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Form S-1 vs. Form S-3
Form S-1 is the general Securities Act registration form. Form S-3 is a shorter form available only to eligible reporting companies.
A company conducting its first registered offering generally uses Form S-1. An established reporting company may qualify for Form S-3 for shelf offerings, registered directs, at-the-market offerings, or resale registrations. Capital Markets Law Group helps companies determine which form fits the transaction and prepare the filing the form requires.
How Do the Forms Compare?
The two forms cover the same securities laws, but they differ in who may use them and how much disclosure must be written from scratch. The table summarizes the differences.
| Issue | Form S-1 | Form S-3 |
|---|---|---|
| Typical user | Private company or ineligible reporting company | Eligible reporting company |
| Disclosure | Full registration disclosure | Greater incorporation by reference |
| Reporting history | No prior reporting period generally required | Reporting history and timely filings required |
| Shelf use | More limited flexibility | Commonly used for shelves |
| Public float | Not a general eligibility requirement | May affect eligibility and capacity |
| SEC review | May receive full review | May also receive review |
| Updating | Amendments and supplements as applicable | Future reports may update incorporated disclosure |
The practical distinction is preparation. Form S-1 builds the company's public disclosure from the ground up, while Form S-3 rests on an existing record of timely reports. A company whose filings are late or incomplete can lose S-3 eligibility regardless of size, which is why reporting discipline matters as much as the float test.
When Is Form S-1 Used?
Form S-1 may be used for:
- Initial public offerings
- Direct public offerings
- Primary capital raising
- Resale registrations
- Going-public transactions
- Offerings by companies ineligible for Form S-3
When Is Form S-3 Used?
An eligible company may use it for:
- Shelf registration
- Registered direct offerings
- At-the-market offerings
- Underwritten offerings
- Resale registrations
- Debt or preferred offerings
What Is the Baby-Shelf Limitation?
A company with a public float below the specified thresholds may be limited in the amount it can sell under specified Form S-3 instructions during a rolling 12-month period. The calculation should be reviewed before each offering.
What Are the Eligibility Benchmarks?
Form S-3 availability depends on reporting status and public float. A company may qualify when its public float is $75 million or more, and a company whose float is below that level may still qualify through defined alternative conditions tied to reporting history. A company whose float reaches $75 million after the registration statement becomes effective becomes subject to the one-third limit on primary sales rather than the full baby-shelf limit. A company with $700 million or more in public float can sell without the float-based limit.
The calculation should be confirmed before each offering, because float changes with the share price.
Is Form S-3 Always Faster?
It may be more efficient, but timing still depends on eligibility, reporting status, shelf status, offering structure, exchange requirements, SEC review, and auditor involvement.
How Does Capital Markets Law Group Help?
Our services may include:
- Evaluating Form S-1 and Form S-3 eligibility
- Calculating public float and offering capacity
- Preparing the selected registration statement
- Preparing prospectus supplements
- Responding to SEC comments
- Preparing offering agreements
- Coordinating exchange notifications
- Maintaining and updating the registration
Keep Reading: SEC Securities Offerings, Going Public and Form S-1 Registration Statements, Nasdaq and NYSE American Uplistings, Nasdaq Listing Applications and Uplisting Counsel.
Frequently Asked Questions
Can a Company Use Form S-3 Immediately After Going Public?
Usually not. Applicable reporting-history requirements must be satisfied.
Can a Company Lose Form S-3 Eligibility?
Yes. Late filings, deficiencies, public-float changes, or other issues may affect availability.
Can Selling Shareholders Use Form S-3?
An eligible issuer may use Form S-3 for qualifying resale registrations.
Does Form S-3 Eliminate SEC Review?
No.
Can a Company Have Both an S-1 and an S-3 Effective?
Potentially, depending on the transactions and registered securities.
What Is the One-Third Limitation?
A company whose public float is below $700 million may be limited under specified Form S-3 instructions to primary sales of up to one third of its public float in any 12-month period. The limitation applies to the registered form and should be checked before an offering is priced.
How Does Delinquent Reporting Affect Form S-3?
Form S-3 eligibility requires the company to have filed all required Exchange Act reports during the applicable period. A company that is delinquent generally cannot use Form S-3 until the required reports are filed, which is why remediation of delinquency is often the first step toward restoring an offering program.
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Talk to Capital Markets Law Group About Registration Statements
Capital Markets Law Group assists companies with Form S-1 and Form S-3 eligibility, preparation, SEC comments, shelf registrations, resale registrations, and registered offerings. Contact the firm before an offering is structured or filed.