Creditors of OTC Markets companies often contact securities lawyer Matheau J. W. Stout, Esq. with questions about exchanging bona fide claims for free trading stock under 3(a)(10). OTC Bulletin Board and Pink Sheet Issuers also have questions about how they can clear debt and payables from their balance sheets using 3(a)(10).
In many respects, 3(a)(10) is easy to understand, but there are certain rules that must be followed in order for the stock issued to be eligible for the 3(a)(10) exemption from registration.
What Makes 3(a)(10) Advantageous to Creditors?
3(a)(10) permits claims arising from legitimate and documented unpaid invoices or contracts to be exchanged for free trading stock, which helps creditors that did not receive a promissory notes from the Issuer.
3(a)(10) also provides a Court Order to a successful Plaintiff which is binding on the Issuer. This makes future conversions of the Claim Amount easier, since the Issuer cannot later refuse to honor the Settlement Agreement reached in the 3(a)(10) case.
3(a)(10) transactions are by their nature a matter of public record, such that the entire claim settlement process and the issuance in accordance with the 3(a)(10) exemption from registration are done transparently. This transparency has an inherent advantage to creditors holding 3(a)(10) claims under the Court Order, making it easier to obtain opinions, and clear stock later.
Why is 3(a)(10) Advantageous to Issuers?
An OTC company with debt and mounting accounts payable clogging its balance sheet is unlikely to attract new investors or lenders unless the balance sheet can be cleaned up.
3(a)(10) provides an opportunity for an Issuer to settle multiple claims within one lawsuit, often at a discount, limiting the expense and time associated with litigation, and providing the certainty of a Court Order which specifies the criteria under which shares will be issued.
The transparency of a 3(a)(10) lawsuit, settlement and Court Order also benefits the Company by providing certainty to its shareholders and would-be financial partners. There is no guess work as to the Company’s liability to issue shares under a 3(a)(10) settlement, and no question as to the Court Order.
What is a Bona Fide 3(a)(10) Claim?
Bona fide means “genuine” or “real.” The claim holder has the responsibility for documenting the bona fide nature of the monies owed, and copies of the unpaid invoices, contracts or other correspondence are attached to the Complaint in a 3(a)(10) lawsuit.
Documentation is easier when the debts or claims are in SEC filings or OTC Markets reports. Email correspondence evidencing services provided, monies owed and collection activities are also helpful in proving the bona fide nature of a 3(a)(10) claim.
Of course, promissory notes and wire transfer confirmations evidencing loans to an OTC Bulletin Board or OTC Markets Pink Sheet Issuer also can prove a debt is bona fide.
Requirements for the Section 3(a)(10) Exemption from Registration
Section 3(a)(10) of the Securities Act of 1933 (the “Act”) provides an exemption from the registration of securities under the following criteria:
- The securities must be issued in exchange for a bona fide claim; and
- The terms of the issuance and exchange must be found by a court to be “fair” to those receiving shares; and
- Notice of the Fairness Hearing must be provided to those to receive shares and they must be afforded the opportunity participate in a Fairness Hearing; and
- The issuer must advise the court prior to a Fairness Hearing that it intends to rely on the exemption provided in Section 3(a)(10) of the Act; and
- There cannot be any impediments to the appearance of interested parties at the Fairness Hearing.
What is Not Allowed in a 3(a)(10) Transaction?
Aside from the need to document the bona fide nature of the claims exchanged in a 3(a)(10) transaction, the main pitfall all creditors and Issuers need to be wary of is the temptation to secretly funnel money to the Issuer or its Affiliates.
In some cases, the SEC has found that claims were fabricated by insiders. The claims were for services which were not provided, or were actually fake invoices from companies secretly controlled by Affiliates. This is prohibited.
In other cases, plaintiffs in 3(a)(10) cases were secretly sending an Issuer’s Affiliates a percentage of monies made when the free trading stock was sold. This is prohibited.
3(a)(10) should be used as a transparent exchange of bona fide claims for securities only. The fact that an Issuer’s balance sheet will be cleared of old debt is in itself a clear benefit to the Issuer and this should result in future financing opportunities without the need for any surreptitious kickbacks.
Securities Lawyer With Expertise in 3(a)(10) Matters
Experienced securities attorneys like Matt Stout perform due diligence on aged debt, promissory notes and invoices to confirm their bona fide nature in preparation for 3(a)(10) transactions.
3(a)(10) securities lawyer Matt Stout represents both OTC Markets companies and their debt holders with bona fide claims in 3(a)(10) settlement agreements and drafts legal opinions for clearing restricted stock under 3(a)(10).