[Federal Register Volume 81, Number 11 (Tuesday, January 19, 2016)]
[Rules and Regulations]
[Pages 2743-2748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00872]
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SECURITIES AND EXCHANGE COMMISSION
17 CFR PARTS 229 and 239
[Release No. 33-10003; File No. S7-01-16]
RIN 3235-AL88
Simplification of Disclosure Requirements for Emerging Growth
Companies and Forward Incorporation by Reference on Form S-1 for
Smaller Reporting Companies
AGENCY: Securities and Exchange Commission.
ACTION: Interim final rule; request for comment.
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SUMMARY: The Securities and Exchange Commission (``Commission'') is
adopting interim final amendments to its rules and forms to implement
Sections 71003 and 84001 of the Fixing America's Surface Transportation
(``FAST'') Act, which require that the Commission revise Forms S-1 and
F-1 to permit emerging growth companies to omit financial information
for certain historical periods and revise Form S-1 to permit forward
incorporation by reference for smaller reporting companies.
DATES: Effective date: The interim final rule is effective on January
19, 2016.
Comment date: Comments on the interim final rules should be
received on or before February 18, 2016.
[[Page 2744]]
ADDRESSES: Comments may be submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/proposed.shtml); or
Send an email to [email protected]. Please include
File Number S7-01-16 on the subject line; or
Use the Federal eRulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments.
Paper Comments
Send paper comments to Brent J. Fields, Secretary,
Securities and Exchange Commission, 100 F Street NE., Washington, DC
20549-1090.
All submissions should refer to File Number S7-01-16. This file number
should be included on the subject line if email is used. To help us
process and review your comments more efficiently, please use only one
method. The Commission will post all comments on the Commission's Web
site (http://www.sec.gov/rules/proposed.shtml). Comments are also
available for Web site viewing and printing in the Commission's Public
Reference Room, 100 F Street NE., Washington, DC 20549, on official
business days between the hours of 10:00 a.m. and 3:00 p.m. All
comments received will be posted without change; we do not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly.
FOR FURTHER INFORMATION CONTACT: Peggy Kim, Attorney-Adviser, Office of
Rulemaking, Division of Corporation Finance, at (202) 551-3430, U.S.
Securities and Exchange Commission, 100 F Street NE., Washington, DC
20549.
SUPPLEMENTARY INFORMATION: We are adopting interim final amendments to
Forms S-1 \1\ and F-1 \2\ under the Securities Act of 1933 \3\ and Item
512 of Regulation S-K.\4\
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\1\ 17 CFR 239.11.
\2\ 17 CFR 239.31.
\3\ 15 U.S.C. 77a et seq.
\4\ 17 CFR 229.512.
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I. Discussion of Amendments
Form S-1 is the form used by domestic issuers to register the offer
and sale of securities under the Securities Act of 1933 when no other
form is authorized or prescribed, and Form F-1 is the corresponding
form used by foreign private issuers.\5\ Item 512 of Regulation S-K
describes the undertakings that an issuer must include in a
registration statement.
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\5\ A ``foreign private issuer'' is defined in Rule 405 [17 CFR
230.405] under the Securities Act to mean any foreign issuer other
than a foreign government, except for an issuer that has more than
50% of its outstanding voting securities held of record by U.S.
residents and any of the following: A majority of its officers and
directors are citizens or residents of the United States, more than
50 percent of its assets are located in the United States, or its
business is principally administered in the United States.
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Section 71003 of the FAST Act \6\ amends Section 102 of the
Jumpstart Our Business Startups (``JOBS'') Act \7\ to allow an emerging
growth company \8\ that is filing a registration statement (or
submitting a draft registration statement \9\ for confidential review)
under Section 6 of the Securities Act on Form S-1 or Form F-1 to omit
financial information \10\ for historical periods \11\ otherwise
required by Regulation S-X \12\ if it reasonably believes the omitted
information will not be required to be included in the filing at the
time of the contemplated offering, so long as the issuer amends the
registration statement prior to distributing a preliminary prospectus
to include all financial information required by Regulation S-X at the
time of the amendment. This provision takes effect 30 days after the
date of enactment of the FAST Act. In addition, Section 71003 directs
the Commission to revise the general instructions to Form S-1 and Form
F-1 to reflect this self-executing change.
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\6\ Pub. L. 114-94 (Dec. 4, 2015).
\7\ Pub. L. 112-106, 126 Stat. 306 (Apr. 5, 2012).
