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by Laura Anthony, Esq.

How To Bring A Delinquent Exchange Act Reporting Company Current

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 hundreds of companies, often in sweeps of large groups of filers in a single day.  Generally, a delinquent filer would receive a letter from the SEC giving the Company 10 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.

Becoming Current

During the early years of the program, the SEC would not allow a multi-year or comprehensive filing, but would require the Company to file all missing reports (3 10-Q’s and 1 10-K for each year delinquent).  However, during the recession, and in particular 2008-2012, many companies subject to the Exchange Act reporting requirements became delinquent in the filing of such reports for valid and unavoidable business reasons.  In an effort to assist these entities in becoming current with their reporting requirements, the SEC, under certain circumstances, now allows the filing of a multi-year comprehensive 10-K in lieu of the filing of each and every missing report.

Accordingly, 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.  That is, the description of the business and business plans, the names and bios of the officers and directors, the sale of unregistered securities—basically everything—should be written as of the date of filing.  In addition, 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 will 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 that:

  • Lists all missing periodic reports;
  • Describes in relative detail the reason for the delinquency and explains why and how the Company intends to resume reporting;
  • Details 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 are engaging in the required services), and any other supportive facts demonstrating the Company’s ability to comply with the request;
  • Details any information that will not be included in the report that otherwise would be required and the reason for the exclusion (for example, lost or destroyed records) and requesting relief from the inclusion of such information under Rule 409 of the Exchange Act (Rule 409 allows a company to exclude information that is unknown and not reasonably available without unreasonable effort or expense with proper explanations of why the information cannot be obtained and the materiality of the missing information);
  • Requests that the SEC staff not object to the filing of the multi-year comprehensive Form 10-K in lieu of all individual delinquent reports; and
  • Promises to file all required future reports in a timely manner

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.  The SEC response reminds the Company that the SEC does not relieve reporting requirements, but that it may accept the one-time multi-year comprehensive Form 10-K as long as such document contains all of the following:

  • Audited financial statements for each delinquent fiscal year;
  • A section in the MD&A discussing the financial statements for each set of financial statements filed in the report, including quarterly statements, and a prior year or quarter comparison of results of operations for each year end period provided;
  • Unaudited summarized financial statements for each of the three quarters (and prior year comparisons) for at least the last two fiscal years;
  • All material information that would have been disclosed in the delinquent periodic reports had they been filed.

The multi-year comprehensive Form 10-K should be current to the date of filing, including the discussion of the business and business plans.  Additional disclosures and risk factors may appropriate related to missing information, reasons for the delinquency in reporting,  the impact of the delinquency in reports (such as Form S-3 eligibility), weaknesses in internal controls, and how the Company intends to rectify its issues and remain current in its reporting requirements in the future.

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.

As I have blogged about in depth in the past, 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.  I expect 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.

The Author

Laura Anthony, Esq.
Founding Partner
Legal & Compliance, LLC
Corporate, Securities and Going Public Attorneys
LAnthony@LegalAndCompliance.com

Securities attorney Laura Anthony and her experienced legal team provides ongoing corporate counsel to small and mid-size private companies, OTC and exchange traded issuers as well as private companies going public on the NASDAQ, NYSE MKT or over-the-counter market, such as the OTCQB and OTCQX. For nearly two decades Legal & Compliance, LLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions as well as registration statements on Forms S-1, S-8 and S-4; compliance with the reporting requirements of the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; Regulation A/A+ offerings; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers, ; applications to and compliance with the corporate governance requirements of securities exchanges including NASDAQ and NYSE MKT; crowdfunding; corporate; and general contract and business transactions. Moreover, Ms. Anthony and her firm represents both target and acquiring companies in reverse mergers and forward mergers, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. Ms. Anthony’s legal team prepares the necessary documentation and assists in completing the requirements of federal and state securities laws and SROs such as FINRA and DTC for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the OTC Market’s top source for industry news, and the producer and host of LawCast.com, the securities law network. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Las Vegas, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.

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