Category Archives: Vintage Filings

What is required in an SEC 10-K file

In concert with the recent posts about printing annual reports and 10-Ks, an overall review of what is required in a 10-K seems appropriate.

All public companies other than foreign private issuers must file an Annual Report on Form 10-K following the end of each fiscal year. The Form 10-K includes four parts, the items of which are described below.

10k

Annual report and 10-K filing need not be daunting. Click the image to learn more about how we’ll help.

Part I of Form 10-K provides a general description of the business of the company and its properties along with the risk factors that investors should consider when investing in the company.

Part I also includes:

  • a description of any material legal proceedings other than routine litigation incidental to the business to which the company or any of its subsidiaries is a party or to which any of its property is subject, and any such proceedings that were terminated in the fourth quarter of its fiscal year (along with a description of the outcome)
  • for accelerated filers and large accelerated filers, a description of any material unresolved comments from the SEC staff regarding the company’s periodic and current reports that were received 180 days or more before the end of the fiscal year and…
  • if applicable, a statement that the information concerning mine safety violations or other regulatory matters required by Section 1503(a) of the Dodd-Frank Act and Item 104 of Regulation S-K (which are discussed in more detail in section of this handbook entitled “The Dodd-Frank Act”) is included in an exhibit to the Form 10-K

Part II of Form 10-K includes a comparative presentation of selected financial data for the last five fiscal years, management’s discussion and analysis of the company’s operating results and its liquidity and capital resources, and the audited consolidated financial statements of the company (which may also be filed in Part IV), along with certain supplementary quarterly financial data.

Part II also includes:

  • information relating to the company’s common stock, including the trading market, historical high and low sales prices, the number of registered holders, the payment of cash dividends, unregistered sales of securities, and company repurchases of its common stock during the fourth fiscal quarter
  • quantitative and qualitative disclosures relating to market sensitive instruments held by the company and other primary market risk exposures (smaller reporting companies do not need to provide the information required by this item)
  • if there has been a change in the principal accountants of the company, disclosure of:  1.) any disagreements with the accountants that the accountants would have been required to disclose; or  2.) any “reportable event” that had occurred, which was material and accounted for or disclosed in a manner different from what the former accountants would have apparently concluded was required (which disclosure is required with respect to disagreements or reportable events that occurred during the year in which the change in accountants took place or during the subsequent year)
  • the conclusion of the company’s principal executive and financial officers regarding the effectiveness of the company’s disclosure controls and procedures (which are discussed in more detail below in the “Disclosure Controls and Procedures” part of this section and in the section of this handbook entitled “The Sarbanes-Oxley Act”)
  • management’s assessment of the effectiveness of the company’s internal control over financial reporting, including disclosure of any material weakness in its internal controls
  • an attestation report of the independent auditors on the company’s control over financial reporting
  • any changes in the company’s internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, such internal controls and…
  • any information required to be reported in a Form 8-K during the fourth quarter that was not reported

Companies need not comply with disclosure requirements relating to disclosure controls and procedures and internal control over financial reporting until after they have filed an Annual Report on Form 10-K for a prior fiscal year. In addition, as codified in Section 989G of the Dodd-Frank Act, smaller reporting companies and non-accelerated filers are exempt from the requirement to include the attestation report of the independent auditors on the company’s internal control over financial reporting.

Part III of the Form 10-K includes disclosures relating to directors, executive officers, corporate governance, executive compensation, the beneficial ownership of management and certain large shareholders, related person transactions, director independence and accountant fees and services. Part III items may only be incorporated by reference if such proxy statement is filed within 120 days of the company’s fiscal year end. If the proxy statement is not filed within such 120-day period, the company must file an amendment to its Form 10-K prior to the end of such period that includes the Part III information.

Companies should list under Part IV of the Form 10-K their financial statements and the schedules required to be filed in Part II, along with all exhibits required to be filed by Item 601 of Regulation S-K.

