SEC issues new interps regarding Exchange Act and related rules and forms // Cooley // Global Law Firm

By Cydney Posner

The SEC has updated sections of the telephone interps relating to the Exchange Act (primarily the registration and reporting provisions — Sections 12, 13 and 15) and related rules and forms (excluding Form 8-K and Section 16 forms, which have been separately published). Some of the interps were previously published and have been revised in some cases. You might want to pay particular attention to the byzantine sections and rules related to termination of registrations and suspension of filing obligations under the Exchange Act (Section 15(d), Rules 12d2-2, 12g-4, 12h-3, 15d-6 and Forms 15 and 25).

Exchange Act Sections

Exchange Act Rules

Exchange Act Forms

Exchange Act Sections

Section 3(a)

The guarantee by a parent company of the debentures issued by its S-3-eligible subsidiary, which guarantee is neither listed on a stock exchange nor considered to be an "equity security" as defined in Section 3(a)(11), is not required to be registered under the Exchange Act.

Section 12(a)

The Liability Risk Retention Act of 1986 contains exemptions from the registration provisions of Section 5 of the Securities Act and Section 12 of the Exchange Act for interests in a "risk retention group." A risk retention group is a corporation the primary activity of which is to assume and spread all or a portion of the liability exposure of its members, if certain conditions are met. In the absence of a formal no-action request, Corp Fin declined to express any view as to whether the exemptions for interests in a risk retention group would extend to interests in a holding company for that group. The question has arisen because the exemption written into the statute is silent on that point. Ownership interests in a "risk retention group" are considered to be "securities" for purposes of Section 17 of the Securities Act and Section 10 of the Exchange Act, under the terms of The Liability Risk Retention Act of 1986.

Section 12(g)

Benefit plan options are regarded as a separate class of equity securities for Section 12(g) purposes.
Once a company registers a class of equity securities under Section 12(g), it cannot stop filing periodic and current reports without first deregistering, even if the initial registration under Section 12(g) was voluntary. The only method provided by the Exchange Act and rules for that company to properly cease filing reports is to deregister the class of securities under the Exchange Act.
Unless a company has a Section 15(d) reporting obligation (which arises, for example, with a Securities Act registration), it cannot file periodic and current reports without first registering a class of equity securities under Section 12 of the Exchange Act.
A registration statement on Form 10, Form 20-F or Form 8-A to register a class of equity securities under Section 12(g) becomes automatically effective 60 days after the date of filing. The automatic effectiveness cannot be delayed. The only way to delay or prevent effectiveness is to withdraw the Section 12(g) registration statement before the effective date. However, withdrawal is not permitted for a company that is required to register a class of equity securities under Section 12(g).
If a company seeks to withdraw a Section 12(g) registration statement, the withdrawal request must be filed with the SEC prior to the date of effectiveness. If the last day before automatic effectiveness falls on a non-business day, however, the company cannot rely on Exchange Act Rule 0-3 to submit the withdrawal request on the first business day following.
Once a Form 10 registration statement has becomes effective, the company is subject to Exchange Act reporting obligations, including the filing of periodic and current reports, even if the SEC staff has selected the Form 10 for review or if the review has not been completed.
As part of its plan of liquidation and dissolution, a company plans to form a liquidating trust, transfer its remaining assets to the trust and distribute interests in the trust to the company’s security holders. The company is required to file a certificate of dissolution with the proper state authorities. The certificate of dissolution must be filed and effective before Corp Fin will issue a no-action position granting relief from Section 12(g) for the interests in the liquidating trust.

Section 12(h)

Section 12(h) allows the SEC to exempt issuers from certain provisions of the Exchange Act. Lack of trading and an inability to locate a significant number of stockholders are not sufficient bases to warrant a Section 12(h) exemption for a Section 12(g) registered company.
Section 12(h) does not afford any exemptive relief for periodic reports that are delinquent.

Section 13(a)

When Corp Fin is asked to take a "no-action" position regarding an issuer in bankruptcy’s ability to file modified Exchange Act reports, it applies the general criteria in Exchange Act Release No. 9660 (June 30, 1972) and the specific factors outlined in SLB No. 2 (Apr. 15, 1997). Corp Fin will not issue a favorable response to a request for modified reporting if there is an active market for the issuer’s securities. To demonstrate that the nature and extent of the trading in its securities is sufficiently limited to warrant no-action relief, the issuer must show that its securities are not traded on a national securities exchange and that there is otherwise minimal trading in the securities. (See, Evolve Software, Inc. no-action letter (Jul. 16, 2003). as a representative example of "minimal" trading. Note that in Evolve, there was no trading on 36 days out of the 50 trading days preceding an asset sale, the price per share decreased significantly from $0.07 over a little more than a month to $0.0001, and the average daily trading volume of the common stock decreased from 36,343 in the 30 days proceeding the asset sale to 982 in the 51 trading days since that date, representing a 97% decrease.)
To become current in its Exchange Act reporting, a delinquent filer must file all delinquent reports. While filing required documents late will not "cure" Section 13(a) or 15(d) violations and will not make the registrant timely for purposes of S-3 eligibility, it will permit the registrant to become current in its Exchange Act reporting.

Section 13(d)

Where a limited partnership voluntarily registered its securities under Section 12(g) of the Exchange Act to qualify those securities for sale to "direct participant" retirement plans, Corp Fin would not provide relief under Sections 13(d), 13(g) and 13(e), since that relief would undermine the Department of Labor’s intent to require the protections of the Exchange Act reporting requirements for pension plan instruments.

Section 15(d)

A registrant with one or more effective Form S-3 and/or Form S-8 registration statements has fewer than 300 holders of record at the beginning of its fiscal year. To rely on the automatic reporting suspension contained in Section 15(d) of the Exchange Act, the registrant must post-effectively amend the registration statements to deregister any remaining unsold securities prior to filing the Form 10-K for the prior fiscal year. Otherwise, the Form 10-K would serve as a post-effective amendment, rendering the automatic suspension in Section 15(d) unavailable.
A company subject to Section 15(d) may not delay the due date of, or avoid filing, a quarterly or annual report by filing a Form 8-A at or after the end of the fiscal quarter or fiscal year but prior to the due date of the applicable report. Form 8-A explicitly prohibits a company subject to Section 15(d) with respect to a fiscal year from doing so.
A limited partnership offers securities on a Form S-11 that goes effective prior to the end of its fiscal year, but does not commence selling efforts, acquire properties or admit limited partners until after the end of its fiscal year. Escrow is not broken until September 30 of its next fiscal year. The partnership should file the Form 10-K for the fiscal year in which the Form S-11 went effective, regardless of the fact that selling efforts began in the next fiscal year.
A registration statement offered limited partnerships in series. A Form 15 was filed for the first partnership after the close of its fiscal year. Subsequently, the offering commenced for the second partnership. Section 15(d) reporting with respect to the second partnership should commence beginning with the quarter in which the offering of the second partnership’s interests starts.

