The Securities and Exchange Commission has amended Form S-11 to permit eligible issuers to incorporate historical Exchange reports and documents. The new rules will be effective upon publication in the Federal Register. The amendments are identical to amendments to Form S-1 and Form F-1 previously adopted by the Commission and effective as of December 1, 2005.
This compliance guide explains how smaller reporting companies can utilize the new provisions with minimal effort and expense.
To review the changes made by the new rules in detail, you may view the SEC's release adopting the new rules at http://www.sec.gov/rules/final.shtml. The release is entitled "Revisions to Form S-11 to Permit Historical Incorporation by Reference," Release No. 33-8909 (April 10, 2008).
You also may contact a staff attorney in the SEC's Office of Small Business Policy at (202) 551-3460 to discuss any questions you may have regarding the rule changes.
1. Eligibility to Incorporate by Reference
Under the amended Form S-11, a company is eligible to incorporate by reference if it has filed an annual report for its most recently completed fiscal year and is current in its reporting obligations under the Exchange Act. A successor registrant is able to incorporate information by reference on the same terms if its predecessor was eligible to do so. However, the following issuers are not able to incorporate by reference into a Form S-11:
reporting issuers who are not current in their Exchange Act reports; and
issuers who are or were, or any of whose predecessors were during the past three years:
blank check issuers;
shell companies (other than business combination related shell companies); or
issuers for offerings of penny stock.
In addition, the ability to incorporate by reference is conditioned on the issuer making its incorporated Exchange Act reports readily accessible on a Web site maintained by or for the issuer. Issuers may satisfy this condition by including hyperlinks directly to the reports or other materials filed on EDGAR or on another third-party Web site where the reports are made available in the appropriate timeframe and access to the reports is free of charge to the user.
2. Guidance for Smaller Reporting Companies on Procedural Requirements
Smaller reporting companies that meet the eligibility requirements discussed above may incorporate previously filed Exchange Act reports and materials if the prospectus that is part of the Form S-11 registration statement includes:
a list of the incorporated reports and materials;
a statement that the issuer will provide copies of any incorporated reports or materials on request;
an indication that the reports and materials are available through the Securities and Exchange Commission's EDGAR system or public reference room;
identification of the issuer's Web site address where such incorporated reports and other materials can be accessed; and
required disclosures regarding material changes in, or updates to, the information that is incorporated by reference from an Exchange Act report or other material required to be filed.
Smaller reporting companies may not incorporate Exchange Act reports and materials filed after effectiveness of the Form S-11 registration statement except by filing a post-effective amendment to the registration statement and complying with the procedural requirements, as discussed below.
3. Effective Date for Smaller Reporting Companies
The effective date of the amendments to Form S-11 will be April 15, 2008.
4. Transition Guidance for Smaller Reporting Companies
A company preparing a new registration statement on Form S-11 may, but is not required to, utilize the incorporation by reference provisions of amended Form S-11 if it meets the eligibility requirements discussed above, including having filed an annual report on Form 10-K for its most recently completed fiscal year, and the procedural requirements discussed above.
A company currently conducting a registered offering on Form S-11 that meets the eligibility requirements discussed above may, but is not required to, utilize the incorporation by reference provisions of amended Form S-11 by filing a post-effective amendment to its Form S-11 and complying with the procedural requirements discussed above. A company may not incorporate by reference to revise or update its prospectus filed pursuant to Rule 424(b) of the Securities Act without filing a post-effective amendment.
This guide was prepared by the staff of the U.S. Securities and Exchange Commission as a "small entity compliance guide" under Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996, as amended. The guide summarizes and explains rules adopted by the SEC, but is not a substitute for any rule itself. Only the rule itself can provide complete and definitive information regarding its requirements.
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