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. Answer: The individual performing the functions of a principal executive officer at the time of the filing must provide the certification. Rule 12g-4 does not suspend an obligation to file a Form 10-K or Form 10-Q when either form was due before the Form 15 was filed. Answer: Yes. 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? 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? 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? [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. 1338. 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. Answer: No. 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. Definitions: Rules 3a11-1 to 3b-19 Question 110.01 Question: A foreign issuer qualifies as a foreign private issuer on the last business day of its most recently completed second fiscal quarter, which is the "determination date" for foreign private issuer status under Exchange Act Rule 3b-4 (c). Answer: Yes. [Mar. Question: At a time when she is not aware of material nonpublic information, a person writes a call option, giving the option purchaser the right at any time during the life of the option to buy 10,000 shares from her at a fixed exercise price. 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. 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? S7-12-22), supra. Benefits of Registration 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. 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? Rule 12b-25 has been amended to state that its provisions do not apply to Interactive Data Files. Must the issuer file the periodic report? [September 30, 2008]. The exercise of the option is a separate investment decision from the purchase of the option. Two months later, the option writer receives an exercise notice, requiring her to sell the shares to the counterparty at the exercise price. Question: A company has filed a Form 25 which will become automatically effective on a Sunday. The Division staff ordinarily will not accelerate termination of Section 12(g) registration under Rule 12g-4 where an Exchange Act event is anticipated. Answer: Yes. 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: 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? Answer: Yes. Does canceling one or more plan transactions affect the availability of the Rule 10b5-1(c) defense for prior plan transactions? Can the person modify the Form 144 to state that the representation regarding the sellers knowledge of material information regarding the issuer is as of the date the Rule 10b5-1 plan was adopted or instructions given, rather than the date the person signs the Form 144? If during the term of the trust the person can control what portion of the Rule 144(e) volume limitation is available for trust sales, the person would be permitted to exercise subsequent influence over trust sales within the meaning of Rule 10b5-1(c)(1)(i)(B)(3). Answer: No. How can the registrant suspend its Section 15(d) obligation on a going forward basis? 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. For example, if an issuer became subject to the requirements of Section 13(a) on January 15 and remains subject to Section 13(a) through the end of the year, it will have been subject to the requirements of Section 13(a) for eleven calendar months as of December 31. 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? 9002 (Jan. 30, 2009). [September 30, 2008]. [September 30, 2008], STAY CONNECTED Nomenclature changes to part 240 appear at 57 FR 36501, Aug. 13, 1992, and 57 FR 47409, Oct. 16, 1992. The Form 10-K must be amended by the 120th day to disclose the Part III information if the definitive proxy statement has not been filed, as stated in the general instruction. The Rule 13a-1 annual report would be due at the same time as any other such annual report. 3 SECURITIES EXCHANGE ACT OF 1934 4 ties the functions commonly performed by a stock exchange as that term is generally understood, and includes the market place and the market facilities maintained by such exchange. [Mar. 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. In such a case, each trust, estate or account is a distinct holder of record for purposes of Sections 12(g) and 15(d). Answer: Yes. 240.12b-4 Supplemental information. 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. 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. 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. Subpart A - Rules and Regulations Under the Securities Exchange Act of 1934 ( 240.0-1 - 240.12a-11) General ( 240.12b-1 - 240.12b-7) 240.12b-1 Scope of regulation. [September 30, 2008]. 7881 (Aug. 15, 2000), at fn. In other words, the instruction permits forward incorporation by reference of the proxy statement into the already filed Form 10-K. [Mar. [September 30, 2008]. Question: Can a filer rely on Exchange Act Rule 12b-25 to extend the due date of an Interactive Data File? 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. The person does not communicate any information to the broker that could influence when sales would occur. Answer: The filing of a certification on Form 15 pursuant to Rule 12g-4 immediately suspends an issuers obligation to file periodic reports pursuant to Section 13(a), but the issuers obligations under Section 14(a) continue until the effective date of the issuers Section 12(g) deregistration. 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. In such a case, the newly formed public company would not wait until the end of its fiscal year to determine its accelerated filer status. The successor later learned that at the time of the merger, the predecessor had fewer than 300 record shareholders. 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. [September 30, 2008]. 34-88465 (March 25, 2020)), to extend the filing deadline for the subject report? A company must always file the Form 10-K for the fiscal year in which the registration statement is declared effective. Other than the referenced section, the process and registration statements used are the same as for a Section 12 (g) registration. If a filer does not file its proxy statement or amend its Form 10-K within 120 days, it would be considered an untimely filer. If the company files the Form 15 on the next business day, is it required to file the Form 10-Q? 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. An amendment to Form 10-K does not require signatures of the majority of the board of directors. 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. 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. Registrants unable to rely on the COVID-19 Order are encouraged to contact the staff to discuss collateral consequences of late filings. [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. 25, 2009]. Question: In determining whether the majority of the 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), how should the determination be made when the issuer has two boards of directors? With two legislative days remaining until Crossover Day, legislators and lobbyists spent all . (19) of Form 40-F provides for individualized disclosure for an issuers named executive officers. After the registrant files the Form 10-K, however, all offers and sales under the registration statement must cease. 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. The effective date and compliance date for the amendments are January 3, 2023, and May 3, 2023 . Question: How is the number of record holders determined under Rule 12g5-1? 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 [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. [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 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: There is a risk in selling under Rule 144 during the 5-day or 15-day period following the filing of the Form 12b-25 because, if the missing report or portion thereof is not filed during that period, the issuer may be deemed not current until it is filed. 