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Financial Reporting Manual

Dec. 11, 2017

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TOPIC 9 - Management's Discussion and Analysis of Financial Position and Results of Operations (MD&A)

9100MD&A OBJECTIVES

(Last updated: 9/30/2008)

9110Overall Objectives

9110.1MD&A is a narrative explanation of the financial statements and other statistical data that the registrant believes will enhance a readers' understanding of its financial condition, changes in financial condition and results of operation.

The objectives of MD&A are:

  1. To provide a narrative explanation of a company's financial statements that enables investors to see the company through the eyes of management;
  2. To enhance the overall financial disclosure and provide the context within which financial information should be analyzed; and
  3. To provide information about the quality of, and potential variability of, a company's earnings and cash flow so that investors can ascertain the likelihood that past performance is indicative of future performance.

9110.2MD&A should not consist of generic or boilerplate disclosure. Rather, it should reflect the facts and circumstances specific to each individual registrant. S-K 303 is a "principles-based" disclosure requirement. It is intended to provide management with flexibility to describe the financial matters impacting the registrant.

9200GENERAL REQUIREMENTS

(Last updated: 9/30/2008)

The annual requirements with respect to MD&A are set forth in S-K 303(a). S-K 303(b) sets forth the requirements for MD&A related to interim periods, and the safe harbor provisions are set forth in S-K 303(c). See Section 10220.4 for MD&A requirements for EGCs.

Release No. 33-8350 provided some suggested ways to improve MD&A. These suggestions included adding an overview section to MD&A, presenting the most material information early in the discussion, using headers, bullets or tabular presentations to improve the overall readability and omitting information that is no longer material or necessary. It should be noted these suggestions are not part of the requirements set forth in S-K 303. (Last updated: 6/30/2013)

9210Liquidity and Capital Resources [S-K 303(a)(1) and (2)]

9210.1These represent two separate requirements of S-K 303(a). The majority of registrants combine their discussion of these two items due to the degree of overlap which exists among the requirements. A key objective of the liquidity and capital resources discussion is to provide a clear picture of the company's ability to generate cash and to meet existing known or reasonably likely future cash requirements.

9210.2Liquidity is the ability of the registrant to generate adequate amounts of cash to meet its needs for cash. Any known trends, or any known demands, commitments, events or uncertainties that will result in or are likely to result in the registrant's liquidity increasing or decreasing in a material way should be discussed. To the extent a material deficiency is identified, the registrant should disclose the steps taken to remedy the deficiency. The discussion should also evaluate the amounts and certainties of cash flows, as well as whether there has been material variability in historical cash flows.

9210.3The requirements of the disclosures related to capital resources include a discussion of material commitments for capital expenditures, the general purpose of any commitments and how these commitments will be funded, and material trends in the registrant's capital resources, including expected changes in the mix (equity, debt and any off-balance sheet financing arrangements) and their relative cost.

9210.4The liquidity and capital resources discussion should address:

  1. Material cash requirements;
  2. Sources and uses of cash, including cash provided by/used in operations, as well as cash provided by/used in investing and financing activities; and
  3. Material trends and uncertainties related to a company's flexibility in determining when and how to use the available cash flows to satisfy obligations and make other capital expenditures.

9210.5It may be necessary for the liquidity and capital resources discussion to address debt instruments, guarantees and related covenants. Disclosure is likely to be necessary if:

  1. The registrant is, or is reasonably likely to be, in breach of debt covenants or
  2. Debt covenants impact the registrant's ability to obtain additional debt or equity financing.

9210.6Improving Liquidity and Capital Resources

  1. One of the most common deficiencies is when registrants simply repeat items reported in the statement of cash flows. Registrants should focus on the primary drivers of and other material factors necessary to an understanding of the registrant's cash flows and the indicative value of historical cash flows.
  2. Registrants should describe cash flows from operating, investing and financing activities associated with discontinued operations separately from continuing operations if that information is not apparent from the cash flow statement. Additionally, registrants should describe how the company’s liquidity is likely to be affected by the absence of cash flows (or negative cash flows) associated with discontinued operations.

9220Results of Operations [S-K 303(a)(3)]

9220.1The discussion that is provided with respect to the results of operations should not consist merely of numeric dollar and percentage changes measured from period to period of various line items on the income statement. The focus should be on an analysis of the factors that caused these changes to occur. In providing this analysis, registrants may find it helpful to include a discussion of key variables and financial measures management is utilizing in managing the business. These variables may be non-financial in nature or may represent industry specific metrics.

