Registered Offerings Using Form S-1- In the last LawCast series I detailed testing the waters in a Regulation A or A+ offering. I’m now moving on to registered offerings using Form S-1.
Historically all offers to sell registered securities prior to the effectiveness of the filed registration statement have been strictly regulated and restricted. The public offering process is divided into three periods: (1) the pre-filing period, (2) the waiting or pre-effective period, and (3) the post-effective period. Communications made by the company during any of these three periods may, depending on the mode and content, result in violations of Section 5 of the Securities Act of 1933. Communication-related violations of Section 5 during the pre-filing and pre-effectiveness periods are often referred to as “gun jumping.”
All forms of communication could create “gun-jumping” issues (e.g., press releases, interviews, and use of social media). “Gun jumping” refers to written or oral offers of securities made before the filing of the registration statement and written offers made after the filing of the registration statement other than by means of a prospectus that meet the requirements of Section 10 of the Securities Act, a free writing prospectus or a communication falling within one of the several safe harbors from the gun-jumping provisions.
“Offers” of securities are very broadly defined. Section 2(a)(3) of the Securities Act define “offer to sell,” “offer for sale,” or “offer” to include “every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value.” The definition specifically excludes discussions and negotiations between a company and an underwriter or underwriters. The Section 2(a)(3) definition of an offer also specifically excludes research reports by broker-dealers, a provision that was added by the JOBS Act and will be discussed in this Lawcast series.
In 2005, in order to modernize the offering process, the SEC adopted the “Securities Offering Reform,” which included adding a number of communication safe harbors from enforcement of Section 5. The JOBS Act added additional provisions allowing for test-the-waters communications by emerging growth companies during the offering process.
Test-the-waters communications involve solicitations of indications of interest for an offering prior to the effectiveness of a registration statement. Where Regulation A freely allows, and even encourages, test-the-waters communications, the standard IPO process using a Form S-1 still strictly limits pre-effectiveness solicitations of interest and offering communications overall. As with Regulation A, indications of interest as a result of test-the-waters communications are non-binding. Section 5(a) of the Securities Act prohibits the sale of securities before the registration statement is deemed effective. #LawCast