directors to oversee
the accounting and financial reporting processes and audits of the
financial statements. If the issuer does not establish such a
committee, the entire board of directors serves in that capacity.
•The Responsibilities of Audit Committees cited as;
-Relationships to auditors
-Audit committee independence
-Authority and funding to hire advisers
-Procedures to address complaints regarding accounting, internal
accounting controls, or auditing matters
Audit Committees
•SEC rule details the audit committee responsibilities and add
some disclosure requirements to ensure the investors are
informed about the composition.
• Relationships to auditors- directly responsible for the
appointment, compensation, and oversight of the registered
audit firm’s work, including the resolution of disagreements
over financial reporting.
•Independence-Two criterias were set for the independence;
-Compensation-They can’t accept any consultation fee
other than for their service as a board member
-Affiliated person-Not being an affiliated person of the
issuer (controls the issuer or under common control)-(A safe
harbor provision defined for affiliated person definition by
Rule)
Audit Committees
•Authority and funding to hire advisor- For auditors and
other outside advisors funding will be determined by audit
committee.
•Procedures to handling complaints- Requires the audit
committee establish procedures for complaints of employees
and others, about accounting, internal control and audit.
(Anonyms also to make sure to enable whistle blowing)
•Some exemptions are also provided by Rule (IPO, holding
companies etc.),
• For foreign private issuers limited exemptions enabled
(permission for employee etc),
Audit Committees
•Exchanges’ Situation;
-SEC rule only sets a base line, exchanges expected to add information on
implementation and enforcement,
-Issuers must notify the exchanges or associations in case of material non-
compliance
-Exchanges expected to establish procedures for correcting problems and de-
listing
-Exchanges must adopt the rules’ provisions no later than the anniversary of
Final Rule.
Financial Expertise of Audit Committee Member
Sec. 407 –SEC Final Rule “Disclosure Required by Sec. 406 and 407 of Sarbanes-
Oxley Act
• Role of audit committee member requires financial expertise, the Sec. 407
directs SEC to issue Rules that require a company to disclose whether or not, and
if not, the reasons why not, the audit committee of that company is comprised of
at least one member who is a financial expert at annual reports.
•Rules had a detail definition for ‘audit committee financial expert’, regulating
attributes of financial expert, how it is expected to be acquired,
(Definition is among the controversial areas-whether have direct expertise at the
preparation of financial statements)
Audit Committees
Financial Expertise of Audit Committee Member
• A safe harbor generated by Rule: Mentioning this title do not impose
any additional duty, obligation or liability.
Discussions about Audit Committee Regulations
-Before the SOA exchanges had already have audit committee
requirements including their financial expertise. NYSE and NASDAQ has
already proposed changes to their corporate governance listing
requirements which is waiting for SEC approval.
-One of the benefits of SOA: Common regulation base for audit
committees (Financial expertise requirements used with a diverse
interpretation by exchanges)
-The financial expertise regulation do not include any penalty so its
efficiency is limited to the investors’ awareness to that kind of
information.
-Key issue for the effectiveness of new audit committee regulations is lied
in the exchanges attributes to the violations. Since before the SOA they
are unwilling to use delisting threat
Audit Committees
Discussions about Audit Committee Regulations
•Up-To-Ladder Reporting
-Report evidence of a material violation of securities law or breach of a fiduciary duty or
similar violation by the company or one of its agents to the chief legal officer or the CEO of
the company.
-If they does not appropriately respond to the evidence, attorney must report the evidence
to the board’s audit committee or to another board committee comprised solely of directors
not employed directly or indirectly by the company or to the board of directors.
• Alternative procedure
-Rules establish a new term “Qualified Legal Compliance Committee” as an alternative to
the reporting evidence. Disclosure to QLCC relieves attorney’s reporting requirements
mentioned above.
-This committee has at least one member of the issuers audit committee or equivalent
committee of independent directors and two or more independent board members.
Professional Responsibility of Attorneys
Disclosure of Confidential Information
- Rules contains a “self-defense” exception to issuer confidentiality
- Allow an attorney to reveal to the SEC, without issuer consent,
confidential information related to the attorney’s representation of the
issuer to the extent he or she reasonably believes necessary to prevent
(e.g. a material violation by the issuer that is likely to cause substantial
injury to the issuer or investors)
•Sec. 302 regulates that SEC must adopt regulations, public company’s
principal executive officer and principal financial officer or person
performing similar functions certify each annual and quarterly report filed
under Section 13(a) or 15(d) of the Securities Exchange Act.
•The officers have made required disclosures to the auditors and to the
audit committee about fraud and about significant deficiencies and
material weaknesses in internal controls.
•The officers must also affirm that they have disclosed their evaluations
for the effectiveness of the “disclosure controls and procedures” and must
indicate whether there have been significant changes in the internal
controls or in factors that might significantly change them.
Corporate Responsibilities of Financial Reports
Disclosure Controls and Procedures
•A new term established by SEC to ensure that information
required to be disclosed in reports is gathered, reported,
processed, summarized and disclose in a timely manner.
•Intended to enable the financial and non-financial
information required to meet its reporting obligations.
•Failure to maintain adequate disclosure controls and
procedures and review them, could be subject to SEC’s
action.
•In that way SEC is regulating the company’s disclosure
preparation procedures.
•SEC interpreted that this term is different from the internal
control.
Corporate Responsibilities of Financial Reports
Sec. 906 Certification
•In addition to Sec. 302 certification requirements, Sec. 906 of the Act
also requires a certification by the companies chief executive officer and
the financial officer accompany each period filed under Section 13(a) or
15(d) of the Securities Exchange Act of 1934 containing financial
statements.
•Providing that:
-The report fully complies with the requirements of reporting;
-The information in the report fairly presents in all material respects,
the financial condition and results of operations of the company,
•This certification requirement is effective immediately.
•Imposes criminal penalties of up to $1 million and/or ten years in prison
for knowingly filing a false certification, and up to $5 million and/or 20
years in prison for willfully filing a false certification.
Corporate Responsibilities of Financial Reports
Discussions on Corporate Responsibility
Discussions on Compensation
•Cost inhibiting the CEO and CFO’s eager to make prompt disclosure of
non-compliances.
Discussions
-Civil money penalties can be distributed harmed investors-prior
forwarded to Treasury
Code of Ethics
Sec. 406-SEC Final Rule “Disclosures Required by Section 406
and 407 of Sarbanes-Oxley”
-Requires disclosure of whether they have adopted a code of ethics and
“of any change in, or waiver of” an issuer’s code of ethics in annual
reports.
Definition
-honest and ethical conduct
-Full fair, accurate timely disclosure in reports and documents,
-Compliance with laws, rules and regulations,
-Prompt reporting to violations,
Disclosure
-Made publicly available by exhibit to annual report, post internet web
site, by giving information in annual report give copy to any person
without charge
Code of Ethics
Waiver of Code of Ethics
•Required to promptly disclose any changes to, or waivers
of, the code of ethics on Form 8-K or on its Internet Web site
Discussion on Code of Ethics
•Has been used by companies for several years (Enron also
had a code of ethics).
•Only raise the level of ethical behavior if taken seriously and
enforced
•Provide information to investors on code of ethic but can
not guarantee or impose ethical behavior to officers.
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