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]. 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? [Mar. Securities Act Release No. Is an issuer nonetheless required to file the periodic report in this situation? The registrant can file a Form 15 relating to the B partnership indicating the suspension of reporting with respect to that partnership, and continue filing reports under the 33- number for the remaining partnership. [September 30, 2008]. Answer: No. (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. 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. 34-94524; File No. Answer: The individual performing the functions of a principal executive officer at the time of the filing must provide the certification. Exchange Act Rule 17a-4 Amendments Chart | FINRA.org Answer: No. Issuers must apply a determination methodology on a consistent basis. 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. [September 30, 2008]. [September 30, 2008]. 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. 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? Question: A person purchases employer stock through her participation in the employer's 401(k) plan. [September 30, 2008], STAY CONNECTED The absence of good faith or presence of a scheme to evade would eliminate the Rule 10b5-1(c) defense for prior transactions under the plan. 25, 2009]. Amendments to Exchange Act Rule 3b-16 Regarding the Definition of "Exchange;" . 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. Question: Under applicable state law, an oral agreement would be considered a binding contract. In that case, a purchase or sale that complies with the modified contract, instruction, or plan will be considered pursuant to a new contract, instruction, or plan." 17 CFR 240.0-3 - Filing of material with the Commission. ( F) A person's right to acquire equity securities through the exercise or conversion of any derivative security, whether or not presently exercisable. [Mar. Question: What fee rates apply to repurchases of securities and to proxy solicitations and statements in corporate control transactions? 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. How is this transaction analyzed for purposes of Rule 10b5-1(c)? The reporting history of an issuer while it was a voluntary filer is not considered part of the twelve calendar months during which the issuer must have been subject to the reporting provisions of the Exchange Act. 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. Question: An issuer files a Form 12b-25 in connection with a periodic report, and then files a Form 15 under Rule 12g-4 during the Rule 12b-25 extension period. 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. [Mar. Instead, each of the depositorys accounts for which the securities are held is a single record holder. 7b-3. [Mar. The Division staff ordinarily will not accelerate termination of Section 12(g) registration under Rule 12g-4 where an Exchange Act event is anticipated. 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? Question: Must the vote on say-on-frequency, as required by Rule 14a-21(b), be in the form of a "resolution"? ( d) Emerging growth company eligibility - Answer: Yes. Rule 12g-3 provides for the registration of the securities of successor issuers under the Exchange Act. 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? 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? 25, 2009]. [September 30, 2008]. [September 30, 2008], 280.01 Exchange Act Release No. 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? 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. Is the Rule 10b5-1(c)(1)(i)(B)(3) defense available to the person when the bank sells the stock? The rule serves to eliminate any possible gap in the application of Exchange Act protection to the security holders of the predecessor. 25, 2009]. [September 30, 2008]. 25, 2009]. 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. Question: When does Rule 12g-4 suspend an issuers Section 13(a) and Section 14(a) reporting obligations? Within the meaning of Rule 144(a)(2), the person and the trust will be a single person. To implement the sales, the plan provides that on the last day of each month the person will place a limit order with a broker, valid until the last day of the next month, to sell 10,000 shares at or above $20 per share. [September 30, 2008]. 34-88465 (March 25, 2020))? 117-121. [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. 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 12g-4 affects only Section 13(a) reporting requirements that arise from Section 12(g) registration and does not affect any reporting requirement under Section 15(d) of the Exchange Act that may become operative in connection with the termination of Section 12(g) registration. Answer: No. 34-88465 (March 25, 2020)), to extend the filing deadline for the subject report? The fee rates set forth in Exchange Act Rule 0-11 do not apply. 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. SEC.gov | Exchange Act Exemptive Applications 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. [Mar. See Securities Act Release No. The company proposed that the plan provide for an automatic reduction in the aggregate number of shares authorized for repurchase under the plan equal to the number of shares, if any, that the company discloses in Form 10-Q, Part II, Item 2 that it has repurchased in privately negotiated transactions. [September 30, 2008], 270.01 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 the registration statement. 