On March 20, 2025, the Division of Corporation Finance (the “Division”) of the Securities and Exchange Commission announced that it has updated certain Compliance and Disclosure Interpretations (“C&DIs”) related to Securities Act forms, Exchange Act forms, Regulation S-K and Securities Act Rules.
Form S-3 Effectiveness for Non-WKSIs
The Division revised the guidance for registration statements on Form S-3 of an issuer that is not a well-known seasoned issuers (“WKSI”) to match the guidance previously applicable only to registration statements for WKSIs.
The Division updated Securities Act Forms C&DIs Question 114.05, Securities Act Rules C&DIs Question 198.05 and Regulation S-K C&DIs Question 117.05 (and withdrew Securities Act Forms C&DIs Question 123.01) to allow non-automatically effective shelf registration statements on Form S-3 to be declared effective after the issuer files its Form 10-K but before it files the definitive proxy statement that will be incorporated by reference into such Form 10-K, as long as the prospectus has the information required by Section 10(a) of the Securities Act and Schedule A. Previously, this option was only available to WKSIs filing automatic shelf registration statements on Form S-3.
An issuer must still ensure that the registration statement meets the other regulatory requirements for effectiveness under the Securities Act (e.g., no material omission). Most issuers should be comfortable with requesting effectiveness between the filing of the Form 10-K and the proxy statement, as long as there are no material changes to the compensation expected to be reported in the proxy statement.
Note that, although the C&DIs specifically refer to Form S-3 registration statements, the guidance should apply to Form S-4 registration statements (which are used for exchange offers) when used by Form S-3 eligible issuers, since the form incorporates Form S-3’s disclosure requirements.
FPIs – No Need to Repeat Change in Accountant
The Division added a new Exchange Act Forms C&DIs Question 110.10 to clarify that a change in accountant that must be disclosed under Item 16F(a) of Form 20-F does not need to be repeated in the Form 20-F if the information has already been included in a Form 6-K.
FPIs – No Need to File Share Repurchase Forms
The Division also withdrew Exchange Act Forms C&DIs Questions 113.01, 113.02 and 113.03, which referred to the requirement to file a Form F-SR for share repurchases. This requirement was part of the Share Repurchase Disclosure Modernization, which took effect on July 31, 2023, but was vacated by the Fifth Circuit (as we discussed in our blog post on December 20, 2023).
Special thanks to Rodrigo Surcan in our New York office for his assistance in the preparation of this post.