January 31, 2008

SEC’s Filing Fee Lockbox Agent Changes – Effective Monday!

There is nothing worse than having your registration statement bounced by EDGAR because of an unpaid filing fee (I think the correct term is being put into “fee suspense” or something like that). Unfortunately, that is what could happen to you if you mail or wire a filing fee to the old Mellon Bank account after this Friday.

Earlier this month, the SEC put out a notice that the lockbox financial agent is changing, and now this week the agency published final rules implementing the changes. Effective Monday, February 4th, U.S. Bank will take over as the lockbox agent, so all checks and wires need to be sent to U.S. Bank beginning on Monday. The SEC states that no payments should be submitted to Mellon Bank after tomorrow.

The SEC’s notice provides the specifics on how to wire fees to U.S. Bank. The most critical data for getting your fee through to the lockbox are the SEC’s account number at U.S. Bank and the SEC-assigned account number, identified as the CIK number. Payments may still be made by a certified or bank cashiers check as well, and the notice provides the new U.S. Bank addresses for mail or courier delivery of checks.

The final rules eliminate the option of making payments in cash or personal check – I wonder how many fees have actually been paid with a briefcase full of cash?

Corp Fin Releases New Smaller Company Compliance Guides

The Staff recently posted two new “small entity compliance guides” to explain the new smaller reporting company disclosure system that replaces Regulation S-B and the expanded eligibility for primary offerings by smaller companies on Form S-3. The Staff prepared these guides under the mandate of Section 212 of the Small Business Regulatory Enforcement Fairness Act, and they admonish that the guides are not to serve as a substitute for reading the actual rules.

In the guide entitled “Changeover to the SEC’s New Smaller Reporting Company System by Small Business Issuers and Non-Accelerated Filer Companies,” the Staff explains the smaller reporting company system generally, as well as the transition provisions for small business issuers and companies that are new to the smaller reporting company system. The guide includes some examples, charts and FAQs to explain the requirements.

The guide entitled “Eligibility of Smaller Companies to Use Form S-3 or F-3 for Primary Securities Offerings” outlines the new S-3 primary eligibility requirements for companies with less than a $75 million public float. This guide is more bare-bones, perhaps because the adopting release already included a number of detailed examples of the calculations involved.

The Staff also posted a small entity compliance guide for Rule 14-8(i)(8) earlier this month. This guide explains 14a-8 very generally and then talks about the amendment to (i)(8) to permit exclusion of access proposals.

All in all, it looks like these guides (particularly the smaller reporting company guide) can be useful resources. Unlike the Section 404 compliance guide, these latest guides weren’t accompanied by a catchy slogan like “it doesn’t have to be a chore.” Personally, I would have gone with something like “Form S-3: Not Just for the Big Dogs Anymore”

January-February Issue: Deal Lawyers Print Newsletter

This January-February issue includes articles on:

– Fairness Opinions after Revised NASD Rule 2290: Models & Analysis
– Navigating a Loan-to-Own Transaction: 11 Steps
– Practical Guidelines for Special Committees
– Perspectives from an Industry Insider: Understanding Activist Hedge Funds
– M&A Implications of New Changes to Rules 144 & 145

As all subscriptions are on a calendar year basis, it is time for you to renew your subscription. If you are missing these critical issues, try a 2008 no-risk trial to get a non-blurred version of this issue for free.

– Dave Lynn