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When President Bush signed into law the Sarbanes-Oxley Act of 2002, he made effective immediately a requirement set forth in � 906 of the act that each periodic report containing financial statements that is filed with the SEC be accompanied by a written certification by the CEO and CFO. The � 906 certification must state that (1) the periodic report fully complies with the requirements of �� 13(a) or 15(d) of the Securities Exchange Act and (2) the information contained in the report fairly presents, in all material respects, the financial condition and results of operations of the company. This requirement applies to all Form 10-Ks and Form 10-Qs filed by any public company. For most public companies the first application of these rules will relate to their second quarter 10-Q filing due to be filed by August 14, 2002. Additional, more comprehensive certification requirements will come into effect shortly under � 302 of the act after the required rules are promulgated. The SEC must promulgate such rules within 30 days. Section 302 certifications will apply to all public companies and will require the CEO and CFO to certify that: � The signing officer has reviewed the report in question; � Based on such officer’s knowledge, the report does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which such statements where made, not misleading; � Based on such officer’s knowledge, the financial statements, and other financial information included in the report, fairly present in all material respects the financial condition and results of operation of the issuer as of, and for, the periods presented in the report; � The signing officers are responsible for establishing and maintaining internal controls, have designed such internal controls to ensure that material information relating to the issuer and its consolidated subsidiaries is made known to such officers by others within such entities, have evaluated the effectiveness of the controls as of a date within 90 days prior to the report and have presented in the report their conclusions about the effectiveness of the controls based on their evaluation as of such date; � The signing officers have disclosed to the issuer’s auditors and the audit committee all significant deficiencies in the design or operation of internal controls which could adversely affect the issuer’s ability to record, process, summarize and report financial data and have identified for the auditors any material weaknesses in internal controls and any fraud, whether or not material, that involves management or other employees who have a significant role in the issuer’s internal controls; and � The signing officers have indicated in the report whether or not there were any significant changes in internal controls or other factors that could significantly affect internal controls subsequent to the date of their evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses. There continues to be some confusion as to how � 906 was intended to interact with � 302. Further clarity on this issue may be forthcoming in the days ahead. As companies and their senior officers grapple with the certification requirements set forth in �� 906 and 302 of the act, useful learning can be gathered from the experience of the 947 largest U.S. corporations which are in the midst of preparing certifications for their 2001 Form 10-Ks and subsequent Form 10-Q and selected other filings pursuant to the SEC’s recent order. While the language in each of the separate certification requirements is somewhat different, the substance of the underlying requirements is largely the same — namely, that the officer in question exercise sufficient due care to confirm to his or her satisfaction that the filings in question comply with the requirements of the federal securities laws and present a fair and accurate financial picture of the company. And, while there is legitimate concern over the strengthened liabilities and penalties applicable to corporate officers under Sarbanes-Oxley, including the enhanced focus on criminal penalties, existing securities laws — as well as other federal and state anti-fraud and banking statutes — have long created the possibility of criminal liability. For example, � 32(a) of the Exchange Act imposes criminal penalties for willful violations of the Exchange Act and SEC regulations thereunder, as well as for willfully and knowingly making, or causing to be made, statements in reports that are false or misleading with respect to any material fact; and the federal criminal code prohibits making false entries in the books or reports of a bank or bank holding company with the intent to injure, defraud or deceive. Edward D. Herlihy, Craig M. Wasserman, and Lawrence S. Makow are partners in the New York office of Wachtell, Lipton, Rosen & Katz ( www.wachtell.com).

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