Tag Archives: Pink Sheets

SEC Adopts Amendments to Implement JOBS Act and FAST Act Changes for Exchange Act Registration Requirements

The Securities and Exchange Commission has approved amendments to revise the thresholds for registration of securities, termination of registration, and suspension of reporting obligations under Section 12(g) of the Securities Exchange Act of 1934.

How Do the Amendments Affect SEC Reporting Companies?

For the majority of microcap OTC Bulletin Board and OTC Markets public companies, the practical effect of these amendments make it easier for delinquent SEC reporting companies which are facing de-registration to file SEC Form 15 in order to become Current Pink Sheets on OTCMarkets.com under the Alternative Reporting Standard.

What are the JOBS Act Amendments to Exchange Act Rules 12g?

The Commission approved final rules to implement the JOBS Act and FAST Act by:

  1. Amending Exchange Act Rules 12g-1 through 12g-4 and 12h-3, governing registration and termination of registration under Section 12(g), and suspension of Section 15(d) reporting obligations, to reflect new thresholds established by the JOBS Act and the FAST Act.
  2. Using the definition of “accredited investor” in Securities Act Rule 501(a) to determine which record holders are accredited investors for purposes of Exchange Act Section 12(g)(1).
  3. Allowing the Issuer to make the accredited investor determination as of the last day of its fiscal year.

New Thresholds for Assets and Number of Shareholders of Record

As a result of JOBS Act and FAST Act changes, an Issuer that is not a bank, bank holding company or savings and loan holding company is required to register a class of equity securities under the Exchange Act if

  1. it has more than $10 million of total assets; and
  2. the securities are “held of record” by either 2,000 persons; or
  3. 500 persons who are not accredited investors.

The vast majority of OTC Bulletin Board and OTC Markets SEC filers have far less than $10 Million in total assets and most never reach 2,000 shareholders.

Filing SEC Form 15 to Cease Exchange Act Reporting Obligations

For this reason, the key threshold change as a result of the JOBS Act is that SEC filers which are delinquent in their 10-K, 10-Q filings due to audit costs can more readily file the Form 15 to cease reporting under the Exchange Act.

By reviewing a Shareholder List as of the end of the Issuer’s last fiscal year, Management with close to 500 shareholders may be able to identify several which are clearly accredited, in order to meet the threshold of 500 non-accredited shareholders.

OTC Securities Lawyer for Delinquent SEC Filers Seeking to Become Pink Current

Matheau J.W. Stout, Esq. represents delinquent SEC filers in becoming current using the OTC Markets Alternative Reporting Standard and can be reach at (410) 429-7076 or mstout@otclawyers.com.

As part of the Pink Current process, securities attorney Matt Stout can file SEC Form 15, prepare Information and Disclosure Statements for OTCMarkets, and issue the Current Information Legal Opinion.

 

When Does the Rule 144 Holding Period Begin When Payment is Escrowed?

As many OTC investors know, Bulletin Board and Pink Sheet Issuers raising capital using a Private Placement Memorandum (“PPM”) sometimes choose to escrow all subscription payments until a minimum amount is raised.

When an OTC private placement offering is made on this type of “minimum/maximum basis”, shares are not issued to investors and proceeds are not delivered to the Issuer from an escrow account unless and until the target minimum amount is sold.

Rule 144(d) Applied to PPM Investors with Escrowed Funds

Under Rule 144(d), the holding period for shares acquired in an OTC Markets company using a “minimum/maximum” offering begins when the shareholder pays for the shares and payment is deposited in the escrow account.

When is the Shareholder Committed to Purchase PPM Shares?

The reason that the Rule 144 holding period begins before the release of the escrowed funds is because the shareholder is committed to participate in the offering if the minimum amount is sold, and that factor is not in the shareholder’s control once the payment is sent and accepted for deposit by the escrow agent.

When are the Shareholder’s Funds At Risk under Rule 144?

This is the moment when the shareholder’s funds are “at risk.”  In contrast, if the language of the subscription or escrow agreement somehow gave the shareholder the right to withdraw the funds upon request, then the funds would not be considered “at risk” and the Rule 144 holding period would not begin to run.

Rule 144 Opinion Attorney Offers No Cost Review of Documents

OTC securities lawyer Matt Stout reviews shareholder documents at no cost in preparation for issuing Rule 144 and Section 4(a)(1) legal opinions to clear restricted stock.

