On February 11th, the SEC released a group of Compliance and Disclosure Interpretations (C&DIs), which comprises the Division's interpretations of Exchange Act Sections 13(d) and 13(g), Regulation 13D-G beneficial ownership reporting and related filing of Schedules 13D and 13G. These C&DIs replace the “Regulations 13D and 13G and Schedules Thereunder” interpretations in the July 1997 Manual of Publicly Available Telephone Interpretations. The staff’s release now includes one new and one revised question with answers that were released on February 11th.
Section 103. Rule 13d-1 — Filing of Schedules 13D and 13G
Revised Question:
- Question 103.11: The Hart-Scott-Rodino (“HSR”) Act provides an exemption from the HSR Act’s notification and waiting period provisions if, among other things, the acquisition of securities was made “solely for the purpose of investment,” with the acquiror having “no intention of participating in the formulation, determination, or direction of the basic business decisions of the issuer.” 15 U.S.C. 18a(c)(9); 16 C.F.R. 801.1(i)(1). Does the fact that a shareholder is disqualified from relying on this HSR Act exemption due to its efforts to influence management of the issuer on a particular topic, by itself, disqualify the shareholder from initially reporting, or continuing to report, beneficial ownership on Schedule 13G? (Click here to see the previous version of the question)
New Question:
- Question 103.12: Shareholders filing a Schedule 13G in reliance on Rule 13d-1(b) or Rule 13d-1(c) must certify that the subject securities were not acquired and are not held “for the purpose of or with the effect of changing or influencing the control of the issuer.” Under what circumstances would a shareholder’s engagement with an issuer’s management on a particular topic cause the shareholder to hold the subject securities with a disqualifying “purpose or effect of changing or influencing control of the issuer” and, pursuant to Rule 13d-1(e), lose its eligibility to report on Schedule 13G?
Filers may read the complete set of CD&Is here.
Sources:
Compliance and Disclosure Interpretations: Regulation 13D-G (sec.gov)
Exchange Act Sections 13(d) and 13(g) and Regulation 13D-G Beneficial Ownership Reporting (sec.gov)
