OTC Pink Sheets l Going Public Attorney
Private companies seeking to go public are opting to list on the OTC Markets OTC Pink Current tier. Companies seeking to public company status can list on the OTC Pink Current tier without filing a registration statement with the Securities & Exchange Commission (“SEC”) if they meet the minimal requirements of the OTC Markets.
The OTC Pink Current tier is available to issuers who do not file reports with the SEC, but voluntarily provide specific disclosures required by OTC Markets through its website located at http://www.otcmarkets.com.
Companies opting for this tier are able to provide adequate public information using the OTC Markets website without becoming subjected to the SEC’s stringent reporting requirements.
Many private companies seeking to go public are opting for the Pink Sheets due to the increased costs and more stringent regulations associated with SEC reporting. Rule 15c2-11 (“SEC Rule 15c2-11”) of the Securities Exchange Act of 1934 (“Exchange Act”) can be used by a private company seeking to go public without an SEC registration statement.
SEC Rule 15c2-11 Requirements
In general, a private company can use g Rule 15c2-11 in its going public transaction if it meets the following criteria:
● The private company must have at least 25 or more non-affiliates that have paid cash consideration for their shares, and have owned those shares for at least 12 months;
● The private company must have at least 1 million shares outstanding, of which at least 250,000 should be unrestricted or free trading shares;
● The private company must never have been a shell company; and
● The private company must locate a sponsoring market maker to submit a Form 211 application to FINRA on its behalf.
15c2-11 Market Maker Obligations l Going Public Transactions
In order to use 15c2-11 to go public, the private company must locate a sponsoring market maker who is a FINRA member to file a 15c-211 application on its behalf. The market maker submits a 15c2-11 application (“Form 211”) to FINRA to obtain a trading symbol for the company. Once the form is filed, FINRA may comment or ask questions; the sponsoring market maker and company must respond. When FINRA is satisfied that the disclosures meet the requirements of Rule 15c2-11, a trading symbol will be assigned and the market maker can quote the company’s securities. At that time, the securities of the private company going public can be quoted by OTC Markets on the Pink Sheets. The sponsoring market maker has the exclusive right to publish quotations for the security for 30 days. After that, other market makers can “piggyback” on his Form 211, and publish their own quotations.
The market maker chosen by the company to file the Form 211 is not permitted to accept payment for his services.
15c2-11 Disclosures l Going Public Transactions
The disclosures required by SEC Rule 15c2-11 are provided on the Form 211 submitted by the sponsoring market maker. FINRA requires specific disclosures in the Form 211 and in the Information and Disclosure Statement including, among other things, the following:
● Detailed description of the issuer’s business, products/services offered, assets and sources of revenue;
● Description of the company’s facilities including the location, square footage and whether owned or leased;
● Identification of officers, directors and holders of more than 5% of the company’s securities;
● Certificate of Incorporation and bylaws including any amendments;
● Current transfer agent generated shareholder list, indicating name and address of each shareholder, the number of shares owned, date of share ownership, and whether the shares are restricted, control, or free trading;
● Description of the company’s free-trading shareholder base, including a description of exemptions from registration under the Securities Act;
● Agreements creating restrictions, liens or encumbrances on, or relating to, the transfer or voting of shares;
● Agreements evidencing stock rights, warrants or options;
● All stock purchase or asset purchase agreements for last five (5) years;
● Whether the company has entered into any discussions or negotiations concerning a potential merger or acquisition candidate;
● Merger and/or consolidation agreements;
● Partnership and/or joint venture agreements;
● Unaudited financial statements for the last 2 fiscal years and interim periods;
● Details of all private offerings including who solicited investors, how they were known to the solicitor, and how many individuals were solicited, and whom did not purchase;
● One full copy of the subscription agreement executed by each investor and copies of all checks from the subscribers or other proof of payment;
● Copies of the Form D filed with the SEC;
● Description of all relationships among and between every shareholder and the issuer, its officers and directors, and other shareholders;
● A statement indicating whether any person or entity has control, written or otherwise, of the sale, transfer, disposition, voting or any other aspect of the shares listed on the shareholders list other than the shareholder;
● Whether any officer or director of the issuer had any regulatory action taken against him/her by the SEC, NASDAQ, NYSE or other securities-related regulatory agency and whether any officer or director of the issuer has been convicted of any felony charges within the last 5 years;
● A detailed business plan, which includes a detailed chronological account of each and every step the issuer has taken in furtherance of its stated objective since inception;
● A description of the steps the Company plans to take during the next year in furtherance of its business plan, including the activities in which the Company plans to engage, the names of the persons who will conduct these activities, and the expected dates of these activities;
● A description of any future financing plan;
● Any material agreements or letters of intent entered into by the Company;
● Schedule of all material patents, trademarks, trade names, service marks, and copyrights; and
● Opinion from company‘s securities lawyer as to tradability of the free trading shares.
Listing on the OTC Pinks l Rule 144 of the Securities Act
Private companies using 15c2-11in their giong public transaction must rely on Rule 144 of the Securities Act to create shareholders who hold unrestricted stock. Because Rule 144 is not available for a private company that has, at any time, been a shell company, or “blank check company” it is critical that the company going public never have been a shell company.
If a private company was once a shell company it must file a registration statement with the SEC in order to go public. Generally, for shareholders of private companies that have never been shells, Rule 144 is available for resales by non-affiliates after 12 months.
SEC Rule 15c2-11 l Going Public Transactions
SEC Rule 15c2-11 requires that current public information be made available to investors. This information is initially provided on Form 211 and the 15c2-11 application with FINRA. FINRA and SEC Rule 15c2-11 require that market makers review basic issuer information prior to publishing quotations of an issuer’s securities. FINRA also requires that market makers have a reasonable basis for believing that the information provided by the company is accurate and from reliable sources.
Qualifying for OTCMarkets’ Pink Current Information tier is a straight forward and relatively inexpensive way for small companies to go public, and to enjoy the benefits that status provides.
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.
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