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Post by fastwalker on Mar 6, 2005 11:53:40 GMT -5
With a lull in the flurry of speculative activity related to the two recent PRS, I took some time to look at the most recent PR to ascertain what it may mean to me, and what potential impact it would have on me as a CMKX shareholders. I have included these observations for your reading only.
The delayed activities of CMKX are problematic and should have been dealt from the onset, when each requirement was due. While no predisposition has indicated that an "intent" was present to circumvent the initial filing of required forms, via the "exemption, the matter should have been researched throughly by management to ensure "then" "complete compliance" and to also ensure an avoidance of potential "future" scrutiny of suspected improprieties. But that is academic observation at this particular place and time relevent to where CMKX is with this matter.
When (and that SPECIFIC timing is CLEARLY subject to interpretation by the SEC) the events in question were discovered due by management, then it should have been dealt with then or at the lastest, in a more timely manner by CMKX management.
The manner in which the SEC has "forced" this issue to be addressed, is also problematic.
In that given the "high profile" activities of CMKX "which MUST BY ANY REASONABLE PERSON'S STANDARDS.. have placed it (CMKX) well within the "radar" notice of the SEC, for a very considerable length of time, could have "triggered" or should have "triggered" the "pause" in CMKX's trading activities.
Failure to initiated by the SEC then, to cause a "pause" to review CMKX's activites within close proximity to the onset of highly visible and highly noticeable "high volume" trading of a CMKX as a pink sheet company, does not qualify now, a viable explanation by the SEC that it has our best interest in mind.
This suspension event should have been, if the SEC is / was looking out for the best interest of the CMKX investor, initiated well in advance of this particular suspension event, when other"events" clearly indicated that something "unusual" was transpiring with the stock , as indicated by the high daily volumes.
While both PRs put forward explanations regarding the current situation, they are both cryptic and leave a lot "open" to "misinterpretation" by (shareholders)most noticeable impacted by these "significant" release.
This is not a situation that is conducive to anything other than the heightened apprehension and most notably rampant speculation undretaken on the part of the shareholder, in an attempt ot understand the events taking place.
What prior events may have caused this situation to be so problematic?
While indicated within the PR, if one is so inclinded to follow up on the reference made and review the time frame in question and documentation(s), one is simply left with more questions and confusing as to the actual "specificity" of the matter at han and the impact it would have on the investor.
Many will and have speculated on these inter-related historical events, most speucalation based solely on the available data "indicated" within the most recent CMKX PR. Which is at the very least , is highly suggestive of additional probnlems to be resolved.
Given the REPEATED emphasis place on certain terminology reflected within the CMKX PR, one would quickly and rightfully draw the conclusion, that maybe CMKX feels that it has in fact been "blindsided" by the SEC, while it has in good faith, attempted to further it's "filing" agenda for the benefit of the shareholders? So, while this event has been picked over by many people on the various message boards, I wanted to simply "think out loud" in a written format, as I looked at the facts as presented, simply to appease my curosity as to what is happening.
If you read this, understand these are simply my observations and do not necessarily reflect anything good or bad with regards to the parties involved. As I sated, it is simply my observations on the matter.
The CMKX PR....
LAS VEGAS--(BUSINESS WIRE)--March 4, 2005--Commencing at 9:30 a.m. EST yesterday, trading of the common stock of CMKX Diamonds Inc. (Pink Sheets :
CMKX) was temporarily suspended by the Securities and Exchange Commission ("SEC"). This temporary suspension will expire on March 16 at 11:59 p.m. EST
and trading in CMKX is anticipated to resume on March 17, 2005.
In its reasoning, the SEC stated
it had concerns over the adequacy of publicly available information concerning CMKX'S assets and liabilities, mining and other business activities, share structure and stock issuances, and corporate management.
Further, the SEC was concerned that CMKX may have unjustifiably relied on a Form S-8, filed in May 2003, to issue unrestricted securities
and that CMKX and/or certain of its stockholders may have unjustifiably relied on Rule 144(k) of the 33 Act in conducting an unlawful distribution of its securities that failed to comply with the resale restrictions of Rules 144 and 145 of the Securities Act.
CMKX has been in discussions with the SEC in relation to the SEC's inquiry into another public company that has done business with CMKX.
In this process, CMKX has provided the SEC with substantial documentation, much of which spans back to transactions and stock issuances in 2002.
