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From the Form 4 Instructions:
"This Form must be filed before the end of the second business day following the day on which a transaction resulting in a change in beneficial ownership."
"A reporting person no longer subject to Section 16 of the Securities Exchange Act of 1934 (“Exchange Act”) must check the exit box appearing on this Form."
If Pike sold down to below 10% he would still have to file the transaction(s) that got him there.
http://sec.gov/about/forms/form4data.pdf
"The company's second quarter ends November 31. The company has to prepare a 10Q for the quarter. It is due then but the deadline for filing will be Jan 13."
It is due then????
I know you know better....I'll give you a pass on the word play :O)
"Another one comes due in a week as the list of missing financial reports continues to expand."
What's that?
"Can the SEC issue a cease and desist order to officers of a company?"
Yes, as per the previous Jim Bishop post. However he cited Section 8A of the 1933 Act and, if he's reading this, I hope he can confirm that the guiding regulation should be Section 21C of the 1934 Act.
Section 21C -- Cease-and-Desist Proceedings
a. Authority of Commission
If the Commission finds, after notice and opportunity for hearing, that any person is violating, has violated, or is about to violate any provision of this title, or any rule or regulation thereunder, the Commission may publish its findings and enter an order requiring such person, and any other person that is, was, or would be a cause of the violation, due to an act or omission the person knew or should have known would contribute to such violation, to cease and desist from committing or causing such violation and any future violation of the same provision, rule, or regulation. Such order may, in addition to requiring a person to cease and desist from committing or causing a violation, require such person to comply, or to take steps to effect compliance, with such provision, rule, or regulation, upon such terms and conditions and within such time as the Commission may specify in such order. Any such order may, as the Commission deems appropriate, require future compliance or steps to effect future compliance, either permanently or for such period of time as the Commission may specify, with such provision, rule, or regulation with respect to any security, any issuer, or any other person.
http://www.law.uc.edu/CCL/34Act/sec21C.html
Ok, Tex.
Just as along as we're in agreement as to why the Form3's were filed when they were and why........based on the 1934 Act registration.
Your earlier statement that "the hoopla about "1933 vs 1934" companies is worth nothing: It's even been posted here, on thread" seemed to suggest otherwise and is the reason that I've taken the time to explain the pertinent hoopla.
Ok Tex. Thought I did, but just in case:
Based on the achievement of the required number of shareholders and dollars of assets the company was required to file a Form 8-A on 9/28/09. The purpose of the form, as shown in the heading of the form is "FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934".
So the company's shares were registered under the 1934 Act based on that filing and while there are issues that determine the effective date of the registration, I believe that the registration became effective as of the date of the filing itself.
Forms 3&4 are required filings under the 1934 Act, but not the 1933 Act under which the shares were initially registered.
So the "initial beneficial ownership", as described in the instructions for Form 3 (which see) was first required to to be reported on Form 3 (with subsequent transactions reported on Form 4 when appropriate...eg. Pike) when the Company filed the 8-A and its shares became 1934 Act registered shares.
http://sec.gov/about/forms/form3data.pdf
If you're still confused by this, let me know and I'll take another poke at it. I would also add that I'm not an attorney and the only guarantee accompanying the above explanation is for a return of any fees paid for it. Consequential damages get bupkis.
ID, Your comments re:SPNG would be most welcome.
Sure ID,
I don't know what you meant in 261683, but I don't mind a PM. But I'm not a paying member so I can't PM back.
The issue was reporting requirements and there's clearly a change from 1933 to 1934, specifically in the area that was the subject of discussion, Forms 3 and 4.
TEX,
I must confess that I thought/think that ID Super was correct on this one.
While my initial inclination to believe so was just based on the Form 3 and 4 filings coming on the heels of the Form 8-A filing ("FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934"), I just unearthed a few things that I think you will find supportive.
For one thing, Forms 3 and 4 appear on the SEC list of 1934 Act forms:
http://www.sec.gov/about/forms/secforms.htm
In addition, both Forms 3 and 4 carry the following statement in their heading:
"Filed pursuant to Section 16(a) of the Securities Exchange Act of 1934, Section 17(a) of the Public Utility Holding Company Act of 1935 or Section 30(h) of the Investment Company Act of 1940"
Also, and I hate to rely on common sense in these things, but it's a little hard to believe that the boys just woke up one morning and decided to file some forms, isn't it?
Based on the above, I believe that Form 4 filings would be required for any transactions in the shares by the parties subsequent to the Form 3 filings (which were some days late), but none were required prior to 9/28/09(see note).
