DTC Eligibility and the OTC Issuer (Part 2)
This is the second in a series of articles regarding DTC (Depository Trust Company) eligibility for OTC (Over the Counter) Issuers. OTC Issuers include all companies whose securities trade on the over the counter market, including the OTCBB, OTCQB and Pink Sheets. All technical information in this blog comes from the DTC website.
DTC Requirements for Eligibility
As discussed in my first article on this topic, Issuers, a sponsoring DTC Participant Member must make application to become DTC eligible. The DTC Operational Arrangements criteria (available on the DTC website) set forth in-depth requirements for eligibility, which will be discussed in a separate articles in this series on DTC eligibility. In addition to the Operational Arrangements, in order to be DTC eligible, an Issuer’s securities must:
(i) be issued in a transaction registered with the SEC under the Securities Act of 1933, as amended (“Securities Act”);
(ii) be issued in a transaction exempt from registration under the Securities Act and
DTC Eligibility and the OTC Issuer
This is the first in a series of articles I am writing regarding DTC (Depository Trust Company) eligibility for OTC (Over the Counter) Issuers. OTC Issuers include all companies whose securities trade on the Over the Counter market, including the OTCBB, OTCQB and PinkSheets.
DTC eligibility has become a major concern for OTC Issuers in the past year. Obtaining and maintaining eligibility is of utmost importance for the smooth trading of an Issuer’s float in the secondary market. Moreover, DTC eligibility is a prerequisite for OTC Issuers’ shareholders to deposit securities with their brokers and have such securities be placed in street name. Most Issuers and many legal practitioners do not know or understand the eligibility requirements or procedures.
The DTC Application Process
First and foremost, like a Form 211 submittal to FINRA, an Issuer cannot make direct application to DTC for eligibility. An application must be submitted and sponsored by a DTC Participant. A current list of DTC Participants
Convertible Promissory Notes; Flexible Financing Options
I have explored the topic of promissory notes in previous articles. This analysis shall specifically concentrate on convertible promissory notes.
As a reminder, a promissory note is a written promise by a person, persons or entity to pay a specific amount of money (called “principal”) to another, usually to include a specified amount of interest on the unpaid principal amount. In addition, a promissory note will include the basic specifics of the debt, including the debtor and creditor, when payment or payments are due, interest rates, if the debt is secured, and whether the debt may be converted into stock or other equity. A promissory note that may be converted is often referred to as either a debenture or a convertible promissory note.
Notes Can Be Sold or Assigned
Unless specifically prohibited in the language of the note, a promissory note is assignable by the lender. That is, the lender can sell or assign the note to a third party
An Introduction to Promissory Notes
A promissory note is a written promise by a person, persons or entity to pay a specific amount of money (called “principal”) to another, usually to include a specified amount of interest on the unpaid principal amount. In addition, a promissory note will include the basic specifics of the debt, including full names of both debtor and creditor and an address for making payments. The specified time of payment may be written as: a) whenever there is a demand, b) on a specific date, c) in installments with or without the interest included in each installment, d) installments with a final larger amount (balloon payment). In the event that the written note does not include language specifying the time of payment, the law assumes it is payable on demand by the creditor.
Terms of Payment
A promissory note may contain other terms such as the right of the promisee to order payment be made to another person, security or collateral,
S-8 Stock, Use and Misuse
A Form S-8 registration statement is popular with small business issuers as it becomes effective immediately upon filing and allows for incorporation by reference, both of which benefits are not always available to smaller public companies. A Form S-8 registration statement can be used by Issuers to register securities to be offered to employees and certain consultants under certain employee benefit plans.
To qualify to use an S-8 registration statement the Issuer must: (i) be subject to the reporting requirements of the Securities Exchange Act of 1934, as amended; (ii) have filed all reports required to be filed during the preceding 12 months, or such shorter period of time that the Issuer has been subject to the reporting requirements; (iii) is not a shell company and has not been a shell company for at least 60 calendar days previously; and (iv) if it has been a shell company at any time previously, has filed current Form 10 information with the
SEC Approves BX Venture Market
The SEC has recently approved the NASDAQ OMX Group, Inc.’s application to form the BX Venture Market (“BX Market”) as an alternative quotation medium to the OTCBB and OTC Markets, Inc. (including PinkSheets, OTCQB and OTCQX). The new BX Market will provide companies that do not otherwise qualify for an exchange listing, an opportunity to list their shares. The BX Market will compete with the OTCBB and the OTC Markets OTCQB and OTCQX (interestingly and as an aside, NASDAQ sold the OTCBB last year to a private buyer). The SEC has issued an in-depth order approving the application.
