Members of the public flooded the State Capitol again on Tuesday. The Form 10- K is required regardless of whether the company suspends its reporting obligation under Section 15(d) or Rule 12h-3. Terminating Section 15(d) Reporting; Determining Voluntary Reporting 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: (a) The written trading plan defense is not available for the market order to sell the 15,000 additional shares. Question: An issuer does not have a principal executive officer or a principal financial officer. 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. 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. See Exchange Act Release No. Is a defense available under Rule 10b5-1(c)(1)(i)(B)(3) for the quarterly sales by the trust? [September 30, 2008]. 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. Answer: The fee rates (as adjusted annually) under Exchange Act Section 13(e) and Section 14(g) apply to repurchases of securities and to proxy solicitations and statements in corporate control transactions, respectively. Consequently, if he is aware of material nonpublic information at the time of exercise, no defense will be available under Rule 10b5-1(c). Question: Is the institutional defense provided by Rule 10b5-1(c)(2) available to the issuer of the securities for a repurchase plan? In the Citizens and Southern Corp. no-action letter (Feb. 8, 1988) issued by the Division, we state that, for a plan filing annual reports on Form 11-K, no other reports required by Section 13 of the 1934 Act would be required. [September 30, 2008], 220.01 After the written trading plan described in Q&A 120.11 has been in effect for several months, the broker that has been executing plan sales goes out of business at a time when the person is aware of material nonpublic information. [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. Answer: No, because this transaction is an internal recapitalization and is not deemed to be a "sale or other disposition" for filing fee purposes. Securities Act Release No. For example, this defense would be available if, in creating the contract, instruction or plan, the person specifies one or two of the amount, price or date of transactions. As a general matter, a fund-switching transaction that effects a sale could be a corresponding or hedging transaction under Rule 10b5-1(c)(1)(i)(C) with respect to a payroll deduction purchase under the 401(k) plan. Answer: Yes. [Mar. (Release No. (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. [Mar. 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? In 240.0-1 to 240.24b-3, the numbers to the right of the decimal point correspond with the respective rule numbers of the rules and regulations under the Securities Exchange Act of 1934. 240.12b-5 Determination of affiliates of banks. 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? 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? 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. 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. With two legislative days remaining until Crossover Day, legislators and lobbyists spent all . 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. Instead, the analysis would focus on whether the person was aware of material nonpublic information at the time she places the market order. 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. If a registrant properly files a Form 12b-25 with respect to a periodic report, and the Rule 12b-25 extension period for the filing of the periodic report ends on a Saturday, Sunday or federal holiday, the periodic report will be deemed to have been filed within the Rule 12b-25 extension period if the registrant files the periodic report by the next business day, consistent with Exchange Act Rule 0-3. 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. Answer: No. Question: Can a filer rely on Exchange Act Rule 12b-25 to extend the due date of an Interactive Data File? 117-121. [September 30, 2008]. Answer: No. Title V of the Act is classified principally to chapter 94 (6801 et seq.) Rules of General Application (Rules 0-1 to 3a5-3) 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. Question: For a class of securities that is being delisted from a national securities exchange, may a Form 15 be filed with respect to that class of securities before the effective date of the delisting pursuant to a Form 25? 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). For complete classification of this Act to the Code, see Short Title of 1999 Amendment note set out under section 1811 of Title 12, Banks and Banking, and Tables. Answer: An issuer may choose one of two methods. Answer: No. Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person for the broker's sales? Is a Rule 10b5-1(c) defense available for payroll deduction purchases under the 401(k) plan? 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. Electronic storage media is defined as any digital storage medium or system that meets the conditions set forth in the rule. 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. [Mar. Material may be filed by delivery to the Commission, through the mails or otherwise. 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? Question: When a registrant is amending multiple Exchange Act reports at the same time, may it do so in a single filing? SEC Filing | Sabre Corporation - IR Site 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. 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). Question: Can a registrant that filed a Form 12b-25 subsequently rely on the COVID-19 Order (Release No. 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. 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. [September 30, 2008]. SEC.gov | Exchange Act Exemptive Applications 240.12b-3 Title of securities. 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? Answer: The rule is intended to apply broadly. At the time of the filing of the periodic report, another officer is performing the functions of a principal executive officer. Answer: Rule 12g5-1 defines held of record for purposes of Exchange Act Section 12(g) and 15(d). Answer: Yes. Exchange Act Rule 0-12 describes the procedures for seeking an exemption under Section 36. But they weren't the only ones demanding action under the Gold Dome. The effect is not to constitute the 120th day as a second due date for the Part III information. 