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On Friday, the Corp Fin Staff published four new “Securities Act Forms” CFIs to clarify the availability and mechanics of incorporation by reference on Form S-1. Here they are:

Question 113.09

Question: A company was not eligible to incorporate by reference when it filed a registration statement on Form S-1 and did not utilize historical or forward incorporation by reference. Can the company subsequently utilize incorporation by reference in its next pre- or post-effective amendment if, at the time it files the amendment, it meets all conditions for use of incorporation by reference?

Answer: Yes. The staff believes that a registrant that becomes eligible to use historical or forward incorporation by reference may do so at any time by filing a pre- or post-effective amendment, as applicable, by analogy to Securities Act Rule 401(c) which permits use of a shorter form registration statement at the time of any amendment to a registration statement. The pre- or post-effective amendment to add incorporation by reference must include the information required by Item 12 of Form S-1. [Sept. 4, 2026]

Question 113.10

Question: If a smaller reporting company complies with Item 12(b) of Form S-1 by indicating that it has elected to forward incorporate on Form S-1, must it meet all of the eligibility requirements and conditions to using incorporation by reference set forth in General Instruction VII of Form S-1 in order for the documents subsequently filed by the registrant to be incorporated into the registration statement?

Answer: Yes. See Release No. 33-10003 (Jan. 13, 2016). [Sept. 4, 2026]

Question 113.11

Question: If a company that is eligible to forward incorporate by reference on Form S-1 has elected to forward incorporate information filed after the effective date of the registration statement under Item 12(b), must it also incorporate by reference into the prospectus contained in the registration statement the documents required to be specifically incorporated by Items 12(a)(1) and 12(a)(2) of Form S-1?

Answer: Yes. See Release No. 33-10003 (Jan. 13, 2016). [Sept. 4, 2026]

Question 113.12

Question: A prospectus in a Form S-1 registration statement, unlike Form S-3, does not require incorporation of any other document by reference. If a registrant eligible to forward incorporate by reference elects to do so, does forward incorporation of subsequent Exchange Act filings always provide all of the itemized disclosure required in a prospectus in a Form S-1?

Answer: No. In order to determine whether a registrant has a complete prospectus at the time of any sale, a registrant that has elected to forward incorporate by reference must consider whether any item of Form S-1 requires disclosure not included in any Exchange Act filings subsequently filed by the registrant that the Form S-1 has incorporated by reference. To the extent such registrant needs to add such disclosure to its prospectus, it will need to evaluate whether to file a post-effective amendment to the registration statement or prospectus supplement. However, if the information required by Form S-1 appears in incorporated documents under headings that differ from the Form S-1 item headings, incorporation by reference still satisfies the form’s requirements. [Sept. 4, 2026]

This may not be a groundbreaking rulemaking proposal like some in our community were hoping for before Labor Day, but it’s still helpful clarification for companies not eligible to use Form S-3. Meanwhile, the Commission’s current proposal on registered offering reform could make it easier for many (but not all) companies to use the short form (S-3), while also extending the availability of forward incorporation by reference on Form S-1 to more issuers. We’re continuing to post law firm memos about the proposal in our “Form S-3″ Practice Area.

– Liz Dunshee