Corp Fin continues its project of updating CDIs. This new tranche relates to effectiveness of Form S-3 relative to timing of filing of Forms 10-K and proxy statements, allowing non-automatically effective Forms S-3 to be declared effective during the period between the filing of the Form 10-K and the definitive proxy statement. The CDIs also relate to foreign private issuer filings and withdraw a few CDIs to reflect the vacatur by a Federal court of the repurchase modernization rules. The new, revised and withdrawn CDIs are summarized below.
Securities Act Forms; Securities Act Rules
Form S-3 — General; Rule 401 — Requirements as to Proper Form
- Revised Question 114.05; Revised Question 198.05 A Form S-3ASR may be filed, or a non-automatically effective Form S-3 may be filed and declared effective, after an issuer has filed its Form 10-K but prior to filing the Part III information that will be incorporated by reference into the Form 10-K. However, Corp Fin cautions, issuers are responsible for ensuring that any prospectus used in connection with a registered offering contains the information required to be included in the prospectus by Securities Act Section 10(a) and Schedule A. [Comparison to prior version] [Comparison to prior version] (The new version adds the reference to the non-automatically effective Form S-3.)
Form S-3 — Part I — Information Required in Prospectus
- Withdrawn Question 123.01 This withdrawn CDI previously required that, for a non-automatic shelf S-3 (to be filed April 10, incorporating a Form 10-K to be filed on March 31 with proxy statement to be filed on April 30) to become effective by April 25 as requested, the registrant must either file the definitive proxy statement before the Form S-3 is declared effective or include the officer and director information in the Form 10-K.
Item 402(a) — Executive Compensation; General
- Revised Question 117.05 Where a calendar-fiscal-year issuer has filed a Securities Act registration statement (or post-effective amendment) seeking effectiveness after the year end (December 31, 2009) but before its 2009 Form 10-K is due: if the registration statement is on Form S-1, then it must include Item 402 disclosure for 2009 before it can be declared effective, but if it is a non-automatic shelf on Form S-3, it can be declared effective before the Form 10-K is due. The 402 disclosure is required in the S-1 “because 2009 is the last completed fiscal year. Part I, Item 11(l) of Form S-1 specifically requires Item 402 information in the registration statement, which includes Summary Compensation Table disclosure for each of the registrant’s last three completed fiscal years and other disclosures for the last completed fiscal year. General Instruction VII of Form S-1, which permits a registrant meeting certain requirements to incorporate by reference the Item 11 information, does not change this result because the registrant has not yet filed its Form 10-K for the most recently completed fiscal year.” In contrast, Form S-3’s information requirements are satisfied by incorporating by reference filed and subsequently filed Exchange Act documents; for example, there is no specific line item requirement in Form S-3 for Item 402 information. The staff refers to Securities Act Forms C&DI 114.05 above for the situation in which a company requests effectiveness for a non-automatic shelf registration statement on Form S-3 during the period between the filing of the Form 10-K and the definitive proxy statement. [Comparison to prior version—relates only to a change in the referenced CDI number.]
Form 20-F
- New Question 110.10 For purposes of Item 16F(a) of Form 20-F, which requires disclosure about a change in a registrant’s certifying accountant, but not if it has been “previously reported,” as defined in Exchange Act Rule 12b-2, disclosure about a change in accountant that otherwise satisfies the requirements of Item 16F(a) but has been included in a Form 6-K would be considered “previously reported,” and would not be required to be included in Form 20-F.
Form F-SR
- Withdrawn Question 113.01 This withdrawn CDI previously provided that a Form F-SR is not required to be filed if, during the covered fiscal quarter, the FPI or affiliated purchaser did not repurchase any of its equity securities registered under Exchange Act Section 12; the staff cautioned that there is no de minimis exception.
- Withdrawn Question 113.02 This withdrawn CDI previously provided that, where a FPI or affiliated purchaser did not conduct any repurchases that would trigger the Form F-SR filing requirement, a Form F-SR is not required solely to check the box under “Registrant Purchases of Equity Securities” section of Form F-SR.
- Withdrawn Question 113.03 This withdrawn CDI previously provided that a Form F-SR is required to be filed for the final quarter of the fiscal year if a FPI or affiliated purchaser engaged in repurchases during the final quarter of the fiscal year; FPIs are not permitted to wait to report the repurchases during the final quarter of the fiscal year in the Form 20-F for that fiscal year.
