Sarbanes

advertisement
Sarbanes-Oxley - 1
COMPLIANCE
& SOX
Sarbanes-Oxley - 2
SARBANES-OXLEY ACT
At Issue
 If the governance of the modern corporation
isn’t completely broken, it is going through a
severe crisis of confidence. At risk is the very
integrity of capitalism.
 Directors who fail to direct and CEOs who fail
at moral leadership are arguably the most
important challenge facing corporate America
today.
Business Week (May 6, 2002)
Sarbanes-Oxley - 3
SARBANES-OXLEY ACT
The Solution Starts At Home
 The recent corporate collapses have involved many
breakdowns: in ethics, in trust, in common sense,
to name a few. But perhaps the most troubling
breakdown is in corporate oversight.
 Directors, senior executives, and Wall Street
analysts all failed miserably by missing – or
concealing – danger signals until it was too late.
 Regulators will no doubt have plenty to say on the
issue, but the most zealous reformers should be
the companies themselves.
Fortune (May 27, 2002)
Sarbanes-Oxley - 4
CORPORATE GOVERNANCE
STANDARDS
 1900: NYSE requires distribution of annual reports
to stockholders
 1909: NYSE requires annual stockholders’ meeting
 1926: NYSE adopts “one share, one vote” standard
 1929: Stock market crash
 1932: Increased financial disclosure and
independent audits become mandatory
 1934: SEC is formed
 1955: Shareholder approval required for certain
corporate acquisitions
Sarbanes-Oxley - 5
CORPORATE GOVERNANCE
STANDARDS
 1968: AMEX publishes first guide establishing
listing standards
 1977: NYSE requires establishment of an audit
committee comprised of independent
directors
 1985: NASDAQ initiates its first corporate
governance listing standards
 1987: Treadway Commission (COSO) established
to define responsibilities of the auditor in
detecting and preventing fraud
Sarbanes-Oxley - 6
CORPORATE GOVERNANCE
STANDARDS
 1999: NYSE/AMEX/NASD adopt new rules based
on Blue Ribbon Committee on Improving the
Effectiveness of Audit Committees
 2002: Sarbanes-Oxley Act (July 30, 2002)
Sarbanes-Oxley - 7
SARBANES-OXLEY
Major Objectives




Improve corporate governance
Reform public accounting (auditing)
Reform Wall Street practices
Attack insider trading and obstruction of
justice (document retention)
“Restore confidence in capital markets”
Sarbanes-Oxley - 8
SARBANES-OXLEY ACT
Major Provisions
 Title I:
Public Company Accounting
Oversight Board
 Title II: Auditor Independence
 Title III: Corporate Responsibility, Disclosure,
and Governance
 Title IV: Enhanced Financial Disclosures
Sarbanes-Oxley - 9
SARBANES-OXLEY ACT
Other Provisions
 Title V
 Title VI