I also believe that we are still due a filing from RME....not based on their common holdings, but based on their 18% (5,000,000) holding in the Class B shares. Discussed here if you're interested:
http://investorshub.advfn.com/boards/read_msg.aspx?message_id=42947920
Please note that I have no idea what the ownership filing requirements might have been, if any, prior to the registration of shares under the 1934 Act at the end of September.
note: The signature area of the 8-A shows "Date: September 28, 2008"...........Whoops!
Thank you mentorman.
The link provided, while not providing any hard and fast rules, generally supports the requirement for SPNG to maintain regular filings. They don't qualify for "smaller company" treatment as defined and as far as I can tell can only "escape" the requirement by filing a Form 15 "self de-registration" which would need to be preceded by a significant reduction in shareholders or both assets and shareholders. Obviously an SEC revocation under Section 12j would relieve them of their filing obligations as well. No further research seems necessary on this issue unless it can be shown to support a different conclusion. Thanks again.
Still hoping that someone can provide a reason for not filing the NT-10Q. There has to be a reason.
TEX,
I've linked the 12b-25 rule on the r 'n r board........hope that's what you were looking for.
Thanks to you and the other folks that responded to my question posted here:
http://investorshub.advfn.com/boards/read_msg.aspx?message_id=43754185
Based on the feedback and my own research I'm going to go ahead and conclude that the company IS required to continue to file regular financial and informational reports with the SEC. As mentioned, the company IS still registered under the Act and my own D&D philosophy doesn't allow me to accept the "other grey companies don't" explanation as definitive......I'm inclined to believe that those other companies just plain can't or won't. I'm still looking for some specific regulation to justify their non-reporting but suspect that none is forthcoming.
Which kind of leaves me where I started regarding the issue of the missing NT10-Q. Filling out the form is virtually as simple as falling off a horse......even I could do it. Why would the company, with the SEC in virtual residence, choose not to submit a form that, correctly filed, exposes it to no further jeopardy whatsoever?
The SEC is aware of the auditing issues and to list them in the narrative section of the form is perfectly reasonable. There would seem to be no technical reason not to file.
The only thing that I can think of......and I don't know how it might connect to the issue of "to file or not to file".......is their unusual choice to publish revenue and earnings approximations in the Other Information section of the NT-10K instead of merely attributing the lateness to auditing issues. Or, and the form allows this, to provide no explanation at all.
http://www.sec.gov/Archives/edgar/data/1201251/000114420409046750/v159535_nt10k.txt
Any ideas?
Rule 12b-25 -- Notification of Inability to Timely File All or Any Required Portion of a Form 10-K, 10-KSB, 20-F, 11-K, N-SAR, N-CSR, 10-Q, 10-QSB, or 10-D.
http://www.law.uc.edu/CCL/34ActRls/rule12b-25.html
Rule 12b-25 -- Notification of Inability to Timely File:
a. If all or any required portion of an annual or transition report on Form 10-K, 10-KSB, 20-F or 11-K , a quarterly or transition report on Form 10-Q or 10-QSB, or a distribution report on Form 10-D required to be filed pursuant to section 13 or 15(d) of the Act and rules thereunder, or if all or any required portion of a semi-annual, annual or transition report on Form N-CSR or Form N-SAR required to be filed pursuant to section 13 or 15(d) of the Act or section 30 of the Investment Company Act of 1940 and the rules thereunder, is not filed within the time period prescribed for such report, the registrant, no later than one business day after the due date for such report, shall file a Form 12b-25 with the Commission which shall contain disclosure of its inability to file the report timely and the reasons therefor in reasonable detail.
I'm trying to find out why the company did not file an NT-10Q as required by the above rule for the quarter ended 8/31/09. The company is still a registrant and hence a 10Q is "required to be filed pursuant to section 13 or 15(d) of the Act and rules thereunder".
Any ideas would be welcome. However, anyone tempted to attribute the lack of a filing to the fact that the company trades on the grey market is requested to point to the specific rule(s) that allow for it.
TIA
Billylee,
Thanks for the link. I was familiar with it and I don't believe that the question I have is answered by the company's market tier.
Appreciate the effort.
"I think since they are in the greys they aren't required to file anything with the SEC .............."
I've heard rumors to that effect in the past...still haven't seen a rule that confirms it. And the company filed an 8-K on 11/6 that would suggest otherwise.
Wish someone would settle this issue once and for all with a citing.
