To File or Not To File 2135

  • Is a private company that is highly leveraged with public financing subject to 404 requirements?

  • Hi - I believe SOX filing requirements are only pertinent to publicly listed companies and those meeting certain thresholds currently (>USD75M) with smaller company requirements coming later this year. As a good double check on this requirement, the SEC can be contacted directly to discuss specifics.
    SEC Contact information
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  • This particular company is not publicly listed but is required to file 10-Qs and a 10-K (as part of the bond indenture agreement{?}). I’m fairly certain the company needs to comply with SoX, I’m just trying to determine the exact reasoning behind the original decision to comply, and how the non-accelerated filing status was determined - annual sales are in excess of USD1 billion.

  • YOu need to check the market capital against the USD75k threshold rather than the sales figures.
    This should give you a better indication.

  • All companies, whose

    1. securities are listed on a national securities exchange in the U.S.
    2. equity securities are traded over-the-counter in the U.S.
    3. securities have been publicly offered in the U.S.
      are subject to the Sarbanes-Oxley Act and the Securities Exchange Act of 1933.
      If the company is required to file annual reports on form 10-K and quarterly reports on form 10-Q, it is subject to the Sarbanes-Oxley Act. The complianc with section 404 of the Sarbanes-Oxley Act that deals with management’s assessment of the effectiveness of internal control over financial reporting and the auditor’s attestation to the effectiveness of internal control over financial reporting is phased in depending on the market capitalization of the company (large accelerate filer -and-gt;700 mn. USD, accelerated filer-and-gt;745 mn. USD, non-accelerated filer -and-lt;75 mn. USD). You can check the form 10-K on the top whether you are a non-accelerated filer (then you do not have to comply yet with section 404)

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