217.01 A Form S-3-eligible issuer has a majority-owned subsidiary that has a wholly-owned non-reporting subsidiary. The second-tier subsidiary proposes to sell its own debt publicly. The debt will be guaranteed by the second-tier subsidiary's non-reporting parent. This guarantee will, in turn, be guaranteed by the Form S-3-eligible parent. The Form S-3-eligible parent's guarantee will extend to the benefit of holders of the second-tier subsidiary's debt instrument. The offering may be registered on Form S-3 in reliance on General Instruction I.C.3 of the form. [Feb. 27, 2009]

217.02 A wholly-owned limited purpose subsidiary of a Form S-3 eligible parent company sought to use Form S-3 for an offering of debt securities which were fully and unconditionally guaranteed by the parent. The debt securities were convertible into common stock of the parent and would not be convertible into any other securities of the subsidiary. Although General Instruction I.C.3 of Form S-3 refers to non-convertible securities of a registrant-subsidiary guaranteed by its parent, we analyzed each security separately and did not object to the use of the form because: (1) the parent was primarily eligible to offer its common stock under General Instruction I.B.1.; and (2) the subsidiary's debt securities being guaranteed by its Form S-3 eligible parent could be registered on Form S-3. [Feb. 27, 2009]

217.03 A foreign issuer proposed to register on Form S-3 debt securities guaranteed by its parent, a Delaware corporation that met the applicable registrant and transaction requirements of Form S-3. Notwithstanding the requirement of General Instruction I.A.1 that a registrant be organized under the laws of the U.S. or any State or Territory or the District of Columbia and have its principal business operations in the United States or its territories, the foreign subsidiary would be permitted to use Form S-3 pursuant to General Instruction I.C.3 because the guaranteeing parent satisfies this requirement. [Feb. 27, 2009]

217.04 A subsidiary of a Form S-3-eligible company filed a voluntary Form 10 in order to be able to issue investment grade debt on Form S-3, as permitted by General Instruction I.C.2 of Form S-3. The following year, the subsidiary filed another Form S-3 for investment grade debt, but by this time the subsidiary was delinquent in its own reporting obligations, not having filed any Form 10-Qs. In order to use the Form S-3, the subsidiary must file the delinquent Form 10-Qs; otherwise, the Form S-3, which incorporates by reference the reports filed by the subsidiary, would be deficient. However, once the subsidiary files the missing reports, Form S-3 may be used. The reports of the subsidiary are used for the informational purposes of the Form S-3, rather than form eligibility. Eligibility for the subsidiary to use the form is based on General Instruction I.C.2, which provides form eligibility for the subsidiary based on the parent's satisfaction of the eligibility requirements. When the subsidiary is relying on General Instruction I.C.2 for form eligibility, the timeliness requirement of General Instruction I.A.3. relates to the reports of the parent, not the subsidiary. [Feb. 27, 2009]