Questions about the Rule 144 holding period, Affiliate Status, and Shell Status are reviewed and if a legal opinion cannot be issued there is no cost to the shareholder.  Contact Matt Stout with Rule 144 questions at (410) 429-7076 or mstout@otclawyers.com.

Removing Restrictive Legends from OTC Stock

 The most common questions by shareholders of OTC Markets stocks, including Pink Sheets and OTCBB Bulletin Board securities involve the removal of restrictive legends from stock certificates.

There are two common exemptions from registration which are used every day by OTC shareholders to clear and deposit restricted stock.  They are Rule 144 and Section 4(a)(1).

Rule 144 May Be Available to Remove a Restrictive Legend

Rule 144 is the most commonly used method for removing a legend from restricted stock. Many microcap shareholders quickly learn that their broker and the transfer agent require a Rule 144 legal opinion drafted by a securities attorney in order to sell restricted stock.

But Rule 144 is not available if the Issuer is a current or former “shell” and its filings are delinquent.  In those instances, shareholders can contact an experienced securities lawyer to review their supporting documents to see if Section 4(a)(1) can be used to clear their restricted stock.

Section 4(a)(1) Legal Opinions By Experienced Securities Attorneys

When Rule 144 is not available, and the securities are greater than Two (2) Years old, experienced OTC Markets securities counsel like Matt Stout can often provide a Section 4(a)(1) legal opinion to clear restricted stock.  A Section 4(a)(1) opinion is also commonly referred to by experienced securities lawyers simply as 4(1) opinion or 4-1 legal opinion.

Differences Between Rule 144 and Section 4(a)(1)

The main differences between a Rule 144 opinion and a Section 4(a)(1) opinion are

  1. Rule 144 Legal Opinions cannot be issued for a current shell company.
  2. Rule 144 Legal Opinions cannot be issued for a former shell company unless the company complies with the elements of the “Evergreen Rule” which basically means it emerged from shell status at least one (1) year ago, is subject to the reporting requirements of the Securities Exchange Act of 1934, has filed “Form 10 Information” including audited financials for a year, and is current in its SEC filings at the time of the opinion.
  3. Section 4(a)(1) opinions require that the shareholder and/or prior holders have held the securities for at least Two (2) Years in contrast to a shorter Rule 144 holding period of either six (6) months for mandatory SEC filers or one (1) year for non reporting Pink Sheets.
  4. Section 4(a)(1) opinions can be drafted for either current or former shell companies because “shell status” is not an element of 4-1.
  5. Section 4(a)(1) legal opinions cannot be drafted for shareholders considered an issuer, underwriter or dealer.

Shareholders in OTC Markets companies can contact securities attorney Matt Stout for a no-cost review of their restricted stock certificates and supporting documentation at (410) 429-7076 or mstout@otclawyers.com

 

Obligation to File Reports Under the Securities Exchange Act of 1934

Exchange Act Reporting Requirements

When a public company registers its securities under the Securities Act of 1933 (the “Securities Act”) through the filing of an S-1 Registration Statement, it must continue to file periodic reports with the SEC under the Securities Exchange Act of 1934 through at least the end of the fiscal year in which the S-1 becomes effective.

After the end of that fiscal year, the public company must continue reporting to the SEC unless its obligation to report is suspended.   The SEC will suspend an Issuer’s filing obligations if

  1. The number of shareholders falls below 300 for the class of securities offered; or
  2. The number of shareholder is below 500 for the class of securities offered and the Issuer had less than $10 million in total assets in each of the last 3 fiscal years.

An Issuer can request that the SEC suspend its filing obligations by filing a Form 15.   From there, Issuers usually choose to become a Pink Sheet and file under the Alternative Reporting Standard used by the OTC Markets Group.

There are two situations in which a public company would still have the obligation to file SEC Exchange Act reports, regardless of its preference for the alternative reporting standard:

  1. If the public company lists its securities on an exchange, like the New York Stock Exchange, the NYSE MKT or the NASDAQ; or
  2. If the Issuer has record shareholders greater than 2,000.

What is a Reverse Merger?

A Private Company’s Assets or Operations are Vended Into a Public Vehicle

In a reverse merger (or reverse takeover) the controlling shareholders of a public vehicle acquire the business operations or assets of a private company.  Once the reverse takeover (“RTO”) transaction is complete, the private company is either “vended in” as a subsidiary of the Issuer, in which case all of its financials become reported under the umbrella of the public company, or the assets are purchased.

