On January 27, 2019, the Division of Corporation Finance (the “Division”) of the U.S. Securities and Exchange Commission (the “SEC” or the “Commission”) provided guidance for issuers regarding the approach that the Division will take in processing filings, submissions and other requests for action by the Division’s staff (the “Staff”). In general, the Staff plans to address such matters in the order that the items were received, absent compelling circumstances. This guidance was posted on the Division’s page on the SEC’s website.
During the partial government shutdown, the SEC was generally prohibited from engaging in normal operations, subject to certain exceptions, due to the Antideficiency Act (the “Act”). The Act prohibits federal agencies from entering into obligations or expending federal funds in advance or in excess of an appropriation, and from accepting voluntary services. An important exception to the restrictions in the Act is when a situation involves an “emergency involving the safety of human life or the protection of property,” which allowed some Staff to continue certain functions on an emergency basis. In guidance published on the Division’s page of the SEC’s website prior to the shutdown (and updated on January 10, 2019), the Staff noted that, during the shutdown, personnel were able to answer questions sent to [email protected] only about: (i) filing fee calculations and (ii) emergency relief regarding filings or other federal securities law matters. Further, during the shutdown, the Staff was not able to declare registration statements effective under the Securities Act of 1933, as amended (the “Securities Act”) or under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or qualify Form 1-A offering statements under Securities Act Regulation A. During the shutdown, the Staff was also not able to:
- issue comment letters on transactional filings and periodic reports or consider responses submitted by issuers to the Staff’s comment letters;
- consider no-action, interpretive and exemptive requests (including no-action requests under Exchange Act Rule 14a-8);
- grant requests for confidential treatment of portions of exhibits pursuant to Securities Act Rule 406 or Exchange Act Rule 24b-2;
- advise issuers of the review status of Securities Act and Exchange Act registration statements, Form 1-A offering statements and preliminary proxy materials;
- consider requests for relief from the requirement to provide certain financial statements under Rule 3-13 of Regulation S-X;
- consider requests for relief from Form S-3 eligibility requirements;
- consider EDGAR filing date adjustments and other EDGAR-related relief;
- consider rulemaking actions for recommendation to the Commission;
- provide interpretive and other advice to issuers; and
- conduct the other normal operations of the Division.
During the shutdown, issuers were able to continue to make EDGAR filings because EDGAR operates under a continuing contract that was not affected by the lapse in appropriations. In addition, filers were able to submit Form ID and thereby receive EDGAR codes, and filer support personnel were available to perform password resets, and answer questions about fee-bearing EDGAR filings. The SEC continued to accept comment letters on rule proposals and concept releases during the shutdown, but the posting of such letters to the SEC website was delayed. The SEC continued to process incoming mail and courier deliveries during the shutdown, and the Division’s online portal for receiving interpretive inquiries, no-action requests, Rule 3-13 relief requests and other correspondence remained in operation during the shutdown.
Given that the SEC has not been conducting normal operations for the past month but has continued to receive submissions from issuers and others, it is expected that the Staff will need to work through a significant backlog of matters as expeditiously as possible. The Staff’s latest guidance addresses the Staff’s approach to address this backlog.
The guidance notes that Staff members in the Division are available to answer questions relating to filings and other federal securities law matters, but their response time may be longer than what could be expected under normal circumstances. The guidance notes that, if an issuer requires assistance on an expedited basis, the request, the contact information of the person submitting the request and the reason for expedited treatment should be submitted to [email protected] All other inquiries should be submitted by normal channels, including contacting the review Staff in an issuer’s Assistant Director Office or submitting requests for guidance or assistance through the Division’s web portal.
The Division also notes that the Staff has received a number of other requests for guidance or regulatory relief during the lapse in funding, and response times may be longer than usual. If one of these requests has become more urgent, the Staff asks that the requestor contact the Staff through [email protected] Otherwise, the Staff will generally respond to all requests in the order that they were received.
