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Quick Reference for FAST Act Changes to Form 10-K, 10-Q, 8-K and Proxy Statements

by , and   |   April 2, 2019

The Fixing America’s Surface Transportation Act, or FAST Act, required the SEC to consider ways to streamline SEC regulations. Accordingly, the SEC adopted final amendments to its rules that are intended to modernize and simplify certain disclosure requirements in Regulation S-K, and related rules and forms, in a manner that reduces the costs and burdens on registrants while continuing to provide all material information to investors. The amendments are also intended to improve the readability and navigability of disclosure documents and discourage repetition and disclosure of immaterial information.

The authors believe that the FAST Act changes primarily benefit registrants that file confidential treatment requests, or CTRs, for material contracts. For other registrants, the benefits are marginally incremental, offset by increased regulatory burdens.

Set forth below is a summary of key changes for domestic operating company registrants (i.e., not including changes applicable to foreign private issuers or investment companies or changes that affect registration statements) in key forms typically filed by domestic operating company registrants. Where a FAST Act change does not affect existing practice, it is not highlighted. For instance, the FAST Act changes revise the risk factor disclosure to be codified in Item 105 of Regulation S-K and eliminate references in the rule to certain specifically identified risk factors, but the change does not affect existing practice as the risk factor rule remains a principle-based rule.

This summary should be read in conjunction with our full analysis of the FAST Act changes which can be found here.

Timing

Changes with respect to CTRs are now effective. Changes to SEC forms and disclosure requirements are effective as of May 2, 2019. Cover page tagging requirements are subject to phased compliance dates set forth below.

Confidential Treatment Requests

  • CTRs are no longer required for material contracts filed pursuant to Item 601(b)(10) of Regulation S-K. Instead, the registrant may redact provisions or terms of exhibits required to be filed if those provisions or terms are both not material and would likely cause competitive harm to the registrant if publicly disclosed. If it does so, the registrant must mark the exhibit index to indicate that portions of the exhibit or exhibits have been omitted and include a prominent statement on the first page of the redacted exhibit that certain identified information has been excluded from the exhibit because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed. The registrant also must indicate by brackets where the information is omitted from the filed version of the exhibit.
  • In addition to the FAST Act rules, the SEC has released additional guidance regarding the processing of redacted information on exhibits:
    • General Compliance Review Process. The SEC intends to review registrant filings for compliance with the new rules. To initiate a redacted exhibit review, the SEC will send a letter with a request that the registrant provide the SEC a paper copy of the unredacted exhibit marked to highlight the redacted information. The SEC may or may not ask for further substantiation of the registrant’s redaction decisions upon review of the unredacted exhibit. If the SEC’s review of the unredacted exhibit does not lead to comments, the SEC will send a letter indicating that its compliance review is complete.  If the SEC’s review of the unredacted exhibit leads to questions about immateriality or claims of competitive harm, the SEC will provide the registrant with comments separate and apart from any comments on the associated filing. When the SEC’s questions are resolved, the SEC will send the registrant a letter indicating that its compliance review is complete.
    • Completion of Review Process. The SEC will make its initial request for an unredacted exhibit and the closing of review letter for that exhibit publicly available on EDGAR following the closing of that review. If that review was done in conjunction with a regular filing review, the SEC will post the initial request and closing of review letter at the time the SEC posts the other correspondence related to the filing review. These letters will only note the existence of an opened and a closed redacted exhibit compliance review. In order to avoid public disclosure of competitively harmful information, the SEC will not make public its comments regarding redacted exhibits, nor registrant responses to staff requests or comments related to that topic.

Other Matters Related to Exhibits

  • Under existing rules in Item 601 of Regulation S-K, registrants generally must file complete copies of any required exhibits. Very often, these exhibits include a number of schedules, appendices, and other similar attachments which can be quite lengthy but not necessarily material to investors. Similar to current Item 601(b)(2), new Item 601(a)(5) permits registrants to omit entire schedules and similar attachments to required exhibits, provided:
    • they do not contain material information;
    • they were not otherwise disclosed in the exhibit or the disclosure document; and
    • the filed exhibit contains a list briefly identifying the contents of any omitted schedules and attachments.
  • The amended rules confirm that personally identifiable information (PII) may be redacted without a CTR submission, codifying current practice.
  • As now defined in the FAST Act Rules, Item 601(b)(10)(i) requires registrants to file every material contract not made in the ordinary course of business if such contract must be performed in whole or in part at or after the filing of the registration statement or report. The two-year look-back exhibits has been eliminated, other than for newly reporting registrants.
  • Item 10(d) of Regulation S-K was eliminated together with the prohibition on incorporation by reference for documents that were filed with the SEC more than five years ago. Other provisions of Item 10(d) were incorporated in other revised rules (i.e. Rule 411(e) and Rule 12b-23(e)).
  • Rule 12b-23 was revised to require hyperlinks to information that is incorporated by reference if that information is available on EDGAR. Registrants are not required to refile information that is incorporated by reference from a document that was previously filed with the SEC in paper.

