The Securities and Exchange Commission (the "SEC") voted on November 15, 2007: (1) to shorten the holding periods for restricted securities under Rule 144 of the Securities Act of 1933 (the "Securities Act"); (2) to drop the US GAAP reconciliation requirement for foreign private issuers who prepare their financial statements in accordance with International Financial Reporting Standards ("IFRS"); (3) to provide scaled disclosure requirements for smaller reporting companies and (4) to exempt from registration certain issuances of stock options under compensatory employee stock option plans. The IFRS measure reflects an intention on the part of the SEC to encourage the use of IASB-approved IFRS (as opposed to national or regional variations of IFRS) as a uniform, global accounting standard. The other three measures were adopted by the SEC to modernize and improve the capital-raising, reporting and disclosure requirements for smaller companies.
1. Revisions to Rules 144 and 145 of the Securities Act Liberalizing Resales of Restricted Securities
The amendments to Rule 144: (i) shorten the holding period for the resale of restricted securities of reporting companies from one year to six months; (ii) substantially simplify Rule 144 compliance for non-affiliates by allowing non-affiliates of reporting companies to freely resell restricted securities after satisfying a six-month holding period (subject only to the Rule 144(c) public information requirement until the securities have been held for one year) and by allowing non-affiliates of non-reporting companies to freely resell restricted securities after satisfying a 12-month holding period; (iii) for affiliates' sales, revise the manner of sale requirements for equity securities, eliminate such requirements for debt securities and relax the volume limitations for debt securities (to be determined upon publication of the final rule); (iv) for affiliates' sales, raise the thresholds that trigger Form 144 filing requirements from 500 shares or $10,000 to 5,000 shares or $50,000; (v) simplify and streamline the preliminary note to and other parts of Rule 144 and (vi) codify certain SEC staff interpretations relating to Rule 144. The amendments to Rule 145: (i) eliminate the presumptive underwriter provision except with respect to transactions involving blank check or shell companies and (ii) revise the resale provisions of Rule 145(d). These amendments will be effective 60 days after their publication in the Federal Register. The text of the final rule release is not yet available.
2. Acceptance of IFRS from Foreign Private Issuers without Reconciliation to US GAAP
The SEC voted to accept from foreign private issuers financial statements prepared in accordance with IFRS without reconciliation to US GAAP in their filings with the SEC. The new rule will apply to financial statements for years ended after November 15, 2007. This means that foreign private issuers filing their Form 20-F for calendar year 2007 will no longer need to reconcile their financials to US GAAP. To implement the new rules, the SEC will amend Form 20-F, Rules 1-02, 3-10 and 4-01 of Regulation S-X, Forms F-4 and S-4 and Rule 701 under the Securities Act. Only financial statements prepared in accordance with IFRS as issued by the International Accounting Standards Board (IASB) will be accepted, while other versions of IFRS that diverge from full IFRS, also known as "jurisdictional IFRS," will not be accepted. However, the SEC provided for a temporary accommodation for those issuers who use IFRS "as adopted by the EU" (i.e., issuers who apply IFRS using the optional EU exception with respect to hedge accounting treatment for financial instruments under International Accounting Standard 39). European issuers relying on this accommodation must reconcile their financial statements prepared in accordance with IFRS "as adopted by the EU" to full IFRS for a two-year transition period. At the end of the transition period these issuers will have to comply with full IFRS. The rule amendments will take effect 60 days after being published in the Federal Register. The text of the final rule release is not yet available.
3. Scaled Disclosure Requirements for Smaller Reporting Companies
The final rules adopted by the SEC: (i) replace the current "small business issuer" category with a new expanded category of "smaller reporting companies" having less than $75 million in public equity float or, if a company does not have a calculable public equity float, revenues of less than $50 million in the last fiscal year; (ii) expand eligibility for the SEC's scaled disclosure and reporting requirements for smaller companies by allowing the newly defined category of smaller reporting companies to use the scaled disclosure requirements; (iii) move 12 non-financial scaled disclosure item requirements from Regulation S-B into Regulation S-K (the scaled disclosure requirements will only be available to smaller reporting companies); (iv) move the scaled financial statement requirements in Item 310 of Regulation S-B into new Article 8 of Regulation S-X, and amend these requirements to provide a scaled disclosure option for smaller reporting companies, requiring two years of balance sheet data instead of one year; (v) permit smaller reporting companies to elect to comply with scaled financial disclosure and non-financial disclosure on an item-by-item or "a la carte" basis; (vi) eliminate the SEC's current "SB" forms, but allow a phase-out period for current small business issuers transitioning to smaller reporting company status and (vii) permit foreign companies to qualify as smaller reporting companies if they choose to file on domestic company forms and provide financial statements prepared in accordance with US GAAP. The effective date for these rules will be 30 days after their publication in the Federal Register. The text of the final rule release is not yet available.
4. Exemption of Compensatory Employee Stock Options from Registration under Section 12(g) of the Exchange Act
The two amendments to Rule 12h-1 of the Securities Exchange Act of 1934 (the "Exchange Act"): (i) provide an exemption for private non-reporting issuers from Exchange Act Section 12(g) registration for compensatory employee stock options issued under employee stock option plans and (ii) provide an exemption from Section 12(g) registration for compensatory employee stock options for issuers that are required to file reports pursuant to Exchange Act Section 13 or Section 15(d). The exemptions will apply only to an issuer's compensatory employee stock options and will not extend to the class of securities underlying those options. These amendments will be effective as soon as they are published in the Federal Register.