Form 10-K Checklist and Responsibilities Table
December 2014
Form 10-K Checklist and Responsibilities Table
Note that the following table has been prepared to assist domestic public companies to manage the process of preparing an annual report on Form10K and is only a general outline of the disclosure requirements of Form10K.This table is not a substitute for review of applicable SEC rules, regulations, forms and interpretations or the advice of qualified legal and accounting professionals. This table is intended to be used with the Public Company Annual Timetable and the accompanying Proxy Statement Checklist and Responsibilities Table and should be modified as necessary to reflect the company’s management structure, business(es), finances, regulatory/legal requirements, status under various SEC rules, and other relevant concerns. Please note that this table does not reflect SEC rules applicable to “smaller reporting companies” or “emerging growth companies.” Please also note that foreign private issuers, asset backed issuers, registered investment companies and others are subject to requirements that in some cases differ significantly from those on which these tables are based.
The table below can also be used to assist in preparation of Quarterly Reports on Form10Q; applicable items of Form10Q are shown below in rows with double-lined outside borders: ╔══╗
Requirements for Form10K reports that have changed since the preceding year for companies with calendar year ends are summarized on the following page and shown in the table below in rows with yellow shading.
Each member of the disclosure committee (or company personnel serving in an equivalent role) should read the entire draft Form 10-K or Form 10-Q report except to the extent that the company’s procedures reasonably provide otherwise.The responsibilities shown in the table below highlight specific sections to which it is suggested that designated individual reviewers should givespecial attention.
If you have received a copy of this document in Adobe Acrobatformat and would like an editable copy in Microsoft Word format, please contact your regular Goodwin Procter attorney. This document is provided with the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin Procter LLP or its attorneys.
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2014– 2015year-End Tool KitSummary of 2014-2015 Changes
2013 COSO Framework. If the company has adopted the 2013 COSO framework as its framework for internal control over financial reporting, review and if necessary revise the following:
- Form 10-K, Item 9 (Controls and Procedures):
- a statement identifying the framework used by management to evaluate the effectiveness of the registrant's internal control over financial reporting (Regulation S-K, Item 308(a)(2); and
- disclosure as to whether any change in the company’s internal control over financial reporting that occurred during the registrant's last fiscal quarter (the company’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting.
In addition, Item 15 (Exhibits, Financial Statement Schedules) requires that the CEO and CFO certify that they have disclosed any change in the company’s internal control over financial reporting that occurred during the company’s most recent fiscal quarter (the company’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting. In light of recent SEC enforcement activity regarding CEO/CFO certifications, companies and the certifying officers should ensure that appropriate internal procedures have been performed and disclosures made in the Form 10-K or Form 10-Q report.
XBRL – Expiration of Rule 604T. The temporary rule that excluded XBRL submissions from certain liability provisions expired on October 31, 2014. Review and if necessary revise any statements (including footnotes) on the exhibit index or elsewhere that refer to Rule 604T and/or its effects. This would apply to statements such as “[p]ursuant to Rule 406T of Regulation S-T, these interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of Section 11 or 12 of the Securities Act of 1933 or Section 18 of the Securities Exchange Act of 1934 and otherwise are not subject to liability.”
Section of Report / Regulation S-K Reference / Drafted By / Reviewer(s) / CommentsForm10K/10Q Filing Deadlines
Form10KSubsequent Form10Qs 404 Compliance
Large Accelerated Filers* (public float ≥ $700MM)60 days40 dayscurrent
Accelerated Filers* (public float ≥ $75MM and < $700MM)75 days40 dayscurrent
Non-Accelerated Filers* (public float < $75MM)90 days45 dayssee below
Permanent Non-Accelerated Filer Exemption –Internal Control/Section 404
Under SEC rules implementing Section 989G of the Dodd-Frank Act, non-accelerated filers are permanently exempt from the requirement to provide an auditor attestation on the company’s internal control over financial reporting.They continue to be subject to the requirement to provide a management report (including an assessment of effectiveness) on internal control over financial reporting in their annual reports.
*See definitions below.
Interactive Financial Data / XBRL
All reporting companies are now subject to SEC rules that require companies to submit interactive financial data with their Form 10-K and Form 10-Q filings.Newly public domestic companies become subject to the interactive data requirements for the first quarterly report on Form 10-Q due after becoming public companies.
Note that there is a check box on the cover page of Form10-K and Form10-Q that companies should use to indicate whether or not they have complied with these rules.
2015 Update: Rule 406T expired on October 31, 2014. Rule 406T was a temporary rule that applied to interactive data files submitted to the SEC during the first 24 months after the company was first required to submit an Interactive Data File to the SEC or until October 31, 2014, if earlier. After these dates, an Interactive data file is subject to the same liability provisions as the related official filing.
