Question: Is the institutional defense provided by Rule 10b5-1(c)(2) available to the issuer of the securities for a repurchase plan? Question: Section 15(d) of the Exchange Act provides an automatic suspension of the periodic reporting obligation as to any fiscal year (except for the fiscal year in which the registration statement became effective) if an issuer has fewer than 300 security holders of record at the beginning of such fiscal year. An application must be submitted to the Office of the Secretary either in paper or electronic format. [September 30, 2008]. PDF Exchange Act Rule 17a-4 Amendments - Finra.org Question: If the same individual is both the principal executive officer and principal financial officer, must he or she sign two certifications? The issuer is not otherwise required to file Exchange Act reports under Section 13(a) or 15(d) of the Exchange Act after the effective date of the delisting. 25, 2009]. The proxy statement still must be filed independently to comply with Rule 14a-6. If the amendment does not contain or amend disclosure pursuant to Item 307 or 308 of Regulation S-K (or the equivalent disclosure requirement in Form 20-F or 40-F), and such disclosure is not otherwise required to be amended given the nature of the reasons for the amendment, paragraphs 4 and 5 may be omitted from the certifications that are filed with the amendment. Answer: The form already includes the representation, so modification is unnecessary. Answer: As set forth in paragraph (a) of Rules 13a-14 and 15d-14, where an issuer does not have a principal executive officer or a principal financial officer, the person or persons performing similar functions at the time of filing of the report must execute the required certification. changes and over-the-counter markets are affected with a national Members of the public flooded the State Capitol again on Tuesday. [September 30, 2008]. Question: When does Rule 12g-4 suspend an issuers Section 13(a) and Section 14(a) reporting obligations? [September 30, 2008]. Therefore, as a successor to the foreign issuer's reporting obligations, the Delaware corporation must immediately begin filing Exchange Act reports on domestic issuer forms. [Mar. [September 30, 2008]. The terms of the option, which is a binding contract within the meaning of Rule 10b5-1(c)(1)(i)(A)(1), specify the amount of shares to be sold and the price at which they will be sold under the option. The rule specifies when a writing is necessary to establish a defense. Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person when the bank sells the stock? 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? [September 30, 2008], 280.01 Exchange Act Release No. 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. 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]. 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. N.B. eCFR :: 17 CFR Part 240 -- General Rules and Regulations, Securities The securities of a successor issuer described in Rule 12g-3 are deemed to be registered under Section 12 by operation of law, and no Exchange Act registration statement on Form 8-A or any other form therefore need be filed. Although Rule 12g-3 technically does not apply because only one issuer is involved, the Division is of the view that the new common stock would succeed to the registered status of the old common stock, so that continuous Exchange Act reporting would be required. File Number S7-0-22); Proposal to Further Define "As a Part of a Regular Business" in the Definition of . Question: The interactive data adopting release provides that controls and procedures with respect to interactive data fall within the scope of "disclosure controls and procedures." 17 CFR Part 240 - GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE Question: An issuer does not have a principal executive officer or a principal financial officer. Question: May a company continue to use a registration statement that is predicated on timely filed reports (such as Form S-3) during the Rule 12b-25 extension period for a periodic report? If the registrant only files a Form 12b-25 by the original due date of the required report, it will have not met the condition of the COVID-19 Order to provide the statements called for by the original filing deadline on a furnished Form 8-K or Form 6-K. Answer: In order for the subsidiary to be exempt from filing a periodic report pursuant to Rule 12h-5, the full and unconditional parent guarantee of the subsidiarys debt securities must be in effect before the end of the period that would have been covered by the periodic report, assuming that all other applicable conditions of Rule 3-10 of Regulation S-X are met. All issuers filing or submitting reports under Section 15(d) on a voluntary basis must comply with those provisions whether or not a Form 15 has been filed pursuant to Rule 15d-6. Answer: Yes. However, in cases in which the