On March 20, 2025, the staff of the Division of Corporation Finance (the “Staff”) of the U.S. Securities and Exchange Commission (the “Commission”) made a number of changes to the Division’s Compliance and Disclosure Interpretations. For the second time in a month, the Staff revised or withdrew certain CDIs, notably including new guidance allowing any company (WKSI and non-WKSI) to file and take a registration statement on Form S-3 effective after the filing of its Form 10-K but before the filing of its proxy statement, and easing certain disclosure requirements for foreign private issuers.
New Form 20-F CDI
The Staff published new Exchange Act Forms CDI 110.10, clarifying that the requirement in Item 16F(a) of Form 20-F to disclose any change in a registrant’s certifying accountant, unless such information has been “previously reported,” as defined in Exchange Act Rule 12b-2, can be satisfied if the information is disclosed in a Form 6-K. In other words, the information need not be “filed,” but can be “furnished,” and will still satisfy the requirement of being “previously reported” in, among other things, a report under Exchange Act Sections 13 or 15(d). This is consistent with guidance the Staff provided in 2023 and with current market practice.
Effectiveness of Form S-3 Between Filing a Form 10-K and Filing a Proxy Statement
The Staff revised a single piece of guidance appearing in two CDIs, Securities Act Forms CDI 114.05 and Securities Act Rules CDI 198.05. The revised language clarifies that a registrant may file an automatically effective Form S-3ASR or the Staff can declare effective a non-automatically effective Form S-3 during the time period between the filing of an issuer’s Annual Report on Form 10-K and the filing of Part III information regarding directors and officers, to be incorporated by reference from the issuer’s definitive proxy statement. In this situation, registrants are responsible for ensuring that any prospectus used in connection with a registered offering containsall information required in a Section 10(a) prospectus. Because Form S-3 provides for forward incorporation by reference of filings under the Securities Exchange Act of 1934, the offering statement is considered to include the information included in the proxy statement, when filed, and will be considered a complete Section 10(a) prospectus.
The Staff also withdrew Securities Act Forms CDI 123.01, which provided guidance on the same topic and required that, in the case of a non-automatic shelf registration statement on Form S-3, the issuer must either file the definitive proxy statement before the Form S-3 is declared effective or include the Part III information in the Form 10-K. In contrast, the revised CDIs provide that any Form S-3 may be declared effective during the time period between filing the Form 10-K and filing the proxy statement; however, the issuer cannot move forward with an offering with incomplete information (noting again that Form S-3 provides for forward incorporation by reference of the information in the proxy statement).
In addition, Regulation S-K CDI 117.05 was revised to refer to Securities Act CDI 114.05 as opposed to withdrawn CDI 123.01 to address the situation in which a company requests effectiveness for a non-automatic shelf registration statement on Form S-3 during the period between the filing of the Form 10-K and the definitive proxy statement.
Withdrawn CDIs on Form F-SR
The Staff withdrew three CDIs related to disclosure on Form F-SR. Disclosure of share repurchases by foreign private issuers on Form F-SR was first required under rules adopted by the Commission in May 2023. In December 2023, the Fifth Circuit Court of Appeals vacated the rules, and, as such disclosure on Form F-SR was no longer required and the CDIs no longer relevant.
Read the updated CDIs here.
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