9220.2The following disclosures are required by S-K 303(a)(3):

  1. Any unusual or infrequent event or transaction or any significant economic change that materially affected the amount of reported income from continuing operations;
  2. Significant components of revenues and expenses that are necessary in order to understand the results of operations (e.g., segmental information);
  3. Any known trends or uncertainties that have had or that the registrant reasonably expects will have a material favorable or unfavorable impact on net sales or revenues or income from continuing operations;
  4. If events that are likely to cause a material change in the relationship between costs and revenues (increases in labor costs or raw materials for example), the change in the relationship should be disclosed; and
  5. To the extent there is a material increase in net sales, discuss the price vs. volume mix (whether the overall increase is attributable to increases in prices or increases in the volume of goods and services being sold).

9220.3In order to comply with the requirement to discuss significant components of revenue and expenses, registrants will often provide a discussion along segmental lines (as determined under SFAS 131 [ASC 280]). Segment analysis is usually necessary to enable a reader to understand the consolidated amounts, but it should not result in repetitive disclosure that lengthens MD&A unnecessarily, or obscures salient information. The discussion and analysis of segments may be integrated with the discussion of the consolidated amounts to avoid unnecessary duplication. The discussion and analysis should be comprehensive. All components of the registrant's results of operations, including those that may not be allocated to the segments in determining the segmental profit or loss (such as certain corporate overhead items or income taxes for example) should be discussed.

9220.4Registrants should consider discussing and analyzing the tax implications related to material transactions, trends and other important items impacting their business as disclosed elsewhere in MD&A. A discussion of the nature and impact of significant tax rate reconciling items should also be considered. For example, discuss the tax rate reconciling item resulting from a change in assumptions related to an unrecognized tax benefit or a different final resolution related to the unrecognized benefit. Similarly, when uncertain tax positions are a critical accounting policy, MD&A should address why the assumptions were changed or why the actual resolution differed from management's assumption. (Last updated: 9/30/2010)

9220.5Registrants should address the underlying reasons for changes in the price versus volume mix. For example, if sales declined because the volume of goods sold decreased by 20%, but this was offset by a 10% increase in price, the discussion in MD&A should not stop once it identifies the price and volume components. In this example, the underlying factors that contributed to the decline in volume as well as the increase in selling prices should also be discussed. In addition, discussions about changes in the price vs. volume mix should consider changes in foreign currency fluctuations.

9220.6The results of operations may not always be prepared on a consistent basis. This will occur, for example, when there has been a change in basis in the underlying financial statements. This might occur in the following situations:

  1. When there has been a material acquisition (either the acquisition of a target entity that is significant to the registrant or predecessor/successor step-up in basis) during the period;
  2. When pushdown accounting has been applied; or
  3. When the registrant has adopted fresh-start accounting upon its emergence from bankruptcy.

9220.7When events such as those described in 9220.6 occur, registrants should consider whether the discussion of the results of operations and financial condition set forth in the audited financial statements included in the filing should be supplemented by a discussion based upon pro forma financial information. This supplemental discussion may be meaningful in the case of a material acquisition, but generally would not be appropriate in the case of fresh-start accounting. A determination as to whether a discussion of the audited financial statements should be supplemented by a discussion based on pro forma information should take into consideration all of the facts and circumstances surrounding the transaction, the nature of the pro forma adjustments to be made, and the overall meaningfulness of any such supplemental pro forma discussion.

9220.8If it is determined that a supplemental discussion in MD&A based on pro forma financial information is appropriate, then the pro forma financial information may be presented in a format consistent with S-X Article 11. Other formats, such as the footnote pro forma information specified by ASC 805, may also be appropriate depending on the particular facts and circumstances. It would be inappropriate to merely combine information for the pre-and post-transaction periods without reflecting all relevant pro forma adjustments required by S-X Article 11. Pro forma financial information should only be prepared for the most recent fiscal year and interim period prior to the transaction occurring (although the staff will not object to the registrant providing a pro forma income statement for the corresponding prior interim period). If pro forma results are discussed in MD&A, they should not be discussed in isolation. Supplemental discussions based on S-X Article 11 pro forma financial information should not be presented with greater prominence than the discussion of the historical financial statements required by S-K 303. (Last updated: 9/30/2010)

