Securities Lawyer 101 l Brenda Hamilton

Securities Lawyer 101 l Brenda Hamilton

Wednesday, November 27, 2013

The Securities Attorney’s Review of Documents in Going Public Transactions

The securities laws require companies to provide disclosures during the going public process. These disclosure requirements apply to private companies going public on national securities exchanges and the OTCMarkets alike. These disclosures are typically provided on a Form S-1 registration statement.
In the going public process, issuers must generally disclose information about their business operations, financial condition, risks, management, litigation and shareholders, in addition to how many shares will be offered and at what price.  The securities lawyer’s role in the going public process varies, depending upon the size of the company, its type of business, its assets, revenues, location and other factors. Most importantly, the role is defined by whether the issuer files a registration statement with the SEC.

 Any private company seeking to go public needs a securities lawyer to assist it with the process, accountants to audit at least two years of financial statements and–if an initial public offering (“IPO”) is planned–the issuer will also require underwriters to offer securities subject to the registration statement to the public. They will hire their own securities attorneys.
In going public transactions, the issuer’s securities attorney will undertake a review of a variety of documents including the Company’s corporate records, financial information, stock issuances and shareholder records.
The Securities Lawyer & the Corporate Records Review
The first documents to be reviewed by the Company’s securities attorney are the Company’s corporate documents.  These include:
♦ Certificate of incorporation and bylaws as amended;
♦ Corporate minute book, including minutes of meetings and actions taken by written consent of the board of directors and shareholders;
♦ Communications with shareholders, including notices of meetings, annual reports, proxy statements and other correspondence;
♦ Press releases; and
♦ Documents reflecting mergers, acquisitions, changes in control and divestitures.
In the going public process, the issuer should also provide its securities lawyer with the same list of documents for any subsidiary, as well as a list of all corporations, partnerships, joint ventures and other entities in which the issuer holds interests, along with a description of the interest.
The issuer should also compile a list of all places where it is qualified to conduct business and provide its occupational licenses for each location, and a list of locations where it maintains inventory, owns or leases property or has employees, agents or independent contractors.
Stock Issuances
Both an S-1 Registration Statement and the OTCMarkets Pink Current Information tier require that a company going public disclose all securities issuances.  As such, the company’s securities attorney should obtain copies of all agreements related to securities offerings, including:
♦ stock purchase agreements and related documentation, such as offering circulars, private placement memoranda and prospectuses relating to the offer or sale of equity or debt securities, including convertible financings;
♦ samples of common stock certificates, warrants, options, debentures and any other outstanding securities;
♦ stock option and purchase plans;
♦ repurchase, redemption, exchange, conversion or similar agreements involving securities and schedule of any dividends paid or declared;
♦ registration rights agreements;
♦ any other agreement related to or affecting the Company’s securities;
♦ Forms D or any other forms filed to qualify for an exemption under the Securities Act; and
♦ state Blue sky filings.
Review of Shareholder Information
The private company going public should be prepared to provide its securities attorney with all information concerning its shareholders, such as:
♦stock certificate books and stock transfer ledgers or other records that show all issuances, grants and cancellations of Company stock, options and warrants, including names of holders, dates of issuance, grant or cancellation, and number of securities;
♦ a list of names, addresses and holdings of current record and beneficial owners of the Company stock, indicating the dates such stock was issued and fully paid for;
♦  a list of names, addresses and holdings of current record and beneficial owners of options and warrants, including date of grant, exercise price, number of shares subject to the option or warrant and vesting terms;
♦ a list of agreements granting or issuing stock, options, warrants or any other form of interest in the Company;
♦ stockholder agreements;
♦ documents reflecting proxies, powers of attorney, voting trusts, or other assignment of rights attaching to any of the Company’s securities; and
♦ documents limiting the Company’s ability to declare and pay dividends.
For more information on Form S-1 Registration Statement and the Going Public process, Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 201 S, Boca Raton Florida, (561) 416-8956, by email at or visit This memorandum 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. For more information concerning the rules and regulations affecting the use of Rule 144, Form 8K, FINRA Rule 6490, Rule 506 private placement offerings, Regulation A, Rule 504 offerings, Rule 144, SEC reporting requirements, SEC registration on Form S-1 and Form 10, Pink Sheet listing, OTCBB and OTCMarkets disclosure requirements, DTC Chills, Global Locks, reverse mergers, public shells, go public direct transactions and direct public offerings or please contact Hamilton and Associates at (561) 416-8956 or by email a 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 N
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855

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