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SEC 2121 - Form S-4
Publication date: 30 Jun 2023
us PwC SEC Volume 2121
.1 General
.11 What is Form S-4 and where can I find it?
Form S-4 is a Securities Act registration form used to register securities in connection with business combination transactions and exchange offers. See General Instruction A.1 of Form S-4 for additional details regarding the types of transactions which may be registered using Form S-4.
[Editor’s note: Form S-4 may be used as a proxy statement or information statement for the transaction as well as a registration statement. See SEC 7050 for information relating to reverse mergers.]
The disclosure requirements of Form S-4 are set forth under the various items within the body of the form. Many of the disclosures called for by Form S-4 cross-reference to Regulations S-X, S-K and 14A for the specific requirements. There are also some form-specific disclosure requirements set forth in the text of the form (e.g., Items 4 and 6).
Other sources of guidance that issuers should consider when preparing a Form S-4 include the General Instructions to Form S-4 and Regulation C, which contains the general requirements for preparing and filing a registration statement under the Securities Act. Additionally, the SEC staff has published extensive interpretive guidance including SEC FRM Topic 2200, which is focused on the financial statements of a target company in a Form S-4 and various Compliance & Disclosure Interpretations. See, for example, Securities Act Forms CDI Sections 125 and 225, and Topic I.H of the Division of Corporation Finance: Manual of Publicly Available Telephone Interpretations (Third Supplement, July 2001). Registrants should also consider whether the Form S-4 is subject to the requirements of Regulations 14A (proxy statements) or 14C (information statements) or Exchange Act Sections 13(e), 14(d) or 14(e) and the related rules and regulations (relating to tender offers and going-private transactions) or S-K Topic 900 (relating to roll-up transactions).
The text of Form S-4 is available on the SEC’s website (https://www.sec.gov/files/forms-4.pdf).
.12 Does Form S-4 permit the issuer to provide information in Form S-4 using the incorporation by reference method?
The availability of the incorporation by reference method of providing disclosure in Form S-4 depends on whether the registrant and/or the company being acquired “meets the requirements for use of Form S-3.” Form S-4 defines the phrase “meets the requirements for use of Form S-3” for purposes of Form S-4. See General Instruction B.1(a) for the definition with respect to the registrant and General Instruction C.1(a) with respect to the company being acquired. See General Instruction A.2 regarding timing considerations when information is incorporated by reference.
.13 Will the SEC staff review Form S-4 on a non-public basis?
Under certain circumstances, yes. Companies should consider discussing this situation with their legal counsel before submitting a draft registration statement to SEC staff for review.
.2 Information with Respect to the Registrant
.21 Where can I find the Form S-4 disclosure requirements relating to the registrant?
The Form S-4 disclosure requirements (including the financial statement requirements) relating to the registrant are addressed in General Instruction B of Form S-4. If the registrant “meets the requirements for use of Form S-3” (see SEC 2121.12), it may provide the information required by:
- Items 10 and 11,
- Items 12 and 13, or
- Item 14.
If the registrant does not meet the requirements for use of Form S-3, it must provide the information required by Item 14.
Item 10(a) of Form S-4 requires disclosure in the prospectus of any material changes in the registrant's affairs which have occurred subsequent to the date of the most recent audited financial statements included in the latest annual shareholder report or Form 10-K, and which have not been described in a report on Form 10-Q or Form 8-K filed since the annual shareholder report. Item 12(a)(4) contains a similar requirement. Some subsequent events may be of such a nature that they must be disclosed in the financial statements to keep the financial statements from being misleading (see ASC 855-10-50 and PCAOB AS 2801).
Additionally, the registrant’s most recent audited financial statements may need to be revised for certain subsequent events. See, for example, Item 10(b) and Items 12(b) and (c). Refer to SEC 2120.23 for a discussion of subsequent events that may require separate financial statements or other financial information and for a discussion of reporting post year-end stock splits, reverse splits and stock dividends.
See SEC 2121.903 and SEC 2121.908.
.3 Information with Respect to the Company being Acquired
.31 Where can I find the Form S-4 disclosure requirements relating to the company being acquired?
The Form S-4 disclosure requirements (including the financial statement requirements) relating to the company being acquired are addressed in General Instruction C of Form S-4. If the company being acquired “meets the requirements for use of Form S-3” (see SEC 2121.12), its information may be provided in accordance with:
- Item 15,
- Item 16, or
- Item 17.
[Editor’s note: See the discussion in SEC 2121.21 regarding material changes and the potential need to revise financial statements for subsequent events.]
If the company being acquired does not meet the requirements for use of Form S-3, its information must be provided in accordance with Item 17.
