Form S-1 Filing Requirements, Form S-1 and Going Public Lawyers
Private companies going public should consider Form S-1 filing requirements when contemplating their securities offering. Private companies seeking to raise capital often file a registration statement on SEC Form S-1 to meet certain requirements of the Financial Industry Regulatory Authority when going public. Upon filing, a Form S-1 is reviewed by the Securities and Exchange Commission, who may render SEC Comments. Once a Form S-1 is declared effective by the SEC, the company becomes subject to SEC reporting requirements.
All companies qualify to use and must comply with Form S-1 registration statement requirements. Unlike a Form 10 registration statement which registers a class of securities, Form S-1 registers specific securities offerings or transactions and it does not become effective until all SEC comments have been resolved. Private companies going public should be aware of the expansive disclosure required in registration statements filed with the SEC prior to making the decision to go public. Companies conducting securities offerings should also be familiar with the Form S-1 quiet period and Form S-1 risk factor requirements.
A registration statement on Form S-1 can be used to register various types of securities offerings and transactions with the SEC. Form S-1 provides issuers with flexibility in the types of securities that can be registered. Hiring the right Form S-1 Registration Statement Lawyer can help the company structure its transaction in the most effective manner. Form S-1 is used more often by issuers than any other type of registration statement form and as a result, it provides flexibility. Form S-1 registration statements can be used by existing public companies or companies in connection with a direct public offering as part of a public transaction. Regardless of whether the company is public or private, Form S-1 can be used to register various types of transactions, including:
- Initial Public Offering (“IPO) which is an offering of an issuer’s securities through an underwriter.
- Direct Public Offering (“DPO”) which is an offering of an issuer’s securities without an underwriter.
- Resale Registration or Selling Stockholder Offering which is an offering registered on behalf of stockholders who already hold shares of the issuer.
- Private Investment in Public Equity (“PIPE”) which entails the issuer selling its securities in a private placement and once the offering is complete subsequently registering the securities sold on an SEC registration statement. The investors in the private placement hold free trading stock, or public equity upon effectiveness of the registration statement.
- Equity Line which involves the issuer drawing on an Equity Line of credit and providing its lender with registered, free trading securities.
The Form S-1 registration statement has two principal parts which require line item disclosures. Part I of the registration statement is the Form S-1 prospectus, which requires that the company provide certain disclosures about its business operations, financial condition, and management. Part II contains information that doesn’t have to be delivered to investors.
SEC Form S-1 General Information Requirements
Four primary regulations apply to the preparation and filing of a registration statement on SEC Form S-1. Regulation C – contains the general requirements for preparing and filing the Form S-1. Within Regulation C are regulations and procedures related to (a) the treatment of confidential information; (b) amending a registration statement prior to effectiveness; (c) procedures to file a post-effective amendment; and (d) the “plain English” rule. Regulation S-K – sets forth, in detail, all the disclosure requirements for all the sections of the S-1. Regulation S-K is the who, what, where, when and how requirements to complete the Form S-1.
Regulation S-T – requires that all registration statements, exhibits and documents be electronically filed through the SEC’s EDGAR system.
Regulation S-X – sets forth the requirements with respect to the form and content of financial statements to be filed with the SEC. Regulation S-X includes general rules applicable to the preparation of all financial statements and specific rules pertaining to particular industries and types of businesses.
SEC Form S-1 Registration Statements include: (i) a cover page; (ii) Part I which is known as the prospectus; (iii) Part II which is known as supplemental disclosure) (iv) undertakings; (v) signatures and powers of attorney; (vi) consents; and (vii) required exhibits.
The Form S-1 Registration Statement – Cover Page
The cover page of the Form S-1 Registration Statement sets forth the following basic information about the Issuer and the securities offering being registered: (i) the Issuer’s legal name; (ii) the Issuer’s state of incorporation; (iii) the Issuer’s SIC code; (iv) the Issuer’s tax ID number; (v) the address and telephone number of the Issuer’s principal executive offices and of its registered agent for service of process; (vi) the maximum amount of securities proposed to be offered on the Form S-1, (vii) the amount of registration fee; (viii) the approximate date of the offering; and (ix) whether any of the securities subject to the Form S-1 are being registered “on the shelf” pursuant to Rule 415 of the Securities Act.
