What is a Secondary Offering? Going Public Lawyers

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Going public transactions can be structured a variety of ways.  Many going public transactions involve the filing of a registration statement with the Securities and Exchange Commission (“SEC”) registering shares held by existing stockholders so that the issuer can meet FINRA’s requirements. This type of offering is known as a  secondary offering or resale registration statement.  In a secondary offering, the issuer does not receive any proceeds from the sale of the securities subject to the registration statement and any proceeds from the sale are received by the selling stockholders.

Companies often do secondary offerings when they have granted existing shareholders registration rights. After completing an initial public offering, an issuer may want to raise capital by filing a registration statement covering securities it intends to sell to the public.

This type of offering is referred to as a primary offering.  A registration statement can also register shares of both a primary and a secondary offering. This is common in going public transactions involving a private company that registers shares of common stock for sale to the public and also register shares for certain stockholders who desire to sell some or all of their shares.

Secondary offerings are generally done on either Form S-1 or Form S-3.  Each of these registration statement forms requires a description of the securities being offered, risk factors and the plan of distribution.  The primary difference between Form S-1 and S-3 is that S-3 allows the issuer to incorporate all Exchange Act reports into the registration statement.   Form S-1 registration statements allow the issuer to incorporate by reference only Exchange Act reports filed prior to the date of the registration statement, and only under limited circumstances.

Form S-1 Registration Statements

Form S-1 is the most common form of registration statement and all issuers are eligible to use Form S-1.  Form S-1 is typically used by companies that are conducting initial public offerings/IPO’s, direct public offerings or going public transactions where shares are registered on behalf of existing shareholders.

Form S-1 registration statements, require expansive disclosure of all items required by Regulation S-K.    An issuer can  incorporate certain information into its Form S-1 if it is already a public company subject to the reporting requirements of the Securities Exchange Act that has filed all Exchange Act reports during the past 12 months that were required to be filed and has filed an annual report on Form 10-K for its most recent fiscal year. Issuers meeting these requirements can incorporate its Exchange Act reports that have been filed on or before the date of the Form S-1 registration statement.

The Form S-1 registration statement will not be continuously updated every time the issuer files a new Exchange Act report. The issuer can amend its registration statement to include any Exchange Act reports that are filed between the date of the original filing of the registration statement and the date of the amendment. Once the SEC declares the registration statement effective, the issuer should file a post-effective amendment to incorporate any Exchange Act reports that were filed after the S-1 effective date. Alternatively, the issuer can file and distribute a prospectus supplement containing the information from the Exchange Act reports filed after the registration statement becomes effective.

Form S-3 Registration Statements

Form S-3 is a short-form registration statement that consists primarily of information about the specific transaction. Most 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 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.

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.

Form S-3 Registration Statement Issuer Requirements

For an issuer to register securities on Form S-3, it must be a domestic issuer.  Additionally, the issuer 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 a issuer satisfies the issuer requirements above, it can use Form S-3 for offerings that comply with certain 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 can register the following securities offerings on a Form S-3 registration statement:

♦ 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; or

• is a majority-owned operating partnership of a REIT that is a well known seasoned issuer.

♦ 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 this exception (including the securities proposed to be sold in this follow-on offering) in an amount exceeding one-third of its public float during the past 12 months.

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 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
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
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