As we blogged on August 21, the SEC has adopted a 314-page Final Rule dealing with “Disclosure Update and Simplification”. The rule has a myriad of fairly detailed updates to Regulations S-X and S-K, as well as many of the Forms and other rules. These changes are effective 30 days after publication in the Federal Register. As of the date of this post, September 26, 2018, the final rule has not been published in the Federal Register.
This means that these changes may or may not be in effect for the period ended September 30, 2018. This would be true for both quarterly and annual periods. If your filing has a due date more than 30 days after publication the new rule would apply if the SEC uses its normal effective date procedures. Given the many places this new Rule will affect periodic reports the CorpFin staff has already published one C&DI about the transition so far, which deals with the new requirement for changes in shareholders’ equity information in Form 10-Q. We will post the details about that change in our next post. The message is stay tuned!
In this next series of posts we will begin to focus a bit on how these changes will affect reporting. To begin at the beginning of your next Form 10-K, the final rule , on page 224, makes these changes to S-K Item 101, the description of the business in Item 1 of Form 10-K:
“Amend § 229.101 by:
1. Removing and reserving paragraphs (b), (c)(1)(xi) and (d);
2. Revising paragraphs (e) introductory text and (e)(2) and (e)(3);
3. Removing and reserving paragraph (h)(4)(x); and
4. Revising paragraph (h)(5)(iii)”
To help you get started making changes for your next Form 10-K and 10-Q, here are the details:
- First, by removing paragraph (b) the Final Rule removes the requirement for segment disclosures in Item 1. Most companies historically simply cross referenced to their financial statements for this requirement as it required the same information as GAAP. The SEC eliminated this duplicative disclosure in the Final Rule.
- Along the same lines as paragraph (b), removing paragraph (d) eliminates the requirement for geographical information in Item 1. Most companies simply cross referenced to their financial statements for this requirement also, as it also required the same information as GAAP. The SEC also eliminated this duplicative disclosure in the Final Rule.
- Paragraph (c)(1)(xi) is the requirement to disclose company sponsored and customer sponsored R&D expense.Since GAAP requires essentially the same disclosures, the SEC eliminated this duplicative disclosure of R&Din the Final Rule.
- The changes in paragraphs (e), (e)(2) and (e)(3) are about the posting of website information. The changes here are very detailed, but not dramatic in scope. The only part of this change specifically attributable to Form 10-K is in the introductory paragraph (e) and in (e)(3). Before this change the requirement to disclose your webpage and information about posting SEC reports only applied to accelerated and large accelerated filers. With this change, the requirement to disclose your webpage now applies to all filers. This is the old language in paragraph e(3), which is struck-through to emphasize it is superseded:
(3) You are encouraged to give your Internet address, if available, except that if you are an accelerated filer or a large accelerated filer filing your annual report on Form 10-K, you must disclose your Internet address, if you have one.
The new language in paragraph (e)(3) is, which with the change in paragraph (e) now applies to all filers is:
(3) Disclose your Internet address, if you have one.
Paragraph e(4), which still only applies to accelerated and large accelerated filers and is not changed, is the requirement to make disclosures about website availability of your 34 Act periodic and current reports.
There is one other change worth noting in this section. The old language in paragraph (e)(2), which applies to registration statements under the 33 Act, has finally been updated. It used to read:
(2) That the public may read and copy any materials you file with the SEC at the SEC’s Public Reference Room at 100 F Street, NE., Washington, DC 20549. State that the public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. If you are an electronic filer, state that the SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC and state the address of that site (http://www.sec.gov).
It is now updated to read: (Finally!)
(2) State that the SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC and state the address of that site (http://www.sec.gov).
Many companies have historically included this language in Form 10-K, so if you do you can update it.
- Paragraphs (h)(4)(x) and (h)(5)(iii) make the changes to eliminate the R&D disclosure and update the website information disclosure for smaller reporting companies.
As you can see, none of the changes are earth shattering, but there is a fair amount of detail.
This post and the next several posts will hopefully help you begin marking up your drafts for your next 10-Qs and 10-K.
As always, your thoughts and comments are welcome!