In preparing an article for the most recent issue of “The Corporate Counsel” print newsletter, I looked at a bunch of 10-K filings made by large accelerated filers after the effective date of the Fast Act disclosure simplification rules. One of the more interesting things that I found was that nearly half of the filers whiffed on the requirements of new Item 601(b)(4)(vi) of Regulation S-K – which requires companies to include an exhibit briefly describing all securities registered under Section 12 of the Exchange Act.
So, consider this a reminder that you’ve got to include this exhibit in your next 10-K if you’re a large accelerated filer. If you’re wondering what it should look like, check out Stinson’s Steve Quinlivan recent blog, which reviews the new exhibit requirement & provides some samples.
After I posted this, Hogan Lovells’ David Crandall reached out with an idea about why so many companies may be overlooking this requirement:
We noticed that form checks by our associates were not picking up the new requirement, and it turns out that the eCFR website for Reg S-K Item 601 incorrectly lists the exhibit requirement as applying to Form 10-Ds rather than 10-Ks.
The adopting release omitted the headers to the Item 601 exhibit table and had the incorrect number of columns (14 compared to 16), which undoubtedly contributed to the error on the eCFR website. I’m not aware of any source that correctly lists the new requirement as applying to 10-Ks, absent the discussion of the amendment in the adopting release. There may be many diligent registrants out there who looked at Item 601 and figured that the new requirement only applied to asset-backed issuers filing on Form 10-D.
. . . And now, just a few hours after posting David’s comments, the eCFR website reference has been fixed! Thanks to David and to the folks in the government who addressed this so promptly.
-John Jenkins, TheCorporateCounsel.net, August 14, 2019
