The The companys next Form 10-Q is due on the same Sunday the Form 25 will become effective. Instead, the analysis would focus on whether the person was aware of material nonpublic information at the time she places the market order. Question: In determining whether the majority of the directors are United States citizens or residents under the definition of foreign private issuer in Securities Act Rule 405 and Exchange Act Rule 3b-4(c), how should the determination be made when the issuer has two boards of directors? [September 30, 2008]. These purchases are made pursuant to bi-weekly payroll deductions. Question: If the certifications required by Rules 13a-14(a) and 15d-14(a) are not included as exhibits to a Form 10-K or 10-Q, and an amendment will be filed to include the certifications as exhibits, must the entire periodic report be re-filed or can the amendment include only the signature page? Standing alone, does the act of terminating a plan while aware of material nonpublic information, and thereby not engaging in the planned securities transaction, result in liability under Section 10(b) and Rule 10b-5? The person will need to file a Form 144. Under the bankruptcy plan, all shares of the old common stock are canceled simultaneously with the issuance of the new common stock to new holders. The effect of the instruction is to deem the Part III information to have been timely filed on the due date applicable to the Form 10-K. Between the date of filing the Form 25 and the effective date of the delisting under Rule 12d2-2(d)(1), a periodic report becomes due. Answer: If a limit order is discretionary, the discretion granted to the broker over the timing of a sale would require the conditions of Rule 10b5-1(c)(1)(i)(B)(3) to be satisfied for a defense to be available. These exemptive requests, if submitted electronically, must be sent to: Section 36 Exemptive Applications Shareholders could interpret this example as asking them to vote on whether or not the company should hold an advisory vote on executive compensation, rather than asking shareholders to actually approve, on an advisory basis, the compensation paid to the companys named executive officers. Pursuant to Rule 12b-25, there are no additional extensions of time beyond the 15 calendar days for annual reports and the 5 calendar days for quarterly reports. For example, if an issuer became subject to the requirements of Section 13(a) on January 15 and remains subject to Section 13(a) through the end of the year, it will have been subject to the requirements of Section 13(a) for eleven calendar months as of December 31. [Mar. General Instruction G.(3) to Form 10-K permits a reporting issuer subject to the proxy rules to omit Part III information concerning management and its compensation from the Form 10-K, if the information omitted from Part III is disclosed in the issuers proxy statement and if the proxy statement is filed with the Commission no later than 120 days from the end of the fiscal year. If a registrant properly files a Form 12b-25 with respect to a periodic report, and the Rule 12b-25 extension period for the filing of the periodic report ends on a Saturday, Sunday or federal holiday, the periodic report will be deemed to have been filed within the Rule 12b-25 extension period if the registrant files the periodic report by the next business day, consistent with Exchange Act Rule 0-3. 25, 2009]. For example, where the due date for a Form 10-K is Sunday, March 31, the Form 10-K would be due on Monday, April 1 and the Form 12b-25 would be timely if filed on Tuesday, April 2. The stock price falls and the broker issues a margin call. The person may be aware of material nonpublic information when she places the limit order. [September 30, 2008]. Answer: No. These Compliance and Disclosure Interpretations ("C&DIs") principally comprise the Division's interpretations of the rules promulgated under the registration and reporting provisions of Sections 12, 13 and 15 of the Exchange Act. Or, if there is ultimately an individual serving as the general partner of a limited partner in the chain of ownership, then that individual is likely performing the equivalent functions of an audit committee for the registrant. Answer: No. Answer: No. The issuer is not otherwise required to file Exchange Act reports under Sections 13(a) or 15(d) of the Exchange Act after the effective date of the delisting. See Exchange Act Release No. Question: A registrant expects that due to COVID-19 it will be unable to file a report of the type covered by Rule 12b-25 on a timely basis without incurring an unreasonable effort or expense. Rule 12d2-2(d)(5) specifies that the issuers duty to file any reports under Section 13(a) solely because of registration pursuant to Section 12(b) is suspended only when the Form 25 is effective for the delisting. Oftentimes, if there is ultimately a corporation serving as the general partner of a limited partner in the chain of ownership, the corporations audit committee or full board is likely performing the equivalent functions of an audit committee for the registrant. [September 30, 2008]. This is because the Form 10-K serves as the Section 10(a)(3) update to the Form S-3, as provided in the undertakings in Item 512 of Regulation