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Section 153. Section 15(d)
us SEC - C&DI - Exchange Act Sections
Question 153.01
Question: A registrant with one or more effective Form S-3 and/or Form S-8 registration statements has less than 300 holders of record of the class of securities covered by those effective registration statements at the beginning of its fiscal year. In order to rely on the automatic reporting suspension contained in Section 15(d) of the Exchange Act, must the registrant post-effectively amend the registration statements to deregister any remaining unsold securities prior to filing the Form 10-K for the prior fiscal year?
Answer: Yes. In order to rely on the Section 15(d) automatic reporting suspension, an issuer must post-effectively deregister any remaining unsold securities from all existing Form S-3 and Form S-8 registration statements 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. [September 30, 2008]
Question 153.02
Question: May a company subject to Section 15(d) delay the due date, 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?
Answer: No. 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 provides that a company subject to Section 15(d) with respect to a fiscal year cannot do so. [September 30, 2008]
Question 153.03
Question: A limited partnership offers securities on a Form S-11 that goes effective on December 15, but does not commence selling efforts, acquire properties, or admit limited partners until after December 31, the end of its fiscal year. Escrow is not broken until September 30 of its next fiscal year. Should the partnership file a Form 10-K for the fiscal year in which the Form S-11 went effective?
Answer: Yes. 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. [September 30, 2008]
Question 153.04
Question: Can a company file periodic and current reports without first registering the offer and sale of securities under the Securities Act or a class of securities under the Exchange Act?
Answer: No. Assuming that the company did not previously have a Section 15(d) or Section 13(a) reporting obligation, it would not be able to file periodic or current reports without first registering an offer and sale of securities under the Securities Act or a class of securities under the Exchange Act. If a company's reporting obligation has been suspended or terminated, our EDGAR system will continue to accept Exchange Act reports that are filed on a voluntary basis, and the company must disclose that it is a voluntary filer on the cover of its Form 10-K or Form 20-F. [October 8, 2008]
Question 153.05
Question: If an issuer files Exchange Act reports on a voluntary basis — for example, because its Section 15(d) filing obligation is suspended — must the issuer comply with the interactive data requirements and, if so, what is the first interactive data submission required?
Answer: Yes. The issuer would be included in the group of filers required to comply with the interactive data requirements beginning with the first Form 10-Q, 20-F or 40-F for a fiscal period ending on or after June 15, 2011. [May 29, 2009]
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