SEC Delinquent Filers Program
In 2004 the Securities and Exchange Commission (“SEC”) instituted the Delinquent Filers Program and created the Delinquent Filers Branch as part of its Division of Enforcement. The Delinquent Filers Branch was instituted to encourage publicly traded companies that are delinquent in the filing of their required periodic reports (Forms 10-K and 10-Q) under the Securities Exchange Act of 1934 (“Exchange Act”) to provide investors with accurate financial information upon which to make informed investment decisions. The securities registrations of issuers that fail to make their required periodic filings are subject to suspension or revocation by the SEC and other enforcement proceedings.
Since it was instituted, the SEC Delinquent Filers Branch has suspended the trading and/or revoked the registration of thousands of companies, often in sweeps of large groups of filers in a single day. Generally, a delinquent filer will receive a letter from the SEC giving the Company 15 days in which to make the filings current, and if such filings were not made current during that time, the SEC would institute administrative proceedings to revoke the registration of the Company’s securities.
A Company that is delinquent in its reporting requirements has three options to become current in its reporting requirements. Upon filing the delinquent reports, the Company will satisfy the current information requirement for use of Rule 144 and will satisfy the “filed all reports” requirement for use of Form S-8.
Option A: File All Past Due Exchange Act Reports
This option is fairly self-explanatory; however, a few practice notes are helpful. In preparing and writing the past due reports, the drafter should complete all the information to the current date of filing the report. The description of the business and business plans, the names and bios of the officers and directors, and the sale of unregistered securities should be written as of the date of filing—provided, however, that there should be an added section in the MD&A which discusses the financial statements attached to that particular report and addressing that particular period. Where appropriate, historical information should be disclosed. So, for example, if the officers and directors have changed, there should be an explanatory disclosure as to the changes and historical information presented, followed by the current officer and director information as of the date of filing.
Accordingly, when completing all past due filings, the bulk of each document will be exactly the same, with the differences consisting of the financial statements, the MD&A section discussing the financial statements for that particular period, and the front page disclosing the date for which the report applies. Each report must be signed and certified by the current chief executive and accounting officers.
Filing all delinquent reports will not satisfy the requirement that a Company has “timely filed” all periodic reports, but it will satisfy the requirement that the Company has filed all reports required to be filed over the subject period of time.
Option B: Request Permission for and File a Multi-year Comprehensive Form 10-K
A Company desiring to file a multi-year comprehensive Form 10-K must obtain permission from the SEC, which requires a great deal of initial groundwork to demonstrate the ability to file the required report in a timely fashion. In particular, a Company desiring to file a multi-year comprehensive Form 10-K must submit correspondence to the SEC’s Office of Chief Accountant at the Division of Corporation Finance with extensive detailed information regarding the missing reports and how the company intends to complete the multi-year comprehensive Form 10-K, including the exact financial statements to be included, the date the filing will be made, the auditor that has been retained (it is helpful for the auditor to include a statement that he or she has, in fact, been retained and is engaging in the required services), and any other supportive facts demonstrating the Company’s ability to comply with the request. This is just a brief summary of the information that must be submitted when requesting the ability to become current using the multi-year comprehensive Form 10-K.
Of course, competent counsel should be retained to either make the submission on the Company’s behalf or assist in the process. Generally, the SEC responds within 10 days.
As with Option A, the multi-year comprehensive Form 10-K will not satisfy the requirement that a Company has “timely filed” all periodic reports, but it will satisfy the requirement that the Company has filed all reports required to be filed over the subject period of time. Upon filing the multi-year comprehensive Form 10-K, the Company will satisfy the current information requirement for use of Rule 144 and will satisfy the “filed all reports” requirement for use of Form S-8.
Option C: Terminate Exchange Act Registration by Filing a Form 15 Followed by a Form 10 Registration Statement
If a Company qualifies to do so, they may file a Form 15, terminating its Exchange Act registration and thereby relieving it of the Exchange Act reporting requirements. To qualify to file a Form 15, a Company currently must either have fewer than 300 shareholders, or fewer than 500 shareholders if it has assets of less than $10 million.
Title V of The JOBS Act amends Section 12(g) and Section 15(d) of the Exchange Act as to threshold shareholder requirements and registration and deregistration requirements such that the shareholder threshold before requiring registration and subsequent reporting with the SEC has been increased from 500 to either (a) 2,000 or more, or (b) 500 or more unaccredited shareholders. It is expected that the SEC will implement rules to amend Exchange Act Rule 12g-4 to conform with Section 12(g).
A Form 15 does not technically relieve a Company’s obligation to file past due reports (only future reports); however, in practice the SEC does not generally require such filings.
An Issuer that files a Form 15 may thereafter file a new Form 10 registration statement subjecting it to the Exchange Act reporting requirements going forward. As with all Form 10 registration statements, the Form 10 will include two years of audited financial statements.
Option C is especially attractive to a Company that is in excess of two years delinquent in its reporting requirements and cannot reasonably obtain the records necessary to complete its audits for those years beyond the two-year period.
SEC Filings and Attorneys
Complying with the SEC reporting requirements is highly technical. Both the Company and individual signing officers are exposed to liability for the contents of such reports. Accordingly, the assistance of qualified SEC counsel is not only highly recommended, but imperative in this process.
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