The person may be aware of material nonpublic information when she places the limit order. [September 30, 2008]. 25, 2009]. Should this other officer sign the certification despite the fact that there is a titular CEO? 240.12b-5 Determination of affiliates of banks. Such individualized disclosure is required about executive officers for whom the issuer otherwise provides individualized compensation disclosure in the filing. 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. Does Rule 10b5-1(c)(1)(i)(B)(3) provide a defense for sales under this plan? 25, 2009]. 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. 1338. Answer: No. Is an issuer nonetheless required to file the periodic report in this situation? This is permissible, provided two conditions are met: (1) the portion of the registration statement to be incorporated does not include any incorporation by reference to another document (see Item 10(d) of Regulation S-K), and (2) a copy of the incorporated portion of the registration statement is filed as an exhibit to the Form 10-K, as required by Rule 12b-23(a)(3) under the Exchange Act. The market order is not a corresponding or hedging transaction within the meaning of Rule 10b5-1(c)(1)(i)(C) because it does not reduce or eliminate the economic consequences of the limit order sales under the written trading plan. Answer: Co-principal executive officers (or co-principal financial officers) should each execute separate certifications. [September 30, 2008]. [Mar. 6LinkedIn 8 Email Updates, Accounting and Financial Reporting Guidance, Compliance and Disclosure Interpretations, No-Action, Interpretive and Exemptive Letters, Exchange Act Section 16 and Related Rules and Forms, To approve the companys executive compensation, Advisory approval of the companys executive compensation, Advisory resolution to approve executive compensation, Advisory vote to approve named executive officer compensation, To hold an advisory vote on executive compensation. 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. The sale was not pursuant to a contract, instruction or plan that did not permit the person to exercise any subsequent discretion over how, when, or whether to effect purchases or sales. 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: For purposes of determining accelerated filer and large accelerated filer status, may an issuer take into account its reporting history as a voluntary filer? Foreign private issuers that file on domestic forms and provide executive compensation disclosure under Item 402 of Regulation S-K should provide individualized disclosure for their named executive officers to the extent required by Form 20-F. For foreign private issuers that use Form 20-F, individualized disclosure is required about members of their administrative, supervisory, or management bodies for whom the issuer otherwise provides individualized compensation disclosure in the filing. [Mar. 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. 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"? 7881 (Aug. 15, 2000) at fn. Does canceling one or more plan transactions affect the availability of the Rule 10b5-1(c) defense for prior plan transactions? 7881 (Aug. 15, 2000), text at fn. The rule specifies when a writing is necessary to establish a defense. 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. 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. She fails to pay the loan as due. The information in this Item 2.02 and the exhibit attached to this report as Exhibit 99.1 are not deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934 (the "Exchange Act") or otherwise subject to the liabilities of that Section, and are not incorporated by reference into any registration statement or other filing under the Securities Act of 1933 (the . SECURITIES AND EXCHANGE COMMISSION . Does the manner of allocating the Rule 144(e) volume limitation between sales by the trust and the person's other sales of issuer securities affect whether the person is permitted to exercise any subsequent influence over how, when, or whether to effect purchases or sales under the trust within the meaning of Rule 10b5-1(c)(1)(i)(B)(3)? [September 30, 2008]. Viewed together, the option and the instruction specify the amount of securities, the price and the date of the transaction for purposes of Rule 10b5-1(c)(1)(i)(B)(1). Does adoption of the Rule 10b5-1 plan change the due date for the Form 144? [September 30, 2008]. C&DIs for Exchange Act Section 16 rules have been separately published and can be found at Exchange Act Section 16 and Related Rules and Forms. The person must make this specification or delegation in good faith before becoming aware of material nonpublic information. 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. Answer: No. Is a defense available under Rule 10b5-1(c)(1)(i)(B)(3) for the quarterly sales by the trust? Question: If the certifications required by Rules 13a-14(a) and 15d-14(a) are not included as exhibits to a Form 10-K or 10-Q, and an amendment will be filed to include the certifications as exhibits, must the entire periodic report be re-filed or can the amendment include only the signature page? An application must be submitted to the Office of the Secretary either in paper or electronic format. The person wishes to continue sales under the plan pursuant to its original terms. [March 31, 2020]. These purchases are made pursuant to bi-weekly payroll deductions. The bracketed date following each C&DI is the latest date of publication or revision. 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. 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: How does the analysis in Question 120.11 change if the written trading plan doesn't specify when the non-discretionary limit order will be in force? [September 30, 2008]. Relevant considerations may include: who is responsible for engaging the external auditor and for pre-approving audit and non-audit services? [January 27, 2023]. 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. The Form 144 must be transmitted for filing concurrently with either the placement of a sell order for a brokerage transaction, or the execution of such sale directly with a market maker, as provided in Rule 144(h). After the registrant files the Form 10-K, however, all offers and sales under the registration statement must cease. Rule 12b-15 provides that amendments may be signed by a duly authorized representative of the registrant. Rule 10b5-1(c)(1)(i)(B)(1) would not be available. 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: Assume that the written trading plan described in Question 120.11 also includes a provision requiring the number of securities to be sold during each month to be reduced, if necessary, to comply with applicable volume limitation under Rule 144(e). Answer: If the registrant has not filed a Form 10-K after the Rule 12b-25 extension period has run, and the registrant is not yet required to update the registration statement under Section 10(a)(3) of the Securities Act, the registrants ability to make offers and sales will depend on whether the company determines that the prospectus included in the Form S-3 is a valid Section 10(a) prospectus and there are no Section 12(a)(2) or anti-fraud concerns with the prospectus. Rule 3a1-1 Exemption from the definition of "Exchange" under Section 3 (a) (1) of the Act. [September 30, 2008]. 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? Answer: The issuer must make the determination with respect to the board that performs the functions most closely to those undertaken by a U.S.-style board of directors. [September 30, 2008], 252.02 An ESOP is a trust, and counts as one holder of record for purposes of Rule 12g5-1(a)(2). The exercise of the option is a separate investment decision from the purchase of the option. Answer: (a) The written trading plan defense is not available for the market order to sell the 15,000 additional shares. Question: When a registrant is amending multiple Exchange Act reports at the same time, may it do so in a single filing? Pub. [September 30, 2008]. 26589, which significantly amended Rule 15d-10, states that [a] change from a fiscal year ending as of the last day of the month to a 52-53 week fiscal year commencing within seven days of the month end (or from a 52-53 week to a month end) is not deemed a change in fiscal year for purposes of reporting subject to Rule 13a-10 or 15d-10 if the new fiscal year commences with the end of the old fiscal year. [September 30, 2008]. The stock price falls and the broker issues a margin call. The effect is not to constitute the 120th day as a second due date for the Part III information. Question: Under applicable state law, an oral agreement would be considered a binding contract. 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. 117-121. [Mar. [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. [December 8, 2016]. 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: 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. 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). Rule 15c2-12 introduced the voluntary use of private repositories called Nationally 1 17 CFR 240.15c2-12. [September 30, 2008], 252.01 Rule 12g5-1 does not require an issuer to look through record ownership to the beneficial holders in determining whether it has 500 security holders for purposes of registration under Section 12(g) of the Exchange Act. [Mar. 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. [September 30, 2008]. [December 8, 2016]. In other words, the instruction permits forward incorporation by reference of the proxy statement into the already filed Form 10-K. 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? Question: In applying the foreign private issuer definition in Securities Act Rule 405 and Exchange Act Rule 3b-4(c), what factors should be applied to determine the status of an individual as a "U.S. resident" for purposes of determining whether 50 percent of the company's outstanding voting securities are held of record by U.S. residents? 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. The Rule 13a-1 annual report would be due at the same time as any other such annual report. A U.S.-domiciled company can never be a foreign issuer or foreign private issuer, no matter how few U.S. shareholders it may have or where its assets, business, officers or directors are located. 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. 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. Title 17 was last amended 1/27/2023. (Release No. With the advice of the Division of Trading and Markets, the Division staff recommended disclosure concerning the rule in the prospectus. 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). (b) The market order transaction would not affect the availability of the written trading plan defense for the limit order sales under the written trading plan. Question: May an issuer rely on Rule 12b-25 for an extension to file a special financial report under Rule 15d-2? [Mar. 115. [December 8, 2016]. Answer: Yes. Where several Exchange Act reports are being amended at the same time, the amendments should not be made in a single filing. The Although Rule 12g-3 does not provide for the succession to the predecessors Section 12(g) registration if at the time of the succession the securities of the class are held by fewer than 300 record holders, the Division staff has taken the position that Section 12(g) registration could be voluntarily continued by the successor pursuant to Rule 12g-3 in these circumstances without the filing of a new Exchange Act registration statement. 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. Answer: The registrant can suspend the Section 15(d) obligation on a going forward basis provided: (1) the registrant first files post-effective amendments to the Form S-3 and Form S-8 to terminate those offerings; (2) those post-effective amendments become effective before the registrant files a Form 10-K for the last fiscal year; and (3) all of the applicable conditions in Rule 12h-3 are met. 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. 26985 (June 28, 1989), 54 FR 28799. Question: Is a company required to file a Form 12b-25 even when it anticipates filing a periodic report after the Rule 12b-25 extension period? Question: If the Rule 12b-25 extension period ends on a Saturday, Sunday or federal holiday, may the periodic report be filed on the next business day and still be deemed to have been timely filed? Form 11-K provides that the due date for an ERISA plans Form 11-K is 180 days after fiscal year end. 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. Question: A company has filed a Form 25 which will become automatically effective on a Sunday. Answer: No. 25, 2009]. Question: Under the 401(k) plan described in Question 120.21, is a Rule 10b5-1(c) defense available for fund-switching transactions that result in purchases or sales of employer stock? Answer: Rule 12b-25(d) provides that, during the extension period, a company will not be eligible to use any registration statement form under the Securities Act the use of which is predicated on timely filed reports until the subject report is actually filed. The staff interprets the term use contained in the rule to mean that a company would not be eligible to file a new registration statement on Form S-3 until the subject report is filed within the extension period.