Laura Anthony

    • Member Type(s): Expert
    • Title:Founding Partner
    • Organization:Legal & Compliance, LLC
    • Area of Expertise:Securities Law

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    SEC Publishes Report on Access to Capital and Market Liquidity

    Tuesday, December 12, 2017, 8:52 AM [General]
    0 (0 Ratings)

    On August 8, 2017 the SEC Division of Economic and Risk Analysis (DERA) published a 315-page report describing trends in primary securities issuance and secondary market liquidity and assessing how those trends relate to impacts of the Dodd-Frank Act, including the Volcker Rule. The report examines the issuances of debt, equity and asset-backed securities and reviews liquidity in U.S. treasuries, corporate bonds, credit default swaps and bond funds. Included in the reports is a study of trends in unregistered offerings, including Regulation C and Regulation Crowdfunding.

    This blog summarizes portions of the report that I think will be of interest to the small-cap marketplace.

    Disclaimers and Considerations

    The report begins with a level of disclaimers and the obvious issue of isolating the impact of particular rules, especially when multiple rules are being implemented in the same time period. Even without the DERA notes that noted trends and behaviors could have occurred absent rule changes or reforms. The financial crisis that resulted in the implementation of Dodd-Frank, necessarily resulted in changes in market trends in and of itself, as did post crisis changes other than Dodd-Frank such as much lower interest rates. Furthermore, observed changes could be a result of numerous other factors such as various regulations (besides the studies Dodd-Frank and JOBS Act), non-regulatory market structure changes and technological advances.

    Moreover, five broad economic considerations shaped the DERA analysis. First, capital raising in primary markets and liquidity in secondary markets are inextricably intertwined. There is a direct correlation between the ability to exit investments on the secondary market and the inflow of new investments for primary issuances. Second, alternative credit risk products impact activity and liquidity in bond markets. Third, liquidity is an important characteristic of capital markets, impacting the ability of investors to execute trades of different sizes, quickly and at a low cost. Fourth, although large sample analysis is used to study the markets, this information may not reflect the behaviors of smaller market segments. For example, since the sample size and offering size for companies relying on the JOBS Act provisions is relatively small, and its time of use is relatively short, the DERA declines to reach conclusions regarding future trends related to these offerings.  Fifth, regulations that affect one group over another, affect the ability to observe overall changes in market indicators and links to such regulations.

    Changes and Trends in Primary Issuance

    As I reiterate in many of my blogs, all offers and sales of securities must be either registered with the SEC under the Securities Act of 1933 (the “Securities Act”) or conducted under an exemption from registration. All offerings require disclosure to potential investors with registered offerings requiring detailed disclosures and financial information delineated by regulations, including Regulations S-K and S-X.  Companies completing registered offerings become subject to ongoing reporting requirements under the Securities Exchange Act of 1934 (the “Exchange Act”). For more information on Exchange Act reporting requirements, see HERE.

    One of the purposes of exempt offerings is to reduce the burden on companies during the capital-raising process and thereafter. Certainly not all companies can afford, nor should take on the expense of, a registered offering and ongoing SEC reporting requirements. Since exempt offerings require fewer disclosures and have far less regulatory oversight, they are subject to investor limitations, such as accreditation, and for some, offering limits. The investor protection provisions of the exemption claimed must be met to qualify for the exemption from registration.

    The JOBS Act, enacted in 2012, was designed to promote registered and exempt offerings. The JOBS Actcreated emerging growth companies (EGC’s), expanded Rule 506 of Regulation D by creating Rule 506(c) allowing general solicitation and advertising in exempt offerings limited to accredited investors, amended Rule 144A to allow general solicitation and advertising, revamped Regulation A completely and created Regulation CF (Title III Crowdfunding). The DERA notes that these changes would be expected to have important effects on the amount of capital being raised and personally, I think that the changes have had a dramatic impact on primary issuances and especially for smaller companies.

    As noted above, the DERA is reluctant to directly tie increases in primary market issuances to the JOBS Act because it involves relatively newer regulations (the provisions were enacted over time from 2012 through 2016), and smaller sample sizes for analysis, but the report can’t deny the uptick, noting the increase in activity around its implementation.

