Much attention has been focused on the XBRL rules for second quarter Form 10-Qs. Less attention has been given to the XBRL rules for registration statements. About the only thing that may be perfectly clear is XBRL exhibits are not needed for an initial public offering. Even to arrive at that conclusion requires a tortured reading of Regulation S-K Rule 601(b)(101) and the statement “first is required for a periodic report on Form 10-Q.” Obviously if an issuer is doing an IPO they have never filed a 10-Q.
So what about a resale registration statement for selling security holders on Form S-1? Looking at the Rule, a registration statement is only required to include XBRL exhibits if “the registration statement contains a price or price range.” That is almost never the case for a resale registration statement so one may be tempted to conclude XBRL exhibits are not necessary. We believe the SEC takes the opposite position. The reasoning is the securities have already been sold, a price has been determined, and therefore the registration statement must include XBRL exhibits. Those planning PIPEs should consider themselves forewarned.
There are a couple of other noteworthy follow-up points to the S-1 resale registration statement situation that follow from the foregoing. It appears initial filing must include the XBRL exhibits, adding it by pre-effective amendment would apparently be poor form. And just including the XBRL exhibits from your first 10-Q will not do either. For registration statements, XBRL exhibits must cover all of the financial statements, including your annual financial statements.
Note that this is a multiple year problem. All issuers are subject to detailed footnote tagging requirements for filings that include an XBRL exhibit for a fiscal period that ends after June 15, 2012. So it appears annual financial statements included in an S-1 resale registration statement that include financial statements for a quarterly period ended June 30, 2012 will have to include detailed tagging, even though the Form 10-K was not so tagged. Issuers considering PIPE transactions during this time period may want to think about using detailed foot note tagging with their Form 10-K so they will be ready.
And do not forget the web site posting rules. Once that resale registration statement is filed with the SEC, all of the XBRL exhibits must be posted to the corporate web site (if there is one) on the same day.
Compare the foregoing results to an issuer filing an S-1 for an underwritten follow-on offering. Here, the adopting release is helpful and clear. The initial filing would not need to include the XBRL exhibits since that would not typically include a price or price range. Once a price or price range is included, all financial statements included in the S-1, including annual financial statements, will need to be covered by the XBRL exhibits.
So what about a universal shelf registration statement on Form S-3? We believe that as long as all financial statements are incorporated by reference, no further XBRL exhibits would be required. If financial statements are included within the four corners of the S-3, whether additional XBRL exhibits will be required depends on the facts and circumstances.
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