The exhibits to the Form 10-K will generally include:

  1. all material contracts
  2. the company’s organizational documents
  3. all instruments defining the rights of security holders
  4. a list of the company’s significant subsidiaries
  5. any applicable consents of experts and counsel (namely, the consent of the independent auditors where the financial statements are incorporated by reference in one or more registration statements)
  6. certifications under the Sarbanes-Oxley Act, which are described in more detail below and…
  7. interactive data files with the company’s financial statements in XBRL. Most exhibits can be incorporated by reference to a previously filed document. Management contracts and compensatory plans and arrangements must be specifically identified.

Summary of Selected Items

Risk Factors. Item 503(c) of Regulation S-K requires public companies to disclose under the caption “Risk Factors” a discussion of the most significant factors that make investing in the securities of the company risky or speculative. The factors should be those risks that are specific to the company and should not include risks that apply to every public company. As a general rule, any fact or circumstance that could pose a risk to the company’s financial condition, results of operations or potential growth, or which could otherwise materially affect the performance of the company’s securities, may be a risk factor. In addition to identifying the risk factors, the company must discuss how each factor could affect the company or its securities. Companies should not include mitigating language in their risk factor disclosures.

In addition, the discussion of risk factors must be written in plain English. Smaller reporting companies are not required to provide the information required under this item. Many smaller reporting companies, however, will include risk factors in their Annual Reports to take advantage of a safe harbor defense for forward-looking statements.

Section 21E of the Exchange Act provides a safe harbor defense for companies in securities litigation for forward-looking statements that are made by the company in its Exchange Act reports. This defense is similar to the defense in Section 27A of the Securities Act and the “bespeaks caution” defense developed in securities case law. Forward-looking statements, which are commonly found in a company’s MD&A (defined below), are statements not of historical fact but of the expectations of the company with respect to its future performance or other predictions or expectations regarding future events.

To qualify for the safe harbor, companies must identify the forward-looking statements in the report with sufficient particularity and accompany the statements by cautionary language that identifies the significant factors that could cause actual results to materially differ from those contained in the forward-looking statements. The risk factors identified in the Form 10-K and other filings can provide the meaningful cautionary language required by the safe harbor.

CURTIS-HANDBOOK

Click the image to request our free Corporate Governance Handbook.

Management’s Discussion and Analysis (MD&A) of Financial Condition and Results of Operations.

Item 303 of Regulation S-K requires a discussion and analysis of the company’s operating results and its liquidity and capital resources. As articulated by the SEC, the purpose of this disclosure is to present the company’s financial condition and results of operations “through the eyes of management” and to provide the context for analysis of the financial information presented in the periodic report. A critical requirement of the Management’s Discussion and Analysis of Financial Condition and Results of Operations (better known as the MD&A) is to disclose any known trends, commitments, events or uncertainties that have had or are reasonably likely to have a material effect (positive or negative) on the company’s operating results or liquidity.

The MD&A should identify and discuss the principal drivers that have impacted and will continue to impact the company’s operating results and financial condition, as well as key performance measures, including non-financial performance indicators, which are used by management and which would be material to investors, particularly where management refers to these measures in its earnings releases. In general, the MD&A should emphasize material information and de-emphasize or omit immaterial or duplicative information.

Among other material items, the MD&A should include an analysis of the following matters relating to the company:

  • changes in cash flows
  • debt instruments and certain related covenants, including covenants:  1.) the company has breached or is reasonably likely to breach; or  2.) that materially restrict the company’s ability to incur additional debt or to undertake an equity financing
  • critical accounting policies and estimates that require subjective judgments to account for uncertain matters or matters subject to change
  • any material tax contingencies or trends or uncertainties that could affect the company’s tax obligations or effective tax rate
  • commitments for capital expenditures
  • material contingencies arising from pending litigation and regulatory matters
  • commitments for environmental expenditures and…
  • any off-balance sheet arrangements

The MD&A should include a liquidity and capital resources section that provides a clear picture of the company’s ability to generate cash and to meet existing and known or likely future cash requirements. The discussion should focus on material changes and trends in operating, investing and financing cash flows and the reasons underlying those changes. The MD&A also must include quantitative tabular disclosure regarding the company’s contractual obligations.

