[December 8, 2016]. Must the issuer file the periodic report? [September 30, 2008]. The rule does not require a binding contract (Rule 10b5-1(c)(1)(i)(A)(1)) or an instruction to another person (Rule 10b5-1(c)(1)(i)(A)(2)) to be written. SECURITIES AND EXCHANGE COMMISSION . Answer: Item B. Within the meaning of Rule 144(a)(2), the person and the trust will be a single person. 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. 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. The person does not communicate any information to the broker that could influence when sales would occur. 7881 (Aug. 15, 2000) at fn. Should this other officer sign the certification despite the fact that there is a titular CEO? U.S. Securities and Exchange Commission (SEC) rules require reporting companies to file material agreements as exhibits to periodic reports, registration statements and certain other disclosure documents. 7881 (Aug. 15, 2000), text at fn. 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. [September 30, 2008]. [September 30, 2008]. 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. 16718 (Apr. Answer: There is no single factor or group of factors that are determinative under this clause. Rather, the companys ability to continue to make such offers or sales will depend on whether it 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. Is a Rule 10b5-1(c) defense available for payroll deduction purchases under the 401(k) plan? What effect does this have on the availability of a Rule 10b5-1(c) defense? Either the old or new fiscal year could, therefore, be as short as 359 days, or as long as 371 days (372 in a leap year). While a transition report would not be required, a Form 8-K (Item 5.03) may have to be filed to report the change in fiscal year-end. [Mar. First, the person could have exercised discretion not to pay the loan, resulting in default and the transfer of the securities. 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. 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. 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. 25, 2009]. 7881 (Aug. 15, 2000) at fn. 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. 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. Question: Must co-principal executive officers (or co-principal financial officers) execute separate certifications or may both execute the same certification? Similarly, a company that must file a registration statement on Form 10 to register a class of securities under Section 12(g) must include financial statements for its previous fiscal year. 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. [September 30, 2008]. 240.12b-3 Title of securities. Question: Does canceling one or more plan transactions affect the availability of the Rule 10b5-1(c) defense for future plan transactions? [September 30, 2008]. 117-121. 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: Is it necessary for a majority of the board of directors of the registrant to sign an amendment to a Form 10-K? 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. [Mar. [Mar. 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). An application must be submitted to the Office of the Secretary either in paper or electronic format. Answer: No. 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. 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. How is this transaction analyzed for purposes of Rule 10b5-1(c)? 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. 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? [Mar. 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. of Title 15, Commerce and Trade. 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. The third party who has been granted discretion must not be aware of material nonpublic information when exercising that discretion. 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. In contrast, securities held in street name by a broker-dealer are held of record under the rule only by the broker-dealer. Members of the public flooded the State Capitol again on Tuesday. 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? Instead, each of the depositorys accounts for which the securities are held is a single record holder. [September 30, 2008], 254.01 If an issuer of a guaranteed security has a different class of securities that is registered under Section 12 of the Exchange Act, the issuer cannot rely on Rule 12h-5 for reporting relief until it deregisters the other class of securities. (b) Alternatively, the written plan could provide for adjustment of the amount of securities to be sold each month based on a delegation of discretion to the broker. 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). 240.12b-4 Supplemental information. In this example, the person has retained discretion over the timing of the option exercise. [September 30, 2008]. Question: Does Rule 12a-5 provide an exemption from registration for poison pill rights under stockholder rights plans? 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. Question: Must the vote on say-on-frequency, as required by Rule 14a-21(b), be in the form of a "resolution"? 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). 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. Question: A condition for meeting the definitions of accelerated filer and large accelerated filer in Rule 12b-2 is that the issuer must have been subject to the requirements of Section 13(a) or 15(d) of the Exchange Act for a period of at least twelve calendar months as of the end of its fiscal year. [December 8, 2016]. [September 30, 2008]. [December 8, 2016]. Or, if there is ultimately an individual serving as the general partner of a limited partner in the chain of ownership, then that individual is likely performing the equivalent functions of an audit committee for the registrant. 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? 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. 25, 2009]. The 401(k) plan also allows employees to transfer the assets in their accounts among funds within the plan (including the employer stock fund) through fund-switching transactions. Answer: No. 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? 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. [September 30, 2008], 260.01 An issuer goes effective with a Securities Act registration statement after its fiscal year end without including audited financial statements as of such year end in such registration statement. 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. Answer: Rule 12g5-1 defines held of record for purposes of Exchange Act Section 12(g) and 15(d). 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. Question: When does Rule 12g-4 suspend an issuers Section 13(a) and Section 14(a) reporting obligations? Is the sale pursuant to the option exercise covered by an affirmative defense under Rule 10b5-1(c)? Answer: Yes. Answer: The cancellation of one or more plan transactions would be an alteration or deviation from the plan, which would terminate that plan. 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? 25, 2009]. 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). 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. 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. 2 Securities Exchange Act Release No. [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. 34-88465 (March 25, 2020)), to extend the filing deadline for the subject report? 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. 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). 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. [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). 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)? 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? Answer: No. The person wishes to continue sales under the plan pursuant to its original terms. release. The same analysis applies whether the option is a put or a call. Question: Does termination of a plan affect the availability of the Rule 10b5-1(c) defense for prior plan transactions? 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? 3 Securities Exchange Act Release No. [June 4, 2010]. An issuer may not look to Exchange Act Rule 0-3(a) to avoid filing the periodic report in the event that the due date of the periodic report falls on a Saturday, Sunday or federal holiday and the effective date of the delisting occurs on the first business day following that due date. 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. The 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. [September 30, 2008]. Plaintiffs initiated an action against MacroGenics, its president and CEO, and its senior vice president and CFO (collectively "Defendants") for alleged violations of sections 10(b) and 20(a) of the Securities Exchange Act of 1934, Securities and Exchange Commission ("SEC") Rule 10b-5, and sections 11, 12(a), and 15 of the Securities . 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? That the principal executive and financial officers do not need to consider such controls in making their individual certifications about their responsibility for establishing and maintaining the filer's disclosure controls and procedures does not mean that the filer can exclude such controls in complying with Rules 13a-15 and 15d-15 and Item 307 of Regulation S-K. [May 29, 2009]. Question: Which persons will be considered named executive officers for purposes of determining the parties for whom individualized disclosure pursuant to Item B. 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. Answer: No. Answer: Yes. [September 30, 2008]. [June 4, 2010]. The Division staff ordinarily will not accelerate termination of Section 12(g) registration under Rule 12g-4 where an Exchange Act event is anticipated. 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). 25, 2009]. 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.
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