On January 13th, the SEC issued two interim final rules implementing portions of the Fixing America’s Surface Transportation Act (the FAST Act).  These interim final rules:

  • Permit an emerging growth company to omit certain financial statements from the registration statement for its initial public offering, if it reasonably believes the omitted information will not be required to be included in the registration statement at the time of the offering, so long as the registration statement is amended prior to distributing a preliminary prospectus to include all financial information required by Regulation S-X at the time of the amendment; and
  • Permit a smaller reporting company to forward incorporate by reference in Form S-1. 

As always, the devil is in the details. With respect to the ability to use forward incorporation, the rules deliver far less than the promise contained in the broad language of the FAST Act.   Currently, Form S-1 limits the ability to use historical incorporation by reference.  The SEC has made the ability to forward incorporate subject to the same limitations.  Accordingly, forward incorporation is not permitted for smaller reporting companies that are, or within the preceding three years have been, blank check companies, shell companies (other than business combination related shell companies) or issuers for offerings of penny stocks, or that are not current in their SEC reporting or have not yet filed an annual report for their most recently completed fiscal year.  In addition, the issuer must make the incorporated Exchange Act reports available on its website.  Based on the interim rules, forward incorporation is still unavailable for significant numbers of smaller reporting companies.

The SEC has requested comment on the final interim rules, including whether they should be extended to other forms or types of registrants.

The interim final rules are available here.