N.Y. Comp. Codes R. & Regs. tit. 13 § 12.5

Current through Register Vol. 46, No. 43, October 23, 2024

Section 12.5 - Registration statement

The registration statement required to be filed pursuant to section 1602 shall:

(a) be in bound booklet form;

(b) have a cover page listing the name of the offeror and the target company;

(c) be in easily readable print; and

(d) contain all the information set forth below:

(1) Item 1-identity and background.

State the following with respect to the person(s) filing this statement:

(i) Name.

(ii) Residence address.

(iii) Present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is carried on.

(iv) Material occupations, positions, offices or employments during the last five years, giving the starting and ending dates of each and the name, principal business and address of any business, corporation or other organization in which such occupation, position, office or employment was carried on.

(v) Whether or not, during the last five years, such person(s) has been convicted of any crime (excluding traffic violations) and, if so, give the date, nature of conviction, name and location of court, and penalty imposed, or other disposition of the case. A negative answer to this subparagraph need not be furnished.

(vi) Whether or not, during the last five years, such person(s) has been suspended or expelled from membership in any securities exchange or association of securities dealers or investment advisors; has had a license or registration as a securities dealer, broker, investment advisor or salesperson denied, suspended or revoked; or has been enjoined or restrained by a court or government agency from the issuance, sale or offer for sale of securities, from rendering securities advice or from continuing any practice in connection with securities. A negative answer to any of these subparagraphs need not be furnished.

(2) Item 2-equity security and target company.

(i) State the name of the target company and its principal place of business.

(i) State the exact title and the number of shares outstanding of the class of equity securities being sought, the number of such securities being sought and the consideration being offered therefor.

(3) Item 3-source and amount of funds or other consideration.

State the source and amount of funds or other consideration used or to be used in acquiring any equity security, including a description of any securities, other than the existing capital stock or long-term debt of the offeror, which are being offered in exchange for the equity securities of the target company. If any part of the acquisition price is or will be represented by borrowed funds or other consideration, include a description of the transaction and the names of the parties thereto. Attach copies of all loan or credit agreements and letters of commitment used or to be used to secure financing for the acquisition of any equity security of the target company. In any case where two or more agreements or letters required to be attached are substantially identical in all material respects except as to the parties thereto, dates of execution or other details, only one of such agreements or letters need be attached if accompanied by a schedule identifying the other agreements or letters omitted and setting forth the material details in which such agreements or letters differ from the copy filed. The bureau may at any time within its discretion require the filing of any document so omitted. Copies, rather than originals, of each agreement or letter need be attached except as otherwise specifically noted. Schedules, exhibits or other attachments to any such agreement or letter need not be attached unless such schedules, exhibits or other attachments contain information which is material to any investment decision and which is not otherwise disclosed in the agreement, letter or registration statement. The agreement or letter attached shall contain a list briefly identifying the contents of all omitted schedules, exhibits or other attachments. The bureau may at any time within its discretion require the filing of such omitted schedules, exhibits or other attachments.

(4) Item 4-plans or proposals of offeror. State any plans or proposals which the offeror, upon gaining control, may have to:

(i) liquidate the target company;

(ii) sell at least 15 percent of the assets of the target company;

(iii) effect a merger or consolidation of the target company; or

(iv) make any other major change in the business, corporate structure, management personnel, or policies of employment of the target company.

(5) Item 5-interest in securities of target company.

(i) State the number of shares of any equity security of the target company owned, beneficially or of record, and the number of shares concerning which there is a right to acquire, directly or indirectly, by:

(a) such offeror(s);

(b) each affiliate and/or associates of such offeror; and

(c) any director, executive officer, or subsidiary of such offeror if the person is a corporation giving the name and address of each person.

(ii) Describe any transactions in the class of securities to which this statement relates which were effected during the past 60 days by each person named in response to subparagraph (i) of this paragraph.

(6) Item 6-contracts, arrangements, understandings or relationships with respect to the target company's securities.

(i) Furnish material information regarding any contracts, arrangements, or understandings or relationships to which an offeror is a party with respect to any equity security of the target company concerning, but not limited to:

(a) transfer or voting of any such security;

(b) joint ventures;

(c) loan or option arrangements;

(d) puts and calls;

(e) guarantees of loans;

(f) guarantees against loss;

(g) guarantees of profits;

(h) division of losses or profits;

(i) the giving or withholding of proxies; or

(j) voting trusts naming the persons with whom such contracts, arrangements, understandings or relationships have been entered into and giving the details thereof.

(7) Item 7-Information required to be filed pursuant to sections 1603(a)(2) and 1603(a)(8).

(i) Identity and background.