Exchange Act Rules

Rule 12a-5

Rule 12a-5 does not provide an exemption from registration for "poison pill" rights under stockholder rights plans. Rather, Rule 12a-5 provides a temporary exemption from registration for substituted or additional securities to allow when-issued trading.

Rule 12b-2

A condition for meeting the definitions of "accelerated filer" and "large accelerated filer" in Rule 12b-2 is that the issuer must have been subject to the requirements of Section 13(a) or 15(d) of the Exchange Act for a period of at least "twelve calendar months" as of the end of its fiscal year. Consistent with the definition used in determining Form S-3 eligibility, a "calendar month" under Rule 12b-2 begins on the first day of the month and ends on the last day of that month. For example, if an issuer became subject to the requirements of Section 13(a) on January 15 and remained subject to Section 13(a) through the end of the year, it will have been subject to the requirements of Section 13(a) for eleven "calendar months" as of December 31.
An issuer that submits Exchange Act reports on a voluntary basis cannot satisfy the definitions of "accelerated filer" or "large accelerated filer" because Rule 12b-2 requires that the filer be "subject to" the reporting requirements of Section 13(a) or 15(d) of the Exchange Act. A voluntary filer is not "subject to" Section 13(a) or 15(d) because it is not obligated to file Exchange Act reports under either of those provisions.
Similarly, for purposes of determining "accelerated filer" and "large accelerated filer" status, an issuer may not take into account its reporting history as a voluntary filer in calculating the "twelve calendar months" during which the issuer must have been subject to the reporting provisions of the Exchange Act.
A reporting company with a fiscal year ending December 31, 2008 is not an accelerated filer for filings due in fiscal 2008 and is also eligible to use the requirements for smaller reporting companies for its annual and quarterly reports for fiscal 2008. As of the last business day of its second fiscal quarter ended June 30, 2008, the company's public float exceeded $75 million, which means that it must start using the larger reporting company requirements in fiscal 2009, starting with its first quarter Form 10-Q. As permitted by Item 10(f)(2)(i) of Reg S-K, the company’s last periodic report using the smaller reporting company requirements will be its Form 10-K for fiscal 2008. However, the company will become an accelerated filer as of the end of the fiscal year with respect to that Form 10-K and future reports even though it is "eligible to use the requirements for smaller reporting companies" under Rules 12b-2(1)(iv) and 12b-2(2)(iv). When the SEC adopted the smaller reporting company requirements in 2007 (to make application of the rules as complex as possible), it did not also change the manner in which a company transitions to accelerated filer status. A company’s accelerated filer status is determined as of the end of its fiscal year, which determination governs the deadlines for the annual report to be filed for that fiscal year and subsequent reports. As of the end of its fiscal year, the company met the condition in the "accelerated filer" definition that its public float on the last business day of its second fiscal quarter exceed $75 million. In contrast, the determination date for smaller reporting company status is the last business day of the second fiscal quarter. On that date, a larger reporting company that determines it is a smaller reporting company is permitted to transition to the smaller reporting requirements for that quarter's Form 10-Q, while a smaller reporting company required to transition to the larger reporting system after its determination date calculation will not be required to satisfy the larger reporting company disclosure requirements until the first quarter after the determination date fiscal year. The fact that the transition period for a company moving to the larger reporting system includes the end of the fiscal year does not mean that the company, as of the end of the fiscal year, is "eligible to use the requirements for smaller reporting companies" for purposes of Rules 12b-2(1)(iv) and 12b-2(2)(iv).
If two accelerated filers or large accelerated filers merge and become subsidiaries of a newly formed holding company, that newly formed holding company will be deemed an accelerated or large accelerated filer, respectively.
If a newly formed public company uses Form S-3 on the basis of another entity’s (e.g., its parent’s) reporting history and that other entity is an "accelerated filer," then the newly formed public company is also deemed an accelerated filer. In that case, the newly formed public company would not wait until the end of its fiscal year to determine its accelerated filer status, but must comply with the accelerated filer deadlines for its Forms 10-Q filed after its formation but prior to the filing of its first Form 10-K, and the company must check the box on the cover pages of these Forms 10-Q indicating that it is an accelerated filer.

Rule 12b-15

Where several Exchange Act reports are being amended at the same time, the amendments should not be made in a single filing. Amendments should be filed separately for each Exchange Act report to be amended.
An amendment to Form 10-K does not require signatures of the majority of the board of directors. Rule 12b-15 provides that amendments may be signed by a duly authorized representative of the registrant. (However, this practice does not seem to be common….)

Rule 12b-23

An issuer may incorporate by reference into its own Exchange Act documents information contained in the filed documents of another issuer, so long as the incorporating issuer conforms to the guidelines specified by Rule 12b-23.
Where a company is being acquired, the acquiring company may incorporate by reference the acquired company’s Form 10-K financial statements into the acquiring company’s Form 8-K, so long as copies of the pertinent pages of the Form 10-K are filed as an exhibit to the Form 8-K. The consents of the accountants for the acquired company should be filed with the Form 8-K.
An issuer with a pending Securities Act registration statement files its Form 10-K and seeks to incorporate by reference into the Form 10-K information from the pending registration statement. Incorporation is permissible, provided two conditions are met: (1) the portion of the registration statement to be incorporated does not include any incorporation by reference to another document (see Item 10(d) of Reg S-K), and (2) a copy of the incorporated portion of the registration statement is filed as an exhibit to the Form 10-K, as required by Rule 12b-23(a)(3).

