Shareholder Solicitations & the SEC’s Proxy Rules
Most public companies hold a stockholders’ meeting annually and hold special meetings to vote on special corporate actions such as name changes and mergers. Shareholder voting on takes place either in person or by proxy. Proxy solicitation is governed by a number of rules and regulations including: (i) state corporate law; (ii) stock exchange listing requirements; (iii) SEC proxy rules; and (iv) the issuers’ articles and bylaws. Issuers who have a class registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are subject to the proxy rules. The SEC’s proxy rules are loccated in Section 14(a) of the Exchange Act.
OTC Markets Rules of the Road
The Financial Industry Regulatory Authority (“FINRA”) and the Securities and Exchange Commission (“SEC”) regulate trading of stocks quoted by the OTC Markets Group.
OTC Markets is not a regulator and is not affiliated with FINRA or the SEC. Additionally, OTC Markets is not a stock exchange and it has no listing requirements.
FINRA and OTC Markets
FINRA establishes rules that impact OTC Markets in several ways. These include FINRA rules regulating its broker-dealer members and setting qualification standards for securities industry professionals as well as rules governing compliance.
OTC Markets OTC Pink Tier
The OTC Markets Group operates an electronic inter-dealer quotation system called OTC Link that broker-dealers use to trade securities not listed on a national securities-related exchange. OTC Markets has three OTC Pink tiers. Each issuer’s rank in the OTC Pink tiers depends upon the amount of disclosure provided. Issuers using SEC Rule 15c2-11 qualify for the “OTC Pink Current Information” tier.
OTC Pink Tiers – The Pink Current Tier Read More
Boca Raton Attorney William J. Reilly Indicted For Securities Fraud
Lawyers Gone Wild Series
On October 24, 2012, Boca Raton securities lawyer William J. Reilly was arrested by the FBI for allegedly engaging in a scheme to fraudulently sell stock in a company called Caribbean Pacific Marketing. In its S-1 registration statement filed with the Securities and Exchange Commission (“SEC”), Caribbean Pacific claimed it qualified as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act (the “JOBS Act”). Once the S-1 was deemed effective by the SEC in August 2012, Reilly sold stock to, among others, a “confidential source” who was working with the FBI. Read More
What Are Form 8-K Disclosures? Going Public Lawyer
Private companies seeking to go public should be aware that once their S-1 or other registration statement is declared effective by the SEC, the company will be required to publicly file on the SEC’s EDGAR database annual reports on Form 10-K and quarterly reports on Form 10-Q. SEC reporting companies must also report certain material events within four days ofthe event. Current Reports on Form 8-K provide investors with current information to enable them to make informed investment decisions. The information required to be disclosed on Form 8-K is generally considered to be “material” information. Generally, this means that there is a substantial likelihood that a reasonable investor would consider the information important in making an investment decision.
NYSE and NASDAQ Compensation Committee Proposals
On January 17, 2013, the Securities and Exchange Commission (the “SEC”) approved proposals by the New York Stock Exchange (“NYSE”) and the NASDAQ Stock Market (“NASDAQ”) regarding compensation committee and compensation adviser independence, as required by the new SEC rules issued under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd Frank Act”). Read More
How Can I List My Company on NASDAQ?
Private companies that go public often attempt to list on a national securities exchange. One of these, the NASDAQ Stock Market (“NASDAQ”) has three distinct tiers for companies considering an exchange listing as part of their going public transaction. These tiers are the NASDAQ Global Select Market, the NASDAQ Global Market and the NASDAQ Capital Market. Issuers must satisfy specific Read More
OTC Markets Eliminates Quarterly Legal Opinions For OTC Pink Market
On January 3, 2013, OTC Markets revised its disclosure requirements for issuers quoted on OTC Markets’ “OTC Pink Current Information” tier. As set forth in our January 4, 2013 blog post, these revisions reduced the filing deadline for reporting a laundry list of corporate events but eliminated the obligations of issuers to provide quarterly legal opinion letters from their securities attorneys.
