The SEC has published a series of FAQs relating to how its COVID-19 Order affects certain matters with respect to the use and filing of Form S-3. The COVID-19 Order provides that, subject to certain conditions, publicly traded companies have an additional 45 days to file certain disclosure reports.
According to the SEC:
- A registrant may continue to conduct shelf takedowns using an already-effective registration statement while relying on the COVID-19 Order for a periodic report, including a Form 10-K. However, the registrant must determine that the prospectus used complies with Section 10(a) of the Securities Act of 1933. Section 10(a)(3) requires that when a prospectus is used more than nine months after the effective date of the registration statement, the information contained therein shall be as of a date not more than sixteen months prior to such use, so far as such information is known to the user of such prospectus or can be furnished by such user without unreasonable effort or expense.
- When a registrant properly relies on the COVID-19 Order, the due date for filing the Form 10-K is extended and the registrant must reassess its eligibility to use Form S-3 when it files the Form 10-K. At the time of filing the Form 10-K, the registrant must meet all of the requirements of Form S-3 to continue to use a previously filed Form S-3, including that the registrant has filed all the material required to be filed pursuant to Section 13, 14 or 15(d) for a period of at least twelve calendar months immediately preceding the Section 10(a)(3) update. The Form 10-K will be considered timely if all the conditions of the COVID-19 Order are met with respect to the filing.
- A registrant relying on the COVID-19 Order to delay a required filing is eligible to file a new Form S-3 registration statement between the original due date of a filing and the extended due date. However, registrants relying on the COVID-19 Order should note that the staff will be unlikely to accelerate the effective date of a Form S-3 until such time as any information required to be included in the Form S-3 is filed.
The full text of the FAQs should be reviewed by those planning to rely upon them.