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1.. When does AnimatEASE Corp. have to
register under the Exchange Act and why? What does it register under the
Exchange Act? What form does it file for this purpose? 2.. What periodic reports should AminatEase. file with the SEC? When should each such report be filed? 3.. Describe each such report briefly. 4. Assume for the purpose of this question only that the securities of AnimatEASE Corp. were not listed on the Nasdaq Stock Market. A substantial part of the shares purchased in the public offering are being held in Street Name. Although the number of record holders fluctuates, to date it has not exceeded 450 shareholders. a. Does AnimatEASE Corp. have to register under the Exchange Act? b. When must it register? c..Does it have to file a Form 10-K and Form 10-Q? d. Does it have to send an annual report to shareholders? In what other respects, would AnimatEASE Corp. and its officers and directors be subject to different requirements under the Exchange Act? 5. Assume that AnimateEase has completed its registered offering, its stock is listed on the Nasdaq Stock Market, it has a public float of $70 million, what reports must if file under the Exchange Act, and when must each such report be filed. 6, What financial statements must be included in the Form 10-K. See Form 10-K, Item 8; Article 3 of Regulation S-X .See also Part 11. 7. To what extent does a form a 10-K include information that we have described as BIP (MD&A etc.) information that also has to be included in a registration statement. In depth information (business, legal, property). Standard registration items. See Part 12 Background. 8. Describe in general terms, what information has to be reported on a Form 8–K and when does each Form 8-K have to be filed. See Part 12 Background. 9. AnimateEase completed its public offering in May of 200X and has a calendar year fiscal year. It is now November of 200X and it has filed on reports that were required to file under the Exchange offering. It wants to do a follow-on offering to raise $10 million by selling common stock as the market appears receptive and Silicon Securities is eager to underwrite such offering. It would like to incorporate by reference from its ’34 Act reports to the extent allowed. Can it file a Form S-1 and incorporate by reference its ’34 Act reports? Explain. If not, when will I be able to file a Form S-1 and incorporate by reference from its ’34 Act reports. See Form S-1 (as amended by SOR), General Instruction VII. 10. Assume same facts, can the offering be done on Form S-3? It is now November 200X+1, can it do the offering on Form S-3?. SeeForm S‑3, General Instruction I.B.1.See also General Instruction I.B.6. in Release 33-8878 effective January 28, 2008. We discuss this in greater length in Part 16. 11. Assume instead of doing a follow-on offerings insiders are pressing the company to file a registration statement covering the resale of shares acquired by them in exempt transactions before the public offering. Assume the company’s IPO became effective in August of 200X and it is now May of 200X+1 and the company’s fiscal year is a calendar year. The company is interested in minimizing the cost of registration since it will receive none of the proceeds. Can it file a Form S-1 (see General Instruction VII) and incorporate its ’34 Act reports? Can it file a Form S-3 covering the secondary offering? When could it file a Form S-3 covering the secondary offering? See Form S‑3 General Instruction I.B.3? Why would you advise the company to wait until it could use a Form S-3 to cover the offering? Compare Item 12 of Form S-1 as amended by SOR and Item 12 of Form S‑3. If the company is not listed on the Nasdaq Stock Market or on a national securities exchange but is traded on the OTC Bulletin Board (recall PART 3, Listing Decision) can it register the offering on Form S-3? On Form S-1 and incorporate by reference its Exchange Act reports? Same facts, except the company is in default in payment of an installment payment due on outstanding notes. Can it register the offering on Form S‑3? See General Instruction I.A.5. On Form S-1, General Instruction VII. Same question, except company filed its Form 10-Q for the first quarter 30 days late. 12. Assuming the company meets the qualifications to register on Form S-1. What must it include in the registration statement/prospectus that it cannot incorporate by reference from its '34 Act reports? Same question if it meets the qualifications to register on Form S-3 as amended? See Item 12. (d). 13. Assuming the company meets the qualifications to register on Form S-1 or S-3, For what periods of time should selected financial data called for by Item 301 of Regulation S-K be included in the prospectus and how should it be presented? Can it be incorporated by reference into the Securities Act registration statement from the Form 10-K? See OPLINK Form 10-K and use Table of Contents to go to Item 6. What items do the Form 10-K and Form S-1/S-3 have in COMMON.? 14. Discuss Management's Discussion and Analysis of the company's financial condition and operations. See Item 303 of Regulation S-K. See OPLINK Form 10-K and use Table of Contents to go to Item 7. Assuming the company meets the qualifications to register on Form S-1 or S-3, To what extent can it be incorporated by reference from the annual report to shareholders into the Form 10-K and into the Securities Act registration statement? . 15. Google's $4 billion follow on offering was filed on Form S-3 and it clearly is a General Instruction I.B.1 Form S-3 registrant. Review the Table of Contents to its Form S-3'424B Prospectus. To what extent did it rely on incorporation of '34 Act reports to furnish information it was permitted to incorporate by reference from its '34 Act reports under the pre-SOR Form S-3 and to what extent did it include information that it could have incorporated by reference? What additional information could it incorporate by reference under the SOR Form S-3. 16. By way of review, how do the qualifications to use Form S‑3 for specific type of offerings determine whether or not it is necessary to accompany a free writing prospectus with a copy of the subject to completion preliminary prospectus. See Rule 433(b). |