Section 2
Question 1: Section 2(a)(7) of the
Sarbanes-Oxley Act of 2002 (the "Act") defines an "issuer" as an "issuer
(as defined in Section 3 of the Securities Exchange Act of 1934 (15
U.S.C. 78(c)), the securities of which are registered under Section 12
of that Act (15 U.S.C. 78l), or that is required to file reports under
Section 15(d)…." A company has offered and sold debt securities pursuant
to a registration statement filed under the Securities Act of 1933, thus
subjecting it to the reporting requirements of Section 15(d). The
company did not register the debt securities under Section 12 of the
Exchange Act of 1934. Subsequently, the company's reporting obligations
have been statutorily suspended under Section 15(d) because it had fewer
than 300 security holders of record at the beginning of its fiscal year.
The company has not filed a Form 15 and has continued to file reports
pursuant to its indenture. Is the company considered an "issuer" under
the Act?
Answer: No. Because the issuer had fewer than
300 security holders of record at the beginning of its fiscal year, the
suspension is granted by statute and is not contingent on filing a Form
15. The definition of issuer applies only to issuers required to file
reports. However, see Question 9 regarding these kinds of filers under
Section 302 of the Act.