Sarbanes-Oxley Certifications

The Sarbanes-Oxley Act created two certification requirements for the principal executive and principal financial officers of public companies. Section 302 of the Sarbanes-Oxley Act requires a certification that is filed with each quarterly and annual report and which states that the reports are accurate and complete and that the company has in place adequate disclosure controls and procedures and internal control over financial reporting. Section 906 of the Sarbanes-Oxley Act requires a certification that is furnished with any report containing financial statements and which states that the report fully complies with Section 13(a) or 15(d) of the Exchange Act and fairly presents, in all material respects, the financial condition and results of operations of the company. Although paragraph 3 of the Section 302 certification may be omitted in certain circumstances, and plural references to “certifying officers” in paragraphs 4 and 5 can be made singular, the certifications must otherwise strictly follow the language provided in SEC rules.The SEC has said that it will not accept an altered certification even if the alteration would appear to be inconsequential. If a filed certification is not correct and complete, the accompanying report may be considered by the SEC to be materially incomplete and deemed not filed (thus potentially affecting Form S-3 eligibility, among other things).

Signatures

The Form 10-K must be signed on behalf of the company by a duly authorized officer as well as by its principal executive officer(s), its principal financial officer(s), its controller or principal accounting officer, and by at least a majority of the members of the board of directors. When the form is filed by a limited partnership, it must be signed by at least a majority of the members of the board of directors of any corporate general partner that signs the report.

Video snippets: more help shopping the different styles of annual reports

Judging by feedback from last’s week’s post on “shopping” for an annual report, it’s a fair topic to continue discussing. Reading this post first will help in understanding the video descriptions. BTW, the video snippets are peacefully silent.

In the vocabulary of “Monty Python and the Holy Grail,” printed annual reports are not dead yet. They remain a viable element of the shareholder communications mosaic.

ABOVE

  • Cover: 4-color gloss coated cover stock
  • Pages: The inside pages are on the same paper stock as the 10-K. Very helpful financial summary on the first page, followed by shareholder letter, etc.
  • 10-K: Black ink on 24 lb white paper
  • This booklet is saddle stitched

ABOVE

  • Cover: 4-color gloss coated cover stock
  • Pages: 4-color, gloss text for the shareholder letter
  • 10-K: Black ink on 24 lb white paper
  • This booklet is perfect bound – assumedly due to the thickness of the 10-K

ABOVE

  • Cover: 4-color gloss coated cover stock with a financial summary printed on the inside cover
  • Pages: The inside pages are on the same paper stock as the 10-K, including the three page shareholder letter.
  • 10-K: Black ink on 24 lb white paper
  • This booklet saddle stitched– a great example of a pure “10-K Wrap”

ABOVE

  • Cover: 4-color gloss coated cover stock
  • Pages: There is no shareholder letter or “marketing” within this book
  • 10-K: Black ink on 24 lb white paper
  • This booklet perfect bound– giving the 10-k book a very finished look

As you can see, the style and scope of hardcopy annual reports is varied: there is no “best practice.” Budget, quantity and shareholder expectations should drive your process and production.

I’ll post more examples next week.

Are you getting close to “going to press?” Click here to be sent samples.

Have a great day.

Annual report “shopping” vocabulary and video examples

The IR benchmarking survey on annual reports prompted discussions with clients and new prospects about selecting a format for their annual report printing.  Most conversations were very tactical.

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THE PRINTER’S JARGON

4-color… is full color. The only distinction now is whether your print on a traditional printing press or digital print. The variables you will discuss when shopping depend on your creative and volume.

  • Traditional printing is generally used for larger print quantities or very exact color (brand) matching.
  • Digital printing is, simply put, a really high-end version of the HP printer sitting on your desk. Perfect for smaller volumes and rush scenarios.

