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? SCHEDULE 13G Under the Securities Exchange Act of 1934 (Amendment No. Answer: Item B. A Form 12b-25 filing does not extend the original due date of a report. As a result, the Rule 10b5-1(c)(1)(i)(B)(3) defense would be unavailable. Moreover, if a person established a new contract, instruction or plan after terminating a prior plan, then all the surrounding facts and circumstances, including the period of time between the cancellation of the old plan and the creation of the new plan, would be relevant to a determination whether the person had established the contract, instruction or plan in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1(c). The Securities and Exchange Commission (the "SEC") recently approved final rules introducing new amendments and disclosure requirements under Rule 10b5-1 of the . 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. Answer: Yes. Question: Are there any additional extensions for the timely filing of periodic reports beyond those provided in Rule 12b-25? 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. 25, 2009]. 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 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. Title V of the Act is classified principally to chapter 94 (6801 et seq.) Question: Could fund-switching transactions under the 401(k) plan described in Question 120.21 be considered "corresponding or hedging transactions" within the meaning of Rule 10b5-1(c)(1)(i)(C) with respect to payroll deduction purchases under the 401(k) plan? 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. Answer: Yes. 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. [Mar. She fails to pay the loan as due. 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? [December 8, 2016]. C&DIs for Exchange Act Section 16 rules have been separately published and can be found at Exchange Act Section 16 and Related Rules and Forms. 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. Must the issuer file the periodic report? [September 30, 2008]. Question: Is Rule 12b-25(b) available to a parent with respect to a subsidiary whose financial statements are to be filed by amendment to the parents Form 10-K under Rule 3-09 of Regulation S-X? Apart from this specification, she does not have or share any control over the trust's assets. Answer: The following are examples of advisory vote descriptions that would be consistent with Rule 14a-21s requirement for shareholders to be given an advisory vote to approve the compensation paid to a companys named executive officers, as disclosed pursuant to Item 402 of Regulation S-K. Question: Which persons will be considered named executive officers for purposes of determining the parties for whom individualized disclosure pursuant to Item B. Answer: No. 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. 111 and Question 120.16. If it is not the titular CEO, the company should disclose in the filing that the certifying individual is performing the functions of a principal executive officer. Under Rule 12b-25(a), a company must file a Form 12b-25 for a periodic report that is filed after the due date regardless of whether it anticipates filing the periodic report within the extension period. Securities Act Release No. Answer: Yes. Question: How is the number of record holders determined under Rule 12g5-1? Within the meaning of Rule 144(a)(2), the person and the trust will be a single person. Subpart A - Rules and Regulations Under the Securities Exchange Act of 1934 ( 240.0-1 - 240.12a-11) General ( 240.12b-1 - 240.12b-7) 240.12b-1 Scope of regulation. [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. Section 10(b) and Rule 10b-5 apply to any fraudulent conduct "in connection with the purchase or sale of any security." Answer: The officer should include his or her title under the signature. The registrant has been filing a combined Form 10-K report for those partnerships using the 33- file number from the Securities Act registration statement. Answer: Yes. The Rule 13a-1 annual report would be due at the same time as any other such annual report. Answer: An issuer may choose one of two methods. 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? Question: Must co-principal executive officers (or co-principal financial officers) execute separate certifications or may both execute the same certification? 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. See Securities Act Release No. With two legislative days remaining until Crossover Day, legislators and lobbyists spent all . 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: 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. 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. 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? Answer: Yes. Answer: Item 6.F of Form 20-F provides for individualized disclosure for an issuers named executive officers. Title 17 was last amended 1/27/2023. Question: May the principal executive officer and principal financial officer of an issuer omit certain paragraphs from the certifications required by Rules 13a-14(a) and 15d-14(a) when the issuer is filing an amendment to a periodic report? The same analysis applies whether the option is a put or a call. 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. [Mar. Once the Form 25 is effective the company may file a Form 15 which will immediately suspend its Exchange Act reporting obligations. Question: On January 1, a person adopts a written plan for selling securities that satisfies the affirmative defense conditions of Rule 10b5-1(c). Answer: No. 240.12b-3 Title of securities. (Release No. changes and over-the-counter markets are affected with a national After the offering, the issuers net tangible assets will be less than $2 million and the common stock will not be an NMS Stock, as defined in Section 242.600(b)(47) of Regulation NMS. [September 30, 2008]. 