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Lexis Practice Advisor provides an overview of the periodic and current reporting obligations of companies which are subject to the reporting requirements of Section 13 of the Securities Exchange Act of 1934, as amended (Exchange Act), as well as detailed practice notes, forms and checklists on this topic.
Reporting Companies and their Obligations
Periodic and current reporting obligations for “reporting companies” simultaneously represent a critical source of information for current and potential investors, creditors, and business partners and a significant burden for company management and counsel.
A company becomes a reporting company under Section 13 of the Exchange Act when it fulfills any of the following criteria:
The following resources provide a detailed explanation of the statutory scheme under which companies become reporting companies:
Although outside the scope of this resource guide, counsel should note that a separate, reduced set of reporting obligations are imposed upon companies which conduct “Tier 2” offerings under Regulation A-Plus. See “Regulation A-Plus” Limited Public Offerings under Securities Act Section 3(b)(2) by Robert N. Rapp, Calfee, Halter & Griswold LLP.
Preparing and Filing Forms 10-Q, 10-K, and 8-K
Reporting companies must file quarterly reports on Form 10-Q, annual reports on Form 10-K, and current reports on Form 8-k with the Securities Exchange Commission (SEC). Reporting companies that fail to file Forms 10-Q or 10-K are subject to liability under Section 10 of the Exchange Act and Rule 10b-5 thereunder for failure to disclose material information or an omission. Certain of the Form 8-K items do not carry such liability for failure to file.
Form 10-Q is filed after each of the reporting company’s first three quarters of its fiscal year, while Form 10-K includes information about its fourth fiscal quarter and the year as a whole. Both filings contain similar information, such as a description of the company’s business; risk factors pertaining to the company’s business, securities, or finances; pending or threatened legal proceedings; and a discussion of the company’s financial condition and results of operations. Attached to Form 10-Q and Form 10-K are a number of exhibits, such as material agreements or the consent of independent registered accountants to include their audit of the company’s financial statements. The disclosure requirements for these filings are largely, though not exclusively governed by Regulation S-K under the Securities Act and cross-references to the relevant sections of Regulation S-K are present on Forms 10-Q and 10-K.
For a detailed discussion of these disclosures, please see the following materials:
Preparing and Filing Annual Reports on Forms 10-Q and 10-K
Forms and checklists
By contrast, Form 8-K is required to be filed only after certain, specified events occur. The information a reporting company will disclose on this form will change according to which “8-K event” has occurred. Events reportable on Form 8-K are divided into nine sections:
See Drafting a Form 8-K for a Section 1 Event
See Drafting a Form 8-K for a Section 2 Event
See Preparing a Form 8-K for a Section 3 Event
See Drafting a Form 8-K for a Section 4 Event
See Preparing a Form 8-K for a Section 5 Event
See Preparing a Form 8-K for Reg. FD Disclosure, Filing Exhibits and Other Events
In addition, please see the following forms and checklists for further guidance:
The filing deadline for most 8-K events is four days after the occurrence of such event and extensions are not available for late filings. The failure to file a timely Form 8-K for certain items will prevent a reporting company from being eligible to use Form S-3 Registration Statements [See Using Form S-3 Registration Forms by Michael Rave, Day Pitney LLP], which can stifle a company’s ability to raise capital quickly. In view of this potentially severe consequence, counsel should arrange to be notified quickly of any event potentially reportable on Form 8-K.
It is important for counsel to review Forms 10-Q, 10-K, and 8-K each time prior to preparing them, as the SEC will update them from time to time.
The SEC will review Forms 10-Q, 10-K, and 8-K and may respond with comments that require the company to respond with an explanation or to amend its filing with clarifying language or additional disclosure. For example, a company which discloses non-GAAP financial measures in a Form 10-K will cause the SEC to require the company to reconcile such measures with the most directly comparable GAAP measure (See Understanding SEC Regulation of Non-GAAP Financial Measures by Michael Zeidel, Skadden, Arps, Slate, Meagher and Flom LLP). Counsel should review recent SEC comment letters and Compliance & Disclosure Interpretations to anticipate and resolve potential comments before they occur.
Other Reporting Requirements for Reporting Companies
In addition, reporting companies are required to file conflict mineral disclosure reports on Form SD, to make certain disclosures under the Iran Threat Reduction and Syria Human Rights Act of 2012, and disclose certain resource extraction payments, as applicable.
For further detail, please see the following:
Suspension of Reporting Requirements
Reporting companies can never terminate their reporting obligations under Section 15(d) or Section 12, but they can suspend their Section 15(d) or Section 12(g) obligations by filing Form 15. If the class of securities registered is held of record by less than 300 persons (1,200 for banks and bank holding companies) at the beginning of any fiscal year, this suspension occurs automatically (though Form 15 must still be filed) pursuant to Exchange Act Rule 12h-3(b). A company with a class of securities registered under Section 12(b) may (or the exchange upon which such securities are listed may) file a Form 25 and delist and deregister such class to suspend reporting obligations. For a detailed discussion of the suspension of reporting obligations, please see the following: