Frequently Asked Questions About Shelf Offerings S 8 FAQShelf

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F R E Q U E N T L Y A S K E D Q U E S T I O N S

A B O U T S H E L F O F F E R I N G S

Understanding Shelf Offerings

What is a shelf registration statement?

A shelf registration statement is a filing with the SEC to

register a public offering, usually where there is no

present intention to immediately sell all the securities

being registered. A shelf registration statement permits

multiple offerings based on the same registration. A

shelf registration can be used for sales of new securities

by the issuer (“primary offerings”), resales of

outstanding securities (“secondary offerings”) or a

combination of both.

With an effective shelf registration statement, when

the issuer wants to offer securities, it takes them “off the

shelf.” These “shelf takedowns” usually are offered

with a base prospectus and a prospectus supplement.

See “What is a ‘base’ or a ‘core’ prospectus?” and “What is a

‘prospectus supplement’?”

In a shelf registration, securities usually are registered

for sale either on a continuous or delayed basis,

although a portion of the securities may be offered

immediately. See “What is the difference between a

‘delayed’ and a ‘continuous’ shelf offering?” It should be

noted that the rules described in these FAQs do not

necessarily apply to registered investment companies

and business development companies, which are

regulated under the Investment Company Act of 1940,

as amended.

Source: Rule 415 of Regulation C of the Securities Act

of 1933 provides the basis for shelf registration.

What are the benefits of shelf registration statements?

An effective shelf registration statement enables an

issuer to quickly access the capital markets when

needed or when market conditions are optimal. The

primary advantages of a shelf registration are timing

and certainty. Takedowns from an effective shelf

registration can be made without SEC staff review or

delay. See “What is a ‘takedown off the shelf’?”

When a specific offering is planned, a prospectus

supplement that describes the terms of the offering

normally must be filed with the SEC under Rule 424(b)

within two days of the supplement’s first use or the

determination of the offering price, whichever is earlier.

In most cases, the prospectus supplement is filed after

the takedown has already priced. See “What is a

‘prospectus supplement’?”

In the case of a shelf registration statement on Form

S-3 or Form F-3, the registration statement incorporates

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by reference the issuer’s reports filed under the

Securities Exchange Act of 1934 (the “Exchange Act”)

after the shelf’s effective date. This enables the issuer to

use a registration statement that became effective before

the occurrence of material developments in its business,

without the need to file a post-effective amendment. See

“What is ‘incorporation by reference’?”

The advantage of this type of structure is that, once an

issuer has an effective shelf, there is no delay in waiting

for the SEC to possibly review the prospectus or the

terms of the offering. Unlike a post-effective

amendment, the prospectus supplement does not have

to be declared effective by the SEC staff. In addition,

the SEC staff historically has been less likely to review

the initial filing of a shelf registration statement on

Form S-3 or Form F-3 than other forms of registration

statements. Accordingly, it is usually more time-

efficient and cost-efficient to register securities using a

shelf registration statement.

What is a “takedown off the shelf”?

A “takedown” is an actual offering of securities from a

shelf registration statement that has already been

declared effective.

What is the difference between a “delayed” and a

“continuous” shelf offering?

In a “continuous offering,” securities are offered

promptly after effectiveness (within two days) and will

continue to be offered in the future. The term

“continuous” only applies to offers of the securities, not

to sales of the securities; sales can be made sporadically

over the duration of the offering.

In a “delayed offering,” there is no present intention

to offer securities at the time of effectiveness. See “How

is a delayed primary offering typically conducted?”

Generally, only more “seasoned” issuers that are

“primarily eligible” to use Form S-3 or Form F-3 may

engage in delayed primary offerings. See “Can an issuer

use any registration statement form to conduct a shelf

offering?” and “What is ‘primarily eligible’?”

Source: Rule 415(a)(1)(i) - (iv) lists the types of shelf

offerings that may be effected on a delayed basis. Rule

415(a)(1)(ix) contains the requirements for continuous

offerings by any issuer that will commence promptly

and may continue for more than 30 days. Rule

415(a)(1)(x) contains the requirements for an immediate,

continuous, or delayed primary offering by seasoned

primarily eligible issuers.

How is a delayed primary offering typically conducted?

In a delayed primary offering, the issuer typically will

file a “core” or “base” prospectus as part of the initial

filing of the registration statement. See “What is a ‘base’

or a ‘core’ prospectus?” The actual terms and specifics of

an offering will be filed after effectiveness, in either a

prospectus supplement (this is the most common

method), a post-effective amendment or, where

permitted, an Exchange Act report incorporated by

reference into the registration statement. See “What is

‘incorporation by reference’?” and “What is a ‘prospectus

supplement’?” Issuers may engage in sales immediately

after effectiveness if the offering-specific information is

included as a part of the registration statement in the

base prospectus or in a prospectus supplement filed

under Rule 424 after effectiveness.

What is a “base” or a “core” prospectus?

A “base” (also known as a “core”) prospectus is filed in

order to comply with the applicable disclosure

requirements to have a shelf registration statement

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declared effective by the SEC staff, with more specific

information to follow after effectiveness in a prospectus

supplement once the details about an offering are

known. See “What is a ‘prospectus supplement’?”

The base prospectus typically contains general

information, such as:

 the types of securities to be offered;

 a brief summary of the issuer’s business;

 the use of proceeds; and

 a plan of distribution.

The base prospectus also may contain a description of

the risk factors of the offering and, in the case of debt

securities, may contain a ratio of earnings to fixed

charges. Although the base prospectus can incorporate

substantial amounts of information from the issuer’s

Exchange Act reports, additional information about the

issuer may be provided if it is expected that the base

prospectus will be used for “marketing purposes.”

The shelf registration statement also will include (in

the so-called “Part II pages”) the estimated expenses of

the registration, required exhibits, the undertakings

required by the SEC rules, and the issuer’s signature

pages.

Source: General Instructions of Form S-3, General

Instructions of Form F-3, and Rule 430B.

What information can be omitted from the base

prospectus?

A base prospectus for immediate, continuous or

delayed offerings on Form S-3 or Form F-3 by

“primarily eligible” issuers (including “well-known

seasoned issuers,” or “WKSIs”) may omit the pricing

and other information specified in Rule 430A and all

other information that is unknown or not reasonably

available to the issuer, as permitted by Rule 409. See

What is ‘primarily eligible’?“ and “What is a ‘Well-Known

Seasoned Issuer,’ or WKSI?” In addition, all offerings

(other than mortgage-related or business combination

offerings) by WKSIs filing automatic shelf registrations

may, under Rule 430B, omit:

 information as to whether the offering is a

primary offering or a secondary offering on

behalf of selling security holders or a

combination of the two;

 the plan of distribution;

 a description of the securities registered, other

than the name or class of the securities (e.g.,

“debt,” “common stock” or “preferred stock”);

and

 the identity of other issuers (e.g., certain

majority-owned subsidiaries that may be

added later as issuers or guarantors).

In offerings by selling security holders of primarily

eligible issuers on Form S-3 or Form F-3, the identities

of the selling security holders, all the information about

them required by Item 507 of Regulation S-K, and the

amounts of securities to be registered on their behalf

may be added to the registration statement covering the

resale of these securities after effectiveness so long as:

 the registration is an automatically effective

shelf registration filed by a WKSI; or

 all of the following conditions are satisfied:

 the registration statement refers to the

unnamed selling security holders in a

generic manner by identifying the

initial offering transaction in which

the securities were sold;

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 the initial offering of the securities is

completed; and

 the securities are issued and

outstanding prior to the initial filing

date of the registration statement.

These rules acknowledge that privately placed

securities often are transferred after they are issued and

before a resale registration statement is filed. In such a

case, the issuer may be unaware of the identities of the

new beneficial owners and the amount of securities they

own. Filing post-effective amendments to add new or

previously unidentified security holders can impose

delays, which these rules alleviate.

The flexibility to identify selling security holders after

effectiveness is not available for PIPE transactions

where the securities have not been issued in the private

offering at the time the resale registration statement is

filed. In this case, the issuer will know the expected

initial identity of, and initial amount of securities held

by, the selling security holders. See “What is a ‘PIPE’

transaction and how can shelf registration statements be used

for such an offering?” In addition, issuers that are not

eligible to file a primary offering on Form S-3 or Form

F-3 are not permitted to identify selling security holders

after effectiveness, as the SEC believes that these issuers

are more prone to engage in transactions that involve

heightened disclosure and registration issues.

In the case of a WKSI, all of the omitted information

may be subsequently included in the registration

statement and the prospectus by:

 a prospectus supplement;

 a post-effective amendment; or

 an Exchange Act report, including a current

report on Form 8-K, incorporated by reference

into the registration statement.

If the information is included in an Exchange Act

report, the issuer must file a prospectus supplement

under Rule 424 disclosing the Exchange Act report or

reports containing such information.