For example, assume a material acquisition occurs on August 31, 2007, and the registrant is a calendar year-end company. In accordance with the Form 8-K requirements, pro forma financial information prepared in accordance with S-X Article 11 is prepared for the year ended December 31, 2006 and the interim period ended June 30, 2007 and filed on the Form 8-K. When preparing its MD&A for the Form 10-K for the year ended December 31, 2007, the registrant could elect to supplement the discussion of its historical results with a discussion based on S-X Article 11 pro forma information for the year ended December 31, 2007 that gives effect to the August 31, 2007 acquisition. The pro forma December 31, 2007 information would then be compared to the pro forma information for the year ended December 31, 2006 previously filed via a Form 8-K. This discussion would be in addition to a comparison of the audited financial statements, which would reflect the acquisition occurring in mid-2007. A supplemental discussion based on pro forma financial information in more detail than revenues and costs of revenues for the year ended December 31, 2005 would not be appropriate. The comparison of results of operations and financial condition for the year ended December 31, 2005 to December 31, 2006 would be on an as reported (and audited) basis and would not reflect any impact of the acquisition. In its Form 10-K for the year ended December 31, 2008, the registrant may carry forward the discussion of the pro forma results for the year ended December 31, 2006 and 2007 as a supplement to the discussion of the audited financial statements. No adjustments would be appropriate or necessary to the year ended December 31, 2008 as the acquisition would be reflected in the audited financial statements for the entire year.

NOTE: S-X 11-02(c)(2)(i) ordinarily prohibits the disclosure of pro forma information for annual periods prior to the most recent fiscal year preceding the August 2007 acquisition (i.e., fiscal year 2005 and prior years are prohibited). This prohibition differs from the above example, in which the company is simply including previously filed pro forma information for the purpose of providing a supplemental comparison of pro forma results in the 2007 Form 10-K. The staff would not object to the presentation in the above example even if the pro forma information had not been previously filed (e.g., in an IPO situation, where the company did not have an obligation to file pro forma information related to the August 2007 acquisition; the staff would look to what the company's pro forma disclosure obligation would have been, had it filed a registration statement at that time).

In the above example, because the business combination occurred in August 2007, pro forma information for 2005 (the annual period prior to the most recent fiscal year), is not permitted. Companies may provide pro forma information related to 2005 in MD&A, provided that such information is not in more detail than revenues and cost of revenues. If a company believes that in its unique situation the presentation in a greater level of detail is necessary to understand the implications of the transaction, the company is encouraged to discuss the issue with the staff prior to filing. (Last updated: 3/31/2012)

9220.9Disclosure should be provided to explain how the pro forma presentation was derived, why management believes the presentation to be useful, and any potential risks associated with using such a presentation (the potential that such results might not necessarily be indicative of future results for example, depending on how the information has been prepared, and the period that it covers). Typically, the presentation of complete pro forma financial information (reflecting the adjustments) in MD&A will be necessary in order to facilitate an understanding of the basis of the information being discussed. (In the circumstances described in the example in Section 9220.8, this presentation would include both 2006 and 2007.) However, there may be situations where the pro forma adjustments are limited in number and easily understood so that narrative disclosure of the adjustments alone will be sufficient.

9220.10MD&A should fully explain the results of operations. For example, MD&A should not merely state that the increase in revenues and costs of revenues is due to a significant acquisition. Rather, the contribution of the recent acquisition to total revenues should be quantified to the extent possible, and any increase or decrease in the underlying revenues of the pre-existing business should then be addressed.

9220.11There are two assessments that management must make where a trend, demand, commitment, event or uncertainty is known:

  1. Is the known trend, demand, commitment event or uncertainty likely to come to fruition? If management determines that it is not reasonably likely to occur, no disclosure is required.
  2. If management cannot make that determination, it must evaluate objectively the consequences of the known trend, demand, commitment, event or uncertainty, on the assumption that it will come to fruition. Disclosure is then required unless management determines that a material effect on the registrant's financial condition or results of operations is not reasonably likely to occur.

Note that "reasonably likely" is a lower threshold than "more likely than not" but a higher threshold than "remote". The concept of "reasonably likely" is used in the context of disclosure for MD&A purposes and is not intended to mirror the tests in SFAS 5 [ASC 450] established to determine when accrual is necessary, or when disclosure in the footnotes to the financial statements is required.

9230Off-balance Sheet Arrangements [S-K 303(a)(4)]

9230.1Off-balance sheet arrangements are any transaction, agreement or other contractual arrangement to which an entity not consolidated with the registrant is a party, where the registrant has:

  1. Any obligation under a guarantee contract that has any of the characteristics set forth in paragraph 3 of FIN 45 [ASC 460-10-15-4];
  2. A retained or contingent interest in assets transferred to an unconsolidated entity or similar arrangement that serves as credit, liquidity or market risk support to the entity for the asset;
  3. Any obligation (including contingent obligations) under a contract that would be accounted for as a derivative instrument, except that it meets the scope exception in paragraph 11(a) (being both indexed to the company's own stock and classified in stockholder's equity) of SFAS 133 [ASC 815-10-15-74];
  4. Any obligation (including contingent obligations), arising out of a variable interest entity as defined in FIN 46(R) [ASC 810-10-15] where the entity provides financing, liquidity, market risk or credit risk support to, or engages in leasing, hedging or research and development services with the registrant, and such activities are material.

