James Moloney and Lori Zyskowski are partners at Gibson Dunn & Crutcher LLP. This post is based on a Gibson Dunn publication by Mr. Moloney and Ms. Zyskowski.
With all of the substantive issues impacting disclosures in companies’ upcoming annual reports, there are a few technical points reporting companies should bear in mind when preparing their annual report. Note that some of these issues are easy to miss given that they are not yet reflected in the official PDF of Form 10-K.
Addition of Item 16 (Form 10-K Summary). In 2016, the U.S. Securities and Exchange Commission (the “SEC”) adopted an interim final rule that amended Part IV of Form 10-K to add new Item 16. This item provides that “a registrant may, at its option, include a summary in its Form 10-K.” While the SEC’s interim final rule shows what Item 16 will look like, the PDF of Form 10-K included in the SEC’s official forms list still does not include Item 16. Interestingly, this PDF of Form 10-K—which is hosted on the SEC’s website, but is not directly linked from the SEC’s official forms list—has been updated to include Item 16 (but not the next item in our list). Even if a company chooses not to include a Form 10-K summary, pursuant to Exchange Act Rule 12b-13, the company should include the item number and caption (i.e., “Item 16. Form 10-K Summary”) in Part IV and state that the item is not applicable. In addition, companies should remember to revise the table of contents to include new Item 16.
