All public companies with effective shelf registration statements should review whether such registration statements will expire under the three-year refiling requirement adopted in 2005 as part of Securities Offering Reform. The first refiling deadline – December 1, 2008 – applies to shelf registration statements effective on or prior to December 1, 2005. Shelf registration statements initially effective after that date will have individual refiling deadlines of three years from their initial effective date.
The three-year refiling requirement applies to many common shelf registration statements:
- any automatic shelf registration statement (“ASR”) filed by a well-known seasoned issuer (“WKSI”);
- any shelf registration statement for a delayed or continuous primary offering by any issuer except as noted below; and
- any shelf registration statement covering mortgage related securities.
As a consequence, the expiration rules apply to all WKSIs that have an effective Form S-3ASR, all issuers that have an effective Form S-3 for primary shelf offerings and all issuers who are engaged in continuous offerings that are open to new investors such as direct stock purchase plans.
The three-year refiling requirement does not apply to:
- registration statements on Form S-8 covering securities sold pursuant to employee benefit plans;
- resale registration statements for offerings by selling securityholders, except for registrations on Form S-3ASR;
- registration statements for dividend reinvestment plans offered solely to existing shareholders; and
- registration statements covering securities to be issued upon exercise or conversion of outstanding securities.
Public companies should act now to ensure continued access to capital markets through their existing shelf registration statements. Companies that do not refile their shelf registration statements prior to the three-year deadline will be unable to sell previously registered securities until a new filing is made. Given the lead time associated with securing necessary consents and other authorizations for filing a registration statement, public companies should begin now to review their shelf registration statements and to establish timelines for refiling them as necessary. In addition, non-WKSI issuers must allow time for SEC review of refiled registration statements. Companies not facing the December 1, 2008 deadline should still establish procedures today for complying with the three-year refiling requirement in the future.