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)? 26100 (Sept. 22, 1988), 53 FR 37778. 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. 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. This position is consistent with the look back provision of Rule 12h-3(e), which provides that a company that suspends its reporting obligation under Rule 12h-3, but subsequently has that reporting obligation revived, must begin reporting again under Section 15(d) by filing a Form 10-K for its previous fiscal year. Question: If the certifications required by Rules 13a-14(a) and 15d-14(a) are not included as exhibits to a Form 10-K or 10-Q, and an amendment will be filed to include the certifications as exhibits, must the entire periodic report be re-filed or can the amendment include only the signature page? 9002 (Jan. 30, 2009). Question: A company has filed a Form 25 which will become automatically effective on a Sunday. Question: Under Exchange Act Rule 12g-3, must a Form 8-A, or any other form, be filed in order for the securities of a successor issuer to be deemed registered under Section 12? Answer: Rule 12g5-1 defines held of record for purposes of Exchange Act Section 12(g) and 15(d). Answer: Yes. See, e.g., SEC v. Zandford, 535 U.S. 813 (2002) and Merrill Lynch, Pierce, Fenner & Smith, Inc., v. Dabit, 547 U.S. 71 (2006). Question: Is it permissible for the say-on-pay vote to omit the words, "pursuant to Item 402 of Regulation S-K," and to replace such words with a plain English equivalent, such as "pursuant to the compensation disclosure rules of the Securities and Exchange Commission, including the compensation discussion and analysis, the compensation tables and any related material disclosed in this proxy statement"? Consequently, sales pursuant to the altered limit order would not be pursuant to the existing plan. 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. Terminating Section 15(d) Reporting; Determining Voluntary Reporting 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). When two reporting companies consolidate, each of the predecessor companies should file a Form 15 in connection with the succession. Is a filer that submits interactive data in an exhibit to a Form 10-K or 10-Q required to consider controls and procedures with respect to interactive data in complying with Exchange Act Rules 13a-15 and 15d-15 and Item 307? Answer: No. Question: Does canceling one or more plan transactions affect the availability of the Rule 10b5-1(c) defense for future plan transactions? What effect does this have on the availability of a Rule 10b5-1(c) defense? While the check boxes and other disclosure requirements will be in the rules and forms in 2023, we do not expect issuers to provide such disclosure until they are required to have a recovery policy under the applicable listing standard. Guide to Maintaining Confidentiality of Commercially Sensitive Is the sale pursuant to the option exercise covered by an affirmative defense under Rule 10b5-1(c)? 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. Rule 10b5-1(c)(1)(i)(B)(1) would not be available. (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. It is uncertain as to its ability to file the required report within the applicable Rule 12b-25(b)(2)(ii) period. [December 8, 2016]. 2, 1980). (19) of Form 40-F provides for individualized disclosure for an issuers named executive officers. [September 30, 2008]. 17 CFR 240.0-11 - LII / Legal Information Institute 17 CFR Part 240 - GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE eCFR :: 12 CFR Part 11 -- Securities Exchange Act Disclosure Rules 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. 17 CFR 240.0-12 - LII / Legal Information Institute 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. Question: How is the number of record holders determined under Rule 12g5-1? [Mar. Where several Exchange Act reports are being amended at the same time, the amendments should not be made in a single filing. The effective date and compliance date for the amendments are January 3, 2023, and May 3, 2023 . Must the issuer file the periodic report? 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? For example, if a non-reporting foreign private issuer acquires a reporting foreign private issuer using shares as consideration in a transaction exempt from registration under the Securities Act (such as under Section 3(a)(10)), how should the non-reporting foreign private issuer begin filing on EDGAR? 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. The issuer is not otherwise required to file Exchange Act reports under Sections 13(a) or 15(d) of the Exchange Act after the effective date of the delisting. 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. eCFR :: 17 CFR 240.16a-1 -- Definition of terms. SEC Filing | Sabre Corporation - IR Site Rule 0-3 under the Exchange Act provides that when the due date of a report falls on a Saturday, Sunday or holiday, the report will be considered timely filed if it is filed on the first business day following the due date. Question: Must co-principal executive officers (or co-principal financial officers) execute separate certifications or may both execute the same certification? Answer: No. [June 4, 2010]. 