    The DERA analyzed the primary issuance of debt, equity and asset-backed securities. The DERA reviewed changes in IPO’s, seasoned follow-on offerings, Regulation A and exempt offerings of debt and equity under Regulation D. Total capital formation from the signing of Dodd-Frank into law in 2010 through the end of 2016 was $20.20 trillion, of which $8.8 trillion was raised through registered offerings and the balance through private offerings. The DERA did not find a decrease in total primary market security issuances as a result of Dodd-Frank, though it did find that there was an increase around the implementation of the JOBS Act in 2012.

    The DERA did note several trends, including that capital raised through initial public offerings (IPO’s) ebbs and flows over time, reaching highs in 1999, 2007 and 2014 and lows in 2003, 2008 and 2016. The number of small company IPO’s has increased in recent years. IPO’s of less than $30 million increased from 17% of total IPO’s to 22% following passage of the JOBS Act. Although I do not believe that emerging growth companies (EGC’s) are necessarily small companies, more than 75% of IPO’s were by EGC’s in 2016.  The use of Regulation A also continues to increase.

    In addition, private offerings have increased substantially over the years. The amount raised through private offerings in the period from 2012 through 2016 was more than 26% higher than the amount raised in registered offerings in the same time period.

    Changes and Trends in Market Liquidity

    The DERA found it more difficult to tie changes in market liquidity to regulatory reform, citing other factors such as the electronification of markets, changes in macroeconomic conditions, and post-crisis changes in dealer risk preferences as influencers.

    The report focused on treasuries, corporate bonds, single-name credit default swaps and funds in its liquidity analysis, devoting 191 pages to these topics. A discussion of this areas is beyond the scope of this blog.

    The DERA does state that it found no empirical evidence that U.S. Treasury market liquidity deteriorated after regulatory reforms. Trading activity in corporate bond markets has generally improved or remained flat. Furthermore, transaction costs have decreased over the years on whole. Dealers in corporate bond markets have reduced their capital commitment since 2007, which is consistent with the Volcker Rule.

    The Author

    Laura Anthony, Esq.
    Founding Partner
    Legal & Compliance, LLC
    Corporate, Securities and Going Public Attorneys
    330 Clematis Street, Suite 217
    West Palm Beach, FL 33401
    Phone: 800-341-2684 – 561-514-0936
    Fax: 561-514-0832

    Securities attorney Laura Anthony and her experienced legal team provides ongoing corporate counsel to small and mid-size private companies, OTC and exchange traded issuers as well as private companies going public on the NASDAQ, NYSE MKT or over-the-counter market, such as the OTCQB and OTCQX. For nearly two decades Legal & Compliance, LLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions as well as registration statements on Forms S-1, S-8 and S-4; compliance with the reporting requirements of the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; Regulation A/A+ offerings; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers, ; applications to and compliance with the corporate governance requirements of securities exchanges including NASDAQ and NYSE MKT; crowdfunding; corporate; and general contract and business transactions. Moreover, Ms. Anthony and her firm represents both target and acquiring companies in reverse mergers and forward mergers, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. Ms. Anthony’s legal team prepares the necessary documentation and assists in completing the requirements of federal and state securities laws and SROs such as FINRA and DTC for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of, the OTC Market’s top source for industry news, and the producer and host of, the securities law network. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Las Vegas, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.

    Contact Legal & Compliance LLC. Technical inquiries are always encouraged.

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    Legal & Compliance, LLC makes this general information available for educational purposes only. The information is general in nature and does not constitute legal advice. Furthermore, the use of this information, and the sending or receipt of this information, does not create or constitute an attorney-client relationship between us. Therefore, your communication with us via this information in any form will not be considered as privileged or confidential.

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    Stricter Promotion Policies and Best Practice Guidelines Fuel OTC Markets Group’s Embrace of More Disclosure and Greater Investo

    Friday, December 8, 2017, 10:02 AM [General]
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    The New York-based financial market that specializes in more than 10,000 over-the-counter securities is cracking down on fraudulent or improper stock campaigns with a two-pronged initiative that emphasizes greater transparency, more factuality, and the correction of false statements or misleading information linked to stock and investment promotions.

