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| Delaware | | 94-3030279 |
Delaware
(State or other jurisdiction of incorporation or organization) | | 94-3030279 |
(State of Incorporation)
| | (I.R.S. Employer
Identification No.) |
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27422 PORTOLA PARKWAY, SUITE 350,
FOOTHILL RANCH, CALIFORNIA
Portola Parkway, Suite 200, Foothill Ranch, California | | 92610-2831 |
| (Address of principal executive offices) | | 92610-2831
(Zip Code)
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| (949) 614-1740 | |
| (Registrant's telephone number, including area code) |
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| Securities registered pursuant to Section 12(b) of the Act: |
| Title of each class | | Name of each exchange on which registered |
| Common stock, par value $0.01 per share | | Nasdaq Stock Market LLC |
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| Securities registered pursuant to section 12(g) of the Act: |
| NONE | |
Registrant’s telephone number, including area code:
(949) 614-1740
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par value
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes þ No o No þ
If this report is an annual or transition report, indicateIndicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934.Act. Yes o No þ
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes þ No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 ofRegulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’sregistrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of thisForm 10-K or any amendment toof thisForm 10-K. þ
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a non-accelerated filer.smaller reporting company. See definitionthe definitions of “large accelerated filer,” “accelerated filerfiler” and large accelerated filer”“smaller reporting company” inRule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o Accelerated filer o Non-accelerated filer þ |
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Large accelerated filer þ | Accelerated filer o |
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Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
Indicate by check mark whether the registrant is a shell company (as defined inRule 12b-2 of the Exchange Act). Yes o No þ
As of June 30, 2005, there were 79,671,531 shares of the Common Stock of the registrant outstanding. As of June 30, 2005, theThe aggregate market value of the registrant’s Common Stockcommon stock held by non-affiliates based upon the average bid and asked price of the Common Stockregistrant as reported byof the OTC Bulletin Board maintained by the National Association of Securities Dealers, Inc., for June 30, 2005 (which was the last business day of the registrant’s most recently completed second fiscal quarter)quarter (June 30, 2011) was $.9 million. However, the market value of the registrant’s Common Stock may not be meaningful, because as part of the registrant’s plan of reorganization, the equity interests of the Company’s existing stockholders are expected to be cancelled without consideration.approximately $0.9 billion.
As of February 28, 200623, 2012, there were 79,671,53119,253,185 shares of Common Stockcommon stock of the registrant outstanding.
Documents Incorporated By Reference
None
EXPLANATORY NOTE
We are filing thisThis Amendment No. 1 on Form 10-K/A to amend Part II, Item 9A of our ("Amendment No. 1") amends the Kaiser Aluminum Corporation (the "Company'")Annual Report on Form 10-K of for the fiscal year ended December 31, 2005, which we2011, as filed with the Securities and Exchange Commission (the “SEC”) on March 31, 2006. This amendmentFebruary 29, 2012 (“Form 10-K"). The purpose of this Amendment No. 1 is being filed to modify certain of the language included in Item 9AControls and Procedures.
The following item has been included in this amendment:
— Part II —amend Item 9A. Controls and Procedures
In addition, this amendment includes to replace an inadvertent reference to "our disclosure controls and procedures" with a reference to "our internal control over financial reporting." See the following exhibits:
Exhibit 31.1 — Certification of Jack A. Hockema pursuant to Section 302third paragraph under the caption "Management's Annual Report on Internal Control Over Financial Reporting." While the foregoing items have been updated, no other items in the Form 10-K are amended. This Amendment No. 1 speaks as of the Sarbanes-Oxley Act of 2002
Exhibit 31.2 — Certification of Daniel D. Maddox pursuant to Section 302original filing date of the Sarbanes-Oxley Act of 2002
Exhibit 32.1 — Certification of Jack A. Hockema pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
Exhibit 32.2 — Certification of Daniel D. Maddox pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
This Form 10-K/A10-K, does not reflect events occurring afterthat may have occurred subsequent to the original filing of our Annual Report on Form 10-K on March 31, 2006 or include, or otherwisedate, and except as specifically described in the immediately preceding paragraph, does not modify or update the disclosure contained therein in any way except as expressly indicated above.disclosures made in the Form 10-K.
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Item 9A. | Controls and Procedures |
Item 9A.Controls and Procedures
Evaluation of Disclosure Controls and Procedures.We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our reports under the Securities Exchange Act of 1934 as amended (the “Exchange Act”), is processed, recorded, summarized and reported within the time periods specified in the SEC’sSecurities and Exchange Commission’s rules and forms and that such information is accumulated and communicated to management, including the principal executive officer and principal financial officer, to allow for timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.
Evaluation of Disclosure Controls and Procedures. An evaluation of the effectiveness of the design and operation of the Company’sour disclosure controls and procedures was performed as of the end of the period covered by this Report under the supervision of and with the participation of the Company’sour management, including the principal executive officer and principal financial officer. Based on that evaluation, the Company’sour principal executive officer and principal financial officer concluded that the Company’sour disclosure controls and procedures were not effective for the reasons described below.
During the final reporting and closing process relating to our first quarter of 2005, we evaluated the accounting treatment for the VEBA payments and concluded that such payments should be presented as a period expense. As more fully discussed in Note 16 of the Notes to Consolidated Financial Statements, during our reporting and closing process relating to the preparation of the December 31, 2005 financial statements and analyzing the appropriate post-emergence accounting treatment for the VEBA payments, the Company concluded that the VEBA payments made in 2005 should be presented as a reduction of pre-petition retiree medical obligations rather than as a period expense. While the incorrect accounting treatment employed relating to the VEBA payments does indicate a deficiency in the Company’s internal controls over financial reporting, such deficiency was remediated during the final reporting and closing process in connection with the preparation of the December 31, 2005 financial statements.
During the final reporting and closing process relating to the preparation of the December 31, 2005 financial statements, the Company concluded that our controls and procedures were not effective as of the endDecember 31, 2011 because of the period covered by this report becauseidentification of a material weakness relating to our review of the completeness and accuracy of the information used to value the postretirement benefit obligations of the voluntary employee's beneficiary association that provides benefits for certain eligible retirees represented by certain unions and their spouses and eligible dependents (the “Union VEBA”). Information regarding the identified material weakness and the resulting remediation activities are discussed more fully below in Management's Annual Report on Internal Control Over Financial Reporting.
t Management’s Annual Report on Internal Control Over Financial Reporting. Our management is responsible for establishing and maintaining adequate internal control over financial reporting exists relatingas defined in Rule 13a-15(f) under the Securities Exchange Act of 1934. Our internal control over financial reporting is designed under the supervision of our principal executive officer and principal financial officer, and effected by our Board of Directors, management and other personnel, to our accounting for derivativeprovide reasonable assurance regarding the reliability of financial instruments under Statement of Financial Accounting Standards 133,Accounting for Derivative Instruments and Hedging Activities (“SFAS No. 133”). Specifically, we lacked sufficient technical expertise as to the application of SFAS No. 133, and our procedures relating to hedging transactions were not designed effectively such that each of the complex documentation requirements for hedge accounting treatment set forth in SFAS No. 133 were evaluated appropriately. More specifically, the Company’s documentation did not comply with the SFAS No. 133 in respect to the Company’s methods for testing and supporting