Rule 12b-25

In limited circumstances, Rule 12b-25(b) is available to a parent with respect to a subsidiary whose financial statements are to be filed by amendment to the parent’s Form 10-K under Rule 3-09 of Reg S-X. Paragraph (f) of Rule 12b-25 excludes from the operation of the rule a company with a subsidiary whose financial statements are to be filed by amendment to the company’s Form 10-K, as provided in Rule 3-09 of Reg S-X. However, in cases in which the subsidiary under Rule 3-09: (1) is less than 50% owned, (2) is itself a reporting company, and (3) will be filing its financial statements late and is itself eligible to use Rule 12b-25 for an extension, Corp Fin will construe Rule 12b-25(b) to be available to the parent with respect to the subsidiary’s filing.
Under Rule 12b-25(a), a company filing a periodic report late is required to file a Form 12b-25 even when it anticipates filing a periodic report after the Rule 12b-25 extension period. See Exchange Act Release No. 16718 (Apr. 2, 1980). If the company does not anticipate filing the periodic report within the extension period, it should not check the box in Part II of Form 12b-25.
When the due date of a periodic report falls on a Saturday, Sunday or federal holiday, the issuer can timely file a Form 12b-25 on the second business day following the due date and timely file the report fifteen calendar days (annual report) or five calendar days (quarterly report) after the first business day following the due date. Rule 12b-25 provides that an annual or quarterly report will be deemed timely filed if a Form 12b-25 is filed no later than one business day after the due date of the annual or quarterly report and the report itself is filed no later than fifteen or five calendar days, respectively, after the due date. Rule 0-3 under the Exchange Act provides that when the due date of a report falls on a Saturday, Sunday or holiday, the report will be considered timely filed if it is filed on the first business day following the due date. (For example, where the due date for a Form 10-K is Sunday, March 31, the Form 10-K would be due on Monday, April 1 and the Form 12b-25 would be timely if filed on Tuesday, April 2. The Form 10-K would then be due for filing on Tuesday, April 16 (15 days after April 1, not 15 days after April 2).)
Similarly, if the Rule 12b-25 extension period ends on a Saturday, Sunday or federal holiday, the periodic report may be filed on the next business day and still be deemed to have been timely filed, consistent with Exchange Act Rule 0-3.
There are no additional extensions of time available to timely file periodic reports beyond those provided in Rule 12b-25.
Rule 12b-25(d) provides that, during the extension period, a company "will not be eligible to use any registration statement form under the Securities Act the use of which is predicated on timely filed reports until the subject report is actually filed." The staff interprets the term "use" in the rule to mean that a company would not be eligible to file a new registration statement on Form S-3 until the subject report is filed within the extension period. The staff does not interpret the term to mean that the company cannot continue to use an already effective Form S-3 to make offers and sales during the extension period. Rather, the company’s ability to continue to make such offers or sales will depend on whether it determines that the prospectus included in the Form S-3 is a valid Section 10(a) prospectus and there are no Section 12(a)(2) or anti-fraud concerns with the prospectus. If the company determines that it does not have a valid Section 10(a) prospectus, it should cease making any offers or sales under the registration statement that includes that prospectus.
If a registrant has failed to file its Form 10-K, it may continue to use an effective Form S-3 to make offers and sales after expiration of the Rule 12b-25 extension period relating to the Form 10-K, but before the date on which the registrant is required to update the registration statement under Section 10(a)(3) (depending, as noted above, upon whether the company determines that the prospectus included in the Form S-3 is a valid Section 10(a) prospectus and there are no Section 12(a)(2) or anti-fraud concerns with the prospectus). However, in what would seem to be an illogical result from a substantive standpoint, after the registrant files the Form 10-K, all offers and sales under the registration statement must cease. The reason for this peculiar result is that the Form 10-K serves as the Section 10(a)(3) update to the Form S-3, and, for purposes of Rule 401(b), the filing of the Form 10-K constitutes a post-effective amendment to the Form S-3, at which point the registrant, although now current, would not be deemed to have been timely in its reporting for the twelve calendar months preceding the filing of the Section 10(a)(3) update (General Instruction I.A.3 to Form S-3). To resume making sales under an effective registration statement, the company would have to file (and have declared effective) a post-effective amendment on whatever form the company is eligible to use for that offering at that time.
When, under Rule 144, the conditions of Rule 144(c)(1) must be satisfied, there is a risk in selling under Rule 144 during the Rule 12b-25 extension period because, if the missing report is ultimately not filed during that period, the issuer may be deemed not to have been current before it was filed.
Rule 12b-25 is available to registrants filing special financial reports under Rule 15d-2.
Rule 12b-25 cannot be used to extend the due date for timely filing of information incorporated by reference from definitive proxy materials into Item III of Form 10-K. General Instruction G.(3) to Form 10-K permits an issuer to omit Part III information from the Form 10-K and "forward" incorporate it from the proxy, if the proxy with the omitted information is filed with the SEC no later than 120 days from the end of the fiscal year. The Part III information is then deemed to have been timely filed on the due date applicable to the Form 10-K, but that does not mean that the 120th day is a second due date for the Part III information. As a result, Rule 12b-25 cannot be used to extend the time available to incorporate the proxy statement. If the issuer does not file its proxy statement or amend its Form 10-K within 120 days, it would be considered an untimely filer. Thus, the company would be eligible to use Form S-3 only after it subsequently filed its Exchange Act reports on a timely basis for 12 calendar months after the original Form 10-K due date.

Rule 12d2-2

For a class of securities that is being delisted from a national securities exchange and deregistered under Section 12(b), a Form 15 may not be filed to deregister that class before the effective date of the delisting pursuant to a Form 25. The effective date of a Form 25 for the delisting of an issuer’s securities may not be earlier than 10 days following the date on which the form is filed with the SEC. The Form 15 cannot be filed prior to the effective date of the Form 25 since the reporting obligations pursuant to Sections 12(g) and 15(d) remain suspended until that date.
After effectiveness of a Form 25 for an exchange delisting and subsequent filing of a Form 15 with respect to Section 12(g) and/or Section 15(d) reporting obligations, a registrant would not have to file Section 13(a) reports during the period after the filing of the Form 15 through the effectiveness of the termination of the Section 12(g) registration and/or Section 15(d) reporting obligation, notwithstanding Rules 12d2-2(d)(6) and (7), if the company would not otherwise be required to file Exchange Act reports under Sections 13(a) or 15(d) of the Exchange Act.
After an issuer files a Form 25, the issuer files a Form 12b-25 with respect to a periodic report that is due between the date it filed the Form 25 and the effective date for the delisting under Rule 12d2-2(d)(1). The date by which the periodic report must be filed pursuant to Rule 12b-25(b)(3) falls after the effective date of the delisting. The issuer is not otherwise required to file Exchange Act reports under Sections 13(a) or 15(d) of the Exchange Act after the effective date of the delisting. The issuer may not look to Rule 12b-25 to avoid filing a periodic report that becomes due after the filing of the Form 25 but before the effectiveness of the delisting and, therefore, the issuer must file the periodic report. Rule 12d2-2(d)(5) specifies that the issuer’s duty to file any reports under Section 13(a) solely because of registration pursuant to Section 12(b) is suspended only when the Form 25 is effective for the delisting.
And as a variation on the theme immediately above, assume the same facts: an issuer files a Form 25, is not otherwise required to file Exchange Act reports under Section 13(a) or 15(d) after the effective date of the delisting and, between the date of filing the Form 25 and its effective date, a periodic report becomes due. However, in this case, the due date of the periodic report is a Saturday, Sunday or federal holiday, and the effective date of the delisting occurs on the first business day following that due date. The issuer must still file the periodic report. Rule 12d2-2(d)(5) specifies that the issuer’s duty to file reports solely because of registration pursuant to Section 12(b) will be suspended upon the effective date of the delisting. An issuer may not look to Exchange Act Rule 0-3(a) to avoid filing the periodic report in the event that the due date of the periodic report falls on a Saturday, Sunday or federal holiday and the effective date of the delisting occurs on the first business day following that due date.