    West Palm Beach attorney Laura Anthony, a securities investment specialist and founder of Legal and Compliance, LLC, describes the efforts of the OTC Markets Group to position itself as a respected venture trading platform in this week’s Securities Law Blog.

    “Technology has increased the ability for companies, insiders and third parties to engage in improper and manipulative activities, including spam campaigns and anonymous social networks and message groups,” Ms. Anthony writes. By announcing a new stock promotion policy and updated best practice guidelines, OTC Markets Group is urging its trading firms to disclose information in a timely manner and use all channels at their disposal to dispel rumors, halt misinformation and correct false statements, she says.

    The new policies will accompany the OTC Markets Group’s current framework, which relies on the use of a skull-and-crossbones icon to flag questionable companies or risky investment activities, according to Ms. Anthony.

    Governed by the new policies and guidelines, companies that trade on the OTC Markets Group’s exchanges can now be denied an application for trading on the OTCQB or OTCQX, and may be removed from either if they engage actively in campaigns marked by misleading information or manipulative promotions.

    Ms. Anthony also gives to a nod to OTC Markets Group’s recommendation that companies perform due diligence about investor relations firms and their principals before engaging in a firm’s services.

    “This is advice I constantly give my clients,” she writes. “Basic due diligence includes reviewing other represented clients and doing basic search for regulatory issues or negative news.” Likewise, companies should be clear about an investor relations firm’s specific services and compensation, she says.

    In general terms, the new stock promotions policy and best guidelines focus on key areas. Companies are expected to scrutinize and refrain from engaging in paid promotions, especially those that:

    · involve improper or misleading materials

    · focus on a company’s stock rather than its core business

    · make unsubstantiated, grandiose or unreasonable stock performance claims

    · urge immediate action to avoid missing out, or do not inform potential investors about risks

    · lack core information

    On the best practices front, she encourages companies to know their investors or investor groups, and approach warily those that desire anonymity or support anonymous third-party promotions, rely on offshore entities, own significant control or “will qualify to remove restrictive legends on stock.”

    If companies fall prey to misleading or manipulative stock promotions, the OTC Markets Group urges them to publicize and describe the promotion’s impact on the company’s trading activity, indicate whether the promotion is accurate, conduct an inquiry of all involved parties, and provide more information and disclosure about reputable promotion services and investment rates.

    Revelation of a May 2016 Hack of the SEC EDGAR Filing System Brings Request for $100 Million to Increase Cybersecurity

    Friday, December 8, 2017, 10:01 AM [General]
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    The biggest news from the U.S. Securities and Exchange Commission (SEC) on September 20, 2017 was less about the $100 million requested by Chair Jay Clayton to boost cybersecurity at the federal agency and more about the underlying reason for the cybersecurity initiative at all: a 2016 hack of the agency’s EDGAR filing system.

    Writing this week in the Securities Law Blog (Part 1), West Palm Beach attorney Laura Anthony, a securities investment specialist and founder of Legal and Compliance, LLC, tackled the issue bluntly: “EDGAR was hacked! Based on the SEC’s statements and testimony on the matter, there remains a lot of secrecy surrounding the incident,” she writes, including the date of the hack, reasons why the Department of Homeland Security was notified but SEC commissioners were not, and a lack of information on the types of compromised data and the companies involved.

    The hack occurred in May 2016, but Clayton was not informed until August 2017 and did not publicly announce it until September 20. Even though it was patched as soon as it was discovered, the hack involved EDGAR’s test filing system. The stolen information—which included names, dates of birth and Social Security numbers of at least two individuals—was used to make illicit trading gains. EDGAR stands for the Electronic Data Gathering, Analysis and Retrieval System.

    SEC asks House Committee for $100 million As a result of the hack, Clayton has asked the House Committee on Financial Services for an additional $100 million to protect the agency and its electronic reporting infrastructure, which foreign and domestic companies use heavily to file required reports, forms and statements.

