On March 20, 2025, the SEC published several updates to its compliance and disclosure interpretations (“CD&I”) related to Forms S-3 and 20-F, and Regulation S-K. The new CD&I importantly allow all issuers, not just well-known seasoned issuers (“WKSIs”) to go effective on Form S-3 registration statements between the filing of a Form 10-K and the filing of the proxy statement containing Form 10-K Part III disclosures.
Earlier, on February 11, 2025, the SEC published one revised and one new CD&I related to Section 13 filings on Schedules 13D and 13G.
Form S-3/Securities Act Rules
Revised CD&Is 114.05 and 198.05 confirm that a Form S-3 ASR and a non-automatically effective Form S-3 may be filed and declared effective after a company files its Form 10-K but prior to filing its Part III information in either a proxy statement or amended Form 10-K. However, the SEC notes that companies are responsible for ensuring that any prospectus used in connection with a registered offering contains the information required to be included in a Section 10(a) prospectus.
Regulation S-K
Revised CD&I 117.05 confirms that executive compensation disclosure as required by Item 402 of Regulation S-K must be updated in a Form S-1 registration statement filed on or after the first day of a registrant’s fiscal year (January 1st for calendar year filers) to include the most recent completed fiscal year end, prior to being declared effective. For instance, if a company with a December 31, 2024, fiscal year end files or amends a pre-effective Form S-1 on or after January 1, 2025, that Form S-1 must include completed Item 402 executive compensation disclosures for fiscal year end December 31, 2024, prior to being declared effective.
On the other hand, in conformity with revised CD&I 114.05, if the registration statement is on Form S-3, it need not include the updated disclosure, as Form S-3 forward incorporates by reference and will automatically be updated by the filing of an annual report on Form 10-K, and subsequent proxy statement.
Exchange Act Forms
New CD&I 110.10 confirms that a filed 6-K is adequate disclosure of a change in a foreign private issuers (FPI’s) certifying accountant. In particular, a change in a certifying public accountant is required to be disclosed in an annual report on Form 20-F unless previously disclosed in a filed Exchange Act report. Even though a Form 6-K is “furnished” not “filed,” the disclosure will satisfy the Form 20-F disclosure obligation. Form more on Form 6-K see HERE and for more on “furnished” vs “filed” see HERE.
Section 13
Revised CD&I 103.11 confirm that a filer is not disqualified from filing a Schedule 13G in lieu of a Schedule 13D merely because that same filer would be disqualified from relying on certain notice and waiting period provisions in the Hart-Scot-Rodino Act (the anti-trust act requiring FTC approval of certain large mergers). Rather, the question as to whether a filer may utilize a Schedule 13G depends on whether the shareholder acquired or is holding the subject securities with the purpose or effect of changing or influencing control of the company, which in turn requires an analysis of all the facts and circumstances. For more on Section 13 see HERE and HERE.
New CD&I 113.12 drills down on the circumstances that would support a finding that a shareholder has the “purpose or effect of changing or influencing control of the issuer” when it engages in communications with management, thus requiring the filing of a Schedule 13D instead of a 13G.
In particular, the determination of whether a shareholder acquired or is holding the subject securities with a purpose or effect of “changing or influencing” control of the issuer is based on all the relevant facts and circumstances and will be informed by the meaning of “control” as defined in Exchange Act Rule 12b-2.
Like all analysis as to whether there is “control” under the securities laws, an analysis must include all facts and circumstances. However, when a shareholder is engaging with management, the topic of such engagement may be enough to trigger a finding that the shareholder is attempting to influence “control” over the management of the company. The new CD&I uses the examples of when a shareholder engages with management specifically to request a sale of the company or a significant amount of company assets, a restructuring of the company, or the election of directors other than those nominated by the company.
In addition to the subject matter of communications, context is also a highly relevant factor in the analysis. General discussions, including those about a shareholder’s views on management, generally will not tip the scales towards effecting “control” but a shareholder who goes beyond and exerts pressure on management to implement specific measures or changes in policy may be influencing “control.”
The new CD&I uses the examples of when a shareholder: (i) recommends that the issuer remove its staggered board, switch to a majority voting standard in uncontested director elections, eliminate its poison pill plan, change its executive compensation practices, or undertake specific actions on a social, environmental, or political policy and, as a means of pressuring the issuer to adopt the recommendation, explicitly or implicitly conditions its support of one or more of the issuer’s director nominees at the next director election on the issuer’s adoption of its recommendation; or (ii) discusses with management its voting policy on a particular topic and how the issuer fails to meet the shareholder’s expectations on such topic, and, to apply pressure on management, states or implies during any such discussions that it will not support one or more of the issuer’s director nominees at the next director election unless management makes changes to align with the shareholder’s expectations.
The Author
Laura Anthony, Esq.
Founding Partner
Anthony, Linder & Cacomanolis
A Corporate and Securities Law Firm
Securities attorney Laura Anthony and her experienced legal team provide ongoing corporate counsel to small and mid-size private companies, public companies as well as private companies going public on the Nasdaq, NYSE American or over-the-counter market, such as the OTCQB and OTCQX. For more than two decades Anthony, Linder & Cacomanolis, PLLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker-dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions, securities token offerings and initial coin offerings, Regulation A/A+ offerings, as well as registration statements on Forms S-1, S-3, S-8 and merger registrations on Form S-4; compliance with the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers; applications to and compliance with the corporate governance requirements of securities exchanges including Nasdaq and NYSE American; general corporate; and general contract and business transactions. Ms. Anthony and her firm represent both target and acquiring companies in merger and acquisition transactions, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. The ALC legal team assists Pubcos in complying with the requirements of federal and state securities laws and SROs such as FINRA for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the small-cap and middle market’s top source for industry news, and the producer and host of LawCast.com, Corporate Finance in Focus. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.
Ms. Anthony is a member of various professional organizations including the Crowdfunding Professional Association (CfPA), Palm Beach County Bar Association, the Florida Bar Association, the American Bar Association and the ABA committees on Federal Securities Regulations and Private Equity and Venture Capital. She is a supporter of several community charities including the American Red Cross for Palm Beach and Martin Counties, Susan Komen Foundation, Opportunity, Inc., New Hope Charities, the Society of the Four Arts, the Norton Museum of Art, Palm Beach County Zoo Society, the Kravis Center for the Performing Arts and several others.
Ms. Anthony is an honors graduate from Florida State University College of Law and has been practicing law since 1993.
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