Securities Act Forms

Question: May a registrant obtain a waiver from form eligibility requirements?

Question: In many registered public offerings, registrants choose to include text and/or artwork inside the front and back cover pages. Are graphic presentations permitted in the prospectus?

Question: Immediately after an issuer files a Securities Act registration statement, it appoints a new principal financial officer. Is the new principal financial officer required to sign any amendments to the registration statement in his or her capacity as principal financial officer?

Question: What financial information may an Emerging Growth Company omit from its draft and publicly filed registration statements?

Question: What financial information may an issuer that is not an Emerging Growth Company omit from its draft and publicly filed registration statements?

Question: The F-Series registration statements require the signature of the registrant's authorized U.S. representative. Who is qualified to sign as an authorized U.S. representative?

Question: Item 2 of Forms F-7, F-8, F-9 and F-80 and Item 3 of Form F-10 specify certain legends that should be included, to the extent applicable, on the outside front cover page of the prospectus. May a Canadian issuer substitute plain English versions of these legends? If so, is there required language that should be used in the plain English versions?

Question: When a parent foreign private issuer issues securities that are guaranteed or co-issued by one or more subsidiaries that do not themselves qualify as a foreign private issuer, may the parent company-issuer and subsidiary-guarantor(s) or co-issuers use an F- series registration statement to register an offering of the securities under the Securities Act and use Form 20-F with respect to any reporting obligations?

Question: May a foreign issuer register only part of a worldwide equity or debt offering with the Commission?

Question: May a foreign issuer use a U.K.-style or other foreign-style document as a prospectus in the U.S.?

Question: Must a foreign issuer include a risk factor addressing possible illiquidity of its offered securities in the U.S. when making its U.S. equity initial public offering if the issuer has an existing, established trading market for its equity securities outside the U.S.?

Question: May Form F-6 be used for the registration of installment receipts?

Question: May Form F-6 be used to register American Depositary Shares ("ADS") when local government law prohibits the withdrawal and holding of underlying shares by U.S. and other foreign persons?

Question: Does a change in the depositary of an American Depositary Receipt ("ADR") program require the filing of a new registration statement on Form F-6?

Question: When establishing a company-sponsored ADR program, what steps must the depositary and company take regarding an existing unsponsored ADR program for the company's securities?

Question: May the U.S./Canadian Multijurisdictional Disclosure System ("MJDS"), and in particular, Form F-7, be used for rights offers exempt from Canadian registration requirements, notwithstanding the general prohibition on the use of the system for exempt offerings?

Question: Under what circumstances may a Form F-8 filer modify the required legend regarding the securities not being approved or disapproved by the Commission?

Question: May Form F-8 or Form F-80 be used for a statutory share exchange, which only requires the vote of the shareholders of the company being acquired?

Question: May Form F-9 be used to register Form F-9-eligible securities that are convertible after one year into another class of the issuer's securities?

Question: When an issuer files a registration statement on Form F-9 or Form F-10 in connection with a shelf offering in Canada and updates that shelf registration in Canada, must the issuer also file a post-effective amendment to its registration statement on Form F-9 or Form F-10?

Question: Item 2 of Form F-10 requires that financial statements included in the home jurisdiction document must be reconciled to U.S. GAAP as required by Item 18 of Form 20-F. Does this reconciliation requirement apply to all financial statements filed under cover of Form F-10, including interim financial statements?

Question: May an issuer use Form F-10 if it satisfies the eligibility requirements of the form at the time of filing, but will not satisfy such requirements upon the closing of the offering?

Question: May Form F-10 be used for secondary offerings?

Question: May a Canadian issuer use Form F-10 for a dividend reinvestment plan ("DRIP") even though there is a Canadian exemption from registration that is available for DRIPs?

Question: May an issuer use Form F-10 to register a rights offering that is not eligible for registration on Form F-7, even though the issuer is exempt from the requirement to file a prospectus with the Canadian authorities?

Question: May MJDS-eligible registrants use Form F-10 to register so-called "A/B" or "Exxon Capital" exchange offers?

Question: When an issuer files a registration statement on Form F-9 or Form F-10 in connection with a shelf offering in Canada and updates that shelf registration in Canada, must the issuer also file a post-effective amendment to its registration statement on Form F-9 or Form F-10?

Question: May Form F-8 or Form F-80 be used for a statutory share exchange, which only requires the vote of the shareholders of the company being acquired?

Question: If a continuous offering under Securities Act Rule 415 is registered on Form S-1, is a post-effective amendment required to be filed in order to satisfy the requirements of Securities Act Section 10(a)(3), to reflect fundamental changes or to disclose material changes in the plan of distribution?

Question: How should a registrant conducting a continuous offering on Form S-1 update the prospectus to reflect the information in its subsequently filed Exchange Act reports?

Question: Is a registrant that operates a resort (hotel, golf course and spa) in a service industry or the real estate business? The registrant is unsure whether Form S-1 or Form S-11 would be the appropriate registration statement for an offering.

Question: The ability to incorporate by reference previously filed Exchange Act reports and other materials in Form S-1 is conditioned on the issuer making its incorporated Exchange Act reports and other materials readily accessible on a web site maintained by or for the issuer. May an issuer link to the Commission's EDGAR system to satisfy this requirement?

Question: Form S-1 allows eligible registrants to elect "backwards" incorporation by reference of previously filed Exchange Act reports and other materials. At effectiveness, must the prospectus filed as part of the Form S-1 registration statement identify all previously filed Exchange Act reports and materials that are incorporated by reference?