This is usually accomplished via a Share Exchange Agreement in which the shareholders of the private company receive a majority stake or “controlling interest” in the public company.

New Officers and Directors are Appointed from the Private Company in an RTO

With that change in control, new officers and directors are usually appointed from the management of the private company.  The change in control is the reason why reverse mergers are sometimes referred to as a reverse takeover or RTO.

Interestingly, Issuers seeking private company candidates for reverse merger are often called “public shells” even if they have enough assets and operations to avoid classification as a “shell company” under Rule 144.

Super 8-K Type Disclosures Must Be Provided to Investors After a Reverse Merger

Once the reverse merger is complete, the Issuer provides disclosures regarding the private company’s assets and operations using a “Super 8-K” if an SEC reporting company, or an Information and Disclosure Statement if an OTC Markets Pink Sheet using the Alternative Reporting Standard.

The Private Company Now “Trades” on the Public Market

After this disclosure process, the private company’s management is  in control of the public vehicle (which may be a former shell) and its stock is now quoted and trades under the same ticker or trading symbol.  At this point, it often makes sense for the new management to change the name of the company, and its symbol, in order to emphasize the new business operations to investors.

Famous Companies That Went Public Via Reverse Merger or RTO

Some household names which are reported to have gone public via reverse merger or reverse takeover include Berkshire Hathaway, Blockbuster, Waste Management, Jamba Juice, Turner Broadcasting (which later became CNN), Occidental Petroleum,and Texas Instruments.

Entrepreneurs seeking a public shell for a reverse takeover or Issuers looking for private companies to “vend in” can contact securities lawyer Matt Stout at (410) 429-7076 or mstout@otclawyers.com.

Can Stock in Shell Companies Be Sold Under Rule 144?

What is a Rule 144 Legal Opinion Letter?

A Rule 144 legal opinion is a letter drafted by a securities attorney to a Transfer Agent that states whether or not a specific transaction complies with the requirements of SEC Rule 144.  Rule 144 has separate elements or requirements that must be met, and supported with documentation, in order for a restricted stock certificate to be cleared for sale under Rule 144.

One of the requirements for compliance with Rule 144 is that the Issuer is not a shell company.

What is a Shell Company under Rule 144?

A shell company under SEC Rule 144 is an Issuer that has either

  1. No operations or nominal operations;
  2. Assets that consists only of cash and cash equivalents; or
  3. Assets that consist of any amount of cash and cash equivalents and nominal other assets.

 What if the Issuer Used to Be a Shell Company But is Not Currently a Shell?

If the Issuer was ever classified or declared a shell company in its past, then the Issuer must have provided current public information for a minimum period of time since it ceased to be a shell, and it must be current in its reporting to the SEC, not under the OTC Markets Alternative Reporting Standard.

SEC Reporting Companies That Used to Be a Shell under Rule 144

For SEC reporting companies that file Forms 10-Q, 10-K and 8-K, these Issuers must be current in their SEC quarterly and annual report filings.  If the Issuer was ever a shell in its past, it must have filed these reports for at least 12 months since it stopped being a shell.

These Issuers will be quoted on the OTC Markets OTCQB or OTCQX market tiers.  They may also be quoted on the OTC Bulletin Board, if the Issuer has chosen to apply for OTCBB.  But a current SEC reporting company that is “fully reporting” will be shown as an OTCQB, at least, on OTCMarkets.com.

Pink Sheets That Used to Be a Shell under Rule 144

Non SEC reporting companies (Pink Sheets) that are subscribed to OTC Markets OTCIQ system, will be shown as a “Pink Current” Issuer on OTCMarkets.com, meaning that the Issuer is current in its quarterly financials, annual financials and disclosure statement filings under the Alternative Reporting Standard.

If a Pink Sheet public company was ever a shell in its past, broker-dealers and clearing firms are not likely to ever accept a Rule 144 legal opinion to clear its stock even if it has ceased being a shell.  This is true under Rule 144 no matter how long ago the Pink Sheet ceased to be a shell.

Pink Sheets that are not current in their filings will be shown as “Pink Limited Information” or Pink Yield Sign, while those Pink Sheets that have missed several filings will be shown as “Pink No Information” or Pink Stop Sign.

