Actually, not just “IPO time.” FPIs were likely figuring this out recently. And this is a perennial question. Public companies usually confirm executive officer designations annually, which often means continuing last year’s list, but this discussion arises when there are officer hires, departures, and promotions.

And anyone who’s dealt with this knows it’s not always cut-and-dry. Corp Fin Staff will not provide advice or concurrence regarding a determination, and companies must apply the facts and rely on the rule itself, judicial decisions and various statements by the Staff for insight when making the determination. To that end, as Alan recently shared and discussed during his recent annual webcast “Alan Dye on the Latest Section 16 Developments” on Section16.net (replay available), the SEC listed several factors it believed established that a company employee was an executive officer and should have been treated as such in a cease-and-desist order against Ammo, Inc. in December 2025. If you’re on the fence about whether anyone should be so designated, these factors may be helpful.

– The individual shared an office suite with the CEO and the two were in almost daily contact
– The individual received more compensation than any named executive officer besides the CEO in several fiscal years
– The individual’s job responsibilities included:

• Providing input on key corporate decisions
• Soliciting individuals to join Ammo’s board of directors
• Serving on Ammo’s advisory board
• Identifying and participating in the hiring of other officers
• Developing the strategy for and executing corporate finance and fundraising activities
• Identifying and leading negotiations for corporate acquisitions
• Participating in hiring and terminating senior employees
• Preparing materials for and attending meetings of the board of directors
• Reviewing corporate financial projections
• Playing a strategic role in procuring manufacturing equipment and raw materials
• Identifying vendors and negotiating and signing contracts with vendors
• Approving payments to vendors
• Identifying and recommending a contractor (his brother’s company) to build a new manufacturing facility
• Directing the content of and review of financial statements and filings
• Drafting, reviewing, and editing press releases, earnings releases, and earnings call scripts
• Leading Ammo’s investor relations activities, including by meeting with investors and responding to analysts

 

For more, see our “Checklist: ‘Executive Officer’ Determinations” on TheCorporateCounsel.net and the great discussion in Romeo & Dye’s Section 16 Treatise.

– Meredith Ervine