Monthly Archives: February 2008

February 29, 2008

How the SEC is Tackling the Subprime Crisis

Recently, SEC Chairman Cox delivered a speech about the subprime crisis. The SEC’s efforts include:

– Enforcement has created a Subprime Task Force to investigate possible fraud in connection with collateralized debt obligations and other subprime vehicles, as well as looking at whether bank holding companies and securities firms fully disclosed the risks of their CDO portfolios and valuations (and whether brokers followed suitability requirements in selling these securities).

– Market Reg (ahem, Trading Practices) is ramping up its “Consolidated Supervised Entity” program, which focuses on the quality of risk controls and liquidity for the largest banks, including the strength of their internal risk management and accounting issues related to off-balance sheet and CDO-related liabilities. I’m sure the newish Office of Risk Assessment will be providing input here.

– Corp Fin is reviewing the adequacy of disclosures by companies implicated in the subprime crisis.

If you want to brighten up your day with a little humor, take a look at this “Subprime Primer” that we have posted in our “Subprime” Practice Area.

Subprime Crisis: Congressional Pressure on the SEC

As noted in this article, Senator Jack Reed (D-RI) sent this letter to the SEC asking what is being done to increase transparency in the capital markets in light of the subprime, in particular why banks are not fully disclosing the risks posed by securitized loans. A few weeks ago, as noted in this article, Sen. Reed sent a similar letter to the FASB – and a letter to the IASB. These letters are posted in our “Subprime” Practice Area.

In response to a query in our “Q&A Forum” a few days ago, I breezed through some bank disclosures to review their “Risk Factors” and was surprised how few were tailored – even now – to what is happening in the markets and to each institution. Even though Kevin LaCroix reports in the “D&O Diary Blog” that the first subprime lawsuit filed has been dismissed, there are hundreds of credit-related lawsuits already filed (with undoubtably more to come) – so full disclosure would seem to be the wisest course.

Lynn Turner on the Recent Banking Crisis

Below are some thoughts from Lynn Turner, former SEC Chief Accountant, on what has been revealed recently at financial institutions:

Interesting that after the fiasco with the lack of controls at SocGen, we now have a control problem at AIG. And Merrill Lynch announced they didn’t even have a chief risk officer, and CitiGroup has been sued over the lack of transparency in their financial reporting. It appears this is somewhat of a systemic problem among financial institutions that the banking and securities regulators failed to regulate and get fixed.

The amazing and stunning run of articles on SocGen raise questions as to whether:

1. SocGen and certainly its investors could have benefitted by increased transparency with respect to its internal controls and assurance on whether they were operating effectively (which clearly they were not).

2. Did SocGen notify its independent auditors, which are two of the Big 4 firms, when SocGen was tipped off as per below to the concerns? And did SocGen have a risk officer, that when they were tipped off, should have stopped these risky activities with a lack of internal controls?

3. Whether a similar situation could/does exist with a US financial institutions given the concerns cited with respect to a lack of timely settlements of derivatives around the globe. This would seemingly be a material weakness that should be reported to investors if it did exist. Certainly it is a major risk so let us hope independent auditors have examined closely and carefully controls over such transactions, along with the federal banking regulators.

4. Why SocGen called the trader a “rogue” when the bank was tipped off to concerns about his strategy in November, but allowed him to continue trading while he was apparently generating gains. It appears only when the trades turned to huge losses that he became a “rogue” and someone to be throw under the bus to save others.

The Role of Boards in the Subprime Crisis

In this podcast, Ken Daly, President of the NACD, addresses the role of directors in the unfolding subprime crisis, including:

– Does responsibility for some of the elements of this debacle lie with the audit committees of companies only or does it lie with the entire board?
– Is government regulation vs. self-regulation by directors the answer to this crisis?
– What did the boards know and were there reasons why the quality of information going to the boards was inadequate to assess the risks of subprime mortgages?
– Do directors need different training, background or communications to prevent repeats of the credit crisis?