1-color… usually means “black ink only.” The meat of the 10-K.

Cover stock… is the thicker paper used for both the front and back covers. It is described in “pounds” and generally ranges from 65 lb to 120 lb, depending on the paper itself.

  • “Coated cover” is generally a glossy stock. Most times, you will be using 100 lb – 120 lb weight, as the glossiness makes the paper softer.
  • Uncoated cover is a flat paper, much like a business card. You may be in the 65 lb – 100 lb weight range.
  • Generally, you will print on both sides of the front cover. You will always print the back cover, often NOT the inside back cover. It costs you no more to not print on the inside back. That is a visual design choice.

Text stock… are the pages inside of the covers. The guts.

  • It follows the same descriptions as cover stock, just much thinner weights. 20 lb – 32 lb. “Copier paper” is 24 lb-ish.

Binding…. is how the annual report is held together

  • Saddle stitched means the annual report pages are folded in half and stapled. This physically creates a “10-K wrap.” (The front cover is the back cover, the first inside page is the same piece of paper as the last inside page and so on.)
  • Perfect bound is a flat glued spine. It’s can be more expensive, however it allows for any configuration of paper/pages and presents itself in a very finished manner.

Sheets of paper vs. page count… can be confusing. We financial printers think in terms of “pages” not paper. A simple example is if you take an 11″x 17″ piece of paper and fold it in half, that’s a four page annual report. Get it?

  • This only “really” matters for saddle stitched annual reports. The page count needs to be in a multiple of four. If you come up short, we print “This page is intentionally left blank.”

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Below are examplesEach clip is about 15 – 20 seconds.

ABOVE

  • Cover: 4-color gloss coated cover stock with a (creative) die cut
  • Pages: Eight pages – 4-color gloss paper stock for the shareholder letter and overview. The first page uses a UV coating (extra shiny “clear” ink) just on the barrels photo to make them pop off the page
  • 10-K: Black ink on 24 lb white paper
  • This booklet is perfect bound

.

ABOVE.

  • Cover: 4-color gloss coated cover stock
  • Wrap pages: Two pages –  4-color gloss text for shareholder letter and overview
  • 10-K: Black ink on 24 lb white paper
  • This booklet is saddle stitched

.

ABOVE

  • Cover: 4-color gloss coated cover stock – shareholder letter on inside of the cover
  • 10-K: Black ink on 24 lb white paper
  • Even though this is a classic 10-K wrap, this booklet is perfect bound which gives it a nice finish

I’ll post more examples next week.

Do you have a job we can quote? Click here to be sent samples.

Have a great day.

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Dammit, how many times do I have to tell you? It’s a Cautious IPO, not stealth or secret

An excellent article in yesterday’s NYT DealBook regarding companies taking advantage of the JOBS Act’s “confidential IPO” process. Or as we like to describe this S-1 registration… a cautious IPO.

ipostealth

 

What I liked most about the piece is the position that the process is becoming the new normal for emerging growth tech companies.

From the article:

It’s not just technology companies. Roughly 70 to 80 percent of all I.P.O.s in the United States that priced last year began as confidential filings, according to the research firm Renaissance Capital.

“It wasn’t really a hard decision,” said Robert Chesnut, the general counsel of Chegg, an education start-up that filed confidentially before it went public last fall. “There were lots of advantages and not much in the way of a downside.”

You can read the full article here.

I also recommend you download our recent whitepaper that compares the workflow of a confidential IPO against a traditional IPO. I think the comparison will surprise you.  Click here for the whitepaper.

Our Transactions team frequently works (S-1 registration drafting sessions) with cautious IPOs.  I’d tell you more, but then that would NOT be very confidential of me.

Have a great day

Whitepaper illustrates the simple difference between traditional IPOs and confidential IPOs

Click the image to download the whitepaper

Click the image to download the whitepaper

When Twitter announced their confidential IPO last year, many pundits took this as a negative move. “Something is up over there…” Bah. As blogged here, the word “cautious” is a better word to describe the motives of the confidential IPO process.

