The staff of the SEC’s Division of Corporation Finance issued three COVID-19 FAQs related to registration statements on Form S-3:
- Registrants may continue to conduct shelf takedowns using an already effective registration statement when relying on the COVID-19 Order to delay filing a periodic report (e.g. Form 10-K) even though their financial statements are stale. However, the COVID-19 Order does not delay or exempt compliance with Securities Act registration statement requirements. Registrants should consider the filing requirements of Section 10(a), which limits the information to be of a date not more than 16 months prior to use.
- Regarding an effective Form S-3, a registrant properly relying on the COVID-19 Order must reassess eligibility to remain on Form S-3 when the delayed Form 10-K is filed. At the time of filing the Form 10-K, the registrant must meet all requirements of Form S-3, including timely filing of all Exchange Act reports in the last 12 months.
- Registrants may file a new Form S-3 during the period between the original due date of a required filing and the due date as extended by the COVID-19 Order. However, required reports must be filed by the due date as extended by the COVID-19 Order to be considered current and timely. The SEC is unlikely to accelerate the effective date of a Form S-3 until the requirements of Form S-3 are filed.
The FAQs will not be included in the SEC’s Compliance and Disclosure Interpretations because they relate to the unique circumstances of COVID-19.