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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. [December 8, 2016]. 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: 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. 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. 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. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. [Aug. 11, 2010]. Answer: Item 6.F of Form 20-F provides for individualized disclosure for an issuers named executive officers. 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. 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. 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 . 25, 2009]. [March 31, 2020]. S7-12-22), supra. Question: Can a filer rely on Exchange Act Rule 12b-25 to extend the due date of an Interactive Data File? On the other hand, a registrant that relies on the COVID Order for a report will be considered to have a due date 45 days after the original filing deadline for the report. Rule 12b-25 is available to registrants filing special financial reports under Rule 15d-2. Answer: No. of Title 15, Commerce and Trade. 34-88465 (March 25, 2020))? [September 30, 2008]. 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. A defense would be available under Rule 10b5-1(c)(1)(i)(A)(2) and (B)(1) if: (1) she acts in good faith and is not aware of material nonpublic information at the time she instructs the broker; and (2) in placing a non-discretionary limit order, she specifies the dates on which that limit order will be in force. 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? Answer: The term calendar month under Rule 12b-2 is interpreted in a manner consistent with the term calendar month in determining Form S-3 eligibility. 7881 (Aug. 15, 2000), at fn. The first sale of securities under the plan will take place on March 1 in reliance on Rule 144. Question: At a time when she is not aware of material nonpublic information, a person establishes a written trading plan to sell 5,000 shares each month, on a date to be selected by her broker during the second or third week of each month, at or above $20 per share. 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? It is uncertain as to its ability to file the required report within the applicable Rule 12b-25(b)(2)(ii) period. [September 30, 2008]. [Mar. 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. Answer: No. 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). [Mar. Answer: Yes. If the company files the Form 15 on the next business day, is it required to file the Form 10-Q? Unless this condition is met, the 45 day relief period provided in COVID-19 Order will not be available. [Mar. Question: May the principal executive officer and principal financial officer of an issuer omit certain paragraphs from the certifications required by Rules 13a-14(a) and 15d-14(a) when the issuer is filing an amendment to a periodic report? 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. 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: During a month when the written trading plan described in Question 120.11 is in effect, the person calls the broker to increase the non-discretionary limit order currently in force from 10,000 shares to 15,000 shares. Question: Could fund-switching transactions under the 401(k) plan described in Question 120.21 be considered "corresponding or hedging transactions" within the meaning of Rule 10b5-1(c)(1)(i)(C) with respect to payroll deduction purchases under the 401(k) plan? 34-88465 (March 25, 2020)), to extend the filing deadline for the subject report? 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. 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. 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. 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. Rule 12b-25 has been amended to state that its provisions do not apply to Interactive Data Files. 115. 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. 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. Under the bankruptcy plan, all shares of the old common stock are canceled simultaneously with the issuance of the new common stock to new holders. L. 106-102, Nov. 12, 1999, 113 Stat. 25, 2009]. (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: 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. 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)? [September 30, 2008]. [Mar. [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: No. 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). The proxy statement still must be filed independently to comply with Rule 14a-6. 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. Does Rule 10b5-1(c)(1)(i)(B)(3) provide a defense for sales under this plan? 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. Does the contract nevertheless need to be written to establish a defense under Rule 10b5-1(c)? 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. These Compliance and Disclosure Interpretations ("C&DIs") principally comprise the Division's interpretations of the rules promulgated under the registration and reporting provisions of Sections 12, 13 and 15 of the Exchange Act. [September 30, 2008]. Relevant considerations may include: who is responsible for engaging the external auditor and for pre-approving audit and non-audit services? Title 17 was last amended 1/27/2023. Answer: No. Where several Exchange Act reports are being amended at the same time, the amendments should not be made in a single filing. 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. 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. Question: The form amendments adding check boxes to the cover page of Form 10-K, Form 20-F, and Form 40-F indicating whether the form includes the correction of an error in previously issued financial statements and a related recovery analysis are effective January 27, 2023. 25, 2009]. [December 8, 2016]. After the Form 8-K is filed, a new file number will be generated for the successor company. Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person for the broker's sales? Members of the public flooded the State Capitol again on Tuesday. 25, 2009]. 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? These purchases are made pursuant to bi-weekly payroll deductions. 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. Answer: Paragraph (f) of Rule 12b-25 excludes from the operation of the rule a company with a subsidiary whose financial statements are to be filed by amendment to the companys Form 10-K, as provided in Rule 3-09 of Regulation S-X. Pub. [September 30, 2008]. 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. At the time of the filing of the periodic report, another officer is performing the functions of a principal executive officer. 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. Some of these C&DIs were first published in prior Division publications and have been revised in some cases. Answer: A person who has permanent resident status in the U.S. a so-called Green Card holder is presumed to be a U.S. resident. 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. [Mar. Is an issuer nonetheless required to file the periodic report in this situation? 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). Question: Which persons will be considered named executive officers for purposes of determining the parties for whom individualized disclosure pursuant to Item B. Answer: No. [September 30, 2008]. 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. 