– Analyst Conflicts of Interest
– Commission (SEC) Resources
and Authority
Title VII – Studies and Reports
Title VIII – Corporate and Criminal
Fraud Accountability
Title IX – White-Collar Crime Penalty
Enhancements
Title X
– Corporate Tax Returns
Title XI - Corporate Fraud and Accountability
Sarbanes-Oxley - 10
PUBLIC COMPANY
ACCOUNTING OVERSIGHT BOARD
 Established by Sarbanes-Oxley
 Broad powers to regulate audits
and auditors of public companies
 Appointed by the SEC
Sarbanes-Oxley - 11
PCAOB
 Register public accounting firms
 Establish auditing standards
 Inspect registered public accounting
firms
 Conduct investigations and disciplinary
proceedings – with ability to sanction
auditors and audit firms
Sarbanes-Oxley - 12
AUDITOR INDEPENDENCE
 Prohibits certain “nonaudit services”
– Bookkeeping, financial systems design, appraisal or
valuation, actuarial, internal auditing outsourcing,
management or human resources, broker-dealer or
investment banking, others per PCAOB
 Audit committee must pre-approve all
auditing and non-auditing services
 Audit partner rotation
– Audit firm rotation was discussed
Sarbanes-Oxley - 13
AUDITOR INDEPENDENCE
 Audit Committee is directly responsible for
oversight of external auditors
 Auditor required to discuss
– All critical accounting policies and practices
– All alternative accounting and disclosure
treatments
– Other material written communications
 “Cooling – off” period
– CEO, CFO, Controller, etc.
Sarbanes-Oxley - 14
CORPORATE RESPONSIBILITY &
GOVERNANCE
 Audit Committee = independent directors
 Audit Committee has responsibility to appoint,
compensate, and oversee public accounting firm
performing the audit
 Audit Committee has responsibility to resolve
disagreements over financial reporting between
management and external auditors
 Audit Committee must establish “whistle-blower”
procedures
– New penalties for retaliation against them
Sarbanes-Oxley - 15
CORPORATE RESPONSIBILITY &
GOVERNANCE
 Requires executives and financial officers
(CEO & CFO) to certify financial reports are
accurate, complete and fairly presented
 Also must certify the state of internal controls
 Outlaws improperly influencing the auditor
Sarbanes-Oxley - 16
CORPORATE RESPONSIBILITY &
GOVERNANCE
 Reimbursement of bonuses and profits if
public was misled
 Removal of “substantial unfitness” standard
 Prohibits trading during a pension “blackout”
period
 Minimum standards for attorneys
– Both in-house and outside counsel
 Any reimbursed funds from guilty parties be
added to a fund for the benefit of victims
Sarbanes-Oxley - 17
ENHANCED FINANCIAL
DISCLOSURES
 Off-balance sheet arrangements and obligations
 Prohibits loans to executives and directors
 Insider trades within two business days
 Adoption of code of ethics for senior financial officers
and requirements
 Whether at least one member of the audit committee is
an “Audit Committee Financial Expert”
Sarbanes-Oxley - 18
ENHANCED FINANCIAL
DISCLOSURES
 Reconciliation of non GAAP revenue to most
directly comparable GAAP measure
 Requires management to establish and maintain
adequate internal controls and report annually
on:
– Management’s responsibility for such
– Effectiveness of such internal controls
 Assessment of internal controls by management
is to be subject of an attestation report by the
external auditor
Sarbanes-Oxley - 19
PRIVATE COMPANIES
Who Should Adopt SOX
 May soon go public
 Contemplating a combination with a
public company
 Large Not-for-profit entities
– Audit committees becoming common
 Significant absentee owners
 Creditors may require SOX
Sarbanes-Oxley - 20
PRIVATE COMPANIES
What parts of SOX?
 More than internal controls
 Independent audit committees
– “Financial expert”
– Compensation & funding of committee
– Approval of nonaudit services
 Certification of financial statements
 Codes of ethics
 Whistle-blower procedures and
protections
Sarbanes-Oxley - 21
CORPORATE AMERICA
After SOX
 Must have autonomous & vigorous audit committees
– “Take charge”
 Financial information is inherently judgmental
–
–
–
–
–
–
Financial statements are NOT precise
Users must appreciate this fact
FMV reporting will increase volatility
Non-financial disclosures will become more important
Auditors’ opinions on overall “fairness” of statements
Financial reporting should be as clear and concise as
possible
Committee for Economic Development
March 28, 2006
Sarbanes-Oxley - 22
CORPORATE AMERICA
After SOX
Give SOX (esp. 404) a chance to work
– PCAOB has issued new guidelines
– Learning curve effects
 Excessive executive compensation can be
tamed by Compensation Committees
 Directors must be selected and appraised by
independent nominating committees
– Issue of Non-Executive Chair
– Direct nomination by shareholders
Committee for Economic Development
March 28, 2006
Download