Your good client, Ferris Bueller, GC of a company that manufactures reversible car odometers, calls to ask for your advice. He called in sick to the office on the day that his company filed its 10-K, so he realized only when the company received a comment letter from the SEC Staff that the as-filed 10-K mistakenly omitted pages. The company must now amend its 10-K, and Ferris is asking about some of the technical aspects.
Is there a special form for amended reports?
No. Under Exchange Act Rule 12b-15, amendments should be filed on the same form as the original report and marked with an “A” to indicate that the report is an amendment. For example, Bueller should file a Form 10-K/A, and note on the cover page that it is Amendment No. 1.
Let’s say you are only amending one year of the MD&A. Can you re-file only the changed year only or do you have to refile the entire MD&A?
You must file in its entirety each item of the form that is being amended — you can’t amend less than a complete item. Item 7 of Form 10-K requires MD&A covering the three-year period of the financial statements, see Instruction 1 to Regulation S-K Item 303(a), so as a result, you will have to refile the entire MD&A.
Does the filer have to re-file the entire report, or only the items that are being amended?
Some companies choose to re-file the entire report, but you need not file more than the amended items.
What if you are amending more than one filing (e.g., several 10-Ks in a multi-year restatement). Can you file one jumbo amendment?
The SEC Staff takes the position that you cannot amend multiple Exchange Act filings in a single amended filing, and instead must file separate amendments for each report being modified. See C&DI 133.01. In appropriate circumstances, however, some companies will request a waiver from the Staff of the Division of Corporation Finance, Office of Chief Accountant (CF-OCA) to permit the filing of a “super 10-K” similar to the accommodation for “comprehensive” 10-K filings described in Section 1320.4 of the Financial Reporting Manual.
Who needs to sign the amendment?
Any duly authorized representative of the company may sign. It is not necessary, for example, to get a majority of a company’s board to sign a 10-K/A, even though this was required for the original 10-K. See C&DI 133.02.
What about SOX certifications?
We covered the requirements for certifications under the Sarbanes-Oxley Act of 2002 in amended Exchange Act reports here (an oldie but a goodie).
Anything else to keep in mind?
Although not required by rule, it is both customary and advisable to include an explanatory note discussing the reasons for the amendment. Explanatory notes of this sort usually appear immediately after the cover page of an amended filing.