The Securities Exchange Act of 1934 (the “Exchange Act”) imposes ongoing disclosure obligations that include an obligation to file periodic reports on Form 10-K and Form 10-Q and current reports on Form 8-K with the Securities and Exchange Commission (the “SEC”). Sometimes reporting companies are unable to comply with their reporting obligations under the Exchange Act.
In limited circumstances, when issuers are more than one year behind in their annual report filings, the SEC eases the burden on delinquent issuers by allowing them to file a single form containing the 10-K and 10-Q reports for the most recent year instead of filing all delinquent reports.
The SEC has indicated that it will relax its procedures in certain cases to accommodate issuers that, for reasons beyond their control, have failed to comply with their reporting obligations. This offers numerous benefits to companies that are able to become current with the SEC by filing a single comprehensive 10-K.
These include avoiding a potential SEC administrative proceeding to revoke their registration under the Exchange Act and/or a trading suspension under Section 12(k) of the Exchange Act.
Filing a comprehensive 10-K report is an efficient and relatively quick method for delinquent SEC reporting companies to become current without incurring the delay and expense of filing multiple years of SEC periodic reports.
The Comprehensive Form 10-K
In order to submit a comprehensive Form 10-K, the issuer must receive SEC approval of their request. The issuer must submit a written request to the SEC’s Office of Chief Accountant at the SEC’s Division of Corporation Finance.
The request should set forth the following:
♦ a list of all missing periodic reports;
♦ an explanation of why the issuer was unable to timely file its required reports;
♦ the reasons why the issuer is attempting to become current; and
♦ the specific time frame in which the issuer expects to complete the report.
In the relevant correspondence, the issuer should ask specifically that the SEC not object to the filing of the comprehensive 10-K instead of the individual delinquent reports. It should also state in its request whether any information required to be presented is unknown and not reasonably available to it because obtaining it would involve unreasonable effort and expense. The SEC’s Office of Chief Accountant generally provides a written response within ten business days after the issuer’s request.
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Brenda Hamilton, Securities Attorney
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Boca Raton, Florida 33432
Telephone: (561) 416-8956
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