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Post by fastwalker on Mar 6, 2005 12:20:07 GMT -5
continued... It is believed some of the information provided raised concerns with the SEC sufficient enough to cause this temporary suspension of trading. CMKX anticipates a formal request for documents to be issued by the SEC in the near future. "The SEC did not provide us with any notice of the temporary trading halt," stated Urban Casavant, CEO of CMKX. "This was an unwelcome surprise, especially since our counsel has had ongoing duologue with the SEC." According to the SEC's Web site, www.sec.gov, "The primary mission of the SEC is to protect investors and maintain the integrity of the securities markets." Consistent with this mission, Casavant specifically engaged Robert A. Maheu to assist CMKX in its compliance efforts. "Like the SEC, protecting our investors is a primary concern. We have been aggressively gathering the essential information needed to comply with our public disclosure obligations and anticipate working with the SEC to ensure our compliance with all federal regulations," stated Maheu, co-chairman of CMKX. "We are not letting these regulatory matters impede our primary focus of creating stockholder value through the mining and development of our mineral assets," stated Maheu. CMKX is continuing to search for additional property claims in Canada and monitor its holdings in Ecuador. On Feb. 17, 2005, CMKX filed an amended Form 15 to reinstate its reporting obligations under the 34 Act. SEC regulations require CMKX to file, within 60 days after the date of the filing of the amended Form 15, all reports which would have been required had the original Form 15 not been filed. CMKX has not been provided a waiver, "variance" or any other relief by the SEC for complying with the 60-day requirement. In fact, due to the overwhelming number of reports that need to be filed, coupled with the necessary financial statement preparation, CMKX will not be able to comply with the 60-day requirement. Management does not believe the filing of the amended Form 15 had anything to do with the SEC's decision to temporarily suspend trading in its common stock and continues to aggressively do everything within its power to comply with its 34 Act reporting requirements. With its reporting status reinstated, CMKX anticipates filing a number of significant corporate updates with the SEC in the upcoming weeks on Form 8-K. Investors and stockholders are encouraged to review these forms as they become available through the SEC's EDGAR database. The SEC's Web site further discloses, "The laws and rules that govern the securities industry in the United States derive from a simple and straightforward concept: all investors, whether large institutions or private individuals, should have access to certain basic facts about an investment prior to buying it " Casavant reiterated, "We understand the importance of supplying accurate information to the public and have made it our top priority to uncompromisingly disclose all material corporate information as soon as it becomes available." Consistent with CMKX'S continuing efforts to furnish the investing public and its stockholders with current information and to quell any inaccurate rumors, CMKX has disclosed certain corporate information pertaining to its operations and corporate structure. Of the 800 billion authorized shares of common stock, CMKX currently has 703,518,875,000 shares of common stock issued and outstanding to approximately 2,032 stockholders of record (excluding shares held in "street name"). In addition, effective March 1, 2005, CMKX has relocated its executive office address to 5375 Procyon St., Suite 101, Las Vegas, NV. Lastly, CMKX'S current officer is Urban Casavant (CEO/President/Secretary/Treasurer) and current directors are Urban Casavant and Robert A. Maheu (Michael Williams will join the board of directors upon CMKX's obtainment of D&O insurance). Investors and stockholders are being asked to please refrain from contacting the company, the SEC, NASD, the Transfer Agent and/or Stoecklein Law Group to allow them to focus on completing the tasks at hand. All corporate updates will be made in press releases and filed in current reports on Form 8-K as they become available. CMKX also would like to repeat the SEC's statement of, "At the heart of effective investor protection is an educated and careful investor" and encourage its stockholders and other investors to visit the SEC's Web site (www.sec.gov), which offers the public a wealth of educational information. Forward-Looking Statements This press release may contain statements that constitute "forward-looking statements" as defined under U.S. federal securities laws describing the reinstatement of CMKX's reporting obligations and the expected impact of these obligations on CMKX's operations. Generally, the words "believe," "expect," "intend," "estimate," "anticipate," "establish," "project" and similar expressions identify forward-looking statements, which generally are not historical in nature. Forward-looking statements are based on current expectations and assumptions that are subject to certain risks and uncertainties that could cause actual results to differ materially from CMKX's historical experience and its projections. Such forward-looking statements are inherently uncertain, and actual results may differ from those expressed or implied in the forward-looking statements. Consequently, readers are cautioned not to place undue reliance on any forward-looking statements, which speak only as of the date they are made. CMKX's actual results could differ materially from such forward-looking statements because of factors such as: impact of the temporary halt in trading on CMKX's stock price; impact of the halt on CMKX's operations; uncertain further regulatory scrutiny; the current state of operations; unavailability of documentation and corporate records; changes in the number of outstanding shares of common stock and number of stockholders of record; the impact of failing to meet the 60-day filing requirement; timing necessary to comply with reporting requirements; lack of adequate internal controls; unforeseen capital deficiencies; unavailability of insurance; changes in the mining and metals environment, including actions of competitors; the effectiveness of CMKX's development and drilling programs; regulatory and legal changes; and other risks associated with companies in similar industries. CMKX undertakes no obligation to publicly update or revise any forward-looking statements to reflect current events or circumstances after the date hereof or to reflect the occurrence of unanticipated events. I have broken the PR apart, to look at those paragraphs which I feel are germane to what I want to know? more..
