A few readers of yesterday's Blog asked for clarification of our statement: "We are tracking informal SEC guidance indicating that the Frequency decision might be able to be disclosed in a 10-Q, in lieu of an 8-K/A." Specifically, these inquiring minds want to know: "Is the disclosure in a 10-Q as an alternative to an 8-K/A – or not? [Don't leave us hanging.]" Sorry about that folks. Here is what we know so far, according to my partner Erik Lundgren: The SEC Staff has stated, at a recent conference and in private phone conversations, that 10-Q disclosure is a valid alternative to 8-K disclosure of meeting results and a decision regarding Say on Pay Frequency. We have not been able to confirm whether this "guidance" trumps the Form 8-K C&DI 101.01, which suggests that once an 8-K is filed it may only be supplemented through an 8-K/A.
In general, Instruction B.3 to Form 8-K states that information that is otherwise timely filed elsewhere need not be included in the Form 8-K. If we confirm that a 10-Q is allowed in lieu of an 8-K/A, then this disclosure would be in Part II, Item 5 "Other Information" of the Form 10-Q.
So what is the answer? Well, I can't give legal advice in the Blog, but if your 10-Q is upcoming and you have not yet filed 8-K/A, you could disclose your decision in the 10-Q and assume (hope?) that SEC will formalize this position (which we will continue to monitor).