Answer: No. Answer: Item 6.F of Form 20-F provides for individualized disclosure for an issuers named executive officers. Question: A registrant with a calendar year end has less than 300 holders of record as of February 15 and files a Form 15 to terminate its Section 12(g) obligations under Rule 12g-4 before the due date of the Form 10-K for the most recently completed fiscal year. 111 provides that "a person acting in good faith may modify a prior contract, instruction, or plan before becoming aware of material nonpublic information. Answer: Co-principal executive officers (or co-principal financial officers) should each execute separate certifications. Question: Can a company suspend its reporting obligations under Section 15(d) with respect to the fiscal year within which such registration statement became effective? 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. Is a Form 15 required to be filed under Rule 12h-3 as a condition of the suspension? Answer: Rules 10b5-1(c)(1)(i)(A)(3) and (B)(1) could provide a defense if the limit order is non-discretionary. To whom is the registered public accounting firm reporting critical accounting policies and practices? Consequently, if he is aware of material nonpublic information at the time of exercise, no defense will be available under Rule 10b5-1(c). 25, 2009]. 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). [Mar. Answer: Yes, assuming two additional facts are present: (1) the terms of the plan do not permit her to exercise any subsequent influence over the timing of sales under the plan; and (2) the broker is not aware of material nonpublic information when selling securities under the plan. However, the listing standards are not required to be effective until November 28, 2023 and issuers subject to such listing standards will not be required to adopt a recovery policy for 60 days following the date on which the applicable listing standards become effective. Must the issuer file the periodic report? Question: A person who has adopted a written trading plan or given trading instructions to satisfy Rule 10b5-1(c) plans to sell the securities in reliance on Rule 144. 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. [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. Because this would give the issuer the potential to effectively modify the plan by doing the block trades while aware of material nonpublic information, the Division staff took the view that the Rule 10b5-1(c) affirmative defense would not be available. Question: If the same individual is both the principal executive officer and principal financial officer, must he or she sign two certifications? Question: Does termination of a plan affect the availability of the Rule 10b5-1(c) defense for prior plan transactions? 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. [September 30, 2008]. Answer: Yes. Answer: No. 16718 (Apr. The same analysis applies whether the option is a put or a call. The proxy statement still must be filed independently to comply with Rule 14a-6. SCHEDULE 13G Under the Securities Exchange Act of 1934 (Amendment No. Filers that are unable to submit or post Interactive Data Files when required must comply with the hardship exemption requirements of either Rule 201 (temporary hardship exemption) or Rule 202 (continuing hardship exemption) of Regulation S-T. Does Rule 10b5-1(c)(1)(i)(B)(3) provide a defense for sales under this plan? Answer: The individual performing the functions of a principal executive officer at the time of the filing must provide the certification. 111 and Question 120.16. Is the exercise of the option covered by a Rule 10b5-1(c)(1)(i)(B)(1) defense despite the fact that the amount, price and date are not specified by the same method? See Securities Act Release No. That the principal executive and financial officers do not need to consider such controls in making their individual certifications about their responsibility for establishing and maintaining the filer's disclosure controls and procedures does not mean that the filer can exclude such controls in complying with Rules 13a-15 and 15d-15 and Item 307 of Regulation S-K. [May 29, 2009]. The adoption of the plan itself may not be the same as placement of a sell order. Question: Can a registrant that filed a Form 12b-25 subsequently rely on the COVID-19 Order (Release No. At the time of the filing of the periodic report, another officer is performing the functions of a principal executive officer. 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. 7881 (Aug. 15, 2000), at fn. Rule 12g5-1(a)(3) provides a special counting method for securities held in a custodial capacity for a single trust, estate or account. 26100 (Sept. 22, 1988), 53 FR 37778. 25, 2009]. Rule 0-12 None Sections 110 to 119. [Mar. Unless this condition is met, the 45 day relief period provided in COVID-19 Order will not be available. Answer: No. 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. The purpose of the disclosure in these circumstances is to alert dealers required to deliver a prospectus in the 90 days after the effective date of their additional responsibilities under Rule 15g-9 if the trading price falls below $5. 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. 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. [September 30, 2008]. Answer: The term calendar month under Rule 12b-2 is interpreted in a manner consistent with the term calendar month in determining Form S-3 eligibility. Question: May an issuer rely on Rule 12b-25 for an extension to file a special financial report under Rule 15d-2? [September 30, 2008]. Otherwise, a right to dividends alone shall not represent a pecuniary interest in the securities; ( E) A person's interest in securities held by a trust, as specified in 240.16a-8 (b); and. Question: Using the same facts in Question 161.08 above, if the amendment is not filed within the time period required for the periodic report, is the report deemed to be untimely? [September 30, 2008]. [January 27, 2023]. 