E-Invest, Inc., formerly known as, Ashtin Kelly & Co., and William Jonathan Wride.
SECURITIES ACT OF 1933
Release No. 7892A / September 21,2000
SECURITIES EXCHANGE ACT OF 1934
Release No. 43315A / September 21,2000
File No. 3-10292
| In the Matter of E-INVEST, INC., formerly known as, |
CORRECTED CEASE-AND-DESIST PROCEEDINGS PURSUANT TO SECTION 8A OF THE SECURITIES ACT OF 1933 AND SECTIONS 15(b), 19(h) AND 21C OF THE SECURITIES EXCHANGE ACT OF 1934, MAKING FINDINGS AND IMPOSING REMEDIAL SANCTIONS AND A CEASE-AND-DESIST ORDER |
I.
The Securities and Exchange Commission ("Commission") deems it appropriate, in the public interest and for the protection of investors, to institute public administrative and cease-and-desist proceedings pursuant to Section 8A of the Securities Act of 1933 ("Securities Act") and Sections 15(b), 19(h) and 21C of the Securities Exchange Act of 1934 ("Exchange Act") against Respondents E-Invest, Inc., formerly known as, Ashtin Kelly & Co. ("Ashtin") and William Jonathan Wride ("Wride").
II.
In anticipation of the institution of these proceedings, Respondents Ashtin and Wride submitted Offers of Settlement ("Offers") to the Commission, which the Commission has determined to accept. Solely for the purpose of this proceeding and any other proceeding brought by or on behalf of the Commission, or in which the Commission is a party, and without admitting or denying the findings contained herein, except as to the jurisdiction of the Commission over Respondents Ashtin and Wride and over the subject matter of this proceeding and with respect to Respondent Ashtin as to Section III., paragraph 1., below, and with respect to Respondent Wride as to Section III., paragraph 2., below, which are admitted, Respondents Ashtin and Wride by their Offers consent to the entry of findings and remedial sanctions set forth below.
Accordingly, IT IS ORDERED that proceedings pursuant to Section 8A of the Securities Act and Sections 15(b), 19(h) and 21C of the Exchange Act be, and, they hereby are, instituted.
III.
On the basis of this Order and the Offers submitted by Respondents Ashtin and Wride, the Commission finds that:
1. At all relevant times, Respondent Ashtin was registered as a broker-dealer with the Commission.
2. At all relevant times, Respondent Wride was associated with Ashtin, a registered broker-dealer, as its president and chief executive officer.
Pre-Selling by Ashtin during the Marine and Suncoast Offerings
3. In February and June of 1999, Ashtin took part in two initial public offerings ("IPO") as lead underwriter. The February 1999 offering offered for sale 1,150,000 shares of common stock in Marine Bancshares, Inc. ("Marine") at $10.00 per share -- an aggregate total of $11.5 million. The Form SB-2 registration statement filed in connection with the Marine offering was declared effective on February 4, 1999.
4. The June 1999 offering offered for sale 700,000 shares of common stock in Suncoast Bancorp, Inc. ("Suncoast") at $10.00 per share -- an aggregate total of $7 million. The Suncoast Form SB-2 registration statement was declared effective on June 30, 1999. Ashtin participated as underwriter in both the Marine and Suncoast offerings on a "firm commitment" basis.
5. In its role as underwriter, Ashtin began soliciting expressions of interest in the Marine offering from the public in the months after the preliminary prospectus had been filed with the Commission but before Marine's registration statement became effective on February 4, 1999. When investors in Marine were solicited by Ashtin's registered representatives, they were asked to send checks to Ashtin before February 4, 1999. In total, more than 110 investors sent approximately $2.278 million to Ashtin before February 4, 1999. Some of the checks were sent in as early as November 1998. In addition, the memorandum section on many of the checks indicated that investors were sending in their money for shares in Marine. Upon receipt of the checks, Ashtin deposited the funds into the customers' accounts and held the funds in their accounts until the registration statement became effective.
6. Similarly, Ashtin began soliciting the public for the Suncoast offering in the months after the preliminary prospectus had been filed with the Commission but before that registration statement became effective on June 30, 1999. Like the Marine offering, investors were asked by Ashtin registered representatives to send checks to Ashtin before the offering had gone effective. In the Suncoast offering, about 115 investors sent a total of approximately $2.216 million to Ashtin for Suncoast stock before June 30, 1999. Some checks from the investors were sent in as early as April 1999. Moreover, the memo section on many of the checks indicated that the money was for shares in Suncoast. As in the Marine offering, Ashtin deposited the funds into the customers' accounts and held the funds in their accounts until the registration statement became effective.
7. In both the Marine and Suncoast offerings, many of the customers had never done business with Ashtin before and new accounts were opened for them at the firm. Interviews with investors in both offerings confirm that they were solicited by Ashtin's registered representatives to send in their monies before the offerings became effective. Indications of interest were accepted from persons who chose not to send in money prior to the effective dates of the offerings.
