Certain Investment Grade Debt Issuers Would No Longer Qualify to Use Shelf Registration Statements Under SEC's Proposed Amendments

February 9, 2011

In response to requirements in the Dodd-Frank Wall Street Reform and Consumer Protection Act, the SEC issued proposed rules today that would revise the Form S-3 and Form F-3 transaction eligibility criteria so that issuers of non-convertible debt securities could no longer qualify to use Form S-3 and Form F-3 by issuing investment grade securities.  This transaction criterion would be replaced with a new transaction criterion which would allow companies to use Form S-3 or Form F-3 to register primary offerings of non-convertible securities if the company has issued, for cash, more than $1 billion in non-convertible securities, other than common equity, through registered primary offerings over the prior three years and meets the registrant requirements.  This is modeled on the standard used to determine whether a company that does not meet the public equity float requirement qualifies as a well-known seasoned issuer ("WKSI") based on its debt issuances.


To be eligible to file short-form registration statements on Form S-3 or Form F-3, a company must meet (1) registrant requirements (for example, a company must have been a reporting company for at least a year and be timely in meeting these reporting requirements), and (2) at least one of several alternate transaction requirements.  Companies can currently meet these transaction requirements by primarily offering, for cash, non-convertible securities that are rated investment grade.  Companies often rely upon this transaction requirement to establish their Form S-3 or Form F-3 eligibility for issuances of corporate debt when they do not meet the alternate transaction requirement that they have at least $75 million in common equity held by unaffiliated shareholders.  The proposed rules would not change this $75 million threshold or the registrant requirements, and so will generally only impact investment grade issuers that do not have publicly traded equity.


The proposed rules issued today are effectively a reissuance of a substantially similar proposal issued by the SEC in 2008 but never finalized.  Many commenters opposed the 2008 proposal on the basis that it set too high a threshold and would reduce the number of issuers eligible to use shelf registration statements for primary debt offerings. (See the Davis Polk comment letter on the 2008 proposal expressing these concerns here).  At today's open meeting, SEC Commissioners and staff recognized these concerns and urged commenters to suggest an alternate Form S-3 and Form F-3 transaction eligibility criterion.  Although Dodd-Frank requires the SEC to remove references to credit ratings in their rules and forms it does not set out alternate standards.


Comments on the proposed rules are due by March 28, 2011.


See the SEC's Press Release and Fact Sheet Providing an Overview of the Proposed Rules


If you have questions regarding this newsflash, please call any of the lawyers listed below or your regular Davis Polk contact.

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Joseph A. Hall212 450
Michael Kaplan 212 450 4111
Richard D. Truesdell, Jr. 212 450
Richard J. Sandler212 450
Janice Brunner212 450


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