Shareholders of Pink Sheet Issuers that were formerly shells can contact Matt Stout, securities attorney for further information on other SEC provisions which may be useful in clearing their Shares under the facts specific to their case.

How Does A Trading Halt Affect the OTC Issuer’s Stock?

Who Can Place a Trading Suspension or Trading Halt on an OTC Security?

Only the SEC or FINRA can suspend or halt trading in a public company’s stock quoted on the OTCQX, OTCQB or OTC Pink Sheet marketplaces.  OTC Markets does not suspend trading or stop publishing quotations for any Issuer on its own accord.

A trading suspension or halt has nothing to do with whether or not an Issuer has continued to subscribe to the OTC Markets Disclosure and News Service, to OTCIQ, or even if the Issuer’s filings are not current on OTC Markets.  Pink Sheet Stop Signs can, in theory, remain Pink No Information forever without having trading in their stock suspended or halted.

What happens if the SEC or FINRA Issues a Trading Halt in an OTC Markets stock?

When trading in an OTC stock is suspended by the SEC or halted by FINRA, OTC Markets Group removes all quotes from its inter-dealer quotation system and displays a “Halted/Suspended” message.

How Long Do Trading Suspensions Last?

SEC suspensions for OTC Markets OTCQX, OTCQB and OTC Pink Sheets last Ten (10) business days.

Once the suspension has ended, market makers may re-enter their bid and ask quotes if a new Form 211 is filed with FINRA that includes the Issuer’s current financial information.

Without the new 15c2-11, the trading symbol will remain a Caveat Emptor or skull and cross bones.

What Can Caveat Emptor Issuers Do About SEC Suspensions or FINRA Trading Halts?

Management or Shareholders of OTC Markets Caveat Emptor or skull and cross bones Issuers can contact Matt Stout, securities lawyer, with questions on the process of addressing SEC trading suspensions or FINRA trading halts, and to discuss the 15c2-11 process at (410) 429-7076 or mstout@otclawyers.com

 

Current Public Information and the Alternative Reporting Standard Under Rule 144

Current Public Information Under Rule 144

Under SEC Rule 144, there must be “adequate current information” about the OTC Markets Issuer publicly available before the sale of restricted stock can be made. According to the SEC for “reporting companies” that file quarterly and annual financial reports with the SEC via its EDGAR filing system, this generally means that those Issuers have complied with the periodic reporting requirements of the Securities Exchange Act of 1934.

The reporting companies’ compliance with those reporting requirements is easily seen on OTC Markets via the current OTCQB or OTCQX designation, which demonstrates that an Issuer is current in its filings.

Current Information Under the Alternative Reporting Standard for Pink Sheets

For “non-reporting” companies, that are not subject to the reporting requirements under the Securities Exchange Act of 1934, this current information requirement means that certain company information is publicly available via OTCMarkets.com in the form of Quarterly and Annual reports showing the Issuers unaudited balance sheet, profit & loss statement and cash flow statement are posted.

It also means that the Pink Sheet Issuer’s Information and Disclosure Statement is posted on time, as well as.   The OTC Markets disclosures include information regarding the nature of the Issuer’s business operations, the bios of its officers and directors, and its share and debt structure.

OTC Pink Current

A Pink Current designation on OTCMarkets.com provides investors with the knowledge that the Pink Sheet Issuer has timely filed all of its disclosures and financials on OTCIQ in compliance with the Alternative Reporting Standard.

If those disclosures and financials are detailed and professionally prepared, they can be as informative and revealing to investors as an SEC Form 10-Q or 10-K.

A Pink Current Issuer is considered to have satisfied the requirement of “adequate public information” under Rule 144.

What Is the Holding Period Under Rule 144 for Affiliates?

An Affiliate under Rule 144 is typically an officer, director, or large shareholder of an OTC public company who is in a “relationship of control” with the issuer.  Before an Affiliate may sell restricted securities under SEC Rule 144, he or she must hold them for a certain period of time, depending on whether the issuer is an OTC Bulletin Board, or an OTC Markets Pink Sheet.

Holding Period for SEC Reporting Companies and Pink Sheets

If the Issuer is an “SEC reporting company” under the Securities Exchange Act of 1934, such as an OTCBB, OTCQB, or OTCQX, then the Affiliate must hold the securities for a minimum of six (6) months before resale.