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. 25, 2009]. See Securities Act Release No. Answer: (a) The written trading plan defense is not available for the market order to sell the 15,000 additional shares. Answer: Yes. 9002 (Jan. 30, 2009). Question: Must the vote on say-on-frequency, as required by Rule 14a-21(b), be in the form of a "resolution"? 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: For purposes of determining accelerated filer and large accelerated filer status, may an issuer take into account its reporting history as a voluntary filer? 25, 2009]. Is the exercise of the option covered by a Rule 10b5-1(c)(1)(i)(B)(1) defense despite the fact that the amount, price and date are not specified by the same method? 25, 2009]. Other individuals without permanent resident status may also be residents of the U.S. for purposes of these provisions. Securities Act Release No. The person wishes to continue sales under the plan pursuant to its original terms. Answer: Yes. Answer: The following are examples of advisory vote descriptions that would be consistent with Rule 14a-21s requirement for shareholders to be given an advisory vote to approve the compensation paid to a companys named executive officers, as disclosed pursuant to Item 402 of Regulation S-K. Apart from this specification, she does not have or share any control over the trust's assets. 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. 240.12b-5 Determination of affiliates of banks. After filing the Form 25, the issuer files a Form 12b-25 with respect to a periodic report that is due between the date it filed the Form 25 and the effective date for the delisting under Rule 12d2-2(d)(1). Answer: In this case, a registrant would not have to file Section 13(a) reports during the period after the filing of the Form 15 through the effectiveness of the termination of the Section 12(g) registration and/or Section 15(d) reporting obligation, notwithstanding Rules 12d2-2(d)(6) and (7), if the company would not otherwise be required to file Exchange Act reports under Sections 13(a) or 15(d) of the Exchange Act. 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. 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? 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? 25, 2009]. In both cases, a calendar month begins on the first day of the month and ends on the last day of that month. If the amendment does not contain or amend disclosure pursuant to Item 307 or 308 of Regulation S-K (or the equivalent disclosure requirement in Form 20-F or 40-F), and such disclosure is not otherwise required to be amended given the nature of the reasons for the amendment, paragraphs 4 and 5 may be omitted from the certifications that are filed with the amendment. Answer: No. Answer: No. Assume that the due date of the periodic report is a Saturday, Sunday or federal holiday, and the effective date of the delisting occurs on the first business day following that due date. Amendments should be filed separately for each Exchange Act report to be amended. The person will need to file a Form 144. 25, 2009]. 117-121. 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). 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. To whom is the registered public accounting firm reporting critical accounting policies and practices? [May 29, 2009]. Question: At a time when he is not aware of material nonpublic information, a person purchases a put option. 78c(a)(47)). Answer: The rule is intended to apply broadly. Rule 15c2-12 introduced the voluntary use of private repositories called Nationally 1 17 CFR 240.15c2-12. [September 30, 2008]. [September 30, 2008]. 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. [September 30, 2008]. Answer: Yes. 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. Is a Rule 10b5-1(c) defense available for payroll deduction purchases under the 401(k) plan? Answer: This is a question of fact. 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? 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? The third party who has been granted discretion must not be aware of material nonpublic information when exercising that discretion. Two months later, he wishes to exercise the option. 2, 1980). (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. [Mar. 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. Rule 3a4-1 Associated persons of an issuer deemed not to be brokers. In contrast, securities held in street name by a broker-dealer are held of record under the rule only by the broker-dealer. 25, 2009]. [September 30, 2008]. Answer: No. [September 30, 2008]. An ESOP is not a voting trust under Rule 12g5-1(b). Commodity Exchange Act & Regulations How Rules Are Made Holding Wrongdoers Accountable Federal Register Public Comments CFTC Staff Letters Office of Technology Innovation Market Data & Economic Analysis Data at CFTC Commitments of Traders Bank Participation Reports Cotton On-Call Financial Data for FCMS Net Position Changes Data Staff Reports 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). [September 30, 2008]. 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. Rule 10b5-1(c)(1)(i)(B)(3) contemplates that a person, while not aware of material nonpublic information, may delegate to a third party under a contract, instruction or written trading plan, all subsequent influence over how, when or whether to effect purchases or sales. Material may be filed by delivery to the Commission, through the mails or otherwise. [Mar. [September 30, 2008]. [December 8, 2016]. 25, 2009]. Question: At a time when she is not aware of material nonpublic information, a person establishes a trust. 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. Also, she may have had the discretion to substitute collateral or provide additional collateral or cash to prevent foreclosure and sale of the stock. 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? 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? Washington, D.C. 20549 . 240.12b-2 Definitions. Question: A CEO resigned after the end of the quarter but before the filing of the upcoming Form 10-Q. 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. Answer: Yes. (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. Question: For purposes of the definition of foreign private issuer in Securities Act Rule 405 and Exchange Act Rule 3b-4(c), how does an issuer determine whether its business is administered principally in the United States? Question: Is the institutional defense provided by Rule 10b5-1(c)(2) available to the issuer of the securities for a repurchase plan? In this case, where one or more of the price, amount and dates of transactions under a contract, instruction or written plan are to be determined based on a delegation of discretion to another person, the availability of a defense depends upon satisfaction of the conditions of Rule 10b5-1(c)(1)(i)(B)(3). 25, 2009]. 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. If the registrant only files a Form 12b-25 by the original due date of the required report, it will have not met the condition of the COVID-19 Order to provide the statements called for by the original filing deadline on a furnished Form 8-K or Form 6-K. 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. Question: A registrant expects that due to COVID-19 it will be unable to file a report of the type covered by Rule 12b-25 on a timely basis without incurring an unreasonable effort or expense. [September 30, 2008]. 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. 16718 (Apr.