Form 10 v Form S-1 Registration Statements – Going Public

Form 10 AttorneyForm S-1 and Form 10 each provide unique benefits in the going public process. Additionally, Form S-1 and Form 10 require similar disclosures. A company can voluntary file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”) and/or the  Securities Exchange Act of 1934, as amended (the “Exchange Act”).  Form S-1 is most commonly used registration statement form under the Securities Act. Form S-1 registration statements provide issuers with flexibility in going public transactions.  A registration statement on Form S-1 can be used to register specific securities for a company to sell to investors and specific shares for the company’s shareholders to resell publicly.  Form S-1 can be used to register both simultaneously. Form S-1 registration statements can be used for a Direct Public Offering (“DPO”) or Initial Public Offering (“IPO”) and can be structured a variety of way depending upon the particular transaction.

Using Form S-1, the issuer or its shareholders are able to sell unrestricted securities and if structured properly, qualify for a ticker symbol assignment by the Financial Industry Regulatory Authority (“FINRA”)

A registration statement on Form 10 registers a class of securities such as common stock under Section 12(b) or (g) of the Securities Exchange Act of 1934 and it causes an issuer to become subject to SEC reporting requirements. Unlike registration under the Securities Act, Exchange Act registration on Form 10 does not allow a company or its shareholders to sell unrestricted securities.

Typically, the SEC renders comments to registration statements on Form S-1 within 30 days after filing.  Upon satisfaction of all comments, the SEC will declare the registration statement effective.  Once the S-1 is effective, the company is obligated to file Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. A Form 10 registration statement becomes effective automatically 60 days after filing, regardless of whether there are outstanding SEC comments.

Once the Form 10 is declared effective, the Company is subject to the SEC’s reporting requirements and must file Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K.  Unlike issuers using Form S-1, Form 10 issuers must comply with the SEC’s proxy rules and certain insiders and large shareholders must file certain reports of ownership and transactions with the SEC.  The SEC requires that shareholders of a company whose securities are registered under Section 12 of the Securities Exchange Act receive a proxy statement prior to action being taken at a shareholder meeting or by written consent.  The information contained in the proxy or information statement must be filed with the SEC before soliciting shareholder votes for the election of the company’s directors and approval of other corporate actions.  The proxy statement must disclose all important facts about the issues on which shareholders are asked to vote.

For further information about Form 10 and Form S-1, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202 N, Boca Raton, Florida, (561) 416-8956, or by email at  [email protected].  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 Attorneys
Brenda Hamilton, Securities Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855