The Form S-1 Registration Statement Prospectus – Part I of the Form S-1
Part I of the Form S-1 contains the Prospectus which includes the following:
Description of Business, Properties and Legal Proceedings (Regulation S-K Items 101 – 103 of Reg. S-K)
Item 101 of Regulation S-K requires a description of the business of the Issuer for the prior 5 years or 3 years for small public companies. Item 101 sets forth a list of required information which includes the Issuer’s year and state of incorporation; products and services; sources of raw materials; environmental issues; government regulations, research and development and number of employees. In addition, parts of Item 101 require discussion of future plans—for example, plans for expansion or increase in employees. Item 101 also requires a description of the Issuer’s competitors specifically and in the industry in general. This paragraph is a brief summary and examples of only a few of the numerous items that must be specifically disclosed and discussed in accordance with Item 101.
Item 102 of Regulation S-K requires that the Issuer set forth the location and general character of the physical properties of the Issuer, including how it is titled and a description of any liens, mortgages or encumbrances.
Item 103 of Regulation S-K requires that the Issuer disclose any pending or contemplated legal proceedings, including specifically required information about these proceedings. An Issuer needs not to disclose legal proceedings in the ordinary course of its business.
Description of Securities (Items 201 and 202 of Regulation S-K)
Items 201 and 202 require a description of the securities being offered as well as past and future information regarding these securities and all of the Issuer’s outstanding securities, including, for example, prior market and pricing activity, rights and preferences, outstanding warrants, and dividends.
Form S-1 Summary Financial Statement Information (Items 301-305 of Regulation S-K)
Smaller Issuers are not required to make disclosure under Items 301 and 302, which require that the Issuer provide a summary of financial data that is contained in the financial statements. All Issuers are required to provide disclosure under Item 303: Management Discussion and Analysis of Financial Condition and Results of Operation (MD&A). MD&A often makes up the bulk of narrative discussion in a registration statement and is arguably the most important portion of the registration statement for investors to understand the Issuer and its management plans. A detailed discussion of the requirements of this section could fill up multiple blogs on this topic alone. However, very briefly, MD&A requires discussion of key financial elements and changes in those items over the prior 12 months. For example, MD&A would disclose revenues for the current term and prior year and explain why that number increased or decreased (i.e., the company may have expanded or cut back on its sales force). In addition, MD&A requires a detailed discussion of the Issuer’s future plans and the costs and intended source of financing for those plans. An Issuer cannot simply state that it plans to open 10 new locations, but instead would be required to provide details as to where those locations were, what progress (if any) had been made towards the plan, the costs of the plan and where the money is going to come from.
MD&A requires discussion regarding liquidity and capital resources. This would include breaking out balances owed or owing on various obligations and sources and uses of funds for 12-, 24- and 36-month periods. MD&A requires a discussion of the industry and competition, both generally and as may specifically affect the Issuer. Again, this is a very brief outline of MD&A.
Management and Certain Security Holders (Items 401-404 of Regulation S-K)
Items 401 through 404 of Regulation S-K require disclosure of certain information regarding directors, executive officers, key employees and those that own 5% or more of the outstanding securities of the Issuer. Item 401 requires the Issuer to disclose certain biographical information about officers, directors and key employees. This information includes 5 years of business background, name, age, familial relationships among other disclosed individuals, related party transactions, and involvement in certain legal proceeding over the prior 10 years (such as convictions of crimes, governmental enforcement actions, and involvement in bankruptcies). Item 402 requires disclosure of executive compensation, including that which is past, current and obligated in the future. Item 403 requires disclosure of the legal and beneficial ownership of executive officers, directors and 5%-or-more shareholders. Item 404 requires disclosure of financial related party transactions.