\8\ An ``emerging growth company'' is defined in Section
2(a)(19) of the Securities Act [15 U.S.C. 77b(a)(19)] to mean an
issuer with less than $1 billion in total annual gross revenues
during its most recently completed fiscal year. If an issuer
qualifies as an emerging growth company on the first day of its
fiscal year, it maintains that status until the earliest of the last
day of the fiscal year of the issuer during which it has total
annual gross revenues of $1 billion or more; the last day of its
fiscal year following the fifth anniversary of the first sale of its
common equity securities pursuant to an effective registration
statement; the date on which the issuer has, during the previous 3-
year period, issued more than $1 billion in non-convertible debt; or
the date on which the issuer is deemed to be a ``large accelerated
filer'' (as defined in Exchange Act Rule 12b-2 [17 CFR 240.12b-2]).
Section 71002 of the FAST Act amends Section 6(e)(1) of the
Securities Act [15 U.S.C. 77f(e)(1)] to provide that an issuer that
qualifies as an emerging growth company at the time it initiates the
registration process, either by submitting a draft registration
statement or by filing it publicly, but which subsequently ceases to
be an emerging growth company, will continue to be treated as an
emerging growth company until the earlier of the date on which the
issuer consummates its initial public offering pursuant to that
registration statement or the end of the 1-year period beginning on
the date the company ceases to be an emerging growth company.
Section 71002 became effective upon enactment.
\9\ Prior to filing a Form S-1 or F-1 for an initial public
offering, emerging growth companies can submit draft registration
statements to the Commission for confidential review.
\10\ The historical financial statements that may be omitted are
not limited to the financial statements of the emerging growth
company. For example, an emerging growth company may also omit the
historical financial statements of an acquired business from its
filing or submission if the company reasonably believes those
financial statements will not be required at the time of the
offering.
\11\ Emerging growth companies must include two years of audited
financial statements in a registration statement for an initial
public offering of common equity securities. [15 U.S.C. 77g
(a)(2)(A)]
\12\ Form F-1 filers are subject to the financial reporting
requirements of Regulation S-X and Form 20-F. Item 8.A. of Form 20-F
[17 CFR 249.220f] contains the requirements for the historical
periods applicable to foreign private issuers filing on Form F-1.
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Section 84001 of the FAST Act requires the Commission to revise
Form S-1 to permit a smaller reporting company \13\ to incorporate by
reference into its registration statement any documents filed by the
issuer subsequent to the effective date of the registration statement.
We are adding a new paragraph to Item 12 of Form S-1 to effect this
provision.\14\
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\13\ A ``smaller reporting company'' is defined in Rule 405
under the Securities Act to mean an issuer that had a public float
of less than $75 million as of the last business day of its most
recently completed second fiscal quarter or had annual revenues of
less than $50 million during the most recently completed fiscal year
for which audited financial statements are available.
\14\ New paragraph (b) to Item 12 of Form S-1.
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Currently, there are eligibility requirements for any issuer to use
historical incorporation by reference on Form S-1 for documents filed
before the effective date of the registration statement. These
requirements will not be affected as a result of these amendments.\15\
Smaller reporting companies must meet each of these existing
eligibility requirements and conditions to use forward incorporation by
reference on Form S-1.\16\ For example, to be eligible to use forward
incorporation by reference, smaller reporting companies will be
required to be current by having filed (a) an annual report for its
most recently completed fiscal year and (b) all required Exchange Act
reports and materials during the 12 months immediately preceding filing
of the Form S-1 (or such shorter period that the smaller reporting
company was required to file such reports and materials). Smaller
reporting companies that are blank check companies, shell companies
(other than business combination related shell companies) or issuers
for offerings of penny stocks will not be permitted to forward
incorporate by reference into a Form S-1. In addition, the ability to
forward
[[Page 2745]]
incorporate by reference will be conditioned on the smaller reporting
company making its incorporated Exchange Act reports and other
materials readily available and accessible on a Web site maintained by
or for the issuer and disclosing in the prospectus that such materials
will be provided upon request.
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\15\ General Instruction VII to Form S-1 sets forth the
eligibility requirements for incorporation by reference.
\16\ Currently, forward incorporation by reference is not
permitted for any issuers on Form S-1.