S-K. Further, for purposes of Rule 401(b) under the Securities Act, the filing of the Form 10-K constitutes a post-effective amendment to the Form S-3. An issuer which files a Form 12b-25 for an extension of the period for filing a periodic report, and subsequently files a Form 15 under Rule 12g-4 prior to the expiration of the extension, would still be required to file the periodic report. Answer: No. See, e.g., SEC v. Zandford, 535 U.S. 813 (2002) and Merrill Lynch, Pierce, Fenner & Smith, Inc., v. Dabit, 547 U.S. 71 (2006). Answer: Yes. Answer: No. Question: A condition for meeting the definitions of accelerated filer and large accelerated filer in Rule 12b-2 is that the issuer must have been subject to the requirements of Section 13(a) or 15(d) of the Exchange Act for a period of at least twelve calendar months as of the end of its fiscal year. Answer: In the adopting release, the Commission indicated that it does not expect compliance with the disclosure requirements until issuers are required to have a recovery policy under the applicable exchange listing standard. Where a written formula specifies one or more of the price, amount and dates of transactions that are all specified in a contract, instruction or written plan, the Rule 10b5-1(c)(1)(i)(B)(2) defense would apply. Reliance on this affirmative defense does not prevent the person from setting some of the terms of the purchases or sales at the creation of the contract, instruction or plan so that no one has subsequent discretion as to those terms. Question: At a time when he is not aware of material nonpublic information, a person will establish a blind trust to which he will contribute some, but not all, of the issuer securities that he owns. To implement the sales, the plan provides that on the last day of each month the person will place a limit order with a broker, valid until the last day of the next month, to sell 10,000 shares at or above $20 per share. [Mar. In the Citizens and Southern Corp. no-action letter (Feb. 8, 1988) issued by the Division, we state that, for a plan filing annual reports on Form 11-K, no other reports required by Section 13 of the 1934 Act would be required. [September 30, 2008], 220.01 After the written trading plan described in Q&A 120.11 has been in effect for several months, the broker that has been executing plan sales goes out of business at a time when the person is aware of material nonpublic information. Section 10(b) and Rule 10b-5 apply to any fraudulent conduct "in connection with the purchase or sale of any security." Question: At a time when she is not aware of material nonpublic information, a person obtains a bank loan to invest in real estate, and pledges securities as collateral. (19) of Form 40-F provides for individualized disclosure for an issuers named executive officers. Answer: Rule 12g5-1 defines held of record for purposes of Exchange Act Section 12(g) and 15(d). [September 30, 2008], 253.01 A registrant formed two limited partnerships, the A partnership and the B partnership, both having between 300 and 500 shareholders. [September 30, 2008]. 240.12b-2 Definitions. Can the person modify the Form 144 to state that the representation regarding the sellers knowledge of material information regarding the issuer is as of the date the Rule 10b5-1 plan was adopted or instructions given, rather than the date the person signs the Form 144? (b) The market order transaction would not affect the availability of the written trading plan defense for the limit order sales under the written trading plan. Answer: Yes. However, the person would not be permitted to exercise subsequent influence over trust sales if the instrument creating the trust specified either (1) the percentage of the volume limit to be allocated to sales by the trust and other sales by the person, or (2) that the trustee would determine that allocation for each applicable three-month period without consulting the person. Question: Do Rules 10b5-1(c)(1)(i)(A)(3) and (B)(1) provide a defense for sales under the written trading plan described in Question 120.11 when the limit order is discretionary (where the broker is granted discretion such that the broker is not required to execute a sale as soon as a buyer is available at or above $20 per share)? [September 30, 2008]. Rule 3a4-1 Associated persons of an issuer deemed not to be brokers. Answer: Yes. [September 30, 2008]. Rule 0-12 None Sections 110 to 119. May it continue to use the foreign private issuer forms and rules until it retests its foreign private issuer status on the next determination date? [December 8, 2016]. Question: For purposes of determining accelerated filer and large accelerated filer status, may an issuer take into account its reporting history as a voluntary filer? [September 30, 2008]. Question: Can a registrant that filed a Form 12b-25 subsequently rely on the COVID-19 Order (Release No. (a) All papers required to be filed with the Commission pursuant to the Act or the rules and regulations thereunder shall be filed at the principal office in Washington, DC. Therefore, in order to resume making sales under the effective registration statement, the company would have to file (and have declared effective) a post-effective amendment on whatever form the