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Obligations of a public company
6.1 Reporting and compliance
requirements
Cleary Gottlieb Steen & Hamilton LLP
(a) Periodic and other reports
After the IPO, the company must file
regular “periodic” and other reports
with the SEC in accordance with the
requirements of the Exchange Act, which
for U.S. companies include:
Periodic reporting:
• Annual report on Form 10-K
• Quarterly reports on Form 10-Q
Current reporting:
• Current reports on Form 8-K
Stockholder meetings and proxy
solicitations:
• Proxy statements
• Rule 14a-3 “glossy” annual report
The periodic reports contemplate
a system of “integrated disclosure,” in
which portions of the various reports
may be incorporated by reference into
other reports to avoid repetition.
This incorporation by reference is not
required but is very common in U.S.
company reports, particularly Form
10-K and the proxy statement.
Incorporation by reference is also a
concept that permits more streamlined
disclosure for securities offerings,
in particular after the company has
been public for at least a year and is
eligible to use a registration statement
on Form S-3 for public offerings.
Existing and future reports that the
company files with the SEC will be
incorporated into Form S-3, keeping
the information current and eliminating
the need to include detailed disclosure
about the company in a prospectus
for an offering.
The timing and some of the required
content of these reports will depend
on the company’s reporting category,
which is largely based on the size of its
worldwide “public float,” or the market
value of the voting and nonvoting
common equity held by nonaffiliates, as
of the last business day of the most recent
second fiscal quarter:
Reporting
category
• Large
accelerated filer
• Accelerated filer
• Nonaccelerated
filer
Public float
$700 million or
more
$75 million or
more (but less
than $700 million)
All others
The large accelerated filer and
accelerated filer categories also require
at least 12 calendar months of reporting,
including at least one Form 10-K, so
that after the IPO, the company will be
a nonaccelerated filer for the first year.
In many cases a nonaccelerated filer
will also qualify as a smaller reporting
company, with scaled-back information
requirements. The thresholds to enter
and exit these reporting categories are
different from those used for the initial
determination. Emerging growth companies
may also take advantage of scaled-back
information requirements (see Chapter
4), and there are some differences for
foreign private issuer reporting as well (see
Section 9.6). The remainder of this chapter
describes the reporting requirements for
a U.S. domestic company that does not
qualify as an emerging growth company.
The general legal framework for
communications described in Section 5.5
also generally applies to the company’s
required reporting, including the need for
complete and accurate disclosure, the duty
to update and the rules related to non-
GAAP financial measures. For information
about the financial statements that are
required for the company’s various
reports, see Section 2.2.
The SEC does not automatically review
these regular reports, but it is required
to review each company’s reports at least
once every three years, and it may provide
comments to improve disclosure or
remedy noncompliance at any time.
Annual report on Form 10-K: A U.S.
company must file an annual report on
Form 10-K with the SEC after the end of
each fiscal year. A nonaccelerated filer must
file Form 10-K no later than 90 days after
the end of the fiscal year. This deadline
shortens to 75 days for an accelerated filer
and 60 days for a large accelerated filer.
The contents of Form 10-K are largely
similar to the IPO prospectus, with several
important differences:
• Internal control over financial
reporting—Beginning with the second
Form 10-K filed by the company, Form
10-K must include a management
report on the effectiveness of internal
control over financial reporting and
a related auditors’ attestation, as
described in more detail below.
• Disclosure controls and procedures—
Disclosure about management’s
evaluation of the effectiveness of
disclosure controls and procedures,
as described in more detail below, is
also required, without any transition
period.
• Certifications—The company’s CEO
and CFO must certify Form 10-K, as
described in more detail below.
• Unresolved SEC staff comments—
An accelerated or large accelerated
filer must include disclosure of any
unresolved SEC staff comments on its
periodic or current reports that the
company received at least 180 days
before the end of the fiscal year.
• Stock repurchases and use of
proceeds—The company must disclose
its stock repurchases (for more
information, see Section 6.3), as well as
the use of the proceeds from the IPO.
• Incorporation by reference from proxy
statement—Most of the required
disclosure about the company’s
management and governance
arrangements, including the detailed
disclosure of executive compensation
arrangements, is typically incorporated
by reference from the proxy statement.
• XBRL—The financial statements
contained in Form 10-K must also be
filed in an exhibit using the XBRL
interactive data format (see Section 2.2).
• Mine safety disclosure—A company
with mining operations in the United
States is required to include certain
health- and safety-related disclosure
about those operations.
64 NYSE IPO Guide