SEC Simplifies Form D and Requires Electronic Filing [Feb. 2008]

By Stuart C. Campbell and Michele L. Buck-Romero

On Feb. 6, 2008, the Securities and Exchange Commission (SEC) issued a final rule adopting revisions to Form D effective Sept. 15, 2008, and requiring electronic filing of Form D as of March 16, 2009. Any company issuing securities pursuant to an exemption from registration under Regulation D should be aware of this new rule. The rule amendments are intended to ease the burdens of complying with Form D, facilitate electronic filing, improve and update Form D information requirements, and increase the public’s access to Form D information.

Under the Securities Act of 1933, an offer to sell securities must either be registered with the SEC or fall within an exemption from the registration requirements, such as the offering exemptions under Rules 504, 505 and 506 of Regulation D. A company relying upon a Regulation D exemption currently must file a Form D with the SEC in paper format no later than 15 days after the first sale of securities in the offering. Form D serves as the official notice of an exempt offering under Regulation D and includes basic information about the issuer and the offering.

2008 Compensation Disclosure & Analysis: Adherence to New Guidance Critical [Jan 2008]

By Ryan York and Matt Larson

On Oct. 9 2007, Securities and Exchange Commission (SEC) staff released additional guidance on Compensation Disclosure & Analysis (CD&A) disclosures that will affect many public companies as they prepare 2008 annual reports and proxy statements. We want to remind those affected by the guidance that the SEC expects registrants to incorporate it in 2008.

All companies that have a class of securities registered under Securities Exchange Act Section 12, or that are required to file reports under Exchange Act Section 15(d), are affected. We remind you to be certain that CD&A disclosures in your annual report and proxy include better analysis, are written in “plain English” and meet the SEC staff's disclosure standards for performance targets, benchmarks and change-in-control agreements.

We recommend that you review the SEC's Oct. 9, 2007 guidance (available here) as well as Item 402(b) of Regulation S-K well in advance of this year's deadlines for filing your annual report and distributing your proxy statement.

Regulatory Relief for Private Company Stock Option Plans: SEC simplifies reporting requirements for certain plans [Jan 2008]

By Marcus Williams

Effective Dec. 7, 2007 the U.S. Securities & Exchange Commission (SEC) adopted a rule making it easier for larger private companies to use certain types of compensatory stock option plans. The rule exempts such plans of qualifying non-reporting companies from Exchange Act registration.

The exemption under the SEC's new Rule 12h-1(f) affects private companies with more than $10 million in assets that have a class of equity securities, with stock options treated as a separate class, held by more than 500 persons. The rule also will impact certain subsidiaries of public companies.

Qualifying companies with stock option plans may reduce their compliance burden by ensuring their plans are properly structured. Qualifying companies that would like to establish stock option plans now have a clear path to doing so with greatly reduced regulatory obligations.