– Broc Romanek

February 28, 2008

Samples: Converting a Form SB-2 to Form S-1

Bob Dow of Arnall Golden Gregory has been in the process of taking a Form SB-2 and amending it with a Form S-1, pursuant to the recent SEC rulemaking regarding smaller reporting companies (see these related memos). In that connection, he decided to try to find a few samples where other companies are doing the same – below are a few he found. He notes that some of them still have inconsistencies, such as references to the registration statement as SB-2 within the body (esp. under “Available Information,” “Legal Matters” and “Signatures”); the title of the document varies (“S-1/A” “SB-2/A on Form S-1” etc.); and some have neglected to add the new filer status check boxes recently added to S-1. The samples include:

Majic Wheels Corp.

General Environmental Management

Visual Management Systems

Battery Control Corp.

PerfectEnergy International Limited

Monster Offers

Patient Portal Technologies

CII Weighs In on Auditor Departures

In this podcast, Jeff Mahoney, General Counsel of the Council of Institutional Investors, discusses CII’s recent petition to the SEC for rulemaking regarding plain English disclosure of auditor departures, including:

– What is the current state of affairs with respect to disclosure of auditor departures?
– Why does CII believe that enhanced disclosure of auditor departures is necessary?
– Why do you think companies don’t provide better disclosure of this area given its importance?

The Nasdaq Proposes to List SPACs

Last week, the Nasdaq Stock Market issued this proposal to create new listing standards that will relate to special purpose acquisition companies. Previously, even if a SPAC met Nasdaq’s market and financial initial listing standards, Nasdaq would not list the SPAC. These determinations were based on concerns about the underwriters of some of the earlier deals and because a SPAC is a “shell company” that does not have current business operations.

Under the Nasdaq’s proposal, Nasdaq would seek to list SPACs (whose listings are dominated by AMEX, according to this WSJ article) – albeit under more stringent listing standards compared to operating companies, including the following criteria:

– Gross proceeds from the initial public offering (IPO) must be deposited in an escrow account maintained by an insured depository institution as defined by the Federal Deposit Insurance Act or in a separate bank account established by a registered broker or dealer.

– Within 36 months of the effectiveness of its IPO registration statement, the company must complete one or more business combinations using aggregate cash consideration equal to at least 80% of the value of the escrow account at the time of the initial combination.

– So long as the company is in the acquisition stage, each business combination must be approved both by the company’s shareholders and by a majority of the company’s independent directors. Following each business combination, the combined company must meet all of the requirements for initial listing.

– Broc Romanek

February 27, 2008

Coming Soon: California Legislature to Fix E-Proxy Problem

Last week, as an “urgency measure,” a bill sponsored by the California Corporations Committee was finally introduced in the California Legislature to address the e-proxy problem that I have been blogging about. It requires a 2/3 vote – but would take effect immediately if passed. Thanks to Keith Bishop for continuing to keep us apprised of the latest.

Broadridge’s Latest E-Proxy Stats

In our “E-Proxy” Practice Area, we have posted the latest e-proxy statistics from Broadridge. As of January 31st:

– 96 companies have used e-proxy so far

– Size range of companies using e-proxy varies considerably; all shapes and sizes (eg. 38% had less than 10,000 shareholders)

– Bifurcation is not being used as much as I would have thought; of all shareholders for the companies using e-proxy, only 5% received paper initially instead of the “notice only”

– 0.76% of shareholders requested paper after receiving a notice

– 62% of companies using e-proxy had routine matters on their meeting agenda; another 30% had non-routine matters proposed by management; and 8% had non-routine matters proposed by shareholders

– Retail vote goes down dramatically using e-proxy (based on 61 meeting results); number of retail accounts voting drops from 18.3% to 4.4% (over a 75% drop) and number of retail shares voting drops from 28.8% to 12.6% (over a 55% drop)

Our “Voluntary E-Proxy” Survey Results

Here are the survey results from our recent “Quick Survey on Voluntary E-Proxy,” repeated below:

