Would a Violation Affect a Companys Eligibility to Use Forms S-3 and Rule 144?
Failure to comply with Regulation FD does not affect a company’s ability to use the short form registration procedures under the securities laws (i.e., Forms S-3 or S-8) or to rely upon Rule 144. Should We Reevaluate Our Internal Procedures? To prepare for Regulation FD, companies should evaluate their existing internal procedures. Procedures that will comply with Regulation FD may already be in place at many companies. While Regulation FD does not require companies to adopt procedures, the SEC takes the position that “the existence of an appropriate policy, and the issuer’s general adherence to it, may often be relevant to determining the issuer’s intent with regard to a selective disclosure.” At the very least, companies will need to make an affirmative decision with respect to how much, if any, guidance will be given in an open format, as well as whether the company will publicly reaffirm its guidance at a subsequent time. • Speak with a single voice. Designate a limited number of p
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