Form 8-A: Voluntary Securities Registration Under Section 12

What Form 8-A Accomplishes

Form 8-A is a short-form registration statement that registers a class of securities under the Securities Exchange Act of 1934. Unlike Form 10, which is a comprehensive registration statement, Form 8-A is brief and relies on the company having already filed a Securities Act registration statement (such as Form S-1) or having reporting obligations under Section 15(d). The filing makes the company a fully reporting issuer, subject to the complete range of SEC periodic reporting requirements and the corporate governance provisions of the Exchange Act.

Strategic Considerations

The decision to file Form 8-A is strategic. For companies listed on the OTC Markets, Form 8-A registration can facilitate an upgrade to a national exchange. For companies that went public through a Regulation A offering, Form 8-A registration is necessary to become a full Exchange Act reporting company. The filing also provides access to Form S-3, which significantly reduces the cost and complexity of future capital raises. Securities counsel evaluates whether the benefits of voluntary registration outweigh the substantial ongoing compliance costs.

The Compliance Obligations That Follow

Once Form 8-A is effective, the company must file annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and proxy statements. Officers, directors, and 10% beneficial owners become subject to Section 16 reporting and short-swing profit rules. The company must establish and maintain disclosure controls and procedures and internal control over financial reporting. These obligations are continuous and failure to comply creates enforcement risk, delisting risk, and potential personal liability for officers and directors.