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Post by fastwalker on Mar 6, 2005 13:26:51 GMT -5
First lets review what may be at issue here and that may be, the eight new items to Form 8-K, move two disclosure items currently required on Form 10-K and Form 10-Q to Form 8-K and expand two pre-existing items.
Each of these items is summarized in further detail below, these eight items represent new events that will trigger a Form 8-K filing.
NOTE..
Companies must comply with the new disclosure requirements beginning August 23, 2004.
FURTHER...
The new requirements apply to all domestic issuers, including small business issuers.
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Post by fastwalker on Mar 6, 2005 13:29:09 GMT -5
1. Item 1.01: Entry Into a Material Definitive Agreement. Under this item, companies must disclose their entry into definitive agreements that are material under the standard currently used to determine when an agreement must be filed as an exhibit under Item 601(b)(10) of Regulation S-K. Material amendments to a material agreement must also be disclosed under this item. Companies must disclose: • the date on which the agreement was entered into or amended; • the identity of the parties to the agreement; • a brief description of any material relationship of the company or its affiliates with any of the parties to the agreement (other than the agreement or amendment itself); and • a brief description of the terms and conditions of the agreement or amendment that are material to the company. Unlike the proposed Form 8-K amendments, the final rules do not require disclosure of letters of intent and other non-binding agreements. Only agreements that are material to and enforceable by or against the company must be disclosed. The final rules do not require companies to file a material definitive agreement as an exhibit to a Form 8-K. This is intended to allow companies time to assess the need for, and to prepare a request for, confidential treatment and for the process of converting lengthy documents into EDGAR format. A material definitive agreement must instead be filed in the company’s next periodic report under the same requirements that existed previously. However, the Commission encourages companies to file agreements that are disclosed in a Form 8-K as an exhibit to the filing, particularly when the company is not requesting confidential treatment of the agreement. It is important to note that material amendments to a material definitive agreement may trigger a disclosure requirement even though the initial entry into the material definitive agreement occurred prior to the effectiveness of the amendment to the Form 8-K. Additionally, new Item 1.01 requires disclosure of all material definitive agreements, including business combinations. The filing of the Form 8-K may constitute the first “public announcement” for purposes of making an offer of securities, communications prior to commencement of a tender offer or a solicitation prior to sending a proxy statement, and thus trigger filing obligations under Rules 165 of the Securities Act, Rule 14d-2(b) or Rule 14a-12 of the Exchange Act. To avoid duplicative filings under those rules, Form 8-K was amended to enable a company to check one or more boxes on the cover page to indicate that it is simultaneously satisfying its filing obligation under these rules, provided that in such case the Form 8-K must contain all of the information required by the rules. 2. Item 1.02: Termination of a Material Definitive Agreement. This item requires disclosure of the termination of a material definitive agreement not made in the ordinary course of business if such termination is material to the company. Termination by expiration on a stated termination date or as a result of all parties completing their obligations under an agreement need not be disclosed. The following information is required to be disclosed: • the date of the termination of the material definitive agreement, the identity of the parties to the agreement and a brief description of any material relationship of the company or its affiliates with any of the parties to the agreement (other than the agreement itself); • a brief description of the terms and conditions of the agreement that are material to the company; • a brief description of the material circumstances surrounding the termination; and • any material early termination penalties incurred by the company. The final rules do not require disclosure while negotiations or discussions regarding termination are being held. Similarly, no disclosure is required if the company believes in good faith that the agreement has not been terminated unless the company has received a termination notice pursuant to the contract. 