On Aug. 14, 2009, the Securities and Exchange Commission issued several new or revised compliance and disclosure interpretations (CDIs) related to the Securities Act, the Exchange Act, Securities Act forms and Regulation S-K. In addition, the SEC republished in the current CDI format the Regulation FD telephone interpretations. The following new or revised are notable:
Securities Act Sections Questions 103.04/139.01. According to these interpretations, if convertible or exchangeable securities are being registered and the security is convertible or exchangeable within one year, the underlying securities must be registered at the same time that the convertible securities are registered. Otherwise, the underlying securities must be registered prior to the time when the securities become convertible or exercisable by their terms. Where securities are convertible only at the option of the issuer, the underlying securities must be registered at the time the convertible securities are registered, since the entire investment decision that investors will be making is at the time of purchasing the convertible securities.
Rule 415 & Form S-3 Questions 212.05/118.02. Under these interpretations, an unqualified Exhibit 5 legality opinion must be filed no later than the closing date of an offering that is conducted as a shelf takedown. These interpretations had previously stated that the opinion was required to be filed prior to any sales or contracts of sale. In addition, a legality opinion is required to be filed at the time securities are registered on a Form S-3, even if sales are not expected in the near future, and when a new class of securities is added to an automatic shelf registration statement by post-effective amendment.
Item 402 of Regulation S-K Question 117.03. This CDI requires that if a named executive officer's bonus is clawed-back, the amount of the reduction should be deducted from the total bonus reported in the Summary Compensation Table, and a footnote should state the amount of the reduction. If the bonus relates to prior-year compensation but was clawed-back in a later year, the later year's compensation amount is not affected, only the reporting of the prior year's compensation.
Item 402 of Regulation S-K Question 125.05. According to this interpretation, if an equity award has vested and the plan under which it was granted provides for the deferral of its receipt, the deferred equity award should be reported in the Nonqualified Deferred Compensation Plan table.
Item 404 of Regulation S-K Question 230.07. This CDI makes it clear that the employment of a child of a director by the company upon whose board the director sits must be reported as a related party transaction if the child is paid in excess of $120,000 per year.
Regulation FD. The CDIs for Regulation FD, for the most part, were unchanged. The notable exceptions are Question 101.01, which provides additional guidance related to confirm a prior earnings forecast, and Questions 102.06 and 102.07, which provide that a shareholder meeting or other open meeting that is not broadcast or webcast, even where the press is present, is not a Regulation FD compliant method of public disclosure.
Other new or revised CDIs include guidance with respect to when a Form S-3 may be used to register securities sold in a rights offering; when offers and sales may be made while a post-effective amendment is pending; when securities issued in a second private placement may be added by pre-effective amendment to a registration statement registering securities issued in a previous private placement; and when a voluntary filer is eligible to use Form S-3. A complete list of the CDIs issued Aug. 14, 2009 is available on the SEC's website at www.sec.gov/divisions/corpfin/cfnew/cfnew0809.shtml.