Rule 504 l OTC Pink Offerings
Rule 504 of Regulation D is a transactional exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”) for non-reporting companies when they offer and sell securities. OTC Pink Sheet issuers often rely upon Rule 504 to offer and sell their securities.
Maximum Offering Amounts l Rule 504 Offerings
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. Read More
Form 10-Q Requirements l Securities Lawyer 101 Blog
Public companies with a class of securities registered under Section 12 or subject to Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are subject to the periodic and current reporting requirements of Section 13 or 15(d) of the Securities Exchange Act. The Exchange Act contains ongoing disclosure requirements that provide investors with current information on an ongoing basis. These include an obligation to file periodic reports on Form 10-K and Form 10-Q and current reports on Form 8-K with the Securities and Exchange Commission (the “SEC”). Read More
Rule 504 l OTC Markets OTC Pink Market Checklist
Rule 504 of Regulation D is a transactional exemption from the registration statement requirements of the Securities Act of 1933, as amended (the “Securities Act”) for non-reporting companies when they offer and sell securities. OTC Pink Sheet issuers often rely upon Rule 504 to offer and sell their securities.
Why Both Private and Public Companies Need a Securities Attorney
Every offer and sale of securities is regulated by both state and federal securities laws. Generally, all securities offerings must be registered or exempt from federal and state securities registration laws. Failure to comply with these laws can have significant consequences that include rescission to investors, and enforcement actions by the Justice Department or Securities and Exchange Commission.
Taking a company public is an intricate process, and it is important to have an experienced securities lawyer who will help you navigate through the process.
Common matters for which companies and their management consult with securities lawyers include but are not limited to the following: Read More
Brenda Hamilton, Securities Attorney, In Linkedin’s Top 1 %
Brenda Hamilton, a securities attorney and founder of Hamilton & Associates Securities Lawyers has been honored as a Top 1 Percent LinkedIn Subscriber. LinkedIn.com reports that Ms. Hamilton’s profile was in the top 1 percent of all profiles for 2012. Ms. Hamilton attributes the rating to the law firm’s leading role in representing microcap issuers in SEC investigations and DTC matters, and for its securities-related blog www.Securitieslawyer101.com, which focuses on securities law and issues affecting the microcap securities markets. Read More
Securities Lawyers Gone Wild l Carrillo Huettel
On March 15, 2013, the Securities and Exchange Commission (the “SEC”) charged securities law firm Carrillo Huettel and others in an alleged international “pump-and-dump” scheme involving two publicly traded U.S. companies, Pacific Blue Energy Corporation and Tradeshow Marketing Company Ltd.
According to the SEC’s complaint, Canadians John Kirk, Benjamin Kirk, Dylan Boyle, and James Hinton ran false and misleading promotions to pump the stock of Pacific Blue and Tradeshow so they could dump their shares. Read More
FINRA Bars Jeffrey Rubin for Transactions Involving 31 NFL Players
On March 7, 2013, the Financial Industry Regulatory Authority (“FINRA”) barred Jeffrey Rubin of Lighthouse Point, Florida, from the securities industry. Rubin was sanctioned for making unsuitable recommendations to an NFL player, advising him to invest in high-risk securities offered in a now-bankrupt casino project in Alabama. According to FINRA, the NFL player lost his investment of approximately $3,000,000. Thirty other players acting on Rubin’s advice invested funds in the same casino project. They lost approximately $40 million. Read More
Securities Lawyers Gone Wild l Brian Reiss
Securities Lawyers Gone Wild Series
On March 8, 2013, the Securities and Exchange Commission (the “SEC”) charged Brian Reiss, a California securities lawyer, with churning out baseless legal opinions for penny stocks traded on the OTC Markets platform. Transfer agents require legal opinions from securities lawyers in order to remove restrictive legends from stock issued in reliance upon an SEC exemption from registration. The SEC alleges that Reiss created a business and accompanying website called 144 letters.com to promote his opinion writing services. He proudly advertised “volume discounts” and assured potential clients that “penny stocks [are] not a problem.” Read More
Dead Stock Walking l Chinese Reverse Mergers
Recent actions by the Securities and Exchange Commission (the “SEC”) and the media have alerted the public to fraud involving reverse mergers and Chinese issuers. In the last two years, the number of securities fraud cases filed by the SEC and the Justice Department against Chinese companies in U.S. courts has soared.