Question: If the issuer's annual report on Form 10-K and other periodic reports filed since the end of the fiscal year for which the annual report was filed provide only a portion of the information required by any Form S-1 line item requirement, can the issuer incorporate the periodic reports by reference and supplement or update that information with additional information included directly in the Form S-1 in order to satisfy the line item requirements of the form?

Question: May a registrant filing a Form S-1 include information about a Form S-3 company in its prospectus through incorporation by reference?

Question: May a Form S-1 be post-effectively amended at the time of the required Section 10(a)(3) update to incorporate by reference the issuer's new Form 10-K?

Question: May an issuer file a new Form S-3 notwithstanding its inability to satisfy General Instruction I.A.3(b) of the form?

Question: At the time of an update of the registration statement under Securities Act Section 10(a)(3), the market value of the registrant's common equity held by non-affiliates does not meet the minimum required by General Instruction I.B.1. May the registrant continue to use Form S-3 to conduct primary offerings pursuant to that instruction?

Question: How should the issuer complete the calculation of registration fee table on the face of an automatic shelf registration statement?

Question: Must a registrant evaluate its eligibility to use Form S-3 at the time it files a Form 10-K?

Question: May an issuer file or use an automatic shelf registration statement on Form S-3 after the issuer has filed its Form 10-K but prior to filing the Part III information that will be incorporated by reference into the Form 10-K?

Question: If an issuer has a resale registration statement on Form S-3 or Form F-3 that became effective prior to December 1, 2005, may it rely on Rule 430B to use prospectus supplements for the purpose of making material amendments to the plan of distribution or replacing selling security holders due to transfers or adding new selling security holders?

Question: May a well-known seasoned issuer file an automatic shelf registration statement while it has a pending confidential treatment request on an exhibit to a periodic or current report?

Question: Will the delinquent filing of a Form 11-K by an issuer's employee benefit plan disqualify the issuer from using Form S-3?

Question: In annual reports for fiscal years ending on or after December 15, 2007 but before December 15, 2009, non-accelerated filers are required to provide management's report on internal control over financial reporting pursuant to Item 308T of Regulation S-K. The report is deemed not to be "filed" for purposes of Section 18 of the Exchange Act, unless the company specifically states that the report is to be considered "filed" under the Exchange Act or incorporates it by reference into a filing under the Securities Act or the Exchange Act. Does a non-accelerated filer's failure to provide management's report in its Form 10-K under Item 308T(a) affect its form eligibility or the ability to use Rule 144?

Question: An issuer otherwise eligible to use Form S-3 failed to file a current report on Form 8-K fourteen months before the proposed filing of the Form S-3. Is Form S-3 available to the registrant?

Question: General Instruction I.A.3 to Form S-3 requires that the registrant have timely filed all reports required to be filed during the twelve calendar months and any portion of a month immediately preceding the filing of the registration statement. What reports are covered by this Instruction?

Question: May a domestic company that succeeds to the reporting obligations of a foreign private issuer, and is otherwise eligible to file a Form S-3, incorporate by reference the predecessor's annual report on Form 20-F to satisfy the disclosure requirements of Form S-3?

Question: General Instruction I.A.3 of Form S-3 requires that the registrant have filed all material required to be filed for a period of at least twelve calendar months immediately preceding the filing of the registration statement. The instruction also requires that the registrant have filed in a timely manner all reports required to be filed during the twelve calendar months and any portion of a month immediately preceding the filing of the registration statement. How is calendar month calculated?

Question: A company failed to furnish an Item 2.02 Form 8-K. As a result, does the company lose its eligibility to file a registration statement on Form S-3?

Question: What does the reference to "material" in General Instruction I.A.5 of Form S-3 apply to?

Question: Is the omission to declare a dividend on non-cumulative preferred stock a payment failure disqualifying an issuer from using Form S-3?

Question: Does a default on a covenant not involving an "installment on indebtedness" disqualify a company from using Form S-3?

Question: In the event an installment payment on indebtedness has been missed, but the terms of the debt do not define a missed payment as a default until the creditors take some action, can an issuer satisfy General Instruction I.A.5 of Form S-3?

Question: An issuer committed a material default on indebtedness but the holders of the securities subsequently waived the default. Can an issuer satisfy General Instruction I.A.5 of Form S-3?

Question: In the event a prospective default never occurs because the lenders have waived payment in advance of the due date, can an issuer satisfy General Instruction I.A.5 of Form S-3?

Question: From which date should an issuer measure the twelve-month period in General Instruction I.A.3 to Form S-3?

Question: Would an issuer that timely filed its Exchange Act reports during the past twelve months, but was not required to file reports under the Exchange Act for a portion of that period, be able to satisfy Instruction I.A.3 of Form S-3?

Question: If a company defaults on indebtedness, which default is material to the company as a whole, or fails to pay a dividend on preferred stock, can the company satisfy the eligibility requirement in Instruction I.A.5 of Form S-3 in the following fiscal year even if the default has not been cured, or the dividends have not been paid?

Question: If a company declares bankruptcy and subsequently fails to make interest or principal payments on indebtedness as required pursuant to the terms of the indebtedness, can the company nonetheless satisfy the eligibility requirement in Instruction I.A.5 of Form S-3 since the filing of bankruptcy results in an automatic stay of creditors' rights with respect to the company's indebtedness?

