However, the person would not be permitted to exercise subsequent influence over trust sales if the instrument creating the trust specified either (1) the percentage of the volume limit to be allocated to sales by the trust and other sales by the person, or (2) that the trustee would determine that allocation for each applicable three-month period without consulting the person. As a result, the Rule 10b5-1(c)(1)(i)(B)(3) defense would be unavailable. The 25, 2009]. Answer: Yes. Question: For a class of securities that is being delisted from a national securities exchange, may a Form 15 be filed with respect to that class of securities before the effective date of the delisting pursuant to a Form 25? Notwithstanding the due dates prescribed by Rule 15d-10(j)(1) for transition reports to be filed on the form appropriate for annual reports of the issuer, the Division staff took the position that the short-year Form 11-K could be filed 180 days after the plans fiscal year end. The effect of the instruction is to deem the Part III information to have been timely filed on the due date applicable to the Form 10-K. If he is aware of material nonpublic information at the time of exercise, can he rely on a Rule 10b5-1(c) defense in exercising the option? Unless this condition is met, the 45 day relief period provided in COVID-19 Order will not be available. [Mar. [September 30, 2008]. Answer: Item B. The Rule 13a-1 annual report would be due at the same time as any other such annual report. If a report is due on a Saturday, Sunday or holiday, the issuer can timely file a Form 12b-25 on the second business day following the due date and timely file the report fifteen calendar days (annual report) or five calendar days (quarterly report) after the first business day following the due date. Question: Does Rule 12a-5 provide an exemption from registration for poison pill rights under stockholder rights plans? 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. A voluntary filer is not subject to Section 13(a) or 15(d) of the Exchange Act because it is not obligated to file Exchange Act reports pursuant to either of those provisions. Rule 12b-15 provides that amendments may be signed by a duly authorized representative of the registrant. 25, 2009]. File Number S7-0-22); Proposal to Further Define "As a Part of a Regular Business" in the Definition of . 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. [September 30, 2008]. [September 30, 2008]. At the same time, the person instructs his broker to exercise the option on its expiration date, June 30, 2001, if the option is in-the-money on that date. A U.S.-domiciled company can never be a foreign issuer or foreign private issuer, no matter how few U.S. shareholders it may have or where its assets, business, officers or directors are located. 240.12b-2 Definitions. N.B. 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]. [December 8, 2016]. ( F) A person's right to acquire equity securities through the exercise or conversion of any derivative security, whether or not presently exercisable. 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. 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: Must the vote on say-on-frequency, as required by Rule 14a-21(b), be in the form of a "resolution"? See Securities Act Release No. Instead, each of the depositorys accounts for which the securities are held is a single record holder. [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. The reporting history of an issuer while it was a voluntary filer is not considered part of the twelve calendar months during which the issuer must have been subject to the reporting provisions of the Exchange Act. Is a Rule 10b5-1(c) defense available for payroll deduction purchases under the 401(k) plan? 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). 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. 7881 (Aug. 15, 2000), text at fn. [September 30, 2008]. Does Rule 10b5-1(c)(1)(i)(B)(3) provide a defense for sales under this plan? Shortly thereafter, the foreign issuer reincorporates in Delaware. 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. 25, 2009]. (19) of Form 40-F provides for individualized disclosure for an issuers named executive officers. The person will need to file a Form 144. Question: A person purchases employer stock through her participation in the employer's 401(k) plan. 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? After the registrant files the Form 10-K, however, all offers and sales under the registration statement must cease. 9002 (Jan. 30, 2009). If the company files the Form 15 on the next business day, is it required to file the Form 10-Q? Other individuals without permanent resident status may also be residents of the U.S. for purposes of these provisions. SECURITIES AND EXCHANGE COMMISSION . 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. 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: 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? [September 30, 2008], 280.01 Exchange Act Release No. Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-6628 or at (202) 551-5680. The company proposed that the plan provide for an automatic reduction in the aggregate number of shares authorized for repurchase under the plan equal to the number of shares, if any, that the company discloses in Form 10-Q, Part II, Item 2 that it has repurchased in privately negotiated transactions. Question: Can a registrant that filed a Form 12b-25 subsequently rely on the COVID-19 Order (Release No. 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. Answer: Yes. 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. With the advice of the Division of Trading and Markets, the Division staff recommended disclosure concerning the rule in the prospectus. 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. [September 30, 2008]. 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. If those functions are divided between both boards, the issuer may aggregate the members of both boards for purposes of calculating the majority. In this example, the person has retained discretion over the timing of the option exercise. [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. 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. [September 30, 2008], 252.01 Rule 12g5-1 does not require an issuer to look through record ownership to the beneficial holders in determining whether it has 500 security holders for purposes of registration under Section 12(g) of the Exchange Act. The issuer must assess on a consolidated basis the location from which its officers, partners, or managers primarily direct, control and coordinate the issuer's activities. 