Portfolio 89-1st: Periodic Reporting Under the Federal Securities Laws
I. Introduction and Overview
A. Scope of the Portfolio B. Companies Subject to the Periodic Reporting Obligations C. Reports Required by the ‘34 Act D. Regulation S-K and Integrated Disclosure E. Electronic Filing F. SEC Review of Filings 1. Review process 2. SEC comment letter process 3. Public disclosure of comment letters and responses 4. Reconsideration of SEC comments 5. Disclosure of unresolved staff comments G. Consequences of Disclosure Deficiencies H. Preparing Disclosure Documents 1. Roles and responsibilities 2. Disclosure controls and disclosure committees 3. Certifications and sub-certifications a. Section 302 certification b. Section 906 certification 4. Exhibits 5. Signatures I. Web Posting 1. SEC requirements a. Website posting of periodic and current reports b. Website posting of governance materials 2. Exchange rules J. Amending SEC Filings
II. Duty to Disclose A. Objectives of Disclosure B. Sources of Duty to Disclose 1. Federal securities laws 2. Exchange listing standards
III. Key Concepts A. Materiality B. Filing vs. Furnishing C. Filing Requirements 1. Determining a filer status 2. Exiting a filer status 3. Filing deadlines D. ‘Plain English' E. Incorporation by Reference F. Industry Guides
IV. Forward-Looking Statements
V. Disclosure of Non-GAAP Financial Information
VI. Significant Disclosure Requirements A. Management's Discussion and Analysis 1. Item 303 of Regulation S-K a. Liquidity and capital resources b. Off-balance sheet arrangements c. Contractual obligations d. Results of operations 2. SEC guidance regarding MD&A a. Executive overview b. Trends and uncertainties c. Critical accounting estimates d. Segment reporting e. Related-party transactions f. Other areas of SEC comment 3. Presentation of MD&A 4. Developing issues a. Fair value accounting b. International Financial Reporting Standards c. Interactive data reporting d. Climate change disclosure B. Disclosure Concerning Executive Compensation, Related-Party Transactions, and Securities Ownership of Certain Beneficial Owners C. Risk Factors
VII. Form 10-K
A. Introduction B. Securities Law Filing Requirements C. Form 10-K Filing Deadlines 1. Timely filing of the Form 10-K 2. Late filing of the Form 10-K a. Inability to file on time due to unreasonable effort or expense b. Inability to file on time due to problems with electronic filing or interactive data submissions c. Consequences of late filing D. Incorporation of Information by Reference E. Format of the Form 10-K F. Content of the Form 10-K 1. Part I of the Form 10-K a. Item 1: Business b. Item 1A: Risk factors c. Item 1B: Unresolved staff comments d. Item 2: Properties e. Item 3: Legal proceedings f. Item 4: Specialized disclosures (1) Conflict minerals (2) Mine safety (3) Resource extraction 2. Part II of the Form 10-K a. Item 5: Market for registrant's common equity and related stockholder matters b. Item 6: Selected financial data c. Item 7: Management's Discussion and Analysis of Financial Condition and Results of Operation (1) Liquidity (2) Capital resources (3) Results of operation (4) Off-balance sheet arrangements (5) Contractual obligations (6) SEC interpretive guidance d. Item 7A: Quantitative and qualitative disclosures about market risk e. Item 8: Financial statements and supplementary data f. Item 9: Changes in and disagreements with accountants on accounting and financial disclosure g. Item 9A: Controls and procedures h. Item 9B: Other information 3. Part III of the Form 10-K a. Item 10: Directors, executive officers, and corporate governance (1) Information about directors, director nominees, and executive officers (2) Compliance with Section 16(a) of the ‘34 Act (3) Code of ethics (4) Corporate governance b. Item 11: Executive compensation (1) Compensation Discussion and Analysis report (2) New compensation disclosure requirements (3) Summary Compensation Table (4) Grants of Plan-Based Awards Table (5) Narrative disclosure to Summary Compensation Table and Grants of Plan-Based Awards Table (6) Outstanding equity awards at fiscal year-end table (7) Option exercises and stock vested table (8) Pension benefits (9) Nonqualified defined contribution and other nonqualified deferred compensation plans (10) Potential payments upon termination of change-in-control (11) Compensation of directors (12) Smaller reporting companies c. Item 12: Security ownership of certain beneficial owners and management and related stockholder matters (1) Equity compensation plan information (2) Security ownership d. Item 13: Certain relationships, related transactions, and director independence (1) Certain relationships and related transactions (2) Director independence e. Item 14: Principal accountant fees and services 4. Part IV of the Form 10-K a. Item 15: Exhibits, financial statement schedules, and reports on Form 8-K b. Signature and certification requirements
VIII. Annual Report to Shareholders A. Filing Requirements B. Distribution Requirements C. Contents of the Annual Report to Shareholders D. Liability Issues
