1. Periodic Reporting Under Securities Exchange ActBy
Lori A. Gelchion

2. Discussion Topics Federal Securities Law Overview
Who Must File Periodic Reports?
What are Periodic Reports?
What is a Reporting Company’s Filer Status?
When Must Periodic Reports be Filed?
What if a Periodic Report is Late?
When Must a Periodic Report be Amended?
Form Preparation and Mechanics

3. Federal Securities Law Overview
Securities Act of 1933
Regulates all offers and sales of a company’s securities.
Absent an exemption, all offers and sales must be registered with the SEC.
Also governs the use of offering documents and other communications with investors.

4. Federal Securities Law Overview
Securities Exchange Act of 1934
Sets out periodic reporting obligations for public companies.
Sets out proxy and tender offer rules for companies registered under Section 12 of the Exchange Act.
Also regulates national securities exchanges (NYSE, NASDAQ), broker-dealers, analysts and credit rating agencies.
The term “public company” or “reporting company” often refers to a company which is subject to the requirements of the Exchange Act.

5. Who Must File Periodic Reports?
A company must file periodic reports if it is subject to either:
Section 13 of the Exchange Act or
Section 15(d) of the Exchange Act.

6. Who Must File Periodic Reports? – Subject to Section 13
A company is subject to Section 13 of the Exchange Act if it has a class of securities registered pursuant to Section 12(b) or Section 12(g) of the Exchange Act.
Required to register under Section 12(b) if the company has securities listed on a national securities exchange
Applicable to debt or equity securities
Registration must be made concurrently with the listing of the securities on the national securities exchange
Required to register under Section 12(g) if the company has
Either 2,000 or more record holders OR 500 or more record holders that are not accredited investors AND
Total assets of at least $10 million
Section 12(g)
Applicable only to equity securities
Registration must be made within 120 days of the end of the fiscal year in which the registration thresholds are met

7. Who Must File Periodic Reports? – Subject to Section 15(d)
A company is subject to Section 15(d) of the Exchange Act if it has securities registered under the Securities Act.
(i.e., it has an effective registration statement under the Securities Act)
A company’s obligation to file periodic reports under Section 15(d) is suspended:
For any fiscal year (other than the year in which the Securities Act registration statement becomes effective), if the company has less than 300 record holders; or
If the company already has securities registered under Section 12 of the Exchange Act.

8. Who Must File Periodic Reports? – Section 13 or Section 15(d)
Why does it matter?
All reporting companies are not the same.
If subject to Section 13, then the company is also subject to the:
Proxy rules
Tender offer rules
Section 16 reporting rules
Beneficial ownership reporting rules for 5% or greater holders
If subject to Section 15(d), then the company does not have the foregoing obligations.

9. What are Periodic Reports?
Annual Report on Form 10-K
Quarterly Report on Form 10-Q
Current Report on Form 8-K
Proxy Statement (if subject to Section 13)

10. What are Periodic Reports? – Form 10-K
Annual update of information about the reporting company. Includes:
Description of the company’s business
Risk factors
Unresolved SEC comments
Description of material properties
Summary of material legal proceedings
Mine safety disclosures
Information about the company’s stock market, trading prices and dividend policy
Selected financial information
Management’s Discussion and Analysis of Financial Condition and Results of Operations (MD&A)
Quantitative and qualitative disclosures of market risk
Annual audited financial statements
Financial supplementary data
Changes in and disagreements with accountants
Controls and procedures
Information about directors and officers
Description of executive compensation
Beneficial ownership of securities
Related party transactions
Certain corporate governance matters

11. What are Periodic Reports? – Form 10-Q
A quarterly update of the information about the reporting company. Includes:
Unaudited quarterly financial statements
MD&A
Quantitative and qualitative disclosures of market risk
Controls and procedures
Summary of new material litigation or developments in previously disclosed litigation
Description of material changes to the risk factors from that previously disclosed
Defaults upon senior securities
Mine safety disclosures
Securities repurchased during the quarter
Unregistered sales of equity securities during the quarter (if not already reported on Form 8-K)

12. What are Periodic Reports? – Form 8-K
Current update of real-time information about the reporting company.
The company must make disclosure upon the occurrence of a “reportable event.”
Usually within four business days of the event
The company also may choose to voluntarily disclose additional information on Form 8-K that the company believes is important to stockholders.