Note that equity-linked instruments (such as warrants, convertible debt or convertible preferred stock) where the criteria set forth in EITF 00-19 [ASC 815] are met and therefore classification of either the warrant or the conversion option within stockholder's equity is appropriate (meaning that the instrument is eligible for the scope exception in SFAS 133 [ASC 815-10-15-74]) meet the definition of an off-balance sheet arrangement as defined in (c) above, and should be assessed for materiality to determine whether disclosure is required. We would expect the assessment of materiality to include an analysis of the potential dilutive effect of such instruments, as well as an analysis of the likelihood that the scope exception will no longer be available with respect to the instrument (loss of the scope exception could occur as the result of modification to the terms of the instrument, or the issuance of new instruments that can be converted into an unlimited number of shares, thereby tainting other previously issued instruments), which would result in the instrument being treated as a derivative, brought on to the balance sheet at fair value, and marked to market at every period end. The disclosure requirements of this section are set forth in more detail below, but in this situation, the disclosure to be provided could include a discussion of why the registrant chose to issue that type of equity-linked instrument, the potential dilutive effect if the instrument were to be converted, and, depending on the likelihood of the registrant continuing to be able to meet the scope exception, the impact of a change in classification upon the registrant's financial statements.

With respect to (d) above, in this context a variable interest refers to an investment in an unconsolidated entity that would meet the FIN 46(R) [ASC 810-10-15] definition of a variable interest because the investment absorbs expected losses and residual returns that occur in the unconsolidated entity. However, the entity in which the interest is held does not need to meet the FIN 46(R) [ASC 810-10-15] definition of a variable interest entity in order to qualify as an off-balance sheet arrangement requiring disclosure.

9230.2For the registrant's off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on the registrant's financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that is material to investors, disclosure should be provided that addresses:

  1. The nature and business purpose of the off-balance sheet arrangement;
  2. The importance to the registrant of the off-balance sheet arrangement to their liquidity, capital resources, market risk support, credit risk support or other benefits;
  3. The amounts of revenues, expenses and cash flows of the registrant arising from such arrangements; the nature and amounts of any retained interests, securities issued and other indebtedness incurred in connection with such arrangements; the nature and amounts of other obligations or liabilities of the registrant that are or are reasonably likely to become material and the triggering events that could cause them to arise;
  4. Any known event, demand, commitment, trend or uncertainty that will result in or is reasonably likely to result in the termination or material reduction in availability to the registrant of the off-balance sheet arrangements that provide material benefits, and the course of action that they have taken or propose to take in such circumstances.

These requirements are intended to elicit disclosure about why the registrant engages in the off-balance sheet arrangement, the magnitude and importance of the arrangement and the circumstances that would cause the registrant to recognize material liabilities or losses related to the arrangement.

9230.3In December 2007, the Division of Corporation Finance sent an illustrative letter to certain public companies identifying a number of disclosure issues they may wish to consider in preparing Management's Discussion and Analysis for their upcoming annual reports on Form 10-K or 20-F. The full letter is available at: http://www.sec.gov/divisions/corpfin/guidance/cfoffbalanceltr1207.htm.

9240Tabular Disclosure of Contractual Arrangements [S-K 303(a)(5)]

Payments due by period Payments due by period Payments due by period Payments due by period Payments due by period
Contractual Obligations Total Less than 1 year 1-3 yrs 3-5 yrs More than 5 yrs
Long-Term Debt Obligations
Capital (Finance) Leases
Operating Lease Obligations
Purchase Obligations
Other Long-Term Liabilities
Total

9240.1Overview

As an aid to understanding other liquidity and capital resources disclosures in MD&A, the contractual obligations tabular disclosure should be prepared with the goal of presenting a meaningful snapshot of cash requirements arising from contractual payment obligations. Registrants are encouraged to develop a presentation method that is clear, understandable and appropriately reflects the categories of obligations that are meaningful in light of its capital structure and business. Registrants should highlight any changes in presentation that are made, so that investors are able to use the information to make comparisons from period to period. (Last updated: 9/30/2010)

9240.2Presentation

The table should be in substantially the format shown above. Disaggregating the specific categories shown above is appropriate, particularly if the categories used are specific to the underlying business. Therefore, the captions may be changed, and the number of line items expanded, as long as it is clear what is included within each line item. However, to the extent that the registrant has obligations that fall within the above categories, they should be reflected in the table.