Securities Act Registration Statements
Securities Act Section 8(a) provides that a registration statement goes effective on the 20th day after filing with the SEC, while, under Securities Act Section 8(c), a post-effective amendment to a registration statement only goes effective on a date that the Commission determines. This principle is subject to certain exceptions pursuant to SEC rules, such as when a registration statement or post-effective amendment to a registration statement goes effective automatically. Pursuant to Securities Act Rule 473, registration statements are usually filed with a delaying amendment, which automatically delays the running of the above-referenced 20-day period until: (i) the registration statement is amended to specifically state that the registration statement shall thereafter become effective in accordance with Securities Act Section 8(a); or (ii) when the SEC declares the registration statement effective.
Prior to the shutdown, the Staff provided guidance to issuers regarding how they may proceed with a registered offering during the shutdown, even without the benefit of Staff review and a determination to declare a registration statement effective. The Staff noted that if an issuer wished to file a registration statement that it wanted to go effective within the 20-day period specified in Section 8(a), or if an issuer had a pending registration statement that it wanted to go effective within the 20-day period, then the registration statement must include the statement required by Rule 473(b), such as: “This registration statement shall hereinafter become effective in accordance with the provision of section 8(a) of the Securities Act of 1933.” The Staff indicated that an issuer could go down this route even if the issuer had outstanding comments on the registration statement, but that the issuer was ultimately responsible for its disclosure, and the Staff may ask that the issuer amend the registration statement to include a delaying amendment when the shutdown ended.
Registration statements that are not declared effective but rather go effective by lapse of time are not able to rely on Securities Act Rule 430A, because Rule 430A applies to a “form of prospectus filed as part of a registration statement that is declared effective” (emphasis added). This means that issuers seeking to conduct an underwritten fixed price initial public offering or a follow-on offering are not able to include the pricing information after the registration statement is effective, because Rule 430A is not available. Nonetheless, at least one issuer contemplating that type of offering removed the delaying amendment during the shutdown. Issuers also removed delaying amendments from registration statements contemplating other types of offerings, such as SPACs, rights offerings and resale offerings.
In its post-shutdown guidance, the Division notes that the Staff will consider requests to accelerate the effective date of a registration statement that previously had the delaying amendment removed if the issuer amends the registration statement to include a delaying amendment prior to the end of the 20-day period and acceleration is appropriate. The Division also notes that, in cases where the Staff believes that it would be appropriate for an issuer to amend a registration statement to include a delaying amendment, the Staff will notify that issuer. The Division again reminded issuers that Rule 430A is only available with respect to registration statements that the Staff declares effective and is not available to registration statements that go effective as a result of the passage of time.
In order to add the delaying amendment back to a pending registration statement, an issuer must file a pre-effective amendment to remove the Rule 473(a) language and replace it with the Rule 473(b) language noted above. Filing a pre-effective amendment to a registration statement at this time of year can present challenges from a disclosure standpoint, particularly for issuers with a calendar year-end. Generally, in the Form S-1 context, an issuer including all of the information in the body of the Form S-1 would be expected to update all of the information in the Form S-1 to reflect current information or information as of December 31, as required by the form and applicable Regulation S-K item, other than the financial statements which are governed by the age of financial statement requirements in Regulation S-X. This would include, for example, information about executive compensation, consistent with the Staff’s guidance in Regulation S-K Compliance and Disclosure Interpretation 217.11. The same principle would also apply in the context of an issuer that is incorporating information by reference into a Form S-1, given that in order to be eligible to incorporate by reference, an issuer must have filed its annual report required under Section 13(a) or Section 15(d) of the Exchange Act for the most recently completed fiscal year pursuant to General Instruction VII.C to Form S-1. As a result of these considerations, an issuer may need to make significant changes to the information included registration statements that were filed prior to the commencement of the shutdown.
Shareholder Proposal No-Action Requests
As a result of the limits on the SEC’s operations during the shutdown, the Staff was not able to respond to Rule 14a-8 no-action requests. Even now that the SEC has reopened, there is likely to be a significant backlog of shareholder proposal no-action requests because the bulk of such requests for calendar year-end issuers are submitted in late December and early January. The backlog could potentially impact processing times throughout the proxy season, which could make it difficult for an issuer to get a response from the Staff on a no-action request prior to the issuer’s mailing deadline for the definitive proxy materials.
