Certain Shelf Registration Statements to Expire December 1, 2008

Issuers who have shelf registration statements that were effective prior to December 1, 2005 should take action immediately, if they have not already done so, to determine whether these registration statements expire on December 1, 2008 and to file replacement registration statements before that date. Beginning on December 1, 2008, under securities offering reform rules adopted by the U.S. Securities and Exchange Commission (SEC) in 2005¹, certain shelf registration statements filed under the Securities Act of 1933 (Act) will expire three years after their initial effective date. For shelf registration statements that were effective prior to December 1, 2005 (regardless of the dates that the registration statements were actually declared effective), the three-year period expires on December 1, 2008.²

Issuers who have expiring non-automatic shelf registration statements may take advantage of a 180-day grace period for expiring registration statements, if they file a replacement registration statement before the expiration date of the existing effective registration statement. Registration statements declared effective before December 1, 2005 will qualify for this grace period, if replacement registration statements are filed before December 1, 2008.

Registration Statements Subject to the Three-Year Expiration
Pursuant to Rule 415(a)(5) of the Act, the three-year expiration provision only applies to certain registration statements, including:

• All automatic shelf registration statements filed under the securities offering reform rules, which are available to issuers that qualify as “well-known seasoned issuers”
• Registration statements on Form S-3 or Form F-3 registering securities on an immediate, continuous, or delayed basis by or on behalf of the issuer or certain majority-owned subsidiaries of the issuer
• Registration statements covering continuous offerings such as direct stock purchase plans open to new investors
• Registration statements registering offerings of mortgage-backed securities, including mortgage-backed debt and mortgage participation or pass-through certificates

The three-year expiration provision does not apply to the following commonly used registration statements:

• Resale registration statements (other than automatic shelf registration statements) covering offerings by selling security holders
• Registration statements on Form S-8 registering securities sold pursuant to an employee benefit plan
• Registration statements (other than automatic shelf registration statements) registering the issuance of securities upon the exercise of outstanding options, warrants, or rights or the conversion of other securities
• Registration statements (other than automatic shelf registration statements) registering securities sold pursuant to a dividend reinvestment plan that does not have a direct stock purchase feature open to new investors

Grace Period for Expired Registration Statements
For issuers not eligible to use (or not electing to use) an automatic shelf registration statement, a registration statement may continue to be used for a limited time period after its three-year expiration date, if the issuer has filed a new registration statement covering the securities offered by the expired registration statement before the expiration date, in two different scenarios as follows:

• An issuer can continue to offer and sell securities covered by the expired registration statement until the earlier of 180 days after its expiration or the date the new registration statement becomes effective
• In the case of a continuous offering of securities that began within three years of the effective date of the prior registration statement, an issuer may continue to offer and sell the securities covered by the prior registration statement until the effective date of the new registration statement, if the offering is covered by the new registration statement

Carrying Over Unused Fees From Expired Registration Statements
Pursuant to Rule 457(p) of the Act, any issuer filing a new shelf registration statement may carry over unused filing fees from a prior shelf registration statement so long as the new registration statement is filed within five years of the initial filing date of the prior registration statement. To carry over an unused filing fee, the issuer should add a note on the bottom of the facing page of the new registration statement indicating the unused filing fee paid in connection with securities from the prior registration statement, the file number of the prior registration statement, the name of the issuer, and the initial filing date of the prior registration statement.

Companies Should Take Action Now
With many current shelf registration statements scheduled to expire beginning December 1, 2008, companies must take action now to determine whether they have expiring shelf registration statements that need to be replaced by that date and file any new required registration statements, taking into account the time needed for review by third parties such as accountants as well as for possible SEC staff review, which may delay the effectiveness of non-automatic registration statements. Companies that have shelf registration statements declared effective after December 1, 2005 also should begin this review process now to allow sufficient time to prepare and file any new required registration statements. In addition, issuers with expiring automatic shelf registration statements should look closely at eligibility requirements for well-known seasoned issuers, which include a $700 million market float requirement within 60 days prior to filing. Recent stock market declines may result in some issuers losing their eligibility to use automatic shelf registration statements.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and colleagues.

If you have any questions about this alert or would like to discuss the topic further, please contact your Foley attorney or the following individuals:

Linda Y. Kelso
Jacksonville, Florida
904.359.8713
[email protected]

John K. Wilson
Milwaukee, Wisconsin
414.297.5642
[email protected]

John J. Wolfel, Jr.
Jacksonville, Florida
904.359.8778
[email protected]