subsidiary under Rule 3-09: (1) is less than 50% owned, (2) is itself a reporting company, and (3) will be filing its financial statements late and is itself eligible to use Rule 12b-25 for an extension, the Division staff will construe Rule 12b-25(b) to be available to the parent with respect to the subsidiarys filing. Therefore, unless a registrant that filed a Form 12b-25 also furnished a Form 8-K or Form 6-K by March 16, 2020 or the original due date of the report, it would not be able to rely on the COVID-19 Order. Answer: The first report due will be a Form 10-K for the previous fiscal year (fiscal year 2009). Apart from this specification, she does not have or share any control over the trust's assets. Question: A CEO resigned after the end of the quarter but before the filing of the upcoming Form 10-Q. Washington, D.C. 20549 . Absent other factors indicating the location from which an issuer's officers, partners, or managers primarily direct, control and coordinate the issuer's activities on a consolidated basis, as described in Securities Act Rules CDI 203.22 / Exchange Act Rules CDI 110.07, there is no single factor or group of factors that is determinative of whether an issuer's business is principally administered in the United States. Question: Is it permissible for the say-on-pay vote to omit the words, "pursuant to Item 402 of Regulation S-K," and to replace such words with a plain English equivalent, such as "pursuant to the compensation disclosure rules of the Securities and Exchange Commission, including the compensation discussion and analysis, the compensation tables and any related material disclosed in this proxy statement"? Answer: Yes. [September 30, 2008], 254.01 If an issuer of a guaranteed security has a different class of securities that is registered under Section 12 of the Exchange Act, the issuer cannot rely on Rule 12h-5 for reporting relief until it deregisters the other class of securities. [Mar. Rule 10b5-1(c)(1)(i)(C) requires, as a condition to the exemption, that the purchase or sale be pursuant to the contract, instruction, or plan. 25, 2009]. 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. Unless this condition is met, the 45 day relief period provided in COVID-19 Order will not be available. Does Rule 10b5-1(c)(1)(i)(B)(3) provide a defense for sales under this plan? Answer: Yes. Question: For purposes of the definition of foreign private issuer in Securities Act Rule 405 and Exchange Act Rule 3b-4(c), how does an issuer determine whether its business is administered principally in the United States? See Securities Act Release No. 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. [Mar. 25, 2009]. [Mar. Thus, the company would be eligible to use Form S-3 only after it subsequently filed its Exchange Act reports on a timely basis for 12 calendar months after the original Form 10-K due date. Answer: Paragraph (f) of Rule 12b-25 excludes from the operation of the rule a company with a subsidiary whose financial statements are to be filed by amendment to the companys Form 10-K, as provided in Rule 3-09 of Regulation S-X. 7881 (Aug. 15, 2000) at fn. [September 30, 2008]. [September 30, 2008]. 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. Rule 0-12 None > Sections 110 to 119. 25, 2009]. 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. 117-121. PDF Amendments to Exchange Act Rule 3b-16 Regarding the Definition - House As a result, Rule 12b-25 cannot be used to extend the time available for satisfying Part IIIs line-items by incorporating the proxy statement. Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person for the broker's sales? In these circumstances, an issuer must decide what criteria it will use to determine residency and apply them consistently without changing them to achieve a desired result. [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). (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. INTELLIGENT SYSTEMS CORP (Form: DEF 14A, Received: 07/13/2020 16:06:54) That provision, however, does not apply to domestic issuers. 117-121. [Mar. Answer: Yes. Rule 12b-15 provides that amendments may be signed by a duly authorized representative of the registrant. [September 30, 2008]. [Apr. Question: A companys CEO is resigning at the end of the year and is no longer performing the functions of a principal executive officer even though she remains employed with the company and has the title of the CEO. Question: What is the due date of a Form 12b-25 when the due date of the periodic report falls on a Saturday, Sunday or federal holiday? [September 30, 2008], 253.02 Rule 12h-3(c)-(d) operates to relieve a holding company of the Section 15(d) reporting obligation which would normally arise from the registration statement filed for the reorganization of a non-reporting company into a one-subsidiary holding company where the equity holders receive the same proportional interests in