An accelerated filer exits accelerated filer status if it determines as of its fiscal year-end that its worldwide public float was less than $60 million as of the last business day of its most recently completed second fiscal quarter or it determines that it is eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in Exchange Act Rule 12b-2, as applicable.

A company that exits accelerated filer status is permitted to file as a non-accelerated filer beginning with the annual report for the year for which the status is being assessed (see SEC 3125.24). Just as with entry into accelerated filer status, a registrant only exits accelerated filer status as of year-end.

It is important to note that the threshold for entering accelerated filer status is different from the threshold for exiting accelerated filer status. Assuming the other entry conditions are satisfied (i.e., (ii), (iii) and (iv) in SEC 3125.21), a company enters accelerated filer status if its worldwide public float was at least $75 million but less than $700 million as of the end of its most recently completed second fiscal quarter. A company exits accelerated filer status when its worldwide public float was less than $60 million as of the end of its most recently completed second fiscal quarter or it determines that it is eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in Exchange Act Rule 12b-2, as applicable. The difference between the entry and exit thresholds means that two companies that had the same worldwide public float (e.g., $65 million) as of the end of their most recently completed second fiscal quarter could have different accelerated filer statuses at year-end.

See SEC 3125.806 for information relating to exiting accelerated filer status following an acquisition or going private transaction.

The principal differences between filing as an accelerated filer and filing as a non-accelerated filer for a US domestic SEC registrant are:

As discussed above, accelerated filer status must be assessed each year-end, and filing deadlines, as well as Sarbanes-Oxley Section 404 reporting requirements, would follow the results of that assessment (subject to additional considerations for an emerging growth company).

For example, assume Company X is a calendar year-end US domestic SEC registrant. Company X was an accelerated filer (but not a large accelerated filer nor an emerging growth company) as of December 31, 2022. Accordingly, Company X's Form 10-K for the year ended December 31, 2022 was due on or before March 16, 2023.

Assume Company X's worldwide public float was $40 million as of June 30, 2023 (the last business day of its 2023 second fiscal quarter). Company X's worldwide public float was $80 million as of December 31, 2023.

Based on these facts, Company X would be considered a non-accelerated filer as of December 31, 2023 because its worldwide public float as of the last business day of its 2023 second fiscal quarter was less than $60 million (one of the thresholds for exiting accelerated filer status). This is true even though Company X's worldwide public float had increased above $75 million as of December 31, 2023. As noted above, even though the accelerated filer assessment is made as of the end of the year, the public float test is based on the most recently completed second fiscal quarter.

Company X's 2023 Form 10-K would be due on or before April 1, 2024 (because March 30, 2024, the 90th day after year-end, is a Saturday). Company X's 2024 Form 10-Q filings would be due within 45 days of each quarter-end because Company X would retain its status as a non-accelerated filer until the next annual assessment date.

A large accelerated filer exits large accelerated filer status if it determines as of its fiscal year-end that its worldwide public float was less than $560 million as of the last business day of its most recently completed second fiscal quarter or it determines that it is eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in  Exchange Act Rule 12b-2, as applicable.

A company that exits large accelerated filer status is permitted to file as an accelerated filer (unless the company has also exited accelerated filer status as described in SEC 3125.22). If the company has exited accelerated filer status, then it may file as a non-accelerated filer. As with changes in accelerated filer status, changes to large accelerated filer status are effective beginning with the annual report for the year for which the status is being assessed. See SEC 3125.34.

It is important to note that the threshold for entering large accelerated filer status is different from the threshold for exiting large accelerated filer status. Assuming that the other entry conditions are satisfied (i.e., (ii), (iii) and (iv) in SEC 3125.31), a company enters large accelerated filer status if its worldwide public float was at least $700 million as of the end of its most recently completed second fiscal quarter. A company exits large accelerated filer status when its worldwide public float is less than $560 million as of the end of its most recently completed second fiscal quarter or it determines that it is eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in Exchange Act Rule 12b-2, as applicable. The difference between the entry and exit thresholds means that two companies that had the same worldwide public float (e.g., $600 million) as of the end of their most recently completed second fiscal quarter could have different accelerated filer statuses at year-end.

