This is a reminder to investors who beneficially own more than 5% of the voting equity securities of an SEC-registered issuer that you may be required to file a report with the SEC by February 14, 2008.1 This annual reporting deadline applies in certain circumstances to U.S.-regulated institutional investors, passive investors and other categories of investors described below. The filing is made on Schedule 13G, which is a short form requiring fairly limited disclosure about the investment. The rules apply to investments in any SEC-reporting issuer, including foreign private issuers and MJDS issuers.
General Rule: File Schedule 13D or 13G Within 10 Days Post-Acquisition
Investors must generally file a beneficial ownership report within 10 days of an acquisition of securities that crosses the 5% threshold. Unless an exemption is available, the initial report must be filed on Schedule 13D, which, unlike the short form 13G, requires extensive disclosure, including a detailed description of the facts and circumstances surrounding the acquisition, the source of funds and the investor’s plans regarding control of the company.
Year-End Rule: File Schedule 13G by February 14, 2008
Investors with a passive investment intent who own less than 20% are permitted to make their initial filing on Schedule 13G instead of the more onerous Schedule 13D. Following the initial filing, prompt amendments are required during the year if the investor’s ownership exceeds certain percentages. If there are any other changes in previously reported information, an amendment is required within 45 days of year-end – that is, by February 14, 2008.
U.S.-Regulated Institutional Investors
U.S.-regulated institutional investors, including broker-dealers, banks and insurance companies, that cross the 5% threshold by acquiring securities in the ordinary course of business, without the intention or effect of influencing control of the issuer, are generally exempt from the initial reporting requirement. Instead, these investors must file Schedule 13G within 45 days of year-end. Once an investor has a Schedule 13G on file with the SEC, prompt amendments are required during the year if the investor’s ownership exceeds certain percentages. If there are any other changes in previously reported information, an amendment is required within 45 days of year-end.
Multiple Small Acquisitions
Investors whose ownership crosses the 5% threshold by virtue of multiple small acquisitions aggregating less than 2% in any 12-month period must file Schedule 13G, and amendments to reflect any changes, within 45 days of year-end.
Other Schedule 13D Exemptions
Any investor outside the above categories who was exempt from the initial reporting requirement but who was a 5% beneficial owner on December 31, 2007 must file Schedule 13G by February 14, 2008. Typically, this would occur when the investor already owned more than 5% at the time the issuer became an SEC registrant.