During the shutdown, issuers were considering what options they would have if a Rule 14a-8 no-action request is pending with the Staff and no response is forthcoming when the issuer is ready to mail the definitive proxy materials. These options included:
- running the proposal in the proxy statement (being sure to send the statement in opposition to the proponent 30 days before the mailing, notwithstanding the status of the no-action request);
- negotiating with the proponent to try to get the proponent to withdraw the proposal (being sure to send a notice of withdrawal to the Staff if the proposal is withdrawn);
- relying on the no-action request as the required Rule 14a-8(j) notice and proceeding to federal court to get a declaratory judgment that the proposal can be excluded under Rule 14a-8; or
- relying on the no-action request as the Rule 14a-8(j) notice and excluding the proposal (or portions of the proposal) from the proxy statement.
The Division states in its guidance that the Staff generally expects to respond to Rule 14a-8 no-action requests in the order that they have been received. The Staff recognizes that issuers may have impending print deadlines or that negotiations may have changed the need for the Staff’s views. The Division requests that issuers notify the staff at [email protected] as soon as possible regarding any timing constraints or changes in circumstances that could help the Staff prioritize the responses.
Preliminary Proxy Statements
An issuer that is obligated to file a preliminary proxy statement under Exchange Act Rule 14a-6(a) must wait for the ten days specified in the rule to pass before filing and mailing definitive proxy materials. If an issuer is not advised by the Staff that the preliminary materials are going to be reviewed during the 10-day period, then an issuer can proceed with filing the definitive materials (even if the Staff is not at the SEC to review the preliminary materials, as was the case during the shutdown). With the SEC now reopened, it is possible that issuers with the 10-day period currently running could be contacted by the Staff concerning a review of the preliminary materials.
Staff Comment Letters and Issuer Responses
The Division’s guidance did not specifically address the Staff’s approach to comment letters and issuer’s responses to the Staff’s comment letters. As the Form 10-K filing season approaches, issuers will be interested in resolving any outstanding comments that could influence accounting or disclosure considerations for the upcoming filing. Consistent with the rest of the Division’s guidance, we expect that the Staff will consider issuer responses to outstanding comments and determine whether to issue more comments based on the order in which comment responses were received.
Accelerated filers and WKSIs with outstanding comments may need to consider the applicability of the Form 10-K obligation to disclose material outstanding comments from the Staff. The disclosure requirement applies only to comments issued more than 180 days before the issuer’s fiscal year end (running from the date of the first comment letter that specifically raises the issue, which may be later than the date of the initial comment letter on the filing) that remain unresolved at the filing date, which, in normal circumstances, would provide issuers with sufficient time to address and resolve issues with the Staff.
The SEC has said that the disclosure must be sufficient to disclose the substance of those comments. Staff comments that have been resolved, including those that the Staff and issuer have agreed will be addressed in future Exchange Act reports, do not need to be disclosed. The SEC has also said that issuers can provide other information, including their position regarding any such unresolved comments.
The disclosure requirement, which does not arise that often for issuers given the time period contemplated by the rule, does include a materiality qualifier, so issuers do have flexibility in determining whether the disclosure is triggered based on the nature of the issue that remains outstanding with the Staff.
Issuers should carefully consider their plans with respect to registration statements, proxy materials and periodic filings, particularly given that it is possible that another shutdown could commence if an appropriations bill funding the SEC’s operations is not enacted prior to the current February 15, 2019 deadline. Given the uncertainty as to the timing of when the SEC’s operating status will change again, the Division’s pre-shutdown guidance is important to keep in mind. The Division suggested in its guidance that an issuer may want to submit a request for acceleration or qualification while the SEC is open and operating, if that issuer has a pending registration statement or Form 1-A offering statement on file for an offering or merger that needs to proceed in the near future. Issuers should consider whether it is appropriate, given the issuer’s particular circumstances, to contact the Staff to request action on an expedited basis or to wait for the Staff to address pending matters in the order that such matters were submitted to the Division.