[Editor’s note: In order to meet the requirements for use of Form S-3, the company being acquired would need to have a class of securities registered pursuant to Exchange Act Section 12(b) or a class of equity securities registered pursuant to Exchange Act Section 12(g) or would need to be required to file reports pursuant to Exchange Act Section 15(d). Accordingly, the disclosure relating to a non-reporting target company would generally need to be provided pursuant to Item 17(b) of Form S-4.]
If a US registrant is acquiring a foreign private issuer (as defined in Securities Act Rule 405), the information about the foreign private issuer may be presented pursuant to Form F-4. See General Instruction F to Form S-4 and SEC 8135.
See SEC 2121.903 for additional requirements if the company being acquired is a real estate entity.
.32 Where can I find the financial statements and associated audit requirements applicable to a target company that is not an SEC reporting company?
[Editor’s note: The guidance in this section is intended to be applied when the acquirer is not a shell company or special purpose acquisition company. Additional analysis would be required in those situations. See also SEC 7050 for information relating to reverse mergers.]
[Editor's note: See SEC FRM 2200 for guidance regarding financial statements of target companies in Form S-4.]
Item 17(b) of Form S-4 provides the general disclosure requirements applicable to a non-reporting target. Item 17(b)(7) of Form S-4 sets forth the financial statement requirements for a non-reporting target company.
If the target is a non-reporting company and either (i) the registrant’s security holders are voting or (ii) the transaction is a roll-up transaction (as described in S-K 901), then the non-reporting target company's annual financial statements should be the same as those that would be required in an annual report sent to security holders under Exchange Act Rules 14a-3(b)(1) and (b)(2), if an annual report was required. See SEC FRM 2200.4.
If the target is a non-reporting company and (i) the registrant's security holders are not voting and (ii) the transaction is not a roll-up transaction (as described in S-K 901), then the non-reporting target company's financial statement requirements are determined based on its significance to the registrant and whether the Form S‑4 will be used for resales by persons considered underwriters under Securities Act Rule 145(c):
- If (i) the non-reporting target company is significant to the registrant above the 20% level (as determined under S-X 3-05 or 8-04, as applicable) and (ii) the Form S-4 is not to be used for resales by persons considered underwriters under Securities Act Rule 145(c), then the target company's financial statements (prepared in accordance with GAAP) for the latest fiscal year and comparative year-to-date interim financial information as recent as would have been filed on Form 10-Q had the target been subject to the Exchange Act are required (see SEC FRM 2200.5). In addition, if the non-reporting target company provided its security holders with financial statements prepared in conformity with GAAP for either or both of the two fiscal years before the latest fiscal year, then those financial statements must be provided as well. See Item 17(b)(7)(i). See SEC 2121.906.
- If (i) the non-reporting target company is significant to the registrant above the 20% level (as determined under S-X 3-05 or 8-04, as applicable) and (ii) the Form S-4 is to be used for resales by persons considered underwriters under Securities Act Rule 145(c), then the target company's financial statements (prepared in accordance with GAAP) for the periods required by S-X 3-05(b)(2) or 8-04 should be presented. See Instruction 3 to Item 17(b)(7) and SEC FRM 2200.5. In addition, if the non-reporting target company provided its security holders with financial statements prepared in conformity with GAAP for either or both of the two fiscal years before the latest fiscal year, then those financial statements must be provided as well.
- If the non-reporting target company is significant to the registrant at or below the 20% level, then no financial information for the target company is required. See Item 17(b)(7)(ii). The registrant should, however, consider the non-reporting target when evaluating aggregate significance under S-X 3-05 or 8-04. See SEC FRM 2200.5 and Division of Corporation Finance: Manual of Publicly Available Telephone Interpretations, Third Supplement (July 2001) Section H. Financial Statements, Question 2.
The audit requirement for a non-reporting target company in a Form S-4 depends on whether or not the Form S-4 will be used for resales by persons considered underwriters under Securities Act Rule 145(c) (without regard to whether the registrant's shareholders are voting). See SEC FRM 2200.7.
[Editor’s note: The auditor will consider the appropriate auditing standards (AICPA standards, PCAOB standards, or both PCAOB and AICPA standards) to be applied when performing an audit of a non-reporting target company’s financial statements included in a Form S-4.]
.33 Is a non-reporting target company required to provide financial statements of its significant business acquisitions?
Item 17(b)(7) of Form S-4 does not specifically require a non-reporting target to furnish financial statements of its significant business acquisitions (e.g., S-X 3-05). However, when security holders of the acquirer are voting, the SEC staff has indicated that a non-reporting target company must furnish financial statements under S-X 3-05 or 8-04, as applicable in the Form S-4 if the omission of those financial statements renders the target company's financial statements substantially incomplete or misleading. See SEC FRM 2200.4(e) and Division of Corporation Finance: Manual of Publicly Available Telephone Interpretations, Third Supplement (July 2001) Section H. Financial Statements, Question 3.