The OTCBB, OTCQB and OTCQX Alternative
The BX Market is marketing itself as a more transparent, better regulated, listing alternative to both the OTCBB and OTCQB and OTCQX. Presumably this means that companies trading on the BX Market would appear to have greater credibility than those on the OTCBB or OTCQB/QX. The BX Market will be run through joint ventures with NASDAQ
Filing Deadlines for Exchange Act Quarterly and Annual Reports
It should be noted that this article focuses specifically on non-accelerated filers.
Companies subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are required to file quarterly reports on Form 10-Q and annual reports on Form 10-K. In additional articles, I will discuss in depth the contents and specific disclosure requirements of both forms. However, in summary, the quarterly report on 10-Q contains unaudited reviewed quarterly financial statements together with management discussion and analysis of those statements.
Form 10-K
The annual report on Form 10-K contains audited annual financial statements, together with management discussion and analysis of those statements as well as other disclosures including but not limited to management bios, management compensation, unregistered issuances of stock, generally background on the registrant, internal control reports, litigation matters and more.
Quarterly reports on form 10-Q are due 45 days from the end of the quarter and annual reports on Form 10-K are due
Mergers and Acquisitions – The Acquisition Agreement
Simply stated, the acquisition agreement sets forth the financial terms of the transaction and legal rights and obligations of the parties with respect to the transaction. It provides the buyer with a detailed description of the business being purchased and provides for rights and remedies in the event this description proves to be materially inaccurate. The agreement spells out closing procedures, pre-conditions to closing and post-closing obligations. The agreement provides for representations and warranties and the rights and remedies if these representations and warranties are inaccurate.
The main components of the acquisition agreement and a brief description of each are as follows:
Representations and Warranties
Representations and warranties generally provide the buyer and seller with a snapshot of facts as of the closing date. In respect to the seller, facts are generally related to the business itself, such as that the seller has title to the assets, there are no undisclosed liabilities, there is no pending litigation or adversarial situation
Public Company Compliance – Selecting An Auditor
The Sarbanes Oxley Act of 2002 (SOX) created the PCAOB, which is the Public Company Accounting Oversight Board. All public company auditors must be PCAOB licensed and qualified. Prior to the enactment of SOX, the profession was self regulated and any CPA could audit a public company. On its website, the PCAOB describes itself as “[T]he PCAOB is a nonprofit corporation established by Congress to oversee the audits of public companies in order to protect investors and the public interest by promoting informative, accurate, and independent audit reports. The PCAOB also oversees the audits of broker-dealers, including compliance reports filed pursuant to federal securities laws, to promote investor protection.”
Not All PCAOB Auditors are Created Equal
Licensing and membership with the PCAOB has stringent requirements. In fact, shortly after the enactment of SOX the number of accounting firms that provide public company services declined dramatically. Being held to a higher standard isn’t for everyone. However, as time has passed, even
Merger and Acquisitions – Board of Director Obligations, Part 4
This article continues my series on obligations (and rights and responsibilities) of the board of directors during a merger and acquisition transaction. The last in the series discussed a director’s duty of loyalty. This blog continues that discussion, focusing on the duty in particular fact circumstances.
Balancing Common and Preferred Shares
A common question I am asked by directors is how to balance the interest of two competing classes of stock (such as common and preferred). In such a case, the entire fairness standard of reviewing a corporate transaction (discussed in last blog) will not automatically be invoked, but first the court will utilize the business judgment rule. Accordingly, a director who is not conflicted and who otherwise takes all measures required (in-depth involvement in the process, review of all documents, advice of outside professionals, seeking highest price for all classes of stock) will be protected from liability.
Directors’ Financial Motivation
Delaware courts have emphasized that involvement by disinterested, independent
