Form S-11 Revised to Permit Historical Incorporation by Reference
April 21, 2008
On April 10, 2008, the SEC issued a final rule release regarding revisions to Form S-11 to allow issuers to satisfy certain disclosure requirements of the form through incorporation by reference to reports and other documents previously filed by the issuer. Form S-11 is the form used to register securities by real estate investment trusts (REITs) and other issuers whose business is, or that own interests in other issuers whose business is, primarily that of acquiring and holding for investment real estate or interests in real estate.
The revisions to Form S-11 allow a reporting issuer that has filed an annual report for the most recently completed fiscal year and that is current in its reporting obligations under the Exchange Act to incorporate by reference into its Form S-11 information from previously filed Exchange Act reports and documents. Issuers who are, or were at some time during the past three years, blank check issuers, shell companies or issuers for offerings of penny stock will not be able to incorporate by reference historical information into a Form S-11.
The incorporation by reference of Exchange Act reports and materials filed after the registration statement is effective, also known as “forward incorporation by reference,” is still not permitted. Additionally, in order to incorporate by reference historical information, the issuer has to make its incorporated Exchange Act reports and other materials readily accessible on a Web site maintained by or for the issuer. This requirement can be satisfied by including hyperlinks directly to the reports or other materials filed on EDGAR or on another third-party Web site as long as the reports are available free of charge and made available promptly.
The revisions to Form S-11 were adopted to make Form S-11 consistent with Form S-1 with respect to incorporation by reference. The effective date of the revisions to Form S-11 was April 15, 2008.
http://www.sec.gov/rules/final/2008/33-8909.pdf