For example, this defense would be available if, in creating the contract, instruction or plan, the person specifies one or two of the amount, price or date of transactions. Consequently, sales pursuant to the altered limit order would not be pursuant to the existing plan. Consequently, if he is aware of material nonpublic information at the time of exercise, no defense will be available under Rule 10b5-1(c). Answer: No. [September 30, 2008]. Rule 10b5-1(c)(1)(i)(B)(1) would not be available. If, however, the person is acting in good faith and provides instructions for the fund-switching transaction at a time when she is not aware of material nonpublic information, the fund-switching transaction would not disturb the Rule 10b5-1(c) defense for a payroll deduction purchase under the 401(k) plan. [September 30, 2008], 280.01 Exchange Act Release No. The following is an example of an advisory vote description that would not be consistent with Rule 14a-21 because it is not clear from the description as to what shareholders are being asked to vote on. [May 29, 2009]. 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. Title V of the Act is classified principally to chapter 94 (6801 et seq.) Question: Which persons will be considered named executive officers for purposes of determining the parties for whom individualized disclosure pursuant to Item B. 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. 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. 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. 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. [June 4, 2010]. [September 30, 2008]. 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. 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). In 240.0-1 to 240.24b-3, the numbers to the right of the decimal point correspond with the respective rule numbers of the rules and regulations under the Securities Exchange Act of 1934. 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. Answer: Yes. [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. However, the adopting release also adopts amendments to Exchange Act Rules 13a-14 and 15d-14 that exclude interactive data from officer certifications, which, among other things, describe the officers' responsibility for establishing and maintaining disclosure controls and procedures and require statements regarding their design and evaluation. 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. [September 30, 2008]. 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: 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. Standing alone, does the act of terminating a plan while aware of material nonpublic information, and thereby not engaging in the planned securities transaction, result in liability under Section 10(b) and Rule 10b-5? 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. See Securities Act Release No. [Mar. Answer: Yes. The person does not communicate any information to the broker that could influence when sales would occur. See Securities Act Release No. Answer: Item 6.F of Form 20-F provides for individualized disclosure for an issuers named executive officers. [September 30, 2008], 280.02 A company planned to file a Form 11-K for a 6-month year period for an ERISA plan. 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. 25, 2009]. 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). 25, 2009]. 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. 7881 (Aug. 15, 2000) at fn. Rule 12g-3 provides for the registration of the securities of successor issuers under the Exchange Act. Answer: Yes. 2 Securities Exchange Act Release No. She fails to pay the loan as due. The Commission publishes orders and related press releases concerning current fee rates on the Commission's web site at www.sec.gov. 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: Does canceling one or more plan transactions affect the availability of the Rule 10b5-1(c) defense for future plan transactions? Rule 12b-25 is available to registrants filing special financial reports under Rule 15d-2. Rule 15c2-12 introduced the voluntary use of private repositories called Nationally 1 17 CFR 240.15c2-12. 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. If the company files the Form 15 on the next business day, is it required to file the Form 10-Q? In contrast, the rule requires a plan for trading securities (Rule 10b5-1(c)(1)(i)(A)(3)) and a formula, algorithm or computer program for determining amounts, prices and dates of transactions (Rule 10b5-1(c)(1)(i)(B)(2)) to be written. 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. 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. Answer: The form already includes the representation, so modification is unnecessary. Is a defense available under Rule 10b5-1(c)(1)(i)(B)(3) for the quarterly sales by the trust? 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. Shortly thereafter, the foreign issuer reincorporates in Delaware. Alternatively, an issuer may apply on a consistent basis any other reasonable methodology in assessing the location and amount of its assets for purposes of this determination. In such situations, the Commission assigns an Exchange Act file number for the successor holding company when the Form 8-K is filed. Answer: Item B. [December 8, 2016]. Answer: An issuer may choose one of two methods. In these circumstances, an issuer must decide what criteria it will use to determine residency and apply them consistently without changing them to achieve a desired result. 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? Answer: The filing of a certification on Form 15 pursuant to Rule 12g-4 immediately suspends an issuers obligation to file periodic reports pursuant to Section 13(a), but the issuers obligations under Section 14(a) continue until the effective date of the issuers Section 12(g) deregistration. 117-121. changes and over-the-counter markets are affected with a national [December 8, 2016]. 25, 2009]. Section 10(b) and Rule 10b-5 apply to any fraudulent conduct "in connection with the purchase or sale of any security." The day's most visible group was Mothers Demand Action, members of which crowded the halls in a sea of red as they advocated lawmakers for gun control measures. File Number S7-0-22); Proposal to Further Define "As a Part of a Regular Business" in the Definition of . Answer: Yes, assuming the conditions of that rule are satisfied. 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. Nomenclature changes to part 240 appear at 57 FR 36501, Aug. 13, 1992, and 57 FR 47409, Oct. 16, 1992. 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. 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 stock price falls and the broker issues a margin call. 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. Question: If the same individual is both the principal executive officer and principal financial officer, must he or she sign two certifications? Paragraphs 1 and 2 may not be omitted under any circumstances. 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. 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. Question: At a time when he is not aware of material nonpublic information, a person will establish a blind trust to which he will contribute some, but not all, of the issuer securities that he owns. 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. The Securities and Exchange Commission (the "SEC") recently approved final rules introducing new amendments and disclosure requirements under Rule 10b5-1 of the . 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). Thereafter, the issuer should make all other Exchange Act filings as appropriate. L. 106-102, Nov. 12, 1999, 113 Stat. 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. To whom is the registered public accounting firm reporting critical accounting policies and practices? Must the issuer file the periodic report? The successor later learned that at the time of the merger, the predecessor had fewer than 300 record shareholders. Question: At a time when she is not aware of material nonpublic information, a person obtains a bank loan to invest in real estate, and pledges securities as collateral. Answer: No. Who signs the certification? [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.
