M&A in the World of Sarbanes-Oxley John D. Capers, Jr. Jessica L. Dhuyvetter Tuesday, September 21, 2004 12:30 1:30 p.m. EDT If you have not downloaded the program materials, please do so now at www.kslaw.com/e-learn/handout
To connect to the audio part of the program please call: 1-888-291-5971 A customer service representative will connect you to the seminar. For technical assistance at any time during the presentation, please call: 1-888-865-7469 Speaker Biographies John D. Capers, Jr. jcapers@kslaw.com 404.572.4658 Jack Capers is a partner with King & Spalding s Mergers & Acquisitions Practice Group. Mr. Capers has experience in a wide variety or merger and acquisition transactions, including domestic and international mergers, acquisitions, tender offers, exchange offers, spin-offs and divestitures, joint ventures, strategic alliances, strategic investments and leveraged buy-outs. In addition, Mr. Capers has advised boards of directors, board committees and investment banking firms on matters relating to corporate governance issues, M&A transactions and takeover defenses. His M&A clients include UPS, Sprint, UCB, Internet Security Systems, Kimberly-Clark Corporation and Concurrent Computer Systems. Mr. Capers currently serves as leader of the firm s Mergers & Acquisitions Practice Group. Mr. Capers was named one of The Best Lawyers in America 2003-2004, one of America s Leading Lawyers 2003-2004 by Chambers USA, and one of Georgia s Super Lawyers 2003-2004 by Atlanta Business Magazine. Mr. Capers graduated from Vanderbilt University with high honors in 1975. He received his law degree from the University of Georgia School of Law in 1978, where he served as Articles Editor of the Georgia Law Review in 1977-78. He graduated from Georgia with highest honors and was a member of the Order of Coif.
Speaker Biographies Jessica Dhuyvetter is an associate with King & Spalding s Mergers & Acquisitions Practice Group. Miss Dhuyvetter s practice focuses on the representation of both public and private companies in a variety of mergers & acquisitions and general corporate matters. She has represented several Fortune 500 companies in various types of acquisitions and transactions, including General Electric Company, Home Depot, The Coca-Cola Company, Sprint and UPS. Jessica L. Dhuyvetter jdhuyvetter@kslaw.com 404.572.2733 Miss Dhuyvetter received a Bachelor of Arts degree, summa cum laude, from Wake Forest University in 1998. She received a Doctor of Jurisprudence from Harvard Law School in 2001. Miss Dhuyvetter is a member of the State Bar of Georgia, the Atlanta Bar Association and the American Bar Association. M&A in the World of Sarbanes-Oxley John D. Capers, Jr. Jessica L. Dhuyvetter Tuesday, September 21, 2004 12:30 1:30 p.m. EDT 1
New Regulations Sarbanes-Oxley NYSE, NASDAQ SEC 2 Focus on Regulation Quality of disclosure Focus on accounting principles and auditing standards Enhanced Audit Committee responsibilities Director independence Auditor independence Effectiveness of regulatory oversight system Expansion of resources available to SEC 3
When Do These Regulations Impact Mergers & Acquisitions? Transaction between two public companies Acquisition of private company Acquisition of non-u.s. company 4 How Do These Regulations Impact Mergers & Acquisitions? Due Diligence Purchase Agreement Post-Closing Integration Disclosure 5
Due Diligence Disclosure Controls Internal Controls Enhanced Audit Committee Responsibilities Auditor Independence Off-Balance Sheet Arrangements Loans to Executives and Directors Director Independence Culture of the Target 6 Disclosure Controls SOX Section 302 requires that reporting companies maintain disclosure controls and procedures to ensure timely processing and reporting of information and efficient communication of information to management. 7
Disclosure Controls SOX Section 302 Certification (Forms 10-Q and 10-K) CEO/CFO must certify that: To their knowledge, there is no untrue statement of material fact or omission of material fact in the report The financial statements and other financial information in the report fairly present in all material respects the financial condition and results of operation of the company for the periods presented They have evaluated the effectiveness of the company's disclosure controls and presented in this report their conclusions about the effectiveness of the disclosure controls 8 Disclosure Controls SOX Section 906 Certification (Any periodic report containing financial statements) CEO/CFO must certify that: Report fully complies with the Exchange Act Information fairly presents in all material respects, the financial condition and results of operations of the company 9