Rule 12g-3

Rule 12g-3 provides for the deemed registration, by operation of law, of the securities of successor issuers under the Exchange Act. No Exchange Act registration statement on Form 8-A or any other form is required to be filed. Under Rule 12g-3(f), the successor must file a Form 8-K with respect to the succession transaction, using the predecessor’s file number. After the Form 8-K is filed, a new file number will be generated for the successor company. When two reporting companies consolidate, each of the predecessor companies should file a Form 15 in connection with the succession.
Under Rule 12g-3, the securities issued by a holding company that acquires a company with a class of securities registered under Section 12(g) of the Exchange Act are automatically deemed to be registered under Section 12(g), whether or not a Form 8-K or 8-A has been filed with respect to those securities. The rule serves to eliminate any possible gap in the application of Exchange Act protection to the security holders of the predecessor.
The successor to a Section 12(g) registrant that reincorporated in another state through a merger reported the merger in the next Form 10-Q that would have been required of the Section 12(g) registrant, and thereafter continued to file Exchange Act reports in reliance upon Rule 12g-3. The successor later learned that at the time of the merger, the predecessor had fewer than 300 record shareholders. Although Rule 12g-3 does not provide for the succession to the predecessor’s Section 12(g) registration if, at the time of the succession, the securities of the class are held by fewer than 300 record holders, Corp Fin took the position that Section 12(g) registration could be voluntarily continued by the successor pursuant to Rule 12g-3 in these circumstances without the filing of a new Exchange Act registration statement.
Where the Rule 12g-3 succession involves the formation of a one-bank holding company, the subsidiary bank does not have an Exchange Act file number. In those situations, the SEC assigns an Exchange Act file number for the successor holding company when the Form 8-K is filed.
Following emergence from bankruptcy, an issuer issues a new class of common stock that has substantially the same terms as its old common stock, but with a different par value. Under the bankruptcy plan, all shares of the old common stock are canceled simultaneously with the issuance of the new common stock to new holders. Although Rule 12g-3 technically does not apply because only one issuer is involved, Corp Fin took the position that the new common stock would succeed to the registered status of the old common stock, so that continuous Exchange Act reporting would be required.
Rule 12g-3(a) would be available to effect Section 12 registration of securities of a successor issuer formed as part of the predecessor’s emergence from bankruptcy, even though the class of securities so registered will be issued to persons other than the holders of the registered class of the predecessor.

Rule 12g-4

An issuer that files a Form 12b-25 in connection with a periodic report, and then files a Form 15 under Rule 12g-4 during the Rule 12b-25 extension period is still required to file the periodic report. Rule 12g-4 does not suspend an obligation to file a Form 10-K or Form 10-Q when either form was due before the Form 15 was filed.
The filing of a certification on Form 15 pursuant to Rule 12g-4 immediately suspends an issuer’s obligation to file periodic reports pursuant to Section 13(a), but the issuer’s obligations under Section 14(a) continue until the effective date of the issuer’s Section 12(g) deregistration. Rule 12g-4 affects only Section 13(a) reporting requirements that arise from Section 12(g) registration and does not affect any reporting requirement under Section 15(d) of the Exchange Act that may become operative in connection with the termination of Section 12(g) registration.
A registrant with a calendar year end has fewer than 300 holders of record as of February 15 and files a Form 15 to terminate its Section 12(g) obligations under Rule 12g-4 before the due date of the Form 10-K for the most recently completed fiscal year. Assuming the registrant had more than 300 holders of record as of January 1, the registrant then has a Section 15(d) obligation that revives because it had an effective Form S-3 and Form S-8 that were updated during the registrant’s last fiscal year by virtue of the filing and incorporation by reference of a Form 10-K into the Form S-3 and Form S-8. The registrant can suspend the Section 15(d) obligation on a going forward basis provided: (1) the registrant first files post-effective amendments to the Form S-3 and Form S-8 to terminate those offerings; (2) those post-effective amendments become effective before the registrant files a Form 10-K for the last fiscal year; and (3) all of the applicable conditions in Rule 12h-3 are met. The registrant would still need to file a Form 10-K for the last fiscal year because the Form S-3 and Form S-8 were updated that year.
Following a tender offer, a company has sufficiently few shareholders to be eligible to file a Form 15 pursuant to Rules 12g-4 and 12h-3. Subsequently, the company will have a back-end merger. Corp Fin ordinarily will not accelerate termination of Section 12(g) registration under Rule 12g-4 where an Exchange Act event is anticipated. Accordingly, the company will be required to file a Schedule 14A proxy statement or a Schedule 14C information statement relating to the back-end merger during the 90-day period between filing the Form 15 and termination of registration pursuant to Rule 12g-4.

Rule 12g5-1

Rule 12g5-1, which defines "held of record" for purposes of Exchange Act Section 12(g) and 15(d), is the counting rule for determining whether an issuer has sufficient security holders to become or remain subject to Section 12(g) and to remain subject to Section 15(d). Rule 12g5-1(a)(3) provides a special counting method for securities held in a custodial capacity for a single trust, estate or account. In those cases, each trust, estate or account is a distinct holder of record for purposes of Sections 12(g) and 15(d). Institutional custodians, such as Cede & Co. and other commercial depositories, are not single holders of record for purposes of the Exchange Act’s registration and periodic reporting provisions. Instead, each of the depository’s accounts for which the securities are held is a single record holder. In contrast, Rule 12g5-1 does not require an issuer to look through record ownership to the beneficial holders in determining whether it has 500 security holders for purposes of registration under Section 12(g) of the Exchange Act. As a result, securities held in street name by a broker-dealer are held of record under the rule only by the broker-dealer. (The SEC originally proposed a version of the rule that would have looked through to the beneficial owners of the street-name securities, but adopted the rule in the current form instead.)
An ESOP is a "trust," and counts as one holder of record for purposes of Rule 12g5-1(a)(2). An ESOP is not a "voting trust" under Rule 12g5-1(b).

