Background
Back in October and November of 2011, I wrote a series of blogs regarding DTC eligibility for OTC (over-the-counter) Issuers. A key eligibility criterion is that the securities that were distributed in accordance with Section 5 of the Securities Act of 1933 do not have transfer restrictions and are freely tradable. To meet this criterion, the securities must have been issued pursuant to an effective registration statement or valid exemption thereto. I have followed that series with various blogs regarding DTC chills and the evolving process to first learn the cause of the chill and second, to reach a resolution.
The Depository Trust Company (“DTC”) is a central securities depository in the U.S. which was originally created as a central holding and clearing system to handle the flow of trading securities and the problems with moving physical certificates among trading parties. DTC is regulated by the SEC, the Federal Reserve System and the New York State Department of Financial Services. Today, and as noted by the SEC, “… DTC provides clearance, settlement, custodial, underwriting, registration, dividend, and proxy services for a substantial portion of all equities, corporate and municipal debt, exchange traded funds, and money market instruments available for trading in the United States. In 2010, DTC processed 295,000,000 book entry transfers of securities worth $273.8 trillion.” If the DTC doesn’t process and settle trading in your securities, it just doesn’t happen.
A DTC Chill or Global Lock – General
Many OTC Issuers have faced a “DTC chill” without understanding what it is, let alone how to correct the problem. A DTC chill is the suspension of certain DTC services with respect to an Issuer’s securities. Those services can be book entry clearing and settlement services, deposit services (“Deposit Chill”) or withdrawal services. A chill can pertain to one or all of these services. In the case of a chill on all services, including book entry transfers, deposits, and withdrawals, the term of art is a “Global Lock.”
From the DTC’s perspective, a chill does not change the eligibility status of an Issuer’s securities, just what services the DTC will offer for those securities. For example, the DTC can refuse to allow further securities to be deposited into the DTC system or while an Issuer’s securities may still be in street name (a CEDE account), the DTC can refuse to allow the book entry trading and settlement of those securities.
Although I’m sure it’s unintentional, the term “chill” speaks volumes as to the reality of the effects of a DTC chill. A DTC chill results in a chilling of trading in a security, a chilling of any financing negotiations, a chilling of potential reverse or forward acquisitions or mergers, and a chill as to shareholder protections and ability to assert control over their own property.
In the Matter of the Application of International Power Group, Ltd.
On March 15, 2012, the Securities and Exchange Commission (SEC) issued an administrative opinion stating that an Issuer is entitled to due process proceedings by the DTC as a result of a DTC chill placed on an Issuer’s securities (In the Matter of the Application of International Power Group, Ltd. Admin. Proc. File No. 3-13687).
In September 2009, DTC put a chill on the trading of International Power Group, Ltd. (IPWG) securities following the initiation by the SEC of an action against certain defendants, not IPWG, for improper issuance and trading in certain OTC securities, including IPWG and 3 other Issuers. Neither IPWG nor any of its officers or directors was a party to the SEC proceeding. The portion of the SEC action related to IPWG indicated that about 80,000,000 shares of IPWG stock was sold in the public markets without proper registration or an exemption from registration. In May 2010, the SEC settled with the Defendants related to IPWG for the usual penalties and permanent injunctions, which settlement did not address the already issued securities.
Upon learning of the DTC chill, IPWG requested that the DTC provide a hearing in accordance with its Rule 22, the only DTC rule that allows for some sort of hearing process. Rule 22 provides an opportunity for Interested Persons to be heard on any determination by the DTC that an Issuer’s security is no longer an eligible security. The DTC denied IPWG’s request for a hearing, stating that IPWG’s securities were still eligible and that it would lift the chill “once the matter of the unregistered IPWG shares is resolved with the SEC.” The DTC suggested that IPWG take the matter up with the SEC. IPWG was in a quandary. There was no action pending with the SEC within which IPWG was a party, and the SEC action related to IPWG shares had been settled without addressing the “matter of the unregistered IPWG shares.”
There was no clear way to take the matter up with the SEC. In addition, there was no clear way to take the matter up with DTC. DTC works through Participants – i.e., licensed broker-dealers, not Issuers. (See my previous blog on DTC eligibility.) Moreover, the shares it actually holds and trades are already issued and belong to shareholders, not the Issuer. So, although IPWG was clearly and undeniably greatly impacted by the DTC chill, at the time the DTC took the position that it didn’t have any particular obligation to IPWG for its actions.