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. The same analysis applies whether the option is a put or a call. Answer: No. 34-94524; File No. A company must always file the Form 10-K for the fiscal year in which the registration statement is declared effective. 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. Instead, the analysis would focus on whether the person was aware of material nonpublic information at the time she places the market order. Rule 3a5-1 Exemption from the definition of . 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. Question: Is the institutional defense provided by Rule 10b5-1(c)(2) available to the issuer of the securities for a repurchase plan? 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, because the capital markets within the European Union have become more integrated as a result of application of EU-wide laws and regulations relating to prospectuses, transparency, trading and other matters. Answer: The rule is intended to apply broadly. Answer: No, because this transaction is an internal recapitalization and is not deemed to be a "sale or other disposition" for filing fee purposes. The rule does not require a binding contract (Rule 10b5-1(c)(1)(i)(A)(1)) or an instruction to another person (Rule 10b5-1(c)(1)(i)(A)(2)) to be written. 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). (a) All papers required to be filed with the Commission pursuant to the Act or the rules and regulations thereunder shall be filed at the principal office in Washington, DC. Answer: Changing the amount to be sold under a written limit order trading plan currently in force effects an alteration or deviation within the meaning of Rule 10b5-1(c)(1)(i)(C). [December 8, 2016]. Some of these C&DIs were first published in prior Division publications and have been revised in some cases. The broker executing plan repurchases would review company filings to determine the amount of any such repurchases that had been disclosed. A defense would be available under Rule 10b5-1(c)(1)(i)(A)(2) and (B)(1) if: (1) she acts in good faith and is not aware of material nonpublic information at the time she instructs the broker; and (2) in placing a non-discretionary limit order, she specifies the dates on which that limit order will be in force. At the time of the filing of the periodic report, another officer is performing the functions of a principal executive officer. S7-12-22), supra. 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. Answer: Yes. 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? Answer: Yes. The bracketed date following each C&DI is the latest date of publication or revision. Answer: No. These exemptive requests, if submitted electronically, must be sent to: Section 36 Exemptive Applications [September 30, 2008], 250.05 Rule 12g-3(a) would be available to effect Section 12 registration of securities of a successor issuer formed as part of the predecessors emergence from bankruptcy, even though the class of securities so registered will be issued to persons other than the holders of the registered class of the predecessor. 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. 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. 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. 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. With two legislative days remaining until Crossover Day, legislators and lobbyists spent all . [December 8, 2016]. 7881 (Aug. 15, 2000) at fn. [Mar. Question: Under applicable state law, an oral agreement would be considered a binding contract. Question: When a registrant is amending multiple Exchange Act reports at the same time, may it do so in a single filing? 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. Rule 12b-25 has been amended to state that its provisions do not apply to Interactive Data Files. The rule specifies when a writing is necessary to establish a defense. The person does not deposit additional securities in the margin account (although he could have), so the broker sells sufficient margined securities to satisfy the margin call. 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 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. Consequently, sales pursuant to the altered limit order would not be pursuant to the existing plan. 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 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. 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. Question: What fee rates apply to repurchases of securities and to proxy solicitations and statements in corporate control transactions? Sec. The effect is not to constitute the 120th day as a second due date for the Part III information. In the Citizens and Southern Corp. no-action letter (Feb. 8, 1988) issued by the Division, we state that, for a plan filing annual reports on Form 11-K, no other reports required by Section 13 of the 1934 Act would be required. [September 30, 2008], 220.01 After the written trading plan described in Q&A 120.11 has been in effect for several months, the broker that has been executing plan sales goes out of business at a time when the person is aware of material nonpublic information. [September 30, 2008]. The company appointed a new CEO prior to the filing. 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. Question: How is the number of record holders determined under Rule 12g5-1? 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. Rule 12d2-2(d)(5) specifies that the issuers duty to file any reports under Section 13(a) solely because of registration pursuant to Section 12(b) is suspended only when the Form 25 is effective for the delisting. At the time of filing such statement as the Commission may require pursuant to section 13 (e) (1) of the Exchange Act, a fee equal to the product of the rate applicable under section 13 (e) of the Exchange Act multiplied by the value of the securities proposed to be acquired by the acquiring person. 25, 2009]. 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. In other words, the instruction permits forward incorporation by reference of the proxy statement into the already filed Form 10-K. [January 27, 2023]. Question: A registrant expects that due to COVID-19 it will be unable to file a report of the type covered by Rule 12b-25 on a timely basis without incurring an unreasonable effort or expense. 