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Question 104.01

Question: In order to incorporate information from the annual report to shareholders into the Form 10-K pursuant to General Instruction G(2), the report must be prepared in time to be submitted with the Form 10-K. If the annual report is available only in printer’s proof form when the Form 10-K is due, may it be filed as an exhibit to the Form 10-K and still satisfy this instruction?
Answer: Yes. [September 30, 2008]

Question 104.02

Question: Although General Instruction G(3) indicates that the information regarding executive officers required by Item 401 of Regulation S-K may be included in Part I of Form 10-K, can that information be included in Part III of the Form 10-K?
Answer: Yes. [September 30, 2008]

Question 104.03

Question: How is General Instruction D(2)(a)’s requirement that a Form 10-K be signed by a majority of the board satisfied if there are vacancies on the board?
Answer: This signature requirement is satisfied if a majority of the current directors signs the Form 10-K. For example, a company’s by-laws provide for a 15-person board of directors, and at present there are two vacancies. The signature requirement of a majority of the board is satisfied if a majority (i.e., 7 out of 13) of the current directors signs the Form 10-K. [September 30, 2008]

Question 104.04

Question: May directors’ signatures be provided pursuant to powers of attorney?
Answer: Yes. [September 30, 2008]

Question 104.05

Question: General Instruction D(2)(a) states that where the registrant is a limited partnership, the Form 10-K must be signed by the majority of the board of directors of any corporate general partner who signs the report. How is this requirement applied if there is more than one general partner? How is it applied if only one general partner manages the registrant and other general partners retain no control?
Answer: If there is more than one general partner, then a majority of the general partners must sign the Form 10-K. Where one general partner is managing and others retain no control, only the managing general partner must sign the Form 10-K. [September 30, 2008]

Question 104.06

Question: General Instruction G(3) to Form 10-K permits an issuer to incorporate Part III information into the Form 10-K from its definitive proxy material, if the definitive proxy material is filed within 120 days after the end of the issuer’s fiscal year. Where the 120th day falls on a Saturday, Sunday or holiday, may the definitive proxy material be filed on the first business day following?
Answer: Yes, pursuant to Exchange Act Rule 0-3. [September 30, 2008]

Question 104.07

Question: May an issuer filing a Form 10-K pursuant to Section 15(d) rely on General Instruction G(3) to incorporate by reference into the Form 10-K Part III information presented in a proxy statement that was not subject to the Commission’s Section 14(a) requirements at the time it was prepared and delivered?
Answer: No, unless such proxy statement is filed as an exhibit to the Form 10-K, as required by Exchange Act Rule 12b-23(a)(3). [September 30, 2008]

Question 104.08

Question: In General Instruction I(l)(b), which defaults are covered by the language “not cured within thirty days”?
Answer: “Not cured within thirty days” in General Instruction I(l)(b) of Form 10-K relates to defaults in the payment of principal, interest, a sinking or purchase fund installment, as well as any other material defaults. [September 30, 2008]

Question 104.09

Question: A company filed its annual report on Form 10-K, intending to incorporate by reference Part III information from its proxy statement to be filed within 120 days, pursuant to General Instruction G(3) to Form 10-K. If the proxy statement will not be filed within the 120-day period, what must the company do?
Answer: The company must amend the Form 10-K prior to the end of the 120-day period to provide the information that was to have been incorporated by reference. [September 30, 2008]

Question 104.10

Question: A company omits the Part III information in its annual report on Form 10-K because it intends to incorporate this information by reference from its proxy statement to be filed within 120 days, pursuant to General Instruction G(3) to Form 10-K. If the company is acquired between the due date of its Form 10-K and the 120th day after the end of its fiscal year, and will not file a proxy statement after the acquisition closes, must the company still amend its Form 10-K to include the Part III information?
Answer: Yes. [September 30, 2008]

Question 104.11

Question: An issuer with a pending Securities Act registration statement files its Form 10-K and seeks to incorporate by reference into the Form 10-K information from the pending registration statement. Is this permissible?
Answer: Yes, provided that two conditions are met: (1) the portion of the registration statement to be incorporated does not include any incorporation by reference to another document (see Item 10(d) of Regulation S-K), and (2) a copy of the incorporated portion of the registration statement is filed as an exhibit to the Form 10-K, as required by Exchange Act Rule 12b-23(a)(3). [September 30, 2008]

Question 104.12

Question: Must the Rule 14a-3(c) annual report to shareholders be filed as an exhibit to the company’s Form 10-K?
Answer: The annual report to shareholders must be filed as an exhibit to Form 10-K only if information contained in the annual report is incorporated by reference in the Form 10-K or the registrant specifically requests that it be treated as part of the proxy soliciting material. Only those portions of the annual report incorporated by reference are deemed to be filed as part of the Form 10-K. [September 30, 2008]

Question 104.13

Question: An issuer files its 2019 Form 10-K using the disclosure permitted for smaller reporting companies under Regulation S-K. The cover page of the Form 10-K indicates that the issuer will no longer qualify to use the smaller reporting company disclosure for 2020 because its public float exceeded $250 million at the end of its second fiscal quarter in 2019. The issuer proposes to rely on General Instruction G(3) to incorporate by reference executive compensation and other disclosure required by Part III of Form 10-K into the 2019 Form 10-K from its definitive proxy statement to be filed not later than 120 days after its 2019 fiscal year end. May the issuer use smaller reporting company disclosure in this proxy statement, even though it does not qualify to use smaller reporting company disclosure for 2020?
Answer: Yes, because the issuer could have used the smaller reporting company disclosure for Part III of its 2019 Form 10-K if it had not used General Instruction G(3) to incorporate that information by reference from the definitive proxy statement. [November 7, 2018]