What is a confidential IPO? The JOBS Act allows firms with less than $1 billion in annual revenue (emerging-growth companies or EGCs) to keep their IPO filings confidential up until just three weeks before they roadshow and market their shares. This is in contrast to the typical S-1 file which is openly filed months before the roadshow giving potential investors, media, peers and competitors a longer time window to consider an investment.

So the questions are… what are investors missing? Is there material information they are not seeing? What is held confidential? What is the SEC doing? Are investors going to “get screwed” from this clock-and-dagger filing?

  • No information is held back from potential investors.
  • The SEC is doing the exact same work they always do with a “traditional” S-1 (IPO) filing.

As you will read in the whitepaper, the single workflow difference is when the S-1 file is released to the public. The confidential IPO process only alters the timeline of the S-1 disclosure, not the material information within the S-1. Traditional or confidential IPO – the same amount of information is disclosed. 

Why file confidential? The confidential filing gives EGCs some elbow room to discover different options to access required capital… including a public offering, a complete sale or some other capital-raising path. The confidential option is very useful for companies in a market that is demonstrating shorter pricing windows due to volatility. They can begin the regulatory review process quietly and if “The Market” environment becomes unfavorable, they can peacefully stop the process without facing any market backlash for “pulling their IPO.”

Lastly, in situations like Twitter perhaps, a confidential filing lessons the intense media spotlight – allowing the executive team to focus.

____________________________________________________________________

Vintage Filings has worked with hundreds of companies for their transactions. Here is one of our confidential IPO clients interviewed in Forbes.

Download the whitepaper here.

Have a great day.

Vintage Filings ranked high as SEC filing provider for 2013 by SECinfo. com

The beauty of being in the SEC compliance business is that our efforts are 100% transparent. Many 3rd party sites and feeds measure filings… the ultimate “client testimonial.” Once again, Vintage Filings has made the top three, just behind the legacy firms.

SECINFO

2013 was a terrific year. We celebrated our tenth anniversary. We expanded our IPO transactions business and hosted many drafting sessions in our new space within PR Newswire’s office. (watch video)  We updated our typesetting systems, further enhancing speed and accuracy. Our fleXBRL program has helped hundreds of companies make XBRL filing less burdensome (workflow and cost). Heck… we even sold an IR Room (investor relations website) every 3.6 business days.

Bottom-line. Why did we do so well in 2013? Accuracy and fair pricing. Compare our fee structure for yourself.  Click here to get information and a quote. 

Kudos to our product and sales people for making marketing and blog writing so easy! 

Have a great day.

SEC closed for Christmas Holiday: Wednesday, December 25th

In honor of Christmas, the SEC is closed on Wednesday, December 25, 2013. No files can be received.

Files submitted after 5:30 pm ET, Tuesday, December 24, 2013 will receive a filing date of Thursday, December 26, 2013 and will be posted to the public on December 26.

SECCOOKIES

 

As with other holiday closings, the following file types will receive a Tuesday, December 24, 2013 filing date if filed by 10:00 pm ET on Tuesday:

  • Form 13H filings
  • Section 16 filings (3, 3/A, 4, 4/A, 5, 5/A)

For any filing with a due date of Wednesday, December 25, 2013, the SEC will move the due date to the next business day.

Have a great day.

PwC study highlights IPOs and SEC workflow trends

PwC released an excellent study last month titled: Preparing for success: 2013 technology IPO SEC comment letter trends.

An interesting area to us (…who execute the S-1 drafting session) is the research regarding the JOBS Act confidential filing for Emerging Growth Companies (EGC) provision. Recently, this confidential filing process came under some fire from pundits when Twitter announced that this was the manner in which they were going to file. “What are they hiding” was the discussion climate. Our view is blogged here – we positioned the Confidential IPO as a “Cautious IPO.”

