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it is essential that the authorized representative be a person having a reasonable degree of responsibility. In the past, efforts have been made to meet the requirement that the registration statement be signed by an authorized representative in the United States by organizing a dummy corporation solely for that purpose. Other devices may similarly be used to evade the intent and purpose of the requirement. The proposed new Rule 402A would require that where the registrant is a foreign person other than a foreign government, the authorized representative in the United States shall meet certain qualifications designed to insure that there will be in this country a person against whom investors may have recourse in appropriate cases.
The proposed new Rule 440 would require that where the registrant, any of its directors or officers, any selling security holder or any underwriter is a non resident (other than a foreign government or a political subdivision thereof), it shall furnish to the Commission a consent and power of attorney authorizing the Commission to accept service of process in connection with civil actions arising out of the offering or sale of the registered securities. The purpose of this rule is to make it easier for purchasers of the registered securities to obtain service of process upon foreign issuers and their insiders in connection with civil actions instituted in the courts in this country.
The proposed rules were still under consideration at the close of the year. Adoption of Revised Form S 8
During the fiscal year the Commission adopted certain amendments to Form S-8 which is the form authorized for use in registering securities under the Securities Act to be offered pursuant to certain stock purchase, savings or similar plans, and for registering the interests in such plans where such registration is required. In addition to certain changes designed to simplify and clarify the form in certain respects, Form S-8 was amplified to permit use of the form for securities other than "equity" securities and for securities to be offered pursuant to restricted stock options.
THE SECURITIES EXCHANGE ACT OF 1934 Proposed Amendments to Rule 3a12–3
Rule 3a12–3 exempts the securities of certain foreign issuers from the operation of Sections 14(a) and 16 of the Securities Exchange Act. During the fiscal year, the Commission announced that it has under consideration certain proposed amendments to Rule 3a12–3
6 Securities Act Release No. 4533 (August 30, 1962). See 28th Annual Report, p. 12.
and invited public comments. The rule, as amended, would provide that no exemption is available for voting trust certificates where the voting trustee is or, if there is more than one, at least one-half of the voting trustees are citizens or residents of the United States, or if any person or persons controlling such voting trustee or trustees are citizens or residents of the United States.
A further amendment of the rule would take out of the exemption from Sections 14(a) and 16 of the Act certain issuers organized in a foreign country. These would include (ë) companies which have their principal executive offices in the United States and which have a substantial portion of their assets in, or derive a substantial portion of their gross revenues from sources in, the United States; (ii) companies which have the major portion of their assets in, or derive the major portion of their gross revenues from sources in, the United States; (iii) companies the majority of whose directors are citizens or residents of the United States; and (iv) companies more than 50 percent of whose voting securities are owned by residents of the United States.
This matter was pending at the end of the fiscal year. Adoption of Rule 10b-9
There have been instances where persons distributing securities have represented that such securities were being offered on an "all-or-none" basis when, because of ambiguities in the contractual arrangement, it was not clear whether the conditions for a completed offering would be met if persons were found who agreed to purchase all of the securities within the specified time, but the underwriter did not succeed in collecting the purchase price for all of the securities. Rule 10b-9 was adopted to deal with this type of situation. The rule makes it a "manipulative or deceptive device or contrivance," as used in Section 10(b) of the Act, for any person, in connection with the offer or sale of a security, to make any representation to the effect that the security is being offered or sold on an “all-or-none" basis unless the security is part of an offering being made on the condition that all or a specified amount of the purchase price will be promptly refunded to the purchaser if all of the securities being offered are not sold at a specified price within a specified time and the total amount due to the seller is not received by him by a specified date. The rule would also prohibit a representation to the effect that the security is being offered or sold on any other basis under which all or part of the amount paid will be refunded to the purchaser if all or part of the securities are not sold, unless the security is part of an offering being made on the condition
& Securities Exchange Act Release No. 6912 (October 11, 1962); Securities Exchange Act Release No. 6930 (November 5, 1962).
that all or a specified part of the amount paid will be promptly refunded if a specified number of units are not sold at a specified price within a specified time and the total amount due to the seller is not received by him by a specified date.? Proposed Rule 106-10
During the fiscal year, the Commission invited public comments on a proposed rule relating to representations concerning the sale or redemption of certain securities. The proposed rule, to be designated Rule 106–10, would provide that it shall constitute a manipulative or deceptive device or contrivance within the meaning of Section 10(b) of the Act for any person, in connection with the offering or sale of any equity security, to make any representation to the effect that (1) the offering price of such security is based upon and varies with the current value of its proportionate share of the assets of the issuer, or (2) such security is or will be redeemable at the option of the holder at a price which is based upon and varies with the current value of such proportionate share, unless substantially all of the assets of the issuer consist of cash, cash items and securities (other than mortgages and other liens on and interests in real estate) for which market quotations are readily available and which are readily marketable.