9240.3Purchase obligations

Purchase obligations are defined as agreements to purchase goods and services that are enforceable and legally binding, that specify all significant terms, including the quantities to be purchased, price provisions and the approximate timing of the transactions. Additional guidance has not been issued by the staff with respect to what should be included within this category. However, registrants should undertake reasonable effort and expense to assess and aggregate outstanding purchase obligations. Disclosure should accompany the table to clarify how the purchase obligations amount has been calculated.

9240.4[Reserved]

(Last updated 12/31/2010)

9240.5[Reserved]

9240.6Other considerations

  1. A registrant should evaluate whether or not it can reasonably estimate the amount and/or timing of payments it will be obligated to make under interest rate swap agreements to determine whether it can provide meaningful information in the table for these agreements. In some cases, market interest rates may have moved such that a registrant is in a position of receiving cash rather than paying cash under an interest rate swap; cash receipts under interest rate swaps should not be included in the table. If the swap is structured in such a way as to be a fixed rate loan, then the registrant should provide the information.
  2. Bank certificates of deposits are contractual payment obligations on the part of the bank. Therefore, principal and interest payments should be included in the table.
  3. The information disclosed in the table in respect of long-term debt obligations, capital (finance) leases and operating lease obligations should be consistent with the disclosures provided in the financial statements.
  4. [Reserved]
    (Last updated: 12/31/2010)
  5. [Reserved]
    (Last updated: 12/31/2010)

9240.7Footnotes

The table of contractual obligations may be accompanied by footnotes to describe provisions that create, increase or accelerate obligations, or other pertinent data to the extent necessary for an understanding of the timing and amount of the registrant's specified contractual obligations. The footnote disclosure permits management to apply its judgment in determining what items should be included or excluded from the table. If management's judgment results in items being excluded from the table, accompanying footnotes should describe the nature of items excluded and why they are excluded. Management should also consider disclosing the prior year actual spending or budgeted amounts in cases where those purchase orders are not otherwise tracked by the registrant. Disclosure of the dollar amount up to which employees are authorized to make purchases could also be disclosed to help clarify the significance of amounts that may not be tracked by the registrant.

9240.8Smaller reporting companies are NOT required to provide a tabular disclosure of contractual arrangements.

9250Interim Period Requirements [S-K 303(b)]

9250.1In preparing the interim discussion, the registrant may presume that the reader has access to the discussion and analysis required by S-K 303(a) for the preceding fiscal year. The focus should therefore be on material changes in financial condition and results of operations. If disclosure in earlier reports does not adequately foreshadow subsequent events or if new information is available that impacts a known trend, demand, commitment, event or uncertainty, additional disclosure is likely to be necessary in the interim period.

9250.2Seasonal aspects of the business which have had a material effect upon the financial condition or results of operations should be disclosed.

9250.3There may also be circumstances where information was not material in the context of the annual results of operations but is material in the context of the interim results, and therefore that information should be discussed.

9250.4The tabular disclosure of contractual obligations is only required annually, and is not required on an interim basis. If there are material changes to information contained in the table, they may be discussed in the narrative during the interim period.

9260Safe Harbor Provisions [S-K 303(c)]

The safe harbor provisions are intended to protect forward-looking statements against certain private legal actions alleging material misstatements or omissions. Statutory safe harbors are available for the disclosures required with respect to off-balance sheet arrangements and aggregate contractual obligations, as all information required by S-K 303(a)(4) and (5) (excluding statements of historical fact) are considered to fall within the definition of forward-looking.

9270SAB Topic 11M (SAB 74)

(Last updated: 6/30/2013)

9270.1SAB Topic 11M provides disclosure guidance for registrants regarding recently issued accounting standards that have not yet been adopted. The SAB highlights the types of disclosures that should be considered by registrants in MD&A and in the financial statements. It is generally not necessary to provide duplicative disclosure in the MD&A and financial statements, nor is it necessary to provide disclosure for accounting standards that will not apply to a registrant's financial statements. Registrants should exercise judgment consistent with the SAB in determining the nature, extent, and location of the disclosure.

9270.2EGCs should also follow Section 10230.3.

9300[RESERVED]

9400FOREIGN PRIVATE ISSUERS [ITEM 5 OF FORM 20-F]

(Last updated: 9/30/2008)

9410Foreign Private Issuers [Item 5 of Form 20-F]

9410.1The requirements for MD&A are set forth in Item 5 of Form 20-F, under Operating and Financial Review and Prospects (sometimes referred to as the OFR). This Item calls for the same disclosure as S-K 303, so the overall objectives of MD&A are consistent with those set forth above.

