SEC Staff Issues Guidance on Effectiveness of Form S-3 After Filing Form 10-K but Prior to Filing Part III Information
On March 20, 2025, the U.S. Securities and Exchange Commission (SEC) staff issued a set of Compliance & Disclosure Interpretations (C&DIs). In particular, SEC staff revised or withdrew several C&DIs to allow all Form S-3s, not just Form S-3ASRs, to be filed and declared effective after filing the Form 10-K but prior to filing the proxy statement containing Part III information.
Securities Act Forms Revised Question 114.05 and Securities Act Rules Revised Question 198.05 now state that a non-automatically effective Form S-3, in addition to a Form S-3ASR, may be filed and declared effective after an issuer has filed its Form 10-K but prior to filing the Part III information that will be incorporated by reference into the Form 10-K. These C&DIs still caution issuers that they 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to be included therein by Securities Act Section 10(a) and Schedule A. Securities Act Forms Question 123.01 was withdrawn, which had stated that in order to have a complete Section 10(a) prospectus, a registrant filing a non-automatically effective Form S-3 had to either file its proxy statement containing Part III information or include Part III information in its Form 10-K before the Form S-3 was declared effective. Regulation S-K Revised Question 117.05 was revised to update a related cross-reference.
The new guidance regarding effectiveness of Form S-3 may make it easier for non-WKSI Form S-3 issuers to raise capital now that they can proceed with offerings after filing their Form 10-K but prior to filing their proxy statement.
In addition, SEC staff added a new C&DI, Exchange Act Forms New Question 110.10. This new C&DI states that disclosure about a change in accountant that otherwise satisfies the requirements of Item 16F(a) of Form 20-F but has been included in a Form 6-K may be considered “previously reported,” such that it does not need to be included in Form 20-F.