company is eligible to use for that offering at that time. Answer: Yes. Question: An issuer files a Form 25 to delist a class of securities from a national securities exchange and to terminate the Section 12(b) registration of that class. As a condition to its use, the COVID-19 Order requires, among other things, that the registrant furnish certain specified statements by the later of March 16, 2020 or the original due date of the required report. A voluntary filer is not subject to Section 13(a) or 15(d) of the Exchange Act because it is not obligated to file Exchange Act reports pursuant to either of those provisions. For national banks and Federal savings associations, any references to registration requirements under the Securities Act of 1933 and its accompanying rules in the rules, regulations, and forms described in paragraph (a) (1) of this section mean the registration requirements in 12 CFR part 16. Rule 3a1-1 Exemption from the definition of "Exchange" under Section 3 (a) (1) of the Act. For complete classification of this Act to the Code, see Short Title of 1999 Amendment note set out under section 1811 of Title 12, Banks and Banking, and Tables. Rule 3a5-1 Exemption from the definition of . In contrast, the rule requires a plan for trading securities (Rule 10b5-1(c)(1)(i)(A)(3)) and a formula, algorithm or computer program for determining amounts, prices and dates of transactions (Rule 10b5-1(c)(1)(i)(B)(2)) to be written. The question is whether the prospectus forming part of the registration statement should disclose the applicability of Rule 15g-9, the penny stock cold-calling rule, in the event of a price decline in the aftermarket. Question: If a registrant with a December 31 fiscal year-end files a Form 10 in November 2007 which goes effective in January 2008, what is the first Form 10-K that the registrant is required to file? Amendments should be filed separately for each Exchange Act report to be amended. In such a case, the newly formed public company would not wait until the end of its fiscal year to determine its accelerated filer status. Concurrently, the issuer registers under the Exchange Act using a Form 8-A that also does not contain the final year end audited financial statements. During any three-month period, sales of issuer securities by the trust will share the Rule 144(e) volume limitation with the person's sales of other issuer securities he owns. [Apr. [September 30, 2008]. Definitions: Rules 3a11-1 to 3b-19 Question 110.01 Question: A foreign issuer qualifies as a foreign private issuer on the last business day of its most recently completed second fiscal quarter, which is the "determination date" for foreign private issuer status under Exchange Act Rule 3b-4 (c). Question: Under the 401(k) plan described in Question 120.21, is a Rule 10b5-1(c) defense available for fund-switching transactions that result in purchases or sales of employer stock? 34-88465 (March 25, 2020)), to extend the filing deadline for the subject report? An employee benefit plan with a Section 15(d) reporting obligation that files Forms 11-K, or that has its filing obligation satisfied by compliance with Exchange Act Rule 15d-21, is not required to file any other periodic reports or any current reports. Answer: No. Question: After the written trading plan described in Question 120.11 has been in effect for several months, the person terminates the selling plan by calling the broker and canceling the limit order. Where the person retains any discretion to substitute or provide additional collateral, or to repay the loan before the pledged securities may be sold, Rule 10b5-1(c)(1)(i)(B)(3) does not provide a defense. The effective date of a Form 25 for the delisting of an issuers securities may not be earlier than 10 days following the date on which such form is filed with the Commission. If the company does not anticipate filing the periodic report within the extension period, it should not check the box in Part II of Form 12b-25. [September 30, 2008], 260.01 An issuer goes effective with a Securities Act registration statement after its fiscal year end without including audited financial statements as of such year end in such registration statement. Registrants unable to rely on the COVID-19 Order are encouraged to contact the staff to discuss collateral consequences of late filings. Answer: No. [December 8, 2016]. Question: Where the registrant is a limited partnership that does not have an audit committee, who should be considered the persons performing the equivalent function as referenced in paragraph 5 of the certifications required by Rules 13a-14(a) and 15d-14(a)? Similarly, a company that must file a registration statement on Form 10 to register a class of securities under Section 12(g) must include financial statements for its previous fiscal year. Answer: No. Question: At a time when she is not aware of material nonpublic information, a person establishes a trust. Rule 12d2-2(d)(5) specifies that the issuers duty to file any reports under Section 13(a) solely because of registration pursuant to Section 12(b) will be suspended upon the effective date of the delisting. A company registers securities under Section 12 by filing an Exchange Act registration statement such as on Form 10, Form 20-F or Form 8-A. Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. [September 30, 2008]. Answer: Yes, it is permissible to use a plain English equivalent in lieu of the words, "pursuant to Item 402 of Regulation S-K." [Feb. 11, 2011]. 25, 2009]. Notwithstanding the due dates prescribed by Rule 15d-10(j)(1) for transition reports to be filed on the form appropriate for annual reports of the issuer, the Division staff took the position that the short-year Form 11-K could be filed 180 days after the plans fiscal year end. [Aug. 11, 2010]. [September 30, 2008]. Answer: No. Commodity Exchange Act & Regulations How Rules Are Made Holding Wrongdoers Accountable Federal Register Public Comments CFTC Staff Letters Office of Technology Innovation Market Data & Economic Analysis Data at CFTC Commitments of Traders Bank Participation Reports Cotton On-Call Financial Data for FCMS Net Position Changes Data Staff Reports Rule 12b-25 has been amended to state that its provisions do not apply to Interactive Data Files. Pub. If the company determines that it does not have a valid Section 10(a) prospectus, it should cease making any offers or sales under the registration statement that includes that prospectus. 25, 2009], 220.02 A company sought to establish a stock repurchase plan that would comply with Rules 10b5-1(c)(1) and 10b-18. Question: Can a filer rely on Exchange Act Rule 12b-25 to extend the due date of an Interactive Data File? Question: A company has filed a Form 25 which will become automatically effective on a Sunday. Question: Does termination of a plan affect the availability of the Rule 10b5-1(c) defense for prior plan transactions? Question: Must the vote on say-on-frequency, as required by Rule 14a-21(b), be in the form of a "resolution"? Plaintiffs initiated an action against MacroGenics, its president and CEO, and its senior vice president and CFO (collectively "Defendants") for alleged violations of sections 10(b) and 20(a) of the Securities Exchange Act of 1934, Securities and Exchange Commission ("SEC") Rule 10b-5, and sections 11, 12(a), and 15 of the Securities . Question: Is the Rule 10b5-1(c) affirmative defense available where a person establishes a Rule 10b5-1 written trading plan while aware of material nonpublic information if the plan is structured so that plan transactions will not begin until after the material nonpublic information is made public? While the check boxes and other disclosure requirements will be in the rules and forms in 2023, we do not expect issuers to provide such disclosure until they are required to have a recovery policy under the applicable listing standard. [December 8, 2016]. If during the term of the trust the person can control what portion of the Rule 144(e) volume limitation is available for trust sales, the person would be permitted to exercise subsequent influence over trust sales within the meaning of Rule 10b5-1(c)(1)(i)(B)(3). [Mar. The fee rates set forth in Exchange Act Rule 0-11 do not apply. As discussed in Question 130.02, voluntary filers submit Exchange Act reports without being obligated to do so pursuant to Section 13(a) or 15(d) of the Exchange Act. Question: Under applicable state law, an oral agreement would be considered a binding contract. In such situations, the Commission assigns an Exchange Act file number for the successor holding company when the Form 8-K is filed. 78c(a)(47)). In effect, there are four determinations: the citizenship status of executive officers, the residency status of executive officers, the citizenship status of directors, and the residency status of directors. A company must always file the Form 10-K for the fiscal year in which the registration statement is declared effective. The in connection with requirement is satisfied when a fraud coincides with a securities transaction. Question: At a time when she is not aware of material nonpublic information, a person establishes a written trading plan to sell 5,000 shares each month, on a date to be selected by her broker during the second or third week of each month, at or above $20 per share. Question: At a time when he is not aware of material nonpublic information, a person purchases a put option. Under Exchange Act Rule 3b-4(e), a foreign issuer generally may use the foreign private issuer forms and rules until the first day of the fiscal year following the determination date on which it no longer qualifies as a former private issuer. eCFR :: 17 CFR Part 240 -- General Rules and Regulations, Securities Exchange Act of 1934 eCFR The Electronic Code of Federal Regulations Title 17 Displaying title 17, up to date as of 2/08/2023. Who must execute the certifications required by Rules 13a-14(a) and 15d-14(a)? The Securities and Exchange Commission (SEC) Rule 15c2-12 promulgated under Section 15 (c) (2) of the Securities Exchange Act of 1934, contains disclosure and continuing disclosure requirements applicable to municipal securities. Question: Is a company required to file a Form 12b-25 even when it anticipates filing a periodic report after the Rule 12b-25 extension period? Under Rule 12g-3(f), the successor must file a Form 8-K with respect to the succession transaction, using the predecessors file number. 