9410.2The requirements of Item 5 of Form 20-F are as follows:

  1. Operating results – Item 5.A.
  2. Liquidity and capital resources – Item 5.B.
  3. Research and development, patents and licenses, etc. – Item 5.C.
  4. Trend information – Item 5.D.
  5. Off-balance sheet arrangements – Item 5.E.
  6. Tabular disclosure of contractual obligations – Item 5.F.
  7. Safe harbor – Item 5.G.

9410.3The discussion should focus on the primary financial statements in the document. References to the reconciliation to U.S. GAAP and a discussion of differences between home-country GAAP and U.S. GAAP should be provided to the extent they are necessary for an understanding of the financial statements as a whole. [Instruction 2 to Item 5 of Form 20-F]

9410.4Issuers that file financial statements under IFRS as issued by the IASB without a reconciliation to U.S. GAAP are not required to address U.S. GAAP in their MD&A. Where Item 5 refers to a specific FASB pronouncement, the issuer should provide disclosure that satisfies the objective of the disclosure requirement. [Release No. 33-8879]

9410.5The instructions to Item 5 of Form 20-F specifically refer to the SEC’s 1989 interpretive release on MD&A disclosure. [Release No. 33-6835] The SEC’s 2003 interpretive release on MD&A [Release No. 33-8350] indicates that it applies to Form 20-F filers as well.

9410.6The requirement under Item 5.C. of Form 20-F is the only one that does not have a direct correlation to the requirements in S-K 303. For research and development (R&D), disclosure should be provided in Form 20-F of the R&D policies over the last three years, as well as the amount spent during each of the last three years on R&D (where material). R&D disclosure requirements are set forth in S-K 101 for domestic registrants.

9500CRITICAL ACCOUNTING ESTIMATES

(Last updated: 12/31/2009)

9510Goodwill Impairment

9510.1Registrants should provide disclosure about critical accounting estimates pursuant to the guidance in Release 33-8350. Disclosure is appropriate when:

  1. The nature of the estimates or assumptions is material due to the levels of subjectivity and judgment necessary to account for highly uncertain matters or the susceptibility of such matters to change; and
  2. The impact of the estimates and assumptions on financial condition or operating performance is material.

9510.2Estimates related to goodwill impairment testing are commonly considered critical by registrants. As a result, the staff has developed guidance regarding these disclosures with the objective of ensuring that investors are provided with information that allows for an assessment of the probability of a future material impairment charge. Registrants should consider providing the disclosures outlined in Section 9510.3 in order to comply with the requirements of S-K 303(a)(3)(ii), which requires a description of a known uncertainty. Additional guidance appears in Section V of Release 33-8350, which states that under the existing MD&A disclosure requirements, a company should address material implications of uncertainties associated with the methods, assumptions and estimates underlying the company's critical accounting measurements.

9510.3Registrants should consider providing the following disclosures for each reporting unit that is at risk of failing step one of the impairment test (defined in ASC Topic 350):

  1. The percentage by which fair value exceeded carrying value as of the date of the most recent test;
  2. The amount of goodwill allocated to the reporting unit;
  3. A description of the methods and key assumptions used and how the key assumptions were determined;
  4. A discussion of the degree of uncertainty associated with the key assumptions. The discussion regarding uncertainty should provide specifics to the extent possible (e.g., the valuation model assumes recovery from a business downturn within a defined period of time); and
  5. A description of potential events and/or changes in circumstances that could reasonably be expected to negatively affect the key assumptions.

NOTE: A reporting unit may be at risk of failing step one of the impairment test if it had a fair value that is not substantially in excess of carrying value as of the date of the last impairment test. Whether or not the fair value was "substantially" in excess of carrying value is a judgment based on the facts and circumstances including, but not limited to, the level of uncertainty associated with the methods and assumptions used for impairment testing.

9510.4A registrant need not provide these disclosures if the registrant asserts and discloses that material goodwill does not exist at reporting units that are at risk of failing step one or that no reporting units are at risk. Registrants should consider disclosing the supporting rationale if material goodwill is allocated to a reporting unit that is at risk, but disclosure is deemed unnecessary.

