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). The Securities and Exchange Commission (the "SEC") recently approved final rules introducing new amendments and disclosure requirements under Rule 10b5-1 of the . Answer: No. The bracketed date following each C&DI is the latest date of publication or revision. Answer: The registrants first Form 10-K should be filed with respect to its fiscal year ended December 31, 2007. Question: Can a registrant that filed a Form 12b-25 subsequently rely on the COVID-19 Order (Release No. Apart from this specification, she does not have or share any control over the trust's assets. 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. [December 8, 2016]. Question: When does Rule 12g-4 suspend an issuers Section 13(a) and Section 14(a) reporting obligations? Answer: No. [Mar. As such, the registrant would be permitted to subsequently rely on Rule 12b-25 if it is unable to file the report on or before the extended due date. 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. 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? 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. [September 30, 2008]. PDF Be it enacted by the Senate and House of Representatives of the - GovInfo However, filers that are unable to file their traditional format financial statements by the prescribed due date but qualify for the additional time permitted under Rule 12b-25 and file their traditional format financial statements within that time would not be required to submit and post their interactive data until the traditional format financial statements are filed. Material may be filed by delivery to the Commission, through the mails or otherwise. The Form 10-K must be amended by the 120th day to disclose the Part III information if the definitive proxy statement has not been filed, as stated in the general instruction. The effect is not to constitute the 120th day as a second due date for the Part III information. 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. Question: What filings should a non-reporting foreign private issuer make when it succeeds to the reporting obligation of an issuer under Exchange Act Rule 12g-3? [September 30, 2008]. 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? PDF 7b-3 TITLE 7AGRICULTURE Page 94 (2) For all swaps that are not 24, 2009]. 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. U.S. Securities and Exchange Commission (SEC) rules require reporting companies to file material agreements as exhibits to periodic reports, registration statements and certain other disclosure documents. [Mar. 7881 (Aug. 15, 2000) at fn. [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. [September 30, 2008]. Does adoption of the Rule 10b5-1 plan change the due date for the Form 144? First, the person could have exercised discretion not to pay the loan, resulting in default and the transfer of the securities. 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. Rule 10b5-1(c)(1)(i)(B)(3) contemplates that a person, while not aware of material nonpublic information, may delegate to a third party under a contract, instruction or written trading plan, all subsequent influence over how, when or whether to effect purchases or sales. 25, 2009]. Does the manner of allocating the Rule 144(e) volume limitation between sales by the trust and the person's other sales of issuer securities affect whether the person is permitted to exercise any subsequent influence over how, when, or whether to effect purchases or sales under the trust within the meaning of Rule 10b5-1(c)(1)(i)(B)(3)? The successor later learned that at the time of the merger, the predecessor had fewer than 300 record shareholders. 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. 25, 2009]. Two months later, the option writer receives an exercise notice, requiring her to sell the shares to the counterparty at the exercise price. 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. 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. The person intends to delegate investment control over trust assets to the trustee so as to establish a defense under Rule 10b5-1(c)(1)(i)(B)(3) for trust transactions. Answer: An issuer may choose one of two methods. SEC.gov | Exchange Act Exemptive Applications The person will need to file a Form 144. Benefits of Registration [September 30, 2008], 250.03 Where the Rule 12g-3 succession involves the formation of a one-bank holding company, the subsidiary bank does not have an Exchange Act file number. (2) The term ''facility'' when used with respect to an ex-change includes its premises, tangible or intangible property SECURITIES AND EXCHANGE COMMISSION . Unless this condition is met, the 45 day relief period provided in COVID-19 Order will not be available. Answer: The cancellation of one or more plan transactions would be an alteration or deviation from the plan, which would terminate that plan. In such a case, each trust, estate or account is a distinct holder of record for purposes of Sections 12(g) and 15(d). Rule 12b-15 provides that amendments may be signed by a duly authorized representative of the registrant. 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. Consequently, if he is aware of material nonpublic information at the time of exercise, no defense will be available under Rule 10b5-1(c). Rule 15c2-12 introduced the voluntary use of private repositories called Nationally 1 17 CFR 240.15c2-12. 34-88465 (March 25, 2020))? Nelson Mullins - Gold Dome Report - Legislative Day 25 In this example, the person has retained discretion over the timing of the option exercise. Assume that the due date of the periodic report is a Saturday, Sunday or federal holiday, and the effective date of the delisting occurs on the first business day following that due date. Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person when the bank sells the stock? 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. This is permissible, provided two conditions are met: (1) the portion of the registration statement to be incorporated does not include any incorporation by reference to another document (see Item 10(d) of Regulation S-K), and (2) a copy of the incorporated portion of the registration statement is filed as an exhibit to the Form 10-K, as required by Rule 12b-23(a)(3) under the Exchange Act. 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? [Mar. Question: Which persons will be considered named executive officers for purposes of determining the parties for whom individualized disclosure pursuant to Item 6.F of Form 20-F must be provided? The registrant can file a Form 15 relating to the B partnership indicating the suspension of reporting with respect to that partnership, and continue filing reports under the 33- number for the remaining partnership. Question: May an issuer rely on Rule 12b-25 for an extension to file a special financial report under Rule 15d-2? With the advice of the Division of Trading and Markets, the Division staff recommended disclosure concerning the rule in the prospectus. 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)? The company appointed a new CEO prior to the filing. [September 30, 2008]. 7881 (Aug. 15, 2000), text at fn. SEC.gov | Exchange Act Rules 25, 2009]. [September 30, 2008]. Answer: The foreign private issuer's initial filing to evidence the succession should be a Form 6-K announcing the succession, filed on EDGAR using the 8-K submission type that is appropriate to the specific transaction. S7-12-22), supra. Question: Because the clawback rule applies broadly to incentive-based compensation, would the rules affect compensation that is in any sort of plan, other than tax-qualified retirement plans, including long term disability, life insurance, SERPs, or any other compensation that is based on the incentive-based compensation? 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. [Mar. If the margin account contract did not permit the insider to exercise any subsequent influence over how, when, or whether to effect purchases or sales, and the broker did not in fact give the person the opportunity to substitute or provide additional collateral or cash, a defense would be available under Rule 10b5-1(c)(1)(i)(B)(3) if the broker is not aware of material nonpublic information in selling the margined securities. Question: When a registrant is amending multiple Exchange Act reports at the same time, may it do so in a single filing? Question: For purposes of the definition of foreign private issuer in Securities Act Rule 405 and Exchange Act Rule 3b-4(c), would holding an annual or special meeting of shareholders or occasional meetings of the issuer's board of directors in the United States result in a determination that the issuer's business is administered principally in the United States? Who signs the certification? 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? Assuming the registrant had more than 300 holders of record as of January 1, the registrant then has a Section 15(d) obligation that revives because it had an effective Form S-3 and Form S-8 that were updated during the registrants last fiscal year by virtue of the filing and incorporation by reference of a Form 10-K into the Form S-3 and Form S-8. For Rules 10b5-1(c)(1)(i)(A)(3) and (B)(1) to provide a defense, the terms of the plan must specify the dates on which the monthly non-discretionary limit orders will be in force. Is the sale pursuant to the option exercise covered by an affirmative defense under Rule 10b5-1(c)? 26589, which significantly amended Rule 15d-10, states that [a] change from a fiscal year ending as of the last day of the month to a 52-53 week fiscal year commencing within seven days of the month end (or from a 52-53 week to a month end) is not deemed a change in fiscal year for purposes of reporting subject to Rule 13a-10 or 15d-10 if the new fiscal year commences with the end of the old fiscal year. 25, 2009]. Section 10(b) and Rule 10b-5 apply to any fraudulent conduct "in connection with the purchase or sale of any security." 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. Question: Does Rule 12a-5 provide an exemption from registration for poison pill rights under stockholder rights plans? 25, 2009]. 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. Where several Exchange Act reports are being amended at the same time, the amendments should not be made in a single filing. 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. But they weren't the only ones demanding action under the Gold Dome. Under Rule 12g-3(f), the successor must file a Form 8-K with respect to the succession transaction, using the predecessors file number. [Mar. The stock price falls and the broker issues a margin call. Must the issuer file the periodic report? The fee rates set forth in Exchange Act Rule 0-11 do not apply. [January 27, 2023]. 240.12b-2 Definitions. [September 30, 2008]. The person wishes to continue sales under the plan pursuant to its original terms. [September 30, 2008]. [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. Rule 12g5-1(a)(3) provides a special counting method for securities held in a custodial capacity for a single trust, estate or account. 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. 