Adoption of Updated EDGAR Filer Manual

MEMORANDUM

Introduction

On July 22, 2003, the Securities and Exchange Commission (the "SEC") issued final rules updating the EDGAR filing manual (the "EDGAR Filing Rules").  The rules went into effect on July 28, 2003, improving the functionality of the SEC's on-line forms website for preparing and submitting Forms 3, 4 and 5 (the "Forms Website") and establishing new filing hours.  In addition, these rules implement final rules adopted by the SEC earlier this year regarding amendments to Form 8-K and exhibit requirements for CEO and CFO certifications in Forms 10-K and 10-Q.

Improvements to Forms Website

The EDGAR Filing Rules provide for same day acceptance and dissemination for Forms 3,4 and 5 and Rule 462(b)[1] filings filed by 10:00 p.m.  In addition, the EDGAR Filing Rules have improved the functionality of the Forms Website.  Directors, officers and beneficial owners required to file Forms 3, 4 and 5 can use an on-line template to type in transaction data, add applicable attachments and file the report using the Forms Website.  These changes will:

• allow filers to list securities holdings separately from securities transactions reported on Forms 4 and 5;
• allow filers to report gift, phantom stock plan and similar transactions by changing some fields from mandatory to optional or by including a footnote to explain why a field is blank;
• improve the processing and display of holdings, gifts and phantom stock data; and
• automatically enter a filer's address based on his/her CIK number; however, filers will have the ability to change such address.

New Filings Hours

For a six month trial period, which commenced on July 28, 2003, filings will be accepted and disseminated starting at 6:00 a.m. Eastern Standard Time each business day rather than at 8:00 a.m.  At the end of the trial period, the SEC expects to decide whether or not it will continue to use the 6:00 a.m. start time.

New Requirements for Forms 8-K and Filing CEO/CFO Certifications

On January 22, 2003, Item 11 (regarding insider trades during pension fund blackout periods) and Item 12 (relating to the use of non-GAAP financial measures) were added to Form 8-K pursuant to rules adopted by the SEC.  On January 23, 2003, Item 10 (regarding changes to or waivers of the code of ethics) was also added to Form 8-K.  Rules governing the certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 were implemented on June 5, 2003 by rules adopted by the SEC.  Registrants are required to file the Section 302 certification as Exhibit 31 and to furnish[2] the Section 906 certification as Exhibit 32 for Forms 10-Q and 10-K due on or after August 14, 2003. 

At the time these rules were adopted the EDGAR system did not have the necessary programming to implement them, so the SEC provided interim guidance for temporary compliance.  However, as of July 28, 2003, the EDGAR Filing Rules allow registrants to: file Items 10 and 11 on Form 8-K; furnish[3] Item 12 on Form 8-K;[4] and file Exhibit 31 and furnish Exhibit 32 on Forms 10-K and 10-Q.  As a result, registrants now should submit Forms 8-K using Item 10, Item 11 and Item 12 filing headers and should attach the Section 302 and Section 906 certifications as Exhibits 31 and 32, respectively. 

The new rules also affect certain forms required by the Investment Company Act of 1940.

For more information, you may refer to the releases found at the following links:

http://www.sec.gov/rules/final/33-8255.htm

http://www.sec.gov/info/edgar/ednews/edchanges728.htm

_____________________

These are only brief descriptions of the SEC's new rules.  This memorandum provides general information only and does not constitute legal advice that may be applied to any particular situation.  Please contact the Partners in our Corporate Department for further advice and assistance.

[1] According to Rule 462(b), a registration statement on Form S-8, S-3 or F-3 and any post-effective amendment thereto shall become effective upon filing with the SEC if: (1) the registration statement is for registering additional securities of the same class(es) as were included in an earlier registration statement for the same offering and declared effective by the SEC; (2) the new registration statement is filed prior to the time confirmations are sent or given; and (3) the new registration statement registers additional securities in an amount and at a price that together represent no more than 20% of the maximum aggregate offering price set forth for each class of securities in the "Calculation of Registration Fee" table contained in such earlier registration statement.

[2] The June 5, 2003 press release regarding the 906 certification indicated that such certification would be considered "furnished".  Information that is "furnished" is not subject to liability under Section 18 of the Exchange Act of 1934.  Moreover, 'furnished" information is not subject to automatic incorporation by reference into a company's registration statements, which are subject to liability under Section 11 of the Securities Act of 1933, unless the issuer takes steps to include the "furnished" information in a registration statement.

[3] The January 22, 2003 press release that added Item 12 indicated that the information contained therein would be considered "furnished".   See Footnote 2 hereof for a description of the significance of "furnishing" this information.

[4] The EDGAR Filing Rules also indicate that the EDGAR system now is able to accept filing of Item 13 (receipt of an attorney's written notice pursuant to 17 CFR 205.3(d)).  Addition of Item 13 to the Form 8-K was contemplated by the "noisy withdrawal" rules that were proposed by the SEC in January of 2003.  These rules have not been finalized.