If the Issuer of the securities is a Pink Sheet, and thus not subject to SEC reporting requirements, then the Affiliate must hold the securities for at least one (1) year before resale.

Holding Period Begins When Shares Are Paid For

Either holding period begins when the securities are purchased and fully paid for or earned (if acquired for services). It is important to remember that the holding period (and Rule 144 in general) only applies to restricted securities.

If Affiliates purchase securities in the public markets, these shares are free trading, and not restricted, so there would technically be no holding period under Rule 144.

However, this is often difficult to document, especially if the shares are intermingled or held at the same broker.  Affiliates wishing to purchase securities of the Issuer in the public markets would do well to keep good records, since it may become necessary to trace these non-restricted shares back to their source to prevent them from unduly being classified by the Transfer Agent or clearing firm as restricted.

Affiliates Should Wait Greater Than Ninety Days After Resigning

If an Affiliate purchases additional stock from the Issuer, this will not affect the holding period of earlier purchased stock of the same class.  However, Affiliates who sell stock to Non-Affiliate Shareholders can inadvertently cause those shares to be considered Affiliate Shares unless greater than 90 days has past since the Seller has ceased to be an Affiliate.

In practice, it is best for Affiliates of OTC Bulletin Board and OTC Markets Pink Sheet companies to fully document their holding period, and especially to document when they cease to be an officer, director, control person or 10% holder of the Issuer’s stock.

Likewise, it is important for investors purchasing stock privately from “former” Affiliates to review the Issuer’s Board Resolutions and filings to determine when the Seller officially ceased to be an Affiliate, since the Transfer Agent, broker and clearing firm will want to know these details.   An OTC Securities Lawyer like Matheau J. W. Stout can provide legal advice to the purchasers of Affiliate stock and draft 144 legal opinion letters that detail the origin, history and affiliate status of the shares.

What Financials are Required for Pink Current Status on OTCMarkets?

Pink Current Status Requires Financials in a Specific Format

Pink Current       Achieving Pink Current status is worthwhile for any Issuer listed on the Pink Sheets, since it provides investors with the confidence that comes from being a fully reporting company under the Alternate Reporting Standard.  In order for an Issuer on the OTCMarkets Pink Sheets to maintain its status as “Pink Current” the Company must file both Quarterly and Annual financial reports when due.   Many Pink Sheet Issuers discover that OTCMarkets requires these financials in a specific format, which is sometimes not what their bookkeeper provides at tax time.  There is also a specific way the financials should be posted within the OTC Disclosure and News Service so that they clearly state for which “period end” the financials apply.

Many Issuers Post Inadequate or Improper Financials in OTCIQ and Stay at Yield Sign

Many times, Issuers post inadequate or improperly formatted financials and wonder why they stay at a Yield Sign (Pink Limited Information).  When this happens, an Issuer must go back and reformat the financials in order to comply with OTCMarkets guidelines, which sometimes requires emails with OTCMarkets staff.  It is easy enough for management or an Issuer’s securities counsel to delete the improper reports and upload new PDFs showing the correct format which OTCMarkets requires.  Although the OTC staff is always helpful, and willing to assist Issuers learning the OTCIQ process, working with an experienced microcap securities attorney can help do things right the first time, saving accounting costs with some planning beforehand. At the Law Office of Matheau J. W. Stout, Esq., we often serve as corporate counsel to Pink Sheet companies, and serve as authorized user on OTCIQ so that we can make sure the postings are done correctly each time.  This saves Issuers considerable time so management can focus on operating the business rather than on the legal and administrative aspects of reporting.

OTCMarkets Requires Issuers to Post a Balance Sheet, Profit & Loss Statement and Cash Flow Statement

Each of these reports should state the Issuer’s corporate name in the heading, as well as the “period end” date, such as September 30, 2013.  Quickbooks has the ability to format the Quarterly Report properly, so long as the user specifies the parameters and requests a Balance Sheet, P&L and Cash Flow Statement.   Taking the time to format these properly once will save considerable time and expense later, since each Quarter the same reports will be posted.  Consolidated reports can be used by Issuers having multiple subsidiaries, so long as this is clearly disclosed.  OTCMarkets provides helpful information for Issuers on all aspects of using the OTIQ service, including an article on how to save financials to a PDF.  Issuers interested in obtaining Pink Current Status can begin the process by reviewing an OTCIQ Agreement and submitting it to OTCMarkets.com.