Rule 12h-3

Section 15(d) of the Exchange Act provides an automatic suspension of the periodic reporting obligation as to any fiscal year (except for the fiscal year in which the registration statement became effective) if an issuer has fewer than 300 security holders of record at the beginning of that fiscal year. In contrast, Rule 12h-3 permits a company to suspend its reporting obligation under Section 15(d) if the requirements of the rule are met, including the filing of a Form 15, at any time during the fiscal year. Because the requirements of Rule 12h-3 do not meet the literal test of Section 15(d), Rule 12h-3 requires the filing of Form 15 as a condition of the suspension. By contrast, under Rule 15d-6, if an issuer has fewer than 300 security holders of record at the beginning of the fiscal year, a Form 15 should be filed to notify the SEC of the suspension, but the suspension is granted by statute and is not contingent upon filing the Form 15.
A company’s obligation to file periodic reports was automatically suspended under Section 15(d) for fiscal 2007 because the class of securities at issue was held by fewer than 300 record holders on the first day of the company’s fiscal year. Subsequently, on the first day of fiscal 2010, the number of record holders exceeded 300, and as a result, the company’s obligation to file periodic reports under section 15(d) "revived." The first report due will be a Form 10-K for the previous fiscal year (fiscal 2009). This position is consistent with the "look-back" provision of Rule 12h-3(e), which provides that, where a company's reporting obligation is suspended under Rule 12h-3 but subsequently "revived," the company must begin reporting again under Section 15(d) by filing a Form 10-K for its previous fiscal year. Similarly, a company that must file a registration statement on Form 10 to register a class of securities under Section 12(g) must include financial statements for its previous fiscal year.
A company cannot suspend its reporting obligations under Section 15(d) with respect to the fiscal year within which a registration statement became effective and must always file the Form 10-K for that fiscal year, regardless of whether the company suspends its reporting obligation under Section 15(d) or Rule 12h-3.
A registrant formed two limited partnerships, the A partnership and the B partnership, both having between 300 and 500 shareholders. The registrant has been filing a combined Form 10-K report for those partnerships using the 33- file number from the Securities Act registration statement. The B partnership is now eligible to suspend filing pursuant to Rule 12h-3 because it has had less than $10 million in assets for its last three fiscal years. The registrant can file a Form 15 relating to the B partnership, indicating the suspension of reporting with respect to that partnership, and continue filing reports under the 33- number for the remaining partnership.
Rule 12h-3(c)-(d) operates to relieve a holding company of the Section 15(d) reporting obligation that would normally arise from the registration statement filed for the reorganization of a non-reporting company into a one-subsidiary holding company, where the equity holders receive the same proportional interests in the holding company and the holding company emerges from the reorganization with more than 300 shareholders.

Rule 12h-5

For a parent company's subsidiary to be exempt from filing a periodic report pursuant to Rule 12h-5, the full and unconditional guarantee by the parent of the subsidiary’s debt securities must be in effect before the end of the period that would have been covered by the periodic report, assuming that all other applicable conditions of Rule 3-10 of Reg S-X are met.
If an issuer of a guaranteed security has a different class of securities that is registered under Section 12 of the Exchange Act, the issuer cannot rely on Rule 12h-5 for reporting relief until it deregisters the other class of securities.

Rule 13a-1

A registrant with a December 31 fiscal year end that files a Form 10 in November 2007 will be required to file its first Form 10-K with respect to its fiscal year ended December 31, 2007, even though the Form 10 did not become effective until January 2008.
A Securities Act registration statement, which does not include audited financial statements as of the issuer's most recent fiscal year end, is declared effective. Concurrently, the issuer registers under the Exchange Act using a Form 8-A that also does not contain the final year end audited financial statements. The issuer is not permitted to file a special financial statement report containing those audited financial statements pursuant to Rule 15d-2 (as opposed to an annual report in accordance with Rule 13a-1). The Rule 13a-1 annual report would be due at the same time as any other such annual report.

Rule 13a-14

When the issuer is filing an amendment to a periodic report, the principal executive officer and principal financial officer may omit certain paragraphs from the accompanying certifications required by Rules 13a-14(a) and 15d-14(a), depending upon the nature of the amendment. If there are no financial statements or other financial information in the amendment, then paragraph 3 may be omitted. If the amendment does not contain or amend disclosure pursuant to Item 307 (disclosure controls) or 308 (internal control) of Reg S-K (or the equivalent disclosure requirement in Form 20-F or 40-F), and that disclosure is not otherwise required to be amended given the nature of the reasons for the amendment, paragraphs 4 and 5 may be omitted. Paragraphs 1 and 2 may not be omitted under any circumstances.
An officer signing the certification should include his or her title under the signature. If the same individual is both the principal executive officer and principal financial officer, the individual may provide one certification and provide both titles underneath the signature.
The officers who hold the positions and perform the functions of principal executive and financial officers at the time of filing of the periodic report are the officers who should sign the accompanying certifications, even if they were appointed after the end of the quarter but before the filing of the related Form 10-Q.
Where a company’s CEO is resigning at the end of the year and is no longer performing the functions of a principal executive officer (even though retaining the title of CEO), the individual performing the functions of a principal executive officer at the time of the filing must provide the certification. If it is not the titular CEO, the company should disclose in the filing that the certifying individual is performing the functions of a principal executive officer.
If an issuer does not have a principal executive officer or a principal financial officer, the person or persons performing similar functions at the time of filing of the report must execute the required certification.
Co-principal executive officers (or co-principal financial officers) should each execute separate certifications.
If the certifications required by Rules 13a-14(a) and 15d-14(a) are not included as exhibits to a Form 10-K or 10-Q, and an amendment will be filed to include the certifications as exhibits, the amendment should include the entire periodic report, not just the signature page, because the certification relates to the entire Form 10-K or 10-Q. If the amendment is not filed within the time period required for the periodic report, the report will deemed to be untimely for purposes of form eligibility, and the issuer will not be deemed current until the amended periodic report containing the certification is filed.
Where the registrant (a limited partnership) does not have an audit committee, it is a question of fact as to the persons who should be considered to be performing the equivalent function as referenced in paragraph 5 of the certifications required by Rules 13a-14(a) and 15d-14(a). Relevant considerations may include: who is responsible for engaging the external auditor and for pre-approving audit and non-audit services? To whom is the registered public accounting firm reporting critical accounting policies and practices? To whom are the principal executive and financial officers disclosing significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting, or fraud involving management or other employees who have a significant role in the registrant’s internal control over financial reporting? Often, if there is ultimately a corporation serving as the general partner of a limited partner in the chain of ownership, the corporation’s audit committee or full board is likely performing the equivalent functions of an audit committee for the registrant. Or, if there is ultimately an individual serving as the general partner of a limited partner in the chain of ownership, then that individual is likely performing the equivalent functions of an audit committee for the registrant.
An issuer filing a special financial report on Form 10-K under Rule 15d-2 must file the certification required by Item 601(b)(31) of Reg S-K, but may omit paragraphs 4 and 5 of the certification because the report will contain only audited financial statements and not Item 307 or 308 of Reg S-K disclosures.

Rule 15d-2

A Securities Act registration statement, which does not include audited financial statements as of the issuer's most recent fiscal year end, is declared effective. Concurrently, the issuer registers under the Exchange Act using a Form 8-A that also does not contain the final year end audited financial statements. The issuer is not permitted to file a special financial statement report containing such audited financial statements pursuant to Rule 15d-2 (as opposed to an annual report in accordance with Rule 13a-1). The Rule 13a-1 annual report would be due at the same time as any other such annual report.

