• Required Update of Expiring Shelf Registration Statements
  • December 22, 2008
  • Law Firm: Blank Rome LLP - Philadelphia Office
  • Introduction

    In December 2005, the Securities and Exchange Commission (the “SEC”) adopted the Securities Offering Reform,1 pursuant to which certain shelf registration statements filed under the Securities Act of 1933 (the “Securities Act”), will expire three years from their initial effectiveness date. Thus, shelf registration statements that were effective on or before December 1, 2005 will expire on November 30, 2008, requiring a replacement registration statement to be filed no later than Friday, November 28, 2008. Registration statements effective after December 1, 2005 will expire three years from their initial effective date.

    Issuers are prohibited from amending the registration statement after the effective date in order to extend an expiring registration statement. As a result, these issuers will need to file a new registration statement prior to the expiration date of the expiring registration statement. Registrants will be able to offer and sell securities covered by an expiring shelf registration statement until the earlier of the effective date of the replacement registration statement, or the end of a grace period of 180 days after the expiration date.2

    Shelf Registration Statements Affected by the Three-Year Expiration Provision—Rule 415(a)(5)

    Under Rule 415(a)(5), the following securities are subject to the three-year expiration provision:

    • securities issued under automatic shelf registration statements filed by well-known seasoned issuers;
    • securities registered on Form S-3 or Form F-3, to be offered and sold on a delayed, immediate, or continuous basis, by or on behalf of the issuer of certain majority-owned subsidiaries or parents of the issuer;
    • securities that will be offered promptly after initial effectiveness of the registration statement on a continuous basis, and for a period that may extend more than 30 days after the initial date of effectiveness; and
    • securities issued under registration statements for offerings of mortgage-related securities, such as mortgage-backed debt and mortgage participation or pass-through certificates.

    Shelf Registration Statements Not Subject to the Three-Year Expiration Provision

    Among others, the following shelf registration statements are not subject to the three year re-filing requirement of Rule 415(a)(5):

    • registration statements that solely cover secondary offerings, such as resales by selling security holders;
    • registration statements for securities to be offered and sold pursuant to an employee benefit plan;
    • registration statements registering securities sold pursuant to a dividend or interest reinvestment plan;
    • registration statements covering securities to be issued upon the exercise of outstanding options, warrants, or rights; or
    • registration statements covering securities to be issued upon conversion of other outstanding securities.

    Grace Period for Certain Issuers Filing a Replacement Registration Statement

    Issuers filing a replacement registration statement that is not an automatic shelf registration statement may continue to offer and sell securities covered by an existing registration statement, even after the three-year expiration date, in the following two situations:

    • for the duration of a grace period that extends until the earlier of the effective date of the new registrations statement, or 180 days after the third anniversary of the initial effective date of the prior registration statement; and
    • where a continuous offering of securities covered by the prior registration statement began within three years of the initial effective date, the issuer may continue offering such securities until the effective date of the new registration statement, if such offering is permitted under the new registration statement.

    Unsold Securities and Unused Fees from Prior Registration Statements

    An issuer filing a new shelf registration statement may carry over the unsold securities and unused fees from a prior shelf registration statement, provided that such issuer complies with the requirements in the SEC’s filing guidance.3 Under Rule 415(a)(6), prior to the effective date of a new registration statement, an issuer may include on such new registration statement any unsold securities covered by the earlier registration statement, enabling the issuer to receive credit for any unsold securities and any unused portion of the previously paid filing fee.

    The amount of unsold securities being included and any filing fee paid in connection with such unsold securities should be identified on the bottom of the facing page of the new registration statement, or the latest amendment thereto. The offering of securities on the earlier registration statement will be deemed terminated as of the date of effectiveness of the new registration statement. The issuer should include the file number of the expiring registration statement as part of this disclosure. The issuer is not required to pay any additional fee with respect to such securities included in reliance on Rule 415(a)(6), because the unsold securities and associated fees are being moved from the expiring registration statement to the new registration statement. However, a filing fee is required for any new securities registered on the replacement registration statement.

    Issuers may only rely on Rule 415(a)(6) to include on a replacement registration statement securities that remain unsold on an expiring registration statement. For example, if the expiring registration statement had $1 million of common stock which remained unsold, the issuer may include on the replacement registration statement $1 million of common stock. The issuer may not, however, instead include on the replacement registration statement $1 million in preferred stock.

    Conclusion

    Public companies should determine whether they maintain effective shelf registration statements that are subject to the three-year re-filing requirement. For expiring registration statements, issuers should plan sufficient time to file a replacement registration statement with the SEC before the expiration date. Additionally, for purposes of determining if issuers are eligible to use automatic shelf registration statements, issuers should reevaluate whether they meet the SEC’s definition of a well-known seasoned issuer.

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    1. See U.S. Securities and Exchange Commission Release No. 33-8591, Securities Offering Reform (Dec. 1, 2005), available at http://www.sec.gov/rules/final/33-8591.pdf.
    2. Under Rule 415(a)(5), only a registrant that has filed a replacement registration statement that is not an automatic shelf registration is eligible to use the expiring shelf registration after its expiration date.
    3. See U.S. Securities and Exchange Commission, Filing Guidance for Companies Replacing Expiring Shelf Registration Statements in Accordance with Securities Act Rules 415(a)(5) and (6) (Nov. 21, 2008), available at http://www.sec.gov/divisions/corpfin/guidance/415a5guidance6.htm.