Yesterday, in addition to noting its backlog includes 900 registration statements, Corp Fin posted this list of 9 “reopening” FAQs, which can be summarized as follows:
- Removal of delaying amendment not required: No — you do not need to go back and add a delaying amendment simply because the Division’s status changed. If you removed the delaying amendment or filed without one, the registration statement becomes effective after the 20?day period under Section?8(a) of the Securities Act and Rule?459. Also, the usual liability/antifraud obligations under the federal securities laws apply.
- Omission of Rule 430A information: Yes — Corp?Fin says it will not recommend enforcement action if during the shutdown you omitted the Rule?430A specified items and your registration statement becomes effective by operation of law under Section?8(a)/Rule?459.
- Requesting effectiveness even if filed with delaying amendment: Yes — the staff will consider requests for acceleration of effectiveness in that scenario, if you amend the registration statement to include a delaying amendment before the end of the 20?day test?period and acceleration of effectiveness under Rule?461 is appropriate.
- Post-effective amendments don’t need an effectiveness request: No — the staff will declare those amendments effective unless you tell them you want to delay the effective date. It’s advisable to contact your assigned industry office if you wish to delay.
- Preliminary proxies where 10 days has run without hearing from the Staff: Yes — you may file the definitive materials as you would be able to under normal circumstances. However: if the staff had indicated a plan to review your filing prior to the shutdown, that review will continue.
- Form 10’s automatic effectiveness: Yes — if the Form 10 was filed under Section 12(g), it will go effective automatically after 60 days. Once it goes effective, the issuer will be subject to current and periodic reporting under the Exchange Act. The staff may review subsequent periodic reports.
- “No review” of a registration statement communicated by Staff before shutdown: Yes — you may submit an acceleration request when ready now that Corp Fin is back processing filings.
- Registration statement filed before shutdown: The staff will continue to review those filings in the order in which they were received.
- Registration statement filed during shutdown with a delaying amendment: Yes — the staff will process filings made while closed in the order received. Also, draft submissions made while the Division was closed will be reviewed in the order received.
And Cooley’s Reid Hooper adds this FAQ to the mix about the timing of registration statement reviews: “The timing for the review of filings made during the shutdown should be the same for initial reviews (27-30 days) and they will be processed in the order received. We should not expect the initial review timeline to change.
What is likely happening right now is that the staff is trying to clear out all of the POS Ams, S-3s, resale S-1s (the ones with delaying amendments included) to try and get those effective as soon as possible. Then turn to the IPO DRS filings and amendments to S-1/F-1 that include delaying amendments and begin the clearing out of the back up. I imagine Corp Fin feels pressure to move quickly to get those reviews that have been sitting around for a while, but again, they have 900 registration statements to either process or clear off of their system. So it will take some time.
For pending reviews, since yesterday and today is likely being used by the staff to get organized and plan ahead for how to process everything, it might be wise to give the staff a day or so to get back into the swing of things and then call any examiners handling your filings sometime early next week and just see where things stand and if they can provide any update on the status of the filings to which they have been assigned.”
Authored by
Broc Romanek