One point that the PwC study offers to reinforce that “cautious” viewpoint is the average timeframe of an IPO… from initial S-1 (traditional or confidential) to ringing the bell is eight months. That’s eight months of opening your kimono to every one of your competitors. For a technology company (especially web-based), months are like dog years… and a savvy competitor can catch up very quickly.

PwCiop

A confidential IPO filing review with the SEC is the same as a traditional IPO:

What investors need to be mindful of is that the SEC review process for all IPOs is the same. It can become quite a game of ping-pong – and judging by the recent increase in SEC fraud “arrests,” the SEC is diving deeper and deeper into filings to protect investors.

What is the S-1 workflow? Please click here to download our whitepaper on the S-1 filing process. It’s a very tactical explanation.

Have a great day.

Two conferences! One day! No waiting!

photoelliotContrary to popular belief, there is nothing “commodity” about compliance or investor relations products. It’s ALWAYS a “relationship sell” as the entire industry is built on trust. That’s why we expend great energy to get out to physical conferences. To look clients and future clients right in the eye. 

Today, we’re at two events:

  • Western Non-Traded REIT Symposium, Orange County ~ we have a large REIT client base, particularly for typesetting, filing and printing.
  • LD Micro Annual Conference, in Los Angeles proper ~ as described here, our SEC and IR are a favored choice for many Microcap companies.

Please stop by. Meet us.

Have a great day.

Microcaps need to “Think Mega” to position and protect themselves in 2014

In case you have not noticed, the SEC has been very active toward ferreting out fraud ~ and have widely publicized their success. The three enforcement groups they announced this year have been a perfect storm, especially with the fraudulent activities surrounding corrupt microcap companies and their “advisors.”

think-mega

The three task forces:

  • The Financial Reporting and Audit Task Force dedicated to detecting fraudulent or improper financial reporting, whose work will enhance the Division’s ongoing enforcement efforts related to accounting and disclosure fraud.
  • The Microcap Fraud Task Force targeting abusive trading and fraudulent conduct in securities issued by microcap companies, especially those that do not regularly publicly report their financial results.
  • The Center for Risk and Quantitative Analytics employing quantitative data and analysis to profile high-risk behaviors and transactions and support initiatives to detect misconduct, increasing the Division’s ability to investigate and prevent conduct that harms investors.

The Microcap Task Force focuses on fraud in the issuance, marketing and trading of microcap securities – developing and implementing strategies that detect and fight microcap fraud, especially by focusing on advisors, such as attorneys, auditors, broker-dealers, and other significant participants – including investors. This task force uses the “big data” tools of the Center for Risk and Quantitative Analytics: assisting the Microcap Task Force via delivering analytical techniques and computing capacity with special expertise in big data mining.

The Financial Reporting Task Force will expand the Microcap Fraud Task Force’s ability to identify violations concerning the preparation of financial statements; issuer reporting and disclosures & audit failures.

How we help transparent microcaps:

  • You must “Think Mega” to separate your company from the pump-and-dump companies that poison the microcap well. Implement the exact same philosophies and shareholder communications practices of megacap issuers. Yes, that means spending some money on investor relations. Start with a true IR website – not just a couple links off to Yahoo, OTC markets or SEC.gov sites. Remember what we’ve learned (click here). Over half of investors will not take a position in a company that does not have an IR website. We have a specially priced IR website JUST for OTC listed companies.
  • Our fleXBRL program assures your company is getting high quality XBRL tagging and filing at a flexible price point that is in concert with a micro-cap’s budget and with how you work. Certainly, there are cheaper providers, but XBRL is very precise and the complexity of error is exponentially higher than straight-up EDGAR. Metaphorically, you need to consider XBRL as “computer code…” and one bad line can be your “glitch” that alerts the SEC’s perfect storm of task forces. You do NOT want that.

2014 is coming. Think Mega!    

Click here to learn about our investor relations websites. Click here to tell us your preferred XBRL reporting workflow.

Have a great day.