Question: Following the merger of a private operating company or companies with or into a reporting shell company (for example, a special purpose acquisition company), may the resulting combined entity rely on the reporting shell company’s pre-combination reporting history to satisfy the eligibility requirements of Form S-3 during the 12 calendar months following the business combination?

Question: May a registrant use Form S-3 for the registration of securities issued under an employee benefit plan?

Question: A registrant meets the registrant requirements for Form S-3, but does not meet the transaction requirements for a primary offering. The registrant has two majority-owned subsidiaries. Would Form S-3 be available for secondary offerings of its securities by the two subsidiaries?

Question: Is Form S-3 available to an issuer that meets the form's registrant requirements to register offers and sales pursuant to customer stock purchase plans?

Question: Is Form S-3 available to register shares underlying options whose exercise consideration can be cash or, in the alternative, shares of the same class as those underlying the options?

Question: In reliance on Securities Act Section 4(2), a merger transaction will not be registered. May resales of earnout shares to be issued in connection with the merger be registered on Form S-3 pursuant to General Instruction I.B.3 after the consummation of the merger, even though the shares have not been earned and are not outstanding at the time the registration statement is filed?

Question: For purposes of computing the "float" under General Instruction I.B.1, what day should be used in determining the number of shares held by non-affiliates?

Question: When a registrant reassesses Form S-3 eligibility in connection with a Section 10(a)(3) update, for purposes of computing the "float" under General Instruction I.B.1, what day should be used in determining the number of shares held by non-affiliates?

Question: General Instruction I.B.I requires that the aggregate market value of the voting and non-voting common equity held by non-affiliates be at least $75 million. In order to calculate whether this condition has been met, must the common equity be traded on a public market, such as an exchange, the OTC Bulletin Board, or the Pink Sheets?

Question: What is the meaning of the "for cash" requirement in General Instruction I.B.1 of Form S-3?

Question: May a company use Form S-3 to register the offer and sale of both an immediately convertible security and the underlying security?

Question: In order to use General Instruction I.B.3 of Form S-3 for the secondary offering of a convertible or exercisable security, such as a common stock purchase warrant, is it necessary that the warrants themselves be listed on an exchange or quoted on an automated quotation system of a national securities association?

Question: For purposes of General Instruction I.B.3 of Form S-3, does "quoted on the automated quotation system of a national securities association" include securities quoted on the OTC Bulletin Board or the Pink Sheets?

Question: Are securities to be issued in an exchange exempt under Securities Act Section 3(a)(9) deemed outstanding for purposes of General Instruction I.B.3 of Form S-3?

Question: If an issuer meets the float test in General Instruction I.B.1 of Form S-3, may it use Form S-3 for secondary offerings, even though the securities to be issued are not listed on a national securities exchange or quoted on an automated quotation system of a national securities association, as required by General Instruction I.B.3?

Question: May parents, subsidiaries or affiliates of the issuer rely on Rule 415(a)(1)(i) to register secondary offerings?

Question: The Skadden Arps/Registration of Rights Issuable Pursuant to Stockholder Rights Plans no-action letter (Jan. 7, 1987) issued by the Division relates to registration requirements in connection with rights plans. As described in the no-action letter, a prospectus to a previously effective Form S-3, pursuant to which sales are still being made, may be revised to reflect the rights plan by filing a Rule 424(c) prospectus supplement. For a Form S-8, Rule 428 would apply instead of Rule 424(c). However, if a company has an existing rights plan and is filing any new Securities Act registration statement for shares of the class of security to which the rights relate, should the rights be registered on the new registration statement as a separate security?

Question: Securities to be issued in connection with business combinations may be registered on a shelf filing pursuant to Rule 415(a)(l)(viii). May Form S-3 be used for these purposes?

Question: A company privately placed convertible securities in reliance on the exemption provided by Section 4(2). The company agreed to file a registration statement within two months after the private placement closing to register the resale of the common stock issuable on conversion of the convertible securities. The securities were convertible into common stock using a conversion ratio based on the company's common stock trading price at the time of conversion. Can the company use Form S-3 to register the resale of the common stock prior to conversion? Can the company use Rule 416 to register for resale an indeterminate number of shares that it may issue due to the operation of the conversion formula?

Question: A company privately placed convertible securities in reliance on the exemption provided by Section 4(2), but has not yet issued some or all of the convertible securities. The company agreed to file a registration statement within two months after the private placement closing to register the resale of the common stock issuable on conversion of the convertible securities. The securities were convertible into common stock using a conversion ratio based on the company's common stock trading price at the time of conversion. Can the company use Form S-3 to register the resale of the common stock prior to conversion?

Question: An issuer intended to grant rights to subscribe to shares of common stock (on a pro rata basis to all shareholders) after it filed a registration statement on Form S-3. The issuer was not eligible to rely on General Instruction I.B.1 of Form S-3 because it did not have the requisite public float, and the aggregate amount of securities that the issuer intended to register exceeded the amount permitted pursuant to General Instruction I.B.6. Can the issuer rely on General Instruction I.B.4 to file a Form S-3 registration statement to cover the issuance of the shares on exercise of the rights prior to the time that the issuer granted the rights and without complying with the information provision requirements of that instruction?

Question: How does a company register, as a primary offering (rather than as a "resale" registration in a private equity line financing), the issuance of the put securities under an equity line?

