With the exception of the transactions listed below, all of the transactions listed on the attached Appendix 1 were issuances of free trading common stock in exchange for debt or preferred shares that had been held for over a year and sufficiently aged under Rule 144. One year or more after the nonpublic issuance of debt in individual transactions (exempt under §4(a)(2)), free trading securities were issued in exchange for those debt or preferred shares based on Rule 144(b)(1)(ii) and Rule 144(d)(1)(ii).
The Notice Securities are comprised of those listed on Exhibits 2 and 3 to the notice letter. Those listed in Exhibit 2 were issued to Watson Investment Enterprises, and many were identified in a FINRA order as having been sold and resold without registration under the Securities Act. This statement, while correct on its face, is incorrect in that it omits to state all relevant facts, which include the fact that ostensibly the shares did not require registration because they were issued to an accredited investor in non public issuances that were exempt under §4(a)(2). These shares were purchased from the original holder thereof who held $275,000 debt of the Company since March 20, 2004. Tacking the holding period of original holder to that of Watson resulted in shares being issued without restrictive legend pursuant to Rule 144(b)(1)(ii) and Rule 144(d)(1)(ii). An opinion of counsel was provided by Watson's attorney to support this issuance. I have determined this opinion was incorrect and the shares were improperly issued. Nevertheless, with the passage of time since this transaction, it would appear no benefit could be achieved through any further restriction on these shares. The DTC’s recent position paper ("DTC Service Restrictions On Certain Book-Entry Securities - Procedures For Affected Issuers" September 2013) and the SEC's current rulemaking (Release No. 34-71745; March 19, 2014) indicate that this would be the correct position for DTC to take.
Regarding the issuances listed on Exhibit 3 to the notice letter, these shares were issued pursuant to a Settlement and Forbearance Agreement of August 24, 2009 (the "SFA"). The SFA settled claims that had arisen at or before June 16, 2008. An appropriate opinion of counsel supported these issuances as well.
Quick question. Are securities registered under the 1933 act subject to the same audited financial filing requirements as those registered under the 1934 act?
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