IX. Form 10-Q A. Introduction B. Form 10-Q Filing Requirements C. Form 10-Q Filing Deadlines 1. Status of filer 2. Timely filing of the Form 10-Q 3. Late filing of the Form 10-Q a. Inability to file on time due to unreasonable effort or expense b. Inability to file on time due to problems with electronic filing or interactive data submissions c. Consequences of late filing D. Incorporation of Information by Reference E. Format of the Form 10-Q F. Content of the Form 10-Q 1. Part I of the Form 10-Q a. Item 1: Financial statements b. Item 2: Management's Discussion and Analysis of Financial Condition and Results of Operations (1) Material changes in financial condition (2) Material changes in results of operations c. Item 3: Quantitative and qualitative disclosures about market risk d. Item 4: Controls and procedures 2. Part II of the Form 10-Q a. Item 1: Legal proceedings b. Item 1A: Risk factors c. Item 2: Unregistered sales of equity securities and use of proceeds (1) Sales of equity securities (2) Repurchases of equity securities d. Item 3: Defaults upon senior securities e. Item 4: Specialized disclosures f. Item 5: Other information g. Item 6: Exhibits 3. Certifications 4. Signatures
X. Form 8-K A. Form 8-K Filing Requirements B. Filing Deadlines C. Incorporation of Information by Reference D. Triggering Events 1. Section 1: Registrant's business and operations a. Material definitive agreements b. Bankruptcy events c. Mine safety 2. Section 2: Financial information a. Asset acquisitions or dispositions b. Results of operation and financial condition c. Creation of direct financial or off-balance sheet obligation d. Acceleration or increase of direct financial or off-balance sheet obligation e. Exit or disposal activities f. Material impairments 3. Section 3: Securities and trading markets a. Delisting or transfer of listing b. Unregistered sales of equity c. Material modifications of security holder rights 4. Section 4: Matters related to accountants and financial statements a. Changes in certifying accountant b. Nonreliance on prior financial statements or interim review 5. Section 5: Corporate governance and management a. Changes-in-control b. Departure of officers or directors; director election; officer appointment; compensatory arrangements (1) Departure of a director as the result of a disagreement (2) Departure of an executive officer or director (3) Appointment of an executive officer (4) Election of a director (5) Adoption of material compensatory plan (6) Compensation omitted from Summary Compensation Table c. Amendments to articles, bylaws; change in fiscal year d. Suspension of trading under benefit plans e. Amendments to, or waiver of, code of ethics f. Change in shell company status g. Submission of matters to a vote of security holders 6. Regulation FD disclosure 7. Other events 8. Financial statements and exhibits 9. Signatures
Worksheet 1 Section 12(a)–(g) of the Securities Exchange Act of 1934 Registration Requirements for SecuritiesWorksheet 2 Section 13(a)–(b) of the Securities Exchange Act of 1934 Periodic and Other ReportsWorksheet 3 Section 15(d) of the Securities Exchange Act of 1934 Undertaking to File Periodic ReportsWorksheet 4 Regulation 12b—Rule 12b-2: Guidelines for Determining Filing StatusWorksheet 5 Regulation 12b—Rule 12b-20: All Material Information RequiredWorksheet 6 Regulation 12b—Rule 12b-23: Incorporation by ReferenceWorksheet 7 Regulation 12b—Rule 12b-25: Notification of Inability to Timely File Periodic ReportWorksheet 8 Regulation S-K—Items 101–103: BusinessWorksheet 9 Regulation S-K—Items 301–305: Financial InformationWorksheet 10 Regulation S-K—Items 401–407: Executive Compensation and Corporate GovernanceWorksheet 11 Form 8-K: Current ReportWorksheet 12 Form 10-Q: Quarterly ReportWorksheet 13 Form 10-K: Annual ReportWorksheet 14 CEO and CFO CertificationsWorksheet 15 Sample Annual Proxy Timetable—Notice and Access ModelWorksheet 16 Sample Directors' and Officers' QuestionnaireWorksheet 17 Management's Discussion & Analysis: Compliance Issues ChecklistWorksheet 18 Sample Director Independence and Financial Literacy QuestionnaireWorksheet 19 Sample Power of Attorney for Form 10-K FilingWorksheet 20 [RESERVED]Worksheet 21 [RESERVED]Worksheet 22 [RESERVED]Worksheet 23 [RESERVED]Worksheet 24 [RESERVED]Worksheet 25 [RESERVED]Worksheet 26 [RESERVED]Worksheet 27 SEC Release No. 33-6835: 1989 MD&A Interpretative Release (May 18, 1989)Worksheet 28 SEC Release No. 33-8350: 2003 MD&A Interpretative Release (Dec. 19, 2003)Worksheet 29 SEC Release No. 33-8182: Disclosure in Management's Discussion and Analysis About Off-Balance Sheet Arrangements and Aggregate Contractual Obligations (Jan. 28, 2003)Worksheet 30 SEC Release No. 33-8810: Commission Guidance Regarding Management's Report on Internal Control Over Financial Reporting Under Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (June 20, 2007)Worksheet 31 SEC Release Nos. 33-8934/9072: Internal Control Over Financial Reporting in Exchange Act Periodic Reports of Non-Accelerated FilersWorksheet 32 SEC Release No. 33-8400: Additional Form 8-K Disclosure Requirements and Acceleration of Filing Date (Aug. 4, 2004)Worksheet 33 NYSE Listed Company Manual, Section 303A.00–303A.13 And Related Frequently Asked Questions