Question: May a company with an effective shelf registration statement on Form S-3, in reliance on General Instruction I.B.6, file a prospectus supplement for a new offering of an amount of securities that exceeds the 1/3 limit of the instruction, so long as the actual amount sold does not exceed the limit?

Question: A company is able to sell up to $10 million in securities using its effective shelf registration statement on Form S-3, in reliance on General Instruction I.B.6. On Monday, June 7, the company files a prospectus supplement to offer and sell up to $5 million of securities in a continuous offering. The company promptly begins its offering and has sold $2.5 million of securities to date. The company intends to file a prospectus supplement for another continuous offering on the following Monday, June 14. What is the maximum amount of securities that can be offered by the June 14 prospectus supplement, assuming the 1/3 limit in General Instruction I.B.6 continues to be $10 million?

Question: In calculating whether the size of an offering consisting of common stock and warrants exceeds the one-third cap in General Instruction I.B.6(a) of Form S-3, is an issuer required to follow Instruction 2 to General Instruction I.B.6 when the warrants are not exercisable for common stock within 12 calendar months?

Question: An issuer with less than $75 million in public float is eligible to use Form S-3 for a primary offering in reliance on Instruction I.B.6, which permits it to sell no more than one-third of its public float within a 12-month period. May it sell securities to the same investor(s), with a portion coming from a takedown from its shelf registration statement for which it is relying on Instruction I.B.6 and a portion coming from a separate private placement that it concurrently registers for resale on a separate Form S-3 in reliance on Instruction I.B.3, if the aggregate number of shares sold exceeds the Instruction I.B.6 limitation that would be available to the issuer at that time?

Question: May a majority-owned subsidiary of a parent that meets the registrant requirements of Form S-3 rely on General Instruction I.C.2 to use Form S-3 to register the offer and sale of investment grade debt if the subsidiary is not registered under the Exchange Act?

Question: In Part II of an automatic shelf registration statement, what information should be included under "Other Expenses of Issuance and Distribution"?

Question: If an automatic shelf registration statement initially registers one or more classes of securities and a new class of securities is subsequently added to that automatic shelf registration statement by post-effective amendment, when must the Exhibit 5 legality opinion for the new class of securities be filed? More generally, when must the Exhibit 5 legality opinion for the specific securities sold in a particular offering be filed?

Question: If a well-known seasoned issuer files an automatic shelf registration statement and during that year, before its Section 10(a)(3) update is due, the issuer loses its status as a well-known seasoned issuer, what is the impact on the effectiveness and use of that automatic shelf registration statement?

Question: How does Rule 3-10(g)(1)(ii) of Regulation S-X (which refers to the principal amount of securities being registered) apply in the context of an automatic shelf registration statement for an unspecified amount of securities?

Question: If a well-known seasoned issuer has an effective Form S-3 or Form F-3 registration statement, can it change that registration statement to an automatic shelf registration statement by filing a post-effective amendment?

Question: Can a continuous offering registered on an effective Form S-3 (such as a dividend reinvestment program, including a program with a direct stock purchase plan) be transitioned to an automatic shelf registration statement?

Question: May a majority-owned subsidiary of a well-known seasoned issuer parent use the parent's automatic shelf registration statement to register the subsidiary's guarantee of the parent's registered debt securities that are convertible into equity securities of the parent and not any other securities of the subsidiary, provided that the parent is eligible to register any of its securities on an automatic shelf registration statement?

Question: If a spun-off subsidiary meets the conditions discussed in Questions 8 and 9 of Staff Legal Bulletin No. 4, including the 12-month segment financial reporting requirement, that permit a subsidiary to consider the parent's reporting history when determining whether the subsidiary is eligible to use Form S-3, may the subsidiary rely on the parent's pre-spin-off reporting history for purposes of evaluating whether the subsidiary is a well-known seasoned issuer and eligible to file a Form S-3ASR?

Question: Must an issuer test its well-known seasoned issuer status when it adds a new class of securities to an existing automatic shelf registration statement on Form S-3 via post-effective amendment pursuant to Rule 413(b)?

Question: Must a Form S-3 include a table of contents?

Question: Rule 3-01 of Regulation S-X specifies certain time periods (depending on the registrant's accelerated filer status) in which a "filing," other than on Form 10-K or Form 10, may be made without the balance sheet for the most recent fiscal year end. The rule is conditioned on (1) the registrant's reasonable and good faith expectation that it will report income for the most recently completed fiscal year and (2) the registrant having reported income for at least one of the last two fiscal years. May a registrant sell securities from an effective Form S-3 registration statement during the relevant time period and file a prospectus supplement under Rule 424 to reflect the take-down, if the balance sheet for the most recent fiscal year end has not been filed and the registrant does not have a reasonable and good faith expectation that it will report income for the most recently completed fiscal year?

Question: May a company continue to use a registration statement that is predicated on timely filed reports (such as Form S-3) during the Rule 12b-25 extension period for a periodic report?

Question: May a dividend reinvestment plan prospectus, which will not be distributed on a preliminary basis, bear the anticipated effective date of the registration statement to permit savings in printing costs?

Question: Does the language in General Instruction III to Form S-3 relating to advance processing of confidential treatment requests and reduced numbers of extra copies to be filed apply to all offerings?

