Voluntary Filers

Summary

Typically, an issuer whose Exchange Act reporting obligations have been suspended, but which continues to file to satisfy an indenture covenant or other contractual obligation

e.g., an otherwise "private company" which sells registered high yield debt to a relatively small group of institutional holders
e.g., an LBO fund portfolio company
SEC commentary
See Exchange Act § 15(d)

SEC rules don't prohibit these companies
from continuing to file

Voluntary filers are categorized as unseasoned issuers

For purposes of applying SEC rules
Ineligible for WKSI status
Part of Securities Offering Reform
Final release commentary II.A.4

SEC requires disclosure of voluntary filer status

By checking a box on

Application of Sarbanes-Oxley Act

Voluntary filers are not Sox Act "issuers"

SOX Act only applies to "issuers required to file reports"
SEC SOX Act FAQs:

SOX Act provisions can still apply as they affect the disclosure requirements of the periodic reports filed with SEC

Following chart summarizes applications of SOX act provisions
based on these principles

Applies?	Provision
Yes	§ 302 CEO / CFO Certifications Disclosure requirement Included in SEC periodic report forms
No	§ 906 CEO / CFO Certifications "Outside" SEC periodic report forms § 906 certifications "accompany" these filings
Yes	§ 407 Audit committee financial expert S-K disclosure item Included in SEC periodic report forms
Yes	§ 401(a) Material correcting adjustments Disclosure requirement Should be addressed when preparing SEC periodic reports
Yes	§ 401(a) Off-balance sheet transactions S-K disclosure item Included in SEC periodic report forms
Yes	§ 401(b) SEC_CODE_REF_0090001192884 Reconciliation of non-GAAP financial information S-K disclosure item Included in SEC periodic report forms Goes to whether statements made are complete and not misleading
Yes	§ 404 Internal control disclosure S-K disclosure item Included in SEC periodic report forms
Yes	§ 406 Code of ethics S-K disclosure item Included in SEC periodic report forms
No	§ 304 Forfeiture of bonuses in event of restatement Substantive requirement Not expressly included in SEC periodic report forms
No	§ 402 Ban on insider loans Substantive requirement Not expressly included in SEC periodic report forms
No	§ 303 Prohibited influence of auditors Substantive requirement Not expressly included in SEC periodic report forms
No	§ 306 Trading ban during pension fund blackout periods Substantive requirement Not expressly included in SEC periodic report forms
No	§ 806 Protection of whistleblowers Substantive requirement Not expressly included in SEC periodic report
No	§ 301 Audit committee requirements Substantive requirement Implemented through NYSE / Nasdaq rules Not expressly included in SEC periodic report forms
No	§ 204 Auditors report to the audit committee Substantive requirement Not expressly included in SEC periodic report forms
No	§ 201 - § 206 Auditor conflicts Prohibited non-audit services by auditors Preapproval of other non-audit services Mandatory lead audit partner rotation Ban on hiring auditor personnel Substantive requirements Not expressly included in SEC periodic report forms

SEC No-action Letters

Federal Home Loan Banks

Federal Home Loan Bank of Boston 12.23.05
Federal Home Loan Bank of Pittsburgh 9.28.05
Federal Home Loan Bank of Dallas 9.15.05
Federal Home Loan Bank of Cincinnati 9.13.05
Federal Home Loan Bank of New York 8.26.05
Federal Home Loan Bank of San Francisco 8.26.05

Commentary

Application of Rule 701 exemption

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