As long as the terms of the option contract do not permit the person to exercise any subsequent influence over how, when or whether she sells the shares covered by the option, and she does not in fact influence the timing of the option exercise, a defense would be available under Rule 10b5-1(c)(1)(i)(B)(3). 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. 115. Registrants unable to rely on the COVID-19 Order are encouraged to contact the staff to discuss collateral consequences of late filings. Answer: The form already includes the representation, so modification is unnecessary. 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. Answer: The individual performing the functions of a principal executive officer at the time of the filing must provide the certification. 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? [September 30, 2008]. 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. Horizon Therapeutics plc - Rule 2.12 Announcement 25, 2009]. 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? 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: 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? 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. The stock price falls and the broker issues a margin call. In effect, there are four determinations: the citizenship status of executive officers, the residency status of executive officers, the citizenship status of directors, and the residency status of directors. Answer: Yes. If those functions are divided between both boards, the issuer may aggregate the members of both boards for purposes of calculating the majority. Often times those agreements contain commercially sensitive terms that could result in competitive harm if revealed to the public. The Division staff ordinarily will not accelerate termination of Section 12(g) registration under Rule 12g-4 where an Exchange Act event is anticipated. Most shares would be repurchased through open market transactions, but the company intended to negotiate repurchase of at least one large block of stock through a privately negotiated transaction. [December 8, 2016]. 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. 25, 2009]. 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 Securities and Exchange Commission (SEC) Rule 15c2-12 promulgated under Section 15 (c) (2) of the Securities Exchange Act of 1934, contains disclosure and continuing disclosure requirements applicable to municipal securities. As a result, the Rule 10b5-1(c)(1)(i)(B)(3) defense would be unavailable. ( d) Emerging growth company eligibility - 34-88465 (March 25, 2020)), to extend the filing deadline for the subject report? [January 27, 2023]. Answer: Item 6.F of Form 20-F provides for individualized disclosure for an issuers named executive officers. 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. 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. 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. The date by which the periodic report must be filed pursuant to Rule 12b-25(b)(3) falls after the effective date of the delisting. [September 30, 2008], 280.02 A company planned to file a Form 11-K for a 6-month year period for an ERISA 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? If a registrant properly files a Form 12b-25 with respect to a periodic report, and the Rule 12b-25 extension period for the filing of the periodic report ends on a Saturday, Sunday or federal holiday, the periodic report will be deemed to have been filed within the Rule 12b-25 extension period if the registrant files the periodic report by the next business day, consistent with Exchange Act Rule 0-3. (2) The term ''facility'' when used with respect to an ex-change includes its premises, tangible or intangible property The SEC's Proposed New Short Disclosure/Sale Requirements [September 30, 2008]. 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. Does canceling one or more plan transactions affect the availability of the Rule 10b5-1(c) defense for prior plan transactions? Controls and procedures with respect to interactive data fall within the scope of "disclosure controls and procedures." 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? 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? 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. [September 30, 2008]. 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? The person wishes to continue sales under the plan pursuant to its original terms. SEC.gov | Exchange Act Exemptive Applications Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person for the broker's sales? 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. 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. 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: 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? [September 30, 2008]. 25, 2009]. Is a Form 15 required to be filed under Rule 12h-3 as a condition of the suspension? 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 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. Answer: The determination must be made separately for each group. PDF Be it enacted by the Senate and House of Representatives of the - GovInfo 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. [September 30, 2008]. Within the meaning of Rule 144(a)(2), the person and the trust will be a single person. 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." 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). As discussed in Question 130.02, voluntary filers submit Exchange Act reports without being obligated to do so pursuant to Section 13(a) or 15(d) of the Exchange Act. [September 30, 2008]. 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. 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: For purposes of applying the primary trading market definition under Rule 12h-6(f)(5), may an issuer consider all securities trading markets in countries that are part of the European Union as a single foreign jurisdiction? of Title 15, Commerce and Trade. SUPPLEMENTARY INFORMATION: The Commission is adopting amendments to 17 CFR 240.15c2-12 ("Rule 15c2-12" or "Rule") under the Securities Exchange Act of 1934. 