Um...per the 10Q for 11/30/07:
"As of January 10, 2008, the Company had 111,842,406 shares of common stock issued and outstanding."
http://www.sec.gov/Archives/edgar/data/1201251/000114420408002171/v099655_10qsb.htm
You raise an interesting issue. Frankly I hadn't considered the Q.
Here are a few chopped up excerpts that suggest that the latest 10Q would also be required to "accompany" the Form 211:
From Rule 15c2-11:
A copy of the issuer's most recent annual report filed pursuant to Section 13 or 15(d) of the Act.......in the case of an issuer required to file reports pursuant to Section 13 or 15(d) of the Act.....together with any quarterly and current reports that have been filed under the provisions of the Act by the issuer after such annual report or annual statement.
......and Provided further, That the broker or dealer has a reasonable basis under the circumstances for believing that the issuer is current in filing annual, quarterly, and current reports filed pursuant to Section 13 or 15(d) of the Act....
From Form 211:
Provide two copies of all required information (except for EDGAR documents) along with this completed form.
RECENT OFFERINGS
(a)(3) REPORTING COMPANIES LISTS:
The Issuer’s most recent annual report filed pursuant to Section 13 or 15(d) of the 1934 Act or the annual statement referred to in Section 12(g)(2)(G)(i) of the 1934 Act. Quarterly and other current reports filed after the Issuer’s most recent annual report or statement. List below each report or statement and applicable amendments filed by the Issuer through EDGAR that your firm has in its
possession that meets the requirements of this section.
The 10Q was due sometime around the 15th of October, yet I don't see an NT-10Q in the Edgar listing. Any idea why? I know of no regulation relieving them of that requirement.
It sounds like you disagree with FINRA?
http://investorshub.advfn.com/boards/read_msg.aspx?message_id=43720773
Please explain.
I'm afraid I can't see where that has any application to the current circumstance. There hasn't been a prospectus filed nor have I seen any suggestion that one might be.
What are you trying to say?
Sponge Digger......sounds official.
Found something that should firm up the issue at:
http://www.pinksheets.com/pink/otcguide/brokers_211.jsp
"The following are selected from a compilation of questions and answers relative to SEC Rule 15c2-11 and Schedule H of the FINRA By-Laws. The complete Q&A can be found in FINRA Notice to Members 92-50."
Question #10: Is the issuer required to be current in its filings with the Commission in order for the broker/dealer to utilize Rule 15c2-11(a)(3)?
Answer: Yes. Issuers that meet the requirements of Rule 15c2-11(a)(3) are those issuers that report to the Commission and are current in their reports. The broker/dealer must have the issuer's latest form 10-K and all subsequent form 10-Qs and those Form 8-Ks filed within five business days prior to publication or submission of the quotation. If the issuer has not filed a Form 10-K, the broker/dealer must have a copy of the prospectus, which has been in effect less than 16 months, and all subsequent Form 10-Qs and Form 8-Ks. If a filing is due at the Commission prior to FINRA's clearance of the Form 211 application, that filing must also be submitted with the application.
Question #11: What happens if an issuer is not current in its filings with the Commission?
Answer: If the issuer is not current in its filings with the Commission, the broker/dealer can seek to satisfy another subsection of the rule. Usually this would be Rule 15c2-11(a)(5). However, the fact that the issuer is not current in its filings may bear upon the determination of whether the available information is materially accurate.
footnote:
(a)(5) NON-REPORTING AND ALL OTHER COMPANIES
The applicant must make the Issuer information filed in conjunction with section (a)(5) of this form available upon request to any person expressing an interest in a proposed transaction with the subject security filed. Provide the Issuer’s most recent balance sheet, profit and loss and retained earnings statements, equivalent financial information for the two prior fiscal years for the Issuer or any predecessor company, and the documents that support the information provided
in this form.
h(no PM)
Thanks....demeanor stems from the lack of a position :o)
I'm tempted to say "I don't think so" for diplomacy's sake, but in fact the answer is No. The 10-K cannot be supplied to anyone outside the Edgar system and when it is filed there it is available to everyone.
I am assuming that you are not asking me if one of the boys could meet an MM in the parking lot of the local diner after midnight with a rough draft. They could, but attaching the rough draft to the Form 211 would be a horrible idea.
GL
May I suggest that you look into the meaning of the word quorum and its use in the company's by-laws?
I think it will answer the "all shareholders" issue for you.
The text of Rule 15c2-11 is here:
http://www.law.uc.edu/CCL/34ActRls/rule15c2-11.html
A 10-K filing would make the MM's application relatively easy. While an MM could, according to the letter of the rule, file the 211 supported by financial information in a form other than a 10-K, it is my understanding that no MM would do so in a case where an established filer has not filed. I believe that non-10K 211 filings are only used in the case of issuers who are not required to file 10k's, not those who have failed to file them.