Form S-1 Registration Statement and Prospectus Rules (Item 501-512 of Regulation S-K)
Items 501-512 (often referred to as standardized items) require different disclosures and information throughout the Form S-1, including specific information on the front and back covers and throughout the Form S-1. Examples include how the offering price was determined (Item 505), risk factors (Item 503), use of proceeds (Item 504), dilution (Item 506), disclosure of selling security holders if a secondary offering (Item 507), plan of distribution (Item 508), experts (Item 509), offering expenses (Item 511), and undertakings (Item 512).
Part II of the Form S-1 Registration Statement
Part II of the Form S-1 registration statement contains supplemental information and formal legal requirements. Part II contains the financial information, sales and issuances of unregistered securities and legal information regarding the exemptions relied upon in making such sales and issuances and information regarding the exhibits attached to the S-1. In addition, a list of exhibits is included in Part II.
Regulation S-X sets forth the form, content and requirements as to the financial statements that must be reviewed and audited by a PCAOB-licensed accounting firm.
Item 601 of Regulation S-K lists required exhibits that must be filed with a Form S-1 (for example, original articles of incorporation and all amendments thereto, material contracts, auditor consent letter, legal opinion, etc.). These exhibits must be filed with the S-1 and become available for public review.
All registration statements must be written in “plain English” as opposed to legalese or industry terminology. The plain English rule requires that the registration statement be written using the following English grammatical principles: active voice; short sentences; definite, concrete, everyday words; tabular presentations of financial information and other applicable data; bullet lists for complex and material data, whenever possible; avoidance of legal jargon; avoidance of highly technical business terms; and no multiple negatives. The SEC enforces the plain English rule and will not hesitate to ask that paragraphs or sections be rewritten.
The Filing and Comment Process of Registration Statements on Form S-1
Once the Form S-1 is filed with the SEC, using the EDGAR and XBRL requirements, the SEC will let the Issuer know if the S-1 will be reviewed (they usually are). The SEC assigns a team, including both a legal and an accounting expert, to review the document and provide comments to the Issuer. The Issuer then prepares and files an amendment to the S-1 making the changes and addressing the comments requested by the SEC, and prepares and files a responsive letter which sets forth written direct answers to each of the comments. The comment process can, at times, be arduous and repetitive; however, the Issuer should realize that it is all just part of the process. When the comments are addressed to the satisfaction of the SEC, the Issuer can request and the SEC will issue an order allowing the registration statement to go effective.
The Securities Sale Process in Form S-1 Registration Statements
Once the S-1 goes effective, the issuing company can proceed with the sale process. A sale is completed much the same way as in a private offering. That is, an investor executes a subscription agreement and pays for the securities, which are then issued to the investor by the transfer agent.
PCAOB – Financial Statement Requirements in Form S-1 Registration Statements l Going Public Transactions
Financial statements included in a registration statement must be audited by a firm that is a member of the Public Company Accounting Oversight Board (“PCAOB”). SEC rules allow smaller reporting companies to provide less financial information than larger reporting issuers.
Rule 405 defines a smaller reporting company as a company that: (i) had a public float of less than $75 million as of the last business day of its most recently completed second fiscal quarter, computed by multiplying the aggregate number of shares of its common equity held by non-affiliates by the price at which the common equity was last sold, or the average of the bid and asked prices of common equity, in its principal market; (ii) in the case of an initial registration statement under the Securities Act or Exchange Act for shares of its common equity, had a public float of less than $75 million as of a date within 30 days of the date of the filing, computed by multiplying the aggregate number of such shares held by non-affiliates before filing plus the number of such shares included in the registration statement by the public offering price of the shares; or (iii) if the public float as calculated under paragraph (1) or (2) above is zero, had annual revenues of less than $50 million during the most recently completed fiscal year for which audited financial statements are available.
The financial statements required for a company that does not qualify as a smaller reporting company are:
♦ Audited balance sheets (consolidated if you have subsidiaries) as of the end of each of the two most recent fiscal years or if your company been in existence for less than one fiscal year, an audited balance sheet as of a date within 135 days of the date of filing the registration statement.
♦ Audited statements of income and cash flows for each of the three fiscal years preceding the date of the most recent audited balance sheet being filed or such shorter period as the issuer has been in existence.
♦ Interim reviewed financial statements for the current period if the filing is more than 135 days after the end of the issuer’s fiscal year end.
