The Practical Corporate & Securities Law Blog

By Broc Romanek

Go to TheCorporateCounsel.net

 
In what has to be one of the most highly anticipated set of interpretations of all time, the SEC staff has finally posted its Reg G FAQs - 33 of them at http://www.sec.gov/divisions/corpfin/faqs/nongaapfaq.htm.
posted by broc at 2:00 PM

 
Apria Healthcare has filed its definitive proxy with its policy regarding shareholder access as an appendix - interestingly, the only discussion of the policy in the proxy statement is under the Nominating Committee heading. The policy is at http://www.sec.gov/Archives/edgar/data/882289/000089256903001480/a90655ddef14a.htm#059.

For TheCorporateCounsel.net subscribers, we have posted an interview with Marie Oh Huber of Agilent on Preparing for Internal Control Attestations at http://www.thecorporatecounsel.net/Member/InsideTrack/06_12_03_Huber.htm.

We have also posted a good memo from Debevoise & Plimpton on 11-Ks and 906 certifications at http://www.thecorporatecounsel.net/member/Memos/Debevoise/06_12_03_section302.PDF.
posted by broc at 9:11 AM

 
As the June 30 deadline for 11-Ks looms, its becoming increasingly apparent that the SEC is unlikely to give any firm guidance on whether 906 certifications are required (despite the paragraph in the internal control report adopting release issued Friday that noted that the SEC and DOJ were in discussions). As the due diligence for these certifications is likely to take a lot of time - because there is likely to be so many different third-party entities involved - companies should start figuring out what they will do to support the certification now.

The question remains - who should sign the 11-K certification. The answer likely is whoever signs the 11-K: the company's CEO and CFO - or the plan adminstrator (if that is a natural person) or whoever has the highest responsibility for the plan.

The next question is whether the certification should have the "fairly presents" language since there is no income statement involved - some companies have changed the certification to read that the fairly presents language relates to the "net assets available for benefits and changes in net assets available for benefits of the Plan." See the two 11-Ks filed by Intel this morning - one of these is at http://www.sec.gov/Archives/edgar/data/50863/000005086303000185/pr1165ex99.htm.

For Section16.net subscribers, today is a webcast program "Alan Dye on the Latest Section 16 Developments" - try a "no-risk trial" subscription (refund at any time - and for any reason) to listen at https://www.section16.net/subscribe2/new/login.asp?.
posted by broc at 8:52 AM

 
Under the leadership of board chair Ralph Whitworth (whose day job is principal of Relational Investors, one of the few groups that have used short slates in the past decade), Apria became the 1st company to voluntarily allow shareholders to nominate directors directly (last month, Hanover Compresser did it as part of a lawsuit settlement). Holders of 5% or more will be able to nominate up to 2 directors which will be placed on the ballot opposite 9 management nominees.

In the wake of the recent actions at Freddie Mac and new revelations at WorldCom (not to mention items like E&Y classifying janitorial inspection services as "audit related" at HealthSouth), it looks like it might be an uphill battle for those that wish the SEC will "go slow" to facilitate the ability of shareholders to nominate directors.

For TheCorporateCounsel.net subscribers, we have posted an interview with Jim McRitchie and Les Greenberg regarding shareholder access for retail investors at http://www.thecorporatecounsel.net/member/InsideTrack/06_10_03_McRitchie.htm.
posted by broc at 9:03 AM