Refer to SEC 3125.806 for information relating to exiting large accelerated filer status following an acquisition or going private transaction.

The principal difference between filing as a large accelerated filer and filing as an accelerated filer (that is not also an emerging growth company) for a US domestic SEC registrant is that large accelerated filers must file their Form 10-K 15 days sooner than accelerated filers (due date of 60 days after year-end for a large accelerated filer vs. 75 days after year-end for an accelerated filer). The Form 10-Q filing deadlines are the same for accelerated filers and large accelerated filers (i.e., 40 days after quarter-end). Additionally, a large accelerated filer cannot be an emerging growth company.

As discussed above, accelerated filer status must be assessed each year-end, and filing deadlines would follow the results of that assessment (subject to additional considerations for an emerging growth company).

For example, assume Company X is a calendar year-end US domestic SEC registrant. Company X was a large accelerated filer as of December 31, 2022. Company X's worldwide public float was $400 million as of June 30, 2023 (the last business day of its 2023 second fiscal quarter) and it is not eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in Exchange Act Rule 12b-2, as applicable. Company X's worldwide public float was $800 million as of December 31, 2023.

Based on these facts, Company X would be considered an accelerated filer (but not a large accelerated filer) as of December 31, 2023 because (i) its worldwide public float was less than $560 million (the exit threshold for large accelerated filer status) as of the last business day of its 2023 second fiscal quarter, but was at least $60 million (the exit threshold for accelerated filer status) as of that date and (ii) it was not eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in Exchange Act Rule 12b-2, as applicable. Company X is an accelerated filer as of December 31, 2023 even though its worldwide public float had increased above $700 million by December 31, 2023. As noted above, the public float test is based on the last business day of the most recently completed second fiscal quarter. Company X's 2023 Form 10-K would be due on or before March 15, 2024 (the 75th day after year-end). Company X's 2024 Form 10-Q filings would be due within 40 days of each quarter-end (which is the same for both accelerated filers and large accelerated filers).

If Company X's worldwide public float had been $40 million as of June 30, 2023 or if it was eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in Exchange Act Rule 12b-2, as applicable, it would have also exited accelerated filer status and would, therefore, be able to file its 2023 Form 10-K and 2024 Form 10-Qs as a non-accelerated filer. Refer to SEC 3125.23 for a discussion of the differences between filing as an accelerated filer and a non-accelerated filer.

A newly public company is a company that:

See Instruction 1 to S-K 308.

A newly public company is not required to comply with either the management (S-K 308(a)) or the auditor (S-K 308(b)) reporting requirements relating to internal control over financial reporting. A newly public company is required to include a statement in its first annual report substantially in the following form (as set forth in Instruction 1 to S-K 308):

The following example highlights the differences in the internal control over financial reporting requirements for non-accelerated filers and newly public companies:

Facts: Company A and Company B each use a calendar year-end and each qualify as a non-accelerated filer as of December 31, 2023.

Analysis: Company A must provide management's report on internal control over financial reporting (S-K 308(a)) in its 2023 Form 10-K because all companies (other than "newly public companies") must comply with the management reporting requirements. However, since Company A is a non-accelerated filer as of December 31, 2023, it is not required to comply with the auditor reporting requirements relating to internal control over financial reporting (S-K 308(b)).

Company B is not required to comply with either the management (S-K 308(a)) or auditor (S-K 308(b)) reporting requirements relating to internal control over financial reporting in its 2023 Form 10-K because Company B is a "newly public company". Company B’s 2023 Form 10-K must include the disclosure described in Instruction 1 to S-K 308 regarding the lack of management's assessment or an auditor's attestation regarding internal control over financial reporting, as discussed above.

