To file a Form 10-K, a company must have registered stock. To register stock, a company must first file a registration statement, which may include a Form 10 AND the Form must be declared effective. A non-registered company cannot, by law, file a Form 10-K before their registration statement is effective. The SEC would consider that to be fraudulent as a company just can't decide to start filing SEC forms on EDGAR without registration.
The actual law is in the Securities Exchange Act of 1934. Section 13. It is also covered by the specific 10-K rule which is:
"This Form shall be used for annual reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) (the "Act") for which no other form is prescribed."
Again, only for annual reports pursuant to Section 13 or 15 of the Exchange Act, which specifically states a company must have registered stock to use a 10-K. No registered stock, no 10-K.
I again ask you to find a filer that filed a 10-K before a Form 10 to prove your point because we cannot "prove" with evidence something that does not exist. Also, call the SEC and ask - they will set you straight.
You are also completely misinterpreting the exemption you listed in your reply. RFMK will never come close to the Exchange Act fling requirement - that is the same rule that Facebook was trying to avoid, and the JOBS Act has raised the bar. I can't even remember the last company that was required to begin filing under that rule it was so long ago and, if they were required, they would not need a Form 10 registration. Since RFMK acknowledges they do have to file one, it sort of blows that argument sky-high. It is a non-issue.
