On January 13, the Securities and Exchange Commission announced that it adopted interim final rules to implement changes to Form S-1 and Form F-1 mandated by the Fixing America’s Surface Transportation Act (FAST Act). The interim final rules revise Form S-1 and Form F-1 to permit emerging growth companies (EGCs) to omit Regulation S-X financial information for historical periods otherwise required at the time of filing (or confidential submission), provided that the issuer reasonably believes the omitted financial information will not be required in the Form S-1 or F-1 at the time of the contemplated offering and that, prior to the issuer distributing a preliminary prospectus, such registration statement is amended to include all required Regulation S-X financial information at the date of such amendment. The interim final rules also amend Form S-1 to include a new Item 12, and amend Item 512(a) of Regulation S-K, to permit a smaller reporting company to incorporate by reference into a Form S-1 any reports or materials filed with the SEC after the effective date of the company’s registration statement (commonly referred to as “forward incorporation by reference”). This ability to forward incorporate by reference, which is conditioned on the issuer meeting the eligibility requirements already applicable to historical incorporation by reference into a Form S-1 (e.g., filing of an annual report for the most recent fiscal year and filing of required reports under the Securities Exchange Act of 1934 for the past 12 months or, if shorter, the period in which the issuer has been a reporting company), will ease the burdens on reporting issuers that are conducting public offerings or registering shares for resale on Form S-1 because they are ineligible to do so on Form S-3.
The interim final rules will become effective upon publication in the Federal Register, and the public comment period will remain open for 30 days following their publication in the Federal Register.
The full text of the interim final rules can be found here.