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Mergers & Acquisitions | MONDAY, OctOber 26, 2015 | S3
effectiveness period. Prior to or substantial- ly concurrently with the Form 15 filing, the company should terminate all offerings of securities by filing post-effective amendments to deregister all unsold securities under its existing registration statements (e.g., Forms S-3 or S-8 registration statements). while the SEC may reject a Form 15 during the 90-day effectiveness period, this would be highly unusual.
Suspension of §15(d) Periodic Filing Obligations. In order to fully deregister the securities and “go dark,” a company must file a Form 15 relating to the suspension of its §15(d) reporting obligations, which allows it to stop making periodic filings immediately (since there is no 90-day effectiveness period); but the rules as to when the Form 15 may be filed can be complex.
A company is eligible to file a §15(d)-based Form 15 on the first day of the first fiscal year (other than a year in which the registration statement became effective) after which it has fewer than 300 record holders of such class of securities (usually the beginning of the fiscal year after the acquisition). while the statutory suspension is automatic and not contingent on the Form 15 filing, guidance encourages the Form 15 filing.2
For a company to go dark prior to the beginning of the next fiscal year, it must meet the conditions of Rule 12h-3, as further sub- ject to guidance set forth in a 2010 SEC Staff Legal Bulletin (SLB). A company entitled to use Rule 12h-3 to go dark may be able to file
one Form 15 covering both §12(g) and 15(d); but if it is not entitled to use Rule 12h-3, it should expect to file a second Form 15 once it qualifies under §15(d).
Under Rule 12h-3, a company may suspend its §15(d) reporting obligations anytime dur- ing a fiscal year (and stop filing SEC periodic reports) if it (1) is current in its Exchange Act reporting obligations; (2) has fewer than
to filing the Form 15.
In SLB No. 18 (March 2010),5 the SEC clari-
fied that a company may use Rule 12h-3 to suspend its §15(d) reporting obligations (and cease public filing) during a fiscal year in which it was acquired, even though a Securities Act registration statement as to the class of securities became effective or was required to be updated by §10(a)(3) during
Form 15 to suspend filing obligations as to one class of securities if another class remains for which filing obligations exist);
• Rule 12h-3 Compliance. It must com- ply with the other Rule 12h-3 requirements (including filing a Form 15 and being current in its reporting obligations);
• Deregister Unsold Securities. It must have filed post-effective amendments to deregis- ter any unsold securities from Securities Act registration statements and withdraw any reg- istration statements if there were no sales (and cannot have unsold securities remaining on any such registration statement), and the amendments or withdrawal applications must be effective or consented to before filing the Form 15; and
• Suspend Exchange Act Filings. It must not otherwise file Exchange Act reports (e.g., pur- suant to an indenture covenant) during the period in which it seeks to use Rule 12h-3 for suspension (since otherwise, suspending the §15(d) filing obligation would have no practical effect on SEC report preparation).
A company that is acquired after filing its Form 10-K for a fiscal year may rely on SLBNo.18tofileaForm15inthatsame fiscal year, if it terminates all registration statements and has no other obligations (e.g., contractual or statutory obligations) to keep filing SEC reports (and assuming it otherwise meets the SLB conditions), but otherwise would have to wait until the next fiscal year. A company acquired after filing its Form 10-K for a fiscal year, » Page S10
A company acquired after filing its Form 10-K for a fiscal year, with contract-based reporting obligations, must wait until the following fiscal year for its statutory §15(d) suspension, to become a voluntary filer post-acquisition.
300 record holders of the class of securities offered under the Securities Act of 1933 (the Securities Act) registration statement3; and (3) has not had a Securities Act registration statement relating to that class of securities declared effective (or updated) pursuant to Securities Act §10(a)(3) during the fiscal year for which the company seeks to suspend reporting.4 Rule 12h-3 is unavailable for use after the Form 10-K filing for a fiscal year if the company has outstanding registration state- ments (e.g., Forms S-3 or S-8) that incorporate by reference to later filings, since updating occurs automatically by incorporating by reference of an annual report on Form 10-K into a company registration statement prior
the Rule 12h-3(c) time period, on the theory that requiring such a company to keep filing SEC periodic reports no longer serves the purposes underlying §15(d) and Rule 12h-3 (because there are either no public sharehold- ers or no longer any public shareholders of the class of securities for which there is a §15(d) reporting obligation, thereby making the benefits of periodic reporting not com- mensurate with the burdens imposed). The conditions for use of the SLB guidance are four-fold:
• No Class of Registered Securities. The com- pany may not rely on Rule 12h-3 if it has a class of securities registered (or required to be registered) under §12 (i.e., it may not use
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