16718 (Apr. Is a defense available under Rule 10b5-1(c)(1)(i)(B)(3) for the quarterly sales by the trust? Institutional custodians, such as Cede & Co. and other commercial depositories, are not single holders of record for purposes of the Exchange Acts registration and periodic reporting provisions. Does adoption of the Rule 10b5-1 plan change the due date for the Form 144? Registrants unable to rely on the COVID-19 Order are encouraged to contact the staff to discuss collateral consequences of late filings. Answer: The individual may provide one certification and provide both titles underneath the signature. In establishing the trust, she specifies that the trust shall sell 1,000 shares of issuer stock each quarter. Question: At a time when she is not aware of material nonpublic information, a person establishes a written trading plan to sell 10,000 shares each month, at or above $20 per share. Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person when the bank sells the stock? Question: In determining whether a majority of the executive officers or directors are United States citizens or residents under the definition of foreign private issuer in Securities Act Rule 405 and Exchange Act Rule 3b-4(c), must the calculation be made separately for each group or are executive officers and directors to be treated as a single group when making the assessment? Sec. Shortly thereafter, the foreign issuer reincorporates in Delaware. Answer: An issuer may choose one of two methods. The instruction to the broker, which is an instruction to another person within the meaning of Rule 10b5-1(c)(1)(i)(A)(2), specifies the date of the transaction and imposes a limit on the price, within the meaning of Rule 10b5-1(c)(1)(iii)(B). Question: For a class of securities that is being delisted from a national securities exchange, may a Form 15 be filed with respect to that class of securities before the effective date of the delisting pursuant to a Form 25? Question: At a time when he is not aware of material nonpublic information, a person obtains a $1 million loan from a brokerage firm and places $2 million of stock in a margin account with the broker. [September 30, 2008]. First, the person could have exercised discretion not to pay the loan, resulting in default and the transfer of the securities. 7881 (Aug. 15, 2000), text at fn. Therefore, the registrant would not satisfy General Instruction I.A.3 to Form S-3 at the time of its Section 10(a)(3) update because, while the company may be current in its Exchange Act reporting at that time, it would not be timely in that reporting for the twelve calendar months preceding the filing of the Section 10(a)(3) update. Such individualized disclosure is required about executive officers for whom the issuer otherwise provides individualized compensation disclosure in the filing. SCHEDULE 13G Under the Securities Exchange Act of 1934 (Amendment No. 25, 2009]. 25, 2009]. In contrast, securities held in street name by a broker-dealer are held of record under the rule only by the broker-dealer. 2, 1980). Two months later, he wishes to exercise the option. Question: A person purchases employer stock through her participation in the employer's 401(k) plan. Rule 10b5-1(c)(1)(i)(B)(1) would not be available. The date by which the periodic report must be filed pursuant to Rule 12b-25(b)(3) falls after the effective date of the delisting. Answer: The officer should include his or her title under the signature. Is a Form 15 required to be filed under Rule 12h-3 as a condition of the suspension? Answer: This is a question of fact. Exchange Act Rules 13a-15 and 15d-15 require certain officers to evaluate the effectiveness of the filer's disclosure controls and procedures, and Item 307 of Regulation S-K requires the filer to disclose the officers' conclusions regarding the effectiveness of those disclosure controls and procedures. Answer: If there are no financial statements or other financial information in the amendment, then paragraph 3 may be omitted from the certifications that are filed with the amendment. [September 30, 2008], 250.05 Rule 12g-3(a) would be available to effect Section 12 registration of securities of a successor issuer formed as part of the predecessors emergence from bankruptcy, even though the class of securities so registered will be issued to persons other than the holders of the registered class of the predecessor. See Securities Act Release No. Question: A foreign issuer qualifies as a foreign private issuer on the last business day of its most recently completed second fiscal quarter, which is the "determination date" for foreign private issuer status under Exchange Act Rule 3b-4(c). Question: Is the institutional defense provided by Rule 10b5-1(c)(2) available to the issuer of the securities for a repurchase plan? Question: When a registrant is amending multiple Exchange Act reports at the same time, may it do so in a single filing? Question: If the Rule 12b-25 extension period ends on a Saturday, Sunday or federal holiday, may the periodic report be filed on the next business day and still be deemed to have been timely filed? Material may be filed by delivery to the Commission, through the mails or otherwise. [September 30, 2008]. Benefits of Registration
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