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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? Rule 15c2-12 introduced the voluntary use of private repositories called Nationally 1 17 CFR 240.15c2-12. The person may be aware of material nonpublic information when she places the limit order. Answer: The analysis depends on the manner in which the adjustment is effected: (a) First, the written plan could provide for adjustment of the amount of securities to be sold each month based on a written formula specified in the plan within the meaning of Rule 10b5-1(c)(1)(i)(B)(2). 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. When two reporting companies consolidate, each of the predecessor companies should file a Form 15 in connection with the succession. Question: Does canceling one or more plan transactions affect the availability of the Rule 10b5-1(c) defense for future plan transactions? 25, 2009]. Where a written formula specifies one or more of the price, amount and dates of transactions that are all specified in a contract, instruction or written plan, the Rule 10b5-1(c)(1)(i)(B)(2) defense would apply. The third party who has been granted discretion must not be aware of material nonpublic information when exercising that discretion. 25, 2009]. May it continue to use the foreign private issuer forms and rules until it retests its foreign private issuer status on the next determination date? Answer: No. 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. Answer: The new CEO, provided that he or she is the principal executive officer at the time of the filing. 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? [Mar. 25, 2009]. What Exchange Act filings must the registrant make after it files the Form 15? Once the Form 25 is effective the company may file a Form 15 which will immediately suspend its Exchange Act reporting obligations. 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. 25, 2009]. 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. 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? 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? Between the date of filing the Form 25 and the effective date of the delisting under Rule 12d2-2(d)(1), a periodic report becomes due. [March 31, 2020]. An amendment to Form 10-K does not require signatures of the majority of the board of directors. 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. How is this analyzed for purposes of Rule 10b5-1(c)? Rule 12g5-1(a)(3) provides a special counting method for securities held in a custodial capacity for a single trust, estate or account. 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: No. Is a Rule 10b5-1(c) defense available for payroll deduction purchases under the 401(k) plan? 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. 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. 111 provides that "a person acting in good faith may modify a prior contract, instruction, or plan before becoming aware of material nonpublic information. Question: Do Rules 10b5-1(c)(1)(i)(A)(3) and (B)(1) provide a defense for sales under the written trading plan described in Question 120.11 when the limit order is discretionary (where the broker is granted discretion such that the broker is not required to execute a sale as soon as a buyer is available at or above $20 per share)? The person does not communicate any information to the broker that could influence when sales would occur. 25, 2009]. Answer: No, because this transaction is an internal recapitalization and is not deemed to be a "sale or other disposition" for filing fee purposes. [September 30, 2008]. 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. [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. Rule 12g-3 provides for the registration of the securities of successor issuers under the Exchange Act. See Exchange Act Release No. Similarly, a company that must file a registration statement on Form 10 to register a class of securities under Section 12(g) must include financial statements for its previous fiscal year. 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). Answer: The individual may provide one certification and provide both titles underneath the signature. Answer: No. With two legislative days remaining until Crossover Day, legislators and lobbyists spent all . Answer: No. Must the issuer file the periodic report? [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. Answer: The registrants first Form 10-K should be filed with respect to its fiscal year ended December 31, 2007. ( F) A person's right to acquire equity securities through the exercise or conversion of any derivative security, whether or not presently exercisable. 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. [September 30, 2008], STAY CONNECTED After filing the Form 25, the issuer files a Form 12b-25 with respect to a periodic report that is due between the date it filed the Form 25 and the effective date for the delisting under Rule 12d2-2(d)(1). Question: Does Rule 12a-5 provide an exemption from registration for poison pill rights under stockholder rights plans? Question: Is it necessary for a majority of the board of directors of the registrant to sign an amendment to a Form 10-K? 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. 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. These Compliance and Disclosure Interpretations ("C&DIs") principally comprise the Division's interpretations of the rules promulgated under the registration and reporting provisions of Sections 12, 13 and 15 of the Exchange Act. [September 30, 2008]. Answer: The first report due will be a Form 10-K for the previous fiscal year (fiscal year 2009). 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 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. Pub. 34-94524; File No. USA February 27 2023. [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. 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? [Mar. The rule serves to eliminate any possible gap in the application of Exchange Act protection to the security holders of the predecessor. Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person when the bank sells the stock? The Rule 13a-1 annual report would be due at the same time as any other such annual report. Answer: Yes. (1) the term ''Commission'' means the Securities and Exchange Commission; and (2) the term ''Federal securities laws'' has the meaning given the term securities laws by section 3(a)(47) of the Securities Exchange Act of 1934 (15 U.S.C. Rule 3a5-1 Exemption from the definition of . That provision, however, does not apply to domestic issuers. Question: Under Exchange Act Rule 12g-3, must a Form 8-A, or any other form, be filed in order for the securities of a successor issuer to be deemed registered under Section 12? 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. 111 and Question 120.16. Amendments should be filed separately for each Exchange Act report to be amended. 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. L. 106-102, Nov. 12, 1999, 113 Stat. [Mar. 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. [September 30, 2008]. 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: At a time when he is not aware of material nonpublic information, a person buys a put option, giving him the right at any time during the 12-month term of the option to sell 10,000 shares at a fixed exercise price. [September 30, 2008], 280.02 A company planned to file a Form 11-K for a 6-month year period for an ERISA plan. Two months later, the option writer receives an exercise notice, requiring her to sell the shares to the counterparty at the exercise price. The text of Rule 15c2-12 is provided in Attachment A. 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. DUBLIN, March 01, 2023--In accordance with Rule 2.12 of the Irish Takeover Panel Act, 1997, Takeover Rules, 2022 (the "Irish Takeover Rules"), Horizon confirms that, as of the close of business on . The Form 10- K is required regardless of whether the company suspends its reporting obligation under Section 15(d) or Rule 12h-3. 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. [Mar. changes and over-the-counter markets are affected with a national [Mar. 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. As a result, Rule 12b-25 cannot be used to extend the time available for satisfying Part IIIs line-items by incorporating the proxy statement. Answer: Yes. 16718 (Apr. The bank proceeds against the stock that was posted as collateral and sells it in the open market. [Aug. 11, 2010]. 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. 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). Issuers must apply a determination methodology on a consistent basis. Answer: The determination must be made separately for each group. SCHEDULE 13G Under the Securities Exchange Act of 1934 (Amendment No. 25, 2009]. [Mar. 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: 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? 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. 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. [January 27, 2023]. Question: At a time when he is not aware of material nonpublic information, a person purchases a put option. 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. As defined in Rule 10b5-1(c)(1)(iii)(C), in the case of a limit order, "date" means a day of the year on which the limit order is in force. 25, 2009], 220.02 A company sought to establish a stock repurchase plan that would comply with Rules 10b5-1(c)(1) and 10b-18. 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? (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: 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? 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. For example, where the due date for a Form 10-K is Sunday, March 31, the Form 10-K would be due on Monday, April 1 and the Form 12b-25 would be timely if filed on Tuesday, April 2. 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. [September 30, 2008]. She fails to pay the loan as due. Answer: Yes. 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. Controls and procedures with respect to interactive data fall within the scope of "disclosure controls and procedures." Question: Are there any additional extensions for the timely filing of periodic reports beyond those provided in Rule 12b-25? Answer: No. [Mar. 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. Answer: The form already includes the representation, so modification is unnecessary. Nomenclature changes to part 240 appear at 57 FR 36501, Aug. 13, 1992, and 57 FR 47409, Oct. 16, 1992. Other individuals without permanent resident status may also be residents of the U.S. for purposes of these provisions. Exchange Act Rules 13a-15 and 15d-15 require certain officers to evaluate the effectiveness of the filer's disclosure controls and procedures, and Item 307 of Regulation S-K requires the filer to disclose the officers' conclusions regarding the effectiveness of those disclosure controls and procedures. [September 30, 2008]. [September 30, 2008]. 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. Answer: Paragraph (f) of Rule 12b-25 excludes from the operation of the rule a company with a subsidiary whose financial statements are to be filed by amendment to the companys Form 10-K, as provided in Rule 3-09 of Regulation S-X. Section 10(b) and Rule 10b-5 apply to any fraudulent conduct "in connection with the purchase or sale of any security." Rule 0-13 Commission procedures for filing applications to request a substituted compliance order under the Exchange Act. On February 25, 2022, the U.S. Securities and Exchange Commission (SEC) published and requested comment on proposed new Rule 13f-2 (the Rule) under the Securities Exchange Act of 1934 (Exchange Act) and Form SHO, which would require institutional investment managers (as such term is defined under Section 13 (f) (6) (A) of the Exchange Act Does the contract nevertheless need to be written to establish a defense under Rule 10b5-1(c)? 