Question 104.14

Question: A filer's annual report on Form 10-K includes the financial statements of the filer, which is a limited partnership, and the financial statements of its corporate general partner, which is not a separate issuer and not required to file a Form 10-K. May the Interactive Data File include the financial statements of the corporate general partner?
Answer: No. Under Rule 405(b) of Regulation S-T, only the filer's financial statements, financial statement footnotes, and financial statement schedules are permitted to be included in the Interactive Data File submitted to the Commission. [May 29, 2009]

Question 104.15

Question: A filer's annual report on Form 10-K includes the consolidated parent company's financial statements as well as financial statements of one of its wholly-owned subsidiaries. The parent company has registered equity, and the subsidiary has registered debt. The single filing on Form 10-K is intended to satisfy the reporting obligation of both issuers. While the face financial statements are presented for each issuer separately, there is one set of combined financial statement footnotes. Should all of these financial statements be included in a single Interactive Data File?
Answer: Yes, if interactive data are being submitted for more than one filer whose financial statements are required to be filed and those financial statements appear in a single filing, such as Form 10-K or 10-Q, they must be included in a single Interactive Data File. See Chapter 6 of Volume II of the EDGAR Filer Manual for detailed instructions on how to prepare the interactive data in this circumstance, including how to format the combined footnotes. Note, however, that the Interactive Data File need only include the financial statements for entities mandated under the phase-in provisions. For example, if only the parent company is required to submit its interactive data in year one of the phase in, then the Interactive Data File in year one need only contain the parent company's complete financial statements. [May 29, 2009]

Question 104.16

Question: An annual report on Form 10-K is intended to satisfy the reporting obligation of two "dual listed" companies by including a single set of financial statements. Each of these companies is a separate legal entity with its own file number and Central Index Key ("CIK"). Which company's CIK should be tagged with the Central Index Key element for this submission?
Answer: The Central Index Key element must tag the CIK of just one of the "dual listed" companies, and the filer may choose which of those CIKs to use. As long as the registrants continue to be dual listed and file joint reports, the same CIK should be used in every filing. [May 29, 2009]

Question 104.17

Question: A company filed its annual report on Form 10-K. As permitted by General Instruction G(3) to Form 10-K, the company intended to incorporate by reference Part III information from its definitive proxy statement to be filed within 120 days after the end of the fiscal year covered by the Form 10-K. The company filed a preliminary proxy statement that contained the Part III information within the 120-day period, but the definitive proxy statement will now be filed after the 120-day period. Must the company amend the Form 10-K prior to the end of the 120-day period to file the Part III information that was to have been incorporated by reference?
Answer: Yes. Pursuant to General Instruction G(3) to Form 10-K, the Part III information may be incorporated by reference only from a company's definitive proxy statement or information statement. Therefore, in this situation, the Part III information must be filed as an amendment to the Form 10-K not later than the end of the 120-day period. [Aug. 11, 2010]

Question 104.18

Question: Form 10-K allows Part III information to be incorporated by reference from a registrant’s definitive proxy or information statement, or, under certain circumstances, filed as an amendment to the Form 10-K, not later than 120 days after the end of the related fiscal year. May a registrant that is unable to file the Part III information by the 120-day deadline avail itself of the relief provided by the COVID-19 Order (Release No. 34-88465 (March 25, 2020)) for the filing of the Part III information?
Answer: Yes, as long as the 120-day deadline falls within the relief period specified in the Order and the registrant meets the conditions of the Order.
  • A registrant that timely filed its annual report on Form 10-K without relying on the COVID-19 Order should furnish a Form 8-K with the disclosures required in the Order by the 120-day deadline. The registrant would then need to provide the Part III information within 45 days of the 120-day deadline by including it in a Form 10-K/A or definitive proxy or information statement.
  • A registrant may invoke the COVID-19 Order with respect to both the Form 10-K and the Part III information by furnishing a single Form 8-K by the original deadline for the Form 10-K that provides the disclosures required by the Order, indicates that the registrant will incorporate the Part III information by reference and provides the estimated date by which the Part III information will be filed. The Part III information must then be filed no later than 45 days following the 120-day deadline.
  • A registrant that properly invoked the COVID-19 Order with respect to its Form 10-K by furnishing a Form 8-K but was silent on its ability to timely file Part III information may (1) include the Part III information in its Form 10-K filed within 45 days of the original Form 10-K deadline, or (2) furnish a second Form 8-K with the disclosures required in the Order by the original 120-day deadline and then file the Part III information no later than 45 days following the 120-day deadline by including it in a Form 10-K/A or definitive proxy or information statement. [April 6, 2020]

Question 104.19

Question: The form amendments adding check boxes to the cover page of Form 10-K, Form 20-F, and Form 40-F indicating whether the form includes the correction of an error in previously issued financial statements and a related recovery analysis are effective January 27, 2023. However, the listing standards are not required to be effective until November 28, 2023 and issuers subject to such listing standards will not be required to adopt a recovery policy for 60 days following the date on which the applicable listing standards become effective. Will issuers be required to mark the check boxes in 2023 before an issuer is required to adopt a recovery policy and comply with the applicable listing standards?
Answer: In the adopting release, the Commission indicated that it does not expect compliance with the disclosure requirements until issuers are required to have a recovery policy under the applicable exchange listing standard. While the check boxes and other disclosure requirements will be in the rules and forms in 2023, we do not expect issuers to provide such disclosure until they are required to have a recovery policy under the applicable listing standard. [January 31, 2023]

This is a work of the U.S. Government

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