3. Item 2.03: Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant. This item requires disclosure of the following information if a company becomes obligated under a direct financial obligation that is material to the company: • the date on which the company becomes obligated on the direct financial obligation and a brief description of the transaction or agreement creating the obligation; • the amount of the obligation, including the terms of its payment and, if applicable, a brief description of the material terms under which it may be accelerated or increased and the nature of any recourse provisions that would enable the company to recover from third parties; and • a brief description of the other terms and conditions of the transaction or agreement that are material to the company. In addition, if the company becomes directly or contingently liable for an obligation that is material to the company arising out of an off-balance sheet arrangement, it must provide the following information: • the date on which the company becomes directly or contingently liable on the obligation and a brief description of the transaction or agreement creating the arrangement and obligation; • a brief description of the nature and amount of the obligation of the company under the arrangement, including the material terms under which it may become a direct obligation, if applicable, or may be accelerated or increased and the nature of any recourse provisions that would enable the company to recover from third parties; • the maximum potential amount of future payments (undiscounted) that the company may be required to make, if different; and • a brief description of the other terms and conditions of the obligation or arrangement that are material to the company. The definition of “off balance sheet arrangement” for purposes of Form 8-K is consistent with the definition used in MD&A Item 303(a)(4)(ii) of Regulation S-K. The Commission defines “direct financial obligation” as long term debt obligations, capital lease obligations and operating lease obligations, as those terms are defined in MD&A Item 303(a)(5)(ii), plus short term debt obligations. 4. Item 2.04: Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement. This item requires a company to report a triggering event that causes the increase or acceleration of a direct financial obligation if the event is material to the company. The following information must be provided: • the date of the triggering event and a brief description of the agreement or transaction under which the direct financial obligation was created and is increased or accelerated; • a brief description of the triggering event;
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Post by fastwalker on Mar 6, 2005 13:29:58 GMT -5
• the amount of the direct financial obligation, as increased if applicable, and the terms of payment or acceleration that apply; and • any other material obligations of the company that may arise, increase, be accelerated or become direct financial obligations as a result of the triggering event or the increase or acceleration of the direct financial obligation. Companies must also report under this item a triggering event that causes an off-balance sheet arrangement to increase or be accelerated or that causes a contingent obligation under an off-balance sheet arrangement to become a direct financial obligation of the company if the consequences are material to the company. Under this item no disclosure is required if the company believes, in good faith, that no triggering event has occurred, unless the company has received a notice of the occurrence of a triggering event pursuant to the terms of the agreement, transaction or arrangement. 5. Item 2.05: Costs Associated with Exit or Disposal Activities. This item requires disclosure when a company commits to an exit or disposal plan, otherwise disposes of a long-lived asset, or terminates employees under a plan of termination under which the company will incur charges under GAAP. Under this item, companies must disclose: • the date of commitment to the course of action and a description of the course of action, including the facts and circumstances leading to the expected action and the expected completion date; • for each type of cost associated with the course of action (for example, one-time termination benefits, contract termination costs and other associated costs), an estimate of the total amount or range of amounts expected to be incurred in connection with the action; • an estimate of the total amount or range of amounts expected to be incurred in connection with the action; and • the company’s estimate of the amount or range of amounts of the charge that will result in future cash expenditures. A company need not disclose an estimate of the amount of the charges at the time of filing if it is unable to make a good faith estimate at that time. However, it must nevertheless file a Form 8-K with a description of the company’s commitment to a course of action under which it will incur a material charge. The company must amend such a filing to include the estimate within four business days of the time the estimate is calculated. 