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. Question: If an officer signs the certification without altering the wording to indicate he or she is providing the certification as principal financial officer, how will readers know whether the signatory is the principal executive officer or the principal financial officer? Answer: No. PDF Exchange Act Rule 17a-4 Amendments - Finra.org It must comply with the accelerated filer deadlines for its Forms 10-Q filed after its formation but prior to the filing of its first Form 10-K, and the company must check the box on the cover pages of these Forms 10-Q indicating that it is an accelerated filer. [Mar. The third party who has been granted discretion must not be aware of material nonpublic information when exercising that discretion. 7b-3. 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? [Mar. Question: Is it necessary for a majority of the board of directors of the registrant to sign an amendment to a Form 10-K? (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. Question: In determining whether more than 50 percent of the assets of an issuer are located outside the United States under the definition of foreign private issuer in Securities Act Rule 405 and Exchange Act Rule 3b-4(c), can an issuer use the geographic segment information determined in the preparation of its financial statements? 25, 2009]. [Mar. The bank proceeds against the stock that was posted as collateral and sells it in the open market. 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). Paragraphs 1 and 2 may not be omitted under any circumstances. [September 30, 2008]. 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. Question: During a month when the written trading plan described in Question 120.11 is in effect, the person calls the broker to increase the non-discretionary limit order currently in force from 10,000 shares to 15,000 shares. PDF Conformed to Federal Register version. - SEC 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. Question: At a time when she is not aware of material nonpublic information, a person establishes a trust. [September 30, 2008]. 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. Answer: No. The rule specifies when a writing is necessary to establish a defense. Answer: No, because this transaction is an internal recapitalization and is not deemed to be a "sale or other disposition" for filing fee purposes. 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: 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. Shortly thereafter, the foreign issuer reincorporates in Delaware. If the company files the Form 15 on the next business day, is it required to file the Form 10-Q? [September 30, 2008], STAY CONNECTED The B partnership is now eligible to suspend filing pursuant to Rule 12h-3 because it has had less than $10 million in assets for its last three fiscal years. Answer: Yes. [September 30, 2008]. Regulators as well as Congress must approach this technology with a balanced approach, that Two months later, he wishes to exercise the option. 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. [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. eCFR :: 17 CFR 240.16a-1 -- Definition of terms. Answer: The fee rates (as adjusted annually) under Exchange Act Section 13(e) and Section 14(g) apply to repurchases of securities and to proxy solicitations and statements in corporate control transactions, respectively. Who must execute the certifications required by Rules 13a-14(a) and 15d-14(a)? Question: Can a filer rely on Exchange Act Rule 12b-25 to extend the due date of an Interactive Data File? The person may be aware of material nonpublic information when she places the limit order. Some of these C&DIs were first published in prior Division publications and have been revised in some cases. [December 8, 2016]. Answer: The rule is intended to apply broadly. 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? [March 31, 2020]. 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. 2 Securities Exchange Act Release No. See Securities Act Release No. [January 27, 2023]. usdp-20230301 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. (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. [September 30, 2008]. USA February 27 2023. 25, 2009]. Question: When must a parent companys full and unconditional guarantee be in effect in order for the parents subsidiary to be exempt from the requirements of Section 13(a) or 15(d) pursuant to Exchange Act Rule 12h-5? Title 17 was last amended 1/27/2023. 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. [September 30, 2008]. Answer: No. [September 30, 2008]. The Rule 13a-1 annual report would be due at the same time as any other such annual report. Question: Assume that the written trading plan described in Question 120.11 also includes a provision requiring the number of securities to be sold during each month to be reduced, if necessary, to comply with applicable volume limitation under Rule 144(e). Answer: Possibly, depending upon the facts and circumstances. Question: In applying the foreign private issuer definition in Securities Act Rule 405 and Exchange Act Rule 3b-4(c), how can an issuer that has multiple classes of voting stock with different voting rights determine whether more than 50 percent of its outstanding voting securities are directly or indirectly owned of record by residents in the United States? [January 27, 2023]. [September 30, 2008], 251.01 Following a tender offer, a company has sufficiently few shareholders to be eligible to file a Form 15 pursuant to Rules 12g-4 and 12h-3.