As a result, companies should delete references to Rule 406T, such as footnotes to XBRL exhibits listed in Item 15 to the effect that “[p]ursuant to Rule 406T of Regulation S-T, these interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of Section 11 or 12 of the Securities Act of 1933 or Section 18 of the Securities Exchange Act of 1934 and otherwise are not subject to liability.”
Entering and Exiting Large Accelerated Filer and Accelerated Filer Status
Exiting Accelerated Filer Status.Once a company becomes an accelerated filer, it will remain an accelerated filer unless the company determines at the end of a fiscal year that the aggregate worldwide market value of the voting and non-voting common equity held by non-affiliates of the company was less than $50 million as of the last business day of the company’s most recently completed second fiscal quarter. A company making this determination becomes a non-accelerated filer. The company will not become an accelerated filer again unless it subsequently meets the conditions for accelerated filer status under SEC rules.
Exiting Large Accelerated Filer Status.Once a company becomes a large accelerated filer, it will remain a large accelerated filer unless the company determines at the end of a fiscal year that the aggregate worldwide market value of the voting and non-voting common equity held by non-affiliates of the company was less than $500 million as of the last business day of the company’s most recently completed second fiscal quarter. If the company’s aggregate worldwide market value was $50 million or more, but less than $500 million, as of the last business day of the company’s most recently completed second fiscal quarter, the company will be an accelerated filer. If the company’s aggregate worldwide market value was less than $50 million, as of the last business day of the company’s most recently completed second fiscal quarter, the company will be a non-accelerated filer.The company will not become a large accelerated filer again unless it subsequently meets the conditions for large accelerated filer status under SEC rules.
How Change of Status Affects Filing Deadlines: Acceleration of Deadlines.The determination at the end of a company’s fiscal year for whether a non-accelerated filer becomes an accelerated filer, or whether a non-accelerated filer or accelerated filer becomes a large accelerated filer, governs the deadlines for the annual report to be filed for that fiscal year, the quarterly and annual reports to be filed for the subsequent fiscal year and all annual and quarterly reports to be filed thereafter while the company remains an accelerated filer or large accelerated filer.
How Change of Status Affects Filing Deadlines: Deceleration of Deadlines.The determination at the end of the company’s fiscal year for whether an accelerated filer becomes a non-accelerated filer, or a large accelerated filer becomes an accelerated filer or a non-accelerated filer, governs the deadlines for the annual report to be filed for that fiscal year, the quarterly and annual reports to be filed for the subsequent fiscal year and all annual and quarterly reports to be filed thereafter while the company remains an accelerated filer or non-accelerated filer.
Facing Page (Cover)
[Securities registered pursuant to Section 12(b) of the Act]
or
[Securities registered pursuant to section 12(g) of the Act] / Form10K / For securities registered pursuant to Section 12(b) of the Securities Act of 1933, state the title of each class and the name of each exchange on which the class is listed.
For securities registered pursuant to Section 12(g) of the Securities Act of 1933, state the title of each class.
[Well-Known Seasoned Issuer Status] / Form10K / Determine whether the company is a “well-known seasoned issuer” as defined in Rule 405* and check the appropriate box.
* Generally, a company that is (1) current and timely in its Exchange Act reports for at least one year and (2) has either (a) $700 million of worldwide public common equity float or (b) during the preceding three years has issued $1 billion or more of non-convertible securities, other than common equity, in registered offerings for cash.
Note that not all “well-known seasoned issuers” will be “large accelerated filers” due to differences in the date for determination of public float and the exclusion of “ineligible issuers” from the definition of well-known seasoned issuer.
[Voluntary Filer Status] / Form10K / Check the appropriate box to indicate whether the company is a voluntary filer.
[Status of Company’s Filings] / Form10K
Form10Q / Determine whether the company (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the company was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days.Check the appropriate box.
[Section 16 Filing Compliance] / Form10K / Determine whether all of the company’s Section 16 filers have filed all Section 16 reports on a timely basis during the fiscal year covered by the Form10K.The box should not be checked if any Section 16 reports were late.
[Large Accelerated Filer – Accelerated Filer –
Non-Accelerated Filer – SmallerReporting Company Status] / Form10K
Form10Q / Determine whether the company is an accelerated filer or large accelerated filer as defined in Rule 12b-2* and check the appropriate box.
Determine whether the company is a smaller reporting company as defined in Rule 12b-2* and check the appropriate box.
SEC rules require companies to check a box indicating whether they are a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company.
*For summaries of the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company,” see the following page.
Large accelerated filers are companies that have a public equity float of $700 million or more and satisfy the additional conditions below.
