by:  Cydney Posner

With regard to the WKSI automatic shelf registration statements (discussed in my posting of March 6, 2006), Corporate Counsel is now reporting that the Staff has withdrawn its previously enunciated position. Initially, Chief Counsel David Lynn had indicated in a panel presentation that, where a WKSI automatic shelf was filed (and therefore automatically effective) after the filing of the 10-K (assuming forward incorporation of Part III information), but before the proxy statement was filed, the Staff viewed the prospectus as deficient until the company either filed its definitive proxy statement, amended its 10-K to include Part III information or included the Part III information in a prospectus supplement to the automatic shelf. As a result, a takedown during that window was problematic.

According to Corporate Counsel, the SEC Staff is now taking the position that the Staff will not object to a takedown during that period, but will instead allow companies to make their own decisions as to whether the registration statement and prospectus satisfy applicable requirements. Nevertheless, given the Staff's statements, it may still be difficult to give negative 10b-5 assurances absent inclusion of the Part III information through one of the described methods. Reportedly, the Staff views its position to be consistent with the Staff's traditional position regarding shelf takedowns.

In addition, the Staff has again confirmed Telephone Interpretation H-6, which reflects the Staff's historical position that a non-automatic registration statement will not be declared effective during that window period unless the current year's Part III information is included in the filing or incorporated from a filed document.

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