♦ Date of financial statements: Each amendment must include updated interim or audited financial statements if the financial statements in the prior filing are more than 135 days old.
Smaller Reporting Company Disclosures in Registration Statements
Smaller reporting companies going public may elect to provide the following disclosures in their registration statement:
♦ Audited balance sheet as of the end of each of the most recent two fiscal years, or as of a date within 135 days if the issuer has existed for a period of less than one fiscal year.
♦ Audited statements of income, cash flows and changes in stockholders’ equity for each of the two fiscal years preceding the date of the most recent audited balance sheet (or such shorter period that the issuer has been in business).
♦ Interim reviewed financial statements for the current period if the filing is more than 135 days after the end of your fiscal year.
♦ Date of financial statements: Each amendment must include updated interim or audited financial statements if the financial statements in the prior filing are more than 135 days old.
Business Related Disclosures in Form S-1 Registration Statements l Going Public Transactions
This business section of the registration statement describes the general character of the issuer’s business and includes a brief description of the organizational history of the company, its principal products and services, potential markets and customers, methods for distributing products and services, availability of raw materials, intellectual property, competitive conditions, research and development expenses, costs associated with complying with regulations, and the number of full and part time employees.
Risk Factor Disclosures in Form S-1 Registration Statements l Going Public Transactions
The risk factor section of a registration statement describes the risks and uncertainties of investing in the issuer. This may include limited financial resources, a limited operating history, adverse economic conditions in a particular industry, lack of a market for the securities offered, industry competition, government regulation, and/or reliance on key personnel or on a limited number of suppliers, distributors, or customers.
Other Required Disclosures in Form S-1 Registration Statements l Going Public Transactions
This registration statement requires that the issuer identify its officers and directors and provide information on the issuer’s compensation and benefits plan, material transactions between the issuer and its officers and directors, as well as material legal proceedings involving the issuer or its officers and directors.
This section of the registration statement describes the distribution plan for the securities being registered in the going public transaction including the offering size.
This section sets forth the planned uses of the proceeds from the sale of the securities being registered in the registration statement.
Misstatements in Form S-1 Registration Statements used in Going Public Transactions
If the Form S-1 registration statement, at the time it becomes effective, contains an untrue statement or omits a statement of a material fact necessary to make other statements non-misleading, Section 11 of the Securities Exchange Act of 1933 imposes liability on the issuer and its management as well as other third parties.
The Securities Act holds individuals who help prepare a registration statement on behalf of an issuer responsible for any misrepresentations and omissions in the registration statement. Section 11(a) of the Securities Act, 15 U.S.C. § 77k(a), makes several categories of persons and entities responsible for material misstatements or omissions in a registration statement.
A majority of the issuer’s board of directors, as well as its principal executive officer or officers, principal financial officer, and its controller or principal accounting officer, must sign the registration statement used in the going public transaction. The issuer, as well as each signer is subject to potential civil liability under § 11(a) of the Securities Act for material misstatements or omissions in the registration statement. In addition, any person who controls the issuer or any other responsible party is subject to liability.
Moreover, the issuer and its officers and directors, attorneys, accountants and underwriters are liable under Section 11(a) of the Securities Act.
Companies going public have a variety of structures for their transactions. Companies can go public using an initial public or direct public offering. They can obtain their shareholders and raise money by selling stock in an initial public offering or direct public offering. If you are going to offer and sell securities, or go public using an SEC registration statement on Form S-1 you will need the assistance of an experienced securities lawyer to guide you through the registration process and ensure all required disclosures are made.
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. For more information about going public and the rules and regulations affecting the use of Rule 144, Form 8K, crowdfunding, FINRA Rule 6490, Rule 506 private placement offerings and memorandums, Regulation A, Rule 504 offerings, SEC reporting requirements, SEC registration statements on Form S-1 , IPO’s, OTC Pink Sheet listings, Form 10, OTC Markets disclosure requirements, DTC Chills, Global Locks, reverse mergers, public shells, direct public offerings and direct public offerings, please contact Hamilton and Associates at (561) 416-8956 or [email protected]