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? [December 8, 2016]. A company registers securities under Section 12 by filing an Exchange Act registration statement such as on Form 10, Form 20-F or Form 8-A. [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). Answer: Yes. [September 30, 2008]. Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Question: Can a registrant that filed a Form 12b-25 subsequently rely on the COVID-19 Order (Release No. Shareholders could interpret this example as asking them to vote on whether or not the company should hold an advisory vote on executive compensation, rather than asking shareholders to actually approve, on an advisory basis, the compensation paid to the companys named executive officers. [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. The market order does not effect an alteration or deviation of a plan transaction within the meaning of Rule 10b5-1(c)(1)(i)(C) because the 10,000 share limit order under the plan will continue to be executed when the price limit is met. 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)? 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. Answer: No. 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. What Exchange Act filings must the registrant make after it files the Form 15? Answer: The foreign private issuer's initial filing to evidence the succession should be a Form 6-K announcing the succession, filed on EDGAR using the 8-K submission type that is appropriate to the specific transaction. 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. [March 31, 2020]. Question: If a registrant with a December 31 fiscal year-end files a Form 10 in November 2007 which goes effective in January 2008, what is the first Form 10-K that the registrant is required to file? Rule 15c2-12 introduced the voluntary use of private repositories called Nationally 1 17 CFR 240.15c2-12. 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. Answer: No. Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person for the broker's sales? Question: Is it permissible for the say-on-frequency vote to include the words "every year, every other year, or every three years, or abstain" in lieu of "every 1, 2, or 3 years, or abstain"? Specifically, SEC Rule 15c2-12 requires that underwriters of municipal securities, before bidding, purchasing, or . 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. 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 rule is intended to apply broadly. Rule 12b-15 provides that amendments may be signed by a duly authorized representative of the registrant. 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. Title 17 was last amended 1/27/2023. How is this analyzed for purposes of Rule 10b5-1(c)? Issuers must apply a determination methodology on a consistent basis. 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). Question: Must the vote on say-on-frequency, as required by Rule 14a-21(b), be in the form of a "resolution"? 34-88465 (March 25, 2020))? Is an issuer nonetheless required to file the periodic report in this situation? 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). 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. The Commission originally proposed a version of the rule that would have looked through to the beneficial owners of the street-name securities, but adopted the rule in a form that does not produce this result. 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). Amendments should be filed separately for each Exchange Act report to be amended. [September 30, 2008]. 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? Answer: Yes. 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. 284.01 A registration statement under the Securities Act relates to the initial public offering of common stock. 25, 2009]. When two reporting companies consolidate, each of the predecessor companies should file a Form 15 in connection with the succession. 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? Does the contract nevertheless need to be written to establish a defense under Rule 10b5-1(c)? [September 30, 2008]. 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)? 240.0-12 Commission procedures for filing applications for orders for exemptive relief under Section 36 of the Exchange Act. Members of the public flooded the State Capitol again on Tuesday. [December 8, 2016]. Rule 0-12 None Sections 110 to 119. Question: Where the registrant is a limited partnership that does not have an audit committee, who should be considered the persons performing the equivalent function as referenced in paragraph 5 of the certifications required by Rules 13a-14(a) and 15d-14(a)? Therefore, the registrant would not satisfy General Instruction I.A.3 to Form S-3 at the time of its Section 10(a)(3) update because, while the company may be current in its Exchange Act reporting at that time, it would not be timely in that reporting for the twelve calendar months preceding the filing of the Section 10(a)(3) update. Material may be filed by delivery to the Commission, through the mails or otherwise. Rule 0-13 Commission procedures for filing applications to request a substituted compliance order under the Exchange Act. SCHEDULE 13G Under the Securities Exchange Act of 1934 (Amendment No. [September 30, 2008], 261.01 An issuer filing a special financial report on Form 10-K under Rule 15d-2 must file the certification required by Item 601(b)(31) of Regulation S-K, but may omit paragraphs 4 and 5 of the certification because the report will contain only audited financial statements and not Item 307 or 308 of Regulation S-K disclosures. Rule 0-12 None > Sections 110 to 119. [September 30, 2008]. Answer: No. [January 27, 2023]. The Commission publishes orders and related press releases concerning current fee rates on the Commission's web site at www.sec.gov. [Apr. 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). 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. 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. The instruction to the broker, which is an instruction to another person within the meaning of Rule 10b5-1(c)(1)(i)(A)(2), specifies the date of the transaction and imposes a limit on the price, within the meaning of Rule 10b5-1(c)(1)(iii)(B). 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. [September 30, 2008]. Question: Does Rule 12a-5 provide an exemption from registration for poison pill rights under stockholder rights plans? 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. Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-6628 or at (202) 551-5680. 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. 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. Does Rule 10b5-1(c)(1)(i)(B)(3) provide a defense for sales under this plan? Often times those agreements contain commercially sensitive terms that could result in competitive harm if revealed to the public. Answer: No. [Mar. 25, 2009]. 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. 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? 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. 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. [Mar. 26100 (Sept. 22, 1988), 53 FR 37778. First, the person could have exercised discretion not to pay the loan, resulting in default and the transfer of the securities. Question: Is the institutional defense provided by Rule 10b5-1(c)(2) available to the issuer of the securities for a repurchase plan? 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. [September 30, 2008]. 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? A company that is registering on a national securities exchange accomplishes its registration under Section 12 (b) of the Exchange Act . Sec. 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 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). Is a defense available under Rule 10b5-1(c)(1)(i)(B)(3) for the quarterly sales by the trust? 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.