On December 14, the Securities and Exchange Commission published proposed amendments to Form S-11, a registration statement used by real estate entities to register securities offerings under the Securities Act of 1933. The proposed amendments would allow issuers using Form S-11 to incorporate by reference to their previously filed Securities Exchange Act of 1934 documents. These amendments mirror amendments the SEC adopted in 2005 allowing “backward” incorporation by reference on Forms S-1 and F-1. Under the proposal, issuers using Form S-11 will continue not to be permitted to incorporate reports and materials filed after the registration statement.

The proposed amendments would only allow incorporation by reference on Form S-11 if the issuer: 

  • Has filed its annual report for its most recent fiscal year; 
  • Is current in its reporting obligations under the Exchange Act; and 
  • Makes incorporated Exchange Act reports and documents available and accessible on a web site maintained by or for the issuer.

Blank check companies, shell companies and penny stock registrants would not be eligible to incorporate by reference into their filings on Form S-11.

The SEC will take comments from the public for 30 days after publication of the proposed amendment in the federal register. Attorney Advertising