Disclosure Controls Diligence Questions: Determine whether a private company target has any disclosure controls or procedures that capture the type of information that will be required to be disclosed under the Exchange Act post-closing Examine how the disclosure controls work, how formal they are and whether they are subject to review Review all disclosures in SEC reports concerning disclosure controls and related Section 302 and 906 certifications 10 Disclosure Controls Ask whether the CEO or CFO obtain sub-certifications from employees prior to making their Section 302 and 906 certifications and whether any employee has refused to give such sub-certifications Review the target s process for evaluating the effectiveness of disclosure controls Evaluate all changes in the target s disclosure controls Determine whether the target has a disclosure committee and review minutes of the disclosure committee 11
Internal Controls SOX Section 404 requires that reporting companies maintain internal control over financial reporting to provide reasonable assurance regarding reliability of financial reporting and preparation of financial statements. 12 Internal Controls SOX Section 404 requires that management evaluate annually the effectiveness of the company s internal control over financial reporting and that the company include in its annual report for each fiscal year ending after November 15, 2004 (or ending after July 15, 2005 for each public company that does not qualify as an accelerated filer ) an internal control report. 13
Internal Control Report The report must contain: Management's assessment of the effectiveness of the company's internal controls as of the end of the company's most recent fiscal year, including a statement as to whether or not the company's internal controls are effective. The assessment must include disclosure of any "material weaknesses" in the company's internal controls. Management is not permitted to conclude that the company's internal controls are effective if there is any material weakness in the company's internal controls. A statement that the company s independent auditor has issued an attestation report on management's assessment of the company s internal controls. 14 Internal Controls In adopting the rules related to SOX Section 404, the SEC amended the Section 302 certifications to require that the CEO and CFO certify in each Form 10-Q and 10-K: CEO/CFO have disclosed to the company s independent auditors and to the Audit Committee of the Board of Directors: All significant deficiencies and material weaknesses in the company s internal controls. Any fraud, whether or not material, that involves management or other employee who has a significant role in the company s internal controls. 15
Internal Controls The company has disclosed in the report any change in the company s internal controls during the reporting period that has materially affected, or is reasonably likely to materially affect, the company s internal control over financial reporting. 16 Internal Controls Diligence Questions: Review all disclosures in SEC reports regarding internal controls Review SOX Section 404 evaluation process Determine the extent to which significant internal controls are documented and tested Review all reported significant deficiencies and material weaknesses and corrective actions 17
Internal Controls Evaluate all changes to internal controls that have materially affected internal controls Examine the Audit Committee and Board minutes to ascertain whether any significant deficiencies, material weaknesses or fraud with respect to internal controls have been disclosed or discussed Interview target s independent auditor regarding its attestation statements and findings on internal controls 18 Enhanced Audit Committee Responsibilities SOX imposes new responsibilities on the Audit Committee for preparation of reporting company s financial statements, managing the company s independent auditor, ensuring that systems are in place regarding internal controls and compliance with law. 19
Enhanced Audit Committee Responsibilities Diligence Questions: Review the Audit Committee membership, processes and procedures and evaluate effectiveness of the Audit Committee Review Audit Committee minutes Review reports to the Audit Committee from management and from independent auditors on company s key business and financial risks, key accounting policies and practices, and policies to ensure compliance with law Review any reports to the Audit Committee from management and from independent auditors of significant deficiencies, material weaknesses or fraud Review records on whistleblower system and complaints made and resolved Review any reports by lawyers of material violations of securities laws 20 Auditor Independence SOX Section 301 provides that registered public accounting firms are prohibited from performing specified non-audit services and prior audit committee approval is required for the performance of all nonaudit services that are not prohibited. 21
