Yes. Even though Form S-3 doesn’t specifically refer to the requirements of Regulation S-X, the SEC’s age of financial statements requirements in S-X 3-12 (S-X 8-08 for a smaller reporting company) are applicable to a registration statement on Form S-3. That means the financial statements incorporated by reference in the Form S-3 from previously filed Exchange Act reports may need to be updated to a more recent date before the Form S-3 is filed or becomes effective. This is true whether or not the Form S-3 is an automatic shelf registration statement. See Securities Act Forms CDI 223.01. See also SEC 4600 (including SEC 4600.41 for SEC staff guidance with respect to interim financial statements).

For example, a calendar year-end registrant would need to provide its December 31, 2022 audited financial statements in connection with a Form S-3 filed after February 14, 2023 unless it meets the requirements of S-X 3-01(c) (S-X 8-08(b) for a smaller reporting company). This is true even though the December 31, 2022 Form 10-K isn’t due until the 60th, 75th or 90th day after year end (depending on the issuer’s accelerated filer status).

Yes. If the financial statements incorporated by reference from the most recent Form 10-K do not reflect certain material events subsequent to the date of those financial statements, then they may need to be updated prior to filing the Form S-3. If the following financial statements or information are not included in the registrant's Exchange Act reports or in a prospectus filed in an effective registration statement incorporated by reference in the Form S-3, then Item 11(b) of Form S-3 requires the inclusion of revised financial statements or information in the Form S-3:

Although not listed in Item 11(b) of Form S-3, retrospectively adjusted annual audited financial statements prepared in accordance with Regulation S-X are required when a registrant changes its reportable segments (assuming the effect on the previously issued annual financial statements is material). See SEC FRM 13110.2.

Additionally, although not listed in Item 11(b) of Form S-3, stock splits and stock dividends also require retrospective presentation. Historically, the SEC staff has not required the retrospective adjustment of previously filed financial statements that are incorporated by reference into a registration statement or proxy statement for reasons solely attributable to a stock split or stock dividend. In lieu of revising the financial statements, the SEC staff has historically accepted inclusion or incorporation by reference of a summary or selected financial data table which includes revised per share information for all periods, with prominent disclosure of the stock split or stock dividend. See SEC FRM 13500.

The considerations outlined in SEC 2120.22 and .23 are in the context of filing a registration statement on Form S-3. There are different considerations associated with a shelf takedown.

For instance, the SEC staff has indicated that S-X 3-01 does not prevent a shelf takedown from occurring and would not apply to a prospectus supplement as it is not for purposes of updating the prospectus under Section 10(a)(3) of the Securities Act. See Securities Act Rules CDI 212.13 and SEC 4600.803.

Most Form S-3 registration statements include the undertaking specified in S-K 512(a)(1)(ii). Accordingly, when preparing to take securities off the shelf by means of a prospectus supplement, the registrant will consider whether there have been any facts or events arising after the effective date of the registration statement (or most recent post-effective amendment thereof) which, individually or in the aggregate, represent a "fundamental change" in the information set forth in the registration statement. If there have been one or more fundamental changes, the registrant would need to consider whether a post-effective amendment must be filed prior to the takedown. The determination of what constitutes a "fundamental change" is a legal matter.

Generally, registrants and their legal counsel have concluded that discontinued operations, segment changes, and changes in accounting principle do not represent "fundamental changes" to the information set forth in the registration statement. Accordingly, those registrants generally do not retrospectively adjust their prior period annual financial statements in connection with a takedown, even if they would have been required to do so in connection with a new or amended registration statement (e.g., because the effects of changes on the previously issued financial statements are material).

If the Form S-3 is registering securities (usually debt) that are guaranteed by one or more subsidiaries or a parent company, the guaranty is generally considered a security under US securities laws and, therefore, is also subject to the SEC's registration and reporting requirements. As a result, the Form S-3 may need to include or incorporate by reference additional information that was not previously required. See SEC 4530.

If the Form S-3 is registering securities that are collateralized by the securities of one or more of a registrant's affiliates (e.g., the stock of a consolidated subsidiary), then the Form S-3 may be required to include or incorporate by reference information that was not previously required. See SEC 4540.

Certain REITs offer and sell shares of common stock through offerings registered under the Securities Act, but the shares are not publicly traded. The SEC staff has indicated that a REIT whose shares are not traded in a public market would not be considered to have a "common equity public float" for purposes of determining its accelerated filer status or for determining whether it is eligible to use Form S-3.

See SEC 3145.14 for discussion of eligibility when a registrant has filed a Form 12b-25.

As discussed more fully in SEC 3130.912, General Instruction G(3) to Form 10-K permits a registrant to file its Form 10-K without the information required by Part III of that form and file that information no later than 120 days after year-end. The SEC staff has stated that it will not object to either the filing or use of an automatic shelf registration statement by an issuer which has filed its Form 10-K but has not filed the Part III information for that year. However, the SEC staff has stated that “issuers are responsible for ensuring that any prospectus used in connection with a registered offering contains the information required to be included therein by Securities Act Section 10(a) and Schedule A.” See Securities Act Forms CDI 114.05.

Registrants that are not eligible to use an automatic shelf registration statement are usually not allowed to use the accommodation discussed in Securities Act Forms CDI 114.05. As such, issuers should discuss the need to file Part III of Form 10K before the registration statement is declared effective by the SEC with legal counsel.

The filing of an annual report on Form 10-K triggers a new determination date for well-known seasoned issuer status. If an issuer no longer meets the definition of a well-known seasoned issuer on the date it files its annual report on Form 10-K, then it would generally not be able to use a previously filed automatic shelf registration statement. Instead, the company would likely need to amend its previously filed registration statement to comply with a form that it is eligible to use (e.g., a Form S-1 or a non-automatic shelf registration statement such as Form S-3).

The SEC staff published guidance for a company that no longer meets the definition of a well-known seasoned issuer at the filing date of its current Form 10-K. This guidance provides certain steps that the company may be able to take in order to preserve its ability to readily access the capital markets. Some of these steps must be taken before the issuer files its Form 10-K. See Securities Act Rules CDI 198.06.

No. See General Instruction B.4. of Form SD.

The SEC staff has indicated that a registrant is not required to file a pre-effective amendment solely to incorporate an Exchange Act report filed prior to effectiveness, provided that the registrant includes a statement in its initial registration statement (in addition to the statement regarding incorporation after the date of the prospectus) that all filings filed by the registrant pursuant to the Exchange Act after the date of the initial registration statement and prior to effectiveness of the registration statement are deemed to be incorporated by reference into the prospectus. In the first prospectus used after effectiveness, a copy of which is required to be filed under Rule 424(b), the registrant should identify all Exchange Act reports filed prior to effectiveness. If the registration statement does not specifically incorporate reports filed during the waiting period, a pre-effective amendment would be required in order to incorporate the Exchange Act report. See Securities Act Forms CDI 123.05.

No. Auditors must still perform their responsibilities under PCAOB AS 4101.

See the guidance included in SEC 2110.904 and .905.

Generally, no. See Item 12(d) of Form S-3 and SEC 2110.908 for additional guidance.