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. PDF Conformed to Federal Register version. - SEC 9002 (Jan. 30, 2009). 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]. Rule 0-3 under the Exchange Act provides that when the due date of a report falls on a Saturday, Sunday or holiday, the report will be considered timely filed if it is filed on the first business day following the due date. CFTC Regulations | CFTC - Commodity Futures Trading Commission If the company determines that it does not have a valid Section 10(a) prospectus, it should cease making any offers or sales under the registration statement that includes that prospectus. All issuers filing or submitting reports under Section 15(d) on a voluntary basis must comply with those provisions whether or not a Form 15 has been filed pursuant to Rule 15d-6. 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)? 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. With two legislative days remaining until Crossover Day, legislators and lobbyists spent all . The Rule 13a-1 annual report would be due at the same time as any other such annual report. 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], STAY CONNECTED Question: Must an issuer that is filing or submitting reports exclusively under Section 15(d) of the Exchange Act on a voluntary basis (for example, pursuant to a covenant in an indenture or similar document), due to a statutory suspension of the Section 15(d) filing obligation, comply with Rules 15d-14 and 15d-15 and the disclosures required by Item 307 and Item 308 of Regulation S-K? SEC Filing | Sabre Corporation - IR Site 111 and Question 120.16. 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"? Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person for the broker's sales? 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. During any three-month period, sales of issuer securities by the trust will share the Rule 144(e) volume limitation with the person's sales of other issuer securities he owns. Question: If the same individual is both the principal executive officer and principal financial officer, must he or she sign two certifications? 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. 17 CFR 240.0-3 - Filing of material with the Commission. Rule 3a5-1 Exemption from the definition of . [September 30, 2008]. Answer: Yes. 2, 1980). [September 30, 2008]. The stock price falls and the broker issues a margin call. [December 8, 2016]. 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. Answer: If an employee acts in good faith and is not aware of material nonpublic information at the time she provides written or oral instructions as to a fund-switching transaction under the 401(k) plan, a defense would be available for that transaction under Rule 10b5-1(c). 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. Is the sale pursuant to the option exercise covered by an affirmative defense under Rule 10b5-1(c)? Answer: No. [Mar. This is because the terms of the margin account contract would permit him to exercise subsequent influence over how, when, or whether to effect purchases or sales. The rule specifies when a writing is necessary to establish a defense. That provision, however, does not apply to domestic issuers. SCHEDULE 13G Under the Securities Exchange Act of 1934 (Amendment No. See Securities Act Release No. 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. Rule 12g-4 affects only Section 13(a) reporting requirements that arise from Section 12(g) registration and does not affect any reporting requirement under Section 15(d) of the Exchange Act that may become operative in connection with the termination of Section 12(g) registration. The registrant can file a Form 15 relating to the B partnership indicating the suspension of reporting with respect to that partnership, and continue filing reports under the 33- number for the remaining partnership. 25, 2009]. [September 30, 2008]. 26100 (Sept. 22, 1988), 53 FR 37778. The same analysis applies whether the option is a put or a call. 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)? Pub. 25, 2009]. Benefits of Registration Alternatively, an issuer may make the determination based on the number of voting securities. 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. Often times those agreements contain commercially sensitive terms that could result in competitive harm if revealed to the public. INTELLIGENT SYSTEMS CORP (Form: DEF 14A, Received: 07/13/2020 16:06:54) [September 30, 2008], 280.02 A company planned to file a Form 11-K for a 6-month year period for an ERISA plan. Is a Rule 10b5-1(c) defense available for payroll deduction purchases under the 401(k) plan? Answer: There is no single factor or group of factors that are determinative under this clause. [September 30, 2008]. Also, she may have had the discretion to substitute collateral or provide additional collateral or cash to prevent foreclosure and sale of the stock. A Form 12b-25 filing does not extend the original due date of a report. 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? Should the registrant instead furnish a report on Form 8-K or 6-K, as applicable, relying on the COVID-19 Order (Release No. 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. 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. The person wishes to continue sales under the plan pursuant to its original terms. Question: In determining whether a majority of the executive officers or directors are United States citizens or residents under the definition of foreign private issuer in Securities Act Rule 405 and Exchange Act Rule 3b-4(c), must the calculation be made separately for each group or are executive officers and directors to be treated as a single group when making the assessment? 