6. Item 2.06: Material Impairments. This item requires disclosure when a company concludes that a material charge for impairment to one or more of its assets, including an impairment of securities or goodwill, is required under GAAP. Under this item a company must disclose: • the date of the conclusion that a material charge is required, a description of the impaired asset or assets and the facts and circumstances leading to the conclusion that the charge for impairment is required; • the company’s estimate of the amount or range of amounts of the impairment charge; and • the company’s estimate of the amount or range of amounts of the impairment charge that will result in future cash expenditures. The Commission recognized that the test for impairments or recoverability often occurs in conjunction with the preparation, review or audit of financial statements. The final rules do not require Form 8-K disclosure if a company’s conclusion regarding a material charge is made in connection with the preparation, review or audit of financial statements at the end of a fiscal quarter or year and such conclusion is disclosed in the company’s Exchange Act report for that period. 7. Item 3.01: Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. Under this item, a company must report its receipt from the national securities exchange or association that maintains the principal listing for any class of its common equity of a notice indicating that the company does not satisfy a rule or standard for continued listing, that the exchange has applied to the Commission for delisting the company’s equity securities, or that the association has taken all necessary steps under its rules to delist the security. A company that receives this type of notice must disclose: • the date that it received the notice; • the rule or standard for continued listing on the national securities exchange or national securities association that the company fails, or has failed, to satisfy; and • any action or response that, at the time of filing, the company has determined to take in response to the notice. In addition, if the company has notified the national securities exchange or association that the company is aware of any material noncompliance with a rule or standard for continued listing, the company must disclose: • the date on which it provided such notice; • the rule or standard it fails to satisfy; and • any action or response that the company has determined to take at the time of filing. The final rules also require disclosure if the company receives a public reprimand letter, in lieu of a trading suspension or delisting of any class of equity securities, by a national securities exchange or national securities association. Lastly, companies must disclose any definitive action they have taken to cause the listing of a class of their common equity securities to be withdrawn from a national securities exchange or terminated from the automated inter-dealer quotation system of a registered national securities association. Companies whose securities are quoted exclusively on automated inter-dealer quotation systems, such as the over-the-counter bulletin board (OTCBB) and the Electronic Pink Sheets, are not subject to Item 3.01 8. Item 4.02: Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review. This item requires a company to file a Form 8-K if it concludes that any of its previously issued financial statements should no longer be relied upon because of an error in the financial statements. The following information must be disclosed under this item: • the date of the conclusion regarding non-reliance and an identification of the financial statements and years or periods covered that should no longer be relied upon; • a brief description of the facts underlying the conclusion to the extent known at the time of filing; and • a statement of whether the audit committee, or the board of directors in the absence of an audit committee, or authorized officer or officers, discussed with the company’s independent accountant the subject matter giving rise to the conclusion. Similarly, if the company is advised by, or receives notice from, its independent accountant that disclosure should be made or action should be taken to prevent future reliance on a previously issued audit report or completed interim review related to previously issued financial statements, it must disclose the following: • the date on which the company
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Post by fastwalker on Mar 6, 2005 13:31:14 GMT -5
• was so advised or notified; • identification of the financial statements that should no longer be relied upon; • a brief description of the information provided by the accountant; and • a statement of whether the audit committee, or board of directors in the absence of an audit committee, or authorized officer or officers, discussed with the independent account the subject matter giving rise to the notice. If a company receives such advice or notice from its independent accountant, it must provide the accountant the disclosure on the same day it is filed and request that the accountant provide the company as promptly as possible a letter addressed to the Commission stating whether the accountant agrees with the company’s statements and, if not, the respects in which it does not agree. The company must then amend its previously filed Form 8-K by filing the independent accountant’s letter as an exhibit to the Form 8-K within two business days of the company’s receipt of the letter.
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Post by fastwalker on Mar 6, 2005 13:35:25 GMT -5
It is not out of the question that maybe certain "safe harbor" issues must be addressed. Therefor, we should look at that aspect as part of the overall picture.
Safe Harbor
The Commission, recognizing that several of the new Form 8-K disclosure items may require management to quickly assess the materiality of an event or to determine whether a disclosure item has been triggered, adopted a safe harbor from liability under Section 10(b) of the Exchange Act and Rule 10b-5 for failure to timely file a Form 8-K. The safe harbor is limited to the following items:
•Item 1.01 - Entry into a Material Definitive Agreement •Item 1.02 - Termination of a Material Definitive Agreement •Item 2.03 - Creation of a Direction Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement or a Registrant •Item 2.04 - Triggering Events Accelerate or Increase a Direct Financial Obligation under an Off-Balance Sheet Arrangement •Item 2.05 - Costs Associated with Exit or Disposal Activities •Item 2.06 - Material Impairments •Item 4.02(a) – Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review (in the case where a company makes the determination and does not receive the notice described in Item 4.02(b) from its accountant)
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Post by fastwalker on Mar 6, 2005 13:37:57 GMT -5
Intent of the safe harbor only applies to a failure to file a report on Form 8-K. Material misstatements or omissions in a Form 8-K will continue to be subject to Section 10(b) and Rule 10b-5 liability. The new safe harbor extends only until the due date of the companies next periodic report for the relevant period in which the Form 8-K was not timely filed. The Commission also amended Form S-3 and Form S-2 to revise the eligibility requirements for those forms. Under the revised eligibility requirements, companies that fail to file timely Form 8-Ks for the same seven items that are subject to the safe harbor will not lose their eligibility to use Form S-3 and Form S-2 registration statements. It is important to note, however, that a company must be current in its disclosure to use Form S-3 or S-2. Thus, a company must have filed the disclosure required by the Form 8-K on or before the date that it files a Form S-3 or Form S-2 to satisfy the eligibility requirements of these forms. The Commission amended Securities Act Rule 144 to clarify that a company need not have filed all required Form 8-K reports during the 12 months preceding a sale of securities pursuant to Rule 144(h). However, a security holder will continue to be required to represent that he or she does not have inside information. more later as I collect my thoughts...on addressing the individual paragraphs in the CMKX PR...lol
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Post by fastwalker on Mar 6, 2005 14:02:50 GMT -5
This is also part of where I am headed with this thread..Thanks amigo... Did the SEC overstep it's bounds with CMKX halt? « Thread started on: Today at 04:25am » <br> -------------------------------------------------------------------------------- I think so, as I don't see any "emergency" that would require a halt now, with the reasons given in the SECs PR. These issues weren't considered an emergency last year when it could have "protected" those shareholders that bought CMKX at .0011, and should not be the basis of an "emergency" halt now. It would appear that the abusive use of Section 12(k) of the Securities Exchange Act of 1934, was intended by the SEC to aviod CMKX becoming a "black eye" under Regulation SHO. Specifically, the mis-use of the Emergency Authority clause, which enabled the immediate suspension of trading without notification and no real recourse for CMKX to try and meet the requirements to avoid a halt. It's a crime that the SEC was no where to be found when it came to "protecting the shareholders interests" the last few years, only to stick thier nose in once it is not needed or even wanted by most shareholders. Section 12(j) would have given CMKX a chance to straigten things out in a hearing to avoid a halt. The applicable parts of Section 12 start on page 82: www.sec.gov/about/laws/sea34.pdf(k) Trading Suspensions; Emergency Authority.(1) Trading Suspensions. If in its opinion, the public interest and the protection of investors so require, the Commission is authorized by orderA) Summarily to suspend trading in any security (other than an exempted security)for a period not exceeding 10 business days, and(B) Summarily to suspend all trading on any national securities exchange or other-wise, in securities other than exempted securities, for a period not exceeding 90calendar days.The action described in subparagraph (B) shall not take effect unless the Commissionnotifies the President of its decision and the President notifies the Commission thatthe President does not disapprove of such decision. If the actions described in subpara-graph (A) or (B) involve a security futures product, the Commission shall consult withand consider the views of the Commodity Futures Trading Commission. (2) Emergency Orders. (A) The Commission, in an emergency, may by ordersummarily take such action to alter, supplement, suspend, or impose requirements orrestrictions with respect to any matter or action subject to regulation by the Commissionor a self-regulatory organization under this title, as the Commission determines isnecessary in the public interest and for the protection of investorsi) To maintain or restore fair and orderly securities markets (other than marketsin exempted securities); or(ii) To ensure prompt, accurate, and safe clearance and settlement of transactionsin securities (other than exempted securities).(B) An order of the Commission under this paragraph (2) shall continue in effectfor the period specified by the Commission, and may be extended, except that in noevent shall the Commission’s action continue in effect for more than 10 business days, -------------------------------------------------------------------------------- .(6) Definition of Emergency. For purposes of this subsection, the term “emergency”means a major market disturbance characterized by or constitutingA) Sudden and excessive fluctuations of securities prices generally, or a substantialthreat thereof, that threaten fair and orderly markets, or(B) A substantial disruption of the safe or efficient operation of the national systemfor clearance and settlement of securities, or a substantial threat thereof.( Section 12(j) would have been more appropriate as there is no emergncy with CMKX and would allow us a hearing to clear things up. Section 12(j) has recently been applied to companies that are far more delinquent as is evidenced by the following link (USCI is one of them and deserves 12(k) treatment more than CMKX) www.sec.gov/litigation/admin/34-51202-o1.pdfI sure hope CMKX's lawyers are going over the regs with a fine tooth comb. The SEC seems to be getting desparate as evidenced by thier use of shotgun technics when a BB gun would have been sufficiant. Maybe CMKX will end up sueing before its all said and done. Man I'm tired. Hope this post mad sense. Time for bed. Fred I'll pick up more later on...
