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SEC 2130 - Form S-11
Publication date: 30 Jun 2023
us PwC SEC Volume 2130
.1 General
.11 What is Form S-11 and where can I find it?
Form S-11 is a Securities Act registration statement form used to register securities issued by (i) real estate investment trusts, as defined in Section 856 of the Internal Revenue Code, or (ii) other issuers whose business is primarily investing, either directly or indirectly, in real estate. Form S-11 is not for use by an issuer which is an investment company registered or required to register under the Investment Company Act.
The text of Form S-11 is available on the SEC’s website (https://www.sec.gov/files/forms-11.pdf).
The disclosure requirements of Form S-11 are set forth under the various items within the body of the form. Many of the disclosures called for by Form S-11 cross-reference to Regulations S-X or S-K for the specific requirements, however, there are also a number of form-specific disclosure requirements set forth in the text of the form (e.g., Items 12-16, 24 and 25). Other sources that issuers should consider when preparing a Form S-11 include the General Instructions to Form S-11 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 various Compliance & Disclosure Interpretations. See, for example, Securities Act Forms CDI Sections 127 and 227. Additionally, much of the interpretive guidance contained in the CDIs relating to Form S-1 is applicable to Form S-11.
[Editor’s note: SEC 2130 was prepared from the perspective of a company that is neither a smaller reporting company (as defined in S-K 10(f)) nor an emerging growth company (EGC) (as defined in Securities Act Rule 405).]
.12 Will the SEC staff review a Form S-11 on non-public basis?
Under certain circumstances, yes. See SEC 2110.12 for a discussion of SEC staff reviews on a non-public basis.
.13 Does Form S-11 permit issuers to incorporate information by reference?
Form S-11 allows registrants that meet the requirements in General Instruction H to provide the information required by Items 3 through 28 of Form S-11 through incorporation by reference of previously filed Exchange Act filings (e.g., Form 10-K and Form 10-Q). If the registrant elects to incorporate information by reference pursuant to General Instruction H, Item 28A of Form S-11 requires the registrant to describe all material changes in the registrant's affairs that have occurred since the end of the latest fiscal year and have not been described in a Form 10-Q or filed Form 8-K.
Form S-11 does not allow the incorporation by reference of documents filed by the registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the effective date of the registration statement and prior to the termination of the offering. This mechanism is sometimes referred to as “forward incorporation”.
See SEC 2130.901 for additional guidance.
.14 Is there additional guidance available for a Form S-11 involving interests in a real estate limited partnership?
If the registration of securities on Form S-11 involves interests in a real estate limited partnership (such as an Umbrella Partnership Real Estate Investment Trust (UPREIT) structure), registrants should consider the guidance in Securities Act Guide 5, Preparation of Registration Statements Relating to Interests in Real Estate Limited Partnerships (Guide 5).
Guide 5 suggests that, where appropriate, the information in the prospectus should be presented in the same order as the items in Guide 5. Where the registrant believes that specific items are not relevant or are otherwise inappropriate, the registrant should bring this matter to the SEC staff's attention in a letter (see Guide 5).
The applicability of the various sections of Guide 5 is generally a legal matter that the issuer should discuss with its legal counsel.
.15 What additional SEC guidance should be referred to in connection with offerings involving real estate investment trusts?
The SEC staff issued CF Disclosure Guidance Topic No. 6: Staff Observations Regarding Disclosure of Non-Traded Real Estate Investment Trusts, which provides guidance regarding the application of Guide 5 by non-traded real estate investment trusts.
The Commission previously stated that Guide 5 should be considered, as appropriate, in the preparation of registration statements for real estate investment trusts.
.2 Financial statements and related requirements
.21 Where can I find the financial statements requirements applicable to Form S-11?
Item 27 of Form S-11 specifies which financial statements and schedules must be included in the prospectus and which may be included in Part II of the registration statement. Regulation S-X governs the certification, form, and content of and requirements for financial statements, and the supplementary schedules. SAB Topic 7 discusses the views of the SEC staff on certain disclosures by real estate companies. Smaller reporting companies may look to the requirements of S-X Article 8.
In addition to financial statements of the issuer, Regulation S-X may require separate financial information in Form S-11 for one or more of the following situations:
- Real estate operations acquired or to be acquired as required by S-X 3-14 (see SEC 4555). Smaller reporting companies may refer to S-X 8-06;
- Businesses acquired or to be acquired as required by S-X 3-05 (see SEC 4550). Smaller reporting companies may refer to S-X 8-04;
- Unconsolidated majority-owned subsidiaries pursuant to S-X 3-09 (see SEC 4520); *
- Fifty percent or less-owned persons accounted for by the equity method pursuant to S-X 3-09 (see SEC 4520); *
- Guarantors of registered securities pursuant to S-X 3-10 and S-X 13-01 (see SEC 4530). Smaller reporting companies may refer to S-X 8-01(c);
- Affiliates whose securities collateralize an issue of registered debt pursuant to S-X 3-16 or S-X 13-02 (see SEC 4540). Smaller reporting companies may refer to S-X 8-01(d);
- Properties securing mortgage loans as required by SAB Topic 1-I (see SEC FRM 2345);
- Financial statements of significant lessees or guarantors of properties leased to a single lessee or guarantor on a long-term triple net-lease basis (see SEC FRM 2340); and
- Balance sheet of the general partner of a limited partnership-registrant under certain circumstances (see SEC FRM 2805).
*Not required for SRCs.
S-X 3-15 requires disclosure of the tax status of distributions per unit (e.g., ordinary income, capital gain, or return of capital).
See SEC 4555.6 for financial statement requirements of "blind pool" offerings.
.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 registrant required to file its Form 10-K for its most recently completed fiscal year before using incorporation by reference in connection with a Form S-11 even if that Form 10-K is not yet due and the Form S-11 is not required to include financial statements for the most recently completed fiscal year?
Yes. See General Instruction H(3) of Form S-11 and SEC 2110.901 for additional guidance.
.902 Is incorporating by reference from or cross-referencing to information outside of the financial statements permitted in financial statements?
Generally, no. See General Instruction H of Form S-11 and SEC 2110.908 for additional guidance.
.903 Is the guidance in Securities Act Forms CDI 101.05 (with respect to omission of certain financial statements otherwise required by Regulations S-X in a draft registration statement) applicable to a draft Form S-11 submitted for non-public review?
We understand that the accommodations described in the Securities Act Forms CDI 101.05 would also be applicable to a non-emerging growth company submitting a draft Form S-11 for non-public review. See SEC 2110.22.
.904 Does Form S-11 require the presentation of a 5-year selected financial data table?
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