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. In that case, a purchase or sale that complies with the modified contract, instruction, or plan will be considered pursuant to a new contract, instruction, or plan." Is a Form 15 required to be filed under Rule 15d-6 as a condition of the suspension? N.B. [Mar. The same analysis applies whether the option is a put or a call. Answer: Yes. 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. 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. The third party who has been granted discretion must not be aware of material nonpublic information when exercising that discretion. 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. [September 30, 2008]. Question: Is it permissible for the say-on-pay vote to omit the words, "pursuant to Item 402 of Regulation S-K," and to replace such words with a plain English equivalent, such as "pursuant to the compensation disclosure rules of the Securities and Exchange Commission, including the compensation discussion and analysis, the compensation tables and any related material disclosed in this proxy statement"? Question: A CEO resigned after the end of the quarter but before the filing of the upcoming Form 10-Q. 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: Is 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, required to file any other current or periodic reports under the Exchange Act? The Form 10- K is required regardless of whether the company suspends its reporting obligation under Section 15(d) or Rule 12h-3. Either the old or new fiscal year could, therefore, be as short as 359 days, or as long as 371 days (372 in a leap year). While a transition report would not be required, a Form 8-K (Item 5.03) may have to be filed to report the change in fiscal year-end. Should the registrant instead furnish a report on Form 8-K or 6-K, as applicable, relying on the COVID-19 Order (Release No. 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. Answer: Rule 12b-25 provides that an annual or quarterly report shall be deemed timely filed if a Form 12b-25 making certain specified representations is filed no later than one business day after the due date of the annual or quarterly report, and the report itself is filed no later than fifteen or five calendar days, respectively, after the due date. [September 30, 2008], 253.01 A registrant formed two limited partnerships, the A partnership and the B partnership, both having between 300 and 500 shareholders. 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. 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: Item B. Instead, each of the depositorys accounts for which the securities are held is a single record holder. Answer: Possibly, depending upon the facts and circumstances. A company must always file the Form 10-K for the fiscal year in which the registration statement is declared effective. Rule 12b-2 requires that an accelerated filer or large accelerated filer be subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act. The company appointed a new CEO prior to the filing. 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. [Mar. [September 30, 2008]. Question: Does canceling one or more plan transactions affect the availability of the Rule 10b5-1(c) defense for future plan transactions? Answer: No. 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? 17 CFR 240.0-12 - LII / Legal Information Institute Rule 3a5-1 Exemption from the definition of . [December 8, 2016]. Rules of General Application (Rules 0-1 to 3a5-3) 25, 2009]. 17 CFR 240.0-3 - Filing of material with the Commission. Also, she may have had the discretion to substitute collateral or provide additional collateral or cash to prevent foreclosure and sale of the stock. 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)? [Mar. After the Form 8-K is filed, a new file number will be generated for the successor company. In establishing the trust, she specifies that the trust shall sell 1,000 shares of issuer stock each quarter. Therefore, unless a registrant that filed a Form 12b-25 also furnished a Form 8-K or Form 6-K by March 16, 2020 or the original due date of the report, it would not be able to rely on the COVID-19 Order. General Instruction G.(3) to Form 10-K permits a reporting issuer subject to the proxy rules to omit Part III information concerning management and its compensation from the Form 10-K, if the information omitted from Part III is disclosed in the issuers proxy statement and if the proxy statement is filed with the Commission no later than 120 days from the end of the fiscal year. Question: An issuer does not have a principal executive officer or a principal financial officer. 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. Question: Can an issuer that submits Exchange Act reports on a voluntary basis satisfy the definitions of accelerated filer or large accelerated filer in Rule 12b-2? (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. 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? [September 30, 2008], 250.04 Following emergence from bankruptcy, the same issuer issues a new class of common stock that has substantially the same terms as its old common stock, except for a different par value. Question: When a registrant is amending multiple Exchange Act reports at the same time, may it do so in a single filing? view historical versions Title 17 Chapter II Part 240 View Full Text Previous Next Top [June 4, 2010]. Answer: In order for the subsidiary to be exempt from filing a periodic report pursuant to Rule 12h-5, the full and unconditional parent guarantee of the subsidiarys debt securities must be in effect before the end of the period that would have been covered by the periodic report, assuming that all other applicable conditions of Rule 3-10 of Regulation S-X are met. 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. Subsequently, the company will have a back-end merger. [September 30, 2008]. See Exchange Act Release No. Answer: No. (19) of Form 40-F provides for individualized disclosure for an issuers named executive officers. S7-12-22), supra. 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. eCFR :: 17 CFR 240.16a-1 -- Definition of terms. The broker executing plan repurchases would review company filings to determine the amount of any such repurchases that had been disclosed. 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?