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]. S7-12-22), supra. 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. 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). 17 CFR 240.0-11 - LII / Legal Information Institute 26100 (Sept. 22, 1988), 53 FR 37778. INTELLIGENT SYSTEMS CORP (Form: DEF 14A, Received: 07/13/2020 16:06:54) 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. The stock price falls and the broker issues a margin call. N.B. PDF Conformed to Federal Register version. - SEC 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. How is this transaction analyzed for purposes of Rule 10b5-1(c)? Answer: Item 6.F of Form 20-F provides for individualized disclosure for an issuers named executive officers. 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. 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? 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 . Answer: No. 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. The exercise of the option is a separate investment decision from the purchase of the option. Answer: Yes. Answer: In the adopting release, the Commission indicated that it does not expect compliance with the disclosure requirements until issuers are required to have a recovery policy under the applicable exchange listing standard. 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. 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). [Mar. Answer: Yes, assuming two additional facts are present: (1) the terms of the plan do not permit her to exercise any subsequent influence over the timing of sales under the plan; and (2) the broker is not aware of material nonpublic information when selling securities under the plan. Question: 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). Such individualized disclosure is required about executive officers for whom the issuer otherwise provides individualized compensation disclosure in the filing. 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? 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. Answer: The individual performing the functions of a principal executive officer at the time of the filing must provide the certification. Answer: Co-principal executive officers (or co-principal financial officers) should each execute separate certifications. 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. 25, 2009]. 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. Rule 12d2-2(d)(5) specifies that the issuers duty to file any reports under Section 13(a) solely because of registration pursuant to Section 12(b) is suspended only when the Form 25 is effective for the delisting. Answer: The new CEO, provided that he or she is the principal executive officer at the time of the filing. Question: Can Rule 12b-25 be used to extend the due date for timely filing of information incorporated by reference from definitive proxy materials into Item III of Form 10-K? [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? [Mar. Answer: No. 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. [January 27, 2023]. Does canceling one or more plan transactions affect the availability of the Rule 10b5-1(c) defense for prior plan transactions? 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, 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. 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. 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. 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. Washington, D.C. 20549 . [Mar. It is the counting rule for determining whether an issuer has sufficient security holders to become or remain subject to Section 12(g) and to remain subject to Section 15(d). Subsequently, on the first day of fiscal year 2010, the number of record holders exceeded 300, and as a result, the companys obligation to file periodic reports under section 15(d) revived. What is the first report due for this company? Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-6628 or at (202) 551-5680. 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. For Rules 10b5-1(c)(1)(i)(A)(3) and (B)(1) to provide a defense, the terms of the plan must specify the dates on which the monthly non-discretionary limit orders will be in force. Question: Does Rule 12a-5 provide an exemption from registration for poison pill rights under stockholder rights plans? The same analysis applies whether the option is a put or a call. First, the person could have exercised discretion not to pay the loan, resulting in default and the transfer of the securities. [December 8, 2016]. [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. Where several Exchange Act reports are being amended at the same time, the amendments should not be made in a single filing. The bracketed date following each C&DI is the latest date of publication or revision. 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. [January 27, 2023]. 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). Question: May a company continue to use a registration statement that is predicated on timely filed reports (such as Form S-3) during the Rule 12b-25 extension period for a periodic report? 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). [September 30, 2008]. Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person when the bank sells the stock? 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. 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. Paragraphs 1 and 2 may not be omitted under any circumstances. Answer: Because situations exempted by Rule 12h-3 (e.g., there are fewer than 300 security holders of record in the middle of a fiscal year) do not meet the literal test of Section 15(d), Rule 12h-3 requires the filing of Form 15 as a condition of the suspension. 25, 2009]. 240.12b-4 Supplemental information. 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. To whom is the registered public accounting firm reporting critical accounting policies and practices? When two reporting companies consolidate, each of the predecessor companies should file a Form 15 in connection with the succession. 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? [September 30, 2008]. 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. 17 CFR 240.0-3 - Filing of material with the Commission.
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