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? Rule 3a1-1 Exemption from the definition of "Exchange" under Section 3 (a) (1) of the Act. The staff does not interpret the term to mean that the company cannot continue to use an already effective Form S-3 to make offers and sales during the extension period. [December 8, 2016]. Question: During a month when the written trading plan described in Question 120.11 is in effect, the person calls the broker to place an order to sell an additional 15,000 shares at the market. Question: On January 1, a person adopts a written plan for selling securities that satisfies the affirmative defense conditions of Rule 10b5-1(c). (Release No. Other than the referenced section, the process and registration statements used are the same as for a Section 12 (g) registration. 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. [September 30, 2008], 261.01 An issuer filing a special financial report on Form 10-K under Rule 15d-2 must file the certification required by Item 601(b)(31) of Regulation S-K, but may omit paragraphs 4 and 5 of the certification because the report will contain only audited financial statements and not Item 307 or 308 of Regulation S-K disclosures. 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. The Section 15 (d) reporting requirements are scaled down from the Exchange Act reporting requirements for a company with a class of securities registered under Section 12. 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. [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. The issuer is not permitted to file a special financial statement report containing such audited financial statements pursuant to Rule 15d-2 (as opposed to an annual report in accordance with Rule 13a-1). 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. Rule 3a5-1 Exemption from the definition of . 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. Question: How does the analysis in Question 120.11 change if the written trading plan doesn't specify when the non-discretionary limit order will be in force? Poison pill rights issuable under stockholder rights plans are not the type of rights contemplated by Rule 12a-5, which provides a temporary exemption from registration for substituted or additional securities to allow when-issued trading. 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). Two months later, he wishes to exercise the option. 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. Should the registrant instead furnish a report on Form 8-K or 6-K, as applicable, relying on the COVID-19 Order (Release No. 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. 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. File Number S7-0-22); Proposal to Further Define "As a Part of a Regular Business" in the Definition of . First, the person could have exercised discretion not to pay the loan, resulting in default and the transfer of the securities. Is the sale pursuant to the option exercise covered by an affirmative defense under Rule 10b5-1(c)? [September 30, 2008]. These purchases are made pursuant to bi-weekly payroll deductions. 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. The sale was not pursuant to a contract, instruction or plan that did not permit the person to exercise any subsequent discretion over how, when, or whether to effect purchases or sales. 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? Question: Can a filer rely on Exchange Act Rule 12b-25 to extend the due date of an Interactive Data File? SECURITIES AND EXCHANGE COMMISSION . 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. 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. S7-12-22), supra. 1338. Answer: The cancellation of one or more plan transactions would be an alteration or deviation from the plan, which would terminate that plan. Answer: Yes. Also, she may have had the discretion to substitute collateral or provide additional collateral or cash to prevent foreclosure and sale of the stock. 25, 2009]. In such cases, a transition report would not be required. [September 30, 2008]. 25, 2009], 230.01 If two accelerated filers or large accelerated filers merge and become subsidiaries of a newly formed holding company, that newly formed holding company will be deemed an accelerated or large accelerated filer, respectively. (a) The application shall be in writing in the form of a letter, must include any supporting documents necessary to make the application complete, and otherwise must comply with 240.0-3. The issuer is not permitted to file a special financial statement report containing such audited financial statements pursuant to Rule 15d-2 (as opposed to an annual report in accordance with Rule 13a-1). 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. Answer: Rule 12g5-1 defines held of record for purposes of Exchange Act Section 12(g) and 15(d). Alternatively, an issuer may make the determination based on the number of voting securities. [Mar. 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. Answer: The new CEO, provided that he or she is the principal executive officer at the time of the filing. This position is consistent with the look back provision of Rule 12h-3(e), which provides that a company that suspends its reporting obligation under Rule 12h-3, but subsequently has that reporting obligation revived, must begin reporting again under Section 15(d) by filing a Form 10-K for its previous fiscal year. A company that is registering on a national securities exchange accomplishes its registration under Section 12 (b) of the Exchange Act . 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). Regulators as well as Congress must approach this technology with a balanced approach, that Question: Is it permissible for the say-on-frequency vote to include the words "every year, every other year, or every three years, or abstain" in lieu of "every 1, 2, or 3 years, or abstain"? The 401(k) plan also allows employees to transfer the assets in their accounts among funds within the plan (including the employer stock fund) through fund-switching transactions. [September 30, 2008]. USA February 27 2023. Rule 3a4-1 Associated persons of an issuer deemed not to be brokers. 