Revisions to Form S-11 to Permit Historical Incorporation by Reference
A Small Entity Compliance Guide*
April 10, 2008
Table of Contents
This compliance guide is divided into the following parts:
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.
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:
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:
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.