Last Call Before S-3s Begin Expiring

As previously described in our Public Company Advisory "Shelf Registration Statements Begin Expiring in December" (July 14, 2008), some Form S-3 registration statements will begin to expire at the end of November under SEC Rule 415(a)(5), which limits the "shelf life" of some shelf registration statements to three years.

As a related issue, many companies' stock prices have fallen significantly. As a result, some companies that previously qualified as a Well-Known Seasoned Issuer ("WKSI") may soon fail to qualify as a WKSI and therefore become ineligible to use the automatically effective Form S-3ASR. Other companies that were previously eligible for unrestricted use of Form S-3 for primary offerings may soon fail to be eligible for such use. This alert summarizes the steps that should be taken to assess the need for action and the considerations that will apply if action must be taken.