In our last two episodes we successfully deregistered under Sections 12(b) and 12(g) of the Exchange Act and terminated or suspended under Section 15(d). Now, to complete the trilogy, we look at certain considerations related to Section 12(g).

Hold on a parsec – I thought we were done with all of this reporting malarkey. Why do we have to worry about anything else?Because, young Skywalker, while the Force is strong with you, you are not a Jedi yet. In particular, bear in mind that while the Form 15 results in an immediate suspension of Section 13(a) reporting, in the case of Section 12(g) registration, Form 15 does not take full effect until 90 days after filing. See Rule 12g-4. So, you need to worry about lingering obligations tied to registration that hang on until deregistration is final (and the Empire is defeated).

These include the following:

• Section 16(a) – filings by officers, directors and greater than 10% shareholders. Section 16 requires officers, directors and shareholders owning more than 10% of any class of equity security registered under Section 12 to make filings of beneficial ownership and report changes in beneficial ownership. Section 16 obligations persist until Section 12 registration is terminated. So, under Section 16(a), officers and directors who own stock of the company going dark and sold the stock in the merger transaction likely need to file a Form 4, even if the company has filed a Form 25 or a Form 15.
• Section 16(b) – short-swing profit recapture. In addition to Section 16(a) obligations, an officer or director who participates in the merger transaction also may have obligations under the short-swing profit rules in Section 16(b). Rule 16b-3 provides an exemption if certain conditions are met, e.g., approval of the disposition by the board or a committee of non-employee directors.
• Section 14(a) – proxies. As with Section 16, any obligations under Section 14(a) survive until the effective date of deregistration under Section 12(g). See C&DI 151.02.
• Section 13(d) – greater than 5% holders. Section 13(d) requires anyone who acquires beneficial ownership of more than 5% of any Section 12-registered class of equity security to make certain filings, including on Schedule 13D. You should check to see what has been disclosed in Item 4 (purpose of the transaction) before starting the process of going dark, and consider what amendments might be needed. See C&DI 110.06.