About the OTC Markets Disclosure Tiers Read More
Spam 101 l Securities Lawyer 101 Blog
Spam is unsolicited information–usually cast in the form of an advertisement–that is sent to a large number of recipients electronically. Spam may take the form of an email or a series of message board postings. The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”) addresses commercial email. Commercial email is defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” Read More
SEC Seeks Order For Section 3(a)(10) Action
On December 23, 2013, the Securities and Exchange Commission (“SEC”) entered into a proposed settlement of a pending civil action against Advanced Cell Technology, Inc. (“Advanced Cell”), arising out of Advanced Cell’s issuance of hundreds of millions of unregistered shares of common stock on thirteen separate occasions without qualifying for any exemption from registration. The settlement is subject to the Court’s approval. Read More
OTC Markets Increases Disclosure Requirements for OTC Pink Issuers
On January 3, 2013, the OTC Markets revised its disclosure requirements for issuers quoted with an OTC Markets “OTC Pink Current” tier. These revisions increase current events disclosures for a laundry list of corporate events but reduce the obligations of issuers to provide quarterly legal opinion letters from their securities lawyers.
The OTC Markets Group operates an electronic inter-dealer quotation system for broker-dealers to trade securities not Read More
What Is Section 16 Reporting? Securities Lawyer 101
Section 16(a) of the Exchange Act of 1934 (the “Exchange Act”) requires the reporting of beneficial ownership by the officers, directors and stockholders who hold stock directly or indirectly, beneficially owning more than 10% of the company’s common stock or other class of equity securities registered under Section 12(b) or 12(g) of the Exchange Act. Section 16 reporting requirements apply only to companies that have registered a class of securities under Section 12(b) or Section 12(g).
Issuers that voluntarily file periodic reports under Section 15(d) of the Exchange Act, and their directors, officers and large stockholders, are not subject to the reporting obligations of Section 16. Nor are issuers that are required to file periodic reports under the Securities Act of 1933 bound by the provisions of Section 16.
Beneficial Ownership
For the purposes of Section 16, beneficial ownership means having or sharing, directly or indirectly, either investment or voting power or both. To determine what or how many securities are reported under Section 16, beneficial ownership means having an economic or pecuniary interest, which includes directly or indirectly receiving or sharing in profits from a transaction in the securities, whether by agreement, relationship or other arrangement (See Rule 16(a)-1, Exchange Act). Direct economic interests are defined as ownership of securities in certificate form, or of securities held in a brokerage account bearing the individual’s name. Indirect economic interests that imply beneficial ownership include the following:
♦ A person is generally regarded as beneficially owning securities held in the name of immediate family members sharing the same household. As such, if a spouse or household family member purchases an issuer’s securities, the spouse or other members of the household have an interest in those shares;
♦ An indirect pecuniary interest in securities can cause beneficial ownership to be attributed to multiple persons, such as when persons are acting as a group to acquire, hold, vote or dispose of an issuer’s equity securities. Each person in the group is deemed to be a beneficial owner of all the issuer’s equity securities that are beneficially owned by the other persons within the group; and
♦ The right to acquire equity securities by the exercise or conversion of a derivative including debt security is considered an indirect pecuniary interest in the underlying equity security whether or not the right is presently exercisable.
Section 16 requires the following reports:
♦ SEC Form 3 to report an initial statement of beneficial ownership;
♦ Form 4 to report changes in beneficial ownership; and
♦ Form 5 to report annual statements of beneficial ownership.
Form 3
A Form 3 for the initial statement of beneficial ownership should be filed after one of the following events:
♦ Upon an issuer listing for the first time on a securities exchange under Section 12(b) of the Exchange Act;
♦ Upon an issuer’s first registration statement under Section 12(g) of the Exchange Act such as Form 10 or Form 8A becomes effective; or
♦ After a person becomes a director, officer or 10% holder of the issuer.
