Disclosures

If a Company Becomes Public, What Disclosures Must It Regularly Make?

A company can become “public” in one of two ways – by issuing securities in an offering registered under the Securities Act or by registering a company’s outstanding securities under Exchange Act requirements. Both types of registration trigger ongoing reporting obligations for a company. In some cases, the Exchange Act also subjects a company’s officers, directors and significant shareholders to reporting requirements.

Reporting obligations because of Securities Act registration

Once a company’s Securities Act registration statement effective, the Exchange Act requires it to file reports with the SEC. The obligation to file reports continues at least through the end of the fiscal year in which a registration statement becomes effective. After that, companies are required to continue reporting unless they satisfy the following “thresholds,” in which case filing obligations are suspended:

  • the company has fewer than 300 shareholders of the class of securities offered; or
  • the company has fewer than 500 shareholders of the class of securities offered and less than $10 million in total assets for each of its last three fiscal years.

If a company is subject to the reporting requirements, it must file information with the SEC about: its operations; its officers, directors, and certain shareholders (including salary, various fringe benefits, and transactions between the company and management); the financial condition of the business (including financial statements audited by an independent certified public accountant); and its competitive position and material terms of contracts or lease agreements.

All of this information becomes publicly available when a company files its reports with the SEC. As is true with Securities Act filings, small business issuers may choose to use small business alternative forms and Regulation S-B for registration and reporting under the Exchange Act.

Obligations because of Exchange Act registration

Even if a company has not registered a securities offering, it must file an Exchange Act registration statement if: it has more than $10 million total assets and a class of equity securities (like common stock) with 500 or more shareholders or it lists its securities on an exchange or on NASDAQ.

If a class of a company’s securities is registered under the Exchange Act, the company, as well as its shareholders and management, are subject to various reporting requirements, explained below.

Ongoing Exchange Act periodic reporting

If a company registers a class of securities under the Exchange Act, it must file the same annual, periodic, and current reports that are required as a result of Securities Act registration, as explained above. This obligation continues for as long as the company exceeds the reporting thresholds previously outlined. If a company’s securities are traded on an exchange or on NASDAQ, the company must continue filing these reports as long as the securities trade on those markets, even if the company falls below the thresholds.

Proxy rules

A company with Exchange-Act-registered securities must comply with the SEC’s proxy rules whenever it seeks a shareholder vote on corporate matters. These rules require the company to provide a proxy statement to its shareholders, together with a proxy card when soliciting proxies. Proxy statements discuss management and executive compensation, along with descriptions of the matters up for a vote. If the company is not soliciting proxies but will take a vote on a matter, the company must provide to its shareholders an information statement that is similar to a proxy statement. The proxy rules also require a company to send an annual report to shareholders if there will be an election of directors. These reports contain much of the same information found in the Exchange Act annual reports that a company must file with the SEC, including audited financial statements. The proxy rules also govern when a company must provide shareholder lists to investors and when it must include a shareholder proposal in the proxy statement.

Beneficial ownership reports

If a company has registered a class of its equity securities under the Exchange Act, persons who acquire more than five percent of the outstanding shares of that class must file beneficial owner reports until their holdings drop below five percent. These filings contain background information about the beneficial owners as well as their investment intentions, providing investors and the company with information about accumulations of securities that may potentially change or influence company management and policies.

Tender offers

A public company with Exchange Act registered securities that faces a takeover attempt, or third party tender offer, should be aware that the SEC’s tender offer rules will apply to the transaction. The same is true if the company makes a tender offer for its own Exchange Act registered securities. The filings required by these rules provide information to the public about the person making the tender offer. The company that is the subject of the takeover must file with the SEC its responses to the tender offer. The rules also set time limits for the tender offer and provide other protections to shareholders.

Transaction reporting by officers, directors and ten percent shareholders

Section 16 of the Exchange Act applies to a company’s directors and officers, as well as shareholders who own more than 10% of a class of your company’s equity securities registered under the Exchange Act. It requires these persons to report their transactions involving the company’s equity securities to the SEC. Section 16 also establishes mechanisms for a company to recover “short swing” profits, those profits an insider realizes from a purchase and sale of a company security within a six-month period. In addition, Section 16 prohibits short selling by these persons of any class of the company’s securities (whether or not that class is registered under the Exchange Act).