What is a Form 10 shell?
A Form 10 shell is created when a shell company, a company with limited assets and business, files a Form 10 with the SEC.
A Form 10 registers a company with the SEC under the Securities and Exchange Act of 1934, but Form 10 does not allow the company to issue securities publicly. That is accomplished by a registration under the Securities Act of 1933, a different statute than the Securities and Exchange Act of 1934,
The game plan of the Form 10 shell is to get the company registered with the SEC so that subsequent filings to register the stock proceed more rapidly.
The procedure is that a Form 10 shell merchant, perhaps a securities lawyer, or other professional in the industry, creates a new company, gives it enough money to withstand the initial expenses of an audit and filing, gets an audit that qualifies under SEC rules (an audit from a PCAOB accountant), and files Form 10 with the SEC. The SEC may or may not comment on the filing. Once the filing has been commented on and corrected, the Form 10 shell merchant seeks a merger partner, an operating company for a reverse merger. Note here that up to this point, there are no securities in public hands and the stock of the company does not trade. There is no market maker and no trading volume. The stock is not listed anywhere.
When a reverse merger is agreed on, the combined companies are one and “Super 8-K” is filed with the SEC. This registers the stock to trade. The company will also find a market maker and a Form 211 will be filed with FINRA. The SEC may comment on the Super 8-K, but is not required to do so.
When the stock is cleared for trading, trading starts, usually with relatively low volume and the hopes on the part of the company that it will be able to develop volume one way or another.
Trading volume is important because many PIPE investors will not locate their checkbooks unless and until they see enough volume in the stock that they can be assured of market when they are ready and able to sell their stock.
You can imagine that having a large paper profit on your $1 million investment in a trading company, even if the stock is readily salable under the securities laws, is worth little or nothing if the stock trades only $5,000 of stock per day. Theoretically, you could sell in 200 trading days = ten months, but putting that amount of stock on the market would push the stock toward its ultimate support level at $0.00 per share. By selling into that market, you would only be watching your profit evaporate as your selling depressed the price and you cut your own throat.
The Advantages of a Form 10 Shell
Here are the advantages Form 10 shell promoters use to sell their wares:
First, you can obtain PIPE financing by telling the investors you are going to get the company trading and develop a market.
However, you must be talking to different PIPE investors then the ones I know. The ones I know want liquidity as fast as possible which means the stock is already trading. It takes time and money to develop a market, even for an already trading shell reverse merger. Also, there is always the risk that FINRA will hold up approval of your Form 211.
Second, you avoid the cost of a trading shell that is SEC filed, as much as $350,000 to $400,000.
The control persons of a trading shell get whatever the cash they can from selling control and whatever stock they can negotiate to keep in the Form 10. The stock can be 5-10% of the combined company. Recently, one of the leading reverse merger attorneys sold a batch of shells to the Chinese reportedly for $15,000 each. That $15,000 hardly covers the cost of filing and maintaining the shell.
The final advantage, as I see it, it the fact that you know that the shell is probably clean. This is often impossible to prove in Pink Sheets shells and may be problematic in OTCBB shells. However, doing your own S-1 filing would produce a totally immaculate trading vehicle at less cost and similar time used.
Disadvantages
The cost of creating a Form 10 shell can be $35,000 to $40,000 to get it filed and the cost of maintaining it each year thereafter can be $20,000 each year.
S-1
When a company goes public using an S-1 registration, the holders of the stock, if they buy in the offering, have freely trading stock. FINRA will still want to see enough stock in public hands that a market can be developed.
If the holders of stock in a company registered under Form 10 have held their stock for the required six months, they may sell under Rule 144 and a mark3et may be created. Or the company may register stock using and S-1
A Form 10 is used, the company may continue to solicit private placement money after it files with the SEC. If an S-1 if filed, only if those buyers are already connected to the company can buy while the S-1 is being processed.
The Truth About a Form 10 Shells
From the company's viewpoint little time is actually saved. While the stock may have a market, until the stock has an actively trading market, private money will be hard to find. The important metric here is not time to trading; it is time to getting money!
One good point about Form 10 shells, they should be clean, eliminating the due diligence issue, which can be impossible in a Pink Sheet shell.
If you use a trading Pink Sheet shell, you will not require audited financial statements. You will need to pay for legal work to buy the shell and get information on your company on Pink Sheets. Your biggest problem will be doing due diligence to make sure the shell is clean, something that is impossible to do absolutely. You do not need to go through the time and expense of having a market maker file a Form 211 with FINRA. You will need to develop a real trading market but you will have a market maker and some shareholders to start. It may take you three months to do this.
If you use a Reg A offering, audited financials are not needed but they must be GAAP. You save the cost of buying a shell. You will have to file with the SEC. Form 211 will have to be filed and a trading market developed.
If you buy and OTC BB shell, trading, you will have to file the Super 8-K with the SEC. No Form 211 is needed but you will have to develop the market as in the Pink Sheet shell.
If you do an S-1, you need audited financials, a Form 211, and to develop the market.
If you do the Form 10 shell, you will have some cost to buy it, you will file the Super 8-K and the Form 211.
Reasonable men can differ here, but in my not very humble personal opinion, if you really want speed and damn the expense, you want the trading shell. If you want to save money and wait a few months, you want the S-1.
If you cannot get audited financials, you are stuck with the Pink Sheet shell unless you file a Regulation A offering.
Personally, I do not see the point in doing the Form 10, except for the fact that you can solicit money after filing with the SEC.