2, 1980). Answer: Yes. Answer: In this case, a registrant would not have to file Section 13(a) reports during the period after the filing of the Form 15 through the effectiveness of the termination of the Section 12(g) registration and/or Section 15(d) reporting obligation, notwithstanding Rules 12d2-2(d)(6) and (7), if the company would not otherwise be required to file Exchange Act reports under Sections 13(a) or 15(d) of the Exchange Act. Rule 12g-3 provides for the registration of the securities of successor issuers under the Exchange Act. 6LinkedIn 8 Email Updates, Accounting and Financial Reporting Guidance, Compliance and Disclosure Interpretations, No-Action, Interpretive and Exemptive Letters, Exchange Act Section 16 and Related Rules and Forms, To approve the companys executive compensation, Advisory approval of the companys executive compensation, Advisory resolution to approve executive compensation, Advisory vote to approve named executive officer compensation, To hold an advisory vote on executive 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. 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). [Mar. Under Rule 12g-3(f), the successor must file a Form 8-K with respect to the succession transaction, using the predecessors file number. Question: When the conditions of Rule 144(c)(1) must be satisfied in selling securities under the Rule 144 safe harbor, may sales continue during the Rule 12b-25 extension period? 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? 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. Answer: No. If those functions are divided between both boards, the issuer may aggregate the members of both boards for purposes of calculating the majority. Although Rule 12g-3 does not provide for the succession to the predecessors Section 12(g) registration if at the time of the succession the securities of the class are held by fewer than 300 record holders, the Division staff has taken the position that Section 12(g) registration could be voluntarily continued by the successor pursuant to Rule 12g-3 in these circumstances without the filing of a new Exchange Act registration statement. 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. Such individualized disclosure is required about executive officers for whom the issuer otherwise provides individualized compensation disclosure in the filing. Answer: No. Does canceling one or more plan transactions affect the availability of the Rule 10b5-1(c) defense for prior plan transactions? Form 11-K provides that the due date for an ERISA plans Form 11-K is 180 days after fiscal year end. 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. 7881 (Aug. 15, 2000), text at fn. (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. It is uncertain as to its ability to file the required report within the applicable Rule 12b-25(b)(2)(ii) period. Question: Can a registrant that filed a Form 12b-25 subsequently rely on the COVID-19 Order (Release No. Rule 12b-25 has been amended to state that its provisions do not apply to Interactive Data Files. 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 15c2-12 introduced the voluntary use of private repositories called Nationally 1 17 CFR 240.15c2-12. [Mar. 25, 2009]. Washington, D.C. 20549 . [December 8, 2016]. 25, 2009]. The exercise of the option is a separate investment decision from the purchase of the option. 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. Question: A registrant has failed to file its Form 10-K. May the registrant continue to use an effective Form S-3, which is predicated on timely filed reports, after expiration of the Rule 12b-25 extension period relating to the Form 10-K, but before the date on which the registrant is required to update the registration statement under Section 10(a)(3) of the Securities Act? Answer: Yes. Question: The form amendments adding check boxes to the cover page of Form 10-K, Form 20-F, and Form 40-F indicating whether the form includes the correction of an error in previously issued financial statements and a related recovery analysis are effective January 27, 2023. The Rule 10b5-1(c) defense would be available for transactions following the alteration only if the transactions were pursuant to a new contract, instruction or plan that satisfies the requirements of Rule 10b5-1(c). [June 4, 2010]. 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]. 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? 25, 2009]. 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. 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. On the other hand, a registrant that relies on the COVID Order for a report will be considered to have a due date 45 days after the original filing deadline for the report. Answer: No. Rule 12b-25 is available to registrants filing special financial reports under Rule 15d-2. 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. Accordingly, the company will be required to file a Schedule 14A proxy statement or a Schedule 14C information statement relating to the back-end merger during the 90-day period between filing the Form 15 and termination of registration pursuant to Rule 12g-4. But they weren't the only ones demanding action under the Gold Dome. Rule 3a5-1 Exemption from the definition of . [Mar. Answer: Possibly, depending upon the facts and circumstances. Question: A companys obligation to file periodic reports was automatically suspended under Section 15(d) for fiscal year 2007 because the class of securities at issue was held by less than 300 record holders on the first day of the companys fiscal year. 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. 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 proxy statement still must be filed independently to comply with Rule 14a-6. Exchange Act Rule 0-12 describes the procedures for seeking an exemption under Section 36. Should the registrant instead furnish a report on Form 8-K or 6-K, as applicable, relying on the COVID-19 Order (Release No. Question: Under applicable state law, an oral agreement would be considered a binding contract. When two reporting companies consolidate, each of the predecessor companies should file a Form 15 in connection with the succession. An amendment to Form 10-K does not require signatures of the majority of the board of directors. [September 30, 2008]. [September 30, 2008], 270.01 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 the registration statement. 