Rule 10A-1 under the Securities Exchange Act of 1934

Securities and Exchange Commission

§ 240.10A–1
dress of the independent accountant’s
principal office);
(ii) Shall state the date that the
issuer received from the independent
accountant the report specified in section 10A(b)(2) of the Act, 15 U.S.C. 78j–
1(b)(2);
(iii) Shall provide, at the election of
the issuer, either:
(A) A summary of the independent
accountant’s report, including a description of the act that the independent accountant has identified as a
likely illegal act and the possible effect
of that act on all affected financial
statements of the issuer or those related to the most current three-year
period, whichever is shorter; or
(B) A copy of the independent accountant’s report; and
(iv) May provide additional information regarding the issuer’s views of and
response to the independent accountant’s report.
(3) Reports of the independent accountant submitted by the issuer to
the Commission’s Office of the Chief
Accountant in accordance with paragraph (a)(2)(iii)(B) of this section shall
be deemed to have been made pursuant
to section 10A(b)(3) or section 10A(b)(4)
of the Act, 15 U.S.C. 78j–1(b)(3) or 78j–
1(b)(4), for purposes of the safe harbor
provided by section 10A(c) of the Act,
15 U.S.C. 78j–1(c).
(4) Submission of the notice in paragraphs (a)(1) and (a)(2) of this section
shall not relieve the issuer from its obligations to comply fully with all other
reporting
requirements,
including,
without limitation:
(i) The filing requirements of Form 8–
K, § 249.308 of this chapter, and Form NSAR, § 274.101 of this chapter, regarding
a change in the issuer’s certifying accountant and
(ii) The disclosure requirements of
Item 304 of Regulation S–K, § 229.304 of
this chapter.
(b)(1) Any independent accountant
furnishing to the Commission a copy of
a report (or the documentation of any
oral report) in accordance with section
10A(b)(3) or section 10A(b)(4) of the Act,
15 U.S.C. 78j–1(b)(3) or 78j–1(b)(4), shall
submit that report (or documentation)
to the Commission’s Office of the Chief
Accountant within the time period prescribed by the appropriate section of

§ 240.10b–21 Deception in connection
with a seller’s ability or intent to
deliver securities on the date delivery is due.
PRELIMINARY NOTE TO § 240.10B–21: This rule
is not intended to limit, or restrict, the applicability of the general antifraud provisions of the federal securities laws, such as
section 10(b) of the Act and rule 10b–5 thereunder.

(a) It shall also constitute a ‘‘manipulative or deceptive device or contrivance’’ as used in section 10(b) of
this Act for any person to submit an
order to sell an equity security if such
person deceives a broker or dealer, a
participant of a registered clearing
agency, or a purchaser about its intention or ability to deliver the security
on or before the settlement date, and
such person fails to deliver the security
on or before the settlement date.
(b) For purposes of this rule, the
term settlement date shall mean the
business day on which delivery of a security and payment of money is to be
made through the facilities of a registered clearing agency in connection
with the sale of a security.
[73 FR 61677, Oct. 17, 2008]

REPORTS UNDER SECTION 10A

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§ 240.10A–1 Notice to the Commission
Pursuant to Section 10A of the Act.
(a)(1) If any issuer with a reporting
obligation under the Act receives a report requiring a notice to the Commission in accordance with section
10A(b)(3) of the Act, 15 U.S.C. 78j–
1(b)(3), the issuer shall submit such notice to the Commission’s Office of the
Chief Accountant within the time period prescribed in that section. The notice may be provided by facsimile, telegraph, personal delivery, or any other
means, provided it is received by the Office of the Chief Accountant within the
required time period.
(2) The notice specified in paragraph
(a)(1) of this section shall be in writing
and:
(i) Shall identify the issuer (including the issuer’s name, address, phone
number, and file number assigned to
the issuer’s filings by the Commission)
and the independent accountant (including the independent accountant’s
name and phone number, and the ad-