8. Wride was aware that Ashtin's registered representatives solicited potential investors to send in funds in connection with the Marine and Suncoast offerings prior to the effective dates of the offerings. He directed the representatives to solicit those funds and he personally solicited funds from investors as well. Wride claimed that he believed, based upon prior employment experience, Ashtin could properly ask potential investors in the offerings to send in their money for the shares at the time that they provided their expressions of interest.
9. The transactions effected by Ashtin, through Wride, constituted sales of securities within the meaning of the Securities Act. In both offerings, Ashtin, through Wride and the other registered representatives, solicited indications of interest and accepted and cashed checks from investors ear-marked for the purchase of Suncoast and Marine stock at a time when the registration statements had been filed but not yet declared effective.
Ashtin's Net Capital Violations
10. From February 28, 1999 until April 30, 1999, Ashtin, through Wride, violated the broker dealer minimum net capital rule, which requires that Ashtin maintain at least $100,000 in net capital. On March 24, 1999, the Commission received a Rule 17a-11 notification from Ashtin indicating that as of February 28, 1999, its net capital had fallen below the $100,000 requirement, but that it had received "paid-in-capital" in the amount of $355,000, which corrected the deficiency. According to Ashtin, the deficiency occurred because on February 5, 1999, Ashtin was forced to purchase 46,395 shares of Marine's stock when a selling group member reneged on its underwriting participation (take down) amount. Ashtin did not receive the borrowed money, i.e., the $355,000, to pay for the stock and correct the deficiency until March 1, 1999. Ashtin received the so-called paid-in-capital from its parent company.
11. Ashtin improperly recognized the $355,000 amount from its parent company as paid-in-capital. That amount was a loan, which should have been recorded as a liability on Ashtin's balance sheet. Records show that Ashtin's parent company had borrowed the $355,000 from Ashtin's clearing broker on the same day that it infused that amount into the firm as "capital." The loan from the clearing firm was memorialized in the form of a promissory note signed solely by Wride on behalf of the parent company and called for repayment of the principal amount plus interest at an annual rate of 8.25% by May 16, 1999. On May 17th, Ashtin repaid the defacto loan, including interest due on the promissory note, to the parent company, which in turn immediately repaid the promissory note, from funds received when the firm was finally able to sell the 46,395 shares of Marine stock. Even though Ashtin recorded the $355,000 amount as paid-in-capital, it described the repayment to the parent company on its books as the repayment of a loan.
12. The $355,000 loan from Ashtin's clearing broker to its parent company was essentially a way for Ashtin to get the funds it needed to stay in net capital compliance. Ashtin's parent company simply acted as an intermediary and provided the pretense for recording the funds as "capital." If the transaction had been properly recognized on Ashtin's balance sheet as a loan, Ashtin's net capital would have remained below the required level throughout the period that the loan was outstanding. Specifically, Ashtin would have had a negative net capital of $234,925 as of March 31, 1999 and a negative net capital of $197,106 as of April 30, 1999.
13. Wride was aware that Ashtin had recognized the $355,000 loan as paid-in-capital and that it had been recorded as paid-in-capital on Ashtin's books and records. In addition, the financial operations person at Ashtin that prepared the firms books and records and net capital computations during the relevant period was acting under Wride's direction and direct supervision.
14. As a result of the above transaction, Ashtin failed to maintain its net capital requirement of $100,000 from February 28, 1999 through April 30, 1999.
Ashtin's Books and Records, Reporting and Early Warning Rule Violations
15. Ashtin, through Wride, failed to make and keep current accurate books and records. From March 1, 1999 through May 16, 1999, Ashtin failed to make and keep current accurate books and records by improperly recording the $355,000 amount as capital contribution when it should have been recorded as a liability. Ashtin also filed reports on Form X-17A-5 with the National Association of Securities Dealers Regulation, Inc. ("NASDR") during March and April 1999 that failed to account for the $355,000 liability, and thus, contained inaccurate net capital computations. In addition, Ashtin failed to provide the Commission with telegraphic notice of its net capital deficiency and inaccurate books and records.
Legal Findings
16. Based upon the aforesaid conduct, Respondents Ashtin and Wride willfully violated, and committed or caused violations of, Section 5(a) of the Securities Act, in that they, directly and indirectly, made use of the means and instruments of transportation and communication in interstate commerce and of the mails, to sell to members of the public certain securities, namely the common stock issued in both the Suncoast and Marine offerings, when no registration statement was in effect as to said securities pursuant to the Securities Act.
17. Based upon the aforesaid conduct, Respondent Ashtin willfully violated, and committed or caused violations of, Section 15(c)(3) of the Exchange Act and Rule 15c3-1, promulgated thereunder, when it used the mails and the means or instrumentality of interstate commerce, to effect transactions in, and to induce or attempt to induce the purchase or sale of, securities while not maintaining minimum net capital.
