Mussorgsky, Inc. has filed a shelf registration statement on Form S-1, which has gone effective. Let’s say it wants to add a subsequently executed agreement as an exhibit to the registration statement.
Can it do so by means of an automatically effective post-effective amendment?Yes, a Form S-1 issuer may file an automatically effective post-effective amendment to a registration statement solely to add an exhibit if it meets the requirements of Rule 462(d). Although Rule 462(d) is not by its terms restricted to Form S-1 issuers, Form S-3 issuers will typically rely on forward incorporation to add missing exhibits as discussed below. A word of caution here – the SEC has placed limitations on use of the Rule that do not appear in the text of the Rule itself. In particular, the SEC has stated that Rule 462(d) is intended to cover “exhibits that generally would not require revisions to the disclosure in the prospectus.” See Release No. 34-38850 at 21. As a result, Rule 462(d) cannot be used to file exhibits that:
- would trigger the filing of a post-effective amendment to update the prospectus; or
- should have been filed before the registration statement went effective (e.g., those exhibits required to be filed by the applicable form under Item 601 of Regulation S-K).
See Release No. 34-38850 at 22.
So, Rule 462(d) is not available for every exhibits-only post-effective amendment. If a newly added exhibit would affect the disclosure in the prospectus, you do not pass “Go” (and definitely do not collect $200). Likewise, if your exhibit should have been filed with the registration statement at the time of effectiveness, you may not use Rule 462(d).
To indicate that a post-effective amendment is covered by Rule 462(d), the issuer should check the box on the cover page of the post-effective amendment and include the registration number of the applicable registration statement.
What types of exhibits can be added – in other words, what types of exhibits would not affect the disclosure in the prospectus and did not need to be filed at the time of effectiveness?
The SEC has specifically identified “consents of experts and counsel, and other exhibits that generally would not require revisions to the disclosure in the prospectus” as examples of exhibits that an issuer could file by way of an automatically effective post-effective amendment. See Release No. 34-38850 at 21-22. But there is no blanket answer here – when deciding whether to request automatic effectiveness of a post-effective amendment to a registration statement filed solely to add an exhibit under Rule 462(d), each exhibit must be separately assessed and attention paid to the applicable form’s Regulation S-K disclosure requirements to ensure that an exhibit would not otherwise necessitate revision to pre-effective prospectus disclosure.
In the context of a Form S-1 shelf, examples of exhibits filed on a post-effective amendment under Rule 462(d) include supplemental indentures for ongoing offerings reflecting changes to an indenture that are not significant enough to constitute the offering of a new security. See C&DI 102.01.
Does this just work for Form S-1? What about other registration statements, such as Form S-3?
Rule 462(d) is not limited by its terms to Form S-1. But a Form S-3 issuer would not need to take advantage of Rule 462(d) because Item 12 of Form S-3 permits a Form S-3 issuer to incorporate by reference future Exchange Act filings.1 As a result, a Form S-3 issuer may file an executed underwriting agreement or a final version of an auditor’s consent as an exhibit to an Exchange Act filing (say, a Form 8-K or 10-K). Form S-3 issuers will likely avail themselves of this path because it is less cumbersome than filing a post-effective amendment under Rule 462(d) (no need for board signatures or accountant’s consents, for example).
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1 This is an important difference between Forms S-3 and S-1 – whereas Form S-3 allows you to incorporate by reference Exchange Act filings made before or after the Form S-3 goes effective, General Instruction VII of Form S-1 permits only backwards incorporation by reference.