Question: A registrant intends to file a non-automatic shelf registration statement on Form S-3 on April 10, hoping to become effective by April 25. The registrant intends to incorporate its most recent Form 10-K which will be filed on March 31. Certain information required in the Form S-3 concerning officers and directors is not intended to be furnished in the 10-K, but will be incorporated by reference from the registrant's definitive proxy statement which will be filed on April 30. What must the registrant do in order to become effective by April 25?

Question: May a wholly-owned subsidiary that files a reduced disclosure Form 10-K pursuant to General Instruction I of that form still use Form S-3 if otherwise eligible to do so?

Question: Company A, a wholly-owned subsidiary of Company B, intends to file a registration statement on Form S-3 for the sale of its debt securities. May Company A include information concerning Company B in the registration statement by incorporating Company B's Exchange Act reports by reference even though Company B is not guaranteeing the debt obligation?

Question: May the description of securities registered on Form S-3 be set forth in a different "core" prospectus for each particular class of securities so that, for example, offerings of preferred stock and senior notes off the shelf could use different "core" prospectuses?

Question: Item 12(a) of Form S-3 requires a registrant to specifically incorporate its latest Form 10-K and any other Section 13(a) or 15(d) reports filed since the end of the fiscal year covered by the Form 10-K. Item 12(b) states that all documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering shall be deemed to be incorporated by reference into the prospectus. If a Form 10-Q is filed before a registration statement becomes effective, must it be specifically incorporated (thereby requiring a pre-effective amendment) or would it be considered to be "subsequently filed" and therefore deemed to be incorporated by reference.

Question: Issuers filing automatic shelf registration statements do not request acceleration of effectiveness. Do these well-known seasoned issuers nonetheless need to include the Item 512(h) undertaking in these registration statements?

Question: Item 12(a)(3) of Form S-3 requires incorporation by reference of the description of securities of companies with a class of securities registered pursuant to Section 12 of the Exchange Act that is contained in a registration statement filed under Section 12 of the Exchange Act. How is this done when it is no longer deemed desirable or possible to incorporate that registration statement (because of the length of time that has passed or other events that have occurred since it was filed)?

Question: Must the annual report to shareholders delivered pursuant to Item 12(a) of Form S-4 comply in all respects with the disclosure requirements set forth in Exchange Act Rules 14a-3 or 14c-3?

Question: A registrant included in its Form S-4 registration statement securities to be issued subsequent to the merger, in connection with a dividend reinvestment plan and an employee benefit plan. After the merger, can the registrant amend the registration statement for use by the two plans, providing a separate prospectus for each?

Question: An issuer intends to use Form S-4 to register common stock to be issued in a merger transaction. The merger agreement has a contingency clause, which may require the payment of additional consideration in the form of notes or other securities to the shareholders of the acquired company two years after the merger, if the price of the issuer's stock should decline. Should the contingent notes be registered in the Form S-4?

Question: Where the number of shares to be issued in a merger transaction is based upon a formula that will not be applied until the closing date for the transaction, how should the issuer determine the appropriate number of shares to register?

Question: Is General Instruction J intended to limit the application of Rule 457(o) to Form S-4 only where securities of more than one class are being registered?

Question: A registration statement on Form S-4 is filed to register stock to be issued in the acquisition of a non-reporting company by a reporting company. Only the non-reporting company will solicit proxies. Can a proxy card be sent with the red herring prospectus?

Question: A registrant can use its Form S-4 proxy statement/prospectus as a red herring. May a registrant include a proxy card in the red herring?

Question: An issuer filed a registration statement on Form S-4 that contained its proxy statement. After the effective date of the registration statement and the delivery of the final prospectus, the issuer decided to mail an additional letter to shareholders in connection with the transaction. How should the issuer file the additional letter?

Question: Does the "for cash" requirement contained in General Instruction I.B.1 of Form S-3 preclude the use of that Form for a spin-off because no cash will be paid for the spun-off shares?

Question: A company filed a combined proxy statement/prospectus and incorporated by reference information about both the acquired company and the acquiring company. The shareholders of both companies are voting on the transaction. Must the combined proxy statement/prospectus be sent to each company's security holders 20 business days in advance of the vote?

Question: An issuer intends to use Form S-4 to register common stock to be issued in a merger transaction. The target company, although not a public company, satisfies the definition of a "smaller reporting company" under Item 10(f)(1) of Regulation S-K. May the issuer present information regarding the target company in accordance with the scaled disclosure provisions in Regulations S-X and S-K that are available to smaller reporting companies?

Question: If a registrant “meets the requirements for use of Form S-3,” as set forth in General Instruction B of Form S-4, and incorporates by reference registrant information into the Form S-4 pursuant to General Instruction B and either Item 11 or 13 of Form S-4, may the registrant incorporate the risk factors from its latest Form 10-K in response to Item 3 of Form S-4?

Question: As a condition to not objecting to a registration statement for a so-called “Exxon Capital” exchange offer, the staff will ask the issuer to make representations about the absence of a distribution of the securities received in the exchange. Is there a particular form that these representations must take?

Question: May a company that files reports under Sections 13 or 15(d) of the Exchange Act, but is not statutorily required to do so, use Form S-8?

Question: As a general matter, once an option becomes exercisable, an offer is made pursuant to Section 5. Further, if an option becomes exercisable within one year, it is deemed to be immediately exercisable. Therefore, a registration statement must be on file before the option is exercisable for the entire transaction to be a public offering. A later filing of the registration statement would convert a private offering into a public offering, which is inconsistent with Section 5. Is there an exception to this position with respect to Form S-8?