IPWG filed an administrative appeal with the SEC looking for assistance. A discussion of jurisdiction and the rules vis-à-vis getting this matter in front of the SEC is beyond the scope of this blog, but suffice it to say, after much legal wrangling and a realization by all involved that there was no precedent to look upon, the SEC agreed to take the matter on.
In its opinion, the SEC held that an Issuer, in this case IPWG, was an Interested Person for purposes of Rule 22 and was impacted by the DTC chill such that they are entitled to due process and fair proceedings. The SEC did not tell the DTC what the criteria were for determining whether the chill was appropriate or not should be, but only that the Issuer is entitled to “fair procedures.” Moreover, the SEC held that in the future, an Issuer who is negatively impacted by DTC action can avail itself of the SEC administrative proceedings process for appeal following a negative decision in a DTC hearing and proceeding.
Finally, the SEC confirmed that the DTC can still put a chill on an Issuer’s security, prior to giving notice and an opportunity to be heard to that Issuer, in an emergency situation, stating, “[H]owever, in such circumstances, these processes should balance the identifiable need for emergency action with the issuer’s right to fair procedures under the Exchange Act. Under such procedures, DTC would be authorized to act to avert imminent harm, but it could not maintain such a suspension indefinitely without providing expedited fair process to the affected issuer.”
Following International Power, DTC immediately began changing its procedures in dealing with Issuers, although it was a slow and evolving process. I have written on the immediate impact of International Power in the past and will not reiterate that information here.
In September 2013, the DTC published a white paper explaining the circumstances under which a Deposit Chill or Global Lock may be imposed, and procedures that the DTC has developed for issuers, including notice and opportunities to object. The DTC is proposing to adopt these new procedures in the “near future” by filing a rule change with the SEC.
DTC Rationale for Imposing Chills and Global Locks
The DTC considers itself a critical part of the U.S. securities industry infrastructure and therefore responsible for ensuring that no illegal, improperly unrestricted securities enter the marketplace. As such, DTC monitors enforcement actions, regulatory actions and pronouncements and red flags in the securities of DTC-eligible securities. A red flag includes unusually large deposits of thinly traded, low-priced securities.
Where the DTC detects suspicious unusually large deposits, they may and often do impose a Deposit Chill until, in the words of the DTC, “the issuer convincingly demonstrates that the securities are freely transferable.” Moreover, if the DTC determines that there is “definitive evidence” that restricted shares have been deposited, it will impose a Global Lock. According to the DTC, definitive evidence is established if the SEC or other regulatory agency has brought an enforcement action against any defendant that has deposited the Issuer’s securities into the DTC. The DTC may also impose a Global Lock where the Issuer fails to respond to or adequately resolve a Deposit Chill.
Historically, the DTC provides Issuers with a notice following the entry of a chill or lock and requests an opinion letter from an independent attorney in order to remove the chill. The opinion letter requires the independent attorney to review all documents associated with each issuance, even if prior opinion letters have been issued. Moreover, the opinion letter and request from the DTC not only cover the offending deposits or transactions, but all securities on deposit with DTC, and more recently, all issuances for the past five years. It is not a small task.
DTC Proposed Process for Issuers
The DTC has proposed rules such that Issuers will be notified in writing of chills and locks, have a set time frame in which to respond, and will have clear guidelines to be met to either prevent a chill or lock or remove same. DTC will agree to respond within a set time frame. Moreover, and importantly, the DTC will agree to keep communication open between the Issuer and its counsel, and the DTC and its counsel, throughout the process.
A. Deposit Chills.
Notification of Deposit Chill. Pursuant to its proposed rule, the DTC will notify an Issuer of a deposit chill by overnight courier no later than 20 business days prior to imposition of the Deposit Chill, or if the chill has already been imposed, no later than three business days after the chill has been imposed. The DTC will impose the chill prior to notice where “there is a threat of imminent harm or injury to DTC or the industry, including if circumstances suggest that advance notice might accelerate improper deposits.” The notice will require a legal opinion from independent counsel. It is not anticipated that the legal opinion requirements will be different than as in effect today. The DTC readily grants extensions to Issuers in providing responses.
DTC Review of Issuer Response. The DTC will respond in writing to the Issuer’s submission and legal opinion within twenty business days for pre-chill notices and within ten business days if the chill has already been imposed. An officer of the DTC who did not participate in the decision to impose the chill, together with outside counsel as appropriate, will decide whether the Issuer’s response is satisfactory. The DTC may request further or additional information.