Company B will be required to comply with the management reporting requirements relating to internal control over financial reporting (S-K 308(a)) in its Form 10-K for the year ending December 31, 2024. Company B will be required to comply with the auditor reporting requirements (S-K 308(b)) in its December 31, 2024 Form 10-K, unless Company B is a non-accelerated filer or an emerging growth company as of December 31, 2024.

The following example illustrates the determination of Section 404 reporting requirements for a non-emerging growth company that was previously a voluntary filer and completes an equity IPO:

Facts: In 2022, Company X, a calendar year-end company, issued senior notes in a private transaction that was exempt from registration under the Securities Act. In mid-2023, Company X completed an offer to exchange the exempt notes for notes that were substantially identical to the exempt notes, except the new notes are registered under the Securities Act. The exchange offer was made pursuant to an effective registration statement on Form S-4. Company X's debt is not listed on an exchange (i.e., was not registered under Section 12 of the Exchange Act) and has at all times been held by fewer than 300 persons. All of Company X's stock has historically been held by its CEO/founder.

After filing its Form 10-K for the year ended December 31, 2023, Company X's reporting obligations were statutorily suspended under Section 15(d) of the Exchange Act because it had fewer than 300 security holders of record on January 1, 2024. However, Company X has continued to file reports (e.g., Form 10-K and Form 10-Q) with the SEC on a "voluntary" basis to satisfy a requirement in the indenture under which the senior notes were issued.

On June 3, 2024, Company X completed an IPO of its common stock. As of December 31, 2024, Company X is neither an accelerated filer nor a large accelerated filer and is not an emerging growth company.

For purposes of determining Company X's Section 404 reporting requirements for the year ending December 31, 2024, Company X would not be considered a newly public company because it filed an Annual Report on Form 10-K for the prior fiscal year (i.e., the year ended December 31, 2023).

Company X must determine its Section 404 reporting requirements based on the rules applicable to non-newly public companies. Since Company X is not a newly public company at December 31, 2024, Company X would be required to include management's report on internal control over financial reporting (S-K 308(a)) in its Form 10-K for the year ending December 31, 2024. However, the auditor's attestation report on internal control over financial reporting (S-K 308(b)) would not be required in Company X's Form 10-K for the year ending December 31, 2024 because non-accelerated filers are exempted from the internal control audit requirement (S-K 308(b)).

If, as of December 31, 2025, Company X is considered an accelerated filer or a large accelerated filer, it would be required to include both management's (S-K 308(a)) and the auditor's (S-K 308(b)) reports on internal control over financial reporting in its Form 10-K for the year ending December 31, 2025.

Yes. Each of those reports would be considered an annual report for purposes of the definition of a newly public company. See SEC FRM 1340.10 (Note to Section).

See SEC 3185 for information relating to transition reports and SEC 3130.917 for information relating to special financial reports pursuant to Exchange Act Rule 15d-2.

When an SEC registrant changes its fiscal year-end, it may need to file a report with the SEC covering the transition period. The transition period is the period from the end of the most recently completed fiscal year to the beginning of the new fiscal year. The due date of a registrant's transition report is determined, in part, based on the registrant's accelerated filer status.

When a registrant changes its fiscal year-end, the registrant must assess its accelerated filer status as of the end of the transition period (i.e., its new fiscal year-end), treating the transition period as if it were a fiscal year. This is true without regard to the length of the transition period or the form used to report the transition period (e.g., Form 10-K or Form 10-Q). When assessing the accelerated filer status as of the end of a transition period, the worldwide common equity public float test (i.e., the aggregate worldwide market value of the voting and nonvoting common equity held by non-affiliates) should be based on the last business day of what would have been the registrant's most recently completed second fiscal quarter if the close of the transition period were actually the end of a full fiscal year (sometimes referred to as a "pro forma" second fiscal quarter).