(a) If the registration statement required to be filed pursuant to section 1602 is filed by a partnership, limited partnership, syndicate or other group which is an offeror within the meaning of section 1601(b), the identity and background information called for in paragraph (1) of this subdivision shall be given with respect to (1) each partner of a general partnership, (2) each partner who is denominated a general partner of a limited partnership or who functions as a general partner of a limited partnership, (3) each member of any syndicate or other group, and (4) each person controlling such partner or member.

(b) If the registration statement required to be filed pursuant to section 1602 is filed by a corporation which is an offeror within the meaning of section 1601(b), the identity and background information called for in paragraph (1) of this subdivision shall be given with respect to (1) each director, executive officer and controlling person of such corporation, and (2) each director and executive officer of any corporation ultimately in control of such corporation. Executive officer shall mean the president, secretary, treasurer and vice president in charge of a principal business function (such as sales, administration or finance) and any other person who performs similar policymaking functions for the corporation.

(ii) Organization and operations of offeror.

(a) If the offeror is an individual, the information required to be filed under section 1603(a)(8), in addition to the information required to be filed under paragraph (1) of this subdivision, shall include:

(1) Financial statements for the current period and for the three most recent annual accounting periods, as prescribed by section 12.4 of this Part.

(2) A brief description of any pending legal or administrative proceeding, other than routine and immaterial litigation, to which the offeror, or any of its subsidiaries, is a party or of which any of their property is the subject.

(3) To the extent not otherwise provided, a brief description of the business done and projected by the offeror and its subsidiaries and the general development of such business over the past five years.

(b) If the offeror is a partnership, limited partnership, syndicate, corporation, or other group, the information required to be filed under section 1603(a)(8) shall include:

(1) The year, form and jurisdiction of its organization.

(2) In the case of a corporation, a description of each class of the offeror's capital stock and of its long-term indebtedness.

(3) Financial statements for the current period and for the three most recent annual accounting periods, as prescribed by section 12.4 of this Part.

(4) A brief description of any pending legal or administrative proceedings, other than routine and immaterial litigation, to which the offeror, or any of its subsidiaries, is a party or of which any of their property is the subject.

(5) To the extent not otherwise provided, a brief description of the business done and projected by the offeror and its subsidiaries and the general development of such business over the past five years.

(6) The names of all directors and executive officers together with biographical summaries for the preceding three years.

(8) Item 8-potential impact statement. State the potential impact, if any, of the offeror's plans or proposals on the residents of New York, including:

(i) any material change in the location of the target company's offices or business activities in New York;

(ii) the relocation or closing of any plant or facility in New York;

(iii) any significant reduction in the workforce at an individual plant or facility in New York;

(iv) any other material change in the number, job classification, compensation, or other terms and conditions of employment of persons employed by the target company in New York;

(v) any material change in the relationship of the target company with suppliers or customers in New York; and

(vi) any other material change in the target company's business, corporate structure, management, personnel or activities which would have a substantial impact on residents of New York.

(9) Item 9-particulars relating to offeror.

State the following information with respect to each offeror in reasonable detail or refer to and annex relevant portions of the offeror's annual report for the most recent period filed with the Securities and Exchange Commission, and any subsequent changes thereto:

(i) particulars as to any existing pension plans, profit-sharing plans, savings plans, educational opportunities and relocation adjustments;

(ii) labor relations records for the five years prior to the commencement of the takeover bid, including violations of the Federal National Labor Relations Act, Occupational Safety and Health Act of 1970, Fair Labor Standards Act, or employee Retirement and Income Security Act, as amended, finally adjudicated or settled within five years of the commencement of the takeover bid;

(iii) earnings and dividend growth for the three years prior to the commencement of the takeover bid; and

(iv) community activities and charitable, cultural, educational and civil contributions for the three years prior to the commencement of the takeover bid.

(10) Item 10-debt security and preferred stock rating.

State the investment rating, if any, given by a generally recognized rating service, for any debt securities or preferred stock either offered or used as a source of funds in making the takeover bid.

(11) Item 11-public hearing.

Set forth the name of the person and address to whom the Attorney General shall give notice of public hearings held pursuant to section 1612.

(12) Item 12-copies of relevant materials.

Attach copies of all prospectuses, offers to purchase, brochures, circulars, letters or other matter which the offeror has sent to offerees or by means of which the offeror proposes to disclose to offerees all material information set forth in the registration statement. Attach a copy of the takeover bid which includes all material terms thereof and is in the form published or sent or delivered to equity security holders of the target company.

(13) Item 13-signatures to registration statement.

The signature of the person filing the registration statement shall be executed and notarized as follows:

Signatures

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N.Y. Comp. Codes R. & Regs. Tit. 13 § 12.5

Amended New York State Register July 3, 2018/Volume XL, Issue 27, eff. 7/3/2018