The underlying requirement is for the MM to indicate that he/they find the information to be reliable. That is virtually impossible to do with information that is subject to regulated filing and yet hasn't been filed.
In other words, no 10k = no 211.
pj,
The following reasons should definitely appear PROMINENTLY in the Ibox, which presumably exists as a source of facts for those unfamiliar with the company or current information for those who are. But they are the reasons for the suspension in the stock......not the reasons for the investigation, which remain unstated by SEC rule.
"because of questions that have been raised about the accuracy and adequacy of publicly disseminated information concerning, among other things, the amount of sales and customer orders received by SpongeTech, investment agreements entered into by SpongeTech, and SpongeTech's revenues as reported in its financial statements. In addition, SpongeTech has not filed any periodic reports with the Commission since the period ended Feb. 28, 2009."
Item 8.01. Other Events
"On September 18, 2009, the Company received a formal order of investigation issued by the SEC regarding possible securities laws violations by the Company and/or other persons."
http://www.sec.gov/Archives/edgar/data/1201251/000114420409050122/v161351_8k.htm
No hair-splitting necessary.
Tex,
Probably should've noted that the SB-2 was provided as an example of form, not substance. When I noticed that the thing was for all of 20G's I almost didn't send it but got too lazy to look for another.
An IPO would require a registration, yes. However in this case the registration would not be for a newly listing company but rather to raise capital via the sale of shares of an existing company. There are several types of registration forms applying to different types and sizes of companies:
http://www.sec.gov/about/forms/secforms.htm
By way of example, this SB-2 was filed by Madero, GFGU's predecessor, in 2007 for the issuance of 4,320,000 shares @ $.005/share.
http://www.sec.gov/Archives/edgar/data/1398667/000116552707000338/g1778.txt
It's my understanding that, if GFGU were to try to sell common shares on the open market via this type of offering, the 5million+ shares in question could be added (piggy-backed) onto that registration filing, resulting in their no longer being restricted and hence freely tradable. In fact, if I may be so bold as to hazard a guess, I wouldn't be surprised if an offering wasn't already on someone's mind when the deal was struck. Otherwise, what's the value to the restricted shares? We'll see.
z,
I'm afraid that it's just the fruit of some vivid imaginations. It's nowhere.
My understanding is that the GFGU shares were issued to RME as restricted shares, shares initially issued without a public offering, and hence cannot be sold on the open market. The piggy-back privilege allows RME to latch onto the next GFGU registered public offering, including their shares as if part of that registration, and freeing them up to be traded openly.
I think it's also understood that through some magical slight-of-hand, in spite of some confusing terms restricting transfer of the shares, that SPNG will end up with the shares as a result of some confusing terms permitting the transfer of shares specifically to SPNG. Don't ask me how.
Cd,
Regarding the issue of not knowing about the re-audit requirement until 9/11:
For that to be true we would have to believe that Robison Hill, hired on 7/21 and Deloitte, "approved" on 8/24 either did not know or chose not to tell the client that they would not be able to file a 10K that included financial statements audited by an accounting firm that had its registration revoked. And that Drakeford, de-registered as of 6/16, also neglected to mention it. This wasn't something that the SEC just made up on the fly.
BTW, given a year end of 5/31 Drakeford should've been doing prep work on the 2009 audit by the date of their de-registration. Leaving it hard for me to understand why the company took until 7/21 to hire a replacement. Even in the best of circumstances, absent a requirement to re-audit the previous year, expecting an audit firm to perform an audit in 5 weeks (7/21-8/29) is a lot to ask.
"However, the SEC does have the power revoke the registration of a security. In that instance, I can't give you a time frame. That is decided on a case-by-case basis."
Spot on. The rules don't carry a time frame requirement for failure to comply.
Securities Exchange Act of 1934
Section 12 -- Registration Requirements for Securities
j. Denial, suspension, or revocation of registration; notice and hearing
The Commission is authorized, by order, as it deems necessary or appropriate for the protection of investors to deny, to suspend the effective date of, to suspend for a period not exceeding twelve months, or to revoke the registration of a security, if the Commission finds, on the record after notice and opportunity for hearing, that the issuer, of such security has failed to comply with any provision of this title or the rules and regulations thereunder. No member of a national securities exchange, broker, or dealer shall make use of the mails or any means or instrumentality of interstate commerce to effect any transaction in, or to induce the purchase or sale of, any security the registration of which has been and is suspended or revoked pursuant to the preceding sentence.
