November 12, 2010

FINRA’s Updated Guidance on Same Day Clearance and Expedited Review of Shelf Offerings

Last week, FINRA issued updated guidance on the same day clearance procedures for shelf offerings – as well as expedited review guidance for shelf offerings filed for regular review. The Same Day Clearance Eligibility Guide – and this set of FAQs – clarifies that same day clearance is only available for registered primary shelf offerings made pursuant to the SEC’s Rule 415 and, therefore, is not available if any selling shareholder securities are included, the offering includes an equity line of credit, an offering made pursuant to the multi-jurisdictional disclosure system is not a shelf offering, or the final prospectus supplement for the offering has already been filed with the SEC. Greater clarity on these exclusions is set forth in the Same Day Clearance FAQs #3, which also indicates that the Staff may identify other categories of offerings not eligible for SDC.

FINRA states that it will conduct an expedited review of such a shelf offering only if all relevant documents are provided, all representations are made in the COBRADesk screens, a statement is provided that the filing member has completed its due diligence to confirm its representations, and the filer provides the anticipated effective date and a request for expedited review. FINRA clarifies that shelf offerings will not qualify for expedited review if any of the underwriters are to receive securities as compensation, an unreasonable term or arrangement is included or the offering is filed late. The expedited review guidance confirms FINRA’s recommendation that a filer seeking expedited review that can’t rely on the SDC process should contact FINRA’s Corporate Financing Department to discuss the offering with the applicable Staffer.

We have posted all of these new pieces of guidance in our “Shelf Registration” Practice Area.

Having visited the Sistine Chapel earlier this year – and being blown away by it – I thought I would share this virtual 3-D tour, which apparently was created by some folks at Villanova at the request of the Vatican. Viva technology!

Congress: The Mid-Term Election’s Impact on the Corporate Community

After the mid-term elections – and before the infighting for powerful committee chair positions, etc. has played out – a number of folks have conducted their analysis of what the mid-term elections mean for the corporate community. Here are a few:

Ernst & Young’s Washington Council: “2010 Election Analysis

Bracewell & Giuliani’s “Election Analysis

Laurel Hill’s Francis Byrd: “Election Results

ISS’s Insight Blog: “After Election Day, Governance Observers Expect Status Quo

“One Global Policy” Approach to D&O Insurance Policies

In this podcast, Heidi Lawson of Chadbourne & Parke explains the need for directors & officers to be covered globally by D&O insurance policies, including:

– Does a “one global policy” approach work today?
– How can a company determine whether that approach works for them?
– If more local policies are recommended, what brokers can be used to find good policies?

– Broc Romanek