For example, if a registrant changed its year end from June 30 to December 31 and is filing a transition report on Form 10-K for the six months ended December 31, 2023, the common equity public float test would be performed as of June 30, 2023 (the last business day of the "pro forma" second fiscal quarter) and the due date of the transition report would be based on this "pro forma" public float.

See SEC 3185 for a detailed discussion of the reporting requirements relating to changes in fiscal year-end (including the implications for reporting on internal control over financial reporting). See also SEC FRM 1340.8, SEC FRM 1360, and SEC FRM 1365.

Certain REITs offer and sell shares of common stock through offerings registered under the Securities Act, but the shares are not publicly traded. We understand that the SEC staff has indicated that a REIT whose shares are not traded in a public market would not be considered to have a "common equity public float" for purposes of determining its accelerated filer status or for determining whether it is eligible to use Form S-3.

As noted above, the accelerated/large accelerated filer exit conditions are based, in part, on the company's public float at the end of the most recently completed second fiscal quarter. We understand, however, that the SEC staff will permit a company whose public float exceeded $60 million as of the last business day of its most recently completed second fiscal quarter but was reduced to $0 before the end of the year, to file as a non-accelerated filer beginning with the annual report covering the year in which the public float was reduced to $0. This situation could arise if an accelerated filer or a large accelerated filer was acquired or went "private" after the end of its second fiscal quarter but continues to file reports with the SEC (e.g., because of registered debt or a bank requirement). Also, we understand the SEC staff will permit a company whose public float exceeded $60 million both as of the last business day of its most recently completed second fiscal quarter and as of its most recent year end and was reduced to $0 after year end but before the due date of Form 10-K, to file as a non-accelerated filer beginning with the annual report for the year preceding the year in which the public float was reduced to $0.

For example, assume a calendar year-end accelerated filer SEC registrant whose public float exceeded $60 million as of June 30, 2023 (the last business day of its 2023 second fiscal quarter) was acquired on September 1, 2023. The registrant had public debt which remained outstanding and was required to continue filing reports with the SEC. In this case, even though the registrant's public float was greater than $60 million on June 30, 2023, we understand the SEC staff would allow the registrant to file its 2023 Form 10-K as a non-accelerated filer. If the same calendar year-end SEC registrant was instead acquired on February 1, 2024, we understand the SEC staff would still allow the registrant to file its 2023 Form 10-K after February 1, 2024 as a non-accelerated filer.

Companies should consider consulting with their legal counsel and the SEC staff in this fact pattern.

Oftentimes, a parent company that is an accelerated filer or a large accelerated filer has one or more subsidiaries that are also SEC registrants (usually because the subsidiary issued registered debt). As a general matter, an SEC registrant parent company's accelerated filer status is not "pushed down" to its SEC registrant subsidiary. Accordingly, a parent and its subsidiary may have different Form 10-K/10-Q filing deadlines and different Sarbanes-Oxley Section 404 reporting requirements.

For example, assume Company X is an SEC registrant with common stock traded on the New York Stock Exchange. Company X is a large accelerated filer as of December 31, 2023. Company X owns 100 percent of the equity of Subsidiary Z. Both Company X and Subsidiary Z are calendar year-end companies. In 2019 Subsidiary Z issued debt that was registered under the Securities Act, and Subsidiary Z files periodic reports (i.e., Form 10-K and Form 10-Q) under Section 15(d) of the Exchange Act.

