Availability and Benefits of Shelf Offerings for Public Issuers - Ward and Smith, P.A.

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Securities Act Forms Generally Question Answer: Requests for waivers of form eligibility requirements are granted only under very limited circumstances and are handled solely by the Division's Office of Chief Counsel. Are graphic presentations permitted in the prospectus?

Answer: Yes. Registrants issuer s option for what refer to Rule of Regulation S-T. Is the new principal financial officer required to sign any amendments to the registration statement in his or her capacity as principal financial officer?

This would be the case even if the individual had been employed as principal financial officer for only one week.

Accordingly, interim financial information that will be included in a historical period that the issuer reasonably believes will be required to be included at the time of the contemplated offering may not be omitted from its filed registration statements.

However, under staff policy, an Emerging Growth Company may omit from its draft registration statements interim financial information that it reasonably believes it will not be required to present separately at the time of the contemplated offering. For example, consider a calendar year-end Emerging Growth Company that submits a draft registration statement in November and reasonably believes it will commence its offering in April when annual financial information for will be issuer s option for what.

This issuer may omit from its draft registration issuer s option for what its annual financial information and interim financial information related to and Assuming that this issuer were to first publicly file in April when its annual information for is issuer s option for what, it would not need to separately prepare or present interim information for and If this issuer were to file publicly in Januaryit may omit its annual financial information, but it must include its and interim financial information in that January filing because that interim information relates to historical periods that will be included at the time of the public offering.

The submissions asked how the issuer of such an instrument should classify it in accordance with IAS 32 Financial Instruments: Presentation. Staff focused various items when assessing this with substance being the key, i.

However, under staff policy, an issuer that is not an Emerging Growth Company may omit from its draft registration statements interim and annual financial information that it reasonably believes it will not be required to present separately at the time it files its registration statement publicly.

The issuer may not omit any required financial information from its filed registration statements. For example, consider a calendar year-end issuer that is not an Emerging Growth Company that submits a draft registration statement in November and reasonably believes it will first publicly file in April when annual financial information for will be required. This issuer may omit from its issuer s option for what registration statements its annual financial information and interim financial information related to and because this information would not be required at the time of its first public filing in April F-Series Forms Generally Question Who is qualified to sign as an authorized U.

Foreign private issuers are exempt from the disclosure requirements of Regulation FD ; Foreign private issuers may use particular registration and reporting forms designed specifically for them; and Foreign private issuers may use a special exemption from registration under the Exchange Act.

Answer: The term "authorized U. The release states that "the Commission generally accepts the signature of an individual who is an employee of the registrant or an affiliate, or who is the registrant's counsel or underwriter in the United States for the offering, because the signature clearly identifies an individual that is connected with the offering as subject to the liability provisions of the Securities Act.

By similar reasoning, the Commission generally has refused to accept the appointment of a newly formed or shell corporation in the United States as the authorized representative. In some cases, this may require the signatures of the members of both governing boards. The registration statement disclosure requirements relating to the registrant's board of directors generally would apply to members of both governing boards.

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? Answer: Issuer s option for what eligible to use these forms may substitute the following plain English versions of the first four legends required by these items of the forms, in place of the versions currently set forth in the forms: "We are permitted to prepare this prospectus in accordance with Canadian disclosure requirements, which are different from those of the United States.

We prepare our financial statements in accordance with Canadian generally accepted accounting practices, and they may be subject to Canadian auditing and auditor independence standards. They may not be comparable to financial statements of United States companies. Issuer s option for what prospectus or any applicable prospectus supplement may not describe these news on trading strategy consequences fully.

You should read the tax discussion in any applicable prospectus supplement. Any representation to the contrary is issuer s option for what criminal offense. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to issuer s option for what these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

Answer: Yes, if certain requirements are satisfied. Rule of Regulation S-X permits modified reporting by subsidiary issuers of guaranteed securities and subsidiary guarantors. Separate financial issuer s option for what need not be filed for subsidiaries if any of Rules b through d apply and all applicable conditions of the rule relied upon are met in the parent company's filings.

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If the parent and issuer are eligible to present condensed consolidated financial information in the parent company's filings and the parent qualifies as a foreign private issuer, the parent company and its issuer s option for what may use an F-series registration statement to register an offering of guarantees and guaranteed securities that are issued by a domestic or foreign subsidiary that does not qualify as a foreign private issuer and use Form F with respect to any reporting obligations associated with such registration statement.

The same would apply if the parent and subsidiaries are eligible to present narrative disclosure in lieu of condensed consolidating financial information under Rule In this situation, separate financial statements need not be filed for subsidiaries if either Rule e or f applies and all applicable conditions of the rule relied issuer s option for what are met in the parent company's filings.