A Form 3 is required by Section 16 even if the insider does not beneficially own any of the issuer’s securities at that time. Newly-appointed directors and officers, and new greater-than-10% shareholders must file Forms 3 within ten days.
Form 4
Any change in ownership after the filing of the Form 3 must be reported on Form 4. A single Form 4 can be used to report multiple transactions. A Form 4 should be filed for any purchases, sales, gifts, or exercise of options that result in acquisition or disposition of the issuer’s equity securities. With limited exceptions, Forms 4 must be filed within two days.
Form 5
An annual report on Form 5 is required once annually to report transactions that occurred during the prior fiscal year that either were not required to be reported on a Form 4 or should have been reported on a Form 3 or Form 4 but were not. They must state the filer’s beneficial ownership at the end of the fiscal year. The Form 5, if required, is due within 45 days following the end of the company’s fiscal year.
For further information about this securities law blog post, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202 N, Boca Raton, Florida, (561) 416-8956, by email at [email protected] or visit www.securitieslawyer101.com. This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute, legal advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes. Hamilton & Associates | Securities Lawyers Brenda Hamilton, Securities Attorney 101 Plaza Real South, Suite 202 North Boca Raton, Florida 33432 Telephone: (561) 416-8956 Facsimile: (561) 416-2855 www.SecuritiesLawyer101.com
Emerging Growth Company – Going Public Attorneys
On April 5, 2012, President Obama signed the Jumpstart Our Business Startups Act (the “JOBS Act”), which was intended to help smaller and emerging growth companies raise capital in the U.S. markets. The JOBS Act amends, and adds new sections to, the Securities Act of 1933 (the “1933 Act”) and the Securities Exchange Act of 1934 (the “1934 Act”), as well as the Sarbanes-Oxley Act of 2002. The JOBS Act implements measures relating to initial and direct public offerings and creates a new category of issuer known as the Emerging Growth Company. Read More
The SEC Issues Trading Suspension of Southridge Enterprises
On Dec 28, 2012, the Securities and Exchange Commission (“SEC”) announced a trading suspension, pursuant to Section 12(k) of the Securities Exchange Act of 1934 (the “Exchange Act”), of the securities of Southridge Enterprises, Inc. (SRGE), a Nevada corporation (“Southridge”).
The SEC’s Order of Suspension of informs the public that, “It appears … that there is a lack of current and accurate information concerning the securities of Southridge because of questions regarding the accuracy of statements made by Southridge. Read More
Securities Registration and the Emerging Growth Company
If a private company undertakes a public offering, the Securities Act of 1933, as amended (the “1933 Act”) requires the private company to file a registration statement with the SEC before it may offer its securities for sale to the public. The registered offering can be a direct public offering for a company that chooses to go public directly or an initial public offering (“IPO”) for company conducting an underwritten public offering. The company may not sell the securities covered by the registration statement until the SEC staff declares the registration statement “effective.” The disclosures required by the 1933 Act vary depending upon if the issuer qualifies as an emerging growth company and whether the company previously engaged in a reverse merger with a public shell company. Read More
How Do I Go Public to Raise Capital?
A private or public company can raise capital in a variety of ways. Traditional sources of capital for companies include loans from financial institutions such as a bank, or from friends and family as well as receivable financing. Companies can also raise capital in going public transactions by selling their securities prior to filing an SEC registration. Read More
JOBS Act l Research Analysts and Underwriters
On September 28, 2012, the Financial Industry Regulatory Authority, Inc. (“FINRA”) proposed rule changes to the Securities and Exchange Commission (the “SEC”), for NASD Rule 2711, which regulates the activities of research analysts. The proposals were made pursuant to the requirements of the Jumpstart Our Business Startups Act (the “JOBS Act”).