If the issuer includes the omitted information in a

prospectus supplement, under Rule 424(c), the base

prospectus need not be re-filed with the SEC with the

prospectus supplement if the base prospectus has not

changed since it was previously filed. However, many

issuers choose to re-file the base prospectus together

with the prospectus supplement to help ensure that

investors have more convenient access to all of the

relevant disclosure.

Source: Rule 430B, Rule 424, Form S-3 and Form F-3,

and SEC Release No. 33-8591 (July 19, 2005), Section

V.B.1.b.i(C).

What is a “prospectus supplement”?

A prospectus supplement is a document that is

delivered with a base prospectus to investors.

(Depending upon the circumstances, the delivery may

take place with a physical document, an electronic copy,

or via “access equals delivery” under SEC Rule 172.)

The prospectus supplement typically contains the terms

of an offering that are not provided in the base

prospectus. See “What is a ‘base’ or a ‘core’ prospectus?”

The prospectus supplement also may include a

description of the risk factors and tax consequences of

the specific offering, as well as a description of the

specific distribution arrangements and any planned use

of the proceeds that differs from the description in the

base prospectus.

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Prospectus supplements are filed under Rule 424(b) of

Regulation C. However, under Rule 430B and Rule

430C, prospectus supplements are deemed part of, and

included in, the registration statement containing the

base prospectus to which the prospectus supplement

relates. See “Does Section 11 liability attach to a

‘takedown’?”

Can an issuer amend a registration statement to

convert a non-shelf offering to a shelf offering?

Yes, if the conversion occurs before the registration

statement is declared effective. As in the case of a non-

shelf registration statement, additional securities also

may be added to the registration statement by a pre-

effective amendment. See “Can a shelf registration

statement be converted into an unallocated shelf registration

statement?”

Source: SEC Compliance and Disclosure

Interpretations, Securities Act Rules, Questions 212.04

(Jan. 26, 2009), available at

www.sec.gov/divisions/corpfin/guidance/securitiesactr

ules-interps.htm.

What is “incorporation by reference”?

Incorporation by reference occurs when disclosure in

one filed document is legally deemed to be included in

another document.

Incorporation by reference is central to the SEC’s

“integrated disclosure” framework, which was

developed in the early 1980s. The logic is that

disclosure that is available to investors doesn’t

necessarily need to be repeated in each disclosure

document. As a result, a Form S-3 or Form F-3 allows a

company to incorporate by reference the disclosure

from its current and future Exchange Act reports to

satisfy the disclosure requirements of the Form. In

addition, the SEC’s 2005 securities offering reform

package amended Form S-1 and Form F-1 to permit

reporting companies that are current in their reporting

obligations to incorporate by reference into their Form

S-1 or Form F-1 information from their previously filed

(but not future) Exchange Act reports. In December

2015, Congress enacted the “FAST Act”; the FAST Act

contains provisions that require the SEC to revise Form

S-1 to permit smaller reporting companies to

incorporate by reference Exchange Act filings made

after the effectiveness of the Form S-1.

There are a number of SEC rules and regulations that

restrict how incorporation by reference can be used.

Source: The SEC’s incorporation by reference

regulations include Item 12(a) of Part I of Form S-3, Item

6(a) of Part I of Form F-3, Item 12(a) of Part I of Form

S-1, Item 5(a) of Part I of Form F-1, General Instruction

G(4) of Form 10-K, and Rule 12b-23(b). Section 84001 of

the FAST Act.

How can omitted information be included in the final

prospectus?

A base prospectus that omits information required by

Form S-3 or Form F-3 as permitted by Rule 430B is a

permitted prospectus that satisfies the requirements of

Section 10 of the Securities Act for purposes of Section

5(b)(1) of the Securities Act. As a result, it can be used

by the issuer and other offering participants to offer

securities registered under the shelf registration.

However, such a base prospectus is not a Section 10(a)

final prospectus for purposes of Section 5(b)(2) of the

Securities Act (which relates to the delivery of a

prospectus after a sale). To satisfy Section 10(a), the

issuer must include the omitted information in:

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 a prospectus supplement;

 a post-effective amendment; or

 where permitted, through its Exchange Act

reports that are incorporated by reference into

the registration statement and the prospectus

and identified in a prospectus supplement.

Primarily eligible issuers (including WKSIs) are

permitted to include all information about the issuer by

incorporation by reference to its Exchange Act reports,

including Current Reports on Form 8-K. See “What is

‘primarily eligible’?” and “What is a ‘Well-Known Seasoned

Issuer,’ or ‘WKSI’?”

Source: Rule 430B, Form S-3 and Form F-3, and Rule

424(b). See SEC Release No. 33-8591 (July 19, 2005),

Section V.B.1.b.i(B).

Shelf Eligibility

What are the eligibility requirements for filing a shelf

registration statement?

To be eligible to use Form S-3 or Form F-3, the issuer,

among other things:

 must have a class of securities registered under

the Exchange Act (or must be required to file

reports under Section 15(d) of the Exchange

Act);

 must have been subject to the reporting

requirements of Section 12 or Section 15(d) of

the Exchange Act for at least 12 calendar

months immediately preceding the filing of the

registration statement and have timely filed all

required reports with the SEC during that

period; and

 since the end of the last year covered by its

audited financial statements, cannot have

failed to pay dividends or sinking fund

installments on preferred stock or defaulted on

installments on indebtedness for borrowed

money or on material leases.

Source: General Instructions of Form S-3 and General

Instructions of Form F-3.

What is “primarily eligible”?

A company is “primarily eligible” to use Form S-3 or

Form F-3 to offer securities on its own behalf for cash on

an unlimited basis if the aggregate market value of its

voting and non-voting common equity held by non-

affiliates (its “public float”) is at least $75 million.

Until the SEC revised its shelf eligibility rules in July

2011, an issuer would also be eligible to use Form S-3 or

Form F-3 to register non-convertible investment grade

securities. These are securities that, at the time of sale,

were rated by at least one nationally recognized

statistical rating organization in one of its generic rating

categories that signify investment grade.

Under the eligibility requirements adopted in July

2011, as an alternative to the $75 million public float

requirement, issuers may satisfy any one of four criteria

to use Forms S-3 or F-3 for offerings of non-convertible

securities other than common equity:

 the issuer has issued (as of a date within 60

days prior to the filing of the registration

statement) at least $1 billion in non-convertible

securities, other than common equity, in

primary offerings for cash registered under the

Securities Act, over the prior three years; or

 the issuer has outstanding (as of a date within

60 days prior to the filing of the registration

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statement) at least $750 million of non-

convertible securities, other than common

equity, issued in primary offerings for cash

registered under the Securities Act; or

 the issuer is a wholly-owned subsidiary of a

WKSI (as discussed below); or

 the issuer is a majority-owned operating

partnership of a real estate investment trust

(“REIT”) that qualifies as a WKSI.

In addition, the SEC has permitted an issuer that has a

reasonable belief that it would have been qualified to

use Form S-3 or Form F-3 under the prior investment

grade rating criteria to continue to use these forms for a

period of three years from the effective date of the

amendments. An issuer taking advantage of this

provision must file a final prospectus for any such

offering on or prior to September 2, 2014.

Source: General Instruction I.B of Form S-3 and

General Instruction I.A. of Form F-3; SEC Release No.

33-9245 (July 27, 2011).

When can smaller public companies be primarily

eligible to register offerings of their securities on a shelf

registration statement?

A company whose public float is less than $75 million

may register primary offerings of its securities on Form

S-3 or Form F-3 if it:

 meets the other eligibility requirements of the

relevant Form;

 is not and has not been a “shell company” for

at least 12 calendar months prior to the filing of

the Form;

 has a class of common equity securities listed

on a national securities exchange (i.e., not the

over-the-counter market or the “pink sheets”);

and

 does not sell in a 12-month period more than

the equivalent of one-third of its public float

(the “one-third cap”).

In order to benefit from these amendments, former

shell companies must also have timely filed their

periodic reports for at least 12 calendar months and

filed all of the detailed information that would be

required under the Exchange Act in a registration

statement on Form 10 or Form 20-F. See “How is the

market value threshold of ‘primarily eligible’ issuers and

‘well-known seasoned issuers’ calculated?” and “How is the

aggregate market value of all securities sold during any 12-

month period calculated for purposes of the one-third cap?”

Source: General Instruction I.B.6 of Form S-3 and General

Instruction I.B.5 of Form F-3.

What are the eligibility requirements for secondary-

only shelf registration statements?

If the issuer’s public float is below $75 million, the

issuer still may use Form S-3 or Form F-3 to register

secondary offerings if it meets the other eligibility

requirements of the Form. Secondary offerings are not

subject to the one-third cap. (See “What is ‘primarily

eligible’?” for an explanation of the one-third cap.)

