Section 12(j) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), authorizes the Securities and Exchange Commission (the “Commission”) to revoke an issuer’s Exchange Act registration for failure to comply with any provision of the Exchange Act or any of the regulations promulgated thereunder. Section 12(j) also prohibits broker-dealers from effecting transactions in the securities of any issuer whose registration has been so revoked. The entry of a Section 12(j) order is, therefore, effectively a death sentence for the public trading of these issuers’ securities.
The chronic failure to file periodic reports is the most common basis for the entry of a Section 12(j) order. A review of the Commission’s administrative proceedings database (www.sec.gov/litigation/admin.shtml) will disclose dozens of orders revoking Exchange Act registrations on these grounds.
Section 12(j) revocations can have particularly adverse consequences for any issuer that has ever been a “shell company” within the meaning of Rule 144(i)(1)(i), as the Rule 144 resale exemption is not available unless: (i) the former shell company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act; (ii) it has been current in its Exchange Act reporting obligations for the preceding 12 months; and (iii) at least one year has elapsed since the issuer has filed “Form 10 information” with the Commission indicating that it is no longer a shell company. The unavailability of Rule 144 for resales of “restricted securities” can severely limit an issuer’s ability to raise funds through traditional private placements, as most institutional investors will refuse to invest in issuers for whom the Rule 144 safe harbor has been denied.
For issuers with sufficient resources and tenacity, the entry of a Section 12(j) order does not have to be a death sentence. Nothing in the Exchange Act or the Commission’s rules and regulations prohibits a 12(j) company from restoring its Exchange Act registration and re-commencing the filing of periodic reports. Most issuers who decide to pursue this solution will file a Form 10 registration statement, complete with audited financial statements and unaudited interim financial statements as appropriate.
In recent months we have determined that a Form 10 registration is not the only way to restore Exchange Act registration for 12(j) issuers. We have recently had success with filing a Form S-1 registration statement for such an issuer under the Securities Act of 1933, followed by a one-page Form 8-A to register the issuer’s securities under the Exchange Act. In addition to bringing the issuer back to “fully reporting” status under the Exchange Act, filing an S-1 registration statement allowed the issuer to register outstanding shares that were deemed to be “free-trading” before the entry of the 12(j) order, placing those shareholders in the same position they were in before the order. In addition, we were able to register a primary offering by the issuer on the S-1, which helped the issuer to raise capital at a critically important time. Following the effectiveness of the S-1 and the closing of the primary offering, a registered broker-dealer was able to file a Form 211 with FINRA and, after several months of FINRA review, to obtain quotations for the issuer’s common stock on OTC Link ATS of OTC Markets Group. Section 12(j) issuers must be prepared to respond to numerous FINRA comments designed to confirm that the Commission entered the order solely due to the issuer’s failure to file periodic reports and not for any reason relating to fraud. In the first FINRA comment letter for our S-1 client, no fewer than six comments touched on this issue.
Whether an issuer chooses to restore its Exchange Act registration by filing a Form 10 or a Form S-1/8-A combination, the process is arduous. In either case, the issuer will need to prepare a lengthy disclosure document complete with financial statements, and both a Form 10 and a Form S-1 will be subject to thorough Commission review and potentially several rounds of comments. Once the Commission’s review process has been completed, the issuer will then need to find a market maker that is willing to file the Form 211 and to go through a grueling FINRA review process. Every case is different but, based on our recent experience, it would be reasonable to expect the Commission registration process to take four to six months and the FINRA review process to take an additional six to eight months. When an issuer is so delinquent in its reports that it may soon be faced with a Section 12(j) proceeding, it is always best to do whatever it can to get those reports current and to foreclose any such proceeding at the outset. This can be an expensive proposition if several years’ reports are due, but in most cases the expense of restoring the issuer’s Exchange Act registration and going through the FINRA review process will exceed the cost of getting its reports caught up. As with many situations in life, an ounce of prevention is worth a pound of cure.