Public Offers by Seasoned and Well-Known Seasoned Issuers

Integrated Disclosure for the Seasoned Company
1. The overall objective of the integrated program is to eliminate overlapping and unnecessary disclosure and dissemination requirements without compromising the information needs of investors.
2. Basic Information Package (Company Specific Information)
  - (1) Audited financial statements consisting of balance sheets for the two most recent fiscal years as well as an income statement and statement of changes in financial position for each of the three most recent fiscal years.
  - (2) Selected financial information for the last five years, highlighting trends in such important items such as sales, income/loss, total assets, long-term obligations, and dividends paid per common share
  - (3) Management's Discussion and Analysis of the issuer's financial condition and operations, with emphasis on any apparent trends in its business
  - (4) Information about the trading market for the issuer's stock
3. The Basic Information Package appears is (1) the issuer's annual report to its stockholders, which accompanies each proxy statement; (2) its Form 10-K; and (3) all registration statements under the '33 Act.
  - The Form 10-K includes a detailed description of of the issuer's business, properties, and legal proceedings as well as certain information about officers and directors.
4. In contrast to company specific information, transaction specific information is disclosed in connection with that transaction.
5. Two main features of the integrated disclosure system:
  - (1) The SEC adopted uniform disclosure requirements for documents filed under the '33 Act and the '34 Act
    - The requirements for all financial items appear in Regulation S-X
    - The requirements for all non-financial items appears in Regulation S-K
  - (2) Large publicly traded companies can satisfy the '33 Act registration statement requirements for company specific information by incorporating by reference such information from current '34 Act filings.
    - To be eligible, to take advantage of the integrated disclosure system:
      - (1) Be eligible to use Form S-3 OR
        
        Registrant Requirements:
        
        (1) The registrant is organized under the laws of the United States, or any state or territory or the District of Columbia, and has its principle place of business operations in the United States or its territories;
        
        (2) The registrant has a class of securities registered; and
        
        (3) The registrant has been a filing company for 12 months and has filed all the required filings on time.
        
        Transaction Requirements (if an issuer meets the registrant requirements, it also has to meet at least one of the transaction requirements) See Stat. Supp. Form S-3 I.B.1-I.B.6 pp. 211-13)
        
        For primary offerings: The aggregate market value of of the voting and non-voting common equity held by non-affiliates is $75 million or more. (I.B.1)
        
        OR
        
        Even if the issuer has a common stock float below $75 million, it can nonetheless use Form S-3 if (1) the offering is for cash, (2) the offering amount during any 12-month period does not exceed one-third of the market value of the common stock held by non-affiliates (the public float), and (3) the issuer has one class of common stock listed on a national exchange. (I.B.6)
        
        OR
        
        "Investment Grade" debt, non-convertible preferred stock, or asset-backed securities
        
        Such securities are "investment grade" if rated as such by a recognized rating service. If they are so rated, the float and trading volume requirements do not apply.
      - (2) Have filed at least on annual report, be current with the '34 Act filings, and make the incorporated information readily available on a web site maintained by and for the issuer.
  - HOWEVER, transaction specific information will not have been publicly disseminated and thus will need to be included in the registration statement
6. Two main forms for domestic issuers registering Securities under the '33 Act:
  - Form S-1
    - Unseasoned issuers (reporting issuers that fail to meet the eligibility requirements of Form S-3)
    - Non-reporting issuers (Issuers who are not required to file Exchange Act reports)
  - Form S-3
    - Well-known seasoned issuers (WKSIs)
    - Seasoned issuers (those that are not WKSIs but can avail themselves of Form S-3, namely those with 12 months of timely Exchange Act reports).
    - Eligibility Requirements:
      - Registrant Requirements:
        
        (1) The registrant is organized under the laws of the United States, or any state or territory or the District of Columbia, and has its principle place of business operations in the United States or its territories;
        
        (2) The registrant has a class of securities registered; and
        
        (3) The registrant has been a filing company for 12 months and has filed all the required filings on time.
      - Transaction Requirements (if an issuer meets the registrant requirements, it also has to meet at least one of the transaction requirements) See Stat. Supp. Form S-3 I.B.1-I.B.6 pp. 211-13)
        
