The Practical Corporate & Securities Law Blog

By Broc Romanek

Go to TheCorporateCounsel.net

 
Because Edgar is not yet configured to handle the new 8-K items, the SEC issued a statement providing interim guidance regarding how to file new Item 11 (regarding notice of a pension fund blackout period) - and new Item 12 (regarding earnings releases).

For "would-be" Item 11 filings, companies should continue to disclose the information under Item 5 (Other Information) of Form 10-Q or 10-QSB in the first quarterly report filed by the company after commencement of the blackout period.

For "would-be" Item 12 filings, companies should furnish the information under Item 9 (Regulation FD Disclosure) of Form 8-K. A company must furnish the information within 5 business days after the occurrence of an event specified in Item 12. Information provided under Item 12 also may be required to be provided under the requirements of Regulation FD; in this case, any earlier deadline for Item 9 under Regulation FD would apply.

This interim guidance will remain in effect until the SEC announces otherwise. The SEC's statement is at http://www.sec.gov/rules/final/33-8216.htm.
posted by broc at 6:01 PM

 
Regarding CEO/CFO certifications for asset-backed issuers, the SEC staff now intends to issue no-action responses in the very near future - and will allow issuers with similar asset classes to rely on these letters (rather than require each issuer to seek relief). Asset-backed issuers with novel asset classes (i.e. not previously addressed in these upcoming staff responses) will have to seek their own no-action letters.

As for modified reporting relief, asset-backed issuers may rely on previously issued no-action letters just as they always have for years.

In the wake of Sandy Weill (whose firm was recently fined $300 million in the analyst research case) recently taking himself out of the running to serve on the NYSE board, SEC Chair Donaldson has given the exchanges until mid-May to propose reforms to their own corporate governance structures. See the Washington Post article at http://www.washingtonpost.com/wp-dyn/articles/A34428-2003Mar26.html.



posted by broc at 8:58 AM

 
On April 1, the SEC is holding an open meeting to adopt the audit committee of exchange-listed companies rules. This comes a day after the PCAOB holds a roundtable at the SEC's HQ in Washington to discuss registration of foreign audit firms (and for which the SEC issued a press release making a big deal of the fact that the SEC Commissioners would also attend the roundtable).

The SEC's test website for Section 16 filings is up and running - don't get confused if you play around on the site and it issues warnings that you are about to make a "live" filing. It really doesn't mean it. The test site is at https://www.onlineforms.edgarfiling.sec.gov/.

For TheCorporateCounsel.net subscribers, we have posted an interview with Ken Winer on SEC enforcement and 3rd party liability at http://www.thecorporatecounsel.net/member/InsideTrack/03_25_03_Winer.htm.

We have also posted sample disclosure committee charters and D&O questionnaires under "Special Features" on the home page - as well as a more recent edition of the SEC Telephone Directory (Sept. 2002 version) at http://www.thecorporatecounsel.net/member/SEC/SEC2002PhoneBook.pdf.
posted by broc at 7:20 AM

 
In his second speech, SEC Chair Donaldson talked about corporate governance and going slow in mandating specific governance structures - but also railed about excessive executive compensation - see http://www.sec.gov/news/speech/spch032403whd.htm.

We have posted the April issue of E-Minders at http://www.thecorporatecounsel.net/E-minders/. In addition, we have announced two timely webcast programs - one on April 8th for Section16.net subscribers on "Comparing the Section 16 Filers - What You Need to Know Now." This features key SEC staffers discussing the new test site - and nine service providers explaining how their products add value to what the SEC's site will do. See http://www.section16.net/webcast0403/.

The other program is for TheCorporateCounsel.net subscribers - "Regulation G Unplugged" - on April 30th. See http://www.greatgovernance.com/programs.html#current.
posted by broc at 7:52 AM

 
Late Friday, the SEC proposed amendments that would require certifications provided under Sections 302 and 906 of Sarbanes-Oxley be included as exhibits to the reports to which they relate. The purpose of the proposal is to make it easier for investors and regulators to locate the certifications.

The current rules require 302 certifications to be included at the end of the report immediately following the signature block. Companies have more flexibility for their 906 certifications, using one of the following methods: including them after the signature block, filing them as exhibits to the related reports or submitting them as paper or electronic correspondence, or “furnishing” them under Item 9 of Form 8-K.

As proposed, the 302 certification exhibits would be considered "filed" – but the 906 exhibits would merely be considered "furnished" (and thus not subject to Section 18 liability and not incorporated in registration statements unless the company took steps to include the certification in a registration statement). Both the new 302 and the 906 certification exhibits would be subject to Rule 302 of Regulation S-T - so companies would be required to retain originals of manually signed certifications.

Until the proposals become final, as interim guidance, the SEC is encouraging companies to submit the 906 certifications as exhibits to the periodic reports to which they relate. The guidance states how this should be handled in electronic filings, including a specific legend that should be inserted with the certification -and asking that companies retain a manual signature page or other authenticating document for each certification. A 906 certification submitted in the manner specified in the interim guidance will be treated as "accompanying" the periodic report to which it relates rather than being "filed."

The comment period is 45 days. The proposing release and interim guidance is at http://www.sec.gov/rules/proposed/33-8212.htm.

For TheCorporateCounsel.net subscribers, we have posted an interview with David Lynn on this new certification proposal at http://www.thecorporatecounsel.net/member/InsideTrack/03_24_03_Lynn.htm.


posted by broc at 10:32 AM