Form S-3 Registration Statement Eligibility and Requirements

Form S-3 is a short-form registration statement that consists primarily of information about the specific transaction. Only certain eligible issuers can register a securities offering on Form S-3 after their going public transaction.  Not all public companies can register securities on Form S-3 even if the issuer is subject to SEC reporting requirements.

Much of the information required by Regulation S-K can be incorporated by reference from the issuer’s current and future periodic reports and proxy statements filed with the Securities and Exchange Commission (“SEC”).  Because the Form S-3 allows the incorporation by reference of future filings made by the issuer, the registration statement is automatically updated every time the issuer files a new Exchange Act report or other filing incorporated by reference. An issuer is eligible to use Form S-3 to offer securities on its own behalf for cash on an unlimited basis if the aggregate market value of its voting and non-voting common equity held by non-affiliates is at least $75 million.

Form S-3 Registration Statement Issuer Requirements

For an issuer to register securities on Form S-3, it must:

• Have a class of securities registered under Section 12, or have been subject to Section 15(d), of the Exchange Act for the past 12 months;
• Have timely filed all Exchange Act reports required to be filed during the past 12 months, other than any Form 8-K reports required solely under Items 1.01, 1.02, 1.04, 2.03, 2.04, 2.05, 2.06, 4.02(a) or 5.02(e);
• Not have defaulted on any material debt or long-term lease since the end of the most recent fiscal year;
• Not have failed to pay any dividend or sinking fund installment on preferred stock since the end of the most recent fiscal year; and
• Have filed with the SEC and posted on its corporate website all interactive data files (XBRL information) required to have been filed during the past 12 months (and any portion of the month in which the issuer intends to file the registration statement).  

Form S-3 Registration Statement Transaction Requirements

If the issuer has a public float of $75 million or more, it can register any offering of debt or equity for cash on a Form S-3 registration statement. If an issuer has a public float of less than $75 million, it may satisfy any one of four criteria to use Forms S-3  for offerings of non-convertible securities other than common equity: 

• secondary offerings of securities that are of a class listed on a national securities exchange;
• primary offerings of non-convertible securities if the issuer:
• has issued at least $1 billion in aggregate principal amount of non-convertible securities (other than common equity) in registered primary offerings for cash in the past three years;
• has at least $750 million in aggregate principal amount of non-convertible securities (other than common equity) outstanding, which were issued in registered primary offerings for cash;
• is a wholly-owned subsidiary of a well known seasoned issuer;
• is a majority-owned operating partnership of a Real Estate Investment Trust that is a well known seasoned issuer; or
• securities to be offered upon the exercise of outstanding convertible securities or rights under a dividend or interest reinvestment plan.

Any primary offering if the issuer meets all of the following additional requirements:

• is not and has not been a shell issuer at least the past 12 months;
• has a class of common stock listed on a national securities exchange;
• has not sold securities under the rule (including the securities proposed to be sold in any follow-on offering in an amount exceeding one-third of its public float during the past 12 months.

Because of the reduced amount of required disclosures, Form S-3 is the most cost- and time-efficient registration statement to prepare and use for issuers who qualify.  Issuers who qualify as well known seasoned issuers can use Form S-3 registration statements to register securities on behalf of existing stockholders in a secondary offering.

For more information about Form S-3 and SEC reporting requirements, please contact Brenda Hamilton, Securities Attorney at 101 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 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 | Securities Attorneys
Brenda Hamilton,
Securities Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855
www.SecuritiesLawyer101.com