Exchange Act Reporting and Registration

Annual and Quarterly Reports

SEC rules require your company to file annual reports on Form 10-K and quarterly reports on Form 10-Q with the SEC on an ongoing basis. These reports require much of the same information about the company as is required in a registration statement for a public offering. Your company’s CEO and CFO must certify the financial and certain other information contained in annual reports on Form 10-K and quarterly reports on Form 10-Q. If your company qualifies as a “smaller reporting company” or an “emerging growth company,” it will be eligible to rely on scaled disclosure requirements for these reports.

Current Reports

Your company must also file current reports on Form 8-K to report certain specified events, often within four business days after occurrence of the event. Examples of the events that trigger the filing of a current report are:

• entry into and termination of a material definitive agreement (a copy of the agreement must also be publicly filed);
• completion of an acquisition or disposition of assets
• notice of a delisting or failure to satisfy a continued listing rule or standard or transfer of listing
• unregistered sales of equity securities
• material modifications to rights of security holders
• changes in your company's certifying accountant
• changes in control of the company
• election of directors, appointment of principal officers, and departure of directors and principal officers and
• amendments to charter and bylaws

The company also will have to comply with certain rules whenever its management submits proposals to shareholders that will be subject to a shareholder vote, usually at a shareholders’ meeting, and certain of its shareholders and management become subject to other requirements.

All of this information must be filed electronically with the SEC through its EDGAR system, and will immediately become publicly available upon filing.

Exchange Act Registration

Even if your company does not have an effective registration statement for a public offering, it could still be required to file a registration statement and become a reporting company under Section 12 of the Exchange Act if:

• it has more than $10 million in total assets and a class of equity securities, like common stock, that is held of record by either (1) 2,000 or more persons or (2) 500 or more persons who are not accredited investors or
• it lists the securities on a U.S. exchange

For banks, bank holding companies and savings and loan holding companies, the threshold is 2,000 or more holders of record; the separate registration trigger for 500 or more non-accredited holders of record does not apply.

The information about the company required in an Exchange Act registration statement is similar to what is required in a registration statement for a public offering.

Exceptions to Exchange Act Registration

In calculating the number of holders of record for purposes of determining whether Exchange Act registration is required, your company may exclude persons who acquired their securities in an exempt offering:

• under an employee compensation plan
• under Regulation Crowdfunding if the issuer
  • is current in its ongoing annual reports required pursuant to Rule 202 of Regulation Crowdfunding
  • has total assets as of the end of its last fiscal year not in excess of $25 million and
  • has engaged the services of a transfer agent registered with the Commission pursuant to Section 17A of the Exchange Act or
• as a Tier 2 offering under Regulation A if the issuer:
  • is required to file and is current in filing annual, semiannual and special financial reports under Securities Act Rule 257(b)
  • had a public float of less than $75 million as of the end of its last semiannual period, or if it cannot calculate its public float, had less than $50 million in annual revenue as of the end of its last fiscal year and
  • engaged a transfer agent registered pursuant to Section 17A of the Exchange Act

Public float is calculated by multiplying the number of the company’s common shares held by non-affiliates by the market price and, in the case of an IPO, adding to that number the product obtained by multiplying the common shares covered by the registration statement by their estimated public offering price.