Once the staff of the Securities and Exchange Commission (“SEC”) declares a company’s registration statement on Form S-1 effective under the Securities Act of 1933, as amended (the “1933 Act”), the registration statement is in force and the company may offer and sell the registered securities described therein.
At that time, the company filing the registration statement will become subject to the SEC’s periodic reporting requirements. These requirements stipulate that the company must file annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K on an ongoing basis. The company’s CEO and CFO must certify the financial and certain other information contained these reports. If an issuer is deemed a “smaller reporting company” or an “emerging growth company,” it will qualify for less onerous disclosure requirements.
If it is subject to periodic reporting requirements, it must file its financial and material event reports electronically with the SEC through its EDGAR system. They will become publicly available immediately upon filing.
Once a company is reporting, it is obligated to continue filing SEC reports unless the company has fewer than 300 shareholders of record of the class of securities offered (1,200 shareholders of record if the company is a bank or bank holding company) or has fewer than 500 shareholders of record of the class of securities offered and less than $10 million in total assets for each of its last three fiscal years.
Current reports on Form 8-K are required to report a broad range of events often within four business days after the occurrence of the event. An 8-K must be filed upon:
♦ entry into and termination of a material definitive agreement;
♦ completion of an acquisition or disposition of assets;
♦ notice of a delisting or failure to satisfy a continued listing rule or standard or transfer of listing;
♦ unregistered sales of securities;
♦ material modifications to rights of security holders;
♦ changes in the company’s certifying accountant;
♦ changes in control of the company;
♦ election of directors, appointment of principal officers, and departure of directors and principal officers; and
♦ amendments to the company’s charter and bylaws.
Exchange Act Registration
Even if a public company has not issued securities under a registration statement declared effective by the SEC, it could still become an SEC reporting company. In general, a company is required to file a registration statement under Section 12 of the Securities Exchange Act of 1934 (the “1934 Act”) if it has more than $10 million in total assets and a class of equity securities held of record by either (1) 2,000 or more persons or (2) 500 or more persons who are not accredited investors, or if it lists the securities on a U.S. exchange.
For banks and bank holding companies the threshold is 2,000 or more holders of record and the separate registration trigger for 500 or more non-accredited holders of record does not apply.
In calculating the number of holders of record for the purpose of determining whether 1934 Act registration is required, a company may exclude persons who acquired their securities under an employee compensation plan in a transaction that was exempt from Securities Act registration. Once the SEC adopts rules to permit crowdfunding under the JOBS Act, a public company will also be able to exclude holders of securities issued under the JOBS Act crowdfunding exemption.
Exchange Act Reporting and Other Requirements
If a company files a registration statement under Section 12 of the 1934 Act, it becomes an SEC reporting company subject to the same annual, quarterly, and current reporting obligations that result from any Securities Act registration. In addition, the company’s shareholders and management become subject to various requirements.
Proxy Rules
A company with 1934 Act-registered securities must comply with the SEC’s proxy rules governing proposals to shareholders. These rules require the company to provide certain disclosures in a proxy statement, together with a proxy card in a specified format, when soliciting authority to vote the shareholders’ shares. Proxy statements describe matters submitted for a shareholder vote, and include management and executive compensation disclosures if the shareholders are voting on the election of directors. If shareholders are to elect directors, the company must send them an annual report. The proxy rules also govern when a public company must provide shareholder lists to stockholders and when it must include a proposal from a shareholder in its proxy statement or information statement.
If majority shareholders will take action on a matter not requiring a vote by minority shareholders, the company must provide minority shareholders with an information statement that is similar to a proxy statement.
Beneficial Ownership Reports
If a company has registered a class of its equity securities under the 1934 Act, shareholders who acquire more than 5% of the outstanding shares of that class must file beneficial ownership reports on Schedule 13D or 13G until their ownership drops below 5%.
Transaction Reporting by Officers, Directors and 10% Shareholders
Section 16 of the 1934 Act applies to an SEC reporting company’s directors and officers, as well as to shareholders who own more than 10% of a class of the company’s equity securities registered under the Act. Section 16 requires officers, directors and 10% holders to report most of their transactions involving the company’s securities to the SEC within two business days.
Officers and directors of OTC issuers who go public by filing a Form S-1–a 1933 Act registration statement–are not obliged to make insider filings, because the company has no 12(b) or 12(g) registered stock. Should the company subsequently qualify for listing on an exchange such as the NASDAQ, AMEX, or NYSE, it will need to file a Form 8-A to register their stock. At that point, Forms 3, 4, 5, and Schedules 13 will be required of officers, directors, and greater than 5% owners.
Tender Offers
The SEC’s tender offer rules apply to transactions in which a public company faces a third-party tender offer or “takeover.” The tender offer rules also apply if a public company makes a tender offer for its own securities. The filings required by these rules provide information about the terms of the tender offer and the person making the tender offer to shareholders. The company that is the subject of a takeover must file its responses to the tender offer with the SEC.
For more information about SEC disclosures for reporting companies, click here.
For further information about this securities law blog post, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202 N, Boca Raton, Florida, (561) 416-8956, by email at info@securitieslawyer101.com or visit www.GoPublic101.com. This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes.
Hamilton & Associates | Securities Lawyers
Brenda Hamilton, Securities Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855
www.GoPublic101.com
