As a general rule, SEC filers must file each required periodic report (i.e. 10-Q and 10-K) separately, and if there is an amendment to something disclosed in a report (such as financial statements), then they must file each amended periodic report separately.
Likewise, a filer that is delinquent with more than one filing generally has to file each delinquent filing separately. We sometimes represent clients who, for a variety of reasons, are delinquent in a year or more of required filings, and we help them put together a package of several 10-Q’s and/or 10-K’s, all to be filed simultaneously, in order to get them current again.
We are often asked by clients if they can combine several periods together into one report. The SEC, in the Division of Corporation Finance Financial Reporting Manual (available here), Section 1320.4, does outline a process whereby a delinquent filer can request permission to do so. Section 1320.4 reads as follows:
1320.4 Delinquent Filers Not Operating Under the Bankruptcy Laws
a. A delinquent filer may request an accommodation to file a comprehensive annual report on Form 10-K by writing to CF-OCA. If before the request, however, the filer had been notified in writing about its delinquency, CF-OCA generally will deny the accommodation request.
b. If granted, the accommodation would allow the filing of a comprehensive Form 10-K to include all audited financial statements and other material information that would have been available had the registrant filed timely and complete reports. This comprehensive report also will be required to include unaudited quarterly financial statements in a level of detail consistent with S-X 10-01(a) and (b) for at least the same quarters required by S-K 302(a)(1) as well as a discussion of operating results, trends, and liquidity for each interim and annual period.
c. The granting of this reporting accommodation would not constitute a waiver of the registrant’s duty under the Exchange Act to file all delinquent reports nor would it foreclose enforcement action as to the registrant’s filing delinquencies.
d. The mere filing of a comprehensive annual report would not result in the registrant being considered “current” for purposes of Regulation S, Rule 144, or Form S-8 registration statements. Also, the registrant would not be eligible for Form S-3 level disclosures until it establishes a sufficient history of making timely filings. Registrants having questions on this matter should contact OCC
Note in subsection d, that a filer who is granted permission to file a comprehensive annual report will NOT be considered “current” under Rule 144 until, presumably, it “establishes a sufficient history of making timely filings (drawing the analogy from S-3 eligibility). Specific guidance as to what constitutes a sufficient history will have to come from OCC (Office of Chief Counsel).