9520Share-based Compensation in IPOs

(Last updated: 2/6/2014)

9520.1Estimates used to determine share-based compensation are often considered critical by companies going public. In particular, estimating the fair value of the underlying shares can be highly complex and subjective because the shares are not publicly traded. The staff will consider if a company performing these estimates is providing the following critical accounting estimate disclosures in its IPO prospectus:

  1. The methods that management used to determine the fair value of the company's shares and the nature of the material assumptions involved. For example, companies using the income approach should disclose that this method involves estimating future cash flows and discounting those cash flows at an appropriate rate.
  2. The extent to which the estimates are considered highly complex and subjective.
  3. The estimates will not be necessary to determine the fair value of new awards once the underlying shares begin trading.

Companies may cross-reference to the extent that this, or other material information relevant to share-based compensation, is provided elsewhere in the prospectus.

9520.2The staff may issue comments asking companies to explain the reasons for valuations that appear unusual (e.g., unusually steep increases in the fair value of the underlying shares leading up to the IPO). These comments are intended to elicit analyses that the staff can review to assist it in confirming the appropriate accounting for the share-based compensation, not for the purpose of requesting changes to disclosure in the MD&A or elsewhere in the prospectus.

9520.3The staff will also consider other MD&A requirements related to share-based compensation, including known trends or uncertainties including, but not limited to, the expected impact on operating results and taxes.

9600RELATED PARTY TRANSACTIONS

(Last updated: 9/30/2008)

9610Related Party Transactions [FR 61]

9610.1In January 2002, an SEC Statement was issued which addressed several aspects of MD&A, including disclosures related to the effects of transactions with related and certain other parties. As discussed in SFAS 57 [ASC 850-10-50-5], transactions involving related parties should not be presumed to be carried out on an arm's-length basis, as the requisite conditions of a competitive market may not exist. Accordingly, where material, the disclosure requirements of S-K 404 with respect to certain relationships and transactions with related parties should be supplemented by additional discussion within MD&A.

9610.2Disclosure of the following may be necessary, where related party transactions are material:

  1. The business purpose of the arrangement;
  2. Identification of the related parties transacting business with the registrant;
  3. How transaction prices were determined by the parties;
  4. If disclosures represent that transactions have been evaluated for fairness, a description of how the evaluation was made; and
  5. Any ongoing contractual or other commitment as a result of the arrangement.

9610.3Consideration should also be given to whether disclosure is necessary about parties that fall outside of the definition of "related parties" set forth in SFAS 57 [ASC-MG], but with whom the registrant has a relationship that enables the parties to negotiate terms of material transactions that may not be available for other, more clearly independent, parties on an arm's-length basis. An example of this type of entity might be a company established and operated by former management of the registrant.

Disclosure should be provided when an investor might not be able to understand the registrant’s reported results of operations without a clear explanation of these arrangements and relationships.

9700FAIR VALUE MEASUREMENTS

(Last updated: 9/30/2008)

In March and September 2008, the Division of Corporation Finance sent illustrative letters to certain public companies that reported significant amounts of asset-backed securities, loans carried at fair value or the lower of cost or market, and derivative assets and liabilities in their recent 10-K filings. The letters highlight disclosure matters relating to SFAS 157 [ASC 820], and suggest disclosures that companies may consider in preparing their MD&A. The full letters are available at: http://www.sec.gov/divisions/corpfin/guidance/fairvalueltr0308.htm and http://www.sec.gov/divisions/corpfin/guidance/fairvalueltr0908.htm.

9800OTHER ITEMS

(Last updated: 9/30/2008)

9810S-X 3-05 and 3-09

MD&A is not required for financial statements filed to comply with S-X 3-05 and 3-09. However, MD&A of companies being acquired may be required in registration and proxy statements under the Form requirements (for example, Items 15-17 of Form S-4 and F-4 and Item 14 of Schedule 14A).

9820S-X 3-10 and 3-16

9820.1S-X 3-10 (c), (d), (e), and (f) allows for the presentation of condensed consolidating financial information when certain criteria are met, rather than the separate financial statements of each issuer or guarantor of a registered security. There is no requirement for the results of operations as presented in the condensed consolidating financial information to be discussed. S-X 3-10(i)(9) and (10) require disclosure in the footnotes to the financial statements with respect to any parent liquidity issues. If there are material restrictions on the parent’s ability to obtain funds from its subsidiaries, or if the information presented in the condensed consolidating financial information indicates that trends for the guarantor subsidiaries are materially different than that of the consolidated entity, this should be discussed in the liquidity section of MD&A.

9820.2If separate financial statements of an issuer or guarantor are filed pursuant to S-X 3-10(a), then MD&A is required.

9820.3A separate MD&A is not required for financial statements provided to comply with S-X 3-16.