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§ 240.10A–2

17 CFR Ch. II (4–1–10 Edition)

the Act. The report (or documentation)
may be submitted to the Commission’s
Office of the Chief Accountant by facsimile, telegraph, personal delivery, or
any other means, provided it is received
by the Office of the Chief Accountant
within the time period set forth in section 10A(b)(3) or 10A(b)(4) of the Act, 15
U.S.C. 78j–1(b)(3) or 78j–(b)(4), whichever is applicable in the circumstances.
(2) If the report (or documentation)
submitted to the Office of the Chief Accountant in accordance with paragraph
(b)(1) of this section does not clearly
identify both the issuer (including the
issuer’s name, address, phone number,
and file number assigned to the issuer’s
filings with the Commission) and the
independent accountant (including the
independent accountant’s name and
phone number, and the address of the
independent accountant’s principal office), then the independent accountant
shall place that information in a
prominent attachment to the report
(or documentation) and shall submit
that attachment to the Office of the
Chief Accountant at the same time and
in the same manner as the report (or
documentation) is submitted to that
Office.
(3) Submission of the report (or documentation) by the independent accountant as described in paragraphs
(b)(1) and (b)(2) of this section shall not
replace, or otherwise satisfy the need
for, the newly engaged and former accountants’
letters
under
Items
304(a)(2)(D) and 304(a)(3) of Regulation
S–K, §§ 229.304(a)(2)(D) and 229.304(a)(3)
of this chapter, respectively, and shall
not limit, reduce, or affect in any way
the independent accountant’s obligations to comply fully with all other
legal and professional responsibilities,
including, without limitation, those
under generally accepted auditing
standards and the rules or interpretations of the Commission that modify or
supplement those auditing standards.
(c) A notice or report submitted to
the Office of the Chief Accountant in
accordance with paragraphs (a) and (b)
of this section shall be deemed to be an
investigative record and shall be nonpublic and exempt from disclosure pursuant to the Freedom of Information
Act to the same extent and for the
same periods of time that the Commis-

sion’s investigative records are nonpublic and exempt from disclosure
under, among other applicable provisions, 5 U.S.C. 552(b)(7) and § 200.80(b)(7)
of this chapter. Nothing in this paragraph, however, shall relieve, limit,
delay, or affect in any way, the obligation of any issuer or any independent
accountant to make all public disclosures required by law, by any Commission disclosure item, rule, report, or
form, or by any applicable accounting,
auditing, or professional standard.
Instruction to Paragraph (c)
Issuers and independent accountants
may apply for additional bases for confidential treatment for a notice, report,
or part thereof, in accordance with
§ 200.83 of this chapter. That section indicates, in part, that any person who,
pursuant to any requirement of law,
submits any information or causes or
permits any information to be submitted to the Commission, may request that the Commission afford it
confidential treatment by reason of
personal privacy or business confidentiality, or for any other reason permitted by Federal law.
[62 FR 12749, Mar. 18, 1997, as amended at 73
FR 973, Jan. 4, 2008]

§ 240.10A–2

Auditor independence.

It shall be unlawful for an auditor
not to be independent under § 210.2–
01(c)(2)(iii)(B), (c)(4), (c)(6), (c)(7), and
§ 210.2–07.
[68 FR 6048, Feb. 5, 2003]

§ 240.10A–3 Listing standards relating
to audit committees.
(a) Pursuant to section 10A(m) of the
Act (15 U.S.C. 78j–1(m)) and section 3 of
the Sarbanes-Oxley Act of 2002 (15
U.S.C. 7202):
(1) National securities exchanges. The
rules of each national securities exchange registered pursuant to section 6
of the Act (15 U.S.C. 78f) must, in accordance with the provisions of this
section, prohibit the initial or continued listing of any security of an issuer
that is not in compliance with the requirements of any portion of paragraph
(b) or (c) of this section.

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