Accelerated filers are companies that have a public equity float of at least $75 million and satisfy the additional conditions below.Public float is determined as of the last business day of the most recently completed second fiscal quarter.Additional conditions: in addition to the public float test, large accelerated filers and accelerated filers must (1) have been subject to the periodic reporting requirements of the Securities Exchange Act of 1934 for at least twelve months, (2) have previously filed at least one annual report pursuant to Section 13(a) or 15(d) under the Exchange Act, and (3) not be eligible to use SEC “smaller reporting company” rules.
Companies will not qualify as smaller reporting companies if they had a public float of less than $75 million as of the last business day of the most recently completed second fiscal quarter, computed by multiplying the aggregate worldwide number of shares of the voting and non-voting common equity held by non-affiliates by the price at which the common equity was last sold, or the average of the bid and asked prices of common equity, in the principal market for the common equity.
[XBRL/interactive financial data compliance] / Form10K
Form10Q / Check this box to indicatewhether the company has submitted electronically and posted on its corporate website every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the company was required to submit and post such files).
[Public Common Equity Float] / Form10K / Determine the aggregate market value of the voting and non-voting common equity held by non-affiliates (“public float”) as of the last business day of the company’s most recently completed second fiscal quarter, computed by reference to the price at which the common equity was last sold, or the average bid and asked price of such common equity as of such date.
[Shell Company Status] / Form10K
Form10Q / Check the appropriate box to indicate whether the company is a shell company as defined in Rule 12b-2 (generally, a company with nominal or no business operations and nominal or no assets other than cash or cash equivalents).
[Shares Outstanding] / Form10K
Form10Q / Determine the number of shares of each class of the company’s common stock that are outstanding as of the latest practicable date.
[Documents Incorporated by Reference] / Form10K / Confirm that the proxy statement will be filed within 120 days after the end of the company’s fiscal year so that specific sections can be incorporated by reference into Part III of the Form10K.
List documents incorporated by reference and the part of the Form10K report into which the documents are incorporated.
[Registrants Involved in Bankruptcy Proceedings] / Form10K
Form10Q / If the company has been involved in bankruptcy proceedings during the preceding five years, determine whether the company has filed all documents and reports required to be filed by Section 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court.
Part I
[Forward-Looking Statements Cautionary Disclaimer] / Form10K
Form10Q / Legal / In addition to any risks that company personnel are specifically asked to review, each reviewer should identify any risks that are not included in the list of factors andthat he or she believes could have a material adverse or positive effect on the company’s business, prospects, or financial condition and results of operations.
See also Item 1A, “Risk Factors,” below.
New 2013/2014Disclosures
Iran Disclosure
New for 2013 / Exchange Act Section 13(r) / The Iran Threat Reduction and Syria Human Rights Act of 2012 amended the Exchange Act to require disclosure if the company or any of its affiliates is knowingly engaged in one or more of a variety of specified activities.
If the company or an affiliate engaged in any of these activities during the period covered by any annual or quarterly report, it must provide specified detailed disclosure concerning the activity and file a notice with the SEC.
Conflict Minerals Disclosure
New for 2013/2014
Notes:
Reports cover calendar years (irrespective of the company’s fiscal year)beginning with the calendar year beginning January 1, 2013.
Reports for each calendar year are due on the following May 31; as a result, the Form SD covering the 2014 calendar year will be due on June 1, 2015 (the first business day after May31, 2014). / Rule 13p-1 and FormSD / Companies must determine whether “conflict minerals” are “necessary to the functionality or production” of a product that the company manufactures or contracts to manufacture. If a company determines that it is subject to these disclosure requirements, it must submit a certified Conflict Minerals Report to the SEC on Form SD that includes, among other things, a description of the due diligence measures the company has taken to determine the source and chain of custody of the conflict minerals.
If a company determines that its products do not contain conflict minerals, then there are no disclosure obligations under Rule 13p1.
Item 1.Business / 101 / [ ] / [Division and/or segment heads and/or other business unit leaders] / Business Description – Business Unit Review
Each business unit representative should review each portion of the business section and identify any information that may be missing, incomplete or incorrect with respect to their area(s) of responsibility.
[Business Development]
[Investor Relations] / Business Description – Investment Review
Review each portion of the business section to ensure that the portrayal is consistent with the reviewers’ understanding of the company’s business, finances and prospects.Any information that may be inconsistent with industry data or analyst reports should be appropriately explained.
[Website Access to SEC Reports]
Applicable only to large accelerated filers and accelerated filers / 101(e) / Investor Relations
Legal / Large accelerated filers and accelerated filers must (and the SEC encourages other filers to) disclose:
- the company’s website address, if it has one; and
- whether the company makes available free of charge on or through its website its 10K, 10Q, and 8K reports, including exhibits (per SEC adopting release), and amendments to those reports, as soon as reasonably practicable after filed with or furnished to the SEC – note that the SEC has stated that this means on the same day as filed or furnished.