Just to highlight the language differences here's the 10 day suspension rule from the same Section 12:
k. Trading suspensions; emergency authority
Trading suspensions
If in its opinion the public interest and the protection of investors so require, the Commission is authorized by order--
A. summarily to suspend trading in any security (other than an exempted security) for a period not exceeding 10 business days
Phoenix-based NutraCea files for Chapter 11
by Andrew Johnson - Nov. 10, 2009 02:56 PM
The Arizona Republic
NutraCea, a Phoenix-based maker of dietary supplements, filed for Chapter 11 bankruptcy protection on Tuesday.
The small public company reported $83.7 million in assets and debt worth $18.9 million in its petition filed in U.S. Bankruptcy Court in Phoenix.
Last month the company announced that Wells Fargo was accelerating the principal balance due on a line of credit on which it defaulted.
The firm also had to restate its financial results for fiscal years 2006 and 2007 and the first three quarters of 2008 last month due to accounting errors discovered by independent investigators hired by the firm's audit committee.
NutraCea moved its corporate headquarters
from California to Phoenix in 2007. It started production at a new Phoenix facility early this year but closed it down due to a lack of customer demand.
It also faces lawsuits over a facility in Louisiana due to late payments on lease and supply agreements, according to the company.
The firm's shares closed down 7.4 percent at 5 cents on Thursday.
I hope I can impose on you for a clarification.
From my original post (the one that starts "At the risk of showing my ignorance"):
"It was my impression that 1) market makers were currently out of the loop and 2) brokers are matching trades within their own customer groups......."
You indicated that:
1. "broker-dealers" are MM firms.
2. "broker-dealers can't make a market, even though they can trade for their own accounts."
I thought I made it clear that I didn't understand the process. My understanding was not enhanced by discovering that broker-dealers are market makers that, under the current circumstances, can't make a market.
Can you either take a minute to make this understandable or provide a link to Market Making for Dummies? I do not know how the market mechanics changed when the company entered the Grey Market. If you do, please share.
Thanks in advance.
Ohmymookies,
I'm afraid that I am not authorized to reply to private messages.
I asked for examples of companies that were assigned the skull and crossbones merely because they changed their names. This is what you sent.
"BCND, as an example. They changed their name and reduced their authorized.
------------
Email from the prior President of BCND:
Thank you for your email about Pink Sheets. I am aware of the situation and can say that I am not too pleased about Pink Sheets' new policy to place every company as Caveat Emptor if they change their symbol................(etc.)"
First, this was a symbol change, not a name change.
Second, it's telling that the prior President of the company was able to convince you that Pink Sheets had a "policy to place every company as Caveat Emptor if they change their symbol".
Third, As best I can tell BCND hasn't filed a financial report since 2003.
Perhaps you have another, more appropriate example?
""broker-dealers" are MM firms."
So what do you suppose is meant by the very first statement in the paragraph from which you quoted?:
"There are no market makers in this security."
At the risk of showing my ignorance:
It was my impression that 1) market makers were currently out of the loop and 2) brokers are matching trades within their own customer groups and reporting those trades to their regulators as described under Grey Market here:
http://www.pinksheets.com/pink/otcguide/investors_market_tiers.jsp
And that it is the above process that accounts for the lack of volume.
If I'm mistaken I hope that someone will take a minute to straighten me out.
It was a sloppy post and I buried my own point.
1. The Subscriber Agreement was reached on 11/5.
2. It was to have been PR'ed by GFGU prior to 8:30AM on 11/6 without identifying the Subscriber. It wasn't.
3. It was instead PR'ed by SPNG at 3:30PM on 11/6 , stating "Both companies have come to terms on the original investment of $1,750,000 that was advanced by SpongeTech and its affiliates back in September." Without identifying "its affiliates".
4. SPNG filed an 8-K at 4:02PM on 11/6 identifying RME and providing the Subscriber Agreement as an exhibit.
The fact that the parties agreed to announce the agreement prior to the close yet to identify the actual 2nd Party to the agreement after the close is interesting........that's all I'm saying. It's an interesting point to come to agreement on.
"Yes, that's self serving rating system from a private company with no authority."
Wouldn't they be sued regularly if their ratings were deceptive? Are they?
" Pink Sheets will skull and crossbones a company for simply changing their name. "
Can you fire off a couple examples where the designated symbol was used "simply" for a name change, please? I didn't miss it, just not sure I believe it.