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). Material may be filed by delivery to the Commission, through the mails or otherwise. Should this other officer sign the certification despite the fact that there is a titular CEO? Answer: The first report due will be a Form 10-K for the previous fiscal year (fiscal year 2009). L. 106-102, Nov. 12, 1999, 113 Stat. Two months later, the option writer receives an exercise notice, requiring her to sell the shares to the counterparty at the exercise price. [March 31, 2020]. 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. Answer: The registrants first Form 10-K should be filed with respect to its fiscal year ended December 31, 2007. 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. Question: Is the institutional defense provided by Rule 10b5-1(c)(2) available to the issuer of the securities for a repurchase plan? [September 30, 2008]. [Mar. 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. [Mar. 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. 240.12b-4 Supplemental information. Question: If the same individual is both the principal executive officer and principal financial officer, must he or she sign two certifications? 25, 2009]. 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. 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. 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. 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. 240.12b-2 Definitions. [September 30, 2008]. 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)? See Exchange Act Release No. 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). (19) of Form 40-F provides for individualized disclosure for an issuers named executive officers. The person wishes to continue sales under the plan pursuant to its original terms. Answer: No. [September 30, 2008]. An application must be submitted to the Office of the Secretary either in paper or electronic format. [September 30, 2008]. With the advice of the Division of Trading and Markets, the Division staff recommended disclosure concerning the rule in the prospectus. [September 30, 2008]. An ESOP is not a voting trust under Rule 12g5-1(b). Paragraphs 1 and 2 may not be omitted under any circumstances. Question: A CEO resigned after the end of the quarter but before the filing of the upcoming Form 10-Q. [Mar. Registrants unable to rely on the COVID-19 Order are encouraged to contact the staff to discuss collateral consequences of late filings. Examples of factors an issuer may apply include tax residency, nationality, mailing address, physical presence, the location of a significant portion of their financial and legal relationships, or immigration status. 284.01 A registration statement under the Securities Act relates to the initial public offering of common stock. First, the person could have exercised discretion not to pay the loan, resulting in default and the transfer of the securities. 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. [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. 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. [September 30, 2008]. 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. Question: A company has filed a Form 25 which will become automatically effective on a Sunday. The person does not communicate any information to the broker that could influence when sales would occur. 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. 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: Rule 12g5-1 defines held of record for purposes of Exchange Act Section 12(g) and 15(d). 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. 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. 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. In such situations, the Commission assigns an Exchange Act file number for the successor holding company when the Form 8-K is filed. [September 30, 2008], 252.02 An ESOP is a trust, and counts as one holder of record for purposes of Rule 12g5-1(a)(2). Does Rule 10b5-1(c)(1)(i)(B)(3) provide a defense for sales under this plan? 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? 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? The Form 10- K is required regardless of whether the company suspends its reporting obligation under Section 15(d) or Rule 12h-3. 25, 2009]. 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. The same analysis applies whether the option is a put or a call. [September 30, 2008], STAY CONNECTED To whom is the registered public accounting firm reporting critical accounting policies and practices? [September 30, 2008]. [Mar. 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. Answer: No. 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. Question: If Company A files proxy materials for the transfer of substantially all of its assets to its wholly-owned subsidiary, Company B, in exchange for shares of Company B stock, will Company A have to pay the filing fee contemplated by Rule 0-11 or Exchange Act Section 14(g)? 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. 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. For a defense to be available under Rule 10b5-1(c), each of the amount, price and date of the transaction must be specified or determined by formula, or all subsequent discretion over purchases and sales must be delegated to a third party who must not be aware of material nonpublic information when exercising that discretion. [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 issuer may look to whether more than 50 percent of the voting power of those classes on a combined basis is directly or indirectly owned of record by residents of the United States. Other individuals without permanent resident status may also be residents of the U.S. for purposes of these provisions. 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. [September 30, 2008]. Is a Form 15 required to be filed under Rule 15d-6 as a condition of the suspension? The effect is not to constitute the 120th day as a second due date for the Part III information.
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