Form F-1 Question Foreign issuers may register only a portion of a worldwide equity or debt offering so long as the amount registered with the Commission covers the securities sold in the U. A foreign issuer may use a U. K-style or other foreign-style document as a prospectus in the U.

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Some modification of the presentation and placement of information may be necessary in order to reflect the Commission's "plain English" requirements, such as the requirements for presentation of risk factors.

Answer: No. Although risk factors disclosure is generally required for all initial public offerings, a foreign issuer that is making its U. Form F-4 [Reserved] Section Form F-6 Question Form F-6 may be used to register installment receipts even though the form, by its terms, is not available in cases where the underlying shares are not withdrawable.

Form F-6 may be used to register ADS even though local government law prohibits the withdrawal and holding of underlying shares by U.

For example, certificates of participation issued by a master trust established with respect to the securities of Mexican companies should be registered on Form F-6, even though the form, by its terms, is not available in cases where the underlying shares are not withdrawable.

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Answer: When a registration statement on Form F-6 is filed in connection with the establishment of a company-sponsored ADR program, the depositary and the company will be required to provide a representation that arrangements are in place to terminate any existing unsponsored ADR programs for the company's securities in a prompt and orderly fashion. Written confirmation from the depositaries of the unsponsored programs as to their concurrence with such arrangements may be required.

Form F-7 Question The MJDS, and in particular, Form F-7, may be used for rights offers exempt from Canadian registration requirements, notwithstanding the general prohibition on the use of the system for exempt offerings.

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The offering circular and any other material used to make the offers constitute the "prospectus" for purposes of Form F Form F-8 Question Answer: The required legend with respect to the issuer s option for what not being approved or disapproved by the Commission may be modified to add a reference to the fact that state regulators have not approved or disapproved such securities.

Although Forms F-8 and F refer to business combinations requiring the vote of the shareholders of the companies that are the parties to the combination, either form may be used in the case of a statutory share exchange, which only requires the vote of the shareholders of the company being acquired.

Form F-9 Question Form Feligible securities which are convertible after one year into another class of the issuer's securities may be registered on Form F-9, but the securities into which they are convertible also must be Feligible securities, independent of the convertible securities.

When updating its shelf registration in Canada, an issuer must also file a post-effective amendment to its registration statement on Form F-9 or Form F relating to its shelf registration in Canada. Form F Question Does this reconciliation requirement apply to all financial statements filed under cover issuer s option for what Form F, including interim financial statements? Answer: The reconciliation requirement in Item 2 of Form F applies to the issuer's annual financial statements and year-to-date financial statements including comparative periods and does not require that any other interim financial statements be reconciled to U.

Issuer s option for what interpretation is consistent with the reconciliation requirements of Form F Reconciliation of annual and year-to-date financial statements is required regardless of whether they are included directly or incorporated by reference.

However, the reconciliation requirement does not apply to year-to-date financial statements included under cover of Form F if Item 8. Under Securities Act Rule aform eligibility is established at the time of the initial filing.

In doing so, however, the Canadian issuer is, in effect, waiving the benefit of this exemption and should consider itself subject to Canadian requirements applicable to offerings generally including, if applicable, the requirement that the prospectus be serious income on the Internet to Canadian shareholders. The Commission revised General Instruction I.

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In such case, the registrant must include in the Form F a reconciliation to U. GAAP for those financial statements that are required to accompany a rights offering circular filed with the Canadian authorities. Form F-X [Reserved] Section Form F-N [Reserved] Section Form S-1 Question A post-effective amendment is required in these circumstances pursuant to the issuer's Item a undertakings. Form S-1 does not provide for forward incorporation by reference of Exchange Act reports filed after the effective date of the registration statement.

Other changes to the information in the prospectus contained in the registration statement generally may be made by filing a prospectus supplement.

Important Note

Answer: If Form S-1 is used for a continuous offering, the prospectus may have to be revised periodically to reflect new information since, unlike Form S-3, the form does not provide for incorporation by reference of subsequent periodic reports. For example, in a continuous offering on a Form S-1 pursuant to Rule a 1 ixa registrant wants to update the prospectus to include Exchange Act reports filed after the effective date of the Form S Item a 1 of Regulation S-K requires certain changes, including a Section 10 a 3 update, to be reflected in a post-effective amendment.

Other changes may be made in a prospectus supplement filed pursuant to Rule b.