1. Does your company intend to use voluntary e-proxy this year?
– Yes – 33.8%
– Maybe, not decided yet – 13.0%
– No, but maybe next year – 48.1%
– No, we will never use it since we intend to continue to send paper – 5.2%

2. If the answer to #1 is not “Yes,” which of these reasons did the company consider?
– Concerned about reaching quorum – 21.6%
– Timeframe is too tight to complete proxy materials – 33.3%
– Timeframe is too tight because board/board committee meeting dates pre-set – 13.7%
– Too many shareholders will want paper – 19.6%
– Want to see how other companies fare with e-proxy – 74.5%

3. In case shareholders request paper, we intend to print this amount of proxy materials:

– 7% or greater – 56.5%
– 5-6% – 17.4%
– 4% – 5.8%
– 3% – 2.9%
– 2% – 1.5%
– Less than 2% – 7.3%
– Print materials on demand (such as making Xerox copies) – 8.7%

Please take a moment to answer this new “Quick Survey on More on Blackout Periods”. Always a popular topic, we periodically conduct this type of survey, but it has been three years since the last one

– Broc Romanek

February 26, 2008

How Corp Fin is “Clearing” Performance Target Comments

At an ALI-ABA conference last Friday, Corp Fin Director John White noted that the Staff has “cleared” about 70% of its targeted reviews of executive compensation disclosures, meaning that those companies had received a letter indicating that the review process was over.

The Staff is now using two types of letters to “clear” exec comp reviews. In addition to the typical letter from the Staff indicating that the comments are “all clear,” the Staff is using a modified letter that states that the Staff “neither agrees or disagrees” with the company’s conclusion about its basis for excluding performance targets; this leaves the door open for the Staff to challenge the exclusion at a later date. However, a company that receives this type of letter can consider the Staff’s review complete. While its true the Staff could challenge the exclusion at a later date – most likely in a different filing – they won’t consider the original comment on the 2007 proxy outstanding. Here is a sample of what the “neither agrees or disagrees” letter looks like.

We now have over 100 comment letters (and responses) posted on – and you will want to read Mark Borges’ recent blogs that analyze the meaning of specific comments, including this one that begins “to paraphase Alice in Wonderland, reading the publicly-available comment letters and responses gets “curiouser and curiouser.”

The Section 162(m) Workshop (and Transcript Posted)

We have announced that our 162(m) program – “The Section 162(m) Workshop” – will take place on March 25th on This webcast will be held in a “workshop” style, where experts provide analysis of the numerous issues raised for specific types of employment arrangements, including guidance on what well-designed plans should look like under the IRS’ latest guidance.

We have also posted the transcript from the recent webcast: “The New IRS Letter Ruling: How It Impacts Your Employment Arrangements, Accounting, Proxy Disclosures, Etc.”

Postponed: This Thursday’s House Hearing on Severance Pay

As noted in this WSJ article, the House Committee on Oversight and Government Reform was scheduled to hold a hearing – “Executive Compensation II: CEO Pay and the Mortgage Crisis” – on Thursday, but today it was announced that it was postponed. When it’s re-scheduled, it should be a “doozy” as three current and former CEOs (Charles Prince, Stan O’Neal and Angelo Mozilo) as well as three chairs of compensation committees not only face the questions of Congress, but those of Nell Minow of The Corporate Library and the mayor of a town in Michigan hit hard by subprime. It should be some interesting theater…

Possible New SEC Commissioners?

In Saturday’s WSJ, this article names four possible successors to Commissioner Paul Atkins (who is a Republican) when his term runs out this summer (Douglas Cox, Steven Guynn, Stuart Kaswell, Troy Paredes) – as drawn up by the White House – as well as lists the two Democratic candidates (Luis Aguilar, Elisse Walter) that have been sitting in the White House for some time.

– Broc Romanek

February 25, 2008

Hurdles to E-Delivery of Proxy Materials to Plan Participants

In this podcast, Randy Gegelman of Faegre & Benson explains how employers can deliver proxy materials to plan participants, including:

– How do the SEC’s e-proxy rules differ from the DOL’s guidance on electronic delivery?
– Does that mean that “notice only” method can’t be used for 401(k) plan participants?
– What have plan sponsors been doing?
– Is this strictly an ERISA issue or are there securities issues remaining on the table?

