Friday, December 7, 2012

Market Makers & The Going Public Transaction

The last step in going public transactions is most often obtaining a stock trading or ticker symbol from the Financial Industry Regulatory Authority (“FINRA”). For a company to obtain a ticker, a market maker must submit a Form 211 on the issuer’s behalf to the Finance Industry Regulatory Authority (“FINRA”).

Only a Market Maker can submit a Form 211 to obtain a ticker symbol assignment. An issuer cannot submit the form itself. As such, the sponsoring market maker plays an important role in the going public process.

What is a Market Maker?
A market maker is a FINRA registered broker-dealer firm that accepts the risk of holding a certain number of shares of a particular security in order to facilitate trading in that security. Broker-dealers must register with FINRA to act as a market maker of a security.

Market Maker Regulation
Market Maker activities are regulated by the Securities and Exchange Commission (“SEC”) as well as the Financial Industry Regulatory Authority (“FINRA”). FINRA oversees registration, education and testing of market makers, broker-dealers and registered representatives. FINRA rules governing market makers in going public transactions involve a variety of criteria.

Market Maker Compliance with SEC Rule 15c2-11 in Going Public Transactions
SEC Rule 15c2-11 requires that current public information be made available to investors. This information is initially provided in going public transaction by the market maker when it submits a Form 211 and 15c2-11 application with FINRA for a ticker symbol assignment. FINRA and SEC Rule 15c2-11 require that the market maker has a reasonable basis for believing that the information provided by the company in its Form 211 is accurate and from reliable sources.

FINRA Comment Process in Going Public Transactions
SEC Rule 15c2-11 l Form 211 Application
In a going public transaction, a market maker must submit a Form 211 application to FINRA to apply for the company’s trading symbol. FINRA may render comments to the application which the sponsoring market maker and company must respond to. Once FINRA is satisfied that the disclosures satisfy the requirements of SEC Rule 15c2-11, a trading symbol is assigned and the Market Maker can quote the company’s securities. Once this occurs, the securities of the private company going public can be quoted by the OTCMarkets on the OTCPink Sheets and investors can purchase the company’s securities through their broker.

Form 211 Exclusivity Period for Sponsoring Market Maker
For the first 30 days after a ticker symbol assignment in a going public transaction, only the sponsoring market maker filing the Form 211 can publish quotes of the company’s securities. After the sponsoring market maker has published quotations for the security for at least 30 days, then other market makers can publish quotations.

Market Maker Fees For 211 Filings
Market Makers generally earn money by buying stock at a lower price than the price at which they sell it, or selling the stock at a higher price than they purchase it back. FINRA prohibits market makers from charging issuers fees for filing a Form 211 including in going public transactions. Despite the foregoing, unscrupulous market makers frequently find ways to circumvent FINRA’s requirements including by funneling fees for 211 filings through transfer agents they control or sham consulting agreements. Engaging in such activities compromise the entire going public transaction and place the company as well as the sponsoring market maker at risk for enforcement action.

FINRA l Market Maker l Shareholder Requirements
The private company seeking to go public must have enough shareholders to demonstrate an active trading market can be established. This means that prior to filing a Form 211 the company should have at least 30 or more non-affiliate shareholders that paid cash consideration for their shares, and have owned those shares for at least 12 months. The private company seeking to go public should have at least 1 million shares outstanding, of which at least 250,000 are free trading shares.