In this fact pattern, Company X and Subsidiary Z should each assess their own accelerated filer statuses based on their own facts and circumstances. Subsidiary Z would be a non-accelerated filer as of December 31, 2023, because its public float was $0 as of the end of its most recently completed second fiscal quarter (i.e., Company X owned 100 percent of Subsidiary Z's equity). This is true even though Company X is a large accelerated filer. Based on their individual accelerated filer statuses, Company X's 2023 Form 10-K would be due on February 29, 2024 (the 60th day after year-end). Subsidiary Z's 2023 Form 10-K would be due on April 1, 2024 (because March 30, 2024, the 90th day after year-end, is a Saturday). Additionally, Company X’s 2023 Form 10-K must comply with both the management reporting requirements relating to internal control over financial reporting (S-K 308(a)) and the auditor reporting requirements (S-K 308(b)). Subsidiary Z's 2023 Form 10-K only needs to include management's report on internal control over financial reporting (S-K 308(a)) and does not need to include an auditor’s report on internal control over financial reporting (S-K 308(b)) because, as a non-accelerated filer, Subsidiary Z is exempt from the requirement to provide an auditor’s report on internal control over financial reporting (S-K 308(b)).

See Discussion Document B from the June 2004 meeting of the CAQ SEC Regulations Committee.

An exception to the general rule that an SEC registrant parent company's accelerated filer status should not be “pushed down” to its SEC registrant subsidiary arises when a newly public company seeks to use the Exchange Act reporting history of another entity for purposes of qualifying to use Form S-3. This situation can occur, for instance, in connection with a spin-off transaction when the entity that was spun-off seeks to use its prior parent's reporting history for purposes of qualifying to use Form S-3. This situation can also occur when a newly formed holding company is formed and seeks to use the reporting history of its predecessor for purposes of qualifying to use Form S‑3. See SEC Staff Legal Bulletin No. 4.

If a newly public company seeks or asserts eligibility to use Form S‑3 on the basis of another entity's reporting history, it cannot also avail itself of the relief afforded a newly public company with respect to the Section 404 reporting requirements of the Sarbanes-Oxley Act of 2002 (see SEC 3125.4). In SEC Release 33-8760, Internal Control Over Financial Reporting in Exchange Act Periodic Reports of Non-Accelerated Filers and Newly Public Companies (December 2006) the SEC stated:

A registrant should use the annual revenues for the most recent fiscal year completed before the last business day of its most recently completed second fiscal quarter when assessing whether the registrant is eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in Exchange Act Rule 12b-2, as applicable. This is true even though a company that determines it no longer qualifies to be a smaller reporting company in connection with its annual smaller reporting company assessment (performed as of its most recently completed second fiscal quarter) may file its Form 10-K for that fiscal year using the scaled disclosure requirements applicable to a smaller reporting company. See SEC 2160.211.

For example, assume Company Q determined that it was a smaller reporting company as of its June 30, 2022 annual determination date solely because it met the revenue test under paragraph (2) of Exchange Act Rule 12b-2 (i.e., its revenue for the year ended December 31, 2021 was less than $100 million and its public float as of June 30, 2022 was less than $700 million). Assume Company Q’s public float was equal to or greater than $250 million but less than $700 million as of June 30, 2023 (the date of its June 30, 2023 annual determination).

If Company Q’s revenue for the year ended December 31, 2022 was $100 million or more, then it would not qualify as a smaller reporting company under the revenue test in paragraph (2) of the “smaller reporting company” definition in Exchange Act Rule 12b-2 in connection with its annual smaller reporting company determination made on June 30, 2023. When Company Q performs its annual assessment of its accelerated filer status as of December 31, 2023, it would conclude that it is not eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in Exchange Act Rule 12b-2, as applicable. Therefore, assuming Company Q meets the other conditions of the definition of an accelerated filer, it would conclude that it is an accelerated filer as of December 31, 2023 and would file its Form 10-K as an accelerated filer (e.g., within 75 days and complying with applicable management and auditor reporting requirements relating to internal control over financial reporting). This is true even though Company Q can prepare its Form 10-K for the year ending December 31, 2023 using the scaled disclosure requirements applicable to a smaller reporting company.

No. Only a foreign private issuer that elects to file using domestic forms (e.g., Form 10-K and Form 10-Q) and provides financial statements in accordance with US GAAP may consider the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in determining its accelerated filer status. See SEC FRM 1340.6.