Auditor Independence Diligence Questions: Confirm absence of prohibited non-audit services Review permissible non-audit services performed for the target and detect any future integration problems (e.g., your external auditors performing ongoing non-audit services for the target) Determine if there have been any recent changes in independent auditors or accounting policies Confirm that there are no relationships between target and acquiring company s independent auditor that could affect auditor s independence 22 Off-Balance Sheet Arrangements SOX Section 401(a) requires more transparent disclosure in the area of off-balance sheet arrangements. Such arrangements must be disclosed in MD&A in annual and quarterly reports, as well as in registration and proxy statements. Diligence Questions: Develop full understanding of any off-balance sheet arrangements and obligations Understand the relationship of each special purpose entity to the target, its subsidiaries and its officers and directors Be aware of additional disclosure obligations that may be required post-closing, even for relatively small off-balance sheet items 23
Loans to Executives and Directors SOX Section 402 prohibits most direct and indirect loans from reporting companies to directors and executive officers. Diligence Questions: Check for possible violations in all employment agreements and incentive plans Pay close attention to the treatment of cashless exercise, relocation, employee compensation loans and company credit cards Use caution when negotiating to forgive loans or extend repayment provisions as part of a transaction, even where borrower will not be an executive officer or director post-closing 24 Director Independence NYSE/NASDAQ listing standards require that a majority of the Board of Directors of a reporting company be independent Diligence Questions: Examine the relationship between officers and directors of the target and the acquiring company to identify any conflicts Confirm that no director of the acquiring company has a relationship with the target that could affect the director s independence 25
Culture of the Target The overarching goal that should permeate the due diligence process is gaining an understanding of the culture of the target and its officers and directors. Any disclosure, reporting or accounting problem of the target becomes your problem on day one and may lead to a restatement of your post-acquisition financial statements. 26 Purchase Agreement Protections Representations and Warranties Covenants Closing Conditions Indemnities 27
Purchase Agreement Protections: Representations and Warranties Financial Statements Disclosure Controls Internal Controls SEC Reports Certifications Loans to Directors and Officers Legal Proceedings and Compliance with Laws 28 Purchase Agreement Protections: Covenants Access to Information Target must provide acquiring company access to the people and documentation it needs to become comfortable with respect to these diligence items Certifications Target must deliver certifications and supporting materials Notice Target must give prompt notice of a violation of SOX Compliance Target must comply with SOX and stock exchange listing requirements 29
Purchase Agreement Protections: Closing Conditions All CEO/CFO certifications made without qualification No material weakness in internal controls Independent auditor gives attestation on effectiveness of internal controls No material violation of SOX 30 Purchase Agreement Protections: Indemnities Indemnify acquiring company for breach of any SOX or financial representation, warranty or covenant Indemnify acquiring company for specific SOX problem known at closing 31
Post-Closing Integration Set a timetable for completion of post-closing integration as early as possible and consider integration issues with respect to internal controls and disclosure controls when conducting diligence Keep your own Audit Committee apprised of your diligence process and any material SOX issues you find, including issues related to disclosure and internal controls Include members of post-closing integration team on the diligence team Make target personnel part of the combined integration team 32 New Disclosure Requirements Related to M&A Transactions SOX mandated rapid and current disclosure New Form 8-K rules became effective August 23, 2004 New Form 8-K filing events and shortened filing deadlines (most filings within four business days) New potential filing events for M&A transactions: the signing of a definitive agreement (file a copy of the definitive agreement with the 8-K) an amendment or termination of a definitive agreement the acquisition of "significant" assets the assumption by the company of a material direct financial obligation or off-balance sheet financing the sale of unregistered securities a change in control of a company the retirement, resignation or termination of a principal officer or director 33