Rule 15d-6

Section 15(d) of the Exchange Act provides an automatic suspension of the periodic reporting obligation as to any fiscal year (except for the fiscal year in which the registration statement became effective) if an issuer has fewer than 300 security holders of record at the beginning of the fiscal year. Under Rule 15d-6, if an issuer has fewer than 300 security holders of record at the beginning of the fiscal year, a Form 15 should be filed to notify the SEC of the suspension, but the suspension is granted by statute and is not contingent upon filing the Form 15.

Rule 15d-10

Exchange Act Release No. 26589, which significantly amended Rule 15d-10, states that "[a] change from a fiscal year ending as of the last day of the month to a 52-53 week fiscal year commencing within seven days of the month end (or from a 52-53 week to a month end) is not deemed a change in fiscal year for purposes of reporting subject to Rule 13a-10 or 15d-10 if the new fiscal year commences with the end of the old fiscal year. In such cases, a transition report would not be required. Either the old or new fiscal year could, therefore, be as short as 359 days, or as long as 371 days (372 in a leap year)." While a transition report would not be required, a Form 8-K (Item 5.03) may have to be filed to report the change in fiscal year end.
A company planned to file a Form 11-K for a 6-month year period for an ERISA plan. Form 11-K provides that the due date for an ERISA plan’s Form 11-K is 180 days after fiscal year end. Notwithstanding the due dates prescribed by Rule 15d-10(j)(1) for transition reports to be filed on the form appropriate for annual reports of the issuer, Corp Fin took the position that the short-year Form 11-K could be filed 180 days after the plan’s fiscal year end.

Rule 15d-14 and Rule 15d-15

Even though an issuer is filing reports under Section 15(d) on a "voluntary" basis (for example, pursuant to a covenant in an indenture or similar document) due to a statutory suspension of the Section 15(d) filing obligation, it must still comply with Rules 15d-14 and 15d-15 and the disclosures required by Item 307 and Item 308 of Reg S-K, whether or not a Form 15 has been filed pursuant to Rule 15d-6.

Rule 15d-21

An employee benefit plan with a Section 15(d) reporting obligation that files Forms 11-K, or that has its filing obligation satisfied by compliance with Exchange Act Rule 15d-21, is not required to file any other periodic reports or any current reports. (See the Citizens and Southern Corp. no-action letter (Feb. 8, 1988).)

Rule 15g-9

Where, after an IPO, the issuer’s net tangible assets will be less than $2 million, the common stock will not be an NMS Stock, as defined in Section 242.600(b)(47) of Reg NMS and the public offering price is $5 a share, the prospectus should disclose the applicability of Rule 15g-9, the penny stock cold-calling rule, in the event of a price decline in the aftermarket. The purpose of the disclosure in these circumstances is to alert dealers required to deliver a prospectus in the 90 days after the effective date of their additional responsibilities under Rule 15g-9 if the trading price falls below $5.

Exchange Act Forms

Form 8-A

To register securities on more than one national securities exchange concurrently under Section 12(b), a registrant must file a separate registration statement for each exchange. A registrant also cannot amend an already effective Form 8-A to register securities on an additional national securities exchange. It must instead file a new registration statement.
The requirement to identify the exchange on which the registered security is traded does not apply to over-the-counter markets.
Generally, a company that is voluntarily filing periodic reports would not be permitted to use Form 8-A to register a class of its securities because use of Form 8-A is conditioned upon the company's being "required to file reports pursuant to Section 13 or 15(d)." However, a company that was required to file reports under Section 15(d), but after suspension of its obligation to file, continued to file voluntarily and did not file a Form 15, may be allowed to use Form 8-A to register its securities pursuant to Section 12(g) if the company was current in all Section 15(d) reports and no additional information would have been made available to the public by requiring a Form 10 to be filed.
A company subject to Section 15(d) with respect to a fiscal quarter or fiscal year cannot delay the due date or avoid filing the related quarterly or annual report by filing a Form 8-A at or after the end of the fiscal quarter or fiscal year but prior to the due date of the applicable report. Form 8-A explicitly prohibits a company subject to Section 15(d) with respect to a fiscal year from doing so.
A Canadian company filed a Securities Act registration statement in connection with a proposed merger. The registration statement became effective but was not used. The company desired to register under the Exchange Act and wanted to use Form 8-A. The company was subject to Section 15(d) of the Exchange Act because of the effective registration statement, but it had not made any of the periodic filings required by Section 13(a). Form 8-A is available to register the securities of any issuer that is required to file reports pursuant to Section 15(d). Counsel was informed that Corp Fin would not object to the use of the Form 8-A as long as the company first filed all of the delinquent Exchange Act reports.
A company has over 500 shareholders and $10 million in assets on December 31, the last day of its fiscal year, and is thus required to file an Exchange Act registration statement within 120 days of December 31. On March 1 of the next year, the company’s first Securities Act registration statement becomes effective, and the company becomes subject to Section 15(d) of the Exchange Act. The company may file its Exchange Act registration statement on Form 8-A because at the time that filing is required, the company will be subject to Section 15(d).
A company issued units of common stock and warrants, and more than a year has passed since the effectiveness of the Securities Act registration statement. The warrants are now exercisable and the company wants the common stock to be listed on NASDAQ. As to warrant exercises, post-effective amendments would be required to keep the prospectus current for Section 10(a)(3) purposes. If the company is still subject to Section 15(d), the company may use a Form 8-A to register under the Exchange Act.
A publicly held company registered under the Exchange Act and emerging from bankruptcy proposes to issue, pursuant to the bankruptcy plan, a new class of common stock with a different par value from its other common stock. Since the prior class of common stock was cancelled as part of the bankruptcy proceedings, the company will be permitted to amend its current Form 8-A Exchange Act registration statement to effect registration of the new class of common stock.
A company may file a Form 8-A prior to the effective date of a Securities Act registration for the same shares, where the purpose is to facilitate listing on an exchange as soon as the Securities Act registration becomes effective.

Form 10

A wholly owned subsidiary that meets the requirements set forth in Instruction I to Form 10-K for omitting certain information from Form 10-K may also rely on that instruction to omit the same information from a Form 10.
A company that is eligible to use Form 8-A is not precluded from using Form 10.
A publicly held company registered under the Exchange Act and emerging from bankruptcy proposes to issue, pursuant to the bankruptcy plan, a new class of common stock with a different par value from its other common stock. Since the prior class of common stock was cancelled as part of the bankruptcy proceedings, the company will be permitted to amend its current Form 10 Exchange Act registration statement to effect registration of the new class of common stock.