However, in some instances, registration of a secondary

offering may involve a significantly large percentage of

the issuer’s outstanding capital stock, causing the SEC

to deem the offering a “disguised primary offering.”

See “What is a ‘disguised primary offering’?”

Source: General Instructions I.B.3 of Form S-3 and

General Instruction I.B.3 of Form F-3.

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What is a “Well-Known Seasoned Issuer,” or “WKSI”?

A “well-known seasoned issuer” is an issuer that is

required to file reports with the SEC under Section 13(a)

or Section 15(d) of the Exchange Act and satisfies the

following requirements:

 it must meet the registrant requirements of

Form S-3 or Form F-3 (i.e., it must be a

“primarily eligible” issuer);

 it must, as of a date within 60 days of filing its

shelf registration statement, either:

 have a worldwide market value of its

outstanding voting and non-voting

common stock held by non-affiliates

of $700 million or more; or

 have issued in the last three years at

least $1 billion aggregate principal

amount of non-convertible securities

in registered primary offerings for

cash; and

 it must not be an “ineligible issuer.”

A majority-owned subsidiary of a WKSI will itself be a

WKSI in connection with:

 its issuance of non-convertible investment

grade securities that are fully and

unconditionally guaranteed by its parent; or

 its issuance of guarantees of non-convertible

securities of its parent or of another majority-

owned subsidiary whose non-convertible

securities are so guaranteed by the WKSI

parent.

If the majority-owned subsidiary is itself a WKSI by

reason of its issuance of $1 billion or more of non-

convertible securities and also meets the test of a

primarily eligible issuer (i.e., the market value of

common equity held by non-affiliates is at least $75

million), the subsidiary may register an offering of its

common stock or other equity securities as a WKSI

filing an automatic shelf registration statement.

What are the benefits of qualifying as a well-known

seasoned issuer?

Well-known seasoned issuers benefit from a more

flexible automatic registration process. If a WKSI

checks the applicable box on the cover of a registration

statement (including a shelf registration statement) on

Form S-3 or Form F-3 for either a primary or secondary

offering, or a combination of the two, the registration

statement will automatically be effective upon filing.

There will be no delay in effectiveness in order to

receive and respond to any SEC comments.

Additional benefits include:

 the ability to register unspecified amounts of

different types of securities;

 the ability to register additional classes of

securities and eligible majority-owned

subsidiaries as additional registrants after

effectiveness by filing a post-effective

amendment that also will be automatically

effective upon filing;

 the ability to exclude additional information

from the base prospectus (see “What is a ‘base’

or a ‘core’ prospectus?”), including:

 whether the offering is a primary or

secondary offering;

 a description of the securities, other

than the name or class of securities

(i.e., “debt,” “common stock” and

“preferred stock”);

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 the names of selling security holders

and the amounts of securities to be

offered by each; and

 disclosure regarding the plan of

distribution; and

 the ability to:

 pay filing fees on a “pay-as-you-go”

basis at the time of each takedown;

and

 use “free writing prospectuses”

relating to an offering before the

registration statement is filed.

Source: Rule 430B, Form S-3 and Form F-3, and Rule

163.

Can an emerging growth company be a WKSI?

Under the 2012 Jumpstart Our Business Startups (JOBS)

Act, an “emerging growth company” is defined as an

issuer with total gross revenues of less than $1 billion

during its most recently completed fiscal year. An

emerging growth company will lose that status (among

other circumstances): (a) following the fifth anniversary

of its first registered offering of common equity

securities, (b) upon issuing more than $1 billion in non-

convertible debt securities within a three-year period

(whether in registered or unregistered offerings) or

(c) upon becoming a “large accelerated filer” as defined

under Rule 12b-2. (As to (c), an issuer becomes a large

accelerated filer at the end of a fiscal year if its public

float was at least $700 million as of the last business day

of its most recently completed second fiscal quarter.) In

other words, due to (b) and (c), an issuer will lose its

emerging growth company status as a result of

becoming a WKSI. (See “What is a ‘Well-Known Seasoned

Issuer,’ or ‘WKSI’?” above.) Due to (a), an emerging

growth company may lose that status earlier,

depending on when the fifth anniversary of its IPO

occurs.

However, because the “large accelerated filer” status

does not apply until the beginning of the fiscal year

after the end of the relevant second quarter, an

emerging growth company that has $700 million in

public float can enjoy WKSI status for several months, if

it can time its offerings appropriately. For example, if

an issuer with a December 31st fiscal year end becomes a

WKSI on January 2nd, when its market capitalization

first exceeds $700 million, and the issuer maintains that

market capitalization through the end of its second

quarter, it will lose its emerging growth company status

on January 1st of the following year.

Source: Section 2(a)(19) of the Securities Act of 1933

provides the definition of emerging growth company

(and the circumstances under which a company ceases

to be an emerging growth company).

Can any issuer use a shelf registration statement?

It depends on the type of offering that will be

conducted.

Only issuers that are primarily eligible to use Form S-3

or Form F-3 (including smaller issuers subject to the

one-third cap) may sell on a delayed basis or conduct an

“at-the-market” offering. (See “What is ‘primarily

eligible’?” for an explanation of the one-third cap.) Any

issuer may engage in any other type of shelf offering.

See “Can an issuer use any registration statement form to

conduct a shelf offering?” and “What is an ‘at-the-market’

offering?”

Source: Rule 415(a)(1)(x) generally requires that

delayed primary offerings be conducted by issuers that

meet the eligibility requirements for primary offerings

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on Form S-3 or Form F-3. See Rule 415(a)(1)(vii) and the

SEC’s Compliance and Disclosure Interpretations,

Securities Act Rules regarding Rule 415.

Can an emerging growth company use a shelf

registration statement?

Yes, an emerging growth company may use a shelf

registration statement. For a limited period of time, it

may be both an emerging growth company and a WKSI.

Smaller emerging growth companies may use a shelf

registration statement, subject to the one-third cap

described above. See “Can an emerging growth company

be a WKSI?” and “When can smaller public companies be

primarily eligible to register offerings of their securities on a

shelf registration statement?”

Can an issuer use any registration statement form to

conduct a shelf offering?

No, issuers are restricted as to which form they may use

to conduct various shelf offerings.

Only issuers that have timely filed their required

periodic reports for the last 12 months may use a Form

S-3 or Form F-3 to register securities. In the case of

primary offerings by or on behalf of the issuer, if the

issuer does not have a public float of at least $75 million

when it files the registration statement, the amount of

securities that may be sold in a 12-month period is

capped. See “What is ‘primarily eligible’?”

If an issuer has not been timely in its reporting for the

last 12 months, it may only register securities for resale

and shares underlying options on a Form S-1 or Form

F-1 registration statement. An issuer with a public float

of less than $75 million also may use a Form S-1 or Form

F-1 to register a primary offering of securities in excess

of the one-third cap imposed on these issuers by the

eligibility requirements of Form S-3 and Form F-3,

including a continuous offering. See “What is ‘primarily

eligible’?”

Source: Rule 415, General Instructions of Form S-3,

and General Instructions of Form F-3 provide shelf

eligibility requirements.

How is the market value threshold of “primarily

eligible” issuers and “well-known seasoned issuers”

calculated?

The aggregate market value of the registrant’s

outstanding public float is computed by use of:

 the price at which the common equity was last

sold; and

 the average of the bid and asked prices of such

common equity in the principal market for

such common equity as of a particular date.

This calculation excludes common equity held by

officers, directors and shareholders of the registrant

who are deemed affiliates. The $75 million threshold

and WKSI status must be satisfied on any date within 60

days prior to the filing of the registration statement.

Source: General Instructions I.B.1 and I.B.6 of Form

S-3, General Instructions I.B.I and I.B.5 of Form F-3.

How is the aggregate market value of all securities sold

during any 12-month period calculated for purposes of

the one-third cap?

Companies whose public float does not exceed the $75

million market value threshold may use Form S-3 or

Form F-3 to register primary offerings of their securities.

However, they may not sell more than the equivalent of

one-third of their public float during any 12 consecutive

months.

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Under this test, the determination of the issuer’s

public float will be made on any date in the 60 days

prior to the proposed sale. The aggregate market value

of all securities sold during the 12-month period prior to

the sale is calculated by using the price of all securities

sold by the issuer under the applicable Form in the

previous 12 months, whether debt or equity, including

those to be sold in the proposed sale.

For securities convertible into or exercisable for equity

securities (“derivative securities”), issuers will calculate

the amount that they may sell in any 12-month period

by reference to the market value of the underlying

shares, as opposed to the market value of the derivative

securities. For example, if an issuer has nine million

shares outstanding, and its common stock trades at $10

per share, it may not offer in any 12-month period

preferred stock that is convertible into more than three

million of its common shares if the conversion price is

also $10 per share. The one-third cap will not impact a

holder’s ability to convert or exercise derivative

securities once a derivative security has been properly

issued under the test, even if the issuer’s public float

decreases. A derivative security’s market value will be

included for purposes of calculating the one-third cap,

even if that derivative security is not exercisable for

more than one year.

