Some agreements entered into by Gendarme with the subject companies resulted in Gendarme obtaining warrants for up to one year in which Gendarme could elect to purchase the company’s stock; other agreements provided for outright purchases of issuer stock. The Complaint charges that Gendarme falsely represented to the issuers that the discounted purchases were undertaken for “investment purposes only.” However, Gendarme is charged with intending to sell the purchased shares within a year. Moreover, the Complaint alleges that Gendarme flipped most of the shares within days or weeks following purchase.As a consequence, the SEC concluded that Gendarme acted as an underwriter and not an investor. This nuance is a significant difference because an underwriter would not be entitled to a valid exemption from registration for the transactions.
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Also, most of the stocks that Gendarme purchased are on this DTCC notice from last Friday. There was 21M volume today so, again, someone can and is buying.
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