Form 10-K

In order to incorporate information from the annual report to shareholders into the Form 10-K pursuant to General Instruction G(2), the report must be prepared in time to be submitted with the Form 10-K. If the annual report is available only in printer’s proof form when the Form 10-K is due, the proof may be filed as an exhibit to satisfy this instruction.
Although General Instruction G(3) indicates that the information regarding executive officers required by Item 401 of Regulation S-K may be included in Part I of Form 10-K, it is permissible to include that information in Part III of the Form 10-K.
A Form 10-K must be signed by a majority of the board. If there are vacancies on the board, this signature requirement is satisfied if a majority of the current directors signs the Form 10-K. For example, a company’s by-laws provide for a 15-person board of directors, and at present there are two vacancies. The signature requirement of a majority of the board is satisfied if a majority (i.e., 7 out of 13) of the current directors signs the Form 10-K.
Directors’ signatures may be provided pursuant to powers of attorney.
General Instruction D(2)(a) states that where the registrant is a limited partnership, the Form 10-K must be signed by a majority of the board of directors of any corporate general partner who signs the report. If there is more than one general partner, then a majority of the general partners must sign the Form 10-K. Where one general partner is managing and others retain no control, only the managing general partner must sign the Form 10-K.
General Instruction G(3) to Form 10-K permits an issuer to incorporate Part III information into the Form 10-K from its definitive proxy material, if the definitive proxy material is filed within 120 days after the end of the issuer’s fiscal year. Where the 120th day falls on a Saturday, Sunday or holiday, the definitive proxy material may be filed on the first business day following, pursuant to Exchange Act Rule 0-3.
An issuer filing a Form 10-K pursuant to Section 15(d) may not rely on General Instruction G(3) to incorporate by reference into the Form 10-K Part III information presented in a proxy statement that was not subject to the Section 14(a) requirements at the time it was prepared and delivered, unless the proxy statement is filed as an exhibit to the Form 10-K, as required by Rule 12b-23(a)(3).
General Instruction I(l)(b) provides relief for certain wholly owned subsidiaries if there are no defaults "not cured within thirty days." That language refers to defaults in the payment of principal, interest, a sinking or purchase fund installment, as well as any other material defaults.
If a company filed its annual report on Form 10-K intending to incorporate by reference Part III information, but the proxy statement will not be filed within the required 120 days, the company must amend the Form 10-K prior to the end of the 120-day period to provide the information that was to have been incorporated by reference.
A company that intends to incorporate the Part III information in its Form 10-K, but is acquired between the due date of its Form 10-K and the 120th day after the end of its fiscal year, must still amend its Form 10-K to include the Part III information.
An issuer with a pending Securities Act registration statement can incorporate by reference into the Form 10-K information from the pending registration statement, provided that two conditions are met: (1) the portion of the registration statement to be incorporated does not include any incorporation by reference to another document (see Item 10(d) of Reg S-K), and (2) a copy of the incorporated portion of the registration statement is filed as an exhibit to the Form 10-K, as required by Exchange Act Rule 12b-23(a)(3).
The annual report to shareholders must be filed as an exhibit to Form 10-K only if information contained in the annual report is incorporated by reference in the Form 10-K or the registrant specifically requests that it be treated as part of the proxy soliciting material. Only those portions of the annual report incorporated by reference are deemed to be filed as part of the Form 10-K.
An issuer files its 2008 Form 10-K using the disclosure permitted for smaller reporting companies under Reg S-K, but indicates that it will no longer qualify to use the smaller reporting company disclosure for 2009 because its public float exceeded $75 million at the end of its second fiscal quarter in 2008. The issuer proposes to rely on General Instruction G(3) to incorporate by reference executive compensation and other disclosure required by Part III of Form 10-K into the 2008 Form 10-K from its definitive proxy statement to be filed not later than 120 days after its 2008 fiscal year end. The issuer may use smaller reporting company disclosure in this proxy statement, even though it does not qualify to use smaller reporting company disclosure for 2009, because the issuer could have used the smaller reporting company disclosure for Part III of its 2008 Form 10-K if it had not used General Instruction G(3) to incorporate that information by reference from the definitive proxy statement.
General Instruction I to Form 10-K permits the filing of an abbreviated Form 10-K by certain wholly owned subsidiaries of a reporting company. One of the conditions for the use of the abbreviated form is that all of the registrant’s equity securities must be held by a single person. A request to use the abbreviated form was received from a company that had a series of non-voting preferred stock held by 135 persons. All of the common stock was held by a single person. The company was permitted to use the abbreviated Form 10-K on the condition that the number of holders of the non-voting preferred remained below 500 and therefore did not necessitate registration of that class pursuant to Section 12(g) of the Exchange Act.
For purposes of Form 10-K, Item 601(b)(10)(iii) of Reg S-K requiring disclosure of remunerative contracts would apply to a deferred compensation plan entered into during the fiscal year, even though the officer/director retired during that fiscal year and no longer was an officer/director.
A limited partnership that offers securities on a Form S-11 that became effective on December 15th, does not commence selling efforts nor does it acquire properties or admit limited partners until after December 31st, the end of its fiscal year. Escrow is not broken until June 30th of its next fiscal year. Regardless of the fact that selling efforts began in the next fiscal year, the partnership should file a Form 10-K for the fiscal year in which the Form S-11 became effective.
A calendar year Exchange Act company proposes to file a Form N-8A and become a registered management investment company prior to March 31, the due date for its Form 10-K. Its first N-CSR, which would satisfy both Investment Company Act and Exchange Act reporting obligations, will not be due until after the period ending June 30. The company should file the Form 10-K due March 31, even though the company will be an investment company as of that date, and a Form 10-Q for the period from January 1 through the date the Form N-8A is filed.
A voluntary filer must indicate its voluntary status by checking the appropriate box on the Form 10-K cover page. If the company desires to assist Rule 144 sellers by indicating that it is "current" in its Exchange Act reporting, the company should add an explanatory note indicating that it has filed all Exchange Act reports for the preceding 12 months. It should not check the box on the cover page representing that it has filed all required reports because that would create confusion regarding its voluntary status.
A publicly traded REIT has a commonly used structure (called an UPREIT) in which the publicly traded corporation acts as general partner of a majority-owned limited partnership that holds and operates all of the properties. The executive officers of the corporation are also executive officers of the operating partnership. The compensation paid to those executives is for services provided to both entities (i.e., they are not separately compensated for their services to the operating partnership). Both entities report pursuant to Exchange Act obligations. Pursuant to General Instruction G(3), the corporation’s Form 10-K will forward incorporate its Reg S-K Item 402 disclosure from its definitive proxy statement. The operating partnership does not file a proxy statement. Because the corporation’s and the operating partnership’s compensation are integrally related, the operating partnership may incorporate Part III information into its Form 10-K from the corporation’s definitive proxy statement.
An amendment solely to correct the signature page of a Form 10-K by providing the previously omitted signatures of both the principal financial officer and the principal accounting officer does not require new signatures by the directors.

Form 10-Q

Part II, Item 4 of Form 10-Q requires disclosure of the results of the vote on all matters voted upon at the annual or special meeting, including shareholder proposals and any matter raised on the floor of the meeting, whether or not included in management’s proxy materials.
During the quarter in which a company’s IPO registration statement became effective, but prior to the effective date, the company submitted matters to a vote of its security holders. The results of the matters voted on must be disclosed in Part II, Item 4 because Form 10-Q applies to the entire quarter.

