TheCorporateCounsel.net

Late Friday, the SEC proposed amendments that would require certifications provided under Sections 302 and 906 of Sarbanes-Oxley be included as exhibits to the reports to which they relate. The purpose of the proposal is to make it easier for investors and regulators to locate the certifications.

The current rules require 302 certifications to be included at the end of the report immediately following the signature block. Companies have more flexibility for their 906 certifications, using one of the following methods: including them after the signature block, filing them as exhibits to the related reports or submitting them as paper or electronic correspondence, or “furnishing” them under Item 9 of Form 8-K.

As proposed, the 302 certification exhibits would be considered “filed” – but the 906 exhibits would merely be considered “furnished” (and thus not subject to Section 18 liability and not incorporated in registration statements unless the company took steps to include the certification in a registration statement). Both the new 302 and the 906 certification exhibits would be subject to Rule 302 of Regulation S-T – so companies would be required to retain originals of manually signed certifications.

Until the proposals become final, as interim guidance, the SEC is encouraging companies to submit the 906 certifications as exhibits to the periodic reports to which they relate. The guidance states how this should be handled in electronic filings, including a specific legend that should be inserted with the certification -and asking that companies retain a manual signature page or other authenticating document for each certification. A 906 certification submitted in the manner specified in the interim guidance will be treated as “accompanying” the periodic report to which it relates rather than being “filed.”

The comment period is 45 days. The proposing release and interim guidance is at http://www.sec.gov/rules/proposed/33-8212.htm.

For TheCorporateCounsel.net subscribers, we have posted an interview with David Lynn on this new certification proposal at http://www.thecorporatecounsel.net/member/InsideTrack/03_24_03_Lynn.htm.