    Clayton also has hired additional staff and external cybersecurity experts to protect the SEC’s network, systems and data. His $100 million initiative includes a review to assess whether EDGAR is the appropriate mechanism to funnel financial, company and investor data; an identification of all potentially sensitive and vulnerable data; and a renewed look at procedural responses to attacks.

    Because of the valuable data that is fed to EDGAR, Clayton points out that the system is under constant threat of attacks from “identity thieves, unscrupulous contractors and vendors, malicious employees, business competitors, prospective insider traders and market manipulators, hackers, terrorists, state-sponsored actors and others.”

    Additionally, cyberattacks can lead to loss or exposure of consumer data, theft or exposure of intellectual property, theft of investor funds, declines in companies’ market value as a result of attacks, and risk of regulatory actions, lawsuits and reputational damage.

    In Wake of 2016 EDGAR Hacking, SEC Launches Two Cybersecurity Initiatives to Protect Investors and Pursue Misconduct

    Friday, December 8, 2017, 10:00 AM [General]
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    Just five days after announcing a 2016 hack of its EDGAR filing system, the U.S. Securities and Exchange Commission (SEC) has outlined a two-pronged cybersecurity plan intended to protect investors, identify and pursue trading and investment misconduct, and give the federal agency the tools it needs to monitor and crack down on clever and fast-moving cyber-thieves.

    The two-pronged security initiative will address a variety of currencies, transactions and assets in today’s financial services system, including distributed ledger technology (DLT), initial coin or cryptocurrency offerings (ICOs), attempts at market manipulation, misconduct on the so-called “dark web,” unscrupulous investing practices, and failure by companies to report cybersecurity breaches.

    Writing this week in the Securities Law Blog (Part 2), West Palm Beach attorney Laura Anthony, a securities investment specialist and founder of Legal and Compliance, LLC, provides details on the SEC’s plans to create a Cyber Unit that will target cyber-related misconduct, and additional plans for a retail strategy task force that will provide more scrutiny of the retail investment market.

    SEC Chair Jay Clayton is seeking $100 million from the House Committee on Financial Services for the beefed-up cybersecurity and monitoring initiatives.

    The Cyber Unit will work closely with the SEC’s Office of Compliance, Inspections and Examinations, and its Division of Enforcement. Specifically the unit will address numerous issues, including:

    · Market manipulation or misconduct that arises from false online information, the dark web, hacked information, or intrusions into retail brokerage accounts

    · Cyber-related threats related to trading platforms or critical market infrastructures

    · Violations involving DLTs or ICOs

    According to Clayton, the agency will leverage the Cyber Unit to “coordinate information sharing, risk monitoring and incident response efforts throughout the agency.” It also will track whether publicly traded companies properly report and disclose cyber-related issues.

    Secondarily, the Retail Strategy Task Force will focus on fraud-related issues, including unscrupulous investments, abuses in wrap-fee accounts, failure by investors and companies to disclose fees or risky ventures, abusive investment practices, investor activity in products such as inverse exchange-traded funds (ETFs) for long-term investments, and other issues.

    OTC Markets Group Establishes A Stock Promotion Policy

    Tuesday, December 5, 2017, 8:38 AM [General]
    0 (0 Ratings)

    As OTC Markets Group continues to position itself as a respected venture trading platform, it has adopted a new stock promotion policy and best practices guidelines to improve investor transparency and address concerns over fraudulent or improper stock promotion campaigns. The stock promotion policy and best practices guidelines are designed to assist companies with responsible investor relations and to address problematic issues. Recognizing that fraudulent stock promotion is a systemic problem requiring an all-fronts effort by industry participants and regulators, the new policy focuses on transparency and disclosure of current information, and the correction of false statements or materially misleading information issued by third parties.

    For several years, OTC Markets Group has been delineating companies with a skull-and-crossbones sign where they have raised concerns such as improper or misleading disclosures, spam campaigns, questionable stock promotion, investigation of fraudulent or other criminal activity, regulatory suspensions or disruptive corporate actions. While labeled with a skull and crossbones, a company that does not have current information or is not on the OTCQB or OTCQX will have its quote blocked on the OTC Markets website.