25, 2009]. 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. 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. 26985 (June 28, 1989), 54 FR 28799. SECURITIES AND EXCHANGE COMMISSION . Rule 0-12 None Sections 110 to 119. 240.12b-5 Determination of affiliates of banks. Registrants unable to rely on the COVID-19 Order are encouraged to contact the staff to discuss collateral consequences of late filings. First, the person could have exercised discretion not to pay the loan, resulting in default and the transfer of the securities. 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. Rule 3a4-1 Associated persons of an issuer deemed not to be brokers. 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. [Mar. 1338. 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. ( d) Emerging growth company eligibility - 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. Exchange Act Rule 17a-4 Amendments Chart | FINRA.org [September 30, 2008]. [September 30, 2008]. Question: Must the vote on say-on-frequency, as required by Rule 14a-21(b), be in the form of a "resolution"? [March 31, 2020]. [Mar. Answer: Item B. 17 CFR 240.0-11 - LII / Legal Information Institute 25, 2009]. 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. [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. Institutional custodians, such as Cede & Co. and other commercial depositories, are not single holders of record for purposes of the Exchange Acts registration and periodic reporting provisions. 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. Within the guidelines specified by Rule 12b-23, an issuer may incorporate by reference into its own Exchange Act documents any information contained in the filed documents of another issuer. [September 30, 2008]. 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. 34-88465 (March 25, 2020))? 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. Exchange Act Rules | DART - Deloitte Accounting Research Tool 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: No. Sec. Answer: Possibly, depending upon the facts and circumstances. Answer: Yes. [September 30, 2008], 280.01 Exchange Act Release No. 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. [September 30, 2008]. 16718 (Apr. The in connection with requirement is satisfied when a fraud coincides with a securities transaction. 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. 25, 2009]. 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. Answer: No. [September 30, 2008]. Unless this condition is met, the 45 day relief period provided in COVID-19 Order will not be available. The text of Rule 15c2-12 is provided in Attachment A. Answer: No. Rule 12b-25 has been amended to state that its provisions do not apply to Interactive Data Files. Rule 12b-25 is available to registrants filing special financial reports under Rule 15d-2. [September 30, 2008]. 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. [September 30, 2008]. The exercise of the option is a separate investment decision from the purchase of the option. [December 8, 2016]. Guide to Maintaining Confidentiality of Commercially Sensitive 17 CFR Part 240 - GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE (2) The term ''facility'' when used with respect to an ex-change includes its premises, tangible or intangible property 25, 2009]. See Securities Act Release No. As a result, the Rule 10b5-1(c)(1)(i)(B)(3) defense would be unavailable. (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. Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person when the bank sells the stock? changes and over-the-counter markets are affected with a national 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. Answer: This is a question of fact. In contrast, securities held in street name by a broker-dealer are held of record under the rule only by the broker-dealer. See Securities Act Release No. Exchange Act Rule 0-12 describes the procedures for seeking an exemption under Section 36. 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). Answer: The individual may provide one certification and provide both titles underneath the signature. Electronic storage media is defined as any digital storage medium or system that meets the conditions set forth in the rule. Question: An issuer files a Form 25 to delist a class of securities from a national securities exchange and to terminate the Section 12(b) registration of that class. 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? If those functions are divided between both boards, the issuer may aggregate the members of both boards for purposes of calculating the majority. 17 CFR 240.0-12 - LII / Legal Information Institute Answer: Yes. Instead, each of the depositorys accounts for which the securities are held is a single record holder. Answer: Yes. A company must always file the Form 10-K for the fiscal year in which the registration statement is declared effective. 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. 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. Question: Does Rule 12a-5 provide an exemption from registration for poison pill rights under stockholder rights plans? 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. Answer: No. 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. 