After all or any portion of the derivative securities are

exercised or converted, in order to determine the

amount of any securities that may be issued under the

one-third cap in addition to any of the derivative

securities that remain unexercised, the value of the

exercised or converted portion will be calculated by

multiplying the number of underlying shares issued by

the market price on the date of conversion.

Because the calculation of the one-third limitation

depends on the issuer’s public float at any point in time,

an issuer’s ability to use its shelf registration statement

may increase or decrease during the life of the shelf.

Increases to an issuer’s public float will increase its

“shelf capacity”; decreases to its public float will

decrease its “shelf capacity.”

The one-third cap will be removed if a company’s

public float increases to $75 million after the effective

date of the shelf registration statement. However, if the

public float of the company falls below $75 million at

the time that its next annual report on Form 10-K (or

Form 20-F) is filed, the cap will be reimposed.

Issuers that use Form S-3 or Form F-3 in reliance upon

these rules will need to set forth on the front cover of

the relevant prospectus supplement the amount of their

public float and the amount of securities offered in

reliance on this rule.

Although the one-third cap will limit actual sales,

smaller reporting companies can register an amount of

securities that exceeds this amount as of the filing date.

Any unused amount may be “rolled over” into

subsequent shelf registration statements when the

required filing fee of the new registration statement is

calculated.

Source: General Instruction I.B.6 of Form S-3, General

Instruction I.B.5 of Form F-3, and Rule 401, SEC

Compliance and Disclosure Interpretations, Securities

Act Rules, Questions 116.24 (May 16, 2013).

What is a “disguised primary offering”?

When an issuer sells a disproportionately large (relative

to the issuer’s pre-transaction public float) amount of

securities in a secondary offering, the SEC takes the

view that the offering could in fact be a primary

12

offering, with the selling security holders acting as

“underwriters” that are selling their securities on the

issuer’s behalf. The SEC has pointed to several factors

that should be assessed in making a determination as to

whether an offering is a primary offering or a secondary

offering, including:

 the amount of securities involved;

 how long the securities have been held;

 whether the investors are at market risk from

the time they purchased the securities;

 the circumstances under which the securities

were acquired;

 the relationship between the selling security

holders and the issuer;

 whether a selling security holder is in the

business of underwriting securities; and

 whether it appears that a selling security

holder is acting as a conduit for the issuer.

As a guidepost, and not a bright-line test, the SEC has

indicated that it will subject secondary offerings of

securities in excess of 33% of the issuer’s pre-transaction

public float to closer scrutiny, although each

determination involves a case-by-case analysis of the

facts and circumstances of each transaction.

Source: SEC Compliance and Disclosure

Interpretations, Securities Act Rules, Question 612.09

(Jan. 26, 2009), available at

www.sec.gov/divisions/corpfin/guidance/securitiesactr

ules-interps.htm, sets forth several factors in

determining whether a secondary offering is a disguised

primary offering. See also “When a Primary is not a

Primary” by Anna Pinedo and James Tanenbaum, first

published in International Financial Law Review May

2007.

What is an “ineligible issuer”?

An “ineligible issuer” will not qualify as a WKSI. See

“What is a ‘Well-Known Seasoned Issuer,’ or ‘WKSI’?” An

ineligible issuer is an issuer for which any of the

following is true:

 the issuer has not filed all reports required to

be filed during the preceding 12 months (or

any shorter period for which the issuer has

been required to file);

 the issuer is, or during the past three years

was, a “blank check company” or a shell

company or offered penny stock;

 the issuer is a limited partnership offering

securities other than through a firm

commitment underwriting;

 the issuer was the subject of a bankruptcy

proceeding within the past three years;

 within the past three years the issuer (or any

subsidiary) was convicted of any felony or

misdemeanor under Section 15(b)(4)(b) of the

Exchange Act;

 within the past three years the issuer (or any

subsidiary) was the subject of any judicial or

administrative decree or order arising out of a

governmental anti-fraud action;

 the issuer filed a registration statement that is

the subject of any pending proceeding or

examination under Section 8 of the Securities

Act (which relates to misleading or incomplete

registration statements) or was the subject of

any refusal order or stop order within the past

three years; or

13

 the issuer is the subject of any pending

proceeding under Section 8A of the Securities

Act in connection with an offering.

Source: Rule 405 of Regulation C.

Under what circumstances will the SEC grant a waiver

from ineligible issuer status?

The SEC has the power under its rules to determine,

upon a showing of good cause, that it is not necessary

under the circumstances for an issuer to be considered

an ineligible issuer. This authority was designed in

large measure for the benefit of financial holding

company issuers. These issuers often have one or more

subsidiaries, that, by virtue of their activities in the

securities business, often are subject to litigation or SEC

actions relating to violations of the federal securities

laws, and which often lead to settlements of the type

contemplated by the ineligible issuer definition. This

provision enables issuers entering into such settlements

to negotiate a waiver of the ineligible issuer

disqualifications at the time of the settlement.

In March 2014, the SEC’s Division of Corporate

Finance updated its prior guidance regarding requests

for waivers by WKSIs that would otherwise become

ineligible issuers under Rule 405. The revised guidance

outlines a more detailed framework that the SEC

generally will follow in considering whether to grant a

waiver of ineligible issuer status.

According to this guidance, the SEC will consider the

nature of the violation or conviction, whether it

involved disclosure for which the issuer or its

subsidiaries was responsible or calls into question the

ability of the issuer to produce reliable disclosures, and

whether the conduct involved a criminal conviction or

scienter-based violation. The SEC will also consider the

following factors, with no single factor being

dispositive: (1) who was responsible for the misconduct

and the duration of the misconduct (including the level

of the employees involved and whether there were any

“red flags” that were disregarded); (2) what remedial

steps were taken by the issuer (including improvements

in internal controls); and (3) what the impact of a denial

of the waiver request would be (including effects that

the issuer’s loss of WKSI status could have for the

market as a whole).

In April 2014, the SEC further clarified its guidance.

The April 2014 guidance indicates:

• An issuer's burden to show good cause that a

waiver is justified would be significantly greater

where there is a criminal conviction or a scienter-

based violation involving disclosure for which the

issuer or any of its subsidiaries was responsible.

• The SEC staff will consider the effects that the

issuer’s loss of WKSI status could have for the

markets as a whole and the investing public, in

light of the issuer’s significance to the markets and

its connectedness to other market participants;

however, this guidance removes the March 2014

reference indicating that the SEC would consider

“the issuer’s significance to the markets and its

connectedness to other market participants.”

• Whether the issuer took appropriate remedial

measures to prevent the misconduct from

recurring.

• Whether the misconduct was pervasive, and how

recently it occurred. For example, older

misconduct, for which a small number of non-

senior employees were responsible, would be more

likely to result in a waiver.

14

• The impact on the issuer if the waiver request is

denied. The SEC will also look to whether the

impact on the issuer, and the resulting impairment

of its ability to raise capital, could also have an

adverse impact on the markets as a whole.

Source: Rule 405 of Regulation C and SEC Release No.

33-8591 (July 19, 2005), Section III.D.3.b.; and Division of

Corporate Finance, Revised Statement on Well-Known

Seasoned Issuer Waivers (April 2014), available at

http://www.sec.gov/divisions/corpfin/guidance/wksi-

waivers-interp-031214.htm.

Where can one find the determinations of the SEC as to

issuers that have been granted a waiver from ineligible

issuer status?

The SEC posts to its website the waiver requests that are

granted, along with a copy of the initial request. See Division

of Corporation Finance No-Action, Interpretive and

Exemptive Letters, Rule 405 – Determination regarding

ineligible issuer status, available at

http://www.sec.gov/divisions/corpfin/cf-noaction.shtml#405

Common Uses for Shelf Registration

What types of offerings can be conducted on a shelf

registration statement?

Rule 415 lists eleven types of permitted shelf offerings,

including:

 resales by selling security holders;

 immediate, delayed and continuous offerings

by an issuer on Form S-3 or Form F-3,

including “at-the-market” offerings by the

issuer (see “What is an ‘at-the-market’ offering?”);

 securities offered and sold under dividend

reinvestment and employee benefit plans;

 securities underlying options, warrants, rights

and convertible securities;

 securities pledged as collateral;

 depositary shares evidenced by American

Depositary Receipts;

 securities issued in business combinations;

 mortgage related and other investment grade

asset-backed securities; and

 offerings that commence promptly and are

made on a continuous basis for more than 30

days.

Can an issuer use a shelf registration statement for

acquisitions?

Yes. All transactions registered on Form S-4 or Form

F-4 are considered continuous offerings under Rule 415

(even though there is no Rule 415 box to check on the

cover of these Forms). However, an automatically

effective shelf registration statement may not be used as

an acquisition shelf.

