Question: Under Rule 401(b), if an amendment to a registration statement is filed to satisfy Securities Act Section 10(a)(3), the form and contents of the amendment must conform to the applicable rules and forms as in effect on the filing date of the amendment. For example, if an issuer is no longer eligible to use Form S-3 for a primary offering at the time it files its Form 10-K that acts as a Section 10(a)(3) update, the issuer must file a post-effective amendment or new registration statement to convert the Form S-3 registration statement onto a form that the issuer is then eligible to use in order to continue offers and sales. If a well-known seasoned issuer with an effective automatic shelf registration statement will no longer be a well-known seasoned issuer at the time of filing its Form 10-K, it will no longer be eligible to rely on General Instruction I.D to Form S-3. If that issuer will remain eligible to conduct primary offerings under General Instruction I.B.1 or I.B.2 of Form S-3, may the issuer continue to offer and sell securities off of its automatic shelf registration statement pending the effectiveness of the post-effective amendment that the issuer will file in order to convert the registration statement from an automatic shelf registration statement on Form S-3 filed in reliance on General Instruction I.D to a non-automatic shelf registration statement on Form S-3 filed in reliance on General Instruction I.B.1 or I.B.2?
Answer: Yes. In this situation, the issuer may continue to offer and sell securities using the automatic shelf registration statement, but only if, prior to filing the Form 10-K, the issuer amends the automatic shelf registration statement so that it conforms to the requirements that apply to a Form S-3 filed in reliance on General Instruction I.B.1 or I.B.2. Specifically, the following conditions must be satisfied:
At least promptly after the Form 10-K is filed, the issuer must file either a post-effective amendment using EDGAR submission type POS AM or a new Form S-3 registration statement using EDGAR submission type S-3 to convert the Form S-3 to the proper EDGAR submission type for a non-automatic shelf registration statement. Pending the effectiveness of the filing, the issuer may continue to offer and sell securities using the amended automatic shelf registration statement.
