United States: SEC Proposes Changes To Business, Legal Proceeding And Risk Factor Disclosure Requirements

The SEC has proposed amendments to the description of business, legal proceeding and risk factor disclosures that are required pursuant to Regulation S-K. The SEC intends to update the rules to account for developments in capital markets and the economy that have occurred over time; to improve disclosure for investors; and to reduce compliance burdens for issuers. The proposals are part of the SEC's disclosure effectiveness initiative and reflect the SEC's consideration of this topic in its 2013 Regulation S-K study and 2016 concept release.1

Item 101(a) of Regulation S-K – General Development of Business

The SEC is proposing amendments to Item 101(a)(1) of Regulation S-K that "would provide more flexibility to tailor disclosures to the unique circumstances of each registrant, which in turn could result in improved disclosures for investors."  The SEC proposes to require only material updates to this disclosure for filings other than initial registration statements.

Item 101(a) requires a description of the general development of the issuer's business during the past five years, or such shorter period as the issuer may have engaged in business. The SEC notes that it does not think it is necessary to prescribe a timeframe, and the currently required five-year timeframe may not elicit the most relevant disclosure for every issuer. For this reason, the SEC is proposing to revise Item 101(a) to eliminate the five-year disclosure timeframe and require issuers to focus on the information material to an understanding of the development of their business, without focusing on a specific timeframe. The SEC also proposes to revise Item 101(h) of Regulation S-K to eliminate the provision that currently requires smaller reporting companies to describe the development of their business during the last three years.

Disclosure regarding the general development of the business is currently required in registration statements and annual reports for all issuers. The SEC proposes to retain the requirement for initial registration statements under the Securities Act of 1933, as amended and the Securities Exchange Act of 1934, as amended. In filings subsequent to an issuer's initial registration statement, an issuer would be required to provide an update of this disclosure, focusing on material developments (if any) during the reporting period, including whether the issuer's business strategy has changed. The SEC also proposes to require that an issuer incorporate by reference, and include an active hyperlink to, the most recently filed disclosure that, together with the update, would present a full discussion of the general development of its business.

The SEC is proposing to amend Item 101(a)(1) to be more principles-based by providing a non-exclusive list of the types of information that a registrant may need to disclose, and by requiring disclosure of a topic only to the extent such information is material to an understanding of the general development of an issuer's business. The four matters proposed to be included in the non-exclusive list are (i) material bankruptcy, receivership, or any similar proceeding; (ii) the nature and effects of any material reclassification, merger or consolidation of the issuer or any of its significant subsidiaries; (iii) the acquisition or disposition on an material amount of assets otherwise than in the ordinary course of business; and (iv) to the extent material to an understanding of an issuer's business, transactions and events that affect or may affect the issuer's operations, including material changes to an issuer's previously disclosed business strategy.

Item 101(c) of Regulation S-K – Narrative Description of Business

Item 101(c) of Regulation S-K requires a narrative description of the business done and intended to be done by an issuer and its subsidiaries, focusing upon the registrant's dominant segment or each reportable segment about which financial information is presented in the financial statements. Further, to the extent material to an understanding of the issuer's business taken as a whole, the description of each such segment must include 10 specific items listed in Item 101(c). Item 101(c) specifies two other items that must be discussed with respect to the issuer's business in general, although, where material, the registrant must also identify the segments to which those matters are significant. In the proposing release, the SEC notes that, because the 12 items may not be relevant to all issuers, the disclosure requirement can elicit disclosure that is not material to a particular issuer. The SEC proposes to shift the requirements in Item 101(c) to an "updated and more principles-based disclosure framework" that encourages issuers to "exercise judgment in evaluating what disclosure to provide, which would result in disclosure more appropriately tailored to a registrant's specific facts and circumstances."

The SEC proposes to include in Item 101(c) a non-exclusive list of disclosure topics that would likely be material to many issuers. The SEC notes that these proposed topics would not be line-item requirements; however, to the extent that a topic is material to an understanding of an issuer's business, disclosure would be required. Current topics such as working capital practices, disclosure about new segments and the dollar amount of backlog orders believed to be firm would not be included in the non-exclusive list, but issuers still would have to provide disclosure about these topics if they are material to an understanding of their business.

The SEC's proposed rule amendments would retain the distinction between those disclosure topics for which segment disclosure should be the primary focus, and those disclosure topics for which the focus should be on the issuer's business as a whole.  The proposed amendments clarify that, for any listed topic, disclosure is required only to the extent that it is material to an understanding of the issuer's business as a whole.

The proposed list of disclosure topics in Item 101(c) would retain information regarding revenue-generating activities, products and/or services, and any dependence on key products, services, product families or customers, including governmental customers, to the extent this information is material to an understanding of an issuer's business. The list of disclosure topic would also retain information regarding development efforts for new or enhanced products, and trends in market demand and competition would generally be material to an investment decision. With respect to raw materials, the SEC proposes to modernize the disclosure requirements to refocus disclosure on all resources material to an issuer's business, and to facilitate application of this standard, the SEC proposes including as examples of resources that may be material: (i) raw materials; and (ii) patents, trademarks, licenses, franchises and concessions held. The proposing release notes that the SEC chose not to expand the requirement to include copyrights and trade secrets.

The SEC proposes to retain renegotiation or termination of government contracts as an enumerated disclosure topic in Item 101(c), as well as the extent to which the business is or may be seasonal. The SEC also proposes including the material effects of compliance with material government regulations, not just environmental laws, as a listed disclosure topic in Item 101(c). The SEC expects that this disclosure topic would focus on the material effects that compliance with material governmental regulations, both foreign and domestic, may have upon the capital expenditures, earnings and competitive position of the issuer and its subsidiaries.

The SEC proposes to retain the requirement that an issuer disclose material estimated capital expenditures for environmental control facilities for the current fiscal year and any other subsequent period that the issuer deems material, while not proposing to require the disclosure of additional specific expenditures related to environmental compliance.

The SEC proposes to amend Item 101(c) to refocus requirements regarding human capital resources disclosures. The SEC proposes to replace the current requirement to disclose the number of employees with a requirement to provide information regarding the issuer's "human capital resources," including in such description any human capital measures or objectives that management focuses on in managing the business, to the extent such disclosures would be material to an understanding of the issuer's business. The proposed amendment provides a non-exclusive list of examples of human capital measures and objectives that the SEC believes may be material, depending on the nature of the issuer's business and workforce, including measures or objectives that address the attraction, development, and retention of personnel.

Item 103 of Regulation S-K – Legal Proceedings

In the proposing release, the SEC notes that while Item 103 of Regulation S-K and U.S. GAAP differ in certain respects with respect to disclosure of legal proceedings and contingences, these provisions also have overlapping disclosure requirements. In an effort to encourage issuers to avoid duplicative disclosure, the SEC proposes to revise Item 103 to expressly state that some or all of the required information may be provided by including hyperlinks or cross-references to legal proceeding disclosures located elsewhere in the document.

The SEC also proposes to amend Instruction 5.C. to Item 103, which specifically requires disclosure of any proceeding under environmental laws to which a governmental authority is a party, unless the issuer reasonably believes it will not result in sanctions of $100,000 or more. The proposed amendment would increase the $100,000 threshold to $300,000 to adjust for inflation.

Item 105 of Regulation S-K – Risk Factors

Item 105 of Regulation S-K "requires disclosure of the most significant factors that make an investment in the registrant or offering speculative or risky and specifies that the discussion should be concise and organized logically." The SEC proposes to amend Item 105 to address what the SEC considers to be the lengthy and generic nature of the risk factor disclosure presented by issuers.

The SEC proposes to require summary risk factor disclosure in the forepart of the prospectus or annual report when issuers provide risk disclosure that exceeds 15 pages. The summary would consist of a series of short, concise, bulleted or numbered statements summarizing the principal factors that make an investment in the issuer or offering speculative or risky. The SEC also proposes to update Item 105 to replace the requirement to discuss the "most significant" risks with "material" risks.

The SEC also proposes to require that issuers organize their risk factor disclosure under relevant headings. Further, under the SEC's proposed amendments, if an issuer chooses to disclose a risk that could apply to other issuers or securities offerings, and the disclosure does not provide an explanation of why the identified risk is specifically relevant to an investor in its securities, an issuer would be required to disclose such risk factors at the end of the risk factor section, under the caption "General Risk Factors."

Next Steps

These latest proposals in the SEC's Disclosure Effectiveness initiative will be subject to comment for 60 days following publication in the Federal Register. The SEC has a number of other proposals seeking to make disclosure more effective that remain outstanding, including significant changes to Regulation S-X. While the SEC's Concept Release dealt with a very wide variety of topics, these latest proposals represent a more measured approach toward modernizing and simplifying the business description, legal proceeding and risk factors disclosure requirements.

Footnotes

[1] See Report on Review of Disclosure Requirements in Regulation S-K (Dec. 2013), available at https://www.sec.gov/news/studies/2013/reg-sk-disclosure-requirements-review.pdf, and Business and Financial Disclosure Required by Regulation S-K, Rel. No. 33-10064 (Apr. 13, 2016), available at https://www.sec.gov/rules/concept/2016/33-10064.pdf (the "Concept Release").

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions