Are You a Public Company? Everything You Need to Know about US Reporting

Posted on 12-05-2016 by
Tags: Lexis Practice Advisor , Forms , US Reporting , Reporting , Practice Insights , Public Company , SEC Compliance , Annual Reports

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:

  • Under Section 15(d) of the Exchange Act, any company which registers a class of securities under the Securities Act of 1933, as amended (Securities Act)
  • Under Section 12(b) of the Exchange Act, any company which lists its securities on a national securities exchange
  • Under Section 12(g) of the Exchange Act, any company which meets the thresholds for the number of holders of its securities and total assets, or which voluntarily chooses to register a class of equity securities despite not meeting the above thresholds

The following resources provide a detailed explanation of the statutory scheme under which companies become reporting companies:

  1. Understanding Reporting Obligations under Section 15(d) of the Exchange Act by Andrew F. Fowler, Hughes Hubbard & Reed LLP
  2. Understanding the Registration Requirements under Section 12 of the Exchange Act by Andrew F. Fowler, Hughes Hubbard & Reed LLP  

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

Practice Notes

  1. Drafting and Reviewing Form 10-Q by Jonathan C. Guest, The Hereditary Disease Foundation
  2. Drafting and Reviewing Form 10-K by Jonathan C. Guest, The Hereditary Disease Foundation
  3. Preparing the CEO-CFO Certifications by Richard M. Phillips, K&L Gates LLP  
  4. Understanding the XBRL Reporting Requirements by Jonathan C. Guest, The Hereditary Disease Foundation  
  5. Preparing a Late Periodic Report by Jonathan C. Guest, The Hereditary Disease Foundation

Forms and checklists

  1. Form 10-K Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
  2. Form 10-Q General Form for Quarterly Reports under Section 13 or 15(d) of the Securities Exchange Act of 1934  
  3. Sample Risk Factor: Private Equity Portfolio Company Status
  4. Sample Risk Factor: Cybersecurity
  5. Sarbanes-Oxley Section 302 Certification
  6. Sarbanes-Oxley Section 906 Certification
  7. Director and Officer Questionnaire - Annual Report and Proxy Statement
  8. Board Resolutions: Approving Financial Information and Periodic Reports
  9. Forward-Looking Statements Legends
  10. SEC Reporting for Voluntary Filers: Checklist
  11. Important Considerations When Drafting the MD&A Section Checklist
  12. Checklist – Preparing a Late Periodic Report
  13. Form 10-Q Checklist  
  14. Form 10-K Checklist  
  15. Checklist – Form Checking SEC Filings  
  16. Checklist: Periodic Reports - Filing Deadlines  
  17. Form of Response to SEC Comments: Periodic Reports
  18. Form 12b-25 Notification of Late Filing
  19. XBRL Financial Statement Reporting Requirements Chart
  20. SEC Organizational Chart  

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:

  • Item 1.01. Entry into a Material Definitive Agreement
  • Item 1.02. Termination of a Material Definitive Agreement
  • Item 1.03. Bankruptcy or Receivership
  • Item 1.04. Mine Safety – Reporting of Shutdowns and Patterns of Violations

See Drafting a Form 8-K for a Section 1 Event

  • Item 2.01. Completion of Acquisition or Disposition of Assets
  • Item 2.02. Results of Operations and Financial Condition
  • Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
  • Item 2.04. Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement
  • Item 2.05. Costs Associated with Exit or Disposal Activities
  • Item 2.06. Material Impairments

See Drafting a Form 8-K for a Section 2 Event

  • Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
  • Item 3.02. Unregistered Sales of Equity Securities
  • Item 3.03. Material Modification of Rights of Security Holders

See Preparing a Form 8-K for a Section 3 Event

  • Item 4.01. Changes in Registrant's Certifying Accountant
  • Item 4.02. Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or a Completed Interim Review

See Drafting a Form 8-K for a Section 4 Event

  • Item 5.01. Changes in Control of Registrant
  • Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
  • Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
  • Item 5.04. Temporary Suspension of Trading Under Registrant's Employee Benefit Plans
  • Item 5.05. Amendments to the Registrant's Code of Ethics, or Waiver of a Provision of the Code of Ethics
  • Item 5.06. Change in Shell Company Status
  • Item 5.07. Submission of Matters to a Vote of Security Holders
  • Item 5.08. Shareholder Director Nominations
  • Item 6.01. ABS Informational and Computational Material

See Preparing a Form 8-K for a Section 5 Event

  • Item 6.02. Change of Servicer or Trustee
  • Item 6.03. Change in Credit Enhancement or Other External Support
  • Item 6.04. Failure to Make a Required Distribution
  • Item 6.05. Securities Act Updating Disclosure’
  • Item 7.01 Regulation FD Disclosure
  • Item 8.01 Other Events
  • Item 9.01. Financial Statements and Exhibits

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:

  1. Form 8-K Current Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
  2. Form 8-K Checklist
  3. Checklist: Form 8-K, Item 5.02
  4. Checklist – Form Checking SEC Filings

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:

  1. Complying with the Conflict Minerals Rule in Three Steps by Lexis Practice Advisor Attorney Team
  2. A Guide to SEC Disclosure Obligations under the Iran Threat Reduction and Syria Human Rights Act of 2012
  3. The Dodd-Frank Wall Street Reform and Consumer Protection Act: Road Map to Key Provisions
  4. Form SD Specialized Disclosure Report
  5. Checklist: Conflict Minerals Disclosure
  6. Checklist: Company Action Items to Prepare for Conflict Minerals Rule Compliance

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:

  1. Understanding Reporting Obligations under Section 15(d) of the Exchange Act by Andrew F. Fowler, Hughes Hubbard & Reed LLP  
  2. How to Deregister a Security by Andrew F. Fowler, Hughes Hubbard & Reed LLP
  3. Form 15 Certification and Notice of Termination of Registration under Section 12(g) of the Securities Exchange Act of 1934 or Suspension of Duty to File Reports under Sections 13 and 15(d) of the Securities Exchange Act of 1934  
  4. Form 15F Certification of a Foreign Private Issuer's Termination of Registration of a Class of Securities Under Section 12(g) of the Securities Exchange Act of 1934 or Its Termination of the Duty to File Reports Under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934  
  5. Form 25 Notification of the Removal From Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934  

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