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Post by fastwalker on Mar 6, 2005 14:05:20 GMT -5
I have mixed feelings on this exclamation... SEC halts CMKX to keep it off friday SHO list? (by freeconn) freeconn Dr. Of Diamonds member is online Posts: 109 SEC halts CMKX to keep it off friday SHO list? « Thread started on: Today at 10:38pm » <br> -------------------------------------------------------------------------------- CMKX became eligible for coverage under Regulation SHO as outlined in rule 203(c)(6) linked below, because the company was "required to file reports" after the PR of 17 February 2005 (return to reporting status). www.sec.gov/rules/final/34-50103.htm#VQuote:With slight modification from the proposal, a "threshold security" is defined in Rule 203(c)(6) as any equity security of an issuer that is registered under Section 12, or that is required to file reports pursuant to Section 15(d) of the Exchange Act82 where, for five consecutive settlement days: there are aggregate fails to deliver at a registered clearing agency of 10,000 shares or more per security; that the level of fails is equal to at least one-half of one percent of the issuer's total shares outstanding. The first "fails to deliver" needed for CMKX to get listed as a threshold security happened on 23 Feb 2005 (3 day settlement requirement from 18 feb sales of stock), and even though the O/S was not yet public, the aggregate fails tally still started accumulating. Five consecutive settlement days later, on March 2nd, CMKX met the requirements to get listed as a threshold security (SHO list) except for one missing fact, the O/S. IMO, the SEC got wind of CMKX's rumored release of the O/S by the end of last week, which would have put the last piece of the SHO puzzle in place, so they halted us the day before it would have been official and activated our threshold status. The aggregate (total) fails needed for CMKX to get on the SHO list is/was 3,517,594,375 aggregate shares that failed to deliver (O/S around 700 billion X 1/2%=roughly 3.5 billion). With slightly over 25 billion shares traded from 18 Feb 2005 to the halt on 3 March 2005(volume numbers found here: www.noboxtrading.com/cmkm/volume.htm) , it isn't much of a stretch to believe that a total of at least 3.5 billion shares could have failed to deliver in those 8 trading days. On 9 March (13 consecutive settlement/trading days after 18 Feb) the MM's would have been required to close out thier fails position by purchasing securities of like kind and quantity (They would have had to find 3.5 billion certificates to cover). The dates I have given can be plus or minus a day or so, depending on the daily volume and actual "fails to deliver"running total. Fails to deliver are cumulative so 3.5 billion total fails are needed, not 3.5 billion fails each and every day. IMO, the reasons the SEC listed in thier statement as to why CMKX was halted, are mostly smoke and mirrors as they could have halted us at any time in the past year or more with the reasons given. CMKX forced thier hand by first backdooring our return to reporting status in the only way the SEC couldn't stop/delay it, , and then by announcing the release of the last key to SHO protection, which they also have no power to stop, the O/S. CMKX still had plenty of time to bring our reporting current so this halt was the only way the SEC could keep us from exposing the allegedly massive NSS's through SHO. Again, it's no coincidence that CMKX was halted of the eve of qualifting for 'threshold security "status. The SEC did the only thing they could as the clock is/was ticking towards the day when CMKX will have "corrected any deficiencies of the past" and thereby eliminate any reasons for future halts. I can't wait to see Mr Mahues next move. He struck a nerve and now it's time to tear the sucker out. Fred cmkxdiamond.proboards32.com/index.cgi?board=general&action=display&thread=1110087496
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Post by fastwalker on Mar 6, 2005 20:18:26 GMT -5
"Yes, risk-taking is inherently failure-prone. Otherwise, it would be called sure-thing taking." It is as hard to take success as it is failure." Lack of will power has caused more fAny fact facing us is not as important as our attitude toward it, for that determines our success or failure." "Life is pretty simple: You do some stuff. Most fails. Some works. You do more of what works. If it works big, others quickly copy it. Then you do something else. The trick is the doing something else." Okay so much for the pep talk.... The Securities and Exchange Commission gives companies 90 days to put together a year-end filing and 45 days to do a quarterly filing. That's ample time. On rare occasion, an investment-worthy company