Transitional FAQs Regarding Amended Regulation S-K Items 101, 103 and 105

A registrant has a Registration Statement on Form S-3 that became effective before November 9, 2020. If the registrant files a prospectus supplement to the Form S-3 on or after November 9, 2020, must the prospectus supplement comply with the new rules?

The prospectus supplement does not need to comply with new Items 101 and 103 because Form S-3 does not expressly require Item 101 or Item 103 disclosure but rather requires the incorporation by reference from Exchange Act reports containing that information. A registrant also need not amend its Form 10-K that is incorporated by reference into the Form S-3 pursuant to Item 12(a)(1) of Form S-3 to comply with new Items 101 and 103.

In contrast, Securities Act Rule 401(a) requires that the form and contents of a prospectus supplement conform to the applicable rules and forms as in effect on the initial filing date of the prospectus supplement. Despite the fact that Item 3 of Form S-3 expressly requires Item 105 disclosure, the staff will not object if the prospectus supplement complies with old Item 105 until the next update to the Registration Statement on Form S-3 for Section 10(a)(3) purposes.

Does new Item 101 require registrants to disclose information in their Report on Form 10-K for more than the fiscal year covered by the Report?

No, the new rules did not change Item 1 of Form 10-K, which only requires disclosures regarding the development of the registrant’s business for the fiscal year covered by the Report on Form 10-K. [See also Item 10(a) of Regulation S-K.]

Must a registrant always provide a full discussion of the general development of its business pursuant to new Item 101(a) (or new Item 101(h) for a smaller reporting company) in an annual report or registration statement that requires Item 101 disclosure?

Not necessarily. For a filing other than an initial registration statement, subject to Securities Act Rule 411(e) and Exchange Act Rule 12b-23(e), new Item 101(a)(2) and (h) permit a registrant to omit the full discussion of the general development of its business if the registrant: (1) provides an update to the general development of its business, disclosing all material developments that have occurred since the most recent registration statement or report that includes the full discussion; (2) includes one active hyperlink to the registration statement or report that includes the full discussion; and (3) incorporates the full discussion by reference to the registration statement or report. A registrant is not required to use this updating method. The staff anticipates that the updating method will apply mainly to registration statements.