December 7, 2005

Don’t Forget the New Item 512 Undertakings!

When filing your registration statements, don’t forget the new S-K Item 512 undertakings for Rule 415 offerings – FAQ #3 clearly says that you have to! The ’33 Act reform amended the provisos after Item 512(a)(1)(iii) and added 512(a)(5)-(6). There have been quite a few registration statements filed recently that do not include the new undertakings.

It appears that some companies simply forgot that revised undertakings are now required. Also be careful not to just copy a law firm memo’s form undertakings, as there are different undertakings for different contexts (eg. undertakings for Form S-8s vs. Form S-3s). Read the regulations first.

As examples, here are two Form S-3ASRs that appear to have provided the correct undertakings (of course, there are others that also have done it correctly): eBay and General Electric.

ISS Clarifies Majority Vote Positions

Yesterday, ISS posted 8 FAQs about its majority vote position, dealing with a number of issues that have been raised since its 2006 voting policies were released last month. For example, ISS clarified that it will review director resignation guidelines on a case-by-case basis and noted that no single form of a resignation guideline has been “precleared” by ISS. If you are facing a shareholder proposal on this topic, this is a “must read” document.

SEC Speaks at the Annual AICPA Conference

No fewer than 11 SEC Staffers spoke at the Annual AICPA Conference in DC over the last few days. This is not more than the number of Staffers that speak at PLI’s Annual SEC Speaks – but it is unusual that so many of the Staff’s speeches get posted on the SEC’s website.

Here are the 11 speeches – including this speech from Chairman Cox. Among other topics, the Chairman addresses greater competition beyond the Big 4; greater simplicity and transparency in financial reporting; and XBRL.

Going Private and Going Dark

Even though I knew today’s webcast – “Going Private and Going Dark” – would be well received by those interested in that area, I have to admit even I have been surprised by the huge level of interest in this topic. Perhaps the demand of those waiting to go private and dark is even greater than the fairly sizable number of companies that has already done so over the past few years.

Join the expert lawyers and banker who will spend some time analyzing the feasability of these apparently attractive options – and look for John Jenkin’s excellent 18-page memo regarding the state law issues for going dark and going private transactions that I just posted in the “Going Dark” Practice Area.