Securities Fraud and the SEC
In nearly all of these cases (according to the SEC), the problem was bad accounting. Some of the companies even kept two sets of books. As a result, investors have begun to demand more aggressive regulation of Chinese and other foreign issuers who offer and sell securities in the United States, as well as of the securities lawyers who represent accounting firms that audit them.
The Securities and Exchange Commission and the Public Company Accounting and Oversight Board (“PCAOB”) have taken steps to focus on securities fraud by Chinese companies, particularly those going public in reverse mergers. The SEC has issued investor bulletins warning of the risks of Chinese reverse merger issuers’ potential for securities fraud. Both the SEC and PCOAB have prepared accounting bulletins relating specifically to publicly traded Chinese companies.
Some critics suggest that the focus on securities fraud involving Chinese issuers does not reflect a growing problem with Chinese companies, but rather with U.S. reverse merger facilitators who have polluted our markets with securities fraud for years.
Reverse Mergers
A reverse merger is a transaction in which a private company acquires a public company to go public. Almost always the public company itself is inactive but its stock still trades. By structuring the transaction as a reverse merger, the private company goes public while skirting the requirements of an initial public offering.
Any foreign or domestic private company seeking to have its securities publicly traded should proceed with caution when considering whether to engage in a reverse merger. Similarly, investors should proceed with caution when considering whether to invest in reverse merger companies. Many reverse merger issuers either fail or struggle to remain viable. Often the public company into which the private company merges has more than a few skeletons in its closet. If potential problems are not discovered at the time of the merger, the “new” company could suffer down the road. One possible consequence might be an SEC enforcement action. In light of these considerations, private companies should consult a qualified and independent securities attorney to perform thorough research and due diligence before engaging in a reverse merger.
To the extent that a private company is willing to expend the time and resources to become public, it should do so the proper by way by filing a registration statement with the SEC and conducting an underwritten or direct public offering, thereby avoiding the growing risks and new requirements involved in reverse merger transactions with public shell companies.
More information about Reverse Mergers can be found in our blog post:
https://www.securitieslawyer101.com/reverse-mergers/
The SEC’s bulletins concerning reverse merger issuers can be found at:
http://www.sec.gov/investor/alerts/reversemergers.pdf
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
Supreme Court Says the Securities Statute of Limitations is 5 Years
On February 27, 2013, in the case of Gabelli v. Securities and Exchange Commission, the U.S. Supreme Court unanimously concluded that the securities statute of limitations for SEC enforcement actions seeking civil penalties expires 5 years after the time when the alleged fraud takes place, not when it is discovered. In 2008, the SEC brought a civil enforcement action against Gabelli, its Chief Operating Officer, and a former portfolio manager, alleging that they allowed an investor to engage in “market timing.” This activity ended in 2002. The SEC alleged violations of 15 U.S.C. §§ 80b-6(1) and (2) and sought civil penalties under § 80b-9. Read More
SEC Approves FINRA Rule 5123
The Securities and Exchange Commission recently approved the Financial Industry Regulatory Authority (“FINRA”) proposals to amend Rule 5123 governing FINRA members who participate in private offerings of securities (“Rule 5123”). Rule 5123 requires FINRA members selling securities in non-public offerings, such as private placements, or participating in the preparation of private placement documents such as memoranda, term sheets or other disclosure documents, to submit such disclosure documents with FINRA within fifteen days after the first sale of securities, or state that no offering documents were used. Rule 5123 became effective on December 3, 2012. Read More
What is a SCOR Offering? l Securities Lawyer 101
State Blue Sky laws play a significant role in the enforcement of the securities laws. Each State has its own securities laws and regulations. Issuers selling securities must comply with both federal and state securities laws and regulations in the states where they choose to offer and sell securities. An offering exempt under state securities laws is not necessarily exempt from federal securities laws. Each state’s securities laws have their own separate registration requirements and exemptions from registration. Read More
Bogus State Court Actions Used in Unico Fraud
On January 22, the U.S. Attorney’s Office in San Diego unsealed an indictment charging Mark Anthony Lopez, the former CEO of Unico Inc., with conspiracy to commit securities fraud and obstruction of justice. Much of the evidence used to indict Lopez was based on state court proceeding filed in Sarasota, Florida. Unico was a fully-reporting penny company purportedly engaged in the mining business. According to the SEC, under Lopez’s governance, what Unico really mined was investors’ pockets.