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Finally, we are making a conforming change to Item 512(a) of
Regulation S-K to provide for forward incorporation by reference of
Exchange Act reports filed or furnished after the effective date of the
registration statement on Form S-1.\17\ Our revised forms will be
effective for disclosure made on or after January 19, 2016.\18\
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\17\ The undertakings in Item 512(b) of Regulation S-K will also
be required in Form S-1 registration statements filed by smaller
reporting companies that use forward incorporation by reference.
\18\ The amendments being adopted today apply to emerging growth
companies omitting financial information from Form S-1 or Form F-1
and to smaller reporting companies using forward incorporation by
reference in Form S-1. The staff will consider whether the
amendments discussed in this release should be made available to a
larger group of registrants, and for additional form types. Any
future rulemaking proposal that may stem from the staff's
consideration would be subject to notice and public comment.
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II. Request for Comment
We invite comment on whether the interim final rules should be
extended to other registrants or forms. In addition, we request and
encourage any interested person to submit comments on any aspect of our
interim final rules, other matters that might have an impact on the
rules, and any suggestions for additional changes. With respect to any
comments, we note that they are of greatest assistance if accompanied
by supporting data and analysis of the issues addressed in those
comments.
III. Procedural and Other Matters
Under the Administrative Procedure Act (``APA''), a notice of
proposed rulemaking is not required when the agency, for good cause,
finds that notice and public comment are impracticable, unnecessary, or
contrary to the public interest.\19\ Because these amendments merely
conform the specified forms to the requirements of a newly enacted
statute, the FAST Act, the Commission finds that notice and public
comment are unnecessary.\20\ These amendments revise the Commission's
forms to make them consistent with the provisions of the FAST Act
pertaining to simplified disclosure requirements for emerging growth
companies and forward incorporation by reference for smaller reporting
companies on Form S-1 and therefore do not involve the exercise of
Commission discretion.
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\19\ 5 U.S.C. 553(b).
\20\ This finding also satisfies the requirements of 5 U.S.C.
808(2), allowing the rule amendment to become effective
notwithstanding the requirement of 5 U.S.C. 801 (if a federal agency
finds that notice and public comment are impractical, unnecessary or
contrary to the public interest, a rule shall take effect at such
time as the federal agency promulgating the rule determines). The
amendments also do not require analysis under the Regulatory
Flexibility Act. See 5 U.S.C. 604(a) (requiring a final regulatory
flexibility analysis only for rules required by the APA or other law
to undergo notice and comment).
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The APA generally requires publication of a rule at least 30 days
before its effective date.\21\ The Commission finds there is good cause
for the amendments to take effect on January 19, 2016 because without
the amendments the Commission's applicable forms do not conform to the
requirements of Section 102 of the JOBS Act, as amended by Section
71003 of the FAST Act and Section 84001 of the FAST Act.\22\
Additionally, the Commission finds that the amendments relieve
restrictions in the Commission's forms.
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\21\ See 5 U.S.C. 553(d)(3).
\22\ Section 71003 of the FAST Act takes effect 30 days after
enactment, and Section 84001 of the FAST Act requires the Commission
to revise Form S-1 within 45 days of enactment.
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The amendments to Form S-1, Form F-1, and Item 512 of Regulation S-
K will have an effect on existing ``collection of information''
requirements within the meaning of the Paperwork Reduction Act of
1995.\23\ We estimate the total annual decrease in the paperwork burden
for all affected companies to comply with the collection of information
requirements in these amendments is approximately 70,214 hours of
company personnel time and approximately $84,256,400 for the services
of outside professionals.\24\
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\23\ 44 U.S.C. 3501 et seq.
\24\ We are seeking emergency approval from the Office of
Management and Budget for the revised burden estimates associated
with the final rule amendments to Forms S-1 and F-1 in accordance
with the procedures of the Paperwork Reduction Act of 1995. In a
separate notice, we are seeking public comment on the revised burden
estimates as well as a three-year extension of the same collections
of information.
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IV. Economic Analysis
We are mindful of the costs imposed by and the benefits obtained
from our rules and amendments.\25\ The Commission is adopting
amendments to implement the specific statutory mandates of Sections
71003 and 84001 of the FAST Act. Accordingly, the costs and benefits of
these amendments stem entirely from the statutory mandates of Sections
71003 and 84001.\26\
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\25\ Section 2(b) of the Securities Act [15 U.S.C. 77b(b)]
requires the Commission, when engaging in rulemaking where it is
required to consider or determine whether an action is necessary or
appropriate in the public interest, to consider, in addition to the
protection of investors, whether the action will promote efficiency,
competition and capital formation.