the holding company and the holding company emerges from the reorganization with more than 300 shareholders. Other individuals without permanent resident status may also be residents of the U.S. for purposes of these provisions. Answer: No. Question: Does Rule 12a-5 provide an exemption from registration for poison pill rights under stockholder rights plans? [September 30, 2008], 234.01 Where a company is being acquired, the acquiring company may incorporate by reference the acquired companys Form 10-K financial statements into the acquiring companys Form 8-K, so long as copies of the pertinent pages of the Form 10-K are filed as an exhibit to the Form 8-K. In this case, where one or more of the price, amount and dates of transactions under a contract, instruction or written plan are to be determined based on a delegation of discretion to another person, the availability of a defense depends upon satisfaction of the conditions of Rule 10b5-1(c)(1)(i)(B)(3). The rule provides that a purchase or sale is not "pursuant to a contract, instruction, or plan" if, among other things, the person entered into or altered a corresponding or hedging transaction or position with respect to those securities. [September 30, 2008], 250.02 The successor to a Section 12(g) registrant that underwent a re-incorporation merger to change its state of incorporation reported the merger in the next Form 10-Q that would have been required of the Section 12(g) registrant, and thereafter continued to file Exchange Act reports in reliance upon Rule 12g-3. note 1. Answer: No. How can the registrant suspend its Section 15(d) obligation on a going forward basis? [December 8, 2016]. The market order is not a corresponding or hedging transaction within the meaning of Rule 10b5-1(c)(1)(i)(C) because it does not reduce or eliminate the economic consequences of the limit order sales under the written trading plan. Answer: No. Question: Can Rule 12b-25 be used to extend the due date for timely filing of information incorporated by reference from definitive proxy materials into Item III of Form 10-K? Should this other officer sign the certification despite the fact that there is a titular CEO? Question: After its Form 25 is effective for the delisting of a class of securities from a national securities exchange (and assuming that the same class of securities is not listed on any other national securities exchange), a registrant files a Form 15 with respect to the Section 12(g) registration and/or Section 15(d) reporting obligation relating to the same class of securities. Answer: If the registrant has not filed a Form 10-K after the Rule 12b-25 extension period has run, and the registrant is not yet required to update the registration statement under Section 10(a)(3) of the Securities Act, the registrants ability to make offers and sales will depend on whether the company determines that the prospectus included in the Form S-3 is a valid Section 10(a) prospectus and there are no Section 12(a)(2) or anti-fraud concerns with the prospectus. 3 SECURITIES EXCHANGE ACT OF 1934 4 ties the functions commonly performed by a stock exchange as that term is generally understood, and includes the market place and the market facilities maintained by such exchange. The companys next Form 10-Q is due on the same Sunday the Form 25 will become effective. [January 27, 2023]. The in connection with requirement is satisfied when a fraud coincides with a securities transaction. 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. An issuer may not look to Exchange Act Rule 0-3(a) to avoid filing the periodic report in the event that the due date of the periodic report falls on a Saturday, Sunday or federal holiday and the effective date of the delisting occurs on the first business day following that due date. [September 30, 2008]. Answer: This is a question of fact. Where several Exchange Act reports are being amended at the same time, the amendments should not be made in a single filing. 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. The written trading plan would need to specify the amount, price and dates of the sales. As such, these filers do not meet the requirement that they be subject to Section 13(a) or 15(d) of the Exchange Act, which is among the criteria for meeting Rule 12b-2s definitions of accelerated filer and large accelerated filer. [September 30, 2008]. Answer: No. In such situations, the Commission assigns an Exchange Act file number for the successor holding company when the Form 8-K is filed. For plans that take into account incentive-based compensation, an issuer would be expected to claw back the amount contributed to the notional account based on erroneously awarded incentive-based compensation and any earnings accrued to date on that notional amount. ( d) Emerging growth company eligibility - [September 30, 2008]. [June 4, 2010]. Question: At a time when he is not aware of