JOBS Act – Research Analyst Communications Read More
Securities Lawyers Gone Wild l Carl Duncan
On September 27, 2012, the SEC charged 8000, Inc. and Carl Duncan, Esq. for his role in a scheme to manipulate 8000, Inc.’s stock price. The SEC complaint alleges that certain defendants misrepresented 8000, Inc.’s financial condition to investors while simultaneously selling, or facilitating the sale of, the company’s securities in violation of the antifraud and securities registration provisions of the federal securities laws. Read More
Removing the Advertising Ban in Rule 506 Offerings
Rule 506(c) of Regulation D, enacted under the Jumpstart Our Business Startups Act (the “JOBS Act”) is intended to help smaller and emerging growth companies raise capital in the U.S. capital markets. The JOBS Act adds new sections to the Securities Act of 1933 (the “1933 Act”) and the Securities Exchange Act of 1934 (the “1934 Act”). The JOBS Act’s stated purpose is to assist small companies in raising capital. Less stringent requirements will encourage smaller companies seeking to raise capital to go public directly, without involving an underwriter, as traditional IPOs do.
In furtherance of this purpose, Section 201 of the JOBS Act requires the SEC to change regulations applicable to Rule 506 Attorneys of Regulation D of the Securities Act. Most notably, the JOBS Act removes the prohibition on general solicitation and advertisement by issuers that rely on Rule 506. Rule 506 is an exemption frequently used by private companies that go public directly on OTC Markets, and by hedge funds, private equity funds and venture capital funds. Read More
How Did the JOBS Act Change Mandatory Exchange Act Registration?
On April 5, 2012, President Obama signed the Jumpstart Our Business Startups Act (the “JOBS Act”), which is intended to help smaller and emerging growth companies access the U.S. capital markets. The JOBS Act amends, and adds new sections to, the Securities Act of 1933 (the “1933 Act”) and the Securities Exchange Act of 1934 (the “1934 Act”), as well as the Sarbanes-Oxley Act of 2002. Section 12(g) of the Exchange Act requires companies with more than $10 million in assets whose equity securities are held by more than 500 shareholders of record to file periodic reports with the Securities and Exchange Commission (the “SEC”). Read More
OTC Markets OTC Pink Disclosure Obligations
OTC Markets Group operates the world’s largest electronic inter-dealer quotation system. Broker-dealers use it to trade unlisted securities. OTC Markets assigns issuers to one of three tiers based upon the level of disclosure provided.
The OTC Pink is used to categorize issuers who do not file reports with the Securities and Exchange Commission (“SEC”).
The OTC Pink tier comprises three sub-categories: OTC Pink Current Information, Pink Limited Information, and Pink No Information.
Secondary trading of the securities of OTC Pink Sheet issuers is facilitated only between broker-dealers. They use OTC Link, OTC Markets’ electronic trading platform.
Current SEC reporting companies and non-U.S. companies that are listed on a qualified foreign stock exchange automatically qualify for the OTC Pink Sheets Current Information tier. Issuers not reporting with the SEC must subscribe to the OTC Markets Disclosure and News Service to be quoted on the OTC Pink Sheets Current tier, and must also publicly file an initial Information and Disclosure Statement with a signed Attorney Letter Agreement by the issuer’s SEC attorney.
Equity Crowdfunding 101- Going Public Lawyers
On April 5, 2012, President Obama signed the Jumpstart Our Business Startups Act (the “JOBS Act”), which is intended to help smaller and emerging growth companies access the U.S. capital markets. The JOBS Act amends, and adds new sections to, the Securities Act of 1933 (the “1933 Act”) and the Securities Exchange Act of 1934 (the “1934 Act”), as well as the Sarbanes-Oxley Act of 2002. The SEC had 270 days to enact the rules necessary to allow for crowdfunding. Once the SEC rules concerning equity crowdfunding are enacted, both private and public companies will be able to raise money from a broad range of investors using the Internet and social media.
