Rule 144 – Is She an Affiliate? Unfortunately, the 1933 Act does not define the terms "control person" or "control relationship". However, the SEC in Rule 405, by its own authoritative style, refers control as follows:"The term "control" including the terms "controlling," "controlled by," and "under common control with," means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise [intermediaries, agents,…].”When it comes to control, ownership or ownership interest means a legal or beneficial interest in an institution or its corporate parent or a right to share in the profits derived from the operation of an institution or its corporate parent.When a big shareholder acquires ownership and control of the corporation, the corporation is required to file a Form 8-K with the SEC notifying that agency of the change in control. A change in ownership that results in a change in control increases or decreases an investor the right to vote and/or ownership percent of the corporation therefore the ability to control the corporation. Ownership or ownership interest does not include an ownership interest held by:

A mutual fund that is regularly and publicly traded A U.S institutional investor A profit sharing plan of the institution or its corporate parent An employee stock ownership plan

ASC 860-10-20 describes beneficial interests as ‘rights to receive all or portions of specified cash inflows received by a trust or other entity, including but not limited to senior and subordinated shares of interests, principal, or other cash inflows to be ‘passed-through’ or paid-through, premiums due to guarantors, commercial paper obligations, and residual interests whether in the form of debt or equity’ That said, all corporate directors as well as senior officers of a corporation are control persons of that corporation based on the 1933 Act purposes. Some executive officers at one level below corporate officers as well as officers and directors of subsidiaries are somehow control persons because they are delegated temporary a least with these positions. But, the identity of control persons depends on the corporate organizational and delegation policy and the top management discretion.

It is clear that only corporate officers or directors who sign misleading statements (10-Q, 10-K, 8-K, S-3, S-8 and others) may be found liable but more people will be forced to trade under Rule 144. Large share ownership is also indicative of control status.

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It also depends upon ongoing relationship with the company, past relationship with the company, relationship with other control persons, or continued ownership of a large block of the company's shares.In addition, affiliate status could be attributed through other indicia of control, such as board representation. Some cases with no substantial body of law defining control, have found that possession of power to control is enough, no actual use of that control. These cases are documented under Sections 15 and 20a of the Securities and Exchange Act. The SEC advises that actual control or the ability to control is enough. Inaction in exercising this right and absenteeism of the control person may or may not disqualify her from this exemption.The SEC staff and courts publicly advise about the utilization of limited tests to determine who is a control person, I provide you with a long version of this test belowCharacteristics in determining whether or not one can be considered a control person in the eyes of the court

1. Corporate officers of company2. Corporate directors (including outside and independent directors)3. Some subsidiaries board directors4. Some executive officers at one level below corporate officers rank5. Board representation6. Large share ownership with more than 10% of an issuer outstanding

equity security (controlling shareholder with legal and/or beneficial interests)

7. Past relationship with the company (newly retired officers,…)8. Ongoing relationship with listed or others control persons (close

family members, confidential friends and confidential advisors)9. Ongoing relationship with the company (with negative control rights-

no veto or voting rights, acting in disguised capacity, nominal, figure-head and/or de-facto officers)

10.Continued ownership of a large block of the company share (with inactive rights)

After a close examination of these characteristics, you will realize that these presumptive characteristics are rebuttable; a person who claims that she is not an affiliate in order to use the exemption from registration has the burden of proving the availability of the exemption. The process dictates that counsels of the company or this person must file a non- action letter to the SEC. Although the counsel can file either an interpretative letter or an exemptive letter, it is good for

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him to file an interpretative and/or exemptive no action letter. It is addressed to the office of the Chief Counsel, Division of Corporation Finance, SEC with these paragraphs:

Heading:o ‘I am writing on behalf of …)

Background and Transaction request Request

o Consistency of relief is based on prior staff decisions (it take time to review all of them but this review is necessary)

Legal Discussiono Generalo Resale of Control shares by affiliates in private placement market

(PPM): the Staff has taken position in numerous no action letters that securities issued without registration (PPM) in reliance upon Section 3(a)(10) are not all deemed to be restricted securities within the meaning of Rule 144(a)(3) under the Securities Act. See Aura Systems, Inc (July 8, 1994), Medical Imaging Centers of America, Inc, LA gear, Inc and Newbridge Networks Corporation. Accordingly, persons to whom shares are issued who are not deemed to be ‘affiliates’ of the Company within the meaning of Rule 144(a)(1) may publicly resell such shares without registration (PPM) in reliance upon Section 4(1) of the Securities Act. Also, any persons to whom shares are issued who deemed to be an ‘affiliate’ of the company within the meaning of Rule 144(a)(1) may publicly resell such shares so long as they comply with all of the provisions under Rule 144 including rule’s holding period requirement of 6 months and others requirements. In view of the fact that, Plaintiff’s director is a shadow director of the company with a little control of the corporation within the meaning of Rule 405 (defined above)… In addition, Section 2(a)(9) provides a presumption of non-control to “Anyone who does not own more than 25% centum of the voting securities of any company”. Section 2(a)(9) provides that either presumption may be rebutted by evidence but will continue ‘until a determination to the contrary made by the Commission by order either on its own motion or on application by an interested person. Nevertheless no person may rely on the presumption that all board directors are equal and hold the same control rights based on all the facts and circumstances. It is why we expect to be of the opinion that Plaintiffs’ director Ms. Mary Shapiro will not be deemed to be an ‘affiliate’ of the company.

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We understand that, as set forth in Release No. 33-6253, the Staff does not provide advice with regard to the determination of ‘affiliate’ status or availability of the exemption from registration under Section 4(1) of the Securities Act; accordingly, we do not request the Staff to express a position with respect to any such determination. Because the determination of non- control status should be made under the consideration of all relevant facts and circumstances including the passivity implied commitment that would not have the ability to exercise controlling influence.

Conclusion:o For the forgoing reasons, we respectfully request that the Staff

confirms that the Commission will not recommend any enforcement action if the company’s independent director, Ms Mary Shapiro trade her shares as a non-affiliate. In addition to electronic submission of this letter, I am sending an original and 7 copy of this letter. In event that the staff is not inclined to respond favorably to this request, we would appreciate the opportunity to discuss your concerns before receiving your written response. If you have any question regarding an aspect of this request, or if you require additional information, please feel free to call me at… Thank you in advance for your attention to this matter

Signatureo It is signed by the Company’ securities counsel

Good luck to Mary Shapiro

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