SEC 2120 - Form S-3 (2024)

Form S-3 is a short form Securities Act registration statement that can be used to register the offer and sale of many different types of securities, including common and preferred stock, options, warrants, debt (convertible and non-convertible) and debt guarantees. Form S-3 can be used to register primary offerings (i.e., when an issuer sells its own securities) and secondary offerings (i.e., the resale of securities by a selling security holder that is not the issuer). Form S-3 may be used to register a current sale of securities, a future sale of securities, or a continuous offering.

The disclosure requirements of Form S-3 are set forth under the various items within the body of the form and generally cross-reference to Regulations S-X or S-K for the specific requirements. One of the principal differences between Form S-3 and Form S-1 is that prospectus disclosure in Form S-3 is largely based on information that is incorporated by reference from previously filed Exchange Act reports and the prospectus is kept current through the automatic incorporation by reference of future Exchange Act reports, whereas disclosure in Form S-1 is generally based on disclosures included in the prospectus.

Other sources that issuers should consider when preparing a Form S-3 include the General Instructions to Form S-3 and Regulation C, which contains the general requirements for preparing and filing a registration statement under the Securities Act. Additionally, the SEC staff has published extensive interpretive guidance including various Compliance & Disclosure Interpretations. See, for example, Securities Act Forms CDI Sections 114-124 and 214-224.

The eligibility requirements for use of Form S-3 are set forth in General Instruction I to the form. To be eligible to use Form S-3, an issuer must meet the form's "Registrant Requirements" (included in General Instruction I.A.) and the transaction must meet one of the form's "Transaction Requirements" (included in General Instruction I.B.). Majority-owned subsidiaries should refer to General Instruction I.C.

A Form S-3 that registers the future sale of securities is commonly referred to as a shelf registration statement because all of the registration activity (including SEC staff review) takes place upfront, and then, when the decision is made to sell securities, they are "taken off the shelf" with no further review by the SEC staff. Securities are normally "taken off the shelf" by filing a prospectus supplement underSecurities Act Rule 424(b)that describes the terms of the securities offered. The process of selling securities from an already effective shelf Form S-3 is also referred to as a shelf “takedown.” SeeSecurities Act Rule 415for additional information.

.131 What is an automatic shelf registration statement?

Unlike Form S-1, which specifically calls for an issuer to provide the financial statements required by Regulation S-X, financial statement disclosure in Form S-3 principally relies on the incorporation by reference of financial statements from previously filed Exchange Act reports (e.g., Forms 10-K and 10-Q).

Accordingly, the principal mechanism for providing financial statements in Form S-3 at the time of filing and effectiveness is through incorporation by reference of the financial statements included in previously filed Forms 10-K and 10-Q. There are, however, certain instances in which the previously filed financial statements will need to be updated prior to filing a Form S-3. See SEC 2120.22 regarding the SEC’s age of financial statements requirements and SEC 2120.23 regarding the requirements of Item 11(b) of Form S-3.

Yes. Even though Form S-3 doesn’t specifically refer to the requirements of Regulation S-X, the SEC’s age of financial statements requirements in S-X 3-12 (S-X 8-08 for a smaller reporting company) are applicable to a registration statement on Form S-3. That means the financial statements incorporated by reference in the Form S-3 from previously filed Exchange Act reports may need to be updated to a more recent date before the Form S-3 is filed or becomes effective. This is true whether or not the Form S-3 is an automatic shelf registration statement. See Securities Act Forms CDI 223.01.See also SEC 4600 (including SEC 4600.41 for SEC staff guidance with respect to interim financial statements).

For example, a calendar year-end registrant would need to provide its December 31, 2023 audited financial statements in connection with a Form S-3 filed after February 14, 2024 unless it meets the requirements of S-X 3-01(c) (S-X 8-08(b) for a smaller reporting company). This is true even though the December 31, 2023 Form 10-K isn’t due until the 60th, 75th or 90th day after year end (depending on the issuer’s accelerated filer status(SEC 3125)).

Yes. If the financial statements incorporated by reference from the most recent Form 10-K do not reflect certain material events subsequent to the date of those financial statements, then they may need to be updated prior to filing the Form S-3. If the following financial statements or information are not included in the registrant's Exchange Act reports or in a prospectus filed in an effective registration statement incorporated by reference in the Form S-3, then Item 11(b) of Form S-3 requires the inclusion of revised financial statements or information in the Form S-3:

(a) The financial information required by S-X 3-05 and S-X Article 11 (S-X 8-04 and 8-05 for a smaller reporting company) regarding businesses acquired or to be acquired (see SEC 4550 and 4560). See also S-K 504 (Instruction 6) when the proceeds of an offering will or may be used to finance the acquisition of another business.

(b) Financial statements prepared in accordance with Regulation S-X if there has been a change in an accounting principle retrospectively applied or restatement for a correction of an error where such change or correction requires a material change to the financial statements.

(c) Retrospectively adjusted financial statements prepared in accordance with Regulation S-X if a combination of entities under common control has been consummated subsequent to the most recent fiscal year-end and the transferred business(es), considered in the aggregate, are significant pursuant to S-X 11-01(b). See SEC 4400 and SEC FRM 13410.1.