Equity crowdfunding significantly impacts the securities laws governing private and public companies, and those that use traditional IPOs. The creation of the equity crowdfunding exemption from 1933 Act registration will not only provide a way for public and private companies to raise capital inexpensively, but will also ease the burden for many private companies seeking to go public directly by enabling them to more easily obtain the number of shareholders required to obtain a stock trading symbol. Read More
BP to Pay $525 Million to SEC – Securities Lawyer 101 – Go Public Blog
On November 15, 2012, the Securities and Exchange Commission charged BP p.l.c. with misleading investors by significantly understating the flow rate while its Deepwater Horizon oil rig was gushing into the Gulf of Mexico in 2010. The company did so in multiple reports filed with the SEC. The SEC alleges that the global oil and gas company headquartered in London made fraudulent public statements indicating a flow rate estimate of 5,000 barrels of oil per day. BP reported this figure despite its own internal data indicating that potential flow rates could be as high as 146,000 barrels of oil per day.
FINRA Issues Crowdfunding Rules
The Financial Industry Regulatory Authority (“FINRA”) has issued a voluntary form for prospective crowdfunding portals under the Jumpstart Our Business Startups Act (“JOBS Act”), signed in April 2012 by President Obama.
Anyone who intends to set up a crowdfunding portal for individual investments in start-up companies can voluntarily submit information to FINRA, which FINRA will use in drafting rules governing crowdfunding portals. The form is not definitive; FINRA will not adopt its final form until the SEC has adopted its own crowdfunding funding portal rules. Read More
Securities Exchange Act Registration Statements
All public companies whose securities are registered on a national securities exchange, and generally issuers whose assets exceed $10,000,000 with a class of equity securities held by 500 or more persons, must register their securities under Section 12 of the Securities Exchange Act of 1934 (the “Exchange Act” or the “1934 Act”). A 1934 Act registration statement requires disclosure of material financial and business information to investors and shareholders. The filing of an Exchange Act registration statement obligates the issuer to provide current public information by filing periodic reports and filings with the Securities and Exchange Commission (the “SEC”). Read More
SEC Tips and the Dodd Frank Act l Ask Securities Lawyer 101
Securities Lawyer 101 Blog
The Securities and Exchange Commission (“SEC”) frequently receives tips from whistlblowers. SEC tips from whistleblowers are provided in a variety of ways. The SEC tips are primarily received through the SEC’s online TCR form located at http://www.sec.gov/complaint.shtml or through direct contact with employees and staff at the SEC’s offices.
Upon receipt of what’s called a Form TCR, SEC tips are reviewed by the SEC’s staff for reliability, detail and potential violations of the federal securities laws. Read More
Filing Requirements for Publicly Traded Companies-Go Public
An issuer with a class of securities registered under Section 12 or subject to Section 15(d) of the Securities Exchange Act of 1934 must file periodic reports with the Securities and Exchange Commission pursuant to Section 13(a) and Section 15(d). The SEC requires a review of an issuer’s periodic reports at least once every three years and may review an issuer’s reports more often if it files a registration statement under the Securities Act, as a part of a review of the registration statement. Read More
What Are Form D’s Requirements? Going Public Lawyers
The most common exemptions used by companies to sell stock prior to going public are those promulgated under Section 4(2) of the Securities Act and Regulation D of the Securities Act. Many issuers who go public do not realize that a filing with the Securities and Exchange Commission (“SEC”) is required. While failure to file a Form D will not necessarily disqualify an issuer from relying upon Regulation D, the failure to file can increase the probability of comments to the issuer’s S-1 registration statement or Form 211.
A Form D filing is required by most states in order to comply with their own exemptions from registration. As such, any company conducting a Regulation D offering should consult with a securities attorney prior to accepting investor funds.
What Is a Form D?
Form D is a notice of an exempt offering of securities in reliance upon Regulation D (or Section 4(6) of the Securities Act).
What Does a Form D Require?
Form D requires specific information about the issuer and the offering it is conducting. The required information includes (i) the issuer’s identity, (ii) its principal place of business and contact information, (iii) state of domicile (iv) the names and addresses of its executive officers and directors, (v) the specific exemption claimed under the Securities Act, and (v) the identity and contact information of any broker-dealer, finder or other person receiving any commission or other similar compensation relating to the sale of securities in the offering.
Where Do I File the Form D?
The completed Form D must be filed with (i) the Securities and Exchange Commission (the “SEC”) if the issuer is relying on Rule 506 of Regulation D. Additionally, state blue sky laws may require the filing of the Form D along with a filing fee.
How Do I File the Form D with the SEC?
The SEC requires the electronic filing of Forms D through the SEC’s Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”). To use EDGAR, the issuer must have its own filer identification number (called a “Central Index Key” or “CIK” number) and a set of access codes.
An issuer obtains a CIK number and EDGAR access codes by submitting basic information to the SEC online at its Filer Management page along with a copy of a notarized paper document containing the same information found on the Form D. The paper document is called an “authenticating document,” which can be submitted either (i) by scanning and uploading it to the online submission in PDF format or (ii) by faxing it to the SEC at (202) 504-2474 or (703) 914-4240.
There is currently no electronic filing with the States and where required, the issuer must file the Form D with an applicable State securities commission in hard copy.
When Must the Form D be Filed?
The Form D must be filed with the SEC no later than 15 calendar days after the “date of first sale” of securities sold based on a claim of exemption under Rule 504, 505 or 506 of Regulation D or Section 4(6) of the Securities Act. For this purpose, the “date of first sale” is the “date on which the first purchaser is irrevocably contractually committed to purchase the securities.” If the date on which the Form D is required to be filed falls on a Saturday, Sunday or holiday, the applicable due date is the first business day following.
Is the Information in a Form D Publicly Available?
Yes, all Forms D filed through EDGAR will be available for public viewing in an interactive and searchable format on the SEC’s website immediately upon filing.
Does the Form D Have To Be Amended?
The Form D must be amended (i) to correct a material mistake of disclosure, as soon as practicable after the discovery of the mistake; (ii) to reflect a change in certain reported information (including any change in the issuer’s directors or officers), as soon as practicable after the change; or (iii) “annually, on or before the first anniversary of the most recent previously filed notice, if the offering is continuing at that time.”
The Form D need not be amended to reflect a change that occurs after the offering terminates. Moreover, certain changes in reported information are deemed not to trigger an amendment, including (i) changes in the issuer’s revenues or aggregate net asset value; (ii) changes in the amount of securities sold in the offering (or the amount remaining to be sold); or (iii) changes in the total number of investors who have participated in the offering.
For further information about this securities law blog post, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202 N, Boca Raton, Florida, (561) 416-8956, by email at [email protected] or visit www.securitieslawyer101.com. This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute, legal advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes.
Hamilton & Associates | Securities Lawyers
Brenda Hamilton, Securities Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855
www.SecuritiesLawyer101.com
Rule 504 Q & A l Securities Lawyer 101
What Is Rule 504?
Rule 504 of Regulation D is an exemption from the registration requirements of the Securities Act of 1933, as amended (the “1933 Act”) for certain companies when they offer and sell securities.
How Much Money Can I Raise From Investors In A 504 Offering?
The aggregate amount raised for an offering of securities under Rule 504 cannot exceed $1,000,000, less the aggregate offering price for all securities sold within the twelve months before the start of and during the offering of securities under this Rule 504, in reliance on any exemption under section 3(b), or in violation of section 5(a) of the Securities Act. The issuer can, however, issue as much stock as he likes for that $1 million: 10 shares or 10 billion; it makes no difference. Read More
SEC Registration & the Emerging Growth Company
The JOBS Act makes it easier for issuers who qualify as an emerging growth company to go public direct by exempting them from certain federal securities regulations, by reducing certain SEC reporting requirements. The JOBS Act creates a new category of “emerging growth company” which is defined as a company with annual gross revenues of less than $1 billion during its most recently fiscal year.
