Submitted by: Lyman Wingham
Oh the Places You’ll Go – Understanding the Going Public Process
The going public process involves a myriad of rules and regulations that issuers must consider before structuring their transactions.
While going public offers many benefits it also comes with risks and quantities of regulations with which issuers must become familiar.
Going public is a complicated process, and it is important to have a qualified going public lawyer to assist you.
A going public attorney can help you ensure compliance with the rules and requirements of the Securities & Exchange Commission the (“SEC”) and Financial Regulatory Authority (“FINRA”).
Q. What does it mean when a company says it is Going Public?
A. Going public may refer to a company filing a registration statement with the SEC to register its securities and become an SEC reporting issuers. Going public can also refer to the filing of an issuer’s Form 211 with FINRA to obtain a ticker symbol .
Q. Why do companies Go Public?
A. Most companies go public to raise money. Companies also go public because of the prestige associated with public company status. It is much easier for a public company to locate capital than it is for a private company. Funds raised in going public transactions can be used for working capital, research and development, retiring existing indebtedness, acquiring other companies or businesses or paying suppliers.
Q. What are other advantages of Going Public?
A. Numerous additional benefits come with public company status:
After the going public transaction is complete, the company will be able to use its common stock as a form of currency and as collateral for loans.
Going public creates value for an issuer’s securities. Going public also creates liquidity for existing and future investors, and provides an exit strategy for shareholders and/or investors. Additionally, public company stockholders may be able to sell their shares or use them as collateral.
Public companies have greater visibility than private companies. It is easier to build recognition of a public company than a private one. Publicly traded companies are often promoted and gain publicity from their status as a public company. Further, the media has greater economic incentive to provide coverage of matters concerning public companies than private companies because of the number of shareholders and investors seeking information about the company.
Going public may allow a private company to attract more qualified employees and key personnel, such as officers and directors because it allows the company’s management and employees to share in its growth and success through stock options and other equity-based compensation.
There is a certain amount of prestige associated with public company status or employment by a publicly traded company.
Q. What are the disadvantages of Going Public?
A. The disadvantages to going public include:
Going public requires management to answer to shareholders and give up a certain amount of their control over company matters.
Going public is expensive and staying public is expensive. Legal, accounting and compliance costs are significant and these costs will have to be paid regardless of whether a company raises capital.
After a going public transaction, a newly public company will incur higher costs as a public company, including auditing and legal expenses and costs of compliance with the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”) and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”).
Public companies are subject to more scrutiny than private companies. Once a company becomes public, certain information must be disclosed to the public, such as executive compensation, financial information, previous violations of the securities and other laws and material agreements must be disclosed. Public companies operate under close scrutiny as well as oversight.
SEC reporting companies must comply with reporting requirements under the Exchange Act as soon as their going public transaction is complete. Complying with these reporting requirements is costly and time consuming for management.
Going public also exposes the company and its management to liability for false or misleading statements in filings and reports filed with the SEC.
Q. What is the difference between filing a registration statement under the Securities Act and filing a registration statement under the Exchange Act in a Going Public transaction?
A. Filing a registration statement under the Securities Act registers an offering of securities. Shares registered by the issuer or on behalf of its selling shareholders who are not affiliates of the issuer generally are unrestricted securities. Filing a registration statement under the Exchange Act registers a class of securities such as common stock. Registration under the Exchange Act does not register a securities offering and does not create unrestricted securities.
Q. What is a Direct Public Offering?
A. Unlike an initial public offer, a direct public offering is an offering conducted by a company on its own behalf without an underwriter.
Q. Can a Direct Public Offering be used in a Going Public transaction?
A. Yes, direct public offerings are often used in going public transactions.
Q. Do I have to file a registration statement with the SEC if I conduct a Direct Public Offering?
A. Not necessarily. A direct public offering can be structured for a listing on the OTCMarkets OTC Pink sheets and it can involve a private offering rather than an offering subject to an SEC registration statement.
Q. What is a Reverse Merger ?
A. A reverse merger is a transaction in which a private company merges into or is acquired by an existing public company.
Q. Should I use a Reverse Merger in my company’s Going Public Transaction?
A. Probably not. Reverse mergers are often vehicles for fraud and new rules impact reverse merger transactions. Most often if done properly, reverse mergers cost more and take longer than filing a registration statement with the SEC in a going public transaction.
Q. Why do some securities lawyers claim that I should use a Reverse Merger to Go Public?
A. Often securities lawyers who recomend reverse mergers manufacture shells. They make a substantial amount of money selling their own public shells.
About the Author: Going Public Lawyers
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