Form 11-K

The general instructions to Form 11-K state that plans subject to ERISA "shall file the plan financial statements within 180 days after the plan's fiscal year," which means that ERISA plans may file the entire Form 11-K (not only the financial statements) within 180 days after the end of the plan fiscal year. As stated in Release No. 33-6867, "plans subject to ERISA will be permitted to file their Forms 11-K within 180 days after the plan’s fiscal year end." Note also that the Form 11-K now contains only financial statements, and Exchange Act Rule 15d-21 has been amended to allow the filing of ERISA plan financial statements as an amendment to the Form 10-K.
Reports regarding internal control over financial reporting called for by Item 308 of Reg S-K are not required to be included in a Form 11-K.
Neither the certification requirements of SOX 302 nor of SOX 906 apply to annual reports on Form 11-K.
An issuer that has maintained a 401(k) employee savings plan for several years has decided to add its common stock as an investment option in the plan. Under the Diasonics no-action letter (Dec. 29, 1982), both the plan interests and the employer stock will be subject to the Securities Act. Prior to the addition of the employer stock, the plan interests would not be regarded as securities. General Instruction A.2. to Form S-8 will ordinarily require a plan that has been in existence for more than 90 days to file a Form 11-K concurrently with the registration of the offering of plan interests and employer securities. However, a Form 11-K is not required to be filed concurrently with the Form S-8 in this situation because the interests were not securities before adoption of the amendment adding employer securities.
A company filed a Form S-8 registration statement to register participations in a profit-sharing plan. It has been determined that the participations would, in fact, be exempt from registration under Section 3(a)(2) of the Securities Act. The remaining participations are being deregistered. The company was informed that under the circumstances, Corp Fin would not require the continued filing of Form 11-K annual reports for the profit-sharing plan.
A company planned to file a Form 11-K for a six-month year period for an ERISA plan. Form 11-K provides that the due date for an ERISA plan Form 11-K is 180 days after the fiscal year end. However, Rule 15d-10 provides that for short years of six months or more, an annual report would be due 90 days after the fiscal year end. Corp Fin took the position that the short-year Form 11-K could be filed 180 days after the fiscal year end.

Form 12b-25

A company is required to file a Form 12b-25 even when it anticipates filing a periodic report after the Rule 12b-25 extension period. See Release No. 34-16718. If the company does not anticipate filing the periodic report within the extension period, it should not check the box in Part II of Form 12b-25.
A Form 12b-25 submitted in connection with a late Form 11-K to be filed on paper pursuant to Item 101(b) of Reg S-T may also be filed in paper.

Form 15

Section 15(d) of the Exchange Act provides an automatic suspension of the periodic reporting obligation as to any fiscal year (except for the fiscal year in which the registration statement became effective) if an issuer has fewer than 300 security holders of record at the beginning of the fiscal year. In contrast, Rule 12h-3 permits a company to suspend its reporting obligation under Section 15(d) if the requirements of the rule are met, including the filing of a Form 15, at any time during the fiscal year. Because the requirements of Rule 12h-3 do not meet the literal test of Section 15(d), Rule 12h-3 requires the filing of Form 15 as a condition of the suspension. By contrast, under Rule 15d-6, if an issuer has fewer than 300 security holders of record at the beginning of the fiscal year, a Form 15 should be filed to notify the SEC of the suspension, but the suspension is granted by statute and is not contingent upon filing the Form 15.
Where a company submits a request for a no-action letter seeking to rely on Rule 12h-3 to suspend its Section 15(d) reporting obligations, the company may not file a Form 15 checking the Rule 12h-3 box until the staff grants the requested no-action letter. (No-action relief is necessary because the company's Securities Act registration statement was updated under Section 10(a)(3) during the fiscal year and, consequently, the company does not satisfy the conditions of Rule 12h-3(c).) No-action relief is prospective and, if the company makes the filing before the staff grants the no-action letter, the company should withdraw that Form 15 by filing an amendment, indicating in an explanatory note that the Form 15 is withdrawn.
In 2007, Rule 12g-4 was amended to remove the prior Rule 12g-4(a)(2) and to redesignate Rules 12g-4(a)(1)(i) and 12g-4(a)(1)(ii) as Rules 12g-4(a)(1) and (2), respectively. However, Form 15 was not amended in connection with this amendment to Rule 12g-4, so that the Rule 12g-4 boxes in Form 15 do not correspond with the current Rule 12g-4. If a company files Form 15 under one of the redesignated rules, until Form 15 is amended to reflect the current Rule 12g-4, filers should (1) check the "Rule 12g-4(a)(1)(i)" box if the registrant is terminating its Section 12(g) registration pursuant to the current Rule 12g-4(a)(1), and (2) check the "Rule 12g-4(a)(1)(ii)" box if the registrant is terminating its Section 12(g) registration pursuant to the current Rule 12g-4(a)(2). See Exchange Act Rule 0-5. In addition to checking the "Rule 12g-4(a)(1)(i)" or "Rule 12g-4(a)(1)(ii)" box, filers can also include an explanatory note in the Form 15 regarding the change to Rule 12g-4.

Form 20-F

A foreign private issuer that has prepared its financial statements in a currency other than U.S. currency must provide the current and historical exchange rate information required by Item 3.A.3 of Form 20-F. The issuer may use any reliable source for the rates of exchange as long as it identifies the source. One example of a reliable source is the noon buying rate in New York City for cable transfers in foreign currencies as certified for customs purposes by the Federal Reserve Bank of New York. An issuer can find recent exchange rates on the Board of Governors of the Federal Reserve Bank’s web site.
When the securities being registered on Form 20-F are in the form of ADRs, the issuer must provide the information required by Item 12.D of Form 20-F. The depositary is not required to sign the registration statement.

Form 25

For a class of securities that is being delisted from a national securities exchange and deregistered under Section 12(b), a Form 15 may not be filed to deregister that class before the effective date of the delisting pursuant to a Form 25. The effective date of a Form 25 for the delisting of an issuer’s securities may not be earlier than 10 days following the date on which the form is filed with the SEC. The Form 15 cannot be filed prior to the effective date of the Form 25 since the reporting obligations pursuant to Sections 12(g) and 15(d) remain suspended until that date.

Form 40-F

Eligible Canadian issuers may rely on Rule 402(e) or Rule 12b-11(d) to use typed, duplicated or facsimile versions of manual signatures in connection with Form 40-F, provided that the issuer complies with the requirements of those rules regarding retention of manual signatures and provision of copies to the SEC or its staff upon request. (See Cleary, Gottlieb, Steen & Hamilton no-action letter (Aug. 13, 1996).)

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