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SEC 3110 - Form 10
Publication date: 30 Jun 2023
us PwC SEC Volume 3110
.1 General
.11 What is Form 10 and where can I find it?
Form 10 is the basic registration form under the Exchange Act. It is to be used in all cases where no other form is prescribed. Form 10 is used to register securities under either Section 12(b) or Section 12(g) of the Exchange Act.
One common use of Form 10 is to register the shares of common stock of a subsidiary that are distributed to a parent company's shareholders on a pro-rata basis ("spin off"). Oftentimes the subsidiary’s securities will be listed for trading on a national securities exchange which requires registration under Section 12(b) of the Exchange Act. See SEC Staff Legal Bulletin No. 4 for additional information.
Another common use of Form 10 is to register the securities of a company whose securities are not listed on a national securities exchange but which meets certain tests as to size and number of stockholders. Registration in this case is required by Section 12(g) of the Exchange Act.
The disclosure requirements of Form 10 are set forth under the various items within the body of the form and generally cross-reference to Regulation S-X and Regulation S-K for the specific requirements.
The text of Form 10 is available on the SEC’s website (https://www.sec.gov/files/form10.pdf).
Other sources that issuers should consider when preparing a Form 10 include the General Instructions to Form 10 and Regulation 12B. Additionally, the SEC staff has published extensive interpretive guidance including various Compliance & Disclosure Interpretations and Industry Guides.
.12 Will the SEC staff review a Form 10 on non-public basis?
Yes, under certain circumstances. The SEC’s Division of Corporation Finance will permit an issuer to submit a draft Form 10 for non-public review if the Form 10 is being prepared for the initial registration of a class of securities under Exchange Act Section 12(b). However, the non-public review process would not be available (without preclearance with the SEC staff) if the Form 10 is registering securities under Exchange Act Section 12(g).
If submission of a draft Form 10 for non-public review is permitted, the SEC staff has stated that they will not object if the Form 10 omits financial information that the issuer reasonably believes will not be required to present separately at the time the Form 10 is publicly filed.
See the guidance included in Draft Registration Statement Processing Procedures Expanded available on the SEC website (https://www.sec.gov/corpfin/announcement/draft-registration-statement-processing-procedures-expanded).
When permitted, the SEC staff’s non-public review of a Form 10 is conditioned on the issuer providing a cover letter with the nonpublic submission indicating that the draft Form 10 (and related revisions, as applicable) will be made public within the timelines set forth by the Division of Corporation Finance. See Question 5 of the Frequently Asked Questions on Voluntary Submission of Draft Registration Statements available on the SEC website (https://www.sec.gov/corpfin/voluntary-submission-draft-registration-statements-faqs).
[Editor’s note: The above guidance is applicable whether or not the issuer meets the definition of an emerging growth company.]
.121 Will a draft Form 10 and associated SEC staff comments and issuer responses remain non-public?
All draft Form 10s and related amendments must be made publicly available before the effective date of the Form 10. SEC comment letters and issuer responses related to a draft Form 10 will also be made public according to the SEC staff’s existing policies. See Question 11 of the Frequently Asked Questions on Voluntary Submission of Draft Registration Statements available on the SEC website (https://www.sec.gov/corpfin/voluntary-submission-draft-registration-statements-faqs).
.122 Where can I find additional information relating to a draft Form 10 and non-public SEC staff review?
The announcement of the Division of Corporation Finance policy for non-public review can be found at http://www.sec.gov/corpfin/announcement/draft-registration-statement-processing-procedures-expanded.
The SEC staff has published FAQs on voluntary submission of draft registration statements available at http://www.sec.gov/corpfin/voluntary-submission-draft-registration-statements-faqs.
.13 When does a Form 10 become effective?
The date on which a Form 10 will become effective is prescribed directly by the Exchange Act.
- A Form 10 filed pursuant to Section 12(g) of the Exchange Act automatically becomes effective 60 days after the initial filing, or earlier if acceleration is requested and granted. See Section 12(g)(1)(B) of the Exchange Act.
- A Form 10 filed pursuant to Section 12(b) of the Exchange Act automatically becomes effective 30 days after certification by the applicable exchange or earlier if acceleration is requested and granted. See Section 12(d) of the Exchange Act.
[Editor’s note: When the SEC staff grants an acceleration request relating to Form 10, the determination is typically included in the SEC’s EDGAR database under the SEC STAFF ACTION document type.]
.2 Financial statements requirements
.21 Where can I find the financial statement requirements applicable to Form 10?
Item 13 of Form 10 requires financial statements required by Regulation S-X as well as supplementary financial information required by S-K 302.
The periods to be covered in the issuer’s financial statements and the associated age of financial statements requirements are generally driven by S-X 3-01, 3-02, 3-04 and 3-12 (S-X 8-02 and 8-08 for a smaller reporting company).
See SEC 4600 for additional information on the SEC’s age of financial statement requirements.
.212 Is an issuer required to update its financial statements to comply with the SEC’s age of financial statements requirements at the effective date of the Form 10 even if the effective date does not coincide with a filing?
Yes. Financial statements included in a Form 10 should comply with the relevant age of financial statements requirements at the effective date. See SEC FRM 1220.9.
The automatic effectiveness (particularly as it relates to a Form 10 filed under Section 12(g) of the Exchange Act) can raise questions about how to apply the age of financial statement requirements of Regulation S-X if the effective date does not coincide with a filing date. We understand that financial statements included in a Form 10 should comply with the relevant age of financial statements requirements in S-X 3-12 (S-X 8-08 with respect to smaller reporting companies) at the effective date even if that date does not coincide with an actual filing. Updated financial statements are typically provided by filing a pre-effective amendment to Form 10. See section VIII.B from the highlights of the June 25, 2014 meeting of the CAQ SEC Regulations Committee.
For example, assume a Form 10 pursuant to Section 12(g) of the Exchange Act is filed on September 18, 2023 and includes the issuer’s annual financial statements as of December 31, 2022 and 2021 and for the years ended December 31, 2022, 2021 and 2020 and the interim financial information as of June 30, 2023 and for the six-months ended June 30, 2023 and 2022. The issuer’s Form 10 must be current as of November 17, 2023 (the effective date, which is 60 days after the initial filing of the Form 10 on September 18, 2023), and as such the financial statements as of September 30, 2023 and for the nine-months ended September 30, 2023 and 2022 will need to be provided in the Form 10.
.9 Frequently asked questions
.901 Is an issuer required to provide an accountants’ consent in Form 10?
Generally, no. The rules of the Exchange Act do not require the filing of accountant’s consents, except where reports on financial statements previously filed under other acts (e.g., the Securities Act) are incorporated by reference into an Exchange Act filing. See Exchange Act Rule 12b-36.
If an audit report on financial statements is incorporated by reference into Form 10 from a Securities Act filing (e.g., Form S-1), a consent is required. If an audit report on financial statements is included in Form 10 or incorporated by reference in Form 10 from an Exchange Act filing (e.g., Form 10-K), a consent is not required.
See General Instruction F of Form 10 with respect to incorporation by reference. See also Exchange Act Rule 12b-23.
.902 Can an issuer that meets the definition of an emerging growth company but that is not a smaller reporting company present only two years in its statements of comprehensive income in its Form 10?
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