Replies to post #72229 on e.Digital Corporation (fka EDIG)

[friendlyfred]

I think the medeviewer may turn out to be a half scam like the 0-1000; just sell enough to make the thing seem legit. Others in the medical industry have tried to contact edig about testing the device in their hospitals / surgical centers and have gotten no reply. I doubt they are serious about this market. Imo it is a ruse to sell more shares into.

[Cassandra]

HH: I agree. Chuck certainly opened my eyes to a potentially explosive issue - one that could get Falk in very serious trouble with the SEC.

I did verify that Chuck was right. The actual definition of an "officer" in the rules reads as follows:

http://www.sec.gov/rules/final/34-47225.htm#footnote_38

38 Exchange Act Rule 16a-1(f) defines the term "officer" to mean "an issuer's president, principal financial officer, principal accounting officer (or, if there is no such accounting officer, the controller), any vice-president of the issuer in charge of a principal business unit, division or function (such as sales, administration or finance), any other officer who performs a policy-making function, or any other person who performs similar policy-making functions for the issuer. Officers of the issuer's parent(s) or subsidiaries shall be deemed officers of the issuer if they perform such policy-making functions for the issuer...

Fred's role as the VP of sales and access to insider information certainly causes him to be legally required to report his holdings and transactions. He is also "the vice president of business development over the Company’s personal video technology platform" which is the the company's sole "principal business unit." This also causes him to meet the requirements.

Even if there were any doubt, it's best to err on the side of disclosure. Hopefully he has done so, but the evidence may suggest that has not been the case.

If he has failed to report as required, he could be in even more trouble than the former CEO of Quest who was recently indicted for selling stock when he had access to knowledge that the company was not going to meet financial expectations.

See here for nore information: http://www.investorshub.com/boards/read_msg.asp?message_id=8969647

During Fred's reign as Pres/CEO, he made numerous statements of "expectations" of products, revenues and product production, etc. that were perpetually "expected," never materialized.

At the time he stepped down on July 1, 2004 a large number of these "expectations" were still "expected."

However, at the ASM in Aug. 2005, after the approval of 100 million newly authorized shares (50% dilution), a more lucrative stock option plan for insiders and re-election of the incompetent BOD - Putnam finally fessed up that none of the pending great expectations floated during Fred's reign were going to happen.

If Fred sold any of his holdings between 7/1/03 and 8/4/05 without reporting them, the SEC might find that he secretly sold while knowing that none of those expectations (that he himself set) were going anywhere.

Furthermore, they could find that in reality his role and access to non-public information never changed materially and that his "resignation" as Pres/CEO was motivated by his desire to unload without investor scrutiny.

If this were alleged to be the case by the SEC, it could be used as evidence of a proactive intention to hide violations of the insider trading rules, which would be more serious than Nacchio's violations in that he reported his sales as required.

Now that this issue has been raised in the public domain, it's more likely that the SEC may be alerted. Shareholders should contact all members of the BOD in writing with signature verification to make them officially aware of it.

IMO, people like Diaz and Cocumelli are likely ignorant of the actual reporting requirements and just trust what the executives tell them is proper - believing that D&O insurance will protect them if there is a problem.

However, the BOD has a fiduciary duty to act and, with assistance of legal and financial counsel, should determine if Falk has been indeed been complying with his insider reporting requirements. If he hasn't they should rectify the situation with the SEC immediately. There would be far worse potential collateral damage to the company as well as other officers and directors if the SEC came to them first.

If there have been any violations of insider trading rules and the BOD members have not investigated or acted after being informed of the issues, they could risk being considered conspirators in a cover-up. Ignorance would no longer be the excuse.

FWIW, I think that Putnam and Warden would rather have the issue be ignored and take the risks. They certainly would not want the SEC looking into their profits taken (along with Falk) on the false and misleading NASDAQ application PR on 2/3/00. Therefore, Diaz and Cocumelli would have to take charge of looking into the situation. It would be in Blakely's best interest investigate as well. He is an officer and if there is an ongoing violation, he could also be at risk.

Diaz has acknowledged that he is the current "Principal Executive Officer" by signing the SOx attestations as such and is taking on increased legal accountability in doing so. Is he being compensated?