(d) Financial information required because of a material disposition of assets outside the normal course of business.

Although not listed in Item 11(b) of Form S-3, retrospectively adjusted annual audited financial statements prepared in accordance with Regulation S-X are required when a registrant changes its reportable segments (assuming the effect on the previously issued annual financial statements is material). See SEC FRM 13110.2.

.231 How would the requirements of Item 11(b) work in the case of a retrospective change in accounting principle?

.232 How are revised financial statements typically made a part of the Form S-3?

The considerations outlined in SEC 2120.22 and .23 are in the context of filing a registration statement on Form S-3. There are different considerations associated with a shelf takedown.

For instance, the SEC staff has indicated that S-X 3-01 does not prevent a shelf takedown from occurring and would not apply to a prospectus supplement as it is not for purposes of updating the prospectus under Section 10(a)(3) of the Securities Act. See Securities Act Rules CDI 212.13 and SEC 4600.803.

Most Form S-3 registration statements include the undertaking specified in S-K 512(a)(1)(ii). Accordingly, when preparing to take securities off the shelf by means of a prospectus supplement, the registrant willconsider whether there have been any facts or events arising after the effective date of the registration statement (or most recent post-effective amendment thereof) which, individually or in the aggregate, represent a "fundamental change" in the information set forth in the registration statement. If there have been one or more fundamental changes, the registrant would need to consider whether a post-effective amendment must be filed prior to the takedown. The determination of what constitutes a "fundamental change" is a legal matter.

Generally, registrants and their legal counsel have concluded that discontinued operations, segment changes, and changes in accounting principle do not represent "fundamental changes" to the information set forth in the registration statement. Accordingly, those registrants generally do not retrospectively adjust their prior period annual financial statements in connection with a takedown, even if they would have been required to do so in connection with a new or amended registration statement (e.g., because the effects of changes on the previously issued financial statements are material).

See SEC 2400 for a discussion of accountants’ consents.

See SEC 2300 for a discussion of experts language.

For purposes of Form S-3 eligibility, a calendar month begins on the first day of the month and ends on the last day of that month. Accordingly, if a registrant was not timely on a Form 10-Q due on August 9, 2024, but was timely thereafter, it would first satisfy the timely filer requirement of Form S-3 on September 1, 2025. See Securities Act Forms CDI 115.06. See SEC 3145 for information relating to non-timely filings.

As discussed more fully in SEC 3130.912, General Instruction G(3) to Form 10-K permits a registrant to file its Form 10-K without the information required by Part III of that form and file that information no later than 120 days after the end of the fiscal year. The SEC staff has stated that it will not object to either the filing or use of an automatic shelf registration statement by an issuer which has filed its Form 10-K but has not filed the Part III information for that year. However, the SEC staff has stated that “issuers are responsible for ensuring that any prospectus used in connection with a registered offering contains the information required to be included therein by Securities Act Section 10(a) and Schedule A.” See Securities Act Forms CDI 114.05.

Registrants that are not eligible to use an automatic shelf registration statement are usually not allowed to use the accommodation discussed in Securities Act Forms CDI 114.05. As such, issuers should discuss the need to file Part III of Form 10K before the registration statement is declared effective by the SEC with legal counsel.

The filing of an annual report on Form 10-K triggers a new determination date for well-known seasoned issuer status. If an issuer no longer meets the definition of a well-known seasoned issuer on the date it files its annual report on Form 10-K, then it would generally not be able to use a previously filed automatic shelf registration statement. Instead, the company would likely need to amend its previously filed registration statement to comply with a form that it is eligible to use (e.g., a Form S-1 or a non-automatic shelf registration statement such as Form S-3).

The SEC staff published guidance for a company that no longer meets the definition of a well-known seasoned issuer at the filing date of its current Form 10-K. This guidance provides certain steps that the company may be able to take in order to preserve its ability to readily access the capital markets. Some of these steps must be taken before the issuer files its Form 10-K. See Securities Act Rules CDI 198.06.

No. See General Instruction B.4. of Form SD.

The SEC staff has indicated that a registrant is not required to file a pre-effective amendment solely to incorporate an Exchange Act report filed prior to effectiveness, provided that the registrant includes astatement in its initial registration statement (in addition to the statement regarding incorporation after the date of the prospectus) that all filings filed by the registrant pursuant to the Exchange Act after the date of the initial registration statement and prior to effectiveness of the registration statement are deemed to be incorporated by reference into the prospectus. In the first prospectus used after effectiveness, a copy of which is required to be filed under Rule 424(b), the registrant should identify all Exchange Act reports filed prior to effectiveness. If the registration statement does not specifically incorporate reports filed during the waiting period, a pre-effective amendment would be required in order to incorporate the Exchange Act report. See Securities Act Forms CDI 123.05.

No. Auditors must still perform their responsibilities under PCAOB AS 4101.

Generally, no. See Item 12(d) of Form S-3 and SEC 2110.908 for additional guidance.