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]. In these circumstances, an issuer must decide what criteria it will use to determine residency and apply them consistently without changing them to achieve a desired result. SUPPLEMENTARY INFORMATION: The Commission is adopting amendments to 17 CFR 240.15c2-12 ("Rule 15c2-12" or "Rule") under the Securities Exchange Act of 1934. [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. Is a Form 15 required to be filed under Rule 12h-3 as a condition of the suspension? Answer: Yes. Apart from this specification, she does not have or share any control over the trust's assets. PDF Securities Exchange Act of 1934 - New York Stock Exchange 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. [Mar. 25, 2009]. At the time of filing such statement as the Commission may require pursuant to section 13 (e) (1) of the Exchange Act, a fee equal to the product of the rate applicable under section 13 (e) of the Exchange Act multiplied by the value of the securities proposed to be acquired by the acquiring person. Question: An issuer does not have a principal executive officer or a principal financial officer. [September 30, 2008]. [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. 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? Question: At a time when he is not aware of material nonpublic information, a person buys a put option, giving him the right at any time during the 12-month term of the option to sell 10,000 shares at a fixed exercise price. 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. 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. 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? 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. Alternatively, an issuer may make the determination based on the number of voting securities. 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. 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: 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: No. Answer: No. As a condition to its use, the COVID-19 Order requires, among other things, that the registrant furnish certain specified statements by the later of March 16, 2020 or the original due date of the required report. [December 8, 2016]. 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. Form 11-K provides that the due date for an ERISA plans Form 11-K is 180 days after fiscal year end. 25, 2009]. Question: After the written trading plan described in Question 120.11 has been in effect for several months, the person terminates the selling plan by calling the broker and canceling the limit order. Unless this condition is met, the 45 day relief period provided in COVID-19 Order will not be available. Answer: Yes, it is permissible to use a plain English equivalent in lieu of the words, "pursuant to Item 402 of Regulation S-K." [Feb. 11, 2011]. 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. For example, where the due date for a Form 10-K is Sunday, March 31, the Form 10-K would be due on Monday, April 1 and the Form 12b-25 would be timely if filed on Tuesday, April 2. 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)? Rule 3a4-1 Associated persons of an issuer deemed not to be brokers. 78c(a)(47)). Such individualized disclosure is required about executive officers for whom the issuer otherwise provides individualized compensation disclosure in the filing. The issuer is not otherwise required to file Exchange Act reports under Section 13(a) or 15(d) of the Exchange Act after the effective date of the delisting. 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). To whom is the registered public accounting firm reporting critical accounting policies and practices? Answer: Yes. Once the Form 25 is effective the company may file a Form 15 which will immediately suspend its Exchange Act reporting obligations. [September 30, 2008]. The same analysis applies whether the option is a put or a call. Answer: No. [Mar. The periodic report will not be deemed timely for purposes of form eligibility, and the issuer will not be deemed current until the amended periodic report containing the certification is filed. Answer: The new CEO, provided that he or she is the principal executive officer at the time of the filing. CFTC Regulations | CFTC - Commodity Futures Trading Commission Answer: Yes. Do Rules 10b5-1(c)(1)(i)(A)(3) and (B)(1) provide a defense for sales under this plan if the limit order is non-discretionary (requiring the broker to execute a sale as soon as a buyer is available at or above $20 per share)? 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? [September 30, 2008]. 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. In other words, the instruction permits forward incorporation by reference of the proxy statement into the already filed Form 10-K. Shortly thereafter, the foreign issuer reincorporates in Delaware. [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. Answer: Yes. [May 29, 2009]. Question: Under the 401(k) plan described in Question 120.21, is a Rule 10b5-1(c) defense available for fund-switching transactions that result in purchases or sales of employer stock? If those functions are divided between both boards, the issuer may aggregate the members of both boards for purposes of calculating the majority. Answer: Yes. Question: On January 1, a person adopts a written plan for selling securities that satisfies the affirmative defense conditions of Rule 10b5-1(c).