Chapter 7 — What to Expect After the Registration Statement Is Declared Effective

7.7 Registration Statements After the IPO

After its initial registration, a domestic registrant may need to register additional securities. The SEC offers various forms to facilitate registration; the form used will depend on the type of offering undertaken by the registrant. The sections below briefly summarize the most commonly used forms. When registering securities, registrants should consider consulting their legal counsel to determine the appropriate form to file.

While the accommodation for EGCs to use two years of financial statements rather than three generally only applies to their IPO registration statement, the SEC will accept two years of financial statements in a registration statement filed after the IPO, but before the first Form 10-K, as long as the registrant remains an EGC. However, if a registrant loses EGC status either during or after its IPO, it must provide three years of financial statements for any future registration statement, even if the third year predates the information provided in the IPO registration statement.

7.7.1 Form S-1

The Form S-1 registration statement is used (1) when no other form is prescribed by SEC rules and (2) by all issuers that have not previously filed under either the Securities Act or the Exchange Act or that have been in the Exchange Act reporting system for less than 12 months. A newly public company may use Form S-1 for a follow-on offering in which the company offers additional registered shares to the public or registers privately held shares of the company’s founders, board of directors, or other large shareholders so that those shares may be sold in the public market.

Connecting the Dots

An issuer may voluntarily submit for nonpublic review a draft registration statement within one year of the effective date of either its initial Securities Act registration statement or its Exchange Act Section 12(b) registration statement. This accommodation is available only for the initial submission. A registrant that files a draft registration statement in these circumstances must subsequently respond to Division staff comments on the draft registration statement by means of a public filing rather than a revised draft registration statement. At the time of the public filing, the previously submitted draft registration statement should also be filed. The public filing must be available on EDGAR for at least 48 hours before the issuer’s requested effective date for the registration statement.

7.7.2 Form S-3

Form S-3 is a more simplified form of registration statement than a Form S-1. Eligible public companies can use Form S-3 to sell securities provided that they satisfy certain reporting status requirements. For example, a registrant:

Must be organized under the laws of, and have its principal business operations in, the United States.
Must be currently reporting under the 1934 Act and have filed, in a timely manner, all the information required by the 1934 Act for at least 12 calendar months immediately preceding the filing of the form.
Must not have defaulted on any preferred stock dividend or sinking fund payment, installment on indebtedness for borrowed money, or rental under any long-term lease since the date of the last annual financial statements (unless the effects of such defaults, in the aggregate, were not material to the registrant’s consolidated financial position).

There may also be restrictions on the types or amounts of securities and offerings that may be registered by using Form S-3. A registrant should consult with legal counsel to determine a desired offering of securities that may be S-3 eligible. If a company is not eligible to use Form S-3, the offering may be made by using another appropriate securities offering form, often Form S-1. A Form S-3 can be used as a “shelf offering” in which the company does not intend to immediately sell all the securities being registered but is able to sell the registered shares in future transactions, often referred to as “takedowns” from the shelf.

7.7.3 Form S-4

Form S-4 is used for registration of securities to be issued in specified types of mergers, acquisitions, and exchange offers. For example, if a registrant’s shares are being registered and exchanged as consideration in a proposed acquisition or merger, they may be registered on Form S-4. Form S-4 may also be used to register private debt securities, previously issued under Securities Act Rule 144A, which contained registration rights requiring a future exchange of such debt for debt that is registered.

7.7.4 Form S-8

Form S-8 is used to register securities to be offered to employees as part of certain employee benefit plans. Because many newly public companies have stock compensation plans, it is common for the related shares to be registered by using Form S-8, shortly after the completion of a company’s public offering.

7.7.5 Form S-11

Form S-11 is used to register securities to be issued by REITs or “other issuers whose business is primarily that of acquiring and holding for investment real estate or interests in real estate or interests in other issuers whose business is primarily that of acquiring and holding real estate or interest in real estate for investment.”

7.7.6 Other

Various other forms may also be used to register securities, including forms that may be used by FPIs. A more complete list of these forms is available on the SEC’s Forms Index Web page. The individual forms and related instructions should be consulted for specific eligibility and content requirements.