Going Public Transactions l SEC Registration Statements
Private Issuers can undergo a going public transaction with a registration statement (“Registration Statement”) under the Securities Act of 1933, as amended (the Securities Act”). The issuer files a Registration Statement with the SEC, typically on Form S-1 registering securities it plans to sell or securities held by its shareholders (“Selling Shareholders”).
The Securities and Exchange Commission (the “SEC”) reviews and often comments on the disclosures provided in the Registration Statement.
The SEC will declare the Registration Statement effective upon confirmation that the it is satisfied that the disclosures meet the disclosure requirements of the securities laws,and the securities may be sold.
When a company completes a going public transaction using a Registration Statement, 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 to go 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.
A private company can also go public using a Registered Statement is through a Selling Shareholder Registered Offering. 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 that goes public 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 may 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.