may be late in filing a 10-K or 10-Q report. In general, though, a late filing indicates poor internal controls or perhaps something worse, such as a dispute with the auditors. Investors should usually just avoid any company that's recently been tardy turning in homework to the SEC. Failure to Timely File Regular or Modified Reports Why might a distressed company have trouble timely filing a periodic report with the SEC? Any number of reasons, such as accounting irregularities that it must investigate and resolve before it can complete its financial statements - or a breach of its credit agreement or debt indenture that it may not want to publicly disclose before it can obtain the necessary waivers. Can a company obtain an extension from the SEC and file its periodic report late? Yes... but only in limited circumstances. A company must be able to show that it is unable to complete a filing without "unreasonable effort or expense." See more @ how to obtain an extension`. Note that there are no extensions available for mandatory Form 8-Ks - they are available just for Forms 10-K, 10-KSB, 10-Q, and 10-QSB. Source: Rule 12b-25 under the Exchange Act sets forth the only circumstances under which extensions to the Form 10-K, 10-KSB, 10-Q, and 10-QSB filing deadlines will be permitted.
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Post by fastwalker on Mar 6, 2005 20:19:59 GMT -5
How can a company obtain an extension from the SEC and file its periodic report late? By filing a Form 12b-25 with the SEC no later than one business day after the Form 10-K (or 10-KSB) or 10-Q (or 10-QSB) is due. For example, if a Form 10-K is due on March 30th, the related Form 12b-25 is due on March 31st. In the Form 12b-25, the company must: set forth the reasons for the inability to file timely, and represent that the inability to file could not have been eliminated without unreasonable effort or expense. If the company did not file on time because a third party was unable to provide a required opinion, report or certification, the form must include a statement from the third party explaining why it could not provide the opinion.
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Post by fastwalker on Mar 6, 2005 20:22:39 GMT -5
This requirement applies, for example, when the report is late because the auditors were unable to deliver their audit opinion - the auditors must prepare a statement explaining the reasons for their inability to deliver. Rule 12b-25 under the Exchange Act sets forth the only circumstances under which extensions to the Form 10-K, 10-KSB, 10-Q, and 10-QSB filing deadlines will be permitted. SEC's Manual of Publicly Available Phone interpretations under "M. Exchange Act Rules", interpretation #13 provides an example of how the 12b-25 deadline is calculated if the periodic report deadline falls on a weekend or holiday (i.e. the 12b-25 deadline falls one day after the periodic report's "new" deadline). What if a company cannot obtain a statement from a third party or cannot accurately represent that it is unable to file without unreasonable effort or expense? It should only provide accurate disclosure and whatever statements from third parties that it can obtain - even if it means that it technically does not meet the Form 12b-25 requirements - and timely file the Form 12b-25. As a practical matter, the SEC is unlikely to take enforcement action against a company that fails to file a form on the due date or within the Rule 12b-25 extension period - unless it has violated the securities laws in other ways (such as providing misleading disclosure in the Form 12b-25).
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Post by fastwalker on Mar 6, 2005 20:23:33 GMT -5
For how long is an extension from the SEC valid? 15 calendar days from the Form 10-K (and 10-KSB) filing deadline - and 5 calendar days from the Form 10-Q (and 10-QSB) filing deadline. Note that these extensions run from the original deadlines - not from the date that a Form 12b-25 is filed.
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Post by fastwalker on Mar 6, 2005 20:24:40 GMT -5
Can a company obtain a new extension if it cannot meet the deadline of its original extension? No - no other extensions are available under the SEC rules. Companies should file as promptly as they can, even if they are late. As a practical matter, the SEC is unlikely to take enforcement action against a company that fails to file a form on the due date or within the Rule 12b-25 extension period - unless it has violated the securities laws in other, more egregious ways. Source: The SEC's Manual of Publicly Available Phone Interpretations under "M. Exchange Act Rules", interpretation #14.
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