August 17, 2009

Corp Fin Updates a Hodgepodge of C&DIs

On Friday, Corp Fin posted a number of new or revised C&DIs across a number of topic areas, including Securities Act Sections, Rules and Forms, Regulation S-K, Exchange Act Sections and Section 16. A summary of interpretations that are new or revised is provided on the "What's New" page posted last Friday, and now each interpretation indicates "NEW" or "REVISED" along with the date in the bracketed notation at the end. For the purposes of determining the changes made in the revised C&DIs (as well as the C&DIs that have been withdrawn), you can review the "Outdated or Superceded Compliance and Disclosure Interpretations" page included in the "Archives" section.

A few of the notable Securities Act interpretations are as follows:

  • Securities Act Forms Question 118.02/Securities Act Rules Question 212.05: These interpretations were revised to clarify that an unqualified Exhibit 5 legality opinion must be filed no later than the closing date of an offering that is conducted as a takedown off of a shelf. The interpretations had previously indicated that time for filing the opinion was prior to any sales or contracts of sale, causing concern that the opinions would be required to be filed too early in the offering process. The change to the interpretation came about as a result of some dialogue between the Staff and the Securities Law Opinions Subcommittee of the Federal Regulation of Securities Committee at the ABA meeting in Chicago earlier this month.
  • Securities Act Sections Question 139.27: This new interpretation indicates that securities from a second private placement may be added by pre-effective amendment to a pending resale registration, so long as that private placement was commenced and completed consistent with the guidance in Release No. 33-8828 (Aug. 10, 2007).
  • Securities Act Sections Question 139.28: This new interpretation provides the Staff's views on offers and sales of securities while a post-effective amendment to a registration statement is pending.
  • Securities Act Forms Question 116.20: This new interpretation gives some timely guidance for rights offerings, including the fact that General Instruction I.B.4. is not available (for either a new registration statement or for a takedown off of an existing S-3) for the securities underlying rights in a rights offering, given that the rights are not outstanding at the time of the filing of the registration statement (or conducting a takedown).

On the executive compensation disclosure front, the Staff provides guidance in Regulation S-K Question 117.03 on the reporting of compensation that as been recovered under a clawback policy, as well as reporting in the Non-Qualified Deferred Compensation Table of vested equity awards that provide for deferral of the receipt of such awards (see Regulation S-K Question 125.05).

Look for more discussion and analysis of the latest Compliance and Disclosure Interpretations in the upcoming issue of The Corporate Counsel.

The New Regulation FD C&DIs

The Staff has also made some more progress migrating the old Telephone Interpretations over to the Compliance and Disclosure Intepretation format, posting Regulation FD C&DIs for the first time on Friday. For the most part, these interpretations are the same as the Regulation FD interpretations from the Fourth Supplement to the Manual of Publicly Available Telephone Interpretations. Here is how the new C&DIs relate to the old telephone interpretations:

  • C&DI Question 101.01 - same as Interpretation 1 (note that this interpretation provides an explanation of what it means to confirm a prior forecast and how to avoid confirming a prior forecast)
  • C&DI Question 101.02 - same as Interpretation 2
  • C&DI Question 101.03 - same as Interpretation 7
  • C&DI Question 101.04 - same as Interpretation 9
  • C&DI Question 101.05 - same as Interpretation 10
  • C&DI Question 101.06 - same as Interpretation 11
  • C&DI Question 101.07 - same as Interpretation 12
  • C&DI Question 101.08 - same as Interpretation 15
  • C&DI Question 101.09 - same as Interpretation 13
  • C&DI Question 101.10 - same as Interpretation 14
  • C&DI Question 102.01 - same as Interpretation 3
  • C&DI Question 102.02 - same as Interpretation 5
  • C&DI Question 102.03 - same as Interpretation 6
  • C&DI Question 102.04 - revised Interpretation 8 (changes were not substantive)
  • C&DI Question 102.05 - revised Interpretation 4 (providing additional justification and adding concepts of webcast or broadcast)
  • C&DI Question 102.06 - revised Interpretation 16 (changed the answer to a categorical "no" without providing any additional explanation)

In updating the Regulation FD guidance, the Staff did not reissue Interpretation 17, which had reiterated the SEC's position that it did not intend, with the adoption of Regulation FD, to change the practice of using a press release to disseminate earnings information in advance of a conference call or webcast. It would seem that the interpretation is no longer necessary, given that the earnings release model has continued largely unchanged for almost a decade following adoption of Regulation FD.

SEC Approves PCAOB Rules Requiring Registered Firm Reporting

On Friday, the PCAOB announced that the SEC had approved the Board's rules governing the reporting regime that will be applicable to registered accounting firms. These rules implement Section 102(d) of the Sarbanes-Oxley Act, which required each registered public accounting firm to submit an annual report to the PCAOB, along with more current information as may be deemed necessary. The changes also included rules governing succession to the registration status of a firm. The rules will take effect on October 12, 2009.

- Dave Lynn