.4 Pro Forma Financial Information
The pro forma financial information relating to the transaction for which a Form S-4 is filed is only required if the acquisition is significant under S-X 3-05 or S-X 8-04, as applicable, individually or in the aggregate. See SEC FRM 2200.10.
Such pro forma financial information must be presented in the prospectus and may not be incorporated by reference (see SEC Financial Reporting Release No. 18). However, pro forma information relating to other business combinations of the registrant or target which had previously been consummated (or which are probable and the level of significance is greater than 50%) is treated as company information and, therefore, may be either presented in the prospectus or incorporated by reference if allowable for the registrant or acquiree. In circumstances where incorporation by reference of previously filed pro forma information is used, historical financial information in the columnar pro forma presentation would be replaced by pro forma information reflecting the pro forma effects of the consummated (or probable) other acquisition, as reflected in the form being incorporated by reference. A summary footnote explanation of the use of the pro forma column in lieu of historical data should be included.
The pro forma requirements for roll-up transactions (see SEC 2121.6) are set forth in S-K 914.
.5 Formation of a One Bank Holding Company
General Instruction G provides for automatic effectiveness on the 20th day after filing of Form S-4 registration statements filed for the sole purpose of the formation of a bank or savings and loan holding company where the provisions of the Instruction are satisfied.
Registrants must mark the box on the cover of Form S-4 and be in compliance with the Instruction to cause the automatic effectiveness. This instruction does not apply if there are other proposals involved (e.g., anti-takeover amendments to a corporate charter or authorization for a new issue of securities). Post-effective amendments become effective on filing. See SEC FRM 1150 and additional interpretive guidance in SAB Topic 1.F.
.6 Roll-up Transactions
The SEC has adopted rules intended to enhance the quality of information provided to investors in connection with transactions involving roll-ups of limited partnerships or similar entities. S-K 901 defines a roll-up transaction, excluding certain transactions set forth in the rule, as a transaction involving the combination or reorganization of one or more partnerships, directly or indirectly, in which some or all of the investors in any of such partnerships will receive new securities, or securities in another entity.
The rules require disclosure with respect to the fundamental changes and potential adverse effects arising from roll-up transactions, and the conflicts of interest, reasons for, alternatives to and fairness of such transactions. The rules also call for disclosure concerning valuation methods and additional pro forma financial statements. In order to highlight for investors the differing effects that roll-up transactions may have on investors in various partnerships, the rules require delivery of individual partnership prospectus supplements highlighting, among other things, the effects of the roll-up transaction on investors in each partnership.
.7 Accountants' Consent
.71 Where can I find information relating to the SEC’s requirements for accountants’ consents?
See SEC 2400 for a discussion of accountants’ consents.
.8 Experts Language
.81 Where can I find information relating to experts language?
See SEC 2300 for a discussion of experts language.
.9 Frequently Asked Questions
.901 Is a private target company whose financial statements are included in a Form S-4 considered a public business entity under the FASB’s definition?
Yes. The definition of a public business entity (PBE) includes business entities whose financial statements or financial information are required to be or are included in an SEC filing. A private target company included in a Form S-4 is generally considered a PBE.
[Editor’s note: If an entity meets the definition of a public business entity solely because its financial statements or financial information are included in another entity's filing with the SEC, then entity is only a public business entity for purposes of financial statements that are filed or furnished with the SEC.]
.902 Are the financial statements of a target company provided in connection with the issuance of securities related to a merger transaction being registered on Form S-4 being provided pursuant to S-X 3-05?
Generally no. Although there are references to S-X 3-05 throughout Form S-4, the financial statements of the target are generally not being provided in the Form S-4 pursuant to S-X 3-05. Accordingly, various SEC rules that apply only to financial statements provided under S-X 3-05 would not be appliable to the target company’s financial statements. See, for example, SEC 2121.905.
.903 Are there any incremental disclosure requirements if either the registrant or the company being acquired is a real estate entity?
Yes. Form S-4 specifies incremental disclosure requirements if either the registrant or the company being acquired are real estate entities of the type described in General Instruction A to Form S-11. See General Instruction B.2 of Form S-4 with respect to the registrant and General Instruction C.2 of Form S-4 with respect to the company being acquired.
.904 Is a registrant required to comply with the requirements of Items 2.01/9.01 of Form 8-K even if different (or no) financial statements for a non-reporting target were provided in connection with a Form S-4?
Registrants are still required to comply with the S-X 3-05 financial statement requirements of an acquired business in their Form 8-K filing, even if different (or no) audited financial statements of an acquired business are presented in the Form S-4. See SEC 3150. See SEC 2121.902.