I’m not a big Oscars person, but this satirical montage is hilarious, particularly if you’ve seen any of the movies that were nominated for “Best Picture.”

US Supreme Court: Individuals Can Sue under ERISA against 401(k) Plan Administrators

Last week, the US Supreme Court unanimous decided – in LaRue v. DeWolff, Boberg & Associates – that ERISA permits individual defined contribution plan participants to sue for fiduciary breaches that impair the value of plan assets in the individual’s plan account. This holding could have important implications for future ERISA litigation activity and present significant insurance coverage issues. Here is a copy of the opinion – and we have begun posting memos analyzing this case in our “ERISA Securities Litigation” Practice Area.

The ‘Former’ SEC Staff Speaks

We have posted the transcript from our recent webcast: “The ‘Former’ SEC Staff Speaks.”

– Broc Romanek

February 22, 2008

IRS Provides More Guidance on Section 162(m) Position

Yesterday, the IRS published Revenue Ruling 2008-13, which provides guidance for identifying performance-based compensation for purposes of Section 162(m) and clarifies some of the open issues from the private letter ruling that I blogged about yesterday.

The ruling provides transition relief for awards with a “performance period” (but really meaning the service period to which the performance goal relates) that begins on or before January 1, 2009, or compensation paid pursuant to an employment agreement in effect today, and while that agreement continues in effect (determined without regard to extensions, including auto-extensions). In other words, the clarifications from this new ruling are (1) they expressly cover retirement now and (2) they give relief for a couple of years – and for existing employment agreements.

The transition period will be helpful – but it may not be as “long” as it sounds. Many contracts have automatic renewal provisions that may limit the transition relief (see the language “without respect to future renewals. . . including. . . automatic) – and the “voluntary retirement” holding will likely cause additional issues for companies. At least there will be some time to “negotiate” required changes with executives. Read more analysis of the ruling in “Melbinger’s Compensation Blog.”

Stay tuned for another program – “The Section 162(m) Workshop” – that will take place next month to help you navigate the many issues that you will now need to consider.

California Supreme Court Dodges Internal Affairs Conflict Issue

Last week, the California Supreme Court issued its opinion in the appeal in Grosset v. Wenaas; I blogged about this case way back in 2005 and we have posted memos regarding this case in our “Internal Affairs Doctrine” Practice Area. From Keith Bishop:

The case involved a shareholder derivative suit and a Delaware corporation (JNI Corporation). The Court of Appeal applied Delaware law because the requirements for standing in a derivative action implicate the “internal affairs” of the corporation. The Court of Appeal also found – in the alternative that California imposed a continuous ownership requirement that was consistent with Delaware law. Accordingly, the shareholder was out of luck and he appealed to the California Supreme Court.

The Supreme Court found that because California and Delaware law have parallel continuous ownership requirements there is no conflict of law. Hence, it was able to avoid discussing the Delaware Supreme Court’s decision in Vantagepoint Venture Partners v. Examen.

The case is important because it sets forth the California Supreme Court’s analysis of California’s shareholder derivative statute, Corporations Code Section 800. However, the opinion leaves unanswered how the California Supreme Court will deal with the internal affairs doctrine when it finds that California and Delaware corporate law are in conflict.

Inside Perspective of Accounting Fraud

In this podcast, Walter Pavlo, a money launderer, and Neil Weinberg, Senior Editor of Forbes, explain how they wrote a book about why someone turns to crime – in this case, the biggest accounting fraud ever (which occurred at MCI), including:

– What is the book about?
– Why did you write the book?
– What has been the most interesting feedback about the book?

– Broc Romanek

February 21, 2008

Progress Report: SEC’s Advisory Committee on Improvements to Financial Reporting

Last week, the SEC’s “Advisory Committee on Improvements to Financial Reporting” published a progress report, which includes 12 recommendations for the SEC to consider – many of them important and some of them far-ranging. The key themes include: increasing emphasis on investor perspective in financial reporting system; consolidating process of setting and interpreting accounting standards; promoting design of more uniform and principles-based accounting standards; creating a disciplined framework for increased use of professional judgment; and taking steps to coordinate US GAAP with IFRS. The Advisory Committee will issue a final report (with final recommendations) later this year. Here is a statement from Chairman Cox – and memos analyzing the Progress Report are posted in our “Auditing Process” Practice Area.

Yesterday, the SEC posted these recommendations for public comment, as they have done with other advisory committees. Like other advisory committee reports, there is a short 30-day comment period – given the importance of the issues, don’t forget to weigh in.

E-Proxy: Broadridge’s Candid Assessment

Yesterday, Broadridge posted this interesting article about how e-proxy is faring, which consists of excerpts from five interviews with in-house folks that have recently been through the voluntary e-proxy process. For these five companies, the costs savings have been real, but there have been some “lessons learned” about usability – as aptly noted by Dominic Jones in his “IR Web Report.”

Ninety Law Firms Petition IRS on Section 162(m) Position

Last week’s webcast on the IRS’ recent Section 162(m) private letter ruling was a blockbuster (audio archive available now; transcript coming soon) during which Ken Griffin of the IRS noted that further guidance should be expected from the IRS soon. To help their cause, 90 law firms signed off on this letter that was sent to the IRS on Tuesday. Stay tuned…

Kudos to those individuals that work hard to get so many firms to sign off on anything. Even with the ability to quickly communicate by e-mail these days, it amazes me when these collaborative efforts on short notice get completed. It’s not an easy thing to do.

– Broc Romanek

February 20, 2008

What to Do If You Can’t Timely File Your 10-Q?

Brink Dickerson of Troutman Sanders recently delved into the question of “what are the SEC Staff’s most recent views with respect to what a company should do if it is unable to file a Form 10-Q – even after the extension provided by Form 12b-25 – because the company’s auditors have not completed their Reg. S-X 10-01(d) review?” This can occur due to a number of reasons, ranging from an untimely auditor resignation to a complex accounting issue that the auditors simply have not resolved.

Brink states that the Staff generally believes that it is best to disclose as much accurate information as quickly as possible, either through filing a Form 10-Q that has not been reviewed or a Form 8-K. When a Form 8-K is filed, practices range from disclosing just recent high-level operating results and limited other financial data in the body of the filing (or in a press release that is attached as an exhibit) to filing essentially complete financial statements (along with the MD&A) as an Exhibit 99. When the filing is ready to be made, the Staff may either seek the filing an unreviewed Form 10-Q – because of the accompanying certifications and the fact that investors naturally would look for a document labeled as a Form 10-Q for quarterly results – or the filing of a Form 8-K; here is where you may want to contact the Staff that handles your industry to see which approach they prefer.

In all events, Brink says that:
1. the lack of the review needs to be clearly highlighted through an introductory note (see the March 2001 Current Issues Outline Update)
2. the reasons for the lack of the review should be disclosed completely
3. the companies expectations with respect to filing a definitive Form 10-Q (or Form 10-Q/A) should be discussed
4. to the extent that any numbers could be expected to change as a result of the review, those numbers and, if possible, the potential outcomes should be discussed
5. columns containing financial information should be labeled “unreviewed”

Most critically, he points out that the importance of accuracy far outweighs the benefits of filing quickly, and companies should not file either a Form 10-Q or a Form 8-K if it does not have an appropriate level of confidence in the numbers that are disclosed. Unfortunately, a Form 10-Q that has not been officially reviewed by the auditors still will be substantially deficient for ’34 Act purposes, so filing one will not solve Form S-3 eligibility issues. It will, however, help with investor and stock exchange relations – and may solve some covenant violation concerns caused by the absence of any filing. FYI, the review requirements for Form 10-Qs originate from this adopting release relating to audit committee disclosure from 1999.

