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Three SEC Updates to Keep an Eye on

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June 04, 2019 | Barbara Baksa

Three SEC Updates to Keep an Eye on

For today’s blog entry, I discuss a few recent and upcoming securities law developments.

Updates to Rule 701 and Form S-8 Could be Forthcoming

Last year, the SEC issued a concept release seeking feedback on possible modernizations to Rule 701 and Form S-8. Their suggestions included expanding both frameworks to cover securities issued to gig economy workers, allowing companies to register all plans on a single Form S-8, or eliminating Form S-8 altogether and instead allowing public companies to rely on Rule 701.

Now, this project is included in the SEC’s Spring 2019 Reg Flex Agenda, which means we could see proposed rules on this before the year is out. In the NASPP’s comment letter on the concept release, we offered some nifty suggestions for Form S-8 that I think would make our members’ lives a lot easier while still accomplishing the SEC’s objectives. I am curious to know if the SEC will take any of our suggestions.

Isn’t There Some Dodd-Frank Stuff the SEC Is Still Working On?

You bet! We’re still waiting for final rules for at least two sections of Dodd-Frank: the pay-for-performance disclosures and the directive for exchanges to require listed companies to implement clawback policies that apply when financials are restated. These projects are still on the SEC’s long-term agenda, which I assume means we aren’t going to see the final rules anytime soon. Dodd-Frank was partisan legislation (only 4 Republicans voted for it and only 2 Democrats voted against it), so we may not see final rules until we have a Democratic administration.

Accelerated Filers and Large Accelerated Filers Get Larger

Completely unrelated to Rule 701 and Form S-8, the SEC has proposed amendments to the definition of accelerated filer and large accelerated filer that would do the following:

  • Exclude smaller reporting companies from being considered accelerated or large accelerated filers, provided they have annual revenues of less than $100 million in their most recent fiscal year.
  • Increase the threshold at which a company that has achieved accelerated filer status returns to nonaccelerated filer status to public float of $60 million (up from $50 million).
  • Increase the threshold at which a company that has achieved larger accelerated filer status returns to accelerated filer status to public float of $560 million (up from $500 million).
  • Add a revenue to test to the thresholds at which companies are no longer considered accelerated or large accelerated filers.

Confused? So am I. This memo from Morrison & Foerster does a much better job than me of explaining what the proposed rules are. Maybe once the rules are final, someone will make a flow chart to help us non-lawyers figure them out.

- Barbara

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