TheCorporateCounsel.net Blog |
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Friday, April 11, 2003
The NYSE has posted amendments to its corporate governance listing standards dated April 4th at http://www.nyse.com/pdfs/amend1-04-09-03.pdf. Coming on the heels of recent amendments proposed in March regarding director independence, this set of amendments reflect the audit committee requirements of Section 301 of Sarbanes-Oxley and also clarifies certain disclosure obligations. It also revises the effective dates of some standards and discusses the applicability of specific corporate governance listing standards to foreign private issuers. Yesterday, the SEC posted the adopting release on audit committee requirements/prohibitions at http://www.sec.gov/rules/final/33-8220.htm. The SEC also posted a technical corrections release regarding acceleration of periodic report deadlines at http://www.sec.gov/rules/final/33-8128a.htm. Next week, I will be on vacation (Spring Break 2003!) and Alan Dye will be your blogger. Alan has been feverishly wrapping up a new 6th edition of the Romeo & Dye Forms and Filings Handbook - updated for all the Section 16 rulemaking that has taken place these past few months. Thursday, April 10, 2003
Over 50 companies have already filed 8-Ks under Item 12 (but technically under Item 9 per the SEC as Edgar is not ready for Item 12s) to provide their earnings releases or to submit investor presentations that contain non-gaap measures. For TheCorporateCounsel.net subscribers, we have created a Regulation G/Earnings Release Portal which includes links to dozens of these filings - and we will continue to update the portal daily with new ones. See http://www.thecorporatecounsel.net/member/FAQ/RegulationG/index.htm. We have also posted an interview with Mike Halloran and Elisa Lowy of Pillsbury Winthrop on splitting the Chair and CEO - see http://www.thecorporatecounsel.net/member/InsideTrack/04_08_03_Halloran.htm. The SEC is about a week behind in posting comment letters on the controversial "noisy withdrawal" reproposal for which the deadline passed on Monday - many comment letters have been filed including one signed by 77 law firms. Wednesday, April 09, 2003
On the Section16.net's "Comparing the Section 16 Filers" webcast yesterday, the SEC staff indicated that its web-based system will go live on either April 24th or 25th. This means that filers then will be able to make Section 16 filings only by either using the SEC's website, using a service provider that has brought its product up to speed or by filing on paper (ie - there won't be parallel systems - so filing by "normal" Edgar won't work). The webcast is archived on Section16.net and a transcript will be available early next week. The SEC staff also explained how their website will have limitations (e.g. there is no "save" feature - so you can't input some data and turn to something else for a significant amount of time before filing. You must basically input data and file all in one session). For those seeking a filer, we recommend that you try the Romeo & Dye Section 16 Filer. It can be used free by anyone - including law firms - until September 30th (and then its only $195 for Section16.net subscribers thru the end of 2004). It is simple and practical, with a new recordkeeping functionality (and compliant with the SEC's new system). You can download and try the Romeo & Dye Filer at http://www.section16.net/Filer/index.htm. Senator Levin has tacked an amendment on a bill - which is likely to pass - which would give fining authority to the SEC without having to go to court. The SEC unsuccessfully tried to get this authority in the Sarbanes-Oxley Act. See the related Washington Post article at http://www.washingtonpost.com/wp-dyn/articles/A59981-2003Apr8.html. Tuesday, April 08, 2003
In the absence of DOL or SEC guidance, the debate rages - with differing opinions from different lawyers - about whether a 906 certificate is required for 11-Ks. Not that it is necessarily persuasive, but the 11-Ks filed so far don't appear to contain certificates (although they could have been submitted supplementally as the SEC's directive to file them as exhibits just came recently). The ABA Task Force on Corporate Responsibility (chaired by James Cheek) issued its Final Report on March 31st. It is not yet available on the ABA's website. For Section16.net subscribers, today is the "Comparing the Section 16 Filers" programs - featuring key SEC staffers to describe the SEC's new filing system - and 12 service providers to explain how they can add value. See more at http://www.section16.net/webcast0403/. Monday, April 07, 2003
On Friday, the Delaware Supreme Court - in a rare 3-2 decision - finally issued its opinion in the Omnicare vs. NCS Healthcare case. Although the dissenters (including Chief Judge Norman Veasey) argue that the holding should apply only to the case's facts, the M&A bar has been shaken because the case loosely stands for the proposition that lock-ups with majority shareholders can't be absolute (e.g. not combined with fiduciary outs, etc.). For TheCorporateCounsel.net subscribers, we have posted the Omnicare opinion at http://www.thecorporatecounsel.net/member/MA/04_07_03_Omnicare.pdf. |
