As described in our client advisory, the recently enacted FAST Act required the SEC, within 45 days, to revise Form S-1 (and F-1) to permit any smaller reporting company to incorporate by reference in a Form S-1 any documents that the company files with the SEC after the effective date of its registration statement. The SEC today adopted “interim” rules to implement this FAST Act provision, as well as another provision permitting the omission by emerging growth companies of certain historical financial information in offering documents. The interim rules can be found here and also request public comments on whether they should be further expanded in coverage.
Under current rules, for ongoing offerings or resale registrations, a company that is not eligible to use Form S-3 must continually amend or supplement its Form S-1 registration statement. The new interim rule gives smaller reporting companies the option of automatic updates through periodic reports filed by the company, thus eliminating the time and effort to prepare mostly duplicative separate filings that formerly were needed to update Form S-1. There are a few eligibility conditions, such as having filed an annual report for the most recently completed fiscal year and having filed all required periodic reports during the preceding 12 months. In addition, incorporated reports must also be included on the smaller reporting company’s website and be available upon request.