SEC Certification of Delaware Law Issues

Last summer, the Delaware legislature amended the Delaware Constitution to permit the SEC to certify questions of law directly to the Delaware Supreme Court (one of the many things I have been meaning to blog about, but keeps getting bumped). In this podcast, J.W. Verret of Skadden, Arps and a recent law clerk for Vice Chancellor John Noble analyzes a host of recent Delaware law developments and issues, including:

– What did the Delaware legislature do last year?
– Has the SEC used this new ability yet?
– What are the types of issues that the SEC may ask for certification?
– Why are bylaws so important?
– How does Rule 14a-8 relate to Delaware corporate law?
– Does it matter whether a new proposed bylaw put forward by shareholders goes on the company’s ballot?
– How clear is Delaware law on what a new bylaw can say?
– What is the likelihood the Delaware Supreme Court will accept a question certified from the SEC?
– What are the consequences of the SEC giving a no-action letter on a bylaw without pre-certifying?

MAC Clauses: All the Rage

Join tomorrow for the webcast – “MAC Clauses: All the Rage” – to hear from the experts on how “material adverse change” provisions are under more scrutiny than ever, causing some deal practices to change. These changing practices not only impact how lawyers negotiate deals, but they entail wide-ranging ramifications for dealmakers. The panel includes:

– Professor Steven Davidoff of Wayne State Law School and the “M&A Law Prof” Blog
– John Grossbauer, Potter Anderson & Corroon
– Travis Laster, Abrams & Laster
– Patrick Lord, Dechert
– Derek Winokur, Dechert

The Latest Developments: Your Upcoming Proxy Disclosures —What You Need to Do Now!

We have posted the transcript from Part II of the webconference: “The Latest Developments: Your Upcoming Proxy Disclosures —What You Need to Do Now!”

– Broc Romanek

February 19, 2008

More on the 10-Q (and 10-K) Cover Page “Glitch”

A number of members e-mailed me after Friday’s blog about the parenthetical on the cover page of the 10-Q (which is also on the Form 10-K cover page). The parenthetical states: (Do not check if a smaller reporting company).

One member noted that if you look at the PDF version of the SEC’s adopting release – rather than the version published in the Federal Register – you will see that (on page 210) the parenthetical is located underneath the check box for “non-accelerated filer.” He inferred that, since smaller reporting companies are non-accelerated filers, the SEC wanted smaller reporting companies to check only the box for “smaller reporting company” and not both boxes.

I agree that this makes sense if the parenthetical is properly lined up with “non-accelerated filer” (one wonders why a similar instruction isn’t required to ensure a Large Accelerated Filer doesn’t also check the “Accelerated Filer” box). The same check box disclosure also appears on the cover page of other forms – and the location of the parenthetical is consistent across all of the them, so it wouldn’t appear that the parenthetical was an oversight, notwithstanding what was told by someone on the Staff to the members who fed me the information for Friday’s blog.

SEC Proposes Changes to Foreign Private Issuer Reporting and Registration Requirements

Last Wednesday, the SEC proposed a series of amendments to its filing, disclosure and registration requirements for foreign private issuers. Among other proposed changes, the SEC would require FPIs to file their reports electronically on EDGAR (ie. no more paper filings) – and shorten the existing 6-month filing deadline for FPIs to file annual reports on Form 20-F to 90 days for large accelerated and accelerated FPIs and 120 days for smaller reporting FPIs. Here is the SEC’s press release and Corp Fin’s opening statement. Here is some analysis of the SEC’s actions from Cleary Gottlieb:

Based on the description provided by the SEC staff, the proposed amendments would appear to have both positive and negative potential consequences for non-U.S. companies:

– On the positive side, the amendments would provide an automatic exemption from SEC registration for many non-U.S. companies that do not list or publicly offer securities in the United States, so long as they publish English versions of their home country annual reports and certain other documents on their websites. The current version of the exemption requires companies to submit an application to the SEC (which many companies do not do), and to submit paper copies of their home country documents to the SEC.

