How to Use a Registration Statement When Going Public
Private companies going public with a registration statement (“Registration Statement”) under the Securities Act of 1933, as amended (the Securities Act”). When a Registration Statement is used, the company files it with the SEC, typically on Form S-1 registering securities it plans to sell or securities held by its shareholders (“Selling Shareholders”). Companies going public should anticipate SEC comments to the registration statement. The SEC reviews and often comments on the disclosures provided in the Registration Statement. Upon confirmation that the SEC is satisfied that the disclosures satisfy the disclosure requirements of the securities laws, it will declare the Registration Statement effective and the securities may be sold.
When a company uses a Registration Statement in its going public or other transaction, the SEC does not comment on, nor does it have the authority to deny effectiveness of a Registration Statement based upon the private company’s business or operations, potential success or its offering.
Going Public and the S-1 Registered Offering
Private companies seeking going public can file a registration statement to register their own securities in a direct public offering or an initial public offering (“IPO”). Securities sold in a direct public offering are sold directly by the private company going public and the securities sold in an IPO are sold by an underwriter who is typically a registered broker dealer.
Another method of going public using a Registration Statement involves registering shares for Selling Shareholders. In a Selling Shareholder Registered Offering, the issuer sells its securities to investors usually relying upon either a Regulation D Offering or private placement, then subsequently registers those shares for resale on a Form S-1 registration statement.
Registration Statements and the SEC’s Reporting Requirements
A private company going public by filing a registration statement becomes subject to the SEC’s reporting requirements under the Securities Exchange Act of 1934. The company must file periodic reports that include reports on Form 8-K, quarterly reports on audited financial statements audited by an auditor registered by the PCOAB, and the 10-Q financials must be reviewed by a PCOAB registered auditor.
FINRA Form 211
Once a Registration Statement is declared effective by the SEC, the private company must locate a sponsoring market maker to file the information required by SEC Rule 15c2-11. Like the SEC, FINRA reviews the 15c2-11 information. Once FINRA is satisfied that sufficient information has been provided and due diligence has been undertaken by the sponsoring market submitting the 15c2-11 information, it will assign a trading symbol to the private company.
Securities lawyer, Brenda Hamilton provides legal advice to private companies and public companies in securities matters including SEC registration statements, Rule 144 resales and going public transactions involving SEC Registration Statements on Form S-1, and S-8.
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 [email protected] or visit www.securitieslawyer101.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 and compliance 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.
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Brenda Hamilton, Securities Attorney
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Boca Raton, Florida 33432
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