TheCorporateCounsel.net

I have been hearing from the financial printers for a while now about an odd automated EDGAR screening criteria which looks to see whether a registration statement filing is “duplicative” of another registration statement filing that the issuer has made, and sometimes when duplication is detected, the new filing is suspended until someone at the SEC can override the suspension and allow the filing to be accepted and disseminated. As this recent Weil Gotshal & Manges LLP alert notes, this process can be particularly problematic when an issuer is renewing its automatic shelf registration statement (which must be done periodically because the SEC’s rules provide that the registration statement expires every three years), because the delay in acceptance of the purportedly duplicative filing can mean a delay in the effectiveness of the automatic shelf registration statement, which can of course wreak havoc on the marketing and pricing of a transaction taking place around the time of the shelf filing.

When filings are made during ordinary business hours this is usually not a big problem, because the printers can work with the Staff to override the suspension. However, if the issuer is filing outside of the SEC’s hours (e.g., at night or first thing in the morning) in anticipation of a transaction with tight timing, there is a risk that the Staff might not be reachable to do the manual override. The Weil alert notes that the Corp Fin EDGAR Staff may be reached in the morning beginning at 7:30 am to address this issue, but in any event it seems best to avoid the potential disruption altogether by filing the new shelf registration statement when there is plenty of time to deal with EDGAR’s peculiarities.

We understand that the Staff in Corp Fin is aware of this issue and is looking into fixing the glitch with respect to automatic shelf registration statements, although it is not clear at this point when and if a repair will be implemented.

All Eyes on the Commission Tomorrow for Dodd-Frank and JOBS Rulemaking

If you had told me last winter that the SEC’s consideration of final rules implementing the Dodd-Frank Act conflict minerals provision would have been overshadowed by a debate about the removal of the general solicitation ban in Rule 506 offerings, I would have never believed you. But that is where we find ourselves as the Commission is set to consider tomorrow final rules for the remaining “specialized corporate disclosure” provisions of the Dodd-Frank Act, along with what at this point would appear to be proposed rules to implement Title II of the JOBS Act. I don’t want to get anywhere near the “debate” that is ongoing about the timing of the SEC’s JOBS Act rulemaking and in particular the implementation of Title II, but suffice it to say that whatever happens tomorrow will give us plenty to talk about on our upcoming webcast “JOBS Act Update: Where Are We Now” which will take place on Wednesday, September 5th from 2:00 – 3:00 pm eastern.

The Second Deal Cube Tourney: Round One; 5th Match

As noted in these rules (and keep sending more pics for the next tourney), please vote for two of the following four cubes below:

– Wrigley Field
– Ye Olde Medicine Bottle
– Yellow Telephone
– Submarine

– Dave Lynn