This is the first in a series of articles I am writing regarding DTC (Depository Trust Company) eligibility for OTC (Over the Counter) Issuers. OTC Issuers include all companies whose securities trade on the Over the Counter market, including the OTCBB, OTCQB and PinkSheets.
DTC eligibility has become a major concern for OTC Issuers in the past year. Obtaining and maintaining eligibility is of utmost importance for the smooth trading of an Issuer’s float in the secondary market. Moreover, DTC eligibility is a prerequisite for OTC Issuers’ shareholders to deposit securities with their brokers and have such securities be placed in street name. Most Issuers and many legal practitioners do not know or understand the eligibility requirements or procedures.
The DTC Application Process
First and foremost, like a Form 211 submittal to FINRA, an Issuer cannot make direct application to DTC for eligibility. An application must be submitted and sponsored by a DTC Participant. A current list of DTC Participants can be found on the DTC website. So to start, an Issuer needs to establish a relationship with one of these participants. A Participant can submit an application for a new offering or for a security that has already been issued and is already trading on the OTC market. Note that already traded securities will be reviewed for eligibility following a reorganization, such as a reverse merger.
Prior to submittal of the application, the Issuer must have a transfer agent and that transfer agent must have a completed DTC Operational Arrangements Agent Letter on file with DTC and must be participating in DTC’s Fast Automated Securities Transfer (“FAST”) program. Accordingly, and obviously, this is one of the first questions an Issuer should ask when choosing a transfer agent.
Transfer Agent Attestation Form
In instances where the Issuer’s securities are already issued and outstanding (not a new offering), the Participant will need to submit a copy of the physical certificate and a Transfer Agent Attestation Form. Please note that the documents referred to in this blog are available on the DTC website and must be submitted in exactly the form provided. Most of the forms are simple PDF applications that can be uploaded or printed directly from the website.
Note that virtually all DTC eligibility requests, whether for new or already existing securities, require a copy of the offering documentation to be provided to DTC for review. Accordingly, and obviously, when conducting due diligence on a public shell prior to a reverse merger, acquisition, or other such reorganization transaction, it is important to ensure that such documentation is available or that the shell is already DTC eligible.
DTC Participants Must Answer Comments
A DTC eligibility application will be reviewed for completeness and subject to comments. It is the responsibility of the Participant sponsoring the application to address the comments and provide all information requested. An Issuer should work closely with the Participant to make sure all information is accurate, complete and up to date.
Once DTC has identified the legal basis for eligibility of the security, it will notify the Participant whether a legal opinion letter is necessary. Legal opinion letters must be provided by an experienced securities attorney, properly licensed in the subject jurisdiction and in good standing with their bar association. Letters will not be accepted from in house counsel and the opining attorney may not have a beneficial ownership interest in the security covered by the letter and may not be an officer, director or employee of the Issuer.
In the next blog I will begin to discuss specific DTC eligibility requirements.
The Author: Laura Anthony,
Founding Partner, Legal & Compliance, LLC
Securities, Reverse Mergers, Corporate Transactions
#DTC, #IPO, #OTCBB, #FORM211, #REVERSEMERGER, #STARTUP