        For primary offerings: The aggregate market value of of the voting and non-voting common equity held by non-affiliates is $75 million or more. (I.B.1)
        
        OR
        
        Even if the issuer has a common stock float below $75 million, it can nonetheless use Form S-3 if (1) the offering is for cash, (2) the offering amount during any 12-month period does not exceed one-third of the market value of the common stock held by non-affiliates (the public float), and (3) the issuer has one class of common stock listed on a national exchange. (I.B.6)
        
        OR
        
        "Investment Grade" debt, non-convertible preferred stock, or asset-backed securities
        
        Such securities are "investment grade" if rated as such by a recognized rating service. If they are so rated, the float and trading volume requirements do not apply.
7. Well-known seasoned issuers
  - Any issuer with a common stock market capitalization (excluding shares held by affiliates) of $700 million or, in the case of a debt or non-convertible preferred stock offering, issuers that in the prior three years have offered $1 billion in non-convertible securities other than common stock.
  - WKSIs are eligible for Automatic Shelf Registration
8. WKSIs are eligible for Automatic Shelf Registration
  - The issuer's base registration statement is composed of information incorporated from the issuer's Exchange Act filings.
  - A base prospectus included in an an automatic shelf registration statement can omit information pursuant to Rule 409 that is unknown or not reasonably available and, can also omit the following additional information:
    - Whether the offering is a primary or secondary distribution;
    - The description of the securities to be offered other than an identification of the name or class of the securities;
    - The names of any selling security holders; and
    - The disclosure regarding any plan of distribution.
  - BUT The base prospectus in the initial registration statement must identify in general terms the names and classes of securities registered.
    - BUT there is no requirement for allocating the mix of securities registered between the issuer, its eligible subsidiaries, or selling security holders.
  - The transaction specific information is provided after the securities are sold.
    - This is analogous to pricing amendments under Rule 430A
  - Issuers have the ability to add omitted information to the prospectus by means of
    - A post-effective amendment to the registration statement;
    - Incorporation by reference from Exchange Act reports; or
    - A prospectus or prospectus supplement that would be deemed to be part of and included in the registration statement. . . .
      - Doesn't amend the prospectus
  - Under this system, the SEC rules permit eligible WKSIs to register unspecified amounts of different securities on Form S-3 that will become automatically effective when filed.
    - This allows WKSIs to better take advantage of market windows.
  - The automatic shelf registration system allows eligible issuers to add additional classes of securities and to add eligible majority-owned subsidiaries as additional registrants after an automatic shelf registration statement is effective.
    - BUT to do add a new class of securities or securities of an eligible subsidiary, the issuer must file a post-effective amendment, which will be immediately effective, to register an unspecified amount of securities of a new class of security.
  - Automatic shelf registration statements, and post-effective amendments thereto, become effective immediately and have a three year life.
    - At the end of the three years, the issuer can resubmit their current statement and amend it as they deem appropriate.
  - The automatic shelf registration system is available for both primary (excluding mergers and exchange transactions) and secondary offerings of securities of WKSIs.
9. Four distinct classes of issuers:
  - Well-known seasoned issuers (WKSIs)
  - Seasoned issuers (those that are not WKSIs but can avail themselves of Form S-3, namely those with 12 months of timely Exchange Act reports).
  - Unseasoned issuers (reporting issuers that fail to meet the eligibility requirements of Form S-3)
  - Non-reporting issuers (Issuers who are not required to file Exchange Act reports)
Gun Jumping Concerns for the Seasoned Issuer
1. Tombstone Ads and Identifying Statements - DON'T FORGET RULE 134 re tombstone ads APPLIES HERE TOO
  - Once a registration statement is filed, publicity can be given through an announcement called a "tombstone ad."
    - Publicity can also be given via an "identifying statements."
      - Announcements under Rule 134 are commonly referred to as "identifying statements"
  - The tombstone ad traces its authority...

Public Offers By Seasoned And Well Known Seasoned Issuers - Securities Regulation

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