Review of Registration Statements A registration statement filed by a company for an offering of securities is subject to review by the SEC before the offering can commence. Note that the discussion below does not extend to automatic shelf registration statements and registration statements on Form S-8 as these registration statements automatically become effective. Review of S-11 For a company’s initial Securities Act registration statement, the company may confidentially submit its draft registration statement (“DRS”) for Staff review provided that the company confirms in a cover letter that it will publicly file the registration statement and nonpublic draft submissions at least 15 days prior to any road show or the requested effective date of the registration statement. Once the DRS has been submitted, the Staff will determine whether the registration statement should be reviewed in depth, receive a limited review, or be cleared without review. The Staff usually determines within two to five business days after the date of the filing whether the DRS will be reviewed. If the Staff decides not to review, they can make the S-11 effective within 48 hours after notifying the registrant of their decision not to review. However, it is rare that an initial registration statement would not be reviewed by the Staff. Full review of the S-11 entails a thorough review of the registration statement by an examiner and a staff accountant. The examiner reviews all aspects of the registration statement other than the accounting aspects while the staff accountant reviews the financial statements and accounting-related issues. The Staff generally tries to issue an initial comment letter within 30 days of the date of the initial confidential submission or public filing. Review of S-3 A Form S-3 registration statement is a short-form registration statement available to eligible companies. To be able to use Form S-3, a registrant must: ■ Be organized under the laws of the United States; ■ Have a class of securities that is registered pursuant to Section 12(b) or 12(g) of the Exchange Act; ■ Have been subject to Section 12 or 15(d) of the Exchange Act for the past 12 months and has filed all Exchange Act filings required to be filed for at least the past 12 months; ■ Have timely filed all Exchange Act reports required to be filed during the past 12 months and any portion of the month before filing the registration statement, including the registrant’s: ■ Proxy statement or information statement; and ■ Reports on Form 10-K, Form 10-Q and, with limited exceptions, Form 8-K. When a Form S-3 registration statement is filed, the Staff will first screen the Form S-3 to ensure the registrant’s eligibility to use the form. Once the registrant is confirmed to be eligible to use Form S-3, similar to other registration statements, the Staff will determine whether the registration statement should be reviewed (and, if so, whether the filing will be subject to a full or a limited review). The Staff’s decision typically will be relayed to the registrant within two to five business days. Unlike long-form registration statements on Form S-11, the Staff is much more likely to decide not to review a Form S-3. A Comparative Analysis of 2022 and 2023 SEC Comments Issued to REITs | 2
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