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August 4, 2003
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Securities Law Advisory
New EDGAR Changes; Other Reminders and
Practice Tips
This Special Alert addresses several recent developments immediately affecting Securities and Exchange
Commission (SEC) filings by public companies:
Items 11 and 12 of Form 8-K Now Ready on EDGAR.
•
Effective July 28, 2003, the SEC’s EDGAR system now accepts Form 8-Ks filed under Item 11 (Temporary Suspension of Trading Under Registrant’s Employee Benefit Plans) and Form 8-Ks furnished
under Item 12 (Results of Operations and Financial Condition). Registrants no longer need to comply
with the SEC’s prior interim filing guidance.
Certifications Under Sections 302 and 906 Now Filed as Exhibits 31 and 32; Modified
Text for Section 302 Certifications.
•
Also effective July 28, 2003, the SEC’s EDGAR system now permits registrants to file Exhibits 31
(Section 302 certifications) and to furnish Exhibits 32 (Section 906 certifications). Pursuant to final
rules adopted by the SEC on June 5, 2003, for filings due on or after August 14, 2003, the Section 302
and Section 906 certifications must be included as exhibits to the relevant reports under the Securities
Exchange Act of 1934 (Exchange Act). The Section 302 certifications previously appeared after the
signature pages to these reports. For a calendar year company, this means that the exhibit requirements apply beginning with the June 30, 2003 Form 10-Q, even if the Form 10-Q is filed before
August 14, 2003.
•
Registrants are also reminded that, for filings due on or after August 14, 2003, the text of the Section
302 certifications has been changed as set forth in Item 601(b)(31) of Regulation S-K. However, there
are transition rules relating to the new “internal control” rules promulgated by the SEC pursuant to
Section 404(a) of Sarbanes-Oxley. The certifying officers may temporarily modify the content of the
Section 302 certifications to eliminate some, but not all, references to internal control over financial
reporting until the registrant is first required to comply with the Section 404 rules. Attached to this
Special Alert is a sample Section 302 certification reflecting permitted omissions. These transition
rules expire once a registrant has performed its first assessment of internal controls pursuant to Section 404 and the auditors render their attestation report.
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• Beginning on July 28, 2003, for a six-month trial period, the SEC’s EDGAR system will accept
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New EDGAR Filing Hours for a Six-Month Trial Period.
electronic filings two hours earlier – 6:00 a.m. Eastern time – rather than 8:00 a.m. Eastern time. In
order to receive the same-day filing date, most filings must still be submitted to, and accepted by,
the EDGAR system by 5:30 p.m. Eastern time. Section 16 filings and filings pursuant to Securities
Act Rule 462(b) (registration statements to register additional securities) will receive the current
filing date if they are submitted and accepted at any time between 6:00 a.m. and 10:00 p.m. Eastern
time.
Practice Tip
Do not list exhibits to Form 8-Ks under Item 7, if they are being included with Form 8-Ks furnished
pursuant to Item 9 or Item 12.
• In order to be certain that exhibits included with Form 8-Ks furnished under Item 9 (Regulation FD
Disclosure) or Item 12 (Results of Operations and Financial Condition) are not deemed filed, we
recommend that registrants not list these exhibits under Item 7 (Financial Statements, Pro Forma
Financial Information and Exhibits). We believe this recommendation is consistent with the plain
text of the introductory sentence to Item 7, which requires that registrants list “… exhibits, if any,
filed as a part of this report” (emphasis added). Since exhibits to Item 9 and Item 12 Form 8-Ks are
not filed, there is no Item 7 listing requirement.
• Furnished exhibits should simply be identified under the appropriate Item 9 or Item 12 caption and
then marked as Exhibits 99. We suggest having an exhibit index that appears after the signature
page and prior to the text of the exhibits.
• Whether to list furnished exhibits under Item 7 may be more than a purely esoteric question. Listing
furnished exhibits under Item 7 arguably renders them “filed,” and thus incorporated by reference
into registration statements that incorporate Exchange Act reports. Earnings releases, for example,
might contain information, such as earnings projections, for which the registrant does not want to
subject itself to the strict liability of Section 11 of the Securities Act of 1933.
Related Resources
• SEC Notice to EDGAR Filers: Changes for July 28, 2003, http://www.sec.gov/info/edgar/ednews/
edchanges728.htm (Jul. 25, 2003).
• SEC Final Rule: Adoption of Updated EDGAR Filer Manual, Securities Act Rel. No. 33-8255,
Exchange Act Rel. No. 34-48204; Public Utility Holding Company Act Rel. No. 35-27700, Trust
Indenture Act Rel. No. 39-2409, Investment Company Act IC- 26013, http://www.sec.gov/rules/
final/33-8255.htm (Jul. 22, 2003)
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• SEC Final Rule: Management’s Reports on Internal Control Over Financial Reporting and Certification of Disclosure in Exchange Act Periodic Reports, Securities Act Rel. No. 33-8238, Exchange Act
Rel. No. 34-47986, Investment Company Act Rel. No. IC-26068, http://www.sec.gov/rules/final/338238.htm (Jun. 5, 2003).
• Alston & Bird LLP Securities Law Advisory, “SEC Adopts Final Rules Regarding Reports on Internal
Controls and Filing Requirements for Section 302 and 906 Certifications,” http://www.alston.com/
articles/Final%20Rules%20Section%20302%20and%20906.pdf (Jun. 12, 2003).
For more information, contact your Alston & Bird LLP attorney or one of the attorneys in the firm’s
Securities Group.
Details and analyses of past SEC, NYSE and Nasdaq action implementing the Sarbanes-Oxley Act and other corporate governance
efforts are available at A&B’s Sarbanes-Oxley and Corporate Governance Resource Center. For these and other related securities
advisories, click here.
If you or a colleague would like to receive future Securities Law Advisories and Special Alerts electronically, please forward your contact
information, including your e-mail address, to securities.advisory@alston.com. Be sure to put “subscribe” in the subject line.
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Exhibit 31.______
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(marked version to show modifications permissible until compliance with Section 404 rules is required)
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SAMPLE SECTION 302 CERTIFICATION
CERTIFICATIONS
I, [identify the certifying individual], certify that:
1. I have reviewed this [specify report] of [identify registrant];
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present
in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the
periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting
(as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed
under our supervision, to ensure that material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly during the period in which this
report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with generally accepted
accounting principles;
(cb) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation; and
(dc) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred
during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual
report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control
over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control
over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or
persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize
and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role
in the registrant’s internal control over financial reporting.
Date:
[Signature]
[Title]
A signed original of this written statement required by Section 302 of the Sarbanes-Oxley Act of 2002 has been provided
to [identify registrant] and will be retained by [identify registrant] and furnished to the Securities and Exchange Commission
or its staff upon request.
*Provide a separate certification for each principal executive officer and principal financial officer of the registrant. See
Rules 13a-14(a) and 15d-14(a).
August 4, 2003
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