Question: At the time that its Form S-8 registration statement was required to be updated under Section 10(a)(3), a company was no longer eligible to use Form S-8 because the company was not current in its reporting obligations and therefore did not satisfy General Instruction A to Form S-8. May the company permit options underlying shares registered on the Form S-8 to be exercised pursuant to an exemption from registration?

Question: Under what circumstances must the exercise of shares underlying a stock appreciation right (SAR) be registered?

Question: Notwithstanding the definition of employee in Rule 405, is a director considered to be an employee for purposes of Form S-8?

Question: May a company register securities to be issued pursuant to two plans on the same registration statement? If so, how is this done?

Question: May a rescission offer be conducted on Form S-8?

Question: Founders of a company intended to issue options on the common stock they hold. The transaction would be structured as part of an employee benefit plan. The Board would authorize the issuance of the options and the founders would make assurances that they would not otherwise pledge or encumber the underlying common shares. Is Form S-8 available to register the underlying shares?

Question: The Skadden Arps/Registration of Rights Issuable Pursuant to Stockholder Rights Plans no-action letter (Jan. 7, 1987) issued by the Division relates to registration requirements in connection with rights plans. As described in the no-action letter, a prospectus to a previously effective Form S-3, pursuant to which sales are still being made, may be revised to reflect the rights plan by filing a Rule 424(c) prospectus supplement. For a Form S-8, Rule 428 would apply instead of Rule 424(c). However, if a company has an existing rights plan and is filing any new Securities Act registration statement for shares of the class of security to which the rights relate, should the rights be registered on the new registration statement as a separate security?

Question: Do the general requirements of Form S-8 require only that all reports required to be filed with the Commission during the preceding 12 months have been filed, or do they also require that such reports have been timely filed?

Question: May an issuer file or use a registration statement on Form S-8 after the issuer has filed its Form 10-K but prior to filing the Part III information that will be incorporated by reference into the Form 10-K?

Question: A company failed to furnish an Item 2.02 Form 8-K. As a result, does the company lose its eligibility to file a registration statement on Form S-8?

Question: In annual reports for fiscal years ending on or after December 15, 2007 but before December 15, 2009, non-accelerated filers are required to provide management's report on internal control over financial reporting pursuant to Item 308T of Regulation S-K. The report is deemed not to be "filed" for purposes of Section 18 of the Exchange Act, unless the company specifically states that the report is to be considered "filed" under the Exchange Act or incorporates it by reference into a filing under the Securities Act or the Exchange Act. Does a non-accelerated filer's failure to provide management's report in its Form 10-K under Item 308T(a) affect its form eligibility or the ability to use Rule 144?

Question: Company A acquires Company B and, in connection with the acquisition, assumes outstanding Company B options held by current and former employees of Company B. May Company A register on Form S-8 Company A shares to be sold to former employees of Company B upon the exercise of the assumed options?

Question: Are securities analysts excluded from receiving securities issued under Rule 701 or registered on Form S-8 as "consultants" or "advisors" because their services, as securities industry professionals, are inherently capital-raising or promote or maintain a market for the issuer's securities?

Question: The Rule 405 definition of "employee benefit plan" states that consultants or advisors may participate in an employee benefit plan only if (1) they are natural persons, (2) they provide bona fide services to the registrant, and (3) the services are not in connection with the offer or sale of securities in a capital-raising transaction and do not directly or indirectly promote or maintain a market for the registrant's securities. Can securities issuable under a plan that permits consultants to be compensated for capital-raising services, as well as services that qualify under Rule 405, be registered on Form S-8?

Question: A stock option plan registered on Form S-8 permits the issuance of transferable options. The registration statement covers only the issuance of the common stock on the exercise of the options. Can a non-employee, who acquires an option from an employee, exercise that option under the Form S-8 registration statement?

Question: An issuer that has maintained a 401(k) employee savings plan for several years has decided to add its common stock as an investment option in the plan. As a result, both the plan interests and the employer stock will be subject to Securities Act registration. Prior to the addition of the employer stock, the plan interests would not be regarded as securities. General Instruction A.2 to Form S-8 will ordinarily require a plan that has been in existence more than 90 days to file a Form 11-K contemporaneously with the registration of the offering of plan interests and employer securities. Does this Instruction require a Form 11-K to be filed contemporaneously with the Form S-8 in this situation?

Question: A company's 401(k) plan provides for an automatic company contribution of 1% of the employee's salary, employee contributions up to 10% of the employee's salary and a matching contribution by the company of the employee contributions up to 5% of the employee's salary. The investment options for the 401(k) plan are such that Securities Act registration is required. For which of these contributions would the company need to pay a registration fee?

Question: Part II, Item 8(a) of Form S-8 provides that an opinion of counsel as to the legality of the securities being registered is required only with respect to the issuance of securities by the issuer. If a plan currently intends to acquire all shares to be distributed pursuant to the Form S-8 through open market purchases and subsequently decides to purchase newly-issued shares directly from the company, may the Form S-8 be amended at that subsequent time to include an opinion of counsel?

Question: Must a registration statement on Form S-8, covered by Rule 415, include all applicable undertakings in Item 512 of Regulation S-K, including specifically those in Items 512(a), (b) and (h)?

Question: In its Form S-8, an issuer will incorporate by reference financial statements from its Form 10-K. How must the issuer file the accountant's consent to use of the accountant's report?