\26\ As the intent of this rulemaking is to implement the
specific regulatory changes mandated by Congress, this analysis
focuses on the economic effects arising from those changes. We
recognize that these amendments could be made available to a larger
group of registrants, and for additional form types. However, such
discretionary amendments would be beyond the scope of this
rulemaking. See supra note 18.
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A. Baseline
The baseline for our economic analysis is the filing requirements
prior to passage of the FAST Act and the amendments being adopted
today. The amendments will impact disclosure requirements for emerging
growth companies (``EGCs'') that file Forms S-1 and F-1 and smaller
reporting companies (``SRCs'') that file Form S-1 for conducting a
registered public securities offering and elect to use forward
incorporation by reference. Investors who rely on issuer disclosures
for making investment decisions will also be affected by the amendments
mandated by Sections 71003 and 84001 of the FAST Act.
Prior to the effectiveness of Section 71003, EGCs were required,
when filing or submitting Form S-1 or Form F-1 with the Commission
prior to an initial public offering (``IPO''), to provide all financial
statements for historical periods required by Regulation S-X at the
time of the filing or submission, even though information for some
historical periods may not be required to be included in the prospectus
contained in the registration statement at the time of the contemplated
offering. For example, prior to the effectiveness of Section 71003, an
EGC that intended to conduct an IPO during early 2016 and that
submitted or filed its registration statement in December 2015 would
need to include audited financial statements for 2013 and 2014 in that
registration statement to comply with the rules, even though at the
time the issuer intended to market the offering only 2014 and 2015
audited financial statements would be required.
The amendment pursuant to Section 71003 of the FAST Act will impact
Form S-1 and F-1 filings and draft registration statement submissions
by domestic and foreign EGCs that conduct initial public offerings. An
analysis of EDGAR filings indicates that 504 EGCs filed Form S-1 for an
IPO during calendar year 2014, compared to 363 EGCs that filed a Form
S-1 during calendar year 2015, through December 28th. The number of
Form F-1 filings
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for an IPO by EGCs totaled 65 and 51 for calendar years 2014 and 2015,
respectively (Table 1).\27\ Additionally, 299 and 133 EGCs submitted a
draft registration statement during 2014 and 2015, respectively, for
confidential Commission review.\28\
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\27\ The Commission staff derived these estimates by analyzing
filings made with the Commission during calendar years. Data for
2015 is for the period January 1 to December 28, 2015. The Forms S-1
and F-1 filings include filings for offerings that were later
withdrawn or abandoned. Until October 2012, a significant number of
EGCs submitted draft registration statements through email and as a
result are not included in EDGAR filings for that year.
\28\ Some of the issuers that submitted a draft registration
statement may have also filed a Form S-1 or F-1.
Table 1--EGCs Submissions of Draft Registration Statements, and Filings of Forms S-1 and F-1 for Initial Public
Offerings, 2012-2015
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Number of EGCs
submitting draft Number of EGCs Number of EGCs
registration filing Form S-1 filing Form F-1
statement
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2012...................................................... 41 295 25
2013...................................................... 231 404 31
2014...................................................... 299 504 65
2015...................................................... 133 363 51
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Currently, forward incorporation by reference is not permitted for
any issuers on Form S-1,\29\ and issuers are required to file a post-
effective amendment to disclose material information, including updates
required as a result of Section 10(a)(3) of the Securities Act,\30\
that may have occurred prior to the completion of the offering. Forward
incorporation by reference is available under Form S-3,\31\ the short-
form registration statement for a follow-on offering, but only issuers
that meet specific registrant and transaction requirements can utilize
that form. Because many SRCs are ineligible to use Form S-3, they are
required to use Form S-1 for conducting a registered securities
offering.\32\ As Table 2 presents, approximately 448 SRCs filed Form S-
1 for conducting a follow-on offering while 150 SRCs filed Form S-3
during calendar year 2014.\33\
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\29\ Forward incorporation by reference allows an issuer to
automatically incorporate by reference reports filed pursuant to the
Exchange Act, such as reports on Forms 10-K, 10-Q and 8-K,
subsequent to the effectiveness of the registration statement.
\30\ 15 U.S.C. 77j(a)(3). When a prospectus is used more than
nine months after the effective date of the registration statement,
the information contained therein cannot be dated more than sixteen
months prior to such use.
