215.01 The registration of a corporation's guarantee of exempt industrial development bonds to be issued by a governmental authority may be made on Form S-3, provided the corporation meets the registrant requirements of the form. For purposes of the transaction requirements of the form, the issuance of the guarantee is deemed to be non-convertible debt offered for cash. [Feb. 27, 2009]

215.02 A company that failed to make a required principal payment on indebtedness was denied a waiver from General Instruction I.A.5 of Form S-3. The company had sought the waiver on the premise that Form S-3 is based on the "efficient market" theory, and the company had already conformed to that theory by announcing in a previous annual report that it would not pay the principal of outstanding debt when it became due. [Feb. 27, 2009]

215.03 General Instruction I.A.5 of Form S-3 provides that to satisfy the registrant eligibility requirements of the form, the registrant may not have failed to pay any required dividend on preferred stock. This requirement will not be waived even when the registrant has a history of cumulating such dividends for three quarters before paying them at the end of each year. [Feb. 27, 2009]

215.04 [withdrawn, June 4, 2010]

215.05 A registrant had failed to make interest payments on its revolving bank credit agreement and outstanding debentures for the first quarter of the fiscal year. These defaults were cured shortly before a Form S-3 registration statement was to be filed. The registrant sought a waiver of General Instruction I.A.5. The waiver request was denied since the defaults had not been exposed to at least one audit, and such defaults in the aggregate are material to the financial position of the registrant and its subsidiaries, taken as a whole. [Feb. 27, 2009]

215.06 General Instruction I.A.7 to Form S-3 provides that a successor issuer will be deemed to have met the registrant requirements in Instructions I.A.1, I.A.2, I.A.3 and I.A.5 of Form S-3 if its predecessor and it taken together have met those conditions. In the case of a bank holding company, the requirement in General Instruction I.A.3(a) of Form S-3 will be satisfied if: the predecessor bank has securities registered under Section 12(i) of the Exchange Act; the bank has filed periodic reports with one of the banking agencies for at least one year; and the reports met Commission requirements. [Feb. 27, 2009]

215.07 A domestic issuer satisfied all Form S-3 requirements other than the General Instruction I.A.1 registrant requirement that the issuer's principal business operations occur in the U.S. or its territories. The issuer could use Form S-3 based on General Instruction I.A.6, which permits a foreign issuer that satisfies all Form S-3 requirements other than the provisions in I.A.1 relating to organization and principal business operations to use Form S-3. [Feb. 27, 2009]

215.08 A default by a subsidiary which occurred and was cured prior to the time it became a subsidiary would not disqualify the parent from using Form S-3. [Feb. 27, 2009]

215.09 When a company and its creditors are having a dispute about whether there is a disqualifying default, the company must determine whether, as a legal matter, there is a default. Caution should be exercised in making such a determination because by filing the form, the company is certifying that there is no such default. [Feb. 27, 2009]

215.10 A company engages in a trust preferred financing whereby the company issues a subordinated note to a special purpose subsidiary, and the special purpose subsidiary issues to investors cumulative preferred shares with financial terms that generally mirror the note, except that the preferred shares are convertible into common stock of the company. The subsidiary exists only to hold the note and issue the preferred shares; the interest and principal payments on the note are the sole source of cash for the subsidiary to pay dividends and the liquidation preference on the preferred shares. The note permits the company to defer interest payments for a specific time period, and such deferral is not a default. If interest payments on the note are deferred, the subsidiary may defer the payment of quarterly dividends on the preferred shares, and the unpaid dividends will accrue and accumulate. Finally, the trust preferred financing is treated as company indebtedness for GAAP financial reporting and rating agency purposes. On these facts, for purposes of determining whether the company satisfies the requirements of Instruction I.A.5 of Form S-3 if a company defers interest payments on the subordinated note and its subsidiary correspondingly defers payment of quarterly dividends on the trust preferred shares, the trust preferred financing should be treated as company indebtedness. Since there was no default on the note, there is no violation of Instruction I.A.5. [Apr. 24, 2009]