The Reporting Calendar: 10-K, 10-Q, and 8-K

The Annual Report on Form 10-K

The 10-K is the company's comprehensive annual disclosure: the business, risk factors, legal proceedings, market information, MD&A, audited financial statements, controls and procedures, and information about directors, executive officers, compensation, ownership, and related transactions, some of which may be incorporated from the proxy statement.

The deadline depends on the company's filer status. Large accelerated filers have sixty days after fiscal year end, accelerated filers seventy-five days, and non-accelerated filers ninety days. Most smaller reporting companies are non-accelerated filers.

The Quarterly Report on Form 10-Q

The 10-Q covers each of the first three fiscal quarters, with reviewed, unaudited financial statements, MD&A, updates to risk factors, and controls disclosure. It is due forty days after quarter end for large accelerated and accelerated filers, and forty-five days for others.

The Current Report on Form 8-K

The 8-K is where many compliance failures happen, because it is event-driven rather than calendar-driven. Specified events require a report generally within four business days, including entry into or termination of a material definitive agreement; completion of a significant acquisition or disposition; creation of a material direct financial obligation; unregistered sales of equity above specified thresholds; changes in control; departures and appointments of directors and certain officers; amendments to the articles or bylaws; changes in the certifying accountant; a conclusion that previously issued financial statements should no longer be relied upon; notices of delisting; and material cybersecurity incidents, among others.

The question that generates the most calls, and should generate more, is whether something is a reportable event. Is this contract material? Is this officer an executive officer for these purposes? Does this financing create a direct financial obligation? These questions are answerable, but they need to be asked within the four-day window, not after it.

Late Filing

If a company cannot file a 10-K or 10-Q on time, it may file a Form 12b-25 notification of late filing, which, if properly filed and the report is filed within the extension period (fifteen calendar days for a 10-K, five for a 10-Q), treats the report as timely for certain purposes. A 12b-25 must explain the reason for the delay. It is not a routine extension, and repeated use of it is noticed.

Delinquency has concrete costs. It can cost the company eligibility for short-form registration, affect shareholders' ability to resell under Rule 144, jeopardize OTC Markets tier status or exchange listing, and, in serious cases, lead the SEC to suspend trading or institute proceedings to revoke registration of the company's securities.

Certifications and Controls

The chief executive and chief financial officer must certify each 10-K and 10-Q, including as to the accuracy of the report and the design and effectiveness of disclosure controls. Management must also assess internal control over financial reporting annually. These certifications are personal. An officer who signs them without a basis for doing so is taking on individual exposure.

Building the Calendar

A reporting company should have a written disclosure calendar with every periodic deadline, internal milestones for drafts, auditor review, and board or audit committee review, and a standing process for evaluating events for 8-K purposes. In a small company, that process may be as simple as a rule that any significant contract, financing, personnel change, or problem is raised with counsel the day it happens. Simple processes followed consistently outperform elaborate ones that are ignored.