United States: SEC Revises Form S-11 to Permit Historical Incorporation by Reference

Originally published April 23, 2008

Keywords: SEC, Form S-11, offerings of securities, investment real estate, Exchange Act, incorporation by reference; Form S-1; Form F-1

On April 10, 2008, the Securities and Exchange Commission issued Release No. 33-8909, in which it announced that it had amended Form S-11 to permit the incorporation by reference of reports and other documents that issuers previously filed under the Securities Exchange Act of 1934. Form S-11 is used to register offerings of securities under the Securities Act of 1933 by real estate investment trusts and other issuers whose business is primarily that of acquiring and holding for investment real estate, interests in real estate or interests in other issuers whose business is primarily that of acquiring and holding real estate or interests in real estate. These amendments conform to changes the SEC made to Forms S-1 and F-1, the other long-form registration statements, in 2005.¹ The amendments became effective on April 15, 2008.

The amendments allow an eligible issuer to incorporate its previous disclosures provided under the Exchange Act into its Securities Act registration statements without unnecessarily repeating these disclosures.

Conditions to Ability to Incorporate by Reference

In order to incorporate previously filed Exchange Act reports and documents, an issuer must:

• Be subject to the requirements to file reports pursuant to Section 13 or 15(d) of the Exchange Act;
• Have filed its annual report on Form 10-K for the most recent fiscal year;
• Be current in its reporting obligations under the Exchange Act; and
• Make the incorporated Exchange Act reports and documents available and accessible for free on a web site maintained by or for the issuer and containing information about the issuer.

An issuer may not incorporate previously filed Exchange Act reports and documents if it, or any of its predecessors, has been a blank check company, shell company or penny stock company at any time during the last three years.

The test of whether an issuer is eligible to incorporate by reference previously filed Exchange Act reports and documents is to be made when the Form S-11 is filed and when each post-effective amendment is filed for the purpose of updating the information under Section 10(a)(3) of the Securities Act. An issuer who loses this eligibility may continue to rely on the historical incorporation by reference until the next time that it files with the SEC a post-effective amendment for the purpose of updating that information.

Required Disclosures

When incorporating by reference pursuant to the new requirements, the disclosure must contain:

• A list of all incorporated reports and documents;²
• A statement that the issuer will provide copies of any incorporated reports and documents on request;
• An indication that the reports and documents are available through the SEC's EDGAR system or public reference room;
• An indication of the issuer's web site address where such incorporated reports and other materials can be accessed; and
• A discussion of any material changes in, or updates to, the information that is incorporated by reference.

These incorporation by reference disclosures must be made in a post-effective amendment that is first filed with the SEC after the issuer is eligible to incorporate by reference to previously filed Exchange Act reports and documents; the disclosures cannot be provided only in a prospectus supplement to a prospectus.

Issuers on Form S-11 are still not permitted to incorporate by reference future-filed reports and documents. Only issuers eligible to use a short-form registration statement, such as a Form S-3, can incorporate by reference future-filed reports.

Change to Cover Page of Form S-11

The cover page of the Form S-11 has been revised to require the issuer to indicate whether or not the issuer is relying on Rule 415 under the Securities Act in connection with the offering, as would be the case if the issuer were doing an offering that would continue for at least 30 days or that is being made on a delayed basis.

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Footnotes

1. See Release 33-8591 (July 19, 2005). (July 19, 2005).

2. If an issuer chooses to incorporate by reference, it must specifically incorporate its latest annual report on Form 10-K which contains financial statements for the latest fiscal year and all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act or proxy or information statements filed pursuant to Section 14 of the Exchange Act since the end of the last fiscal year covered by the annual report on Form 10-K incorporated by reference.

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