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. Answer: No. Answer: As set forth in paragraph (a) of Rules 13a-14 and 15d-14, where an issuer does not have a principal executive officer or a principal financial officer, the person or persons performing similar functions at the time of filing of the report must execute the required certification. See Securities Act Release No. Question: Is the Rule 10b5-1(c) affirmative defense available where a person establishes a Rule 10b5-1 written trading plan while aware of material nonpublic information if the plan is structured so that plan transactions will not begin until after the material nonpublic information is made public? Plaintiffs initiated an action against MacroGenics, its president and CEO, and its senior vice president and CFO (collectively "Defendants") for alleged violations of sections 10(b) and 20(a) of the Securities Exchange Act of 1934, Securities and Exchange Commission ("SEC") Rule 10b-5, and sections 11, 12(a), and 15 of the Securities . Answer: Yes, assuming the conditions of that rule are satisfied. (a) The application shall be in writing in the form of a letter, must include any supporting documents necessary to make the application complete, and otherwise must comply with 240.0-3. Answer: Rule 12g5-1 defines held of record for purposes of Exchange Act Section 12(g) and 15(d). First, the person could have exercised discretion not to pay the loan, resulting in default and the transfer of the securities. The adoption of the plan itself may not be the same as placement of a sell order. Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person for the broker's sales? An issuer may not look to Exchange Act Rule 0-3(a) to avoid filing the periodic report in the event that the due date of the periodic report falls on a Saturday, Sunday or federal holiday and the effective date of the delisting occurs on the first business day following that due date. Answer: The individual performing the functions of a principal executive officer at the time of the filing must provide the certification. If the company does not anticipate filing the periodic report within the extension period, it should not check the box in Part II of Form 12b-25. Should this other officer sign the certification despite the fact that there is a titular CEO? [Mar. Exchange Act Rule 17a-4 Amendments Chart of Significant Changes Rule 17a-4(f) Current Rule Amended Rule Definitions Firms may use "electronic storage media" to maintain and preserve required records. 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: On January 1, a person adopts a written plan for selling securities that satisfies the affirmative defense conditions of Rule 10b5-1(c). 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. The fee rates set forth in Exchange Act Rule 0-11 do not apply. Question: At a time when she is not aware of material nonpublic information, a person establishes a written trading plan to sell 5,000 shares each month, on a date to be selected by her broker during the second or third week of each month, at or above $20 per share. Question: May an issuer rely on Rule 12b-25 for an extension to file a special financial report under Rule 15d-2? See Securities Act Release No. 25, 2009]. [September 30, 2008]. [September 30, 2008]. [December 8, 2016]. (2) The term ''facility'' when used with respect to an ex-change includes its premises, tangible or intangible property 240.0-12 Commission procedures for filing applications for orders for exemptive relief under Section 36 of the Exchange Act. 7b-3. In contrast, Rule 12h-3 permits a company to suspend its reporting obligation under Section 15(d) if the requirements of the rule are met at any time during the fiscal year. 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. 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. Answer: No. 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: 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. 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)? [September 30, 2008]. Pursuant to Rule 12b-25, there are no additional extensions of time beyond the 15 calendar days for annual reports and the 5 calendar days for quarterly reports. The Commission publishes orders and related press releases concerning current fee rates on the Commission's web site at www.sec.gov. 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. Is a Form 15 required to be filed under Rule 12h-3 as a condition of the suspension? It is uncertain as to its ability to file the required report within the applicable Rule 12b-25(b)(2)(ii) period. But they weren't the only ones demanding action under the Gold Dome. 25, 2009]. Rule 10b5-1(c)(1)(i)(B)(3) contemplates that a person, while not aware of material nonpublic information, may delegate to a third party under a contract, instruction or written trading plan, all subsequent influence over how, when or whether to effect purchases or sales. Answer: No. [Mar. The notice on Form 144 is effective for a maximum of three months, so that sales over longer periods will involve multiple requirements of notice under Rule 144(h). In both cases, a calendar month begins on the first day of the month and ends on the last day of that month. The same analysis applies whether the option is a put or a call. [September 30, 2008]. [Mar. [September 30, 2008]. Paragraphs 1 and 2 may not be omitted under any circumstances. Otherwise, a right to dividends alone shall not represent a pecuniary interest in the securities; ( E) A person's interest in securities held by a trust, as specified in 240.16a-8 (b); and. If the amendment does not contain or amend disclosure pursuant to Item 307 or 308 of Regulation S-K (or the equivalent disclosure requirement in Form 20-F or 40-F), and such disclosure is not otherwise required to be amended given the nature of the reasons for the amendment, paragraphs 4 and 5 may be omitted from the certifications that are filed with the amendment. Rule 10b5-1(c)(1)(i)(B)(1) would not be available. Answer: The COVID-19 Order is conditioned on a registrant having furnished a Form 8-K or Form 6-K by the later of March 16, 2020 or the original due date of the report. 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. (19) of Form 40-F provides for individualized disclosure for an issuers named executive officers. 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).