Incorporation By Reference

by Laura Anthony, Esq. on October 29, 2019 in Uncategorized

During lulls in the very active rule changes and blog-worthy news coming from the SEC and related regulators, it is great to step back and write about basics that affect SEC attorneys and market participants on a daily basis. In the realm of securities laws, the concept of “incorporation by reference” is simple enough – information from another document, registration statement or filing is included in a current document, registration statement or filing by referring to the other without repeating its contents.  Similarly, “forward incorporation by reference” means that a document is automatically updated with information contained in a future SEC filing.

Although the concepts are relatively straight forward, their application is complex with differing rules for different classes of companies (such as an emerging growth company, smaller reporting company, or well-known seasoned issuer) and different filings such as a registration statement filed under the Securities Act of 1933 (“Securities Act”) or a periodic report filed under the Securities Exchange Act of 1934 (“Exchange Act”).  Although rule changes to Regulation S-K enacted in March of this year (see HERE) revised several rules and forms to help simplify the incorporation-by-reference puzzle and facilitated access to incorporated documents by requiring hyperlinks, the provisions are still complicated and spread among a variety of rules and forms.  This blog unwinds and summarizes the various rules and eligibility criteria to benefit from incorporation by reference.  I’ve also included a chart for quick reference at the end of the blog.

As an aside, incorporation by reference can also include referencing disclosures in another part of the same registration statement or report to avoid repetition.  The ability to incorporate by reference in the same document is universal to all reports and classes of companies and is encouraged by the SEC.

Securities Act Rule 411

Securities Act Rule 411 is a part of Regulation C governing registration statements and prospectus requirements.  Rule 411 generally prohibits incorporation by reference in a prospectus unless the particular form being used specifically allows it.  However, as discussed below, most forms of registration statements specifically allow it in some instances.  In any financial statements, incorporating by reference, or cross-referencing to, information outside of the financial statements is not permitted unless otherwise specifically permitted or required by SEC rules or by GAAP or IFRS rules. Hyperlinks must be included to any information that is incorporated by reference.

Rule 411 further provides that incorporation by reference is allowed in parts of a registration statement that do not include the prospectus.  Exhibits may be filed by incorporation by reference to any other exhibit in a SEC filing, whether filed by the same company or a different company, but a hyperlink must be included to that exhibit.

Rule 411 also contains a general statement that incorporation by reference may not be used in any case where such incorporation would render the disclosure incomplete, unclear, or confusing. For example, unless expressly permitted or required, disclosure must not be incorporated by reference from a second document if that second document incorporates information by reference to a third document.

Rule 411 does not mention forward incorporation by reference.

Exchange Act Rule 12b-23

Rule 12b-23 governs incorporation by reference for Exchange Act registration statements and periodic reports.  Where Rule 411 prohibits incorporation by reference unless expressly allowed in a form, Rule 12b-23 allows incorporation by reference unless expressly prohibited in the rule or a particular form.

The remainder of Rule 12b-23 is substantially the same as Rule 411, including related to financial statements, exhibits, hyperlinks and general requirements related to unclear or confusing references.

Exhibits

Incorporation by reference to exhibits has been allowed by all issuers since the enactment of the Securities Act and Exchange Act.  Subject to the requirements of Rules 411 and 12b-23, any exhibits required to be filed pursuant to Item 601 of Regulation S-K (the Exhibits Rule), all exhibits may be filed by incorporation by reference.  On March 1, 2017, the SEC passed final rule amendments to Item 601 to require hyperlinks to exhibits in filings made with the SEC.  The amendments require any company filing registration statements or reports with the SEC to include a hyperlink to all exhibits listed on the exhibit list. In addition, because ASCII cannot support hyperlinks, the amendment also requires that all exhibits be filed in HTML format.  See my blog HERE on the Item 601 rule changes and HERE related to SEC guidance on same.

Although it would seem common sense, Item 601 also specifically provides that an exhibit filed by incorporation by reference, must not have thereafter been materially amended or changed.  In other words, when filing an exhibit today by using incorporation by reference, make sure the referenced exhibit is up to date.

Form S-1

The rules related to the ability to use incorporation by reference and forward incorporation by reference in a Form S-1 are confusing.  The eligibility requirements to use incorporation by reference in a Form S-1 include:

  • The company must be subject to the reporting requirements of the Exchange Act (not a voluntary filer);
  • The company must have filed all reports and other materials required by the Exchange Act during the prior 12 months (or such shorter period that such company was reporting);
  • The company must have filed an annual report for its most recently completed fiscal year;
  • The company may not currently be, and during the past 3 years neither the company nor any of its predecessors were, (i) a blank check company; (ii) a shell company other than a business combination shell company (SPAC), or (iii) have offered a penny stock;
  • The company cannot be registering an offering for a business combination transaction; and
  • The company must make its reports filed under the Exchange Act that are incorporated by reference, available on its website, and include a disclosure of such availability and that it will provide such document upon request.

