The Act establishes new standards for all US public companies, putting more efforts into managing and recording company trends, audits, financial status, etc. and also harsher punishment for those undermining US authority agencies in their investigations if such cases appear. The Act itself is comprised of 11 major sections which include extra corporate board responsibilities and punishment. The Sarbanes Oxley Act is headed by the SEC, or Security and Exchange Commission to implement these new guidelines.

Issues that the Sarbanes Oxley Act address include standards for corporate Executive, requiring them to certify the accuracy of records, as well as for Audit Committees to report and document evaluations, reviews, and opinions of the company’s progress. Also, it requires specific accounting regulations and guidelines similar to those of a public accountant. The Security and Exchange Commission has established a Public company and Accounting Oversight Board for this purpose specifically.

In addition to the Sarbanes Oxley regulations is the downturn in the public capital markets, which won’t allow public companies to gain access to investment capital in public markets as easily because it is closed to most small companies. In going private, the group or individual in the company acquire the controlling equity interest of the company, meaning that a larger portion of the company belongs to those or the individual
within the company and not so much outside investors.

Going private can be done in many ways, some of which are through an open market purchase, a Regulation 14D tender offer, a cashout merger, and a leveraged buy-out among others. For instance, in a open market purchase, an outside investor may buy
a large portion of the company’s stock or even when the company itself buys a majority of its own stock. In a leveraged buy-out, investors buy the company buying out public shareholders.

The IT departments are responsible for storing a company’s business records. Highlights of the Sarbanes Oxley Act include issues dealing with the destruction, alteration, or falsification of these records. Anyone who undermines any agency of the United States authority in their investigation of a company, for example, by destroying records, will be persecuted. Another highlight entails how long a company must retain it’s financial and business records. Records must be kept for at least five years and their methods must follow the same guidelines that are set for public accountants.

In addition, the Sarbanes Oxley Act specifies which records or types of record must be kept, such as electronic and non-electronic communications, financial data, audits or reviews containing an analysis of the company’s progress, executive opinions, memoranda, and correspondences.

Under the final rules, management’s annual internal control report will have to contain: a statement of management’s responsibility for establishing and maintaining adequate internal control over financial reporting for the company; a statement identifying the framework used by management to evaluate the effectiveness of this internal control; management’s assessment of the effectiveness of this internal control as of the end of the company’s most recent fiscal year; and a statement that its auditor has issued an attestation report on management’s assessment.
Under the new rules, management must disclose any material weakness and will be unable to conclude that the company’s internal control over financial reporting is effective if there are one or more material weaknesses in such control. Furthermore, the framework on which management’s evaluation is based will have to be a suitable, recognized control framework that is established by a body or group that has followed due-process procedures, including the broad distribution of the framework for public comment.

The new rules implementing Section 404 of the Act will define the term “internal control over financial reporting” to mean a  process designed by, or under the supervision of, the registrant’s principal executive and principal financial officers, or persons performing similar functions, and effected by the registrant’s board of directors, management and other personnel, 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 and includes those policies and procedures that pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the registrant; provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and receipts and expenditures of the registrant are being made only in accordance with authorizations of management and directors of the registrant; and provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the registrant’s assets that could have a material effect on the financial statements.

The Commission also voted to adopt amendments requiring companies to perform quarterly evaluations of changes that have materially affected or are reasonably likely to materially affect the company’s internal control over financial reporting.

Compliance with the rules regarding management’s report on internal controls will be required as follows: companies, other than foreign private issuers, meeting the definition of an “accelerated filer” in Exchange Act Rule 12b-2 (generally, U.S. companies that have equity market capitalization over $75 million and have filed an annual report with the Commission) will be required to comply with the management report on internal control over financial reporting requirements for fiscal years ending on or after June 15, 2004, and all other issuers, including small business issuers and foreign private issuers, will be required to comply for their fiscal years ending on or after April 15, 2005.

Certifications
The final rules will amend the exhibit requirements for periodic reports to add the certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act to the list of required exhibits to be included in reports filed with the Commission. Under the final rules, the specific form and content of the Section 302 certification will be set forth in the applicable exhibit filing requirements for a company’s periodic reports.

The amendments will permit companies to “furnish” rather than “file” the Section 906 certifications with the Commission. Thus, the certifications will not be subject to liability under Section 18 of the Exchange Act. Moreover, the certifications will not be subject to automatic incorporation by reference into a company’s Securities Act registration statements, which are subject to liability under Section 11 of the Securities Act, unless the issuer takes steps to include the certifications in a registration statement.

The rules and form amendments concerning Section 302 and Section 906 certifications generally will become effective sixty days after their publication in the Federal Register.

Rule 3a-8
As adopted by the Commission, new Rule 3a-8 under the Investment Company Act will modernize the test that R&D companies use in determining their status under the Act.

R&D companies tend to have few tangible assets and often hold large amounts of capital in liquid instruments so that funds are readily available for research and development activities. Some R&D companies also enter into strategic alliances that may include a strategic investment, where one R&D company purchases a non-controlling securities position in another company. As a result, an R&D company may fall within the definition of investment company. The new rule will serve as a nonexclusive safe harbor from the definition of investment company in Section 3(a)(1) of the Act.

The analysis set forth in the new rule generally will focus on an R&D company’s use of its capital and other indicia of the company’s primary engagement in a non-investment business. Generally, a company will be eligible to rely on the rule’s nonexclusive safe harbor if it:

- has research and development expenses that are a substantial percentage of its total expenses for its last four fiscal quarters combined and that equal at least half of its net income derived from investments in securities for that period;

- has investment-related expenses that do not exceed five percent of its total expenses for its last four fiscal quarters combined; makes its investments to conserve capital and liquidity until it uses the funds in its primary business subject to certain exceptions; and is primarily engaged, directly or through a company or companies that it controls primarily, in a non-investment business, as evidenced by the activities of its officers, directors and employees, its public representations of policies, and its historical development.
The new rule will become effective sixty days after its publication in the Federal Register.

Read the article at: sec.gov/news/press/2003-66.htm