223.01 Despite the fact that Form S-3 does not specifically refer to the requirements of Regulation S-X, the provisions of Rule 3-12 of Regulation S-X (Age of Financial Statements) are applicable to Form S-3. Under Rule 3-12(b), if a Form S-3 registration statement will become effective within the first 90 days of the fiscal year for non-accelerated filers, the first 75 days for accelerated filers, or the first 60 days for large accelerated filers, the filing need not include financial statements more current than as of the end of the third quarter of the most recently completed fiscal year (with incorporation by reference of the third quarter Form 10-Q), unless (1) the audited financial statements for such fiscal year are available; or (2) the anticipated effective date will be more than 45 days subsequent to the end of the fiscal year and the registrant does not meet the conditions prescribed under paragraph (c) of Section 210.3-01 of Regulation S-X. The interpretation of the first qualification to Rule 3-12(b) requires a factual determination as to whether or not audited financial statements are "available." [Feb. 27, 2009]

223.02 When the parent of the issuer of securities to be registered on Form S-11 is also the guarantor of certain obligations on those securities, and the parent meets the eligibility requirements for Form S-3, the information concerning the guaranteeing parent in the Form S-11 registration statement may be provided in accordance with the disclosure requirements of Form S-3. [Feb. 27, 2009]

223.03 A registrant proposing to file on Form S-3 requested relief from Item 12(b) of Form S-3, insofar as it related to a Schedule TO to be filed with respect to a tender offer for the equity securities of a subsidiary pursuant to Section 14(d) of the Exchange Act. Item 12(b) requires that the prospectus state that all documents subsequently filed by the issuer, pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, are incorporated by reference. The issuer contended that a literal application of Item 12(b) would result in describing the tender offer in the prospectus, and draw unwarranted attention to an immaterial transaction not related to the offering. The registrant was advised that it must comply with the incorporation by reference requirement for the Schedule TO. [Feb. 27, 2009]