    The new policy addresses: (i) publicly identifying securities being promoted; (ii) identifying fraudulent promotional campaigns; (iii) responsibilities of companies with promoted securities; (iv) the impact on OTCQXor OTCQB designations; (v) caveat emptor policy and stock promotion; and (vi) regulatory referrals. This blog summarizes both the new stock promotion policy and best practices guidelines.

    OTC Markets Group Policy on Stock Promotion

    The basic premise behind OTC Markets Group policy on stock promotion is the timely disclosure of material information, which includes the duty to dispel unfounded rumors, misinformation or false statements. Technology has increased the ability for companies, insiders and third parties to engage in improper and manipulative activities, including through spam campaigns, and anonymous social networks and message groups.

    A company that is the subject of an active campaign or has a history of stock promotion may be denied an application for trading on the OTCQB or OTCQX. A company may be removed from the OTCQB or OTCQX, upon the sole discretion of OTC Markets Group, if it is involved in an active campaign involving misleading information or manipulative promotion. Furthermore, promotional activity of a shell company will result in the immediate removal from OTCQB (shells are not permitted on OTCQX). OTC Markets Group will continue to use the caveat emptor skull-and-crossbones designations as well.  Where appropriate, OTC Markets Group will refer a company to the SECFINRA or other regulatory agency for investigation.

    Paid promotions are often associated with pump-and-dump activities where a third party is attempting to pump the stock price to liquidate at inflated prices, following which the stock will inevitably go down. Improper and misleading promotional materials, which can often be in the form of e-mails, newsletters, social media outlets (such as message boards), press releases, videos, telephone calls, or direct mail, generally share the following common characteristics:

    • Failure to identify the sponsor of the promotion or if the promotion is paid for an anonymous third party;
    • Information focuses on a company’s stock rather that its business;
    • Speculative language, including but not limited to grandiose claims and numbers related to the company’s business, industry, financial results or business developments;
    • Touting of performance or profit potential from trading in a company’s stock with unsupported or exaggerated statements, including related to stock price;
    • Making unreasonable claims related to a company’s performance;
    • Directly or indirectly promising specific future performance;
    • Providing little or no factual information about the company;
    • Urging immediate action to avoid missing out;
    • Failing to provide disclosures related to risks of an investment.

    Although not included in OTC Markets’ list of common characteristics, another red flag is when there is a comparison between the company being promoted and a well-known successful or respected company.

    OTC Markets Group monitors for paid promotional activity and reviews for anonymous promotions, connections to bad actors, and impacts on trading. Beginning in first quarter 2018, stocks associated with such promotional activity will be identified with a “risk flag” next to its symbol on the OTC Markets website.

    OTC Markets Group may also request that a company that is subject to promotional activity issue a press release to: (i) identify promotional activity; (ii) confirm information in the promotion or identify misinformation; (iii) and/or disclose recent securities transactions by insiders and affiliates. Furthermore, OTC Markets group may request information from a company and/or its transfer agent related to transactions and request additional disclosures from the company related to share issuances, financing agreements and the identity of people or advisors associated with the transactions.

    OTC Markets Group Best Practices Guidelines for Stock Promotion

    As in its separate stock promotion policy, the OTC Markets Group best practices on stock promotion guidelines reiterate the core principle that the timely disclosure of material information is key, which includes the duty to dispel unfounded rumors, misinformation or false statements.

    OTC Markets Group suggests that companies perform due diligence on investor relations firms and their principals prior to engaging services. This is advice I am constantly giving to my clients.  Basic due diligence includes reviewing other represented clients and doing basic searches for regulatory issues or negative news. Companies should also be very clear on what services an investor relations firm will perform and what compensation will be paid for those services.

    Very vague service descriptions often indicate an improper promotional campaign. OTC Markets Group also warns of red flags, including a request that payment be split among various individuals or groups.