Source: Form S-4’s adopting release (No. 33-6578,

April 23, 1985), states that all business combinations are

considered Rule 415 offerings. See also SEC Compliance

and Disclosure Interpretations, Securities Act Rules,

Question 203.13 (Jan. 26, 2009), available at

www.sec.gov/divisions/corpfin/guidance/securitiesactr

ules-interps.htm.

Can an issuer use a shelf registration statement for

future acquisitions?

Yes. An issuer can use a shelf registration statement for

one or more acquisitions, even if the targets are

unknown at the time of filing. An issuer also may

15

register securities for future issuance in connection with

acquisitions on a delayed basis. These are known as

“acquisition shelves.”

Registering shares for future issuance in connection

with acquisitions also allows the issuer flexibility to

complete numerous acquisitions that, individually,

would not require registration, but may require

registration on a collective basis due to the SEC’s

integration doctrine.

An acquisition shelf must be filed on Form S-4, Form

F-4, Form S-1 or Form F-1. Form S-3 and Form F-3,

including the automatic shelf registration provisions for

WKSIs, are not available for registering securities to be

issued in business combination transactions because the

securities must be offered for cash under those forms.

See “What is a ‘Well-Known Seasoned Issuer,’ or ‘WKSI’?”

Generally, an issuer would register a certain number

of securities for future issuance, and then use the base

prospectus when negotiating the acquisition. See “What

is a ‘base’ or a ‘core’ prospectus?” The base prospectus

does not have to contain information about the specific

acquisition or the companies being acquired.

If an acquisition normally would require registration

by itself (for example, because there are a large number

of target stockholders that are not “accredited

investors”), the issuer must update the Form S-4 or

Form F-4 by post-effective amendment to reflect the

acquisition prior to soliciting offerees; the issuer cannot

use a prospectus supplement. See “What is a ‘prospectus

supplement’?” If a post-effective amendment is required,

no further acquisitions should be entered into based on

the registration statement before the post-effective

amendment is declared effective. See “When is a post-

effective amendment (as opposed to a prospectus supplement)

required to be filed?”

In addition, if the issuer would be required to file

financial statements for a target under Regulation S-X

due to the size of the acquisition, the issuer will have to

file a post-effective amendment to the Form S-4 or Form

F-4, rather than a prospectus supplement.

Source: For more details concerning shelf acquisition

procedures, see the no-action letter Service Corporation

International (October 31, 1985). Form limitations for

shelf acquisitions are derived from General Instruction

H to Form S-4, General Instruction III to Form S-1 and

General Instruction III to Form F-1.

What is an “at-the-market” offering?

An at-the-market offering is an offering of securities

into an existing trading market for outstanding shares

of the same class at other than a fixed price on, or

through the facilities of, a national securities exchange,

or to or through a market maker otherwise than on an

exchange.

An example is an offering in which common stock is

sold by an underwriter by means of ordinary brokerage

transactions (as opposed to a block transaction) on the

NYSE.

Only primarily eligible issuers (i.e., issuers eligible to

register a primary offering on Form S-3 or Form F-3,

including issuers subject to the one-third cap) may

register “at-the-market” offerings. See “What is

‘primarily eligible’?” The SEC’s 2005 securities offering

reform rule amendments (in Section V.B.1.b.iv(C))

eliminated restrictions in Rule 415 that required

involvement of underwriters and limited the amount of

securities that could be sold in “at-the-market”

offerings. For additional information relating to at-the-

market-offerings, please see “Frequently Asked

Questions About At-the-Market Offerings”

16

(http://www.mofo.com/docs/pdf/FAQAtTheMarketOffe

rings.pdf).

What is a “PIPE” transaction and how can shelf

registration statements be used for such an offering?

The acronym “PIPE” stands for “private investment,

public equity.” A traditional PIPE transaction occurs

when a company issues securities to investors in a

private transaction, and a condition to closing the

private transaction is the effectiveness of a shelf

registration of the securities for resale. PIPE

transactions are different from “equity-line” offerings,

described below.

What is an “equity-line” offering?

Under an equity line of credit, the company enters into

an agency agreement with an investor, under which the

company has the right, during the term of the equity

line and subject to certain conditions, to put its

securities to the investor.

Some equity lines of credit are completed using a shelf

registration statement and others are completed as

private placements with an obligation to register the

resale of the securities sold under the equity line. In the

latter case, because of the delayed nature of the offering,

and because the investor is not “at investment risk” for

the securities when the resale registration statement is

filed, the SEC considers this type of registration to be an

indirect primary offering. In these situations, the SEC

will allow the company to register the “resale” of the

securities before exercising the “put” only if the

transactions satisfy the following conditions:

 the company must have “completed” the

private transaction with respect to all of the

securities it is registering for “resale” prior to

the filing of the registration statement;

 the registration statement must be on a form

that the company is eligible to use for a

primary offering; and

 in the prospectus, the investor(s) must be

identified as underwriter(s) as well as selling

shareholder(s).

If these conditions are not met, the SEC’s position is

that the company may register the securities for resale if

it is primarily eligible to use Form S-3 or Form F-3 and

discloses in the prospectus issues relating to the

potential violation of Section 5 in connection with the

private transaction.

Source: SEC Compliance and Disclosure

Interpretations, Securities Act Rules, Question 139.13

and Question 139.14 (May 16, 2013 and November 26,

2008, respectively), available at

www.sec.gov/divisions/corpfin/guidance/securitiesactr

ules-interps.htm.

What is an “unallocated” shelf registration statement?

An unallocated shelf registration statement registers

only a dollar amount of various classes of securities in

an offering, without identifying the specific dollar

amount registered for each class of securities. This is

also known as a “kitchen sink” or “universal”

registration statement. Only issuers and their affiliates

that are primarily eligible to use Form S-3 or Form F-3

may file an unallocated shelf registration statement.

In unallocated shelf registration statements, all that is

required to be disclosed is the types of securities that

may be sold. The specific type of security and amount

to be sold is disclosed at the time of a takedown in a

prospectus supplement. See “Can a shelf registration

17

statement be converted into an unallocated shelf registration

statement?”

Source: SEC Release No. 33-6964 (October 22, 1992)

adopted the unallocated shelf procedure. See also SEC

Release No. 33-8591 (July 19, 2005), Section V.B.2.b.ii(A).

Can a shelf registration statement be converted into an

unallocated shelf registration statement?

Yes, a shelf registration statement that registers a

specific type of security or dollar amounts allocated

among specific classes of securities generally may be

amended by post-effective amendment to become an

unallocated shelf registration statement as long as no

new classes of securities are added.

1

In addition, WKSIs

may add new classes of securities by post-effective

amendment. See “What is an ‘unallocated’ shelf

registration statement?” and “What are the benefits of

qualifying as a well-known seasoned issuer?”

The Trust Indenture Act of 1939 prevents issuers from

issuing debt securities under a shelf registration

statement that were not included as one of the types of

securities described in the unallocated registration

statement. Specifically, the Trust Indenture Act requires

the indenture covering those securities to be qualified

when the registration statement becomes effective.

Qualification cannot be accomplished via a post-

effective amendment. However, a WKSI may add a

new class of debt securities by post-effective

amendment; the automatic effectiveness of an

amendment that adds securities to a shelf registration

statement will be the time “when registration becomes

1

Note that a post-effective amendment can be on any form

then available to an issuer. Thus, an issuer with an allocated

shelf on Form S-1 could file a post-effective amendment on

Form S-3 to convert to an unallocated shelf registration

statement and to take advantage of forward incorporation by

reference.

effective” as to such new securities, as that term is used

in Trust Indenture Act Section 309(a)(1). In this case,

the indenture will be required to be filed as an exhibit to

the registration statement at the time that the post-

effective amendment becomes effective.

Source: SEC Release No. 33-6964 (October 22, 1992).

See also SEC Release No. 33-8591 (July 19, 2005), footnote

527; and SEC Compliance and Disclosure

Interpretations, Securities Act Rules, Questions 212.18

and 19 (Jan. 26, 2009), available at

www.sec.gov/divisions/corpfin/guidance/securitiesactr

ules-interps.htm; and SEC Compliance and Disclosure

Interpretations, Trust Indenture Act of 1939, Question

201.02 (March 30, 2007), available at

http://www.sec.gov/divisions/corpfin/guidance/tiainter

p.htm.

May an issuer simultaneously engage in more than one

“takedown” off an unallocated shelf registration

statement?

Yes. For example, an issuer could simultaneously offer

shares of common stock and a class of debt securities

from the same shelf registration statement. In addition,

if the issuer filed a shelf registration statement on Form

S-1 or Form F-1 and the base prospectus indicated that

the issuer could use the prospectus to engage in

acquisitions or firm commitment underwritten

offerings, the issuer may engage in both at the same

time. See “Can an issuer use a shelf registration statement

for acquisitions?”