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If the registrant files a post-effective amendment, it could incorporate by reference previously filed Exchange Act reports if it satisfied the conditions in Form S-1 allowing incorporation by reference. The registrant is unsure whether Form S-1 or Form S would be the appropriate registration statement for an offering.

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Answer: A registrant that operates a resort hotel, golf course and spa is in a service industry. Accordingly, Form S-1, and not Form S, would be appropriate for its offering. Answer: An issuer may satisfy this requirement by including on the web site maintained by or for the issuer hyperlinks directly to the issuer's reports or other materials filed on EDGAR.

However, linking to the Commission's EDGAR system generally, or to a page where an investor would be required to select the issuer or input the issuer's name, will not satisfy this requirement. 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?

If the registrant elects to incorporate by reference pursuant issuer s option for what General Instruction VII and Item 12 of Form S-1, then it must incorporate by reference, in their entirety, all Exchange Act reports and other materials required by Item If a registrant wants options with minimal risk incorporate by reference an Exchange Act report that the registrant files after the filing date of a Form S-1 or an amendment thereto but prior to effectiveness, the registrant must file a pre-effective amendment to include a specific reference to such report in the prospectus filed as part of the registration statement.

This procedure is not authorized by Form S-1 or Rule If the information about the other company is material, it must be set forth in the prospectus in full. Answer: Yes, provided that the post-effective amendment is filed only after the issuer has filed its new Form K and the issuer meets all of the requirements for incorporation by reference into Form S-1 at the time of the post-effective amendment. As Form S-1 does not provide for forward incorporation by reference, a post-effective amendment filed after the issuer files its new Form K would meet the requirements of Form S-1 at the date of filing, and the effective date of the post-effective amendment would be a new effective date of the registration statement for purposes of Securities Act Sections 10 a 3 and Form S-3 — General Question However, an issuer can request relief from the timeliness requirements of General Instruction I.

Relief is granted only in very limited circumstances.

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Issuers should contact the Division's Office of Chief Counsel for additional information on how to make such a request. May the registrant continue to use Form S-3 to conduct primary offerings pursuant to that instruction? A registrant must be eligible to use Form S-3 each time it updates the registration statement under Section 10 a 3.

In this case, because the registrant no longer meets the transactional requirements of General Instruction I. If the registrant has a class of common equity securities listed and registered on a national securities exchange, it should consider whether it is eligible to use Form S-3 pursuant to General Instruction I.

For purposes of Rule bthe updating of a Form S-3 registration statement through the incorporation of a Form K is the equivalent of filing a post-effective amendment to update the registration statement pursuant to Section 10 a 3.

This means that if the registrant is not eligible to use Form S-3 at the time of such updating, it would be required to file a post-effective amendment on whatever other form would be available at the time.

  1. Updated Jun 26, What Is an Issuer?
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  3. An embedded option is a feature of a financial security that lets issuers or holders take specified actions against the other party at some future time.

However, issuers are responsible for ensuring that any prospectus used in connection with a registered offering contains the information required to be included therein by Securities Act Section 10 a and Schedule A. An issuer with an effective resale registration statement may rely on Rule B and file prospectus supplements pursuant to Rule b to make material amendments to the plan of distribution or to add or replace selling security holders, provided that in the case of adding or replacing selling security holders, the other conditions in Rule B regarding naming selling security holders by prospectus supplement are satisfied.

Well-known seasoned issuers are not required to delay filing an automatic issuer s option for what registration statement until pending confidential treatment applications are acted upon. However, the well-known seasoned issuer must assure that any prospectus used in an offering contains the information required to be included by Securities Act Section 10 a and applicable rules thereunder.

Form S-3 — General Instructions I. While General Instruction I. Hence, a late filing of a Form K is not considered in determining the issuer's eligibility for Form S 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.

Print to PDF January 23, Public issuers may benefit from the use of shelf offerings as an efficient, cost-effective alternative to Form S-1 in order to register shares as part of a primary offering, secondary offering, or as a benefit to its shareholders pursuant to a dividend reinvestment plan. Shelf Offerings Generally A shelf offering is a public offering of securities used by qualifying issuers as a way to offer securities in situations where some or all of the shares being offered are not planned to be immediately sold. A shelf offering allows for the registration of new sales of securities, resales of outstanding securities, and purchases of securities on behalf of an issuer's shareholders.

Does a non-accelerated filer's failure to provide management's report in its Form K under Item T a affect its form eligibility or the ability to use Rule ? Answer: It is the Division's view that the failure to provide this management report renders the annual report materially deficient.

As a result, if management did not complete the evaluation and provide the report as required by Item T athe company would not be timely or current in its Exchange Act reporting.