Words of Wisdom

Category Archives: Form S-3 and Shelf Registration

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Late for a Very Important Date – Late SEC Filings and the Use of a Shelf Registration Statement

In a past installment, we addressed what Alice Wonderland, the General Counsel of our good public company client, March Hare, Inc., should be aware of in connection with a late SEC filing. This time, Alice called us after March Hare missed the filing deadline for a Form 8-K…..silly rabbit! Alice wants to know whether this … Continue Reading

The Shelf Crashers

Your good client William Cleary is on the line. Cleary–or to be precise, Hon. William Cleary, the former Secretary of the Treasury–is now running a successful public company that provides security for high-profile weddings. The company has an effective shelf registration statement, but two of his shareholders, John and Jeremy, now want to crash the … Continue Reading


Our good client, McFadden Friendly Real Estate Investments, wants to raise money (among other projects, it is currently developing the “Casper’s World” office park/theme park complex).  The company’s general counsel, Seymour Reit, calls to ask about the possibility of using Form S-11 for an offering on a delayed or continuous basis under Rule 415.… Continue Reading

Mind the Gap: Shelf Registration Statements and Takedowns Before Filing the Information in Part III of Form 10-K

Your good client Paddington Bakerloo, General Counsel of Piccadilly Lines, Inc., is on the phone.  He tells you that Piccadilly plans to file a shelf registration statement and to do a takedown.  He also tells you that Piccadilly has not yet filed its proxy statement. Here’s what you need to know in order to mind … Continue Reading

Where the Filed Things Are: Legal Opinion Exhibits in SEC Filings

In prior Weekly Words, we took a look generally at exhibits to SEC filings, exhibits to exhibits, personal information in exhibits and exhibit only filings. Today, we delve into one species of exhibits—legal opinions.  Let’s run through a few key points on how to stare into the yellow eyes of the Wild Things,1 as well … Continue Reading

One Hit Wonders: A Few Quick Hits on Recent Issues

This week we highlight questions from our reader mailbag on discrete issues of interest that were crying out “Take on Me”1 for this edition of Words of Wisdom. We are working with A Flock of Seagulls, Inc., on its IPO. AFOS’s financial statements are “stale,” but the CEO, Eileen Dexys is insisting we file the Form … Continue Reading

Upsizing a Shelf: What Price is Right?

In a prior entry, we discussed how to upsize a shelf offering, and focused on using an immediately effective, short-form Rule 462(b) registration statement to add additional shares or additional transaction size. We’re returning to the same scenario—upsizing a non-WKSI S-3 shelf. But this time we are going to illustrate that the choice you make upfront … Continue Reading

S-3: The Form of 1,000 Uses

Form S-3 has many uses1 – primary sales, secondary resales, WKSI shelves – and will make frequent appearances in our blog. This week we tackle the “Transaction Requirements” of General Instruction I.B.1 and I.B.6.  Background:  what is the difference between I.B.1 and 1.B.6 anyway? General Instruction I.B.1 permits an S-3 eligible public company to conduct … Continue Reading

Adding Subsidiary Guarantors to an Effective S-3 Shelf

A non-WKSI issuer registered $200 million of notes on an S-3 shelf that has been declared effective. Fifty million of the notes have been sold to date. The registration statement discloses that more than one, but not all, of the issuer’s wholly owned subsidiaries fully and unconditionally guarantee the notes and includes each of the … Continue Reading

Exhibit-Only Filings

An issuer has filed a shelf registration statement on Form S-1, which has gone effective. Let’s say it wants to add a subsequently executed agreement as an exhibit to the registration statement. Can it do so by means of an automatically effective post-effective amendment? Yes, a Form S-1 issuer may file an automatically effective post-effective amendment to … Continue Reading

“The Good, the Bad and the Ugly”

The Good:  Flash Numbers We are counsel to an issuer in an underwritten offering of common stock off an S-3 shelf. The issuer had a good quarter, and we would like to include a snapshot of the results, or “flash numbers,” in the pro supp. Can we do so despite the fact that full financial statements for … Continue Reading