Source: See, e.g., SEC Compliance and Disclosure

Interpretations, Securities Act Rules, Question 212.02

(Jan. 26, 2009), available at

www.sec.gov/divisions/corpfin/guidance/securitiesactr

ules-interps.htm.

18

Filing Requirements for Shelf Registration

Are there specific undertakings that an issuer must

provide in connection with a shelf offering?

Yes. All issuers must include the undertakings set forth

in Item 512(a)(1) of Regulation S-K. These undertakings

include the duty to update the prospectus under Section

10(a)(3) of the Securities Act to reflect fundamental

changes and changes in the plan of distribution. Issuers

also must undertake to deregister any unsold securities

at the end of the offering.

The SEC amended Item 512(a) of Regulation S-K in

2005 to add new undertakings under which a registrant

agrees that, consistent with new Rule 430B and Rule

430C, information in prospectus supplements is deemed

part of and included in the applicable registration

statement as of specified dates (generally the earlier of

the date the prospectus supplement is first used or the

date of the first contract of sale for securities in the

offering described in the prospectus supplement). The

new undertakings also include an agreement that, for

liability purposes of the registrant and any underwriter,

that date will be deemed the new effective date of the

registration statement relating to the securities to which

that prospectus supplement relates.

Source: SEC Release No. 33-8591 (July 19, 2005),

Section V.B.1.b.vii; and SEC Division of Corporation

Finance Securities Offering Reform Transition

Questions and Answers (September 13, 2005), Question

3, available at

http://www.sec.gov/divisions/corpfin/transitionfaq.htm.

When is a post-effective amendment (as opposed to a

prospectus supplement) required to be filed?

The three instances when a post-effective amendment is

required instead of a prospectus supplement are when:

 there is a “fundamental change” (a greater

threshold than “material”) to the disclosure;

 disclosure in the registration statement must

be updated for Securities Act Section 10(a)(3)

purposes; and

 there is a change to the plan of distribution

(e.g., switching to an “at-the-market” offering

from a firm commitment offering).

However, the undertaking to file a post-effective

amendment for those three instances will not apply if

the registration statement is on Form S-3 or Form F-3,

and the required information is contained in an

Exchange Act report (including a Current Report on

Form 8-K) that is incorporated by reference in the

registration statement or is contained in a prospectus

supplement filed under Rule 424(b).

In a delayed primary shelf offering, the specific terms

of the offering (e.g., price, number of securities, etc.)

usually are provided in a prospectus supplement filed

under Rule 430A of Regulation C. Accordingly, a post-

effective amendment to the registration statement is not

needed. See “What is a ‘prospectus supplement’?”

Source: See Item 512(a)(1) of Regulation S-K and SEC

Release No. 33-8591 (July 19, 2013), Section V.B.1.b.vii.

When must financial statements in a shelf registration

statement be updated?

The “going stale” rules under Regulation S-X are

applied as of the filing date of the shelf registration

statement and/or the effective date of the registration

19

statement. In addition, after nine months have passed

from the effective date of the registration statement, the

audited balance sheet can be no more than 16 months

old. Financial statements typically are updated through

incorporation by reference of the issuer’s annual and

quarterly reports filed under the Exchange Act.

Source: Section 10(a)(3) of the Securities Act and Rule

427.

When must subsidiary guarantors be named in a shelf

registration statement?

The federal securities laws treat subsidiary guarantees

as securities separate from the related debt securities.

However, under a shelf registration statement, a

separate prospectus and registration statement need not

be prepared for the subsidiary guarantees, and no

additional SEC filing fees will apply.

An SEC practice rule prohibits additional subsidiary

guarantors for debt securities registered on a shelf

registration statement from being added to the effective

shelf registration statement, unless the parent

corporation is a WKSI. See “What is a ‘Well-Known

Seasoned Issuer,’ or ‘WKSI’?” This means that, at the

time of filing a shelf registration statement, the issuer

must identify each of the subsidiaries that will

potentially guarantee any debt securities. Each of these

subsidiary guarantors must sign the registration

statement, and be bound by the “undertakings” set

forth in the so-called “Part II pages” of the form.

Source: General Instruction I.D of Form S-3, General

Instruction I.C of Form S-3, and SEC Release No.

33-8591 (July 19, 2005) at footnote 520 and related text.

When must a shelf registration statement comply with

the financial statement requirements for subsidiary

guarantors set forth in Rule 3-10 of Regulation S-X?

With respect to financial reporting requirements for

subsidiary guarantors, Rule 3-10 of Regulation S-X

relates to a variety of situations that involve a parent

issuer/subsidiary guarantor or a subsidiary

issuer/parent guarantor. Although Rule 3-10 is silent as

to its application in the case of a shelf registration

statement, the SEC has provided informal guidance to

issuers and their auditors that a shelf registration

statement must be in compliance with Rule 3-10 at the

time of effectiveness. The SEC’s position means that an

issuer contemplating the registration of guaranteed debt

would have several options:

File Exchange Act reports with the footnote disclosure

required under Rule 3-10. This approach would require

the issuer to anticipate the likely subsidiary guarantors

that would be named in an upcoming shelf registration

statement, and to prepare its footnote disclosure under

Rule 3-10 accordingly.

File amended financial statements together with the shelf

filing. This approach could involve the filing of a Form

8-K that contained amended and restated financial

statements that include the required footnote disclosure.

Parent companies with no independent assets or operations.

These companies could have the most flexibility. In lieu

of financial statements with the required footnote

disclosure, these companies could simply make the

following statement (if true) in the text of their

“Description of Debt Securities”: “The parent company

has no independent assets or operations, the guarantees

will be full and unconditional and joint and several, and

any subsidiaries of the parent company other than the

subsidiary guarantors named in the registration

20

statement of which this prospectus forms a part are

minor.”

If the situation changes at the time of a takedown (for

example, an offering involves different subsidiary

guarantors than those contemplated by the existing

financial statements, or a parent corporation that

previously acted solely as a holding company acquires

material assets or operations of its own), prior to

effecting the offering, the issuer would need to file

amended financials to be incorporated by reference in

the shelf registration statement, together with the

required auditor’s consent letter filed as an exhibit.

Adding the amended information only to a prospectus

supplement would not be sufficient, as an issuer cannot

file an auditor’s consent as an exhibit to a prospectus

supplement.

The financial reporting requirements described above

do not necessarily end at the time the shelf registration

statement is filed or a takedown completed. This is

because each subsidiary guarantor becomes an SEC

registrant, required to file periodic reports for the first

year thereafter under Section 15(d) of the Exchange Act.

As in the case of the Securities Act, separate reports are

not required for each subsidiary guarantor. Rather,

Rule 12h-5 under the Exchange Act provides that parent

company financials prepared in accordance with Rule

3-10 of Regulation S-X will satisfy the requirement to

provide financial information as to the subsidiary

guarantors under the Exchange Act.

Under the SEC’s staff informal guidance since October

2007, this obligation would begin to apply following the

effectiveness of a shelf registration statement, even

though no securities with subsidiary guarantees are

actually outstanding. Accordingly, issuers registering

guaranteed debt need to be sensitive to the Rule 3-10

requirements after the filing of the shelf registration

statement. See also Topic 9820 in the Division of

Corporation Finance Financial Reporting Manual,

available at

http://www.sec.gov/divisions/corpfin/cffinancialreporti

ngmanual.pdf.

Must a well-known seasoned issuer re-evaluate its

status as such?

Yes. A well-known seasoned issuer that has filed an

automatic shelf registration statement must re-evaluate

its WKSI status when it files each subsequent Form 10-K

in order to effect its Securities Act Section 10(a)(3)

update. If it determines that it no longer qualifies as a

WKSI at the time it files its Form 10-K (or on the due

date of that annual report, if earlier), the issuer should

amend its effective automatic shelf registration

statement on the form that it is then eligible to use.

An issuer that has an effective automatic shelf

registration statement, but learns after the effective date

that it has lost its status as a WKSI, may continue to use

that registration statement until the time of its Securities

Act Section 10(a)(3) update.

Source: The SEC’s Securities Offering Reform

Questions and Answers (November 30, 2005), Questions

15 and 21, available at

http://www.sec.gov/divisions/corpfin/faqs/securities_off

ering_reform_qa.pdf. See also SEC Compliance and

Disclosure Interpretations, Securities Act Rules,

Questions 198.03 and 198.06 (Jan. 26, 2009), available at

www.sec.gov/divisions/corpfin/guidance/securitiesactr

ules-interps.htm.

21

Is a legality opinion required to be pre-effectively filed

for a shelf registration statement relating to a delayed

offering?

Yes. A registration statement under Rule 415 cannot be

made effective without a legality opinion, even if no

takedown is currently contemplated, and even if the

specific terms of the securities to be offered are not

known at the time of filing.