This matter has become of particular interest in connection with proposals by certain real estate investment companies to offer redeemable securities. However, the proposed rule as drafted would apply to any company seeking to offer securities in the manner or of the character described in the rule. One purpose of the rule is to prohibit the offering of securities on the basis of the value of their proportionate share of the assets of the company in cases where the nature of the company's assets is such that it is impossible to determine their value with sufficient precision to compute the offering price of the securities on that basis. The rule would also prohibit the offering of securities of a company as “redeemable” securities when the assets of the company are such that their value cannot be precisely determined for the purpose of redemption and are not sufficiently liquid to make possible their conversion into cash for the purpose of redeeming the securities.
A number of comments were received in regard to the proposed rule and the rule was being considered in the light of such comments at the end of the fiscal year. Proposed Amendments to Rules 13a-15 and 150–15 and Form 7-K
Rules 13a-15 and 15d-15 require certain real estate companies to file with the Commission pursuant to Sections 13 and 15(d) of the Securities Exchange Act quarterly reports with respect to distribu
? Securities Exchange Act Release No. 6905 (October 3, 1962). * Securities Exchange Act Release No. 6874 (August 13, 1962).
tions to shareholders. Form 7-K is the form prescribed for such reports. At the time of adoption of these rules and form, the Commission announced that it would consider all views and comments submitted with respect thereto by interested persons and would make such changes, if any, as it might deem necessary or appropriate in the light of such views and comments. Accordingly, after consideration of a number of comments submitted by interested persons, the Commission, during the fiscal year, invited public comments on certain proposed amendments to Rules 13a-15 and 15d-15 and Form 7-K.10
The rules as proposed to be amended would require the filing of quarterly reports on Form 7-K by real estate investment trusts and by real estate companies which as a matter of policy or practice make distributions to shareholders from sources other than current or retained earnings. Other real estate companies would be required to file reports with respect to quarters in which a distribution is made from a source other than current or retained earnings. It is proposed to amend Form 7-K to eliminate the two-column reporting now required and to clarify the language of the items of the form so as to simplify the preparation and filing of the required reports.
This matter was pending at the close of the fiscal year.
During the fiscal year, the Commission adopted regulations governing the filing of annual reports, pursuant to Section 15(d) of the Securities Exchange Act of 1934, relating to employee stock purchase, savings and similar plans.
A new Form 11-K was adopted for use in filing annual reports with respect to such plans. A new Rule 150-21 provides that separate annual and other reports need not be filed with respect to any plan if the issuer of the stock or other securities offered to employees through the plan files annual reports on Form 10-K or U5S and as a part of such reports furnishes the information, financial statements and exhibits required by Form 11-K and if it furnishes to the Commission copies of any annual report submitted to employees in regard to the plan. A new general instruction was added to Form 10-K which specifies the procedure to be followed where an issuer elects to file information and documents pursuant to Rule 15d-21.11 Proposed Rule 16b-9
Section 16(b) of the Securities Exchange Act provides for the recovery, by or on behalf of the issuer of equity securities registered on a national securities exchange, of short term trading profits realized by
Securities Exchange Act Release No. 6820 (June 12, 1962). 10 Securities Exchange Act Release No. 7077 (May 16, 1963). 11 Securities Exchange Act Release No. 6857 (July 23, 1962).
directors, officers and principal security holders of the issuer. The Commission is authorized to exempt from Section 16(b) transactions not comprehended within the purpose of that Section. During the fiscal year, the Commission invited public comments on a proposed new Rule 16b-9 which would exempt from the operation of Section 16 (b) certain acquisitions of shares of stock in exchange for similar shares of stock of the same issuer.12
The proposed rule would exempt any acquisition of shares of stock of an issuer in exchange for an equal number of shares of another class of stock of the same issuer pursuant to a right of conversion under the terms of the issuer's certificate of incorporation, for the purpose or in contemplation of a public sale which in fact occurs. The exemption would be available only if the shares surrendered and those acquired in exchange therefor evidence the same rights and privileges except that the shares surrendered may, in the discretion of the board of directors, receive a lesser cash dividend than the shares for which they are exchanged. The exemption would be further conditioned upon there being no other acquisitions of securities of either class within 6 months before or after the exempted transaction. The exemption would apply to any such acquisition occurring either before or after the effective date of the rule, except that it would not affect judgments rendered prior to the effective date.13 Proposed Amendments to Form 8-K
Form 8-K is the form prescribed for current reports filed pursuant to Sections 13 and 15(d) of the Securities Exchange Act. During the 1962 fiscal year, the Commission announced that it had under consideration certain proposed amendments to the form and invited public comments. The amendments are designed to require prompt reporting of material changes affecting a company or its affairs when it appears that they are of such importance that reporting should not be deferred to the end of the company's fiscal year. The amendments relate to matters such as the pledging of securities of the issuer or its affiliates under such circumstances that a default will result in a change in control of the issuer, changes in the board of directors otherwise than by stockholder action, the acquisition or disposition of significant amounts of assets otherwise than in the ordinary course of business, interests of management and others in certain transactions, and the issuance of debt securities by subsidiaries. This matter was still under consideration at the close of the year.
12 Securities Exchange Act Release No. 7058 (April 11, 1963).
13 The proposed rule was adopted shortly after the end of the fiscal year. Exchange Act Release No. 7118 (August 19, 1963). 14 Securities Exchange Act Release No. 6770 (April 5, 1962).