SEC Amends Form 10-K to Permit Inclusion of Summaries
On June 1, 2016, the Securities and Exchange Commission ("SEC") issued an interim final rule amending Form 10-K (the annual report public companies must file with the SEC) to permit reporting companies, at their option, to include a summary of the information required by the Form 10-K in their Form 10-K. This amendment was made in response to Section 72001 of the Fixing America's Surface Transportation ("FAST") Act that directed the SEC to issue regulations to permit the inclusion of a summary provided that the summary contained a link to the material contained elsewhere in the Form 10-K that is being summarized.
The interim final rule adds a new item, Item 16, to Part IV of Form 10-K which authorizes reporting companies to include summary sections in their Form 10-Ks. If a reporting company opts to include a summary, each item of the summary must be presented fairly and accurately and each summary topic must be hyperlinked to the related, more detailed disclosure elsewhere in the Form 10-K. Form 10-K permits reporting companies to respond to certain items by incorporating certain information by reference from their annual reports to shareholders or annual proxy statements. If a reporting company incorporates its annual report and proxy statement by reference, however, the annual report must be filed as an exhibit to the Form 10-K and the definitive proxy statement must be filed within 120 days of the company's fiscal year end. If a reporting company incorporates by reference and includes a summary, the hyperlink must go directly to the relevant sections of the annual report filed as an exhibit. Information incorporated by reference from the company's proxy statement may not be summarized if the proxy statement has not yet been filed. In addition, the summary must affirmatively state that the information has been omitted. There is no obligation to subsequently amend or update the summary when the proxy statement is filed. What is not clear from the interim final rule is whether a proxy statement that has been filed before the Form 10-K must be re-filed as an exhibit to the Form 10-K or if the hyperlink can go to the proxy statement filing.
It is important to note that while Item 16 was added to the end of Form 10-K, the summary may be placed anywhere in the document. The SEC is not specifying any minimum or maximum length (other than to say the summary should be brief) nor is it requiring that every item of Form 10-K be summarized. However, the SEC is soliciting comments as to whether it should make the summary requirement mandatory or otherwise provide further guidance on its preparation.