Question: Item 3(c) of Form S-8 requires incorporation by reference of the description of securities of companies with a class of securities registered pursuant to Section 12 of the Exchange Act that is contained in a registration statement filed under Section 12 of the Exchange Act. How is this done when it is no longer deemed desirable or possible to incorporate that registration statement (because of the length of time that has passed or other events that have occurred since it was filed)?

Question: Should documents constituting the current Form S-8 prospectus, as updated for Section 10(a)(3) purposes, be delivered concurrently to new plan participants?

Question: Item 2 of Form S-8 requires a statement indicating the availability without charge, upon written or oral request, of documents required to be delivered to employees pursuant to Rule 428(b). Do all Rule 428(b) documents need to be described pursuant to Item 2 of the Form S-8?

Question: Does the Rule 428(b)(5) obligation to deliver company proxy statements and reports to employees participating in a stock option plan or plan fund that invests in the company's securities extend to former employees, within the scope of General Instruction A.1(a)(3) to Form S-8, who participate in a stock option plan or plan fund that invests in the company's securities?

Question: Do the procedures applicable to Form S-8 apply to updating a reoffer prospectus filed with a Form S-8?

Question: May a reoffer prospectus prepared in accordance with Part I of Form S-3 be incorporated by reference into the Form S-8?

Question: General Instruction C.1 permits a reoffer prospectus, prepared in accordance with the requirements of Part I of Form S-3 or F-3 (as applicable), to be filed with the registration statement on Form S-8. Does the use of "with" in this Instruction indicate that a General Instruction C reoffer prospectus must be filed as part of a Form S-8 that otherwise registers securities to be offered to employees under an employee benefit plan, and not as a stand-alone resale offering wrapped under the cover of Form S-8?

Question: General Instruction C to Form S-8 provides for preparation of a reoffer prospectus in accordance with the requirements of Part I of Form S-3. A company eligible to use Form S-8 may not yet have filed its first annual report on Form 10-K at the time the Form S-8 is filed. With respect to its reoffer prospectus, may this company incorporate by reference to its Securities Act registration statement to satisfy the information requirements of Form S-3 (otherwise required to be incorporated from Exchange Act reports)?

Question: In determining the amount of securities that an individual may sell pursuant to General Instruction C.2(b) of Form S-8, does the individual need to aggregate the amount of securities that the individual has sold pursuant to Rule 144?

Question: May the amount of securities registered for resale by individual officers and directors of an issuer pursuant to General Instruction C.2(b) of Form S-8 exceed the three-month volume limitation specified in Rule 144(e), provided that resales are monitored so that actual sales by such individuals during a three-month period do not exceed such volume limitations?

Question: Do shares issued in reliance upon Rule 701 constitute shares issuable under a plan for purposes of determining securities that can be included in a reoffer prospectus under General Instruction C to Form S-8?

Question: Do the provisions of General Instruction C of Form S-8 applicable to reoffer prospectuses require that affiliates have a present intention to sell the securities acquired under the Form S-8 in order to have them included in the reoffer prospectus?

Question: If a registrant adds by post-effective amendment a resale prospectus with respect to control securities that were previously registered on Form S-8, must a filing fee be paid for the resale of such control securities?

Question: Under General Instruction E to Form S-8, can a post-effective amendment be used to register additional securities for the employee benefit plan covered by the Form S-8?

Question: A Form S-8 for a 401(k) plan registered a number of shares of company stock and an indeterminate number of plan interests. When filing a new Form S-8 under General Instruction E to register additional shares of company stock authorized for issuance under the plan, is it necessary also to register additional plan interests?

Question: What must be included in a post-effective amendment to Form S-8 that will be filed to deregister the unsold securities for that employee benefit plan?

Question: A recently acquired company had a Form S-8 for its 401(k) plan. The new parent company wishes to continue the plan. Must the new parent file a new Form S-8 registration statement registering shares of its own stock, which will now be offered and sold under the plan to employees of its new subsidiary, and plan interests?

Question: After its Form 10-K is filed, a registrant has a change in accounting principles (or changes in segment presentation or discontinued operations), which will cause the financial presentation in its subsequent Form 10-Qs to differ from that in its most recent Form 10-K. In this situation, Item 11(b)(ii) of Form S-3 would require the annual audited financial statements filed in the Form 10-K to be restated to reflect the change in accounting principles (or changes in segment presentation or discontinued operations). Would General Instruction G.2 of Form S-8, which requires that "material changes in the registrant's affairs" be disclosed in the registration statement, also require such restatement?

Question: A company sponsors a 401(k) plan that does not offer an employer securities fund in which employee contributions may be invested. The 401(k) plan permits both employer and employee contributions to be invested through a self-directed "brokerage window." If the 401(k) plan does not prohibit employee contributions to be invested in employer securities through the "brokerage window," would this involve an offer of employer securities requiring Securities Act registration?

Question: An issuer has a Form S-8 on file that registers shares of common stock to be issued upon the exercise of outstanding options. The issuer has decided to stop granting stock options and believes that it has more shares registered on the Form S-8 than it will need to cover the exercise of the outstanding options. May the issuer transfer to a new registration statement the filing fees associated with the securities that the issuer believes it will not need to issue, and continue to use the Form S-8 to cover the exercise of the outstanding options?