13. What are Periodic Reports? - Form 8-K Reportable Events
Form 8-K Topical Sections:
Business and Operations
Financial Information
Securities and Trading Market
Matters Related to Accountants and Financial Statements
Corporate Governance and Management
Asset Backed Securities
Regulation FD Disclosure
Other Events (Voluntary Disclosure)
Financial Statements and Exhibits

14. What are Periodic Reports? – Form 8-K Reportable Events
Entry into a Material Definitive Agreement (Item 1.01)
Termination of a Material Definitive Agreement (Item 1.02)
Bankruptcy or Receivership (Item 1.03)
Acquisition or Disposition of Assets (Item 2.01)
Results of Operations (Item 2.02)
Creation of a Direct Financial Obligation or Off-balance Sheet Arrangement (Item 2.03)
Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation Under an Off-balance Sheet Arrangement (Item 2.04)
Exit or Disposal Activities that Involve Material Costs (Item 2.05)
Material Impairment of Assets (Item 2.06)
Notice of Delisting of the Issuer’s Securities, Notice of Failure to Comply With a Continued Listing Standard, or Transfer of a Securities Listing (Item 3.01)
Unregistered Sales of Equity Securities (Item 3.02)
Material Modifications of Rights of Security Holders (Item 3.03)
Changes in Accountants (Item 4.01)
Non-reliance on Previously Issued Financial Statements (Item 4.02)
Changes in Control (Item 5.01)
Board and Executive Matters (Item 5.02)
Amendment of Charter or Bylaws or Change in Fiscal Year (Item 5.03)
Trading Suspension Under Employee Benefits Plans (Item 5.04)
Code of Ethics Waiver or Amendment (Item 5.05)
Change in Shell Company Status (Item 5.06)
Shareholder Vote Results (Item 5.07)
Shareholder Director Nominations (Item 5.08)
Regulation FD Disclosure (Item 7.01)
Other Events (Item 8.01)
Financial Statements and Exhibits (Item 9.01)

15. What are Periodic Reports? – Form 8-K Common Reportable Events
Company enters into a merger agreement, stock purchase agreement or asset purchase agreement in which the company or substantially all of its business is to be sold or in which the company will acquire another company or new business (Item 1.01)
Company completes the acquisition of another company or business (Item 2.01)
Company sells a substantial portion of its assets or business (Item 2.01)
Company enters into a new credit agreement (Items 1.01, 2.03; possibly Item 1.02)
Company receives notice of default under an existing credit agreement (Item 2.04)
Company enters into a stockholder rights plan (Item 1.01)
Company issues convertible debt in a private placement (Item 2.03; possibly Item 3.02)
Company issues an earnings press release (Item 2.02)
Company receives letter from securities exchange that not in compliance with continued listing standards (Item 3.01)

16. What are Periodic Reports? – Form 8-K Common Reportable Events
Company changes auditors (Item 4.01)
Company must restate financial statements (Item 4.02)
Director resigns or retires (Item 5.02(b))
New director is appointed (Item 502(a))
Certain officers resign (Item 5.02(b))
Certain officers are appointed (Item 5.02(c))
Company enters into or amends employment agreements with certain officers (Item 5.02(e))
Shareholders approve new stock option plan for officers and directors (Items 5.02(e), 5.07)
Company will use an investor presentation with analyst and investors which contains material non-public information (Item 7.01)

17. What are Periodic Reports? – Form 8-K Common Voluntary Disclosures
Item 8.01:
Board authorizes a stock split
Board approves stock repurchase program
Board approves a spin-off of a subsidiary
Board declares a dividend
Board approves a redemption of outstanding debt
Named executive officer enters into Rule 10b5-1 trading plan
Company has a positive business development (for example, FDA approval of a new drug)
Company experiences a negative business development (for example, recall of an existing product)

18. What are Periodic Reports? Proxy Statement
Reporting companies that are registered under Section 12 of the Exchange Act must also comply with the proxy solicitation rules of the Exchange Act.
The proxy solicitation rules are set forth in Regulation 14A of the Exchange Act and
Provide the requirements that apply to any communication by a reporting company that would cause a stockholder to grant, withhold or revoke a proxy
Seek to ensure adequate disclosure of material information about any matter to be voted upon by stockholders
Dictate certain requirements for proxy contests
In short, Regulation 14A regulates all communications in which a company solicits proxies from its stockholders.

19. What are Periodic Reports? Proxy Statement – Contents
Schedule 14A sets out the specific information required to be in a proxy statement.
Information about the stockholders’ meeting
Notice of the meeting (including date, time and place)
Description of matters to be voted on at the stockholders’ meeting
The stockholder vote required to approve each matter
The company’s recommendation on each matter
Information about the company
Officers and directors
The board and its committees
Executive compensation
Ownership of the company’s securities by directors, officers and large stockholders
Corporate governance matters

20. What are Periodic Reports? Annual Report to Stockholders
When a public company delivers its proxy statement to stockholders, it must also deliver its annual report.
The annual report contains much of the same information as the Form 10-K, including:
Audited financial information
MD&A
A description of certain aspects of the company’s business
Stock and dividend information
Information about the company’s officers and directors
The company may use its Form 10-K as its annual report to stockholders, without any additions or modifications.

