On December 21, 2011, the Securities and Exchange Commission (the “SEC”) adopted final rules to implement the mine safety disclosure requirements of Section 1503 of the Dodd-Frank Wall Street Reform andConsumer Protection Act (Dodd-Frank). Section 1503’s disclosure requirements are currently in effect and require SEC reporting issuers that are operators of coal or other mines in the United States to make specific disclosures. Read More
To offer and sell securities in the United States, an issuer must comply with the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), or must offer and sell the securities pursuant to an exemption from the registration statement requirements. A commonly used private offering exemption is Rule 506 of Regulation D. Rule 506 is a non-exclusive “safe harbor” for the statutory exemption provided by Section 4(2) of the Securities Act. The Rule 506 exemption is often used by issuers who engage in go public direct transactions and conduct underwritten and direct public offerings. Read More
Rule 144 (“SEC Rule 144”) under the Securities Act of 1933 (“Securities Act”) provides a safe harbor from the registration provisions of the Securities Act for resales of restricted and control securities by persons other than the issuer if all conditions of the rule are complied with. Section 4(1) of the Securities Act provides an exemption for a transaction “by a person other than an issuer, underwriter, or dealer.” Read More
Form D is used to file a notice of an exempt offering of securities with the Securities and Exchange Commission (“SEC”) for offerings made under Rule 504, 505 or 506 of Regulation D. Federal securities laws require that a Form D be filed with the SEC within 15 days after the first sale of securities in the offering. In addition to filing the Form D with the SEC, issuers must comply with state law filing requirements. Most states require issuers to file a Form D or comparable form with their state securities commission.
Form D and Form D amendments must be filed with the SEC online using EDGAR (electronic gathering, analysis and retrieval) system. In order to do so, the issuer must obtain its own filer identification number (called a “Central Index Key” or “CIK” number) and access codes. Read More
In January of 2010, the Securities and Exchange Commission (the “SEC”) announced it would strengthen its enforcement program by encouraging greater cooperation from individuals and companies in SEC investigations and enforcement actions. One of those measures included the use of Deferred Prosecution Agreements (“DPA”). On May 17, 2012, the SEC entered into its first such agreement with Tenaris S.A., a steel pipe manufacturer. Read More
Registration of securities on Form S-8 (“Form S-8”) is a short-form registration statement under the Securities Act of 1933, as amended (the “Securities Act”), providing significant benefits to small issuers. Form S-8 is available to register securities offered to employees and consultants under benefit plans under limited circumstances. Because a registration statement on Form S-8 is effective upon filing it offers benefits to SEC reporting companies, most significantly that an S-8 registration statement becomes effective upon filing and the shares registered may be issued without a restrictive legend. Read More
FINRA Rule 6490, recently enacted in September 2010, requires issuers of securities not listed on exchanges to provide timely notice to FINRA of certain corporate actions including reverse mergers. Rule 6490 corporate actions include name changes, forward stock splits, reverse stock splits, distributions of cash or securities such as dividends, stock splits and other actions, and rights and subscription offerings.
Rule 6490 codifies Rule 10b-17 of the Securities Exchange Act. The new rule will impact both SEC reporting and non-reporting issuers if they enact corporate changes including issuers who go public direct and conduct underwritten or direct public offerings and those who pursue reverse mergers with public shells. Complying with this criteria is often an unexpected legal and compliance cost for many issuers not familiar with the rule. This is particularly true for issuers who engage in reverse mergers with public shells. Read More