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. Answer: If there are no financial statements or other financial information in the amendment, then paragraph 3 may be omitted from the certifications that are filed with the amendment. [September 30, 2008]. Reliance on this affirmative defense does not prevent the person from setting some of the terms of the purchases or sales at the creation of the contract, instruction or plan so that no one has subsequent discretion as to those terms. 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? Answer: Item 6.F of Form 20-F provides for individualized disclosure for an issuers named executive officers. The terms of the option, which is a binding contract within the meaning of Rule 10b5-1(c)(1)(i)(A)(1), specify the amount of shares to be sold and the price at which they will be sold under the option. 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 rule provides that a purchase or sale is not "pursuant to a contract, instruction, or plan" if, among other things, the person entered into or altered a corresponding or hedging transaction or position with respect to those securities. Section 12(g) Registration | Securities Law Blog In both cases, a calendar month begins on the first day of the month and ends on the last day of that month. [September 30, 2008]. 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. Other individuals without permanent resident status may also be residents of the U.S. for purposes of these provisions. 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. 25, 2009]. The successor later learned that at the time of the merger, the predecessor had fewer than 300 record shareholders. 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. [Aug. 11, 2010]. 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: A companys obligation to file periodic reports was automatically suspended under Section 15(d) for fiscal year 2007 because the class of securities at issue was held by less than 300 record holders on the first day of the companys fiscal year. 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). 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. Answer: The form already includes the representation, so modification is unnecessary. As such, these filers do not meet the requirement that they be subject to Section 13(a) or 15(d) of the Exchange Act, which is among the criteria for meeting Rule 12b-2s definitions of accelerated filer and large accelerated filer. [September 30, 2008]. The first sale of securities under the plan will take place on March 1 in reliance on Rule 144. For a defense to be available under Rule 10b5-1(c), each of the amount, price and date of the transaction must be specified or determined by formula, or all subsequent discretion over purchases and sales must be delegated to a third party who must not be aware of material nonpublic information when exercising that discretion. In other words, the instruction permits forward incorporation by reference of the proxy statement into the already filed Form 10-K. [September 30, 2008]. Therefore, as a successor to the foreign issuer's reporting obligations, the Delaware corporation must immediately begin filing Exchange Act reports on domestic issuer forms. 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)? Nomenclature changes to part 240 appear at 57 FR 36501, Aug. 13, 1992, and 57 FR 47409, Oct. 16, 1992. PDF Securities Exchange Act of 1934 - New York Stock Exchange [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. eCFR :: 17 CFR Part 240 -- General Rules and Regulations, Securities Question: At a time when she is not aware of material nonpublic information, a person establishes a trust. [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. The Rule 10b5-1(c) defense would be available for transactions following the alteration only if the transactions were pursuant to a new contract, instruction or plan that satisfies the requirements of Rule 10b5-1(c). S7-12-22), supra. 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. 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. [Mar. How is this transaction analyzed for purposes of Rule 10b5-1(c)? Apart from this specification, she does not have or share any control over the trust's assets. [September 30, 2008]. The bracketed date following each C&DI is the latest date of publication or revision. The Form 10-K would then be due for filing on Tuesday, April 16 (15 days after April 1, not 15 days after April 2). 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. 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). [January 27, 2023]. Answer: No. 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. 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? SEC.gov | Exchange Act Rules 117-121. Answer: No. 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 rule serves to eliminate any possible gap in the application of Exchange Act protection to the security holders of the predecessor. 7881 (Aug. 15, 2000) at fn. [September 30, 2008], 253.02 Rule 12h-3(c)-(d) operates to relieve a holding company of the Section 15(d) reporting obligation which would normally arise from the registration statement filed for the reorganization of a non-reporting company into a one-subsidiary holding company where the equity holders receive the same proportional interests in the holding company and the holding company emerges from the reorganization with more than 300 shareholders. PDF Amendments to Exchange Act Rule 3b-16 Regarding the Definition - House

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