21. What is a Reporting Company’s Filer Status?
Reporting companies are categorized based on “size” and “age.”
Large Accelerated Filer
Accelerated Filer
Non-Accelerated Filer
Smaller Reporting Company

22. What is a Reporting Company’s Filer Status? – Why Does it Matter?
Filer status determines:
Deadlines for filing certain periodic reports
Level of disclosure required in certain periodic reports
As a result:
Legal, accounting and other compliance costs of remaining publicly traded are reduced for smaller reporting companies
Somewhat easier for young, growing companies to raise capital in the public markets

23. What is a Reporting Company’s Filer Status? – Large Accelerated Filer
A reporting company that meets all of the following conditions as of the end of its fiscal year:
Public float of common equity of $700 million or more as of the last business day of its most recently completed second fiscal quarter;
Subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act for at least 12 calendar months;
Previously filed at least one annual report to stockholders under Section 13(a) or 15(d) of the Exchange Act; and
Not eligible to rely on the smaller reporting company requirements for its annual and quarterly reports.

24. What is a Reporting Company’s Filer Status? – Accelerated Filer
A reporting company that meets all of the following conditions as of the end of its fiscal year:
Public float of common equity of $75 million or more (but less than $700 million) as of the last business day of its most recently completed second fiscal quarter;
Subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act for at least 12 calendar months;
Previously filed at least one annual report to stockholders under Section 13(a) or 15(d) of the Exchange Act; and
Not eligible to rely on the smaller reporting company requirements for its annual and quarterly reports.

25. What is a Reporting Company’s Filer Status? – Non-Accelerated Filer
A reporting company that does not meet the requirements to be:
An accelerated filer or
A large accelerated filer.

26. What is a Reporting Company’s Filer Status? – Smaller Reporting Company
A reporting company that is not an excluded issuer and has either:
A public float of common equity of less than $75 million or
Calculated as of the end of its most recently completed second fiscal quarter (if a reporting company) or
Calculated as of a date within 30 days of the filing date of its initial registration (if a non-reporting company)
Less than $50 million in revenue during its previous fiscal year (if it has no common equity public float or market price)
Excluded issuers:
Investment companies
Asset back issuers
Majority-owned subsidiaries of a parent company that is not a smaller reporting company

27. When Must Periodic Reports be Filed
When Must Periodic Reports be Filed? – Form 10-K and Form 10-Q Filing Deadlines
Filer Status
Form 10-K
Form 10-Q
Large Accelerated Filers
60 days after fiscal year end
40 days after fiscal quarter end
Accelerated Filers
75 days after fiscal year end
Non-Accelerated Filers (including Smaller Reporting Companies)
90 days after fiscal year end
45 days after fiscal quarter end

28. When Must Periodic Reports be Filed? – Form 8-K Filing Deadlines
Most reportable events require that the Form 8-K disclosing the event be filed no later than four business days after the event.
There are certain limited exceptions to the four business day deadline, including:
Regulation FD Disclosure – simultaneously with respect to any intentional disclosure of material non-public information or within 24 hours of any unintentional disclosure of such information (Item 7.01)
Financial statements and pro forma financial information for significant acquisitions – no later than 71 days after the original Form 8-K reporting the acquisition is filed (Item 9.01)
Other information – no filing deadline (Item 8.01)

29. When Must Periodic Reports be Filed? – Proxy Statement
Timing for filing and delivery of the proxy statement is determined by the date the company sets for its stockholders’ meeting.
The company’s organizational documents and state law set time periods for the delivery of a notice of the meeting (typically the notice period is at least 10 days, but no more than 60 days, before the meeting date)
The Exchange Act requires that a company must file the proxy statement with the SEC no later than the day that the company begins to deliver its proxy materials to stockholders
Proxy statement, proxy card, annual report
Under certain circumstances, need to file a preliminary proxy statement
Non-routine proposals
Must file preliminary proxy statement 10 calendar days before mailing it to stockholders
Subject to SEC review and comment

30. SEC Review of Form 10-K and Form 10-Q
Sarbanes-Oxley Act of 2002 requires the SEC to review a company’s periodic reports at least once every three years. The SEC may review a company’s reports more often if:
The company files a registration statement under the Securities Act (as a part of a review of the registration statement)
The SEC is monitoring compliance with a new rule or an existing rule
The SEC is monitoring specific companies
Typical SEC comments include questions based on disclosed information and requests to revise disclosure based on the SEC’s interpretation of its rules and regulations.
The company must respond to SEC comments by filing a response letter and may need to amend certain reports.

