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Section 108. Form 15
us SEC - C&DI - Exchange Act Forms
Question 108.01
Question: 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 such 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 at any time during the fiscal year. Is a Form 15 required to be filed under Rule 12h-3 as a condition of the suspension?
Answer: Because situations exempted by Rule 12h-3 (e.g., there are fewer than 300 security holders of record in the middle of a fiscal year) 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 Commission of such suspension, but the suspension is granted by statute and is not contingent on filing the Form 15. [September 30, 2008]
Question 108.02
Question: 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. No-action relief is needed because the company had a Securities Act registration statement that became effective or was updated pursuant to Securities Act Section 10(a)(3) during the fiscal year, and consequently the company does not satisfy the conditions of Rule 12h-3(c). May the company file a Form 15 to suspend its Section 15(d) reporting obligation before the staff grants the requested no-action letter?
Answer: No. Because no-action relief is prospective, the company may not file a Form 15 checking the Rule 12h-3 box until the staff grants the requested no-action letter. If the company files a Form 15 checking the Rule 12h-3 box 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the company should withdraw that Form 15 by filing an amendment indicating in an explanatory note that the Form 15 is withdrawn. [September 30, 2008]
Question 108.03
Question: 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, which box should it check?
Answer: 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. [September 30, 2008]
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