Unfortunately, the 1933 Act does not define the terms “control person” or “control relationship”. However, the SEC in Rule 405 sets forth a definition of 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.
The SEC staff and the courts utilize two rather imprecise tests in determining who is a control person, or using the terminology of Rule 144 – an “affiliate.
…Firstly, does the person in question have the power to direct corporate management and policies?
…Secondly, does the individual have the power to compel the Issuer to file a 1933 Act registration statement covering a proposed sale?
Obviously these tests are largely subjective. Most securities lawyers take the position that, generally, all corporate directors as well as senior officers of a corporation are control persons of that corporation for 1933 Act purposes. Corporate officers below that level, as well as officers and directors of subsidiaries are, generally, not presumed to be control persons. The identity and number of 1933 Act control persons will vary from company to company.With regard to 1933 Act control status, it is clear that corporate officerships or directorships are not the only defining characteristic in determining whether or not one is still considered a control person. Large share ownership is also indicative of control status. However, again, there is no precise test such as the 10% test applied to certain insiders under the Securities Exchange act of 1934. It largely depends upon the conditions surrounding each case. For example, persons occupying a certain relationship with a control person may themselves treated as control persons. A relative or spouse of a control person living in the same home is also a control person. Any relative of a control person’s spouse – for instance, a mother-in-law sharing the same home – may also be found to be a control person.
Therefore, in summary, you may or may not be considered a control person depending upon your ongoing relationship with the company, your relationship with other control persons, or your continued ownership of a large block of the company’s shares.