On September 14, 2017, the staff of the SEC’s Division of Corporation Finance (the “Staff”) issued three new compliance and disclosure interpretations (“C&DIs”) addressing Regulation A offerings with a concurrent Exchange Act registration and clarifying when financial statements must be current and when annual and quarterly financial statements must be filed. Highlights of the C&DIs (Questions 182.21, 182.22 and 182.23) include, among other things, the following guidance:
- When an issuer registers a class of its securities pursuant to the Exchange Act on a Form 8-A concurrently with (i.e., within 5 days after) the qualification of a post-qualification amendment to a Form 1-A, the financial statements in the post-qualification amendment must be current at the time it is qualified.
- If an issuer’s qualified Form 1-A did not contain financial statements for the last full fiscal year preceding the fiscal year of effectiveness of the Form 8-A (filed concurrently with the qualification of a post-qualification amendment to the Form 1-A), then the Staff would not object if the issuer files its first annual report on Form 10-K for the fiscal year preceding the fiscal year in which the Form 8-A went effective within 90 calendar days after effectiveness of the Form 8-A.
- If an issuer’s qualified Form 1-A did not contain financial statements for one or more quarterly periods that followed the most recent annual or semi-annual period for which financial statements were included in the Form 1-A and that were completed prior to effectiveness of the Form 8-A, then the issuer is required to file quarterly reports for these quarterly periods. The Staff would not object if the issuer files a Form 10-Q for the completed quarterly period, or two Forms 10-Q if financial statements for more than one quarterly period were not included in the Form 1‑A, within 45 days after effectiveness of the Form 8-A.