Corporate and Financial Weekly Digest - June 11, 2010

Profession:Katten Muchin Rosenman LLP

Article by Robert L. Kohl and David A. Pentlow

Corporate and Financial News Online

The Katten Muchin Rosenman LLP publication Corporate and Financial Weekly Digest is now available online in blog format. Click here to read about recent legal developments in business and financial services.


SEC Issues New Compliance and Disclosure Interpretations

On June 4, the Securities and Exchange Commission's Division of Corporation Finance added new Compliance and Disclosure Interpretations (C&DIs) and revised or withdrew others.

Included in the SEC's new C&DIs is the following guidance:

The new Item 5.07 of Form 8-K requirement to report the number of shareholder votes cast for, against or withheld applies to any matter submitted to a vote of security holders, through the solicitation of proxies or otherwise. Although Rule 415(a)(4) permits an issuer to register an "at-the-market" offering of equity securities without identifying an underwriter in its registration statement, the SEC has not changed its interpretation that market makers, specialists or ordinary broker-dealers that purchase registered equity securities as principal from an issuer or sell such equity securities for the issuer as an agent will ordinarily be deemed a statutory underwriter within the meaning of Section 2(a)(11) of the Securities Act of 1933 (Securities Act), even in the absence of any written agreement with the issuer. An issuer registering for resale shares underlying convertible debt or convertible preferred stock may include in the registration statement additional shares that may be issued pursuant to the terms of the debt or preferred stock as payment-in-kind interest or dividends. An issuer contemplating a registered exchange offer under Rule 13e-(4) of the Securities Exchange Act of 1934 (issuer tender offers) may communicate with its security holders prior to the first public announcement of the offering if such communication is made in accordance with Securities Act Rules 165 and 166, as applicable. An issuer may not use a non-automatic shelf registration statement that registers offers and sales pursuant to a dividend reinvestment plan (DRIP) more than three years after the initial effective date of the registration statement if the DRIP also permits new investors to purchase shares though the plan. Regulation FD does not prohibit an issuer's directors from speaking privately with shareholders or groups of shareholders, provided that the director does not disclose material non-public information to such shareholder or shareholders under circumstances in which it is reasonably foreseeable that the shareholder will trade the issuer's securities on the basis of such information; alternatively, a director may discuss such information with a shareholder or shareholders who have expressly agreed to maintain the disclosed information in confidence. Item 402(a)(iii) of Regulation S-K requires compensation disclosure for the issuer's three most highly compensated executive officers plus each person who served as the issuer's principal executive officer (PEO) and principal financial officer (PFO) at any time during the most recently completed fiscal year; accordingly, an executive officer who served as an issuer's PEO or PFO during such period may not be included in the determination of the issuer's three most highly compensated executive officers. Click here to view the C&DI (Question 121A) with respect to Form 8-K.

Click here to view the C&DIs (Questions 108.01 and 108.02) with respect to Securities Exchange Act Rules.

Click here to view the C&DIs (Questions 111.01, 125.11 and 139.31) with respect to Securities Act Sections.

Click here to view the C&DIs (Questions 132.17, 164.01, 165.01, 212.21, 212.30, 212.31 and 271.16) with respect to Securities Act Rules.

Click here to view the C&DIs (Questions 115.16 and 115.17) with respect to Securities Act Forms.

Click here to view the C&DI (Question 215.04) with respect to Outdated or Superseded C&DIs.

Click here to view the C&DI (Question 101.11) with respect to Regulation FD.

Click here to view the C&DIs (Questions 117.06 and 119.27) with respect to Regulation S-K.


SEC Approves New Stock-by-Stock Circuit Breakers Rules

On June 10, the Securities and Exchange Commission announced that it approved rules requiring the exchanges and the Financial Industry Regulatory Authority to implement new stock-by-stock circuit breakers. Under the rules, if a stock in the S&P 500® Index experiences a 10% change in price over the preceding five minutes, trading in such stock will be paused for a five-minute period. The pause is designed to allow the markets to attract new trading interest in the paused stock and provide time for buyers and sellers to trade at rational prices. The SEC anticipates that the exchanges and FINRA will begin implementing the rules as early as June 11.

The rules were first proposed jointly by the exchanges and FINRA in response to the May 6 market plunge, in which severe price volatility led to a large number of trades being executed at prices more than 60% below pre-decline prices. The rules will be in effect on a pilot basis until December 10 and will be limited to stocks in the S&P 500® Index, but SEC Chairman Mary Schapiro "hope[s] to rapidly expand the program to thousands of additional publicly traded companies." In addition to the new stock-by-stock circuit breaker rules, the SEC is working with the exchanges to consider re-calibrating market-wide circuit breakers currently in place, none of which were triggered on May 6.

To read the SEC's order addressed to the exchanges, click here.

To read the SEC's order addressed to FINRA, click here.


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