The issuer may file a signed opinion of counsel that

contains appropriate qualifications, subject to the

understanding that an unqualified opinion will be filed

prior to the time any sales are made under the

registration statement.

Examples of acceptable assumptions that may be

made in the qualified opinion are:

 the issuer’s board of directors will have taken

all actions, and passed all resolutions necessary

to authorize the issuance and sale of the

securities; and

 all regulatory approvals will have been

received.

If a WKSI amends its effective automatic registration

statement to add a new class of securities, a legality

opinion (which may contain appropriate qualifications)

must be filed with the post-effective amendment.

Once a takedown is planned, an unqualified opinion

must be filed either in a post-effective amendment (a

post-effective amendment solely to add exhibits is

automatically effective upon filing per Rule 462(d)) or

through incorporation by reference into the registration

statement by filing under cover of Form 8-K or Form

6-K. See “What is ‘incorporation by reference’?” and “When

should an indenture be qualified under the Trust Indenture

Act in connection with a delayed offering of debt securities?”

Frequent issuers using a medium-term note program

registered on a shelf registration statement may find it

difficult or cumbersome to file an unqualified opinion

by post-effective amendment or on a Form 8-K or 6-K

for each shelf takedown. In 2011, the SEC issued Staff

Legal Bulletin No. 19, in which they provided for the

filing of a “forward looking opinion” with the shelf

registration statement for future takedowns, subject to

the requirements of the bulletin. For more information,

see “Frequently Asked Questions About Medium-Term

Note Programs — Effecting an MTN Offering – How do

issuers satisfy their obligations to file legal opinions for

an MTN offering?” at

http://media.mofo.com/files/Uploads/Images/080818FA

QsMTN.pdf.

Source: SEC Compliance and Disclosure

Interpretations, Securities Act Rules, Question 212.05

(Aug. 14, 2009), available at

www.sec.gov/divisions/corpfin/guidance/securitiesactr

ules-interps.htm. See also the SEC’s Securities Offering

Reform Questions and Answers (November 30, 2005),

Question 20. Staff Legal Bulletin No. 19 may be found

on the SEC’s website at:

http://www.sec.gov/interps/legal/cfslb19.htm.

When is a shelf offering exempt from FINRA filing

under the Corporate Financing Rule?

Under Financial Industry Regulatory Authority

(“FINRA”) Rule 5110, known as the Corporate

Financing Rule, shelf offerings by an issuer that is

eligible to use a Form S-3 or Form F-3 registration

statement based on the eligibility requirements for those

Forms that were in effect prior to October 21, 1992, are

generally exempt from FINRA filing. The pre-October

21, 1992 eligibility requirements are (1) the issuer has a

22

public float of at least $150 million ($300 million for

issuers using Form F-3) and (2) the issuer has been a

reporting company under Section 13(a) or Section 15(d)

of the Exchange Act for at least 36 months.

Shelf offerings also are generally exempt if the issuer

is registering investment grade unsecured non-

convertible debt with a term of issue of at least four

years, or unsecured non-convertible preferred

securities. A FINRA filing is required for each shelf

takedown for an issuer that is unable to rely on these or

another exemption under the Corporate Financing Rule.

Please note that if the shelf registration statement

involves an underwriter that is affiliated with the issuer,

the shelf filing will be subject to filing with FINRA

under FINRA’s conflict of interest rules, unless FINRA’s

exemption from such a filing applies, as set forth in

FINRA Rule 5121(a)(1). This rule requires, among other

things, prominent disclosure of the conflict of interest.

Source: FINRA Rules 5110(b)(7) and 5121.

When should an indenture be qualified under the Trust

Indenture Act in connection with a delayed offering of

debt securities?

Under the Trust Indenture Act, the indenture must be

“qualified under the statute.” An indenture covering

securities to be issued in a shelf registration statement

must be filed with the registration statement prior to

effectiveness because the Trust Indenture Act does not

provide for an indenture to be qualified by post-

effective amendment. The shelf registration statement

must include a form, usually a Form T-1, and must

describe certain key provisions of the indenture. A

Form T-1 sets forth information enabling the SEC to

determine whether the designated trustee is eligible to

act under the standards of the Trust Indenture Act.

If the terms of future debt offerings are not known at

the time of filing, the indenture that is filed pre-

effectively may contain a generic, non-specific

description of the securities. The details of a particular

series to be offered (i.e., interest rate, term, etc.) may be

provided in a supplemental indenture at the time such

series is offered. A prospectus supplement may be used

to reflect the specific terms of the series in the

prospectus, and the supplemental indenture may be

filed as an exhibit to a Form 8-K in the same manner as

specified for underwriting agreements, or in an

automatically effective, exhibits-only, post-effective

amendment under Rule 462(d).

A WKSI that files an automatic shelf registration may

determine after effectiveness to add a new class of debt

securities or guarantees of debt securities. In addition

to filing a post-effective amendment to register the new

class of debt securities or guarantees, the issuer also

needs to qualify all appropriate indentures under the

Trust Indenture Act. Under the amended automatic

shelf registration procedure, the Trust Indenture Act

qualification requirement will be satisfied for those new

debt securities or guarantees by including the

indentures in the registration statement at the time the

post-effective amendment is filed and becomes

automatically effective.

Source: SEC Compliance and Disclosure

Interpretations, Securities Act Rules, Questions 212.18

and 19 (Jan. 26, 2009), available at

www.sec.gov/divisions/corpfin/guidance/securitiesactr

ules-interps.htm; see also SEC Compliance and

Disclosure Interpretations, Trust Indenture Act of 1939,

Questions 103.01 and 109.01 (Mar. 30, 2007), available at

http://www.sec.gov/divisions/corpfin/guidance/tiainter

23

p.htm and SEC Release No. 33-8591 (July 19, 2005),

footnote 527.

When is the trustee designated if the identity of the

trustee is not known at the time the registration

statement is filed?

At the time that an issuer files a shelf registration

statement, it may not know who will serve as trustee.

Accordingly, Section 305(b)(2) of the Trust Indenture

Act permits the trustee to be designated on a delayed

basis. In that case, for an issuer that is not a WKSI, the

Form T-1 would be filed with the SEC just prior to the

applicable takedown.

If an issuer has completed its use of a shelf registration

statement, and securities remain unsold, what should

be done?

If securities remain unsold, the issuer can do one of two

things. First, the issuer could deregister the securities

by filing a post-effective amendment with the SEC. The

post-effective amendment is simple. It should consist

of:

 a registration statement cover page; and

 an additional page indicating that the offering

has been terminated and listing the number or

amount of securities remaining unsold.

In the alternative, if the remaining securities are not

deregistered, the issuer may “carry forward” these

securities, and the related registration fee, to a later

Securities Act filing.

Source: Item 512(a)(3) of Regulation S-K and SEC

Release 33-7943 (January 26, 2001), footnote 68. The

ability to “carry forward” shares to a later registration

statement is based on Rule 429 of Regulation C. See also

“For how long can a shelf offering be used?”

Limitations on Shelf Registration

For how long can a shelf registration statement be

used?

Prior to the 2005 securities offering reform rule

amendments, offerings under Rule 415(a)(i), (viii), (ix)

and (x) were unlimited in time. A shelf registration

statement did not have an “expiration date.” However,

the amount of securities that could be registered was

limited to an amount that, at the time the registration

statement became effective, was reasonably expected to

be offered and sold within two years from the initial

effective date.

The 2005 amendments provide that offerings under

Rule 415(a)(1)(x) and continuous offerings under Rule

415(a)(1)(ix) that are registered on Form S-3 or Form F-3

are not subject to the two-year limitation on the amount

of securities that can be registered, but also provide that

a shelf registration statement can only be used for three

years (subject to a limited extension) after its initial

effective date. Under the current rules, new shelf

registration statements must be filed every three years,

with unsold securities and fees paid under an

“expiring” registration statement rolled over to the new

registration statement where it relates to:

 offerings by WKSIs on an automatic shelf

registration; or

 offerings described in Rule 415(a)(1)(vii), (ix) or

(x).

The three-year time limitation was adopted because

the SEC believes that the precise contents of shelf

registration statements may become difficult to identify

over time (since many different documents may be

incorporated by reference) and that markets will benefit

24

from a periodic updating and consolidation

requirement. The two-year limitation on the amount of

securities that may be registered continues to apply to

business combination transactions under Rule

415(a)(i)(viii) and continuous offerings under Rule

415(a)(i) and (ix) that are not registered on Form S-3 or

Form F-3.

Some other types of shelf registration statements are

not subject to the three-year limitation, including:

 registration statements to be used only for

secondary offerings by selling security holders;

and

 acquisition shelf registration statements.

Source: Rule 415(a)(2) and (5) and SEC Release No.