\31\ 17 CFR 239.13.
\32\ SRCs may be eligible to use Form S-3 for secondary
offerings if the securities are listed on a national securities
exchange or are quoted on the automated quotation system of a
national securities association. See Instruction I.B.3 of Form S-3.
In addition, SRCs may be eligible to use Form S-3 for limited
primary offerings if the SRC has at least one class of common equity
securities listed on a national securities exchange. See Instruction
I.B.6. of Form S-3.
\33\ The Commission staff derived these estimates by analyzing
filings made with the Commission during calendar years. SRCs status
was determined based on the filer status checked on the cover page
of Form 10-K filed during the year.
Table 2--SRC Filings of Forms S-1 and S-3 for Follow-on Offerings, 2012-2015
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Number of Form
10-Ks Number of SRCs Number of SRCs
indicating SRC filing Form S- filing Form S-
status 1 3
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2012............................................................ 4,062 394 106
2013............................................................ 3,773 432 116
2014............................................................ 3,508 448 150
2015............................................................ 3,107 269 112
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The amendment pursuant to Section 84001 of the FAST Act will impact
the number and disclosure content of post-effective amendments filed by
eligible SRCs. Analysis of EDGAR filings indicates that approximately
204 SRCs filed 379 post-effective amendments during 2014, while another
217 filed 404 such amendments during calendar year 2015, through
December 15th.\34\ Some SRCs could have avoided at least some post-
effective amendment filings if forward incorporation had been
available.
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\34\ Some of these filings may relate to non-Section 10(a)(3)
updates, such as for deregistering securities. These filings will
not be affected by an SRC's new ability to forward incorporate by
reference. Additionally, some filings may comprise Section 10(a)(3)
updates, as well as updates that will continue to be required as
post-effective amendments.
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B. Analysis of the Amendments
The statutory change to Section 102 of the JOBS Act and the
corresponding amendment to our forms pursuant to Section 71003 of the
FAST Act allow EGCs to omit certain historical financial statements
required under Regulation S-X from their pre-initial public offering
registration statement, which simplifies and reduces disclosure
requirements for those EGCs. As Table 1 shows, up to 569 EGCs filing
Form S-1 or F-1 and 299 EGCs submitting draft registration statements
during calendar year 2014 could possibly have benefitted from such
scaled down disclosure requirements. These amendments to the statute
and our forms will ease the filing requirements for EGCs, which could
promote small business capital formation through initial public
offerings.
The amendments that implement Section 71003 will enable EGCs to
provide only information that they reasonably expect will be required
at the time they are marketing their initial public offerings. This
will lower the regulatory burden and thereby reduce the registration
costs for EGCs. The amendments may also shorten the time necessary to
complete the initial
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registration statement of an IPO, which could improve an issuer's
ability to raise capital in a timely manner. To the extent issuers have
sensitive material in their historical financial information, the
amendments may also enable EGCs to protect their competitive position
by not publicly disseminating information beyond what is required when
the securities offering is conducted.\35\ Such benefits are more likely
to accrue to EGCs that have higher proprietary costs of disclosure.\36\
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\35\ For example, R&D-intensive firms may have competitive
incentives to provide limited disclosure about their R&D
investments, material agreements or acquisitions in previous years.
\36\ See Jesse Ellis, C. Edward Fee & Shawn Thomas, Proprietary
Costs and the Disclosure of Information about Customers, 50 J. ACCT.
RES. 685-727 (2012).
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At the same time, the amendments may reduce the amount and quality
of public information, thereby potentially increasing the level of
information asymmetry and adversely impacting the informational
efficiency of the securities market.\37\ As a result, investors could
become more risk averse and require a higher rate of return to
compensate for such loss in disclosure. This would lower the amount of
potential issuer proceeds, which would offset the lower disclosure
costs stemming from the simplified disclosure requirements.\38\ We
believe, however, that the amendment's potential adverse impact on
investors would be marginal because such omitted financial information
is not expected to be used by issuers in marketing their offering and
also because investors will have access to more recent and updated
information.
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\37\ Market participants also can obtain information from
Commission staff comment letters (publicly available after the IPO)
sent in connection with the staff's review of a draft or filed
registration statement. To the extent the lower level of disclosure
affects the information content of Commission staff comment letters,
the post-IPO liquidity and stock price volatility outcomes of EGCs
could also be impacted.