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 . After the registrant files the Form 10-K, however, all offers and sales under the registration statement must cease. Therefore, an issuer may not look to Rule 12b-25 to avoid filing a periodic report that becomes due after the filing of the Form 25 but before the effectiveness of the delisting. Electronic storage media is defined as any digital storage medium or system that meets the conditions set forth in the rule. [September 30, 2008]. By contrast, under Rule 15d-6, if an issuer has fewer than 300 security holders of record at the beginning of the fiscal year, a Form 15 should be filed to notify the Commission of such suspension, but the suspension is granted by statute and is not contingent on filing the Form 15. [December 8, 2016]. [September 30, 2008]. The written trading plan would need to specify the amount, price and dates of the sales. The person may transfer plan transactions to a different broker without being deemed to have cancelled the original plan and adopted a new plan if the transfer to the new broker is timed so that there is no cancellation of any transaction scheduled in the original plan, and the new broker effects sales in accordance with the original plans terms in compliance with Rule 10b5-1(c). [September 30, 2008]. 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. SUPPLEMENTARY INFORMATION: The Commission is adopting amendments to 17 CFR 240.15c2-12 ("Rule 15c2-12" or "Rule") under the Securities Exchange Act of 1934. 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. Question: What fee rates apply to repurchases of securities and to proxy solicitations and statements in corporate control transactions? Title 17 was last amended 1/27/2023. The consent(s) of the accountant(s) for the acquired company should be filed with the Form 8-K. [September 30, 2008], 234.02 An issuer with a pending Securities Act registration statement files its Form 10-K and seeks to incorporate by reference into the Form 10-K information from the pending registration statement. Answer: No. Does adoption of the Rule 10b5-1 plan change the due date for the Form 144? 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? The periodic report will not be deemed timely for purposes of form eligibility, and the issuer will not be deemed current until the amended periodic report containing the certification is filed. [September 30, 2008]. Shortly thereafter, the foreign issuer reincorporates in Delaware. Answer: The issuer must make the determination with respect to the board that performs the functions most closely to those undertaken by a U.S.-style board of directors. Rule 12g-4 does not suspend an obligation to file a Form 10-K or Form 10-Q when either form was due before the Form 15 was filed. [Mar. The person must make this specification or delegation in good faith before becoming aware of material nonpublic information. 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], 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. [Mar. ( d) Emerging growth company eligibility - The Form 10-K would then be due for filing on Tuesday, April 16 (15 days after April 1, not 15 days after April 2). Answer: Rule 12b-25 provides that an annual or quarterly report shall be deemed timely filed if a Form 12b-25 making certain specified representations is filed no later than one business day after the due date of the annual or quarterly report, and the report itself is filed no later than fifteen or five calendar days, respectively, after the due date. [September 30, 2008]. 9002 (Jan. 30, 2009). A Form 12b-25 filing does not extend the original due date of a report. Answer: Rule 12b-25(d) provides that, during the extension period, a company will not be eligible to use any registration statement form under the Securities Act the use of which is predicated on timely filed reports until the subject report is actually filed. The staff interprets the term use contained in the rule to mean that a company would not be eligible to file a new registration statement on Form S-3 until the subject report is filed within the extension period. [January 27, 2023]. 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. In other words, the instruction permits forward incorporation by reference of the proxy statement into the already filed Form 10-K. 34-94524; File No. Question: On its proxy card and voting instruction form, how should a company describe the advisory vote to approve executive compensation that is required by Exchange Act Rule 14a-21? The Rule 13a-1 annual report would be due at the same time as any other such annual report. Answer: Yes. 25, 2009]. 2, 1980). Answer: Yes. Answer: No. [Mar. Question: Must an issuer that is filing or submitting reports exclusively under Section 15(d) of the Exchange Act on a voluntary basis (for example, pursuant to a covenant in an indenture or similar document), due to a statutory suspension of the Section 15(d) filing obligation, comply with Rules 15d-14 and 15d-15 and the disclosures required by Item 307 and Item 308 of Regulation S-K? Answer: If an employee acts in good faith and is not aware of material nonpublic information at the time she provides written or oral instructions as to payroll deduction purchases, a defense would be available for those purchases under Rule 10b5-1(c). The SEC amended Rule 17a-4 on October 12, 2022 to modify the requirements regarding the maintenance and preservation of electronic records, the use of third-party recordkeeping services to hold records, and the prompt production of records. Question: How is the number of record holders determined under Rule 12g5-1? Answer: An issuer may choose one of two methods. 25, 2009]. The first sale of securities under the plan will take place on March 1 in reliance on Rule 144. [June 4, 2010]. For example, if a non-reporting foreign private issuer acquires a reporting foreign private issuer using shares as consideration in a transaction exempt from registration under the Securities Act (such as under Section 3(a)(10)), how should the non-reporting foreign private issuer begin filing on EDGAR? Under Rule 12g-3(f), the successor must file a Form 8-K with respect to the succession transaction, using the predecessors file number. Answer: A person who has permanent resident status in the U.S. a so-called Green Card holder is presumed to be a U.S. resident. Subsequently, on the first day of fiscal year 2010, the number of record holders exceeded 300, and as a result, the companys obligation to file periodic reports under section 15(d) revived. What is the first report due for this company?
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