Corporation Finance Issues Guidance on Expiring Shelf Registration Statements
December 1, 2008
On November 21, 2008, the Division of Corporation Finance issued guidance for those companies who have a registration statement expiring under the three-year shelf sunset provision in Securities Act Rule 415(a)(5). Under Rule 415(a)(5), registration statements relating to continuous or delayed offerings that rely on Rule 415(a)(1)(vii), (ix) or (x) may not be used for offers or sales once the registration statements are more than three years old.
For those companies who intend to carry over unsold securities from the expiring shelf to the replacement shelf, the guidance clarifies that only the same class of securities can be carried over. Second, the guidance confirms that if any amounts are sold off of the expiring shelf while the replacement shelf is pending, the company must file a pre-effective amendment to the replacement shelf reflecting the reduced amount of securities carried forward. Third, the guidance confirms that a company can continue to use an expiring ASR and available WKSI exemptions even if the company is forced to file a non-automatic replacement shelf because it no longer qualifies as a WKSI, at least until the time of the company’s Section 10(a)(3) update.
Finally, the guidance provides some practical tips on calculating and reporting filing fees in EDGAR. As noted, unless a company is filing an automatic shelf registration statement relying on the “pay-as-you-go” process, the EDGAR system will not accept a Securities Act registration statement unless some amount is included in the “Proposed Maximum Aggregate Offering Price” header tag. The Staff indicates that an issuer relying on Rule 415(a)(6) to carry over unused securities should specify “$1.00” in the “Proposed Maximum Aggregate Offering Price” header tag and “$0” as the fee paid. However, if the company is registering new securities transactions on the replacement shelf, the issuer should include only the amount of the new securities in the “Proposed Maximum Aggregate Offering Price” header tag and the fee due on those additional securities as the fees paid. The Staff’s guidance also reminds issuers that if Rule 457(p) is used instead of Rule 415(a)(6) to pull forward fees from an expiring registration statement, the securities will be deemed deregistered upon the filing of the replacement shelf, and therefore cannot be sold until the replacement shelf is declared effective.
http://www.sec.gov/divisions/corpfin/guidance/415a5guidance6.htm
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