.905 Do the provisions of S-X 3-06(a)(2) which permit the filing of financial statements covering a period of nine to 12 months to satisfy a one-year financial statement requirement for an acquired business apply to financial statements of a target company in a Form S-4?
No. The provisions of S-X 3-06(a)(2) permitting the filing of financial statements covering a period of 9 to 12 months to satisfy the one-year financial statement requirement for an acquired business do not apply to financial statements of target companies filed under Item 14(c)(2) of Schedule 14A. Target company financial statements, required to be provided in a proxy statement or Form S-4, are not provided pursuant to S-X 3-05. This is true even though the proxy statement and Form S-4 reference S-X 3-05 in some circumstances to determine the number of periods of target company financial statements to provide in the proxy statement or Form S-4. Because target company financial statements are not provided pursuant to S-X 3-05, the exception permitted in S-X 3-06(a)(2) is not available for purposes of providing target company financial statements in a proxy statement or Form S-4. See SEC FRM 1140.8.
.906 Is the reference to “GAAP” in Item 17(b)(7) of Form S-4 or the corresponding Item in Form F-4 limited to US GAAP?
No. The references to GAAP in that Item also include a comprehensive body of accounting principles other than US GAAP. See Instruction 2 to Item 17(b)(7) of Form S-4 and Division of Corporation Finance: Manual of Publicly Available Telephone Interpretations, Third Supplement (July 2001) Section H. Financial Statements, Question 12.
.907 Would financial statements that were previously audited only in accordance with non-US GAAS be considered “not previously audited” for purposes of Instruction 1 to Item 17(b)(7) of Form S-4 and the corresponding Item in Form F-4?
Not necessarily. Refer to the guidance in Division of Corporation Finance: Manual of Publicly Available Telephone Interpretations, Third Supplement (July 2001) Section H. Financial Statements, Question 14.
.908 Can a registrant that meets the requirements for use of Form S-3 incorporate by reference its risk factors from its latest Form 10-K?
In some cases, yes. The SEC staff has indicated that even though Item 3 of Form S-4 didn’t contemplate incorporation by reference, a registrant that meets the requirements for use of Form S-3 may incorporate by reference the risk factors disclosed in its most recent Form 10-K. However, the SEC staff has also indicated that offering-specific risk factors would need to be disclosed in the Form S-4 itself. See Securities Act Forms CDI 125.12.
.909 How might the auditor approach references to the auditor in connection with a fairness opinion or other disclosures?
The auditor may encounter a situation in which an investment banker has issued a fairness opinion that contains a reference to the auditor which raises concern. For example, situations have arisen in which a fairness opinion issued in connection with an acquisition transaction included the following (or similar) language:
"…We have relied, with management's consent, on advice of the outside counsel and the independent accountants to the Company, and on the assumptions of the management of the Company, as to all accounting, legal, tax and financial reporting matters with respect to the Company and the Agreement…."
[Editor’s note: It is important to note that the language referred to above may appear in more than one place in a set of transaction materials. For instance, the language may appear in a summary section of the proxy/registration statements and the full fairness opinion (with the same or similar language) will likely be included as an exhibit to the proxy/registration statements. The auditor works with the relevant parties to address all instance of similar disclosure.]
The language referred to above may raise concern because it could be read to suggest that the auditor has provided advice to the investment banker in connection with the fairness opinion.
If the auditor becomes aware of potentially concerning references to the firm in a draft fairness opinion, the auditor works with the relevant parties to ensure that satisfactory revisions are made.
If a fairness opinion has already been issued/used for its intended purpose before the auditor becomes aware of any potentially concerning references to the auditor, the auditor communicates its concern to the company, legal counsel, and to the investment bankers, and works with the relevant parties to develop a satisfactory solution and obtain an understanding of their intended course of action and rationale.
The auditor may also encounter situations in which the auditor and its reports are referenced outside of its role as independent auditors within the Form S-4. For instance, the draft Form S-4 may make reference to a due diligence report. The auditor will seek to gain an understanding as to the purpose of such a reference before agreeing to the reference and work with the relevant parties to ensure satisfactory resolution of any concerns.
.910 Is incorporating by reference or cross-referencing to information outside of the financial statements permitted in financial statements?
We understand that disclosure in the text of the Form S-4 does not eliminate the need for similar disclosure, when required by US GAAP or International Financial Reporting Standards as issued by the International Accounting Standards Board (IFRS as issued by the IASB), in the notes to the financial statements. 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, US GAAP or IFRS as issued by the IASB.
We understand that the non-financial statement portions of the Form S-4 may contain cross-references to the financial statements.
See Securities Act Rule 411(a).
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