Statement by the Staff of the Securities and Exchange Commission Regarding the Order Requiring the Filing of Sworn Statements Pursuant to Section 21(a)(1) of the Securities Exchange Act of 1934 No. 4-460.
On June 27, 2002, the Commission issued an Order requiring the filing of sworn statements pursuant to Section 21(a)(1) of the Securities Exchange Act of 1934. The Order requires the principal financial officer and the principal executive officer of the Companies to:
(a) file a written statement, under oath, that is in the form of Exhibit A to the Order, including a statement declaring whether or not the contents of that statement have been reviewed with the company's audit committee, or
(b) file a written statement, under oath, describing the facts and circumstances that would make such a statement incorrect and declaring whether or not the contents of that statement have been reviewed with the company's audit committee.
Under this Order, the officers must personally attest that the Companies' most recent periodic reports are materially truthful and complete or explain why such a statement would not be correct.
Public comment confirms the high degree of interest that has developed in the contents of the written statements required under the Order. In light of the interest in the statements under oath, they are nearly certain to be material information regarding the Companies. Therefore, until publicly disclosed, the statements should be handled in the same manner as all other material non-public information of the Companies. In addition, in light of the almost certain materiality of the information and the Companies' need to avoid possible misuse of such information, we believe that the best course of action would be for the Companies, in addition to filing the sworn statements under the Order, to file an Item 9 or Item 5 Current Report on Form 8-K when the statements are completed and signed, disclosing the filing of the statements and attaching the statements as exhibits to the Form 8-K, to post the statements on their Web sites and to take whatever additional steps that they otherwise consider appropriate to ensure broad dissemination of the statements. Similar consideration would apply to any material qualifying or modifying the sworn written statements. For Companies whose officers have already filed their statement, we suggest they file a Form 8-K (and Web site posting) within the next few days.
July 29, 2002