If a company elects to incorporate by reference, it must include specific language regarding the incorporation by reference and forward incorporation by reference.

The FAST Act, passed into law on December 4, 2015, amended Form S-1 to allow for forward incorporation by reference by smaller reporting companies that meet the eligibility requirements to use historical incorporation by reference.  In what was probably unintended in the drafting, the FAST Act changes only included smaller reporting companies and not emerging growth companies. Prior to the FAST Act, forward incorporation by reference was only available for companies that use Form S-3 or F-3. The FAST Act change has created an anomaly whereby a smaller reporting company can utilize forward incorporation by reference but other classes of company, including emerging growth companies and large accelerated filers, cannot.

The SEC is aware of the continuing confusing distinction between the obligations of smaller reporting companies vs. emerging growth companies and has included forward incorporation by reference on Form S-1 on its long-term action list (see HERE).  Unfortunately, this topic is not new to the long-term list.

Form S-3

Form S-3 allows for both incorporation by reference and forward incorporation by reference for all companies that are eligible to use the form.  In particular, a company’s latest annual report on Form 10-K and all other reports filed pursuant to the Exchange Act following the latest annual report are specifically incorporated by reference into a Form S-3.  Furthermore, all documents filed under the Exchange Act following the filing of the Form S-3 are incorporated by reference and the future annual reports on Form 10-K act as a prospectus update requiring a review of continued eligibility to use the Form S-3.

Companies filing the Form S-3 are required to include specific language regarding the incorporation by reference and forward incorporation by reference and must agree to provide copies of any documents incorporated by reference upon request.

For more on Form S-3, including eligibility requirements, see HERE.

Form S-4

Form S-4 allows for both incorporation by reference and forward incorporation by reference for all companies that are eligible to use Form S-3 with substantially the same requirements as Form S-3.

Form S-8

A Form S-8 registration statement can be used by issuers to register securities to be offered to employees and certain consultants underwritten employee benefit plans.  For more on a Form S-8, see HERE and HERE.  A Form S-8 registration statement is popular with all public companies, but particularly with small public companies as it becomes effective immediately upon filing and allows for incorporation by reference, both of which benefits are not always available to smaller public companies.

A Form S-8 allows for incorporation by reference of both previously filed Exchange Act reports and Securities Act registration statements in the Form.  As a Form S-8 is effective upon filing, any requests for confidential treatment of the incorporated document must be fully resolved prior to the filing of the Form S-8.  For more on confidential treatment requests, see HERE.

Likewise, a Form S-8 is updated by forward incorporation by reference to future filed Exchange Act reports for all companies, including smaller reporting companies.  A Form S-8 even goes one step further and allows certain documents that are required to be delivered to an employee as part of an employee incentive plan, to be incorporated by reference into a Form S-8 and not be filed with the SEC at all.

Form 10-K Incorporation by Reference to Proxy Statement

A company may elect to omit Part III information from its Form 10-K and incorporate this information by reference from its proxy statement if the proxy statement is filed within 120 days after the end of the fiscal year. In such case, the company must provide a statement to that effect in the Form 10-K under each item under Part III. If the company is then unable to file its proxy statement by the 120th day, it must amend its Form 10-K, and file a Form 10-K/A by the 120th day after the end of its fiscal year to include all of the Part III information that was previously omitted.

Part III information includes: (i) information related to directors, executive officers and corporate governance; (ii) executive compensation; (iii) security ownership of certain beneficial owners and management and related stockholder matters; (iv) certain relationships and related transactions and director independence; and (v) principal accountant fees and services.

Furthermore, if a company prepares an annual report to shareholders separate from its Form 10-K, it may incorporate some or all of the Part I and Part II information required to be in Form 10-K by reference from its annual report as long as the annual report is filed as an exhibit to the Form 10-K.

Quick Reference Chart

I created the below quick reference chart.

Form/FilingIncorporation by ReferenceForward Incorporation by Reference
   
Exhibits in Exchange Act Reports and Securities Act Registration Statements Allowed by all issuers – requires the use of hyperlinks to all exhibits listed on the exhibit list  N/A
   
S-1Allowed by issuers that meet certain eligibility requirements, including that during the past 3 years, neither the company nor any of its predecessors were (i) a blank check company; (ii) a shell company other than a business combination shell company (SPAC), or (iii) have offered a penny stock.Only allowed by smaller reporting companies that meet the eligibility requirements for use of historical incorporation by reference.
   
S-3Allowed by all issuersAllowed by all issuers
   
S-8Allowed by all issuersAllowed by all issuers
   
S-4Allowed for issuers that are eligible to use Form S-3Allowed for issuers that are eligible to use Form S-3
   
Financial StatementsNot allowed to information outside of the financial statements unless specifically permitted by an SEC rule or GAAP or IFRS rule.Not allowed
   
Form 10-KCan incorporate Part I and II information into an annual report that is filed as an ExhibitCan incorporate Part III information into a proxy statement that is filed after the 10-K