Using Form S-1 and F-1 Registration Statements When Going Public

Using a Registration Statement to Go Public: Form S-1 and Form F-1 Explained

Securities Law | Nasdaq | NYSE | OTC Markets Listings & Compliance

Introduction – How a Registration Statement Works When Going Public

Private companies seeking to access the U.S. capital markets often do so by filing a registration statement under the Securities Act of 1933, as amended (the “Securities Act”). The registration statement is the foundation of every public offering and provides investors with critical disclosures about the company’s business, management, risk factors, financial condition, and the securities being sold.

The U.S. Securities and Exchange Commission (SEC) reviews registration statements to ensure compliance with federal disclosure standards. The SEC’s review focuses on the adequacy and accuracy of the disclosures—not the quality of the company’s business, operations, or prospects. Once the SEC declares the registration statement effective, the securities may be offered and sold to the public.

Understanding Form S-1 and Form F-1 Registration Statements

Form S-1 – Domestic Issuers

Form S-1 is the most common registration statement used by U.S. domestic issuers that are “going public.” It may be used for both:

1. Initial Public Offerings (IPOs) – when securities are sold to the public for the first time; and
2. Direct Public Offerings (DPOs) – when the company sells shares directly to investors without an underwriter.

Key features of a Form S-1 include comprehensive disclosure about the issuer’s business operations, management, and financial condition;

Audited financial statements prepared by a PCAOB-registered auditor;

• Risk factors, plan of distribution, use of proceeds, and related-party transactions; and
• Detailed descriptions of the securities offered.

Form S-1 may also be used for resale registration statements, where the company registers shares previously sold in a private placement (e.g., a Regulation D offering) so that selling shareholders can resell those securities to the public.

Form F-1 – Foreign Private Issuers

Foreign companies that qualify as foreign private issuers (FPIs) under SEC rules generally use Form F-1 instead of Form S-1. The structure and purpose are similar, but Form F-1 accommodates foreign accounting standards, home-country governance practices, and disclosure conventions.

Key distinctions include:

• Financial statements may be prepared in accordance with IFRS as issued by the IASB (rather than U.S. GAAP);
• Fewer executive-compensation disclosures than Form S-1;
• Annual reporting on Form 20-F instead of Form 10-K; and
• Flexible timelines for interim filings.

Foreign issuers commonly use Form F-1 when seeking to list American Depositary Shares (ADSs) on the Nasdaq or NYSE, or when conducting cross-border offerings into the U.S.

SEC Review and Comment Process

After submission via the SEC’s EDGAR system, the Division of Corporation Finance typically issues comment letters addressing deficiencies, inconsistencies, or requests for clarification.

The company’s securities counsel must respond comprehensively and often amend the registration statement several times before the SEC issues a Notice of Effectiveness. This iterative process ensures that all required disclosures under the Securities Act and Regulation S-K are complete and accurate.

Going Public Options: IPO, DPO, and Selling Shareholder Registrations

1. Initial Public Offering (IPO)

In an IPO, a registered underwriter or broker-dealer sells securities to the public—typically for companies seeking a national exchange listing such as Nasdaq or the New York Stock Exchange (NYSE). Exchange-listed companies must meet strict corporate-governance, financial, and shareholder-distribution standards.

2. Direct Public Offering (DPO)

A DPO allows the company to sell shares directly to investors without using an underwriter. This approach is often used by smaller or emerging growth companies that do not yet meet Nasdaq or NYSE listing thresholds but wish to achieve public-company status and create liquidity for shareholders.

3. Selling Shareholder Offering

A company may also file a registration statement to permit existing shareholders to resell shares previously issued in private placements. These filings help establish public float and improve trading liquidity, especially for OTC Markets issuers.

After Effectiveness: Exchange and Market Listings

Once the SEC declares the registration statement effective, the issuer must determine where its securities will trade:

Nasdaq and NYSE Listings

Companies meeting the quantitative and qualitative requirements of Nasdaq (Global Select, Global, or Capital Market tiers) or the NYSE may apply for a national exchange listing. These exchanges require:

• Minimum share price and market-capitalization thresholds;
• At least 300 to 400 round-lot shareholders;
• Independent boards, audit committees, and internal-control systems; and
• Compliance with SEC and exchange-specific corporate-governance rules.

Exchange-listed companies are subject to Regulation FD, proxy disclosure obligations, and continuing listing standards to maintain investor confidence and market integrity.

OTC Markets Quotation

Companies that do not yet qualify for an exchange may seek quotation on one of the OTC Markets Group tiers: OTCQX, OTCQB, or the OTC Expert Market.

To obtain an OTC quotation, a sponsoring market maker must file a Form 211 with FINRA under SEC Rule 15c2-11. FINRA reviews corporate disclosures, financial statements, and due-diligence materials before assigning a trading symbol.

This process is critical for creating secondary-market liquidity for investors and enabling public price discovery.

Ongoing Reporting Obligations Under the Exchange Act

After effectiveness, the company becomes subject to the reporting requirements of the Securities Exchange Act of 1934, including:

• Form 10-K or 20-F (annual reports) – audited financial statements by PCAOB-registered auditors;
• Form 10-Q (quarterly reports) – interim financials reviewed by PCAOB auditors; and
• Form 8-K (current reports) – for material events such as mergers, control changes, or director resignations.

Timely filings are essential to maintain good standing with the SEC, FINRA, and any listing venue. Late filings may trigger trading suspensions, delisting, or enforcement actions.

Securities Lawyer’s Role in Registration and Compliance

Navigating SEC registration and exchange compliance is complex. Experienced securities counsel assists with:

• Drafting and filing Form S-1 or Form F-1 registration statements;
• Coordinating with auditors, underwriters, and transfer agents;
• Managing SEC and FINRA comment responses;
• Advising on Nasdaq, NYSE, and OTC Markets listing standards; and
• Ensuring ongoing Exchange Act compliance and Rule 144 resales.

Brenda Hamilton, Securities Attorney, and Hamilton & Associates Law Group, P.A. have guided domestic and foreign issuers through SEC registration, reporting compliance, and listings across all U.S. markets.

Conclusion: Choosing the Right Path to the Public Markets

Using a registration statement—on Form S-1 for U.S. companies or Form F-1 for foreign issuers—is a crucial step toward becoming a publicly traded company. Whether targeting a Nasdaq or NYSE listing or an OTC Markets quotation, success depends on transparency, regulatory compliance, and strategic planning.

Properly executed, the registration process can expand access to capital, enhance corporate visibility, and provide liquidity for investors.

Contact Information

Hamilton & Associates Law Group, P.A.
Brenda Hamilton, Securities Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855
Email: [email protected]
Website: www.SecuritiesLawyer101.com

This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group, P.A. It should not be construed as legal advice. Prior results do not guarantee similar outcomes. Reading this post does not create an attorney-client relationship.

For further information about this securities law blog post, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202 N, Boca Raton, Florida, (561) 416-8956, by email at [email protected] or visit www.securitieslawyer101.com.   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 and compliance 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 Lawyers
Brenda Hamilton, Securities Attorney
200 E. Palmetto Park Rd, Suite 103
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855
www.SecuritiesLawyer101.com