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. Under the bankruptcy plan, all shares of the old common stock are canceled simultaneously with the issuance of the new common stock to new holders. 7b-3. Answer: If the written trading plan by its terms doesn't specify these dates, the analysis would focus on each transaction, and depend on whether the person is aware of material nonpublic information at each time she places a non-discretionary limit order. 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). The bank proceeds against the stock that was posted as collateral and sells it in the open market. Question: Is a company required to file a Form 12b-25 even when it anticipates filing a periodic report after the Rule 12b-25 extension period? 240.12b-4 Supplemental information. [Mar. Title 17 was last amended 1/27/2023. [September 30, 2008]. 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: 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? Answer: The form already includes the representation, so modification is unnecessary. This is because the Form 10-K serves as the Section 10(a)(3) update to the Form S-3, as provided in the undertakings in Item 512 of Regulation S-K. Further, for purposes of Rule 401(b) under the Securities Act, the filing of the Form 10-K constitutes a post-effective amendment to the Form S-3. Question: After the written trading plan described in Question 120.11 has been in effect for several months, the person terminates the selling plan by calling the broker and canceling the limit order. 34-88465 (March 25, 2020))? 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." [September 30, 2008]. [September 30, 2008]. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Answer: Yes. Answer: Because the certification relates to the entire Form 10-K or 10-Q, the amendment should include the entire report, not just the signature page. 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. [September 30, 2008], 250.01 Under Rule 12g-3, the securities issued by a holding company that acquires a company with a class of securities registered under Section 12(g) of the Exchange Act are automatically deemed to be registered under Section 12(g), whether or not a Form 8-K or 8-A has been filed with respect to such securities. 111 provides that "a person acting in good faith may modify a prior contract, instruction, or plan before becoming aware of material nonpublic information. The registrant would still need to file a Form 10-K for the last fiscal year because the Form S-3 and Form S-8 were updated that year. [September 30, 2008]. [Mar. Once the Form 25 is effective the company may file a Form 15 which will immediately suspend its Exchange Act reporting obligations. [Mar. [September 30, 2008]. 1338. 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. The person may be aware of material nonpublic information when she places the limit order. Answer: No. 25, 2009]. If a filer does not file its proxy statement or amend its Form 10-K within 120 days, it would be considered an untimely filer. [Mar. 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? It is uncertain as to its ability to file the required report within the applicable Rule 12b-25(b)(2)(ii) period. 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). A company that is registering on a national securities exchange accomplishes its registration under Section 12 (b) of the Exchange Act . 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. Answer: No. The effective date of a Form 25 for the delisting of an issuers securities may not be earlier than 10 days following the date on which such form is filed with the Commission. ( d) Emerging growth company eligibility - 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. 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. (19) of Form 40-F must be provided? Rule 3a1-1 Exemption from the definition of "Exchange" under Section 3 (a) (1) of the Act. [Aug. 11, 2010]. 2 Securities Exchange Act Release No. Is a Form 15 required to be filed under Rule 12h-3 as a condition of the suspension? Answer: Termination of a plan, or the cancellation of one or more plan transactions, could affect the availability of the Rule 10b5-1(c) defense for prior plan transactions if it calls into question whether the plan was "entered into in good faith and not as part of a plan or scheme to evade" the insider trading rules within the meaning of Rule 10b5-1(c)(1)(ii). 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? Often times those agreements contain commercially sensitive terms that could result in competitive harm if revealed to the public. While the check boxes and other disclosure requirements will be in the rules and forms in 2023, we do not expect issuers to provide such disclosure until they are required to have a recovery policy under the applicable listing standard. [Mar. 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)? Answer: Because situations exempted by Rule 12h-3 (e.g., there are fewer than 300 security holders of record in the middle of a fiscal year) do not meet the literal test of Section 15(d), Rule 12h-3 requires the filing of Form 15 as a condition of the suspension. 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. Securities Act Release No. Relevant considerations may include: who is responsible for engaging the external auditor and for pre-approving audit and non-audit services? release. Under Rule 12g-3(f), the successor must file a Form 8-K with respect to the succession transaction, using the predecessors file number. [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 contrast, securities held in street name by a broker-dealer are held of record under the rule only by the broker-dealer. Answer: No. Answer: Yes. 25, 2009]. view historical versions Title 17 Chapter II Part 240 View Full Text Previous Next Top (2) The term ''facility'' when used with respect to an ex-change includes its premises, tangible or intangible property The written trading plan would need to specify the amount, price and dates of the sales. Question: An issuer does not have a principal executive officer or a principal financial officer. Question: Is it necessary for a majority of the board of directors of the registrant to sign an amendment to a Form 10-K? Answer: Possibly, depending upon the facts and circumstances. 25, 2009]. [Mar. 25, 2009]. 25, 2009]. Within the meaning of Rule 144(a)(2), the person and the trust will be a single person. [January 27, 2023]. 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?