SEC Relief for Smaller Reporting Companies

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1 It has taken more than two years, but the U.S. Securities and Exchange Commission (SEC) recently finalized rules to make it easier for smaller companies to qualify for reduced reporting requirements. SEC Chairman Jay Clayton noted that one size regulatory structure for public companies does not fit all. The amendments effective September 10, 2018 increase smaller reporting company (SRC) thresholds, expanding the number of companies qualifying for scaled disclosures under Securities Act of 1933 Regulation S-K and Regulation S-X these are summarized in the Appendix. The rule also increases the thresholds for a company to requalify as an SRC after a limit breach, which helps to avoid entering and exiting SRC status due to small fluctuations in revenue or. Companies with public of less than $250 million will now qualify as SRCs. A company with no public or with a public of less than $700 million will qualify as an SRC if it had annual revenues of less than $100 million during its most recently completed fiscal year. The SEC estimates 966 registrants could benefit from the new SRC thresholds, mostly in banking and pharmaceutical products. The changes are summarized in the table below. SRC Thresholds* Category Current New Below is criteria for initial determination or a current SRC to continue to qualify. For the first fiscal year ending after the rule becomes effective, a registrant can qualify as an SRC if it meets either of these thresholds, even if it previously did not quality as an SRC. Reporting Registrant (end of second fiscal quarter) Registrant Initial Public Offering (within 30 days of filing) Registrant with Zero Public Float (most recent fiscal year) Less than $75 million of public Less than $75 million of public Less than $50 million of revenue Less than $250 million of public Less than $250 million of public Less than $100 million of revenue and No public, or Public of less than $700 million A company that does not qualify as an SRC under the above thresholds will remain unqualified until it determines it meets one or more lower qualification thresholds, noted below. Non-SRC Requalify Non-SRC Requalify with Zero Public Float (most recent fiscal year) Less than $50 million of public Less than $40 million of revenue Less than $200 million of public, if it previously had $250 million or more of public ** Less than $80 million of revenue, if it previously had $100 million or more of annual revenues, and Less than $560 million of public, if it previously had $700 million or public * Excludes investment companies, asset-backed issuers and the majority-owned subsidiary of a parent that is not an SRC. ** A registrant that was not previously an SRC and subsequently qualifies based on a public of less than $200 million will qualify as an SRC regardless of its revenues.

2 Regulation S-X Update The final rule also aligns the revenue thresholds between the SRC definition and relief under Rule 3-05 of Regulation S-X. The revenue threshold was increased from $50 million to $100 million for certain acquirers to omit the earliest of the three fiscal years of audited financial statements of certain targets. Accelerated Filers The SEC divides all issuers into categories that determine both filing deadlines and the application of the auditor s attestation of management s assessment of internal controls over financial reporting (ICFR): large accelerated, accelerated and nonaccelerated filers. Under the new rules, a company can qualify as an SRC and still be an accelerated filer. The definitions of accelerated and large accelerated filers are based on public ; however, the SRC changes do not increase the current $75 million public threshold in the accelerated filer definition. Companies with $75 million or more of public qualifying as an SRC would be subject to accelerated filers requirements, including earlier filing deadlines and ICFR. SEC staff is working on changes to the accelerated filer definition that, if adopted, likely would have the effect of reducing the number of companies that quality as accelerated filers. Current Rules Nonaccelerated filers New Rules Nonaccelerated filers Qualifying as an SRC will no longer automatically make a registrant a nonaccelerated filer. BKD has prepared a library of BKD Thoughtware on public company reporting. Visit our Hot Topics page to learn more. If you have questions about these changes, contact your BKD advisor. 2

3 Contributor Anne Coughlan Director

4 Appendix This table summarizes the current scaled disclosure accommodations available to SRCs. The SEC s disclosure effectiveness initiative has not, as yet, resulted in any changes to these requirements. Item Regulation S-K Reduced Disclosures 101 Description of Business May satisfy disclosure obligations by describing the development of its business during the last three years rather than five years 201 Market Price of and Dividends on the Registrant s Common Equity and Related Stockholder Matters 301 Selected Financial Data Not required 302 Supplementary Financial Information Not required 303 Management s Discussion and Analysis (MD&A) of Financial Condition and Results of Operations 305 Quantitative and Qualitative Disclosures About Market Risk Business development description requirements are less detailed than disclosure requirements for nonsmaller reporting companies Stock performance graph not required Two-year MD&A comparison rather than three-year comparison Two-year discussion of impact of inflation and changes in prices rather than three years Tabular disclosure of contractual obligations not required Not required 402 Executive Compensation Three named executive officers rather than five 404 Transactions With Related Persons, Promoters and Certain Control Persons Two years of summary compensation table information rather than three. Not required: Compensation discussion and analysis Grants of plan-based awards table Option exercises and stock vested table Pension benefits table Nonqualified deferred compensation table Disclosure of compensation policies and practices related to risk management Pay ratio disclosure Description of policies/procedures for the review, approval or ratification of related party transactions not required 4

5 407 Corporate Governance Audit committee financial expert disclosure not required in first year 503 Prospectus Summary, Risk Factors and Ratio of Earnings to Fixed Charges Compensation committee interlocks and insider participation disclosure not required Compensation committee report not required No ratio of earnings to fixed charges disclosure required. No risk factors required in Exchange Act filings 601 Exhibits Statements regarding computation of ratios not required Item Regulation S-X Reduced Disclosures 8-02 Annual Financial Statements Two years of income statements rather than three years Two years of cash flow statements rather than three years Two years of changes in stockholders equity statements rather than three years 8-03 Interim Financial Statements Permits certain historical financial data in lieu of separate historical financial statements of equity investees 8-04 Financial Statements of Businesses Acquired or to Be Acquired Maximum of two years of acquiree financial statements rather than three years 8-05 Pro Forma Financial Information Fewer circumstances under which pro forma financial statements are required 8-06 Real Estate Operations Acquired or to Be Acquired Maximum of two years of financial statements for acquisition of properties from related parties rather than three years 8-08 Age of Financial Statements Less stringent age of financial statements requirements 5