18. Based upon the aforesaid conduct, Respondent Wride willfully aided and abetted, and caused Ashtin's violations of Section 15(c)(3) of the Exchange Act and Rule 15c3-1, promulgated thereunder, in that he aided and abetted, and caused Ashtin, by the use of the mails and the means or instrumentality of interstate commerce, to effect transactions in, and to induce or attempt to induce the purchase or sale of, securities while not maintaining minimum net capital.
19. Based upon the aforesaid conduct, Respondent Ashtin willfully violated, and committed or caused violations of, Section 17(a) of the Exchange Act and Rule 17a-3, in that it failed to make and keep current ledgers (or other records) reflecting all assets and liabilities, income and expense and capital accounts, and failed to make and keep current a record of the computation of aggregate indebtedness and net capital, as of the trial balance date, pursuant to Rule 15c3-1 promulgated under the Exchange Act.
20. Based upon the aforesaid conduct, Respondent Wride willfully aided and abetted, and caused Ashtin's violations of Section 17(a) of the Exchange Act and Rule 17a-3 in that he aided and abetted, and caused Ashtin to fail to make and keep current ledgers (or other records) reflecting all assets and liabilities, income and expense and capital accounts, and to fail to make and keep current a record of the computation of aggregate indebtedness and net capital, as of the trial balance date, pursuant to Rule 15c3-1 promulgated under the Exchange Act.
21. Based upon the aforesaid conduct, Respondent Ashtin willfully violated, and committed or caused violations of, Rule 17a-5(a) promulgated under the Exchange Act, in that it filed monthly reports on Form X-17A-5, which contained inaccurate financial information.
22. Based upon the aforesaid conduct, Respondent Wride willfully aided and abetted, and caused Ashtin's violations of Rule 17a-5(a) promulgated under the Exchange Act, in that he aided and abetted, and caused Ashtin to file monthly reports on Form X-17A-5, which contained inaccurate financial information.
23. Based upon the aforesaid conduct, Respondent Ashtin willfully violated, and committed or caused violations of, Rule 17a-11 promulgated under the Exchange Act, in that it failed to give telegraphic notice to the Commission and the NASDR on the same day that its net capital fell below the minimum amount required by Rule 15c3-1, and on the same day that it failed to make and keep current the books and records required by Rule 17a-3.
24. Based upon the aforesaid conduct, Respondent Wride willfully aided and abetted, and caused Ashtin's violations of Rule 17a-11 promulgated under the Exchange Act, in that he aided and abetted, and caused Ashtin to fail to give telegraphic notice to the Commission and the NASDR on the same day that Ashtin's net capital fell below the minimum amount required by Rule 15c3-1, and on the same day that Ashtin failed to make and keep current the books and records required by Rule 17a-3.
IV.
Based on the foregoing, the Commission deems it appropriate, in the public interest and for the protection of investors, to impose the sanctions specified by Respondents Ashtin and Wride in their Offers.
Accordingly, IT IS ORDERED that:
1. Respondent Ashtin be, and hereby is, censured.
2. Respondent Wride be, and hereby is, censured.
3. Respondent Ashtin cease and desist from committing or causing any violations and any future violation of Section 5(a) of the Securities Act, Sections 15(c)(3) and 17(a) of the Exchange Act and Rules 15c3-1, 17a-3, 17a-5, and 17a-11, promulgated thereunder.
4. Respondent Wride cease and desist from committing or causing any violations and any future violation of Section 5(a) of the Securities Act, Sections15(c)(3) and 17(a) of the Exchange Act and Rules 15c3-1, 17a-3, 17a-5, and 17a-11, promulgated thereunder.
5. Respondent Ashtin shall, within 30 days of the entry of this order, pay a civil money penalty in the amount of $20,000 to the United States Treasury. Such payment shall be: (A) made by United States postal money order, certified check, bank cashier's check or bank money order; (B) made payable to the Securities and Exchange Commission; (C) hand-delivered or mailed to the Comptroller, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Stop 0-3, Alexandria, VA 22312; and (D) submitted under cover letter that identifies Ashtin Kelly & Co. as a Respondent in these proceedings, the file number of these proceedings, a copy of which cover letter and money order or check shall be sent to Margarete E. Bronhard, Southeast Regional Office, 1401 Brickell Avenue, Suite 200, Miami, FL 33131.
6. Respondent Wride shall, within 30 days of the entry of this order, pay a civil money penalty in the amount of $5,000 to the United States Treasury. Such payment shall be: (A) made by United States postal money order, certified check, bank cashier's check or bank money order; (B) made payable to the Securities and Exchange Commission; (C) hand-delivered or mailed to the Comptroller, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Stop 0-3, Alexandria, VA 22312; and (D) submitted under cover letter that identifies William Jonathan Wride as a Respondent in these proceedings, the file number of these proceedings, a copy of which cover letter and money order or check shall be sent to Margarete E. Bronhard, Southeast Regional Office, 1401 Brickell Avenue, Suite 200, Miami, FL 33131.
By the Commission.
Jonathan G. Katz
Secretary