33-8591 (July 19, 2005), Section V.B.1.b.iv.

When does the three-year period begin for shelf

registration statements?

The three-year period begins on the initial effective

date of the shelf registration statement.

Source: Rule 415(a)(5).

How can an issuer avoid a blackout period between

effective shelf registration statements?

In the case of shelf registration statements other than

automatic shelf registration statements filed by WKSIs,

as long as the new shelf registration statement is filed

within three years of the original effective date of the

old registration statement, the issuer may continue to

offer and sell securities from the old registration

statement for up to 180 days thereafter until the new

registration statement is declared effective. The 180-day

extension does not apply to automatic shelf registration

statements, which are effective immediately upon filing.

Prior to the effectiveness of the new shelf registration

statement, the issuer can amend it to include any

securities remaining unsold from the old registration

statement. The SEC filing fees attributable to those

securities may be rolled over to the new registration

statement. In addition, continuous offerings begun

under the old registration statement prior to the end of

the three-year period may continue on the old

registration statement until the effective date of the new

registration statement if they are permitted to be made

under the new registration statement.

For WKSIs, as long as the issuer remains a WKSI, the

new shelf registration statement will be effective

immediately upon filing. The issuer may elect to

include on the new registration statement any unsold

securities covered by the old registration statement and

SEC filing fees paid attributable to those securities.

Source: Rule 415(a)(5) and SEC Release No. 33-8591

(July 19, 2005), Section V.B.1.b.iv.A and Section

V.B.2.b.ii.G.

Is an issuer prevented from engaging in private

transactions during the pendency of a shelf registration

because of the doctrine of integration?

It depends.

The answer is “generally no” for delayed offerings by

the issuer, unless the issuer is currently engaged in a

“takedown.” The answer is “maybe” if the issuer is

engaged in a continuous offering.

If, at the time of the private offering, the issuer is

engaged in a “takedown” or offering securities in a

continuous offering, the five-factor integration test of

Rule 502(a) must be considered.

The acquisition shelf procedures are a means by which

integration can be avoided when completing multiple

25

privately negotiated acquisitions. See “Can an issuer use

a shelf registration statement for acquisitions?”

Source: SEC Compliance and Disclosure

Interpretations, Securities Act Rules, Question 212.06

(Jan. 26, 2009), available at

www.sec.gov/divisions/corpfin/guidance/securitiesactr

ules-interps.htm and Securities Act Release No. 8828

(August 3, 2007) confirm that the analysis of whether an

existing shelf offering precludes an issuer from

engaging in a concurrent private offering depends upon

the facts and circumstances.

Is “free writing” permissible in connection with a

delayed offering?

The SEC’s 2005 securities offering reform rule

amendments enabled the use of “free writing

prospectuses.” Generally, under Rule 433, free writing

is permitted after a registration statement containing a

statutory prospectus has been filed. For shelf

registrations, the statutory prospectus contained in the

registration statement may be the base prospectus. See

“What is a ‘base’ or a ‘core’ prospectus?” Under Rule 163,

WKSIs also may use free writing prospectuses before a

registration statement is filed.

Source: Rule 163, Rule 433, and SEC Release No.

33-8591 (July 19, 2005), Section III. D.3.b. Section 2(a)(10)

of the Securities Act permits an issuer to issue written

materials relating to an offering that do not satisfy the

requirements of Section 10(a) of the Securities Act, as

long as the non-conforming writings are accompanied

or preceded by a prospectus that meets the

requirements of Section 10(a).

Liability Issues for Shelf Registration

Does Section 11 liability attach to a “takedown”?

The SEC’s position has always been that Section 11

liability under the Securities Act attaches to the

prospectus supplement and incorporated Exchange Act

reports, but some commentators disagreed. However,

Rule 430B and Rule 430C, adopted in 2005, codify the

SEC’s position (which was generally taken by the courts

in the case of takedowns off a shelf) that the information

contained in a prospectus supplement required to be

filed under Rule 424, whether in connection with a

takedown or otherwise, will be deemed part of and

included in the registration statement containing the

base prospectus to which the prospectus supplement

relates. See “What is a ‘prospectus supplement’?”

Source: SEC Release No. 33-6714 (May 27, 1987); SEC

Release No. 33-7606A (November 13, 1998), Section

V.A.1.e.; Rule 430B; Rule 430C; and SEC Release 33-8591

(July 19, 2005), Section V.B.1.b.ii. For an example of case

law supporting the application of Section 11 to

prospectus supplements filed in connection with

“takedowns,” see Shaw v. Digital Equipment Corp., 82

F.3d 1194 (1st Cir. 1996).

As of what dates are prospectus supplements deemed

included in the related registration statement? As to

misstatements in a registration statement, what is the

new effective date of such registration statement for

takedowns?

For prospectus supplements filed other than in

connection with a takedown of securities, all

information contained therein will be deemed part of

and included in the registration statement as of the date

the prospectus supplement is first used. For prospectus

26

supplements in connection with takedowns, it is the

earlier of the date the supplement is first used or the

date and time of the first contract of sale for the

securities.

For Section 11 liability purposes only for the issuer

and any underwriter in connection with a takedown,

Rule 430B establishes a new effective date for the shelf

registration statement, which will be the date the

prospectus supplement filed in connection with the

takedown is deemed part of and included in the

relevant registration statement as described above. This

rule establishes a new starting date for the applicable

statute of limitations in the Securities Act and also

eliminates what may have been an unwarranted

disparate treatment of underwriters and issuers if an

issuer’s liability was assessed as of the earlier initial

effective date of the registration statement.

Source: Rule 430B, Rule 430C, and SEC Release No.

33-8591 (July 19, 2005), Section V.B.1.b.iii.

Are shelf offerings subject to Regulation FD?

In some cases. Rule 100(b)(2)(iv) of Regulation FD

exempts offerings registered under the Securities Act,

except offerings registered under Rule 415(a)(i)-(vi). In

the case of an offering under Rule 415(a)(i)-(vi), the

issuance and delivery of the registration statement, the

prospectus and certain free writing prospectuses will

not be deemed a violation of Regulation FD.

In general, ongoing and continuous offerings on

behalf of selling security holders will not be exempt

from Regulation FD. However, continuous and

ongoing offerings on behalf of selling security holders

that also involve a registered offering, whether or not

underwritten, by the issuer for capital formation

purposes, will be exempt (because Rule 415(a)(i)

pertains to resale transactions “solely on behalf” of

selling security holders).

For example, a registered underwritten offering that

includes shares issued by the issuer and selling security

holders is exempt from Regulation FD, but a registered

underwritten offering of only selling security holders’

shares is subject to Regulation FD. Accordingly, in the

former case, an issuer free writing prospectus can be

used without raising any Regulation FD concerns.

However, in the latter case, the use of an issuer free

writing prospectus must be evaluated in the context of

Regulation FD. In adopting Regulation FD, the SEC

expressed its concern that, because registration

statements involving only secondary sales are often

effective and used for a very long period, an issuer

could be effectively exempt from Regulation FD if the

exclusion for registered offerings covered them.

Source: Regulation FD, Section 100(b)(2)(iv); SEC

Release No. 33-8591 (July 19, 2005), Section XII, Item 61;

and SEC Release No. 33-7881 (August 15, 2000), footnote

80.

Are underwriters expected to perform the same standard

of due diligence for a shelf offering?

Rule 176 under the Securities Act sets forth several

relevant circumstances for determining whether

conduct constitutes a reasonable investigation or

reasonable grounds for belief under Section 11(c) of the

Securities Act, which defines the circumstances in

which an underwriter’s due diligence defense is

available.

These circumstances include:

 the type of issuer;

27

 reasonable reliance on officers, employees and

others whose duties should have given them

knowledge of particular facts; and

 with respect to facts or documents

incorporated by reference, whether the

particular person had any responsibility for the

facts or documents at the time of the filing

from which it was incorporated.

A 2004 U.S. federal district court examined

underwriters’ due diligence obligations with respect to

shelf offerings and suggested that Section 11

requirements for underwriters have not been diluted

even though there has been a significant decrease in the

amount of time underwriters have to perform due

diligence (largely because issuers can incorporate by

reference prior disclosure), underwriters lack input into

filings incorporated by reference, and the cast of

underwriters often changes from one shelf offering to

the next.

The SEC’s historical commentary with respect to Rule

176 states that the implementation of the rule did not

alter the fundamental nature of underwriters’ due

diligence obligations and that competitive timing and

pressures are not to be considered when evaluating the

reasonableness of an underwriters’ investigation.

Source: Rule 176. See also In re WorldCom, Inc. Securities

Litigation, 346 F. Supp. 2d 628 (S.D.N.Y. 2004).

_____________________

By Lloyd S. Harmetz, Partner,

and Bradley Berman, Of Counsel,

Morrison & Foerster LLP

© Morrison & Foerster LLP, 2016