Publications

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The SEC’s Division of Corporation Finance has released Compliance and Disclosure Interpretations (CD&Is) regarding forms it has promulgated under the Securities Act of 1933, as amended. The nearly 200 new CD&Is, released on February 27, 2009, address general Securities Act form matters, the F‑Series forms, Form S‑1, Form S‑3, Form S‑4, Form S‑8, Form S‑11 and Form D.

A few notable CD&I topics include the following:

Registrants may obtain waivers from Securities Act form eligibility requirements, but requests for such waivers are granted only under very limited circumstances and by the Office of Chief Counsel of the Division of Corporation Finance.

An issuer may satisfy the Form S-1 requirement for incorporation by reference to previously filed Exchange Act reports and other materials by including on the issuer's website hyperlinks directly to the issuer's reports or other materials filed on EDGAR or to the issuer's EDGAR filing page. Linking to the SEC's EDGAR system generally, or to a page where an investor would be required to select the issuer or input the issuer's name, will not satisfy this requirement.

At the time of an update to a Form S-3 registration statement pursuant to Securities Act Section 10(a)(3) (which generally occurs through a Form 10-K), the market value of the registrant's common equity held by non-affiliates must meet the minimum required by General Instruction I.B.1 ($75 million). To continue a primary offering, a registrant with a lower public float must amend its registration statement onto the form it is then eligible to use for a primary offering (e.g., Form S-1). If the registrant has a class of common equity securities listed and registered on a national securities exchange, it should consider whether it is eligible to use Form S-3 pursuant to General Instruction I.B.6 (which allows Form S-3 to be used to offer securities for cash by or on behalf of a listed issuer, other than a shell company, who has not sold, in the prior 12 months, securities with an aggregate market value of more than one-third of its public float).

In determining eligibility to use Form S-3, the requirement that the registrant has filed in a timely manner all reports required to be filed during the past 12 calendar months refers only to Section 13(a) or 15(d) reports and Section 14(a) and 14(c) materials under the Securities Exchange Act, as amended.

For purposes of calculating the 12-calendar-month period for Form S-3 eligibility, a calendar month begins on the first day of the month and ends on the last day of that month. Hence, if a registrant were not timely on a Form 10-Q due on September 15, 2008, but was timely thereafter, it would first be eligible to use Form S-3 on October 1, 2009.

In computing whether a registrant meets the $75 million public float requirement for Form S-3 eligibility, it is not necessary to calculate the number of shares held by non-affiliates for the same day on which the average price of the stock is determined. For example, the number of shares outstanding on the date of filing might be used, together with the average price of stock for any day within the 60-day period.

Form S-3 is available for the registration of securities issued under an employee benefit plan, but it is not available for exchange offers or other business combination transactions.

If a well-known seasoned issuer (a WKSI) files an automatic shelf registration statement and then ceases to be a WKSI, there is no effect on the issuer's ability to use the form until the date its next Form 10-K is due (or a Securities Act Section 10(a)(3) update is otherwise due). If on that date the issuer is no longer eligible to be a WKSI, the rules would require the issuer to amend its automatic shelf registration statement onto the form it is then eligible to use to sell the securities.

A company that has extended the period for filing a periodic report under Rule 12b-25 and has an effective Form S-3 registration statement may continue to offer and sell securities, assuming the company determines that the prospectus included in the Form S-3 is a valid Securities Act Section 10(a) prospectus and there are no Securities Act Section 12(a)(2) or anti-fraud concerns with the prospectus.

Numerous other CD&Is address specific technical questions arising under particular Securities Act forms. For additional information, please see the full set of interpretations available here or contact DLA Piper’s Public Company and Corporate Governance Group.