Form 10-K

  • Cover Page: Eliminate the following reference on the cover page to delinquent Section 16 filings:

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. □

  • Cover page; Delete the current required disclosure for securities registered pursuant to 12(b) of the Act and add the “Trading Information Table: Delete the current required tabular disclosure referring to the title of each class of securities and the name of each exchange where registered for securities registered pursuant to Section 12(b) of the Act and replace it with the following Trading Information Table:

Securities registered pursuant to Section 12(b) of the Act:

Title of each class

Trading Symbol(s)

Name of each exchange where registered

  • “Cover Page Tagging Requirements”: All cover page data must be tagged in Inline XBRL subject to the following compliance schedule:
    • Large accelerated filers that prepare their financial statements in accordance with U.S. GAAP – Reports for fiscal periods ending on or after June 15, 2019
    • Accelerated filers that prepare their financial statements in accordance with U.S. GAAP — Reports for fiscal periods ending on or after June 15, 2020
    • All other filers — Reports for fiscal periods ending on or after June 15, 2021
  • MD&A
    • Instruction 1 of Item 303 has been revised under the new rules to eliminate the reference to year-to-year comparisons. As revised, Instruction 1 now states that registrants may use any presentation that in the registrant’s judgment enhances a reader’s understanding of the registrant’s financial condition, changes in financial condition, and results of operations, without suggesting that any one mode of presentation is preferable to another. Instruction 1 has also been revised to delete the reference to five-year selected financial data.
    • The SEC also revised Instruction 1 to Item 303(a) to allow registrants who are providing financial statements covering three years in a filing to omit discussion of the earliest of the three years if such discussion was already included in any other of the registrant’s prior filings on EDGAR that required disclosure in compliance with Item 303. Registrants electing not to include a discussion of the earliest year in reliance on this instruction must identify the location in the prior filing where the omitted discussion may be found.
  • Description of Property: The SEC revised Item 102 of Regulation S-K to make clear that, unless otherwise specified, disclosure need only be provided about a physical property to the extent it is material to the registrant.
  • Description of Registrant’s Securities. The revised rules require registrants to provide the information required by Item 202(a)-(d) and (f) as an exhibit to Form 10-K. Item 202 of Regulation S-K requires registrants to provide a brief description of their registered capital stock, debt securities, warrants, rights, American Depositary Receipts, and other securities.
  • Directors, Executive Officers, Promoters, and Control Persons. New general instruction 1 to Item 401(moved from Instruction 3 to Item 401(b)) allows registrants to include required information about their executive officers in Part I of Form 10-K as per previous practice. The revised rules also require the caption for the disclosure included in Part I of Form 10-K to reflect a “plain English” approach. The required caption is “Information about our Executive Officers” instead of “Executive officers of the registrant.”

Form 10-Q

  • Include the Trading Information Table.
  • Comply with the new requirements for “Exhibits” set forth above.
  • The cover page must comply with the Cover Page Tagging Requirements, subject to the phased compliance dates.

Form 8-K

  • Include the Trading Information Table.
  • Comply with the new requirements for “Exhibits” set forth above.
  • The cover page must comply with the Cover Page Tagging Requirements, subject to the phased compliance dates.

Proxy Statements

  • Change the disclosure heading required by Item 405(a)(1) from “Section 16(a) Beneficial Ownership Reporting Compliance” to the more specific “Delinquent Section 16(a) Reports”. The SEC also encourages registrants to exclude this heading altogether when they have no Section 16(a) delinquencies to report. The revised rules eliminate the requirement in Rule 16a-3(e) that reporting persons furnish Section 16 reports to the registrant.
  • In the audit committee report, change the reference to whether the audit committee has discussed with the independent auditor the matters required by AU section 380, Communication with Audit Committees to “the applicable requirements of” the Public Company Accounting Oversight Board (“PCAOB”) and the Commission.
  • The new rules clarify that registrants may, but are not required to, rely only on Section 16 reports that have been filed on EDGAR (as well as any written representations from the reporting persons) to assess whether there are any Section 16 delinquencies to disclose. Accordingly, registrants can eliminate some questions from directors and officers questionnaires pointed towards whether all Section 16 reports have been provided to the registrant with a question about whether all required Section 16 reports have been filed on EDGAR.