– On the other hand, the amendments would for the first time make eligibility for the exemption contingent on a company meeting substantive eligibility criteria: no more than 20% of its share trading volume can take place in the U.S. over-the-counter market, and it must maintaining a listing in its primary market. The current version of the exemption is available for all non-U.S. companies that do not list or publicly offer their securities in the United States.

– Additionally, the amendments would shorten the deadline for non-U.S. reporting companies to file their annual reports on Form 20-F, to 90 days after the end of a fiscal year for larger companies and 120 days for smaller companies. This proposal is likely to solicit significant comment, particularly in Europe where the home country reporting deadline is 120 days, as well as in other countries with home country reporting deadlines that are longer than the 90-day proposal.

The text of the proposed amendments is not yet publicly available, but should be published for public comment shortly. Once this occurs, it should be possible to assess more definitively the potential practical consequences of the amendments.

Impersonations on Earnings Calls

I found this WSJ article on Saturday fascinating about how someone has gained entry into a number of earnings calls recently to ask questions by impersonating well-known analysts. I caught up with Joe Herrick to ask him how – and why – he has done these impersonations in this podcast.

– Broc Romanek

February 15, 2008

Head’s Up: How Your Form 10-K Changes This Year

As a result of amendments to the disclosure rules for “smaller reporting companies” adopted in December and effective last week – February 4th – there are changes to Form 10-K that all reporting companies need to make in their Form 10-K reports. For companies that are not eligible (and do not elect) to report under the new “smaller reporting company” framework, these changes are minor – essentially amounting to changes in the check boxes relating to the company’s status on the cover page of Form 10-K.

Courtesy of John Newell of Goodwin Procter, we have posted “Comparison of Changes to Form 10-K,” which is a redline comparison of the newly-effective cover page of Form 10-K compared to the old version (this is a Word file and should help you tweak the Form you saved from last year; here is a PDF version if you need it).

On Monday, the SEC finally posted an updated Form 10-K – even though the new Form had been effective for a week – and as several members have e-mailed me, the SEC mistakenly reverted back to an old version of the Form for the Part III in its PDF…

More Glitches in Smaller Company Reporting

Recently, I blogged about a glitch in the SEC’s smaller company reporting scheme relating to audit committee reports – and there have been a few others identified in our “Q&A Forum.” Thanks to Steve Amen and Grant Leach of Kutak Rock, here is another:

“We’ve been working on a Form 10-Q for a company with a September 30th year end that qualifies as a “smaller reporting company.” As we looked at the SEC’s adopting release regarding changes to Form 10-Q resulting from the new smaller reporting company rules, we noticed that the familiar paragraph in which registrant’s indicate their filing status has been modified (as expected) to include the new option for “smaller reporting company”. However, in the adopting release, the whole thing looks like this:

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
– Large accelerated filer
– Accelerated filer
– Non-accelerated filer
– Smaller Reporting Company
(Do not check if a smaller reporting company)

We could not make any sense out the parenthetical language at the bottom and we finally decided to call the Corp Fin Staff for clarification. Turns out it’s a glitch and we were told we could delete it from the cover page.”

Let The Trades Begin: New Rule 144 Is Now Effective

Starting today, new Rule 144 is effective. The SEC has posted a copy of the new Form 144 in a PDF; we have a Word version available in our “Rule 144″ Practice Area.

As noted by Ron Orol in this The article, as much as $35 billion in restricted securities will suddenly be available to trade – so you can expect a sudden uptick in Rule 144 activity. So I posit this reminder: have you sent your memo to all our officers and directors explaining the new rule changes?

During our recent “Rule 144 Conference,” it was stressed that all companies need to get their officers and directors up to speed, particularly with the new potential pitfalls now facing affiliates. If you have not yet done so, we encourage you to furnish all your officers and directors with the model memorandum provided in the Conference “Course Materials.” It will get your key executives and directors updated on what they need to know now—and prevent costly violations.

By the way, I just posted a podcast with Ron Orol on regarding his new book: “Extreme Value Hedging: How Activist Hedge Fund Managers Are Taking On The World.”

– Broc Romanek