SEC Staff Reverses Unannounced Position Regarding Use of Form S-3 by Former SPAC

As we previously reported, in May 2010 the SEC staff applied an unannounced, recently-adopted policy to prohibit a former special purpose acquisition company (SPAC) from conducting an offering on Form S-3, because it had not been an operating company for at least 12 months. Instead of the abbreviated Form S-3, this company was required to file on Form S-1, which prevented registration with the SEC for periodic “from-the-shelf” offerings and necessitated a “one-off” registration for its primary financing.

Following both the closing of the offering and an internal review of this new policy, the staff advised us that it ultimately decided it would not issue a C&DI (Compliance and Disclosure Interpretation) regarding this interpretation and would not apply the policy to future filings by any company.

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