Determination. If the response from the Issuer is sufficient, the chill will either not be imposed or will be lifted. If the Issuer does not respond in a timely manner (including after extensions) or such response is not sufficient, the chill will remain and a lock may be imposed. Prior to imposing a Global Lock, the DTC will give a type of appeal period. In particular, the DTC will give an Issuer ten days to provide a supplemental submittal supporting that either the original response was appropriate and adequate and/or that the DTC made a clerical error in its review. The proposed rules will set firm deadlines on both the Issuers and the DTC. Moreover, the new rules will give the DTC full discretion to lift or modify a chill at any time it deems in the best interest of the DTC and its participants.
B. Global Locks.
Notification of Global Lock. Pursuant to its proposed rule, DTC will notify an Issuer of a Global Lock by overnight courier no later than 20 business days prior to imposition of the Global Lock, or if the lock has already been imposed, no later than three business days after the lock has been imposed. The DTC will impose the lock prior to notice where there is a threat of imminent harm or injury to the DTC or the industry, including where the SEC has alleged that defendants are in possession of additional unregistered securities that could be deposited into the system. The notice will provide the reason for the lock and identify the regulatory or enforcement proceeding upon with the lock is based. The notice will give twenty days to respond with the ability to receive a twenty-day extension. The Issuer will have the opportunity to prove that the securities deposited at the DTC are not a part of the legal or enforcement proceeding or that the proceeding has been withdrawn, terminated, settled or otherwise resolved in favor of the defendant that deposited the securities at DTC.
To be very clear, a DTC Global Lock may be imposed if an action is brought against any shareholder that has deposited the Issuer’s securities into the DTC and the DTC reasonably believes that the action relates to the Issuer’s securities. The Issuer itself does not have to be a party to the enforcement or legal proceeding.
DTC Review of Issuer Response. The DTC will respond in writing to the Issuer’s submission and legal opinion within twenty business days for pre-lock notices and within ten business days if the lock has already been imposed. The DTC is cognizant of not providing an alternative forum for an Issuer to litigate enforcement proceedings. Accordingly, where there is a pending enforcement action, it is unlikely that a Global Lock will be lifted and the DTC’s review will be limited.
Determination. If the response from the Issuer is sufficient, the lock will either not be imposed or will be lifted.
Additional DTC Proposed Procedures for Removing Global Locks and Deposit Chills
The DTC recognizes that Locks are imposed after securities have already been issued and deposited into a shareholder’s account. Using Rule 144 as an analogy, securities become free trading (and thus eligible to be deposited into the DTC if they were not already eligible) after a holding period. The DTC’s proposed rules will include a provision whereby Global Locks can be lifted and removed after a holding period analogous to Rule 144. In particular, the DTC’s proposed rules will include the lifting of a Global Lock after the following periods have elapsed:
- For non-reporting Issuers – one year after the latest date on which the outstanding litigation or administrative proceeding has been resolved with respect to any defendant that deposited securities at the DTC.
- For reporting issuers – six months after the latest date on which the outstanding litigation or administrative proceeding has been resolved with respect to any such defendant.
- Where the Global Lock was imposed for a failure to respond or properly respond to a Deposit Chill issue – for non-reporting issuers – one year after the date the Global Lock was imposed;
- Where the Global Lock was imposed for a failure to respond or properly respond to a Deposit Chill issue – for reporting issuers – six months after the date the Global Lock was imposed.
The release of the Global Lock as set forth above would only be available to Issuers that are not and have never been a “shell company” as defined by Securities Act Rule 144(i), unless the Issuer had ceased to be a shell company and filed Form 10 type information.
The Author
Laura Anthony, Esq.
Founding Partner
Legal & Compliance, LLC
Corporate, Securities and Going Public Attorneys
LAnthony@LegalAndCompliance.com
Securities attorney Laura Anthony and her experienced legal team provides ongoing corporate counsel to small and mid-size private companies, OTC and exchange traded issuers as well as private companies going public on the NASDAQ, NYSE MKT or over-the-counter market, such as the OTCQB and OTCQX. For nearly two decades Legal & Compliance, LLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions as well as registration statements on Forms S-1, S-8 and S-4; compliance with the reporting requirements of the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; Regulation A/A+ offerings; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers, ; applications to and compliance with the corporate governance requirements of securities exchanges including NASDAQ and NYSE MKT; crowdfunding; corporate; and general contract and business transactions. Moreover, Ms. Anthony and her firm represents both target and acquiring companies in reverse mergers and forward mergers, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. Ms. Anthony’s legal team prepares the necessary documentation and assists in completing the requirements of federal and state securities laws and SROs such as FINRA and DTC for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the OTC Market’s top source for industry news, and the producer and host of LawCast.com, the securities law network. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Las Vegas, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.
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