\38\ See Susan Chaplinsky, Kathleen Weiss Hanley & S. Katie
Moon, The JOBS Act and the Costs of Going Public (Working Paper,
Oct. 2015), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2492241.
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The amendment pursuant to Section 84001 of the FAST Act to permit
forward incorporation by reference by SRCs in Form S-1 will further
integrate disclosures under the Securities Act and the Exchange Act and
increase regulatory simplification. Forward incorporation by reference
will eliminate the need to update information in a filing that has
become stale or is incomplete. The amendment should decrease the
existing filing burdens by reducing multiple disclosure filings,
thereby allowing SRCs to satisfy Form S-1 disclosure requirements and
access capital markets at a lower cost. As discussed above, during 2014
almost half of the SRCs that filed a Form S-1 also filed a post-
effective amendment to update information in that form. In addition to
the reduced audit and legal costs of not having to file post-effective
amendments, cost savings could also result from lower printing and
delivery costs for a smaller sized prospectus. Such reduction in costs
could be offset, to some extent, by ongoing costs related to the
issuer's new obligations to make the incorporated Exchange Act reports
and other materials readily available and accessible to investors on a
Web site maintained by or for the issuer, or provided upon request.
The revision to Form S-1 will make its requirements more consistent
with those of Form S-3, which will particularly benefit SRCs that
cannot use Form S-3 and have to rely on the longer Form S-1 to register
their securities offering. The amendment will be most effective for
continuous offerings, and those involving resales of securities, that
often require repeated informational updates. By avoiding the need to
file certain post-effective amendments, SRCs may be able to move
quickly to raise capital when a `market window' is open. Easing the
filing burden for such issuers may promote efficiency in SRC capital
formation.
At the same time, revising Form S-1 to allow SRCs to forward
incorporate by reference could increase the analytical burden and
search costs for potential investors. Instead of having all the
information available in one location, investors may need to separately
access on a Web site or request the incorporated reports in order to
price the offering security. As a result, costs to investors for
assembling and assimilating necessary information could increase. We do
not have data to assess if, and to what extent, the Form S-1 revision
will be burdensome to investors. To the extent that investors
previously benefitted from the Commission staff's selective review of
post-effective amendment filings, allowing forward incorporation by
reference may eliminate such reviews and, as a result, possibly
increase the costs to investors.
As discussed above, the same eligibility requirements that
currently apply to any issuer to use historical incorporation by
reference on Form S-1 will apply to forward incorporation by reference
by SRCs. Using these well-established eligibility requirements should
provide certainty to issuers and investors about when forward
incorporation by reference may be used. Requiring the SRCs to be
current in their filing requirements will ensure that only issuers with
a demonstrated ability to comply with Exchange Act reporting
requirements are eligible to forward incorporate by reference, which
will help to address concerns about investors being able to readily
procure updated information through Exchange Act filings that would
otherwise have been available through a post-effective amendment.
V. Statutory Basis
The amendments described in this release are made under the
authority set forth in Sections 6, 7, 8, 10, and 19 of the Securities
Act, Section 102 of the JOBS Act and Sections 71003 and 84001 of the
FAST Act.
List of Subjects in 17 CFR Parts 229 and 239
Reporting and recordkeeping requirements, Securities.
In accordance with the foregoing, the Commission is amending Title
17, Chapter II of the Code of Federal Regulations as follows:
PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES
ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND
CONSERVATION ACT OF 1975--REGULATION S-K
0
1. The authority citation for part 229 is revised to read as follows:
Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2,
77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj,
77nnn, 77sss, 78c, 78i, 78j, 78j-3, 78l, 78m, 78n, 78n-1, 78o, 78u-
5, 78w, 78ll, 78 mm, 80a-8, 80a-9, 80a-20, 80a-29, 80a-30, 80a-
31(c), 80a-37, 80a-38(a), 80a-39, 80b-11 and 7201 et seq. 18 U.S.C.
1350; Sec. 953(b), Pub. L. 111-203, 124 Stat. 1904; Sec. 102(a)(3),
Pub. L. 112-106, 126 Stat. 309; and Sec. 84001, Pub. L. 114-94, 129
Stat. 1312.
* * * * *
0
2. Section 229.512 is amended by revising paragraph (a)(1)(iii)(B) to
read as follows:
Sec. 229.512 (Item 512) Undertakings.
