A formal letter requesting changes to the new Rule 144 of the Securities Act was sent to the Securities and Exchange Commission this morning. The request concerns the so-called "evergreen requirement" limiting sales of restricted stock in former shell companies. The request was submitted by attorney David Feldman of the law firm of Feldman Weinstein & Smith, with signatures from lawyers at eight other firms.

The evergreen requirement essentially maintains that once a shell, always a shell, thereby limiting small companies' ability to secure financing, according to the attorneys on board.

If ever a shell, a company must have been current in its financial filings for the past 12 months in order for shareholders to sell restricted under Rule 144. Additionally, the restrictive legend on unregistered shares can never be removed in advance of a sale, because it will never be known if the company is going to remain current with its filings in the future.

Instead of the additional requirements being applicable for the life of the company, the attorneys are requesting that they apply only for the first year after a company ceases to be a shell.

In June, Feldman sent a letter to SEC officials requesting a telephone interpretation that would exempt companies that had previously been shells before the new rules took effect in February. SEC staff responded in August, rejecting the request.

Feldman and the eight other lawyers are now making their formal request for rulemaking directly to the five commissioners, who Feldman said may be more sympathetic to the group's cause.

The other attorneys who signed the letter are David Miller with Graubard Miller, Mitchell Littman with Littman Krooks, Samuel Krieger with Krieger & Prager, Nimish Patel with Richardson & Patel, Nanette Heide with Seyfarth Shaw, Spencer Feldman with Greenberg Traurig, Michael Williams at the Williams Law Group, and Richard Anslow with Anslow & Jaclin.