Helping Companies Prepare Their Registration Statements
The SEC Division of Corporation Finance (CorpFin) reviews and comments upon filings made under the Securities Act of 1933 (“Securities Act”) and the Securities Exchange Act of 1934 (“Exchange Act”). The purpose of a review by CorpFin is to ensure compliance with the disclosure requirements under the federal securities laws, including Regulation S-K and Regulation S-X, and the general anti-fraud provisions which require disclosure of material information necessary to make required disclosures, not misleading. The standard for required disclosure is generally the materiality of the information. In TSC Industries, Inc. v. Northway, Inc., the U.S. Supreme Court defined materiality as information that would have a substantial likelihood of being viewed by a reasonable investor as having significantly altered the total mix of information available.
As such, the registration process is the cornerstone of the federal securities laws including to effectuate the offer and sale of securities, and to register classes of securities to become subject to the Securities Exchange Act reporting requirements and as a precondition to listing on a national Exchange. Without proper guidance the comment and review process can be arduous, time consuming and overly expensive.
At Anthony L.G., PLLC, our attorneys offer extensive knowledge and experience in preparing registration statements. Those we handle include but are not limited to Securities Act registrations on Forms S-1, F-1, S-3, F-3, S-4, F-4, S-8, and S-11 and Exchange Act registrations on Forms 10, 20-F, 40-F and 8-A.
Securities Act Rules Surrounding Registration Statements
The Securities Act requires that every offer and sale of securities either be registered with the SEC or exempt from registration. The purpose of registration is to provide investors with full and fair disclosure of material information so that they can make informed investment and voting decisions. Forms S-1, F-1, S-3, F-3, S-4, F-4, S-8, and S-11 are the most common forms for the registration of the offer, sale or resale of securities under the Securities Act.
Form S-1 can be used to register the offer and sale of securities where no other form is authorized or prescribed. Form S-1 can be used to register new securities for sale or the resale of outstanding securities in the hands of existing security holders. Form S-1 can be used by any company, domestic or foreign.
Form F-1 is used for the registration of securities by foreign private issuers where no other form of registration is authorized or prescribed. can be used to register new securities for sale or the resale of outstanding securities in the hands of existing security holders.
Forms S-3 And F-3
Forms S-3 and F-3 are shelf registration statements for domestic and foreign issuers respectively. An S-3/F-3 registration statement is the only registration statement that allows for a continuous offering at other than a fixed price. The ability to use a Form S-3 pr F-3 registration statement is significant for exchange traded companies. Among, other benefits the forms allow for forward incorporation by reference, remain active for 3 years, allow for continuous offerings at other than a fixed price (i.e. at-the-market or ATM offerings), and allow for continuous take-downs through a prospective supplement under different terms and offering types.
Forms S-4 And F-4
Forms S-4 and F-4 are used to register securities in a merger transaction, an exchange offer for securities of another company, roll-up transactions, and similar transactions. Forms S-4 (domestic company) and F-4 (foreign private issuer) always involve information regarding two or more companies that are parties/counterparties to a transaction(s).
Form S-8 registers securities offered under an employee benefit or similar plan. Both domestic and foreign companies use Form S-8.
Form S-11 is used to register securities issued by a real estate investment trust or other company whose primary business is acquiring and holding investments in real estate or other interests in real estate. Both domestic and foreign companies use Form S-11.
Exchange Act Registration Statements
Unlike a Securities Act Securities Act registration statement, an Exchange Act registration statement does not register securities for sale or result in any particular securities becoming freely tradeable. Rather, an Exchange Act registration has the general effect of making a company subject to the Exchange Act reporting requirements under Section 13 of that Act. Registration also subjects the company to the tender offer and proxy rules under Section 14 of the Act, its officers, directors and 10%-or-greater shareholders to the reporting requirements and short-term profit prohibitions under Section 16 of the Act and its 5%-or-greater shareholders to the reporting requirements under Sections 13(d) and 13(g) of the Act. A company registers securities under Section 12 of the Exchange Act by filing a registration statement such as on Form 10, Form 20-F or Form 8-A.
An Exchange Act registration under Section 12(b) is a precondition to trading on a national exchange such as the Nasdaq or NYSE.
A company may voluntarily file an Exchange Act registration statement or may be required to do so if, as of the last day of its fiscal year:
- It has $10 million (U.S.) in assets or more, as shown on the company’s balance sheet.
- The number of its record security holders is either 2,000 or greater worldwide or 500 persons who are not accredited or more significant investors.
- Such registration statement must be filed within 120 days of the last day of its fiscal year.
Navigate These Complex Requirements With Our Help
Registration statements can often come with complex and stringent regulatory standards. Because of this, companies must make sure they collaborate with the right lawyers with the right experience. Schedule an initial consultation with us today by calling 877-541-3263 or emailing us through our contact form.