material nonpublic information, a person buys a put option, giving him the right at any time during the 12-month term of the option to sell 10,000 shares at a fixed exercise price. [Mar. Answer: No. Often times those agreements contain commercially sensitive terms that could result in competitive harm if revealed to the public. The text of Rule 15c2-12 is provided in Attachment A. Paragraphs 1 and 2 may not be omitted under any circumstances. Answer: Rule 12g5-1 defines held of record for purposes of Exchange Act Section 12(g) and 15(d). The market order does not effect an alteration or deviation of a plan transaction within the meaning of Rule 10b5-1(c)(1)(i)(C) because the 10,000 share limit order under the plan will continue to be executed when the price limit is met. [September 30, 2008]. Also, she may have had the discretion to substitute collateral or provide additional collateral or cash to prevent foreclosure and sale of the stock. Horizon Therapeutics plc - Rule 2.12 Announcement To whom are the principal executive and financial officers disclosing significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting, or fraud involving management or other employees who have a significant role in the registrants internal control over financial reporting? Exchange Act Rule 0-12 describes the procedures for seeking an exemption under Section 36. Whether or not any terms are set at creation, for a Rule 10b5-1(c)(1)(i)(B)(3) defense to be available, the person is not permitted to exercise any subsequent influence over how, when, or whether a transaction occurs. However, the adopting release also adopts amendments to Exchange Act Rules 13a-14 and 15d-14 that exclude interactive data from officer certifications, which, among other things, describe the officers' responsibility for establishing and maintaining disclosure controls and procedures and require statements regarding their design and evaluation. 3 Securities Exchange Act Release No. Securities Act Release No. Answer: The filing of a certification on Form 15 pursuant to Rule 12g-4 immediately suspends an issuers obligation to file periodic reports pursuant to Section 13(a), but the issuers obligations under Section 14(a) continue until the effective date of the issuers Section 12(g) deregistration. SEC Adopts Amendments to Modernize Rule 10b5-1 - Lexology 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. 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. Registrants unable to rely on the COVID-19 Order are encouraged to contact the staff to discuss collateral consequences of late filings. Foreign private issuers that file on domestic forms and provide executive compensation disclosure under Item 402 of Regulation S-K should provide individualized disclosure for their named executive officers to the extent required by Form 20-F. For foreign private issuers that use Form 20-F, individualized disclosure is required about members of their administrative, supervisory, or management bodies for whom the issuer otherwise provides individualized compensation disclosure in the filing. 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. Other than the referenced section, the process and registration statements used are the same as for a Section 12 (g) registration. ( F) A person's right to acquire equity securities through the exercise or conversion of any derivative security, whether or not presently exercisable. 24, 2009]. [Mar. Question 120.14, which provides that delegation of discretion to a broker to reduce the number of shares to be sold under a trading plan to comply with the Rule 144(e) volume limitations, was distinguished because the reductions in Question 120.14 reflect limitations imposed by law rather than an exercise of discretion by the seller. The Commission originally proposed a version of the rule that would have looked through to the beneficial owners of the street-name securities, but adopted the rule in a form that does not produce this result. Do Rules 10b5-1(c)(1)(i)(A)(3) and (B)(1) provide a defense for sales under this plan if the limit order is non-discretionary (requiring the broker to execute a sale as soon as a buyer is available at or above $20 per share)? [September 30, 2008]. As long as the terms of the option contract do not permit the person to exercise any subsequent influence over how, when or whether she sells the shares covered by the option, and she does not in fact influence the timing of the option exercise, a defense would be available under Rule 10b5-1(c)(1)(i)(B)(3). 25, 2009]. See Securities Act Release No. This is because the terms of the margin account contract would permit him to exercise subsequent influence over how, when, or whether to effect purchases or sales. Question: What fee rates apply to repurchases of securities and to proxy solicitations and statements in corporate control transactions?
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