RONALD J. STAUBER
A LAW CORPORATION
1880 CENTURY PARK EAST, SUITE 300
LOS ANGELES, CALIFORNIA 90067
TELEPHONE (310) 556-0080
FACSIMILE (310) 556-3687
July 26, 2002
Via Electronic Delivery and Regular Mail
Mr. Jonathan G. Katz
Secretary, U.S. Securities
and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-0609
Re: Proposed Rule: Additional Form 8-K Disclosure Requirements and Acceleration of Filing Date
[Release Nos. 33-8106; 34-46084; File No. S7-22-02]
Dear Mr. Katz:
I appreciate the opportunity to submit comments as it relates to the above-mentioned proposed rule involving additional disclosures and the acceleration of a filing date.
This letter addresses the acceleration of the filing date issue only.
I am a sole practitioner representing issuers filing under the Securities Exchange Act of 1934 (the "1934 Act") or performing contract legal services for other attorneys and law firms as it relates to the 1934 Act and various other securities issues. The registrant's involved in my practice are substantially deemed to be small business issuers which are subject to the same Form 8-K requirements as other registrants except any reference in the Form 8-K to Regulation S-K is deemed a reference to Regulation S-B and any financial statements called for must conform to the requirements of Item 310 of Regulation S-B rather than to Regulation S-X (Form 8-K, General Instruction C.3.)
As the law currently stands, the Form 8-K needs to be filed only if one of the events that the form requires to be reported occurs. Said events include those currently enumerated and a catchall event which is any other matter which the registrant regards as of material importance to security holders and elects to report in the Form 8-K (Item 5). The item (Item 5) relating to other material matters is optional with the registrant and is not a requirement that all material matters be reported. The Form 8-K is to be filed within 15 days of the event reported on except as to Item 4 (the resignation or dismissal of the certifying accountant) and Item 6 (the resignation of a director if the director has furnished certain information concerning policies of the company and the director requests that such matter be disclosed) which are to be reported on within 5 days of the event, and Item 5 (other material events) which can be reported on at any time. To the extent Regulation S-B omits an item of Regulation S-K called for by Form 8-K, the small business issuer normally need not report it, unless included in Item 5.
I strongly support the premise that better and faster disclosure of important corporate events, without duplication in other forms filed before the Securities and Exchange Commission ("Commission"), is important in connection with providing registrants a method to satisfy their public disclosure requirements. Generally, I have no objection (although I may have comments) to the added events that have been proposed to be included in the current report on Form 8-K under the 1934 Act.
As it relates to the proposed two business day filing deadline, for example, with respect to the disclosure whenever a company enters into an agreement that is material to the company and that is not made in the ordinary course of the company's business, the quality of the disclosure could be achieved by attaching a copy of the document as an exhibit and the quality of the disclosure would not necessarily be compromised by a shortened deadline.
The attaching of an exhibit referred to in the previous paragraph is applicable to any deadline that can be fulfilled by the filing of an existing document.
As it relates to the time limits for documents involving auditors, the proposals will provide substantially inadequate time for the small business issuer to consult with their outside auditors, the audit committees, if any, the board of directors and counsel (including the Commission) on issues wherein the passage of time, with input from outside experts, may result in a proper and quality completion of the work. Any narrative disclosures would most likely be better, with the passage of time (with the opportunity to "revisit" the proposed disclosure), as opposed to having a registrant rush to meet a filing deadline or filing a Form 12b-25 in order to obtain the extension time. An improper disclosure (which may then be the subject of an amendment) and/or the filing of a request for an extension may have an adverse effect upon the confidence of the investing public.
In summary, the proposed two business day deadline may not be reasonable in that many small business issuers cannot compile and review the required information and file the Form 8-K within the proposed time frame. Reportable events will all end up occurring on a Thursday so that a Monday filing can be achieved, predicated upon the unrealistic deadline.
In addition, most small business issuers will incur added outside legal and accounting costs as a result of the shorter time periods. Those small business issuers who use outside firms to prepare the Edgar filings will also incur overtime and rush charges (and an added charge if a Form 12b-25 is filed).
Further, in connection with the proposed rule, I see a benefit if the Commission revises the definition of "small business issuer," so as to increase the number of companies qualifying as a small business issuer and, at the same time, provide the small business issuers with a different and more liberal application of the proposed time deadlines (i.e. no change from the current deadlines). By creating this dichotomy, I do not believe that investor protection would be compromised in that the investor, for said registrants, would still have access to reliable and balanced disclosures.
In summary, I strongly support the Commission's efforts in providing timely and meaningful material disclosure; however, I believe that the filing deadlines for Form 8-K to two days after an event triggering the form's disclosure requirements may not be workable.
I also suggest that the notice on Form 12b-25 of the registrant's inability to timely file a particular Form 8-K, should make a specific reference to the item omitted (not section) which would have the added affect of notifying the investing public that a disclosure will be forthcoming. The inherent "fickleness" of the public of not knowing the contents of the disclosure would have the indirect effect of having the registrant comply with the disclosure requirements called for in the Form 8-K rather than automatically using the Form 12b-25 to obtain the two business day (or whatever filing day the Commission accepts) extension of the filing deadline.
If you have any questions concerning the contents of this letter, please do not hesitate to telephone me.
Very truly yours,
RONALD J. STAUBER