    A company that hires or sponsors investor relations is responsible for the content of communications made by that company and must ensure that all information is materially current and accurate. In addition, a company should retain editorial control and review all information before it is disseminated. Investor relations materials should not use language that makes assumptions, is speculative or misleading, or brazenly hypes the stock. Communications should not cover new material information that has not been previously disclosed, and should not extend beyond providing factual information to investors and shareholders.

    The disclosures required by Section 17(b) must always be properly made, and OTC Markets Group specifically requires that any relationship between the investor relations individuals and entities and the company be fully disclosed.

    Since third parties often engage in stock promotional activities without the knowledge or consent of a company, it is important for a company to know its investors, including the people behind any entities or investor groups. Investors that desire anonymity or utilize offshore entities raise a red flag. Furthermore, companies should be wary of shareholders that own significant control or investor groups that will qualify to remove restrictive legends on stock. Investor groups often change the name of their investment vehicle entity and, as such, due diligence should include prior entities.

    OTC Markets Group warns against toxic or death spiral financing. Toxic or death spiral financing generally involves an investment in the form of a convertible promissory note or preferred stock that converts into common stock at a discount to market with no floor on the conversion price. As I have written about many times, there are quality investors and others that are not quality in the microcap space. The use of convertible instruments as a method to invest in public companies is perfectly legal and acceptable. However, like any other aspect of the securities marketplace, it can be abused. Further examples of abusive or improper activity could include: (i) backdating of notes or failure to provide the funding associated with the note; (ii) improper undisclosed affiliations between investors and the company or its officers and directors; (iii) manipulative trading practices; (iv) improper stock promotion; or (v) trading on insider information. Again, in choosing a transaction it is incumbent upon the company to conduct due diligence on the investor, including their reputation in the industry and trading history associated with other investments and conversions.

    OTC Markets Group also warns of anonymous third-party promotions, noting that these promotions are a significant source of misleading and manipulative information. Any company-sponsored stock promotion must be disclosed, whether the company is involved directly or indirectly. The identity of a company’s investor relations firm must be disclosed on the company’s profile page on

    OTC Markets Group recommends that a company make a public announcement with the following information in the event it learns it is the subject of misleading or manipulative stock promotion:

    • A summary of the company’s understanding of the stock promotion, including how and when the company became aware of the campaign and a description of the promotion’s effect on the company’s trading activity;
    • Whether the content of the promotion is accurate or contains untrue or misleading information;
    • Conduct an inquiry of company management, officers and directors, to ascertain whether they are involved in the stock promotion and/or of have purchased or sold securities before, during or after the promotion;
    • Provide an up-to-date list of service providers who perform investor relations or similar services;
    • Disclose the issuance of convertible securities with variable rate or discount to market conversion rates. This disclosure should include details on the convertible instruments, including date, number of shares issued or issuable, price, conversion terms, and parties involved.

    OTC Markets also suggests that all companies have insider trading policies, a policy which I support and suggest to my clients.

    Section 17(b) of the Securities Act of 1933

    The federal securities laws also govern stock promotion activity.  Section 17(b) of the Securities Act of 1933 is an antifraud provision which requires that any communications which “publish, give publicity to, or circulate any notice, circular, advertisement, newspaper, article, letter, investment service or communication” which describes a security, must disclose any consideration received or to be received either in the past, present or future, whether directly or indirectly by the issuer of such communication. Generally the disclosure must include: (i) the amount of consideration; (ii) from whom it is received, such as the company, a third-party shareholder or an underwriter and the individual persons behind any corporate entity involved; (iii) the nature of the consideration (for example, cash or stock, and if stock, whether restricted or unrestricted); and (iv) if consideration is paid by a third party other than the company whose securities are being promoted, the relationship between the company and the third party. Moreover, I recommend that companies ensure such communications include a disclosure as to whether the issuer of such communications owns stock which may be sold in any upmarket created by the communication.

    The disclosure required by Section 17(b) must be included in each and every published document, including emails, message board postings and all other communications.

    Further Reading on OTC Markets Group  Rules

    For a review of the OTCQB listing standards, see HERE . For a review of the OTCQX listing standards, see HERE. For a review of the OTC Pink standards, see HERE.

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