The Bottom Line
- Form S-3 registration statements filed by issuers who are not well-known seasoned issuers may now be declared effective before the filing of the proxy statement containing Part III information that was properly omitted from the issuer’s timely filed Form 10-K.
- This relief will accelerate the SEC registration process for such issuers and should make it easier for these issuers to access the capital markets during the period between the filing of their Form 10-K and the filing of their proxy statement.
The Details
On March 20, 2025, staff of the Division of Corporation Finance of the Securities and Exchange Commission (the “SEC”) issued guidance allowing issuers filing non-automatically effective Form S-3 registration statements (that is, Form S-3s used by issuers who are not well-known seasoned issuers (“WKSIs”)) to have such registration statements declared effective after filing their Annual Report on Form 10-K but before filing information required by Part III of Form 10-K (“Part III Information”), which information issuers may, and often, opt to incorporate by reference from their forthcoming definitive proxy statement.
The new guidance, which is reflected in revised Question 114.05 and Question 198.05 of the SEC staff’s Compliance and Disclosure Interpretations (“C&DIs”) for Securities Act Forms, and Securities Act Rules, respectively, reverses the staff’s prior guidance (in effect since July 1997) that an issuer filing a non-automatic Form S-3 must file its definitive proxy statement or include the Part III Information in its Form 10-K (including by amendment) before such a Form S-3 can be declared effective. In adopting the new guidance, the SEC staff withdrew Question 123.01 of the Securities Act Forms C&DIs reflecting its prior guidance.
The new guidance aligns the SEC staff’s views with its longstanding guidance (in effect since 2009) applicable to automatically effective Form S-3s filed by WKSIs, putting all Form S-3 filers on equal footing in this regard. Under this guidance, the SEC staff reminds all Form S-3 filers that they remain responsible for ensuring that any prospectus used in connection with a registered offering contains the information required to be included in it by Securities Act Section 10(a) and related Schedule A. This means that issuers must still assess the completeness of a prospectus from a disclosure standpoint at the time of an offering. That assessment would often result in an issuer incorporating the prior year’s proxy statement into the prospectus by reference and requires an issuer to consider the potential materiality of its anticipated Part III Information.
This new relief will enable non-WKSI Form S-3 filers to accelerate the SEC registration process prior to filing a definitive proxy statement containing the necessary Part III Information and should facilitate capital raising transactions by these filers during the period between filing of a Form 10-K and filing the definitive proxy statement containing the Part III Information.
This post comes to us from Ropes & Gray LLP. It is based on the firm’s memorandum, “New SEC Staff Guidance Allows Effectiveness of Non-Automatically Effective Form S-3s before Filing of Proxy Statement, dated April, 10. 2025. and available here.