Form 8-A and Form 10 Registration Statements – Securities Lawyer 101

Form 10 and Form 8-A After Securities Act Registration

Once a company completes the filing of its Form S-1 registration statement or Form 1-A offering circular under the Securities Act of 1933, as amended (the “Securities Act”) for an initial public offering (IPO) or direct public offering (DPO), it can file a registration statement under the Securities Exchange Act of 1934 (“Exchange Act”). Long form registration on Form 10  or short form registration on Form 8-A are used to register a class of securities pursuant to Section 12(g) of the Exchange Act.

Form 10 and 8-A can be used to register both debt and equity securities. Upon effectiveness, the issuer becomes subject to SEC reporting requirements.  This is different from a Securities Act registration, in which a company registers a certain number of a class of securities (debt or equity) for a particular public distribution.

Going Public – Exchange Act Listing and Registration Under the Exchange Act

Registering a class of securities under the Exchange Act is one of the requirements to list the securities registered in the initial or direct public offering on a national securities exchange like the New York Stock Exchange (“NYSE”) and NASDAQ Stock Market (“NASDAQ”).  Filing an Exchange Act registration statement does not create unrestricted shares and under most circumstances can only be used in a going public transaction if a resale exemption is available for existing shares or a subsequent registration statement is filed under the Securities Act.

If a company files a registration statement under the the Exchange Act seeking to list on a national stock exchange, it must register that class of the securities being listed pursuant to Section 12(b), of the Exchange Act. When a private company goes public with a direct listing or initial public offering, if it qualifies it will most often list on a national securities exchange such as the NYSE or NASDAQ. Foreign issuers seeking a secondary listing on the NYSE or NASDAQ,  who are already listed on a foreign exchange can also register those securities on Form 10 or Form 8-A under the Exchange Act.NYSE and NASDAQ LISTING

Exchange Act Registration and Size thresholds.

Companies with more than $10 million of total assets and over the applicable minimum number of holders of their equity securities must register that class of equity securities under the Exchange Act. For companies that are banks or bank holding companies, there must be more than 2,000 holders of record of the class of equity securities. For companies that are not banks or bank holding companies, there must be either more than 2,000 holders of record of the class of equity securities or more than 500 record holders of the class of equity securities that aren’t accredited investors.  If a company meets these thresholds it will be required to register a class of securities under the Exchange Act even if it does not seek to list on the NYSE or NASDAQ.

Eligibility to Register Securities on a Form 8-A Registration Statement Under Section 12(b) or 12(g) of the Exchange Act

A Form 8-A registration statement can be used by Issuers subject to SEC reporting requirements under Sections 13 or 15(d) of the Exchange Act. Section 13 of the Exchange Act requires every issuer of a security registered under Section 12(b) or 12(g) of the Exchange Act to file  periodic reports and other information with the SEC. Additionally,  Issuers who have filed  a registration statement under the Securities Act may use  use Form 8-A instead of Form 10 for Exchange Act registration simultaneously with effectiveness of the Securities Act registration statement.

Issuers that are simultaneously qualifying a Regulation A offering statement on Form 1-A for a Tier 2 offering using Form S-1 disclosures and financial statements audited under PCAOB standards may also register a class of securities on Form 8-A.

Disclosure Requirements – Form 8-A and Form 10 Registration Statements 

Form 10 is the  most common registration statement used to register a class of securities under Sections 12(b) or 12(g) of the Exchange Act.  Form 8-A requires less disclosure than a Form 10 and is typically used by issuers who qualify to register securities on the form. Form 10 requires financial statements extensive disclosures similar to those in a registration statement under the Securities Act including audited financial statements.  Form 8-A contains basic information about the characteristics of the company and its securities, including dividend rights, voting rights and anti-takeover provisions, if any, in the company’s certificate or articles of incorporation and bylaws.

Form 8-A makes Exchange Act registration simple for issuers that file registration statements for initial public offerings-IPO’s or direct public offerings-DPO’s under the Securities Act. When an issuer has registered an initial or direct public offering, Form 8-A allows incorporation by reference from the issuer’s Securities Act registration statement.  Issuers that do not file a registration statement covering an initial or direct public offering under the Securities Act, would file a registration statement under the Exchange Act on Form 10 to register a class of securities.

For more information about going public, securities law or our other services please contact a Securities Attorney at Hamilton & Associates Law Group, P.A. 01 Plaza Real S, Suite 202 N, Boca Raton, Florida, (561) 416-8956 or by email at [email protected].   This securities law blog post 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. Please note that the prior results discussed herein do not guarantee similar outcomes.

Hamilton & Associates Law Group, P.A provides ongoing corporate and securities counsel to private companies and public companies listed and publicly traded on the NASDAQ Stock Market, the NYSE MKT or over-the-counter market, such as the OTC Pink, OTCQB and OTCQX. For two decades the Firm has served private and public companies and other market participants in corporate law matters, securities law and going public matters. The firm’s practice areas include, but are not limited to, forensic law and investigations, SEC investigations and SEC defense, corporate law matters, compliance with the Securities Act of 1933 securities offer and sale and registration statement requirements, including Regulation A/ Regulation A+ , private placement offerings under Regulation D including Rule 504 and Rule 506 and Regulation S and PIPE Transactions as well as registration statements on Forms S-1, Form F-1,  Form S-8 and Form S-4; compliance with the reporting requirements of the Securities Exchange Act of 1934, including Form 8-A and Form 10 registration statements, reporting on Forms 10-Q, Form 10-K and Form 8-K, Form 6-K and SEC Schedule 14CInformation and SEC Schedule 14A Proxy Statements; Regulation A / Regulation A+ offerings; all forms of going public transactions; mergers and acquisitions; applications to and compliance with the corporate governance requirements of national securities exchanges including NASDAQ and NYSE MKT and foreign listings; crowdfunding; corporate; and general contract and business transactions. The firm provides preparation of corporate documents and other transaction documents such as share purchase and exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. The firm prepares the necessary documentation and assists in completing the requirements of federal and state securities laws such as FINRA and DTC for Rule 15c2-11 / Form 211 trading applications, corporate name changes, reverse and forward splits, changes of domicile and other transactions. The firm represents clients in London, Dubai, India, Germany, India and throughout the U.S.