December 1, 2004

Today’s Securities Act Reform Webcast

I’m pretty excited to hear today’s webcast – “The Overhaul: ’33 Act Reform” – featuring SEC Staffer Amy Starr, who wrote much of the proposing release and three lawyers that I admire much from my days working with them on the Staff: Abbie Arms of Shearman & Sterling; Meredith Cross of Wilmer, Cutler, Pickering, Hale and Dorr; and our own Julie Hoffman. Spend an hour learning from the best rather than try to wade thru 350+ pages.

We continue to post law firm memos on the ’33 Act reform in Section A.17 of our “Sarbanes-Oxley Law Firm Memos” – including a 75-page gem from Sullivan & Cromwell that has some nifty charts at the back.

Updated D&O Questionnaire for NYSE Companies

In our “Sample D&O Questionnaires,” we have posted an updated D&O Questionnaire for NYSE companies in a Word file – it’s updated for the NYSE’s recent amendments to its governance listing standards.

The Nasdaq D&O Questionnaire that is posted doesn’t appear to need updating – and contributors are busy updating the Independence Questionnaires that are posted on that page.

Flushing Out the Internal Controls Delay for Certain Accelerated Filers

One interesting aspect of the SEC’s exemption order that I blogged about yesterday – which delays the internal controls deadline by 45 days for certain accelerated filers – is that it doesn’t delay the requirements of Item 307 of Regulation S-K because the exemptive order states that it applies to 308(a) and (b). So the remainder of Item 9A of 10-K must be provided, which means you must still disclose management’s conclusions about disclosure controls and procedures as required by Item 307 of Reg S-K as of the year end.

So even though some accelerated filers get more time to conduct testing, management’s assessment must still be conducted as of the same time as applied before the order. Thanks to Will Anderson of Bracewell Paterson for being the first to point out this tidbit!

Another interesting aspect of the SEC’s order is that for purposes of the Form S-3/S-2 eligibility requirements, a company that relies on this special exemption will not be considered to have timely filed its 10-K until it has filed an amendment that contains the internal controls information that had been omitted per the order.

In other words, a company that relies on the 45-day exemption can’t sell securities that already are registered on a shelf until the company files an amendment to complete its 10-K by including the management report and auditor’s attestation. And once the 10-K amendment is filed, it can continue drawing off the shelf.

Today’s NY Times quotes SEC Chief Accountant Donald Nicolaisen as saying that one open issue is “whether auditors would be allowed to certify that material weaknesses identified in this year’s audit were fixed after the audit is completed – or whether certification would not be possible until a new audit was conducted a year later.”

December E-Minders is Up!

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