* * * * *
(a) * * *
(1) * * *
(iii) * * *
(B) Paragraphs (a)(1)(i), (ii), and (iii) of this section do not
apply if the registration statement is on Form S-1 (Sec. 239.11 of
this chapter), Form S-3 (Sec. 239.13 of this chapter), Form SF-3
(Sec. 239.45 of this chapter) or Form F-3 (Sec. 239.33 of this
chapter) and the information required to be included in a post-
effective amendment by those paragraphs is contained in reports filed
[[Page 2748]]
with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 (15
U.S.C. 78m or 78o(d)) that are incorporated by reference in the
registration statement, or, as to a registration statement on Form S-3,
Form SF-3 or Form F-3, is contained in a form of prospectus filed
pursuant to Sec. 230.424(b) of this chapter that is part of the
registration statement.
* * * * *
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
0
3. The general authority citation for part 239 is revised to read as
follows:
Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-
3, 77sss, 78c, 78l, 78m, 78n, 78o(d), 78o-7 note, 78u-5, 78w(a),
78ll, 78mm, 80a-2(a), 80a-3, 80a-8, 80a-9, 80a-10, 80a-13, 80a-24,
80a-26, 80a-29, 80a-30, 80a-37, and Sec. 71003 and Sec. 84001, Pub.
L. 114-94, 129 Stat. 1312, unless otherwise noted.
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4. Form S-1 (referenced in Sec. 239.11) is amended by adding General
Instructions II.C., re-designating paragraph (b) to Item 12 as
paragraph (c), re-designating the Note to Item 12(b)(1) as the Note to
Item 12(c)(1), and adding new paragraph (b) to Item 12 to read as
follows:
Note: The text of Form S-1 does not, and this amendment will
not, appear in the Code of Federal Regulations.
Form S-1
Registration Statement Under the Securities Act of 1933
* * * * *
General Instructions
* * * * *
II. Application of General Rules and Regulations
* * * * *
C. A registration statement filed (or submitted for confidential
review) under Section 6 of the Securities Act (15 U.S.C. 77f) by an
emerging growth company, defined in Section 2(a)(19) of the Securities
Act (15 U.S.C. 77b(a)(19)), prior to an initial public offering may
omit financial information for historical periods otherwise required by
Regulation S-X (17 CFR part 210) as of the time of filing (or
confidential submission) of the registration statement, provided that:
1. The omitted financial information relates to a historical period
that the registrant reasonably believes will not be required to be
included in this Form at the time of the contemplated offering; and
2. Prior to the registrant distributing a preliminary prospectus to
investors, the registration statement is amended to include all
financial information required by Regulation S-X at the date of the
amendment.
* * * * *
Item 12. Incorporation of Certain Information by Reference
* * * * *
(b) In addition to the incorporation by reference permitted
pursuant to paragraph (a) of this Item, a smaller reporting company, as
defined in Rule 405 (17 CFR 230.405), may elect to incorporate by
reference information filed after the effective date of the
registration statement. A smaller reporting company making this
election must state in the prospectus contained in the registration
statement that all documents subsequently filed by the registrant
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
prior to the termination of the offering shall be deemed to be
incorporated by reference into the prospectus.
* * * * *
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5. Form F-1 (referenced in Sec. 239.31) is amended by adding General
Instruction II.E. to read as follows:
Note: The text of Form F-1 does not, and this amendment will
not, appear in the Code of Federal Regulations.
Form F-1
Registration Statement Under the Securities Act of 1933
* * * * *
General Instructions
* * * * *
II. * * *
E. A registration statement filed (or submitted for confidential
review) under Section 6 of the Securities Act (15 U.S.C. 77f) by an
emerging growth company, defined in Section 2(a)(19) of the Securities
Act (15 U.S.C. 77b(a)(19)), prior to an initial public offering may
omit financial information for historical periods otherwise required by
Regulation S-X (17 CFR part 210) and Item 8.A. of Form 20-F (17 CFR
249.220f) as of the time of filing (or confidential submission) of the
registration statement, provided that:
1. The omitted financial information relates to a historical period
that the registrant reasonably believes will not be required to be
included in this Form at the time of the contemplated offering; and
2. Prior to the registrant distributing a preliminary prospectus to
investors, the registration statement is amended to include all
financial information required by Regulation S-X at the date of the
amendment.
* * * * *
By the Commission.
Dated: January 13, 2016.
Brent J. Fields,
Secretary.
[FR Doc. 2016-00872 Filed 1-13-16; 4:15 pm]
BILLING CODE 8011-01-P