31. What if a Periodic Report is Late? – Consequences
If a company fails to file a required periodic report timely (or at all), the SEC may:
Revoke the company’s Exchange Act registration
Institute an investigation and seek injunctions and monetary penalties
Issue a cease and desist order
Assess a $100 per day fine for each day the company is in violation of the reporting requirement (if the company is reporting pursuant to Section 15(d))
The most significant consequences for many reporting companies are:
Loss of Form S-3 eligibility
Inability of stockholders to sell securities under Rule 144
Violation of the continued listing standards of the applicable securities exchange
Potential violation of covenants in credit or debt agreements

32. What if a Periodic Report is Late
What if a Periodic Report is Late? – Safe Harbor for Form S-3 Eligibility
To be able to use Form S-3, a company must have timely filed all required periodic reports during the previous 12 months.
A company that does not timely file certain Form 8-K reports will not lose its ability to use Form S-3 if it:
Files the delinquent Form 8-K before it files the Form S-3 or
Discloses the information that should have been filed in the delinquent Form 8-K in a Form 10-Q or Form 10-K before it files the Form S-3.
This exception applies only to certain Form 8-K Items , 1.02, 1.04, 2.03, 2.04, 2.05, 2.06, 4.02(a) or 5.02(e).
If the company fails to timely file a Form 8-K for another item, then the company would not be eligible to use Form S-3 for the next 12 months.

33. What if a Report is Late? – Form 12b-25
Rule 12b-25 requires a company to file a Form 12b-25 if all or any portion of its Form 10-K or Form 10-Q is not filed by the original filing deadline.
Form 12b-25 is due no later than one business day after the original filing deadline of the Form 10-K or Form 10-Q.
Form 12b-25 requires the company to:
State the reason for its inability to file the report in a timely manner
Provide both narrative and quantitative disclosure of any anticipated changes in its results of operations from the corresponding period for the last fiscal period
Represent that its inability to timely file could not be eliminated without unreasonable effort or expense
Represent that it will file the Form 10-K or Form 10-Q within 15 or 5 calendar days, respectively, of the original filing deadline

34. What if a Report is Late? – Form 12b-25
If the filing of the report is made before the end of the applicable extension period, then the report is deemed timely filed.
If the filing is not made before the end of the applicable extension period, or the Form 12b-25 is not otherwise in compliance, then the report is late.
Form 12b-25 is not available for filings on Form 8-K–only Form 10-K and Form 10-Q
If the filed Form 12b-25 relates only to a portion of the report, then the remainder of the report should be filed by the original filing deadline

35. What if a Report is Late? - Form 12b-25
During the extension period:
Company cannot use a registration statement if a condition to use is that the company has filed or timely filed all periodic reports
Company cannot file a new Form S-3 unless:
The delayed periodic report is filed and
It must be filed within the applicable extension period
Company may not use an already effective Form S-3 unless:
The prospectus included in the effective Form S-3 is a valid prospectus under Section 10(a) of the Securities Act
There are no anti-fraud concerns with the prospectus
Holders of company securities may not use Rule 144 for resell due to lack of current public information about the company

36. When Must a Periodic Report be Amended?
A company may need to amend a filed periodic report:
To revise disclosed information based on SEC comments
As a result of a restatement of its financial statements, to provide the restated financial statements and update any related financial disclosure
To correct any misstatements, omissions or errors (such as failing to file a necessary exhibit or filing the wrong exhibit)
Amendment is filed using the same form but name is changed (Form 10-K/A, Form 10-Q/A, Form 8-K/A).
Amendment does not need to restate the entire form, only the complete text of the specific item being amended.
Amendments should be filed as promptly as possible.

37. Form Preparation
Be certain you are working with the current form and related instructions - available at
Review carefully each disclosure item in the form and the applicable provisions of Regulation S-K and Regulation S-X.
Use available sources of information:
The applicable form from the previous year or quarter
Most recent registration or prospectus filed by the company
Board minutes and any board books or board packages
Company marketing information (brochures, publications, press releases)
Litigation records
Director and officer questionnaires
Coordinate collection of information, and drafting and review of the report, among parties (legal department, management, accounting department, auditors, board of directors, outside legal counsel).
Develop a timetable and responsibility schedule.

38. Filing Mechanics
Periodic reports must be filed electronically with the SEC through the EDGAR system.
Must convert the periodic report into specific electronic format accepted by EDGAR (also known as EDGARizing)
Conversion may be done by a financial printer or by outside counsel or the company if it obtains appropriate software package
In order to file by EDGAR, the company first must obtain the proper filing codes by requesting them through the SEC.
Regulation S-T:
Sets forth the requirements and procedures relating to electronic submissions
Requires electronic filings be prepared in accordance with the provisions of the EDGAR Filer Manual
Production and processing of the EDGAR submission takes time.
Prior to filing, confirm that signature pages to the periodic report have been executed.

39. Periodic Reporting Under the Securities Exchange Act
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