Question: An issuer has an effective Form S-8 that registers shares of common stock to be issued under the issuer's 2006 equity compensation plan, and has recently adopted a new 2016 equity compensation plan. The 2006 plan authorized the issuer to grant awards for up to 20 million shares, and to date the issuer has granted options (all of which remain outstanding) exercisable for 15 million shares. Upon effectiveness of the 2016 plan, no further awards may be granted pursuant to the 2006 plan and the 5 million shares not covered by any award under the 2006 plan become authorized for issuance under the 2016 plan. The terms of the 2016 plan provide that the 15 million shares underlying outstanding options granted pursuant to the 2006 plan will also become authorized for issuance under the 2016 plan when the outstanding options under the 2006 plan expire or are terminated or canceled. The issuer plans to file a new Form S-8 to register 10 million shares that are newly authorized for issuance under the 2016 plan. May it also include on that registration statement the 5 million shares and an estimated number of shares that will become available upon the cancellation or termination of awards, all of which were previously authorized for issuance pursuant to the 2006 plan and that will roll over to the 2016 plan? Alternatively, is there another way the issuer can offer and sell under the 2016 plan the 5 million shares that are not subject to outstanding options under the 2006 plan and any shares that become authorized under the 2016 plan upon the cancellation or termination of options under the 2006 plan without paying a new registration fee?

Question: When filing fees paid in connection with a prior registration statement are used to offset fees due on a subsequent registration statement pursuant to Rule 457(p), what information pertaining to the offset should the issuer include in a note to the Calculation of Registration Fee table?

Question: May a real estate company that typically would file on Form S-11 use Form S-3 if it meets the issuer requirements of that form?

Question: Is a registrant that operates a resort (hotel, golf course and spa) in a service industry or the real estate business? The registrant is unsure whether Form S-1 or Form S-11 would be the appropriate registration statement for an offering.

[withdrawn, June 23, 2015]

Question: Does the SEC impose a filing fee for filing an offering statement on Form 1-A?

Question: Does a company incur Exchange Act reporting obligations after its Form 1-A offering statement is qualified?

[Reserved]

[Reserved]

[Reserved]

Question: In an offering involving multiple issuers, can a single Form D be filed for the offering?

Question: If multiple issuers make a combined Form D filing, how do they determine which is the "primary issuer" in the Form D filing?

Question: When completing "Item 11—Minimum Investment" of Form D what is the appropriate response when an issuer may waive any required minimum investment amount from an outside investor?

Question: How does an issuer determine the minimum investment amount from an outside investor in Item 11 of Form D when an outside investor provides only non-cash consideration, such as in a share exchange?

Question: In completing Item 11 of Form D, are immediate family members of inside investors, as well as trusts and affiliates controlled by inside investors, also deemed to be inside investors and therefore excluded from the definition of "outside investor"?

Question: "Item 14—Investors" of Form D instructs the issuer to enter the total number of investors who already have invested in the offering. Does this mean the historic total number of purchasers to date or the number of purchasers still holding at the date of the filing?

Question: In entering offering and sales amounts, sales commissions and use of proceeds for related party payments in Form D filings, does the issuer enter the aggregate historic amounts from the beginning of the offering, or just the amounts since the last Form D filing?

Question: Under "Item 15—Sales Commissions and Finders' Fees Expenses" of Form D, are issuers required to provide only the amount of sales commissions and finders' fees that are paid directly or indirectly out of the offering proceeds?

Question: On what basis would an issuer completing "Item 15—Sales Commissions and Finders' Fees Expenses" of Form D provide an amount that is paid other than in cash?

Question: How does an issuer provide financial information in foreign currency amounts in Form D, such as if the issuer derives its revenues principally from outside of the U.S. and in a foreign currency?

Question: Do the changes to Form D that are effective as of March 16, 2009 require issuers to amend any Form Ds filed on earlier versions of the form?

Question: If a sale occurs after an issuer has submitted a Form D filing that indicates that a sale has yet to occur in its response to "Item 7—Type of Filing," must the issuer file an amendment solely because of that first sale?

Question: If an issuer changes its entity type after submitting a Form D notice, must that issuer amend that prior filing solely because of its new entity type status while the offering is ongoing?

Question: The Item-by-Item instructions for Item 7 of Form D indicate that an issuer must enter the date of the first sale of securities in the offering if the issuer is filing a "new notice." If an issuer is filing an amendment to a Form D filing, must the issuer provide current information about the date of first sale in the amendment?

Question: How should an issuer address Item 12 “Sales Compensation” of Form D if the information requested by this item is not applicable to its Regulation D offering?

Question: Does an amendment to Form 144 need to be filed in the event that a person does not sell the securities referred to in the Form?

Question: Does an amended Form 144 need to be filed to reflect a company's listing on a national securities exchange or a stock split?

Question: If a person intends to use two brokers, must the person allocate a specific number of shares to each broker on the Form 144?

Question: Does the de minimis exemption of Rule 144(h) apply to each individual seller who is required to file a Form 144 when sales are required to be aggregated under Rule 144(e)?

Question: When a Form 144 is required to be filed, is a waiting period required between the time the person places an order with a broker and the time the broker executes the order?

Question: Should a Form 144 be amended to reflect a change in broker?

Question: What is the effect of an amended Form 144 that is filed to correct inaccuracies?

Question: Under what circumstances does a sell order that is placed with a broker at above the current market price contravene the requirement in Rule 144(h) that the person filing a Form 144 have a bona fide intention to sell the securities referred to in the Form 144 within a reasonable time?