9830Registration and Proxy Statement

9830.1Registration and proxy statements that include annual financial statements that have been retroactively revised to report discontinued operations occurring after the year-end balance sheet date should include a revised MD&A based on the revised financial statements. MD&A should describe the events or circumstances that led to the discontinued operation, the material terms of that termination, and the impact on the issuer's operating results and business. For example, the registrant should discuss the results of operations from continuing operations, and related trends based on the restated financial statements. In addition, the registrant should discuss any contingent obligations, financial commitments, or continuing relationship with the discontinued operation, and any impact on the company's liquidity and capital resources. Management should also describe the likely effect the discontinued operation will have on the registrant's continuing business and financial health. This discussion may be included in the registration or proxy statement or in a Form 8-K that includes the restated annual financial statements incorporated by reference.

9830.2Similarly, registration and proxy statements that include annual financial statements that have been retroactively revised to reflect revised segment reporting, with the revision taking place after the year-end balance sheet date, should include a revised MD&A based on the revised segmental footnote disclosure. MD&A should address the change in segmental presentation, and explain why the chief operating decision maker has changed how they make decisions about the allocation of resources or the assessment of performance. The registrant should discuss the results of operations on a segmental basis and related trends based on the revised segmental disclosures included in the restated financial statements.

9830.3Registration and proxy statements that include annual financial statements that have been retroactively revised to reflect the application of a different accounting principle in accordance with SFAS 154 [ASC 250] should also include a revised MD&A if the changes are material to the previously reported results of operations.

9900ADDITIONAL GUIDANCE

(Last updated: 12/31/2010)

9910Additional Guidance Provided in Respect of MD&A Includes:

  • Concept Release on MD&A (No. 33-6711) issued in 1987
  • Interpretive Release (No. 33-6835) issued in 1989, portions of which were codified into FRC 501
  • Cautionary Advice about Critical Accounting Policies issued in 2001 (FR 60)
  • SEC Statement about Management's Discussion and Analysis of Financial Condition and Results of Operations (No. 33-8056) issued in 2002 (FR 61)
  • Summary by the Division of Corporation Finance of Significant Issues Addressed in the Review of the Periodic Reports of the Fortune 500 Companies issued in 2003
  • Final Rule: Disclosure about Management's Discussion and Analysis about Off-Balance Sheet Arrangements and Aggregate Contractual Obligations (No. 33-8182) issued in 2003. Available at: http://www.sec.gov/rules/final/33-8182.htm
  • SEC Interpretive Release on MD&A (No. 33-8350) issued in 2003 (FR 72).  Available at: http://www.sec.gov/rules/interp/33-8350.htm
  • Report and Recommendations Pursuant to Section 401(c) of the Sarbanes-Oxley Act of 2002 on Arrangements with Off-Balance Sheet Implications, Special Purpose Entities, and Transparency of Filings by Issuers issued in 2005. Available at: http://www.sec.gov/news/studies/soxoffbalancerpt.pdf
  • Sample Letter Sent to Public Companies That Have Identified Investments in Structured Investment Vehicles, Conduits or Collateralized Debt Obligations (Off-balance Sheet Entities) issued in December 2007. Available at: http://www.sec.gov/divisions/corpfin/guidance/cfoffbalanceltr1207.htm
  • Sample Letter Sent to Public Companies on MD&A Disclosure Regarding the Application of SFAS 157 (Fair Value Measurements) [ASC 820] issued in March 2008. Available at: http://www.sec.gov/divisions/corpfin/guidance/fairvalueltr0308.htm
  • Sample Letter Sent to Public Companies on MD&A Disclosure Regarding the Application of SFAS 157 (Fair Value Measurements) [ASC 820] issued in September 2008. Available at: http://www.sec.gov/divisions/corpfin/guidance/fairvalueltr0908.htm
  • Sample Letter Sent to Public Companies Asking for Information Related to Repurchase Agreements, Securities Lending Transactions, or Other Transactions Involving the Transfer of Financial Assets issued in March 2010. Available at: http://www.sec.gov/divisions/corpfin/guidance/cforepurchase0310.htm
  • SEC Interpretive Release on Presentation of Liquidity and Capital Resources Disclosures in Management's Discussion and Analysis (No. 33-9144) issued in September 2010 (FR 83). Available at: http://sec.gov/rules/interp/2010/33-9144.pdf
  • Sample Letter Sent to Public Companies on Accounting and Disclosure Issues Related to Potential Risks and Costs Associated with Mortgage and Foreclosure-Related Activities or Exposures issued in October 2010. Available at: http://www.sec.gov/divisions/corpfin/guidance/cfoforeclosure1010.htm

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