It should be noted that this article focuses specifically on non-accelerated filers.
Companies subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are required to file quarterly reports on Form 10-Q and annual reports on Form 10-K. In additional articles, I will discuss in depth the contents and specific disclosure requirements of both forms. However, in summary, the quarterly report on 10-Q contains unaudited reviewed quarterly financial statements together with management discussion and analysis of those statements.
Form 10-K
The annual report on Form 10-K contains audited annual financial statements, together with management discussion and analysis of those statements as well as other disclosures including but not limited to management bios, management compensation, unregistered issuances of stock, generally background on the registrant, internal control reports, litigation matters and more.
Quarterly reports on form 10-Q are due 45 days from the end of the quarter and annual reports on Form 10-K are due 90 days from the end of the filers fiscal year end. Each filer has the right to file for an extension on Form 12b-25 which will not result in the filing being deemed delinquent.
Filing Extensions
Extensions must be filed no later than the due date of the 10-Q or 10-K for which the extension is filed. An extension of up to 15 calendar days is available for Form 10-K and up to 5 calendar days for Form 10-Q. In the event that the extension deadline ends on a weekend or holiday, the filing deadline is extended to the next business day. The extension period begins to run the day after the report was due. No further extensions are available. For example if a 10-Q is due on a Monday and a 12b-25 is filed on that Monday, the 10-Q would be due Saturday, however, since that is a weekend, the 10-Q could be filed the next Monday and not be deemed delinquent.
The Impact on Delinquent Filers
Failure to timely file a report will make the registrant a delinquent filer. The ramifications of being a delinquent filer vary depending on where the registrant’s stock is quoted (over the counter market OTCBB or OTCQB or an exchange such as NASDAQ). Delinquent filers trading on an exchange, generally face delisting from that exchange and are automatically quoted on the over the counter market. The exchange, such as NASDAQ, has broad discretion and authority in working with filers to maintain their exchange listing. The particular rules and regulations of each exchange, and effect of delinquent filing on a registrant’s stock quotation on that exchange, is beyond the scope of this article.
FINRA Rule 6530
FINRA Rule 6530 related to OTCBB eligible securities require that an OTCBB security be current in its Exchange Act reporting requirements. Filing a report within the extension period following the filing of a 12b-25 is deemed current. FINRA allows a 30 day grace period prior to removing a registrant from the OTCBB. However, if a registrant is late in filing its reports 3 times in any 2 year period, it will become ineligible to quote on the OTCBB, without benefit of a grace period. The registrant can re-apply for quotation after 12 months. The registrant will become ineligible regardless of whether it becomes current thereafter. This is a bright line rule – one day late, is late!
OTC Markets and the OTCQB
The OTC Markets, which operates the OTCQB, is not a self regulatory organization, but rather is a privately owned and run, for profit, quotation platform. Accordingly, it is not subject to legislative rules and regulations, its rules are not approved by the SEC, and are not subject to legislative review prior to change. Quotation on the OTCQB requires that registrants be “current in their SEC reporting requirements.” A search of the OTC Markets website did not provide any information as to any grace periods or particular standards related to late or delinquent filers.
All delinquent filers, regardless of where quoted, are subject to SEC enforcement proceedings for deregistration. A deregistered security may not be quoted anywhere or by any medium or by any broker or dealer until re-qualified, either through registration or a new 15c2-11 application. Deregistration is separate and distinct from delisting. Delisting is the removal of the stock from quotation from a specific exchange (such as NASDAQ or AMEX) or quotation service (such as OTC Markets). A delisted security may still be quoted by other quotation mediums. Deregistration is an action by the SEC. A deregistered security may not be quoted by any medium.
The Author
Attorney Laura Anthony,
Founding Partner, Legal & Compliance, LLC
Securities, Reverse Mergers, Corporate Transactions
Securities attorney Laura Anthony provides ongoing corporate counsel to small and mid-size public Companies as well as private Companies intending to go public on the Over the Counter Bulletin Board (OTCBB), now known as the OTCQB. For more than a decade Ms. Anthony has dedicated her securities law practice towards being “the big firm alternative.” Clients receive fast and efficient cutting-edge legal service without the inherent delays and unnecessary expense of “partner-heavy” securities law firms.
Ms. Anthony’s focus includes but is not limited to compliance with the reporting requirements of the Securities Exchange Act of 1934, as amended, (“Exchange Act”) including Forms 10-Q, 10-K and 8-K and the proxy requirements of Section 14. In addition, Ms. Anthony prepares private placement memorandums, registration statements under both the Exchange Act and Securities Act of 1933, as amended (“Securities Act”). Moreover, Ms. Anthony represents both target and acquiring companies in reverse mergers and forward mergers, including preparation of deal documents such as Merger Agreements, Stock Purchase Agreements, Asset Purchase Agreements and Reorganization Agreements. Ms. Anthony prepares the necessary documentation and assists in completing the requirements of the Exchange Act, state law and FINRA for corporate changes such as name changes, reverse and forward splits and change of domicile.
Contact Legal & Compliance LLC for a free initial consultation or second opinion on an existing matter.
