A. This period of time would ordinarily mean 365 days (366 days in a leap year), but for purposes of Form S-3 eligibility means something quite different.

Q. What is 12 calendar months?

To be eligible to file a registration statement on Form S-3, an issuer must, among other things, have been subject to Exchange Act reporting requirements and filed all of the required reports for a period of at least 12 “calendar months” immediately before the Form S-3 filing (see General Instruction I.A.3 of Form S-3). The SEC Staff interprets the 12-month requirement to mean a period equal to 12 completed calendar months, running from the effective date (not the filing date) of your initial registration statement. See C&DI 115.14. Therefore, if an IPO registration statement went effective on July 15, 2010, the issuer would not be S-3 eligible until August 1, 2011, assuming all other requirements are met. (It also could not qualify to be a WKSI before August 1, 2010, because WKSI status depends in part on S-3 eligibility.)

Generally, a voluntary filer would not be considered “subject to” Exchange Act reporting for these purposes. But an issuer that continues to file Exchange Act reports voluntarily even though it is no longer required to do so may be able to take advantage of its entire reporting history for determining S-3 eligibility. See C&DI 115.15 and the Lamar Advertising Co. no-action letter (avail. Nov. 18, 1996). This could be the case, for example, for a debt-only issuer that did a registered A/B exchange offer, and later had fewer than 300 holders of its debt (meaning that its obligation to file reports was automatically suspended by virtue of Exchange Act Section 15(d)).

A. Everyone may be a critic, but only certain people have views on this type of artwork

Q. What is prospectus cover art?

Despite the old maxim “there is no disputing about taste,” the SEC Staff cares about the artwork in your red herring. Remember that the SEC Staff routinely makes the comment, usually in the initial stages of the comment process, that they reserve the right to comment on any artwork that you may include in your prospectus.

The SEC Staff has stated that their comments on artwork typically reflect the following concerns:

• The graphics must accurately reflect the current business (e.g., artwork depicting shiny happy people clustered around the HAL 9000 computer may generate a comment seeking confirmation that the featured people or equipment are, in fact, the issuer’s);
• The text in the graphics must adhere to plain English principles; and
• The graphics must not detract from other prospectus disclosure (e.g., they must not be too confusing or obscure).

See Section VIII of the SEC Staff’s 2001 Current Issues and Rulemaking Projects Quarterly Update (acknowledging potentially significant reprinting costs if comments are not addressed before printing, and indicating that the SEC Staff will review proposed graphic presentations as soon as they are available).

That said, it’s good practice to ensure that your examiner has no further artwork comments before you push the button on the reds, and to keep the SEC Staff’s concerns in mind when preparing graphic presentations for prospectuses

A. In certain of these situations, an issuer can avoid paying additional filing fees by using an immediately effective registration statement under Rule 462(b)

Q. What are upsizing scenarios?

Let’s say you have a deal in which you originally filed your registration statement under Rule 457(o) and paid fees on an aggregate deal size of $100 million. You then went effective on a fee table under Rule 457(a), reflecting a number of shares and price implying a deal of $90 million. If you decide at pricing to upsize to $100 million by increasing the number of shares, you will need to file an immediately effective registration statement under Rule 462(b) to register the share increase. (If you’ve read our upsizing/downsizing client alert you will know that you do not need to file a Rule 462(b) registration statement if you are increasing only the price and not the number of shares in this scenario – that’s the beauty of switching to Rule 457(a) before you print reds.)

So far, so good. But the next question you face is whether you need to pay a filing fee to cover the new shares, bearing in mind that you have already paid fees on a $100 million deal. Can you carry those previously paid fees over to the new registration statement?

The answer is “yes,” but you will have to coordinate with the right office in the Division of Corporation Finance (in particular, its Information Technology Office, whose contact information is here) to make sure your filing does not get bounced for lack of payment of the fee. If you find yourself in that situation, let’s talk.

Note that this situation, upsizing a deal, is distinguishable from other situations in which you might be tempted to use filing fees paid for a previously filed registration statement, such as in the case of a fee balance from an unused registration statement. In those cases, you look to Rule 457(p), which applies when securities on a registration statement remain unsold after the offering’s completion or termination, or withdrawal of the registration statement. (If you are moving securities from an expiring shelf registration statement, you will need to consult Rules 415(a)(5) and (6) as well.)