August 20, 2003
Edward J. da Parma, Esq.
Re: Denial of No-Action Request of Clark Street Capital, Inc.
Dear Mr. da Parma:
In your letter dated July 30, 2003 on behalf of Clark Street Capital, Inc. ("Clark Street"), you request assurance that the staff will not recommend enforcement action to the Commission under Section 15(g) of the Securities Exchange Act of 1934 and the rules thereunder for transactions in the securities of Sequiam, Corp. ("Sequiam") that Clark Street has already effected in reliance on opinion of counsel that Sequiam qualifies for an exemption from the definition of "penny stock." As explained below, the staff is unable to give you this assurance.
As a matter of policy, the staff grants no-action relief only prospectively, not retroactively.1 Because your request concerns ongoing activities, a no-action position would involve granting retroactive relief. We note, however, that the facts in your letter indicate Clark Street's counsel analyzed whether Sequiam is a penny stock by referring to Exchange Act Rule 3a51-1. In particular, paragraph (g)(1) of that rule excludes from the definition of "penny stock" the securities of an issuer that has "[n]et tangible assets (i.e., total assets less intangible assets and liabilities in excess of $2,000,000, if the issuer has been in continuous operation for at least three years ...." Paragraph (g)(3) of Rule 3a51-1 explains how net tangible assets must be demonstrated in financial statements for purposes of the rule. It establishes requirements for broker-dealers' review of company financial statements as well as other specific requirements. In addition, paragraph (g)(4) of the rule requires broker-dealers to maintain copies of these financial statements. For additional guidance on these provisions, you may wish to consult Securities Exchange Act Release No. 30608 (April 20, 1992), 57 FR 18004 (April 28, 1992).
1 See Letter re: Century Business Services, Inc. and CBIZ Financial Solutions, Inc. (March 1, 2002); Letter re: Oil-N-Gas (June 8, 2000).
Securities and Exchange Commission
Re: Clark Street Capital, Inc.
Ladies and Gentlemen:
This law firm represents Clark Street Capital, Inc. a retail broker dealer engaged in the sales of securities, and registered member of the National Association of Securities Dealers ("NASD"). Clark Street Capital was established in January 1995 and first became registered with the NASD in December 1995. From July 1999 through 2001, Clark Street Capital's client base consisted mostly of day traders and other short-term on-line traders. The firm's main office is currently at 12600 Deerfield Parkway, Suite 100, Alpharetta, Georgia and it maintains an Office of Supervisory Jurisdiction in New York, New York.
On or about June 13, 2002, Clark Street Capital entered into a Consulting Agreement ("Agreement") with Sequiam, Corp., a software, digital manufacturing, publishing and professional services organization via the Internet. Sequiam, Corp. consists of three (3) major products:
The Agreement between these entities was for a one-year period; and Clark Street was to provide certain management consulting services.
The terms of compensation for these services included a Warrant to purchase One Million Shares of Sequiam's common stock. The strike price and number of shares were dependent on certain performance measures as outlined in the Agreement.
Clark Street Capital met its requirements under the Agreement and purchased at the posted strike price approximately Seven Hundred Thousand (700,000) shares of Sequiam's common stock. Clark Street Capital then began sporadically selling these shares into the open market.
Pursuant to the Penny Stock Reform Act and other related Securities and Exchange Commission Rules, Clark Street Capital included "penny stock " notices to its customers regarding the sale of these common shares. Clark Street Capital continued to do so until September 9, 2002 when it received a Letter and Opinion of Counsel from Roy Withers, Esquire holding the opinion that these shares were exempt from SEC Rule 3a51-1(a)
Attorney Withers based his opinion as to the exemptions of these shares on financial information that indicated the net tangible assets of Sequiam were in excess of Two Million ($2,000,000.00) Dollars. In reliance upon, and only after discussions with both Attorney Withers and officers of Sequiam, Clark Street Capital has claimed a legitimate exemption from SEC Rules 15g-2 and 15g-9.
Based upon the representation of Sequiam's legal counsel that Sequiam's net tangible assets are in excess of Two Million ($2,000,000.00) Dollars and that Sequiam's common stock is not a "Penny Stock" pursuant to Rule 3a51-1(a) and, therefore, not subject to SEC Rule 15g-2 and 15g-9, Clark Street Capital has not considered Sequiam common stock not a "Penny Stock". We respectfully request that the staff concur that Clark Street Capital reliance on counsel's opinion was appropriate and issue Clark Street Capital a Letter of No-Action.
By: Edward J. da Parma