The SEC’s Corporate Hijacking Task Force
A few weeks ago, the Securities and Exchange Commission (the “SEC”) issued its “Enforcement Initiatives to Combat Financial Reporting and Microcap Fraud and Enhance Risk Analysis.” The SEC release identified financial reporting, microcap fraud and enhancing risk analysis as the SEC’s new enforcement initiatives.A primary target of the new task force will be reverse merger purveyors and securities attorneys involved in corporate hijackings. The release emphasized the importance of the role gatekeepers—attorneys, auditors, broker-dealers, and transfer agents—play, or ought to play, in stopping fraud before it happens. All too often, unfortunately, those gatekeepers collude with the fraudsters particularly where corporate hijackings are present. Read More
What is Broker-Dealer Registration? Securities Lawyer 101
Broker-dealers are subject to regulation by the SEC, FINRA, Self Regulatory Organizations (“SROs”) such as stock exchanges, and the states in which they do business. The Securities Exchange Act of 1934 (the “1934 Act”) requires that any broker-dealer effecting securities transactions by means of interstate commerce be registered.
State laws also regulate broker-dealer activity within their jurisdictions. Unless an exemption from registration is available, state laws require registration of any broker-dealer doing business from or with persons in their state. The broker-dealer’s employees doing business within the state must also be registered there. Read More
The OTCBB Obsolete Marketplace l Securities Lawyer 101 Blog
The OTC Bulletin Board (“OTCBB”) is an electronic quotation system that provides real-time quotes, last-sale prices, and volume information for some over-the-counter securities not listed on a national securities exchange such as NASDAQ. Brokers-dealers who subscribe to the OTCBB can use its platform to look up prices or enter quotes for securities quoted by the OTC.
Years ago, the OTCBB provided the only widely accepted venue for quotation of micro-cap companies that were SEC filers. Companies that did not meet the OTCBB’s requirements were delisted to what was then called the Pink Sheets. Now many market makers have abandoned the OTCBB entirely; the securities of issuers who used their services have been removed to OTCMarkets. Read More
Going Public – OTC Markets OTCQB – Going Public Lawyers
Many private companies seeking to go public are opting for going public transactions on the OTC Markets OTCQB. The OTC Markets Group operates an electronic inter-dealer quotation system called OTC Link. OTC Markets ranks issuers in tiers; each issuer’s rank depends upon the amount of disclosure provided. Issuers using registration statements followed by Rule 15c2-11 applications to go public qualify for the “OTCQB” tier. The QTCQB tier is only available to issuers who file reports with the SEC. These issuers are not required to provide additional disclosures to the OTC Markets.
In order for a private company to go public on the OTCQB, it must become an SEC reporting issuer. Once the company is reporting, it can then obtain its ticker symbol assignment from the Financial Industry Regulatory Authority (“FINRA”) if it meets certain requirements.
Funding Portal Registration And the JOBS Act
On February 5, 2013, the SEC’s Division of Trading provided guidance on the exemption from broker-dealer registration in Title II of the Jumpstart Our Business Startups Act (“JOBS Act”). The SEC’s FAQs are not rules, regulations or statements of the SEC and the Commission has neither approved nor disapproved them. Section 201(c) of the JOBS Act adds new paragraph (b) to Section 4 which clarifies that a platform can rely on the exemption from broker-dealer registration in Securities Act Section 4(b) until the SEC’s rules permitting general solicitation in Rule 506 offerings are adopted. Read More
Rule 5123 Requires the Filing of Private Placement Documents
The SEC recently approved Rule 5123 that any FINRA member firm selling an issuer’s securities in a non-public offering in reliance on an exemption from registration under the Securities Act is required to file copies of private placement materials such as memorandums, term sheets, or other offering documents with FINRA within 15 days after the first sale. INRA 5123 Notice Filing
Filings under FINRA Rule 5123 are treated as “notice” filings, and FINRA will not review or respond to the filing with a comment letter or provide a clearance letter. FINRA will treat all documents filed as confidential. Read More
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
