Securities Act of 1933

On July 2, the Financial Industry Regulatory Authority (FINRA) issued Regulatory Notice 20-22 (the Notice) announcing updates to its interpretations regarding (1) FINRA Rule 4210(e)(8), which specifies margin requirements for control and restricted securities, and (2) FINRA Rule 4210(f)(5), which specifies conditions for the consolidation of two or more accounts carried for the same customer.
Continue Reading FINRA Announces Updates to Interpretations of Margin Rule Regarding Control and Restricted Securities and Consolidation of Accounts

On May 4, the Securities and Exchange Commission’s  Division of Corporation Finance (the Division) issued four frequently asked questions (FAQs) related to the SEC’s conditional relief order (the Order) that was issued in the wake of the Coronavirus Disease 2019 (COVID-19).
Continue Reading SEC Division of Corporation Finance Issues Four FAQs Addressing the SEC’s Conditional Relief Order

On March 25, the Securities and Exchange Commission issued an order extending conditional relief (the Modified Order) for reporting and proxy delivery requirements for public company registrants and other filers in the wake of the coronavirus disease 2019 (COVID-19). The Modified Order provides filers with an additional 45 days to make filings pursuant to Sections 13(a), 13(f), 13(g), 14(a), 14(c), 14(f), 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), Exchange Act Regulations 13A, 13D-G (except for those provisions mandating the filing of Schedule 13D or amendments to Schedule 13D), 14A, 14C and 15D, and Exchange Act Rules 13f-1, and 14f-1, that would have been due during the period of March 1-July 1, 2020 (the Relief Period), subject to the conditions discussed below. This relief covers, among others, reports on Form 10-K, 20-F, 10-Q, 8-K and 6-K, as well as Schedules 13G and 13F but, as noted, expressly excludes Schedule 13D filings and also is not available for filings under Section 16 of the Exchange Act (i.e., Forms 3, 4 and 5).
Continue Reading SEC Further Extends Filing Deadlines for Companies Impacted by COVID-19

On December 23, 2019, the Securities and Exchange Commission approved the Financial Industry Regulatory Authority’s (FINRA) proposed amendments to Rule 5110, as modified by Partial Amendments No. 1 and No. 2 (Amended Rule 5110), on an accelerated basis in an effort to modernize, simplify and streamline the rule.
Continue Reading SEC Approves Amended Rule Change to FINRA Rule 5110

On December 18, the Securities and Exchange Commission voted to propose amendments (the Proposal) to the definition of “accredited investor” for purposes of private placements under Regulation D and the definition of “qualified institutional buyer” in Rule 144A under the Securities Act of 1933. The Proposal is intended to update and improve the definitions of those terms in order to more effectively identify both institutional and individual investors with the sophistication to participate in private capital markets transactions. In the SEC’s press release announcing the Proposal, SEC Chairman Jay Clayton noted that, “The current test for individual accredited investor status takes a binary approach to who does and does not qualify based only [on] a person’s income or net worth. Modernization of this approach is long overdue.” As highlighted in the fact sheet included in the press release, the Proposal would, among other things:
Continue Reading SEC Announces Proposed Amendments to the Definitions of “Accredited Investor” and “Qualified Institutional Buyer”

On September 26, the Securities and Exchange Commission adopted a new rule to allow all issuers, not just emerging growth companies, to utilize “test-the-waters” communications in connection with an initial public offering or other securities offering.

The rule implements the proposal put forth by the SEC in February 2019, discussed in the March 1, 2019 edition of Corporate & Financial Weekly Digest.
Continue Reading New SEC Rule Expands “Test-the-Waters” to All Issuers

On April 3, the Securities and Exchange Commission’s Division of Corporate Finance (the “Division”) responded to TurnKey Jet, Inc.’s (TKJ) letter dated April 2, requesting confirmation that the Division would not recommend enforcement action to the SEC in connection with its offer and sale of tokens without registration under the Securities Act of 1933 and the Securities Exchange Act of 1934. In issuing its response that it would not recommend enforcement action to the SEC, the Division noted that:
Continue Reading SEC Issues TurnKey Jet, Inc. No-Action Letter

On February 19, the Securities and Exchange Commission proposed Rule 163B under the Securities Act of 1933, which would permit any issuer, and any underwriter or other person acting on an issuer’s behalf, to communicate with qualified institutional buyers (QIBs) and institutional accredited investors (IAIs) regarding a potential public offering prior to or following the filing of a registration statement for the offering. These so-called “test-the-waters” communications are intended to help issuers gauge interest in possible public offerings before issuers incur the costs of filing a registration statement with the SEC.

Continue Reading SEC Proposes To Expand “Test-the-Waters” Reforms to All Issuers

On September 24, the Financial Industry Regulatory Authority (FINRA) issued a Regulatory Notice (Notice) reminding firms of their applicable obligations when publishing a quote in an OTC security, in addition to filing a Form 211. Securities Exchange Act of 1934 (SEA) Rule 15c2-11 prevents a broker-dealer from initiating quotations in an OTC security unless such broker-dealer has reviewed and verified that certain information about the issuer is accurate and from a reliable source. FINRA Rule 6432 requires a firm to file a Form 211 with FINRA to show compliance with SEA Rule 15c2-11.
Continue Reading FINRA Reminds Members of Obligations Related to OTC Securities Quoted by a Filed Form 211

As previously reported in the Corporate & Financial Weekly Digest edition of June 1, 2018, on May 24, President Trump signed into law the Economic Growth, Regulatory Relief and Consumer Protection Act (the Act), Section 507 of which directs the Securities and Exchange Commission to adopt an amendment to Rule 701 under the Securities Act of 1933. Rule 701 generally provides an exemption from the registration requirement imposed by the Securities Act for issuances of securities by a company that is not subject to the reporting requirements of the Securities Exchange Act of 1934 to its employees, directors and consultants under compensatory benefit plans. Pursuant to Section (e) of Rule 701, if the aggregate sales price or amount of securities sold by an issuer to investors in reliance on Rule 701 during any 12-month period exceeds $5 million, the issuer is required to deliver to investors an additional disclosure, including specified financial statements and risk factors. On July 18, consistent with the mandate under the Act, the SEC issued a final rule amending Section (e) of Rule 701 to increase the threshold for providing enhanced disclosure from $5 million to $10 million (subject to inflation adjustment every five years).
Continue Reading SEC Approves Amendment to Rule 701 and Issues a Concept Release Regarding Form S-8 and Rule 701