Yesterday, the SEC voted to adopt amendments that significantly change the financial disclosure requirements for guaranteed debt offerings under Regulation S-X Rule 3-10 and Rule 3-16. The changes are intended to improve the quality of disclosure and increase the likelihood that issuers register debt offerings and provide investors with protections they wouldn’t receive in unregistered offerings.
The SEC’s press release summarizes amendments to Rule 3-10, which will be amended and partly relocated to new Rule 13-01, highlights include:
– 100% ownership replaced by consolidation
– Condensed consolidating financial information reduced
– Disclosure may be made outside the financial statement footnotes
– Disclosure ends when Exchange Act reporting ends
Here’s the SEC’s press release summary of the new Rule 13-01 highlights:
– Replace the condition that a subsidiary issuer or guarantor be 100%-owned by the parent company with a condition that it be consolidated in the parent company’s consolidated financial statements
– Replace condensed consolidating financial information, as specified in existing Rule 3-10, with certain new financial and non-financial disclosures. The amended financial disclosures will consist of summarized financial information, as defined in Rule 1-02(bb)(1) of Regulation S-X, of the issuers and guarantors, which may be presented on a combined basis, and reduce the number of periods presented. The amended non-financial disclosures, among other matters, will expand the qualitative disclosures about the guarantees and the issuers and guarantors. Consistent with the existing rule, disclosure of additional information about each guarantor will be required if it would be material for investors to evaluate the sufficiency of the guarantee
– Permit the amended disclosures to be provided outside the footnotes to the parent company’s audited annual and unaudited interim consolidated financial statements in all filings
– Require the amended financial and non-financial disclosures for as long as an issuer or guarantor has an Exchange Act reporting obligation with respect to the guaranteed securities rather than for as long as the guaranteed securities are outstanding
The SEC’s press release also summarizes amendments to Rule 3-16, which will be replaced with requirements in new Rule 13-02, highlights for these amendments include:
– Separate financial statements for each affiliate whose securities are pledged replaced by financial & non-financial disclosures
– Disclosure required unless immaterial
Here’s the SEC’s press release summary of the new Rule 13-02 highlights:
– Replace the existing requirement to provide separate financial statements for each affiliate whose securities are pledged as collateral with amended financial and non-financial disclosures about the affiliate(s) and the collateral arrangement as a supplement to the consolidated financial statements of the registrant that issues the collateralized security. The registrant will be permitted to provide the amended financial and non-financial disclosures outside the footnotes to its audited annual and unaudited interim consolidated financial statements in all filings
– Replace the requirement to provide disclosure only when the pledged securities meet or exceed a numerical threshold relative to the securities registered or being registered with a requirement to provide the proposed financial and non-financial disclosures in all cases, unless they are immaterial
If it seems like these amendments were a long time coming, they kind of were – John blogged about the proposed amendments back in July 2018. The amendments will be effective January 4, 2021 but voluntary compliance is permitted starting now.
-Lynn Jokela, TheCorporateCounsel.net March 3, 2020
