Recent SEC Rules For Shell Companies In recent years, the Securities and Exchange Commission (the “SEC”) has published releases relating to Shell Companies that affect the use of Rule 144 of the Securities Act of 1933, as amended (the “Securities Act”), by shareholders of Shell Companies. In addition, the rules limit registration of securities on Form S-8 of the Securities Act and affect disclosures required in Form 8-K under the Securities Exchange Act of 1934, (the “Exchange Act”).
What is a Shell Company? Securities Act Rule 405 and Exchange Act Rule 12b-2 define a Shell Company as a company, other than an asset-backed issuer, with no or nominal operations; and either:
no or nominal assets;
assets consisting of cash and cash equivalents; or
assets consisting of any amount of cash and cash equivalents and nominal other assets.
What is a Business Combination Related Shell Company? A business combination related shell company is:
a shell company formed by an entity that is not a shell company solely for the purpose of changing that entity’s domicile solely within the United States; or
a shell company formed by an entity that is not a shell company solely for the purpose of completing a business combination transaction lamong one or more entities other than the shell company, none of which is a shell company.
What Specific Rules Apply to Shell Companies?
Reliance upon Rule 144 for Resales Shareholders who hold shares which are not subject to a registration statement under the Securities Act often rely upon Rule 144 for their resale. Rule 144 is not available for the resale of securities initially issued by either reporting or non-reporting shell companies (other than a business combination related shell company) or an issuer that has been, at any time previously, a reporting or non-reporting shell company, unless the issuer meets specified conditions. A security holder may resell securities pursuant to Rule 144’s safe harbor if the following conditions are met:
a) The issuer of securities that was formerly a reporting or non-reporting shell company has ceased to be a shell;
b) The issuer of the securities is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act;
c) The issuer of the securities has filed all reports and material required to be filed under Section 13 or 15(d) of the Exchange Act, as applicable, during the preceding 12 months (or for such shorter period that the issuer was required to filed such reports and materials), other than Form 8-K reports; and
d) At least one year has elapsed from the time the issuer filed current Form 10 type information with the SEC reflecting its status as an entity that is not a shell company.
Form 8-K Requirements Form 8-K requires disclosure of transactions involving a reporting Shell company that ceases to be a shell company, typically a reverse merger or acquisition. The issuer is required to file a report on Form 8-K to report the following:
a material definitive agreement under Item 1.01 of Form 8-K;
completion of acquisition or disposition of assets under Item 2.01 of Form 8-K;
changes in control under Item 5.01 of Form 8-K ; and
information that would be required in a registration statement on Form 10 to register a class of securities under Section 12 of the Exchange Act.
Form S-8 Form S-8 under the Securities Act prohibits companies who are Shell Companies from using Form S-8. If a company ceases to be a shell company, it may use Form S-8 sixty calendar days after the company files “Form 10 information,” which is information that a company would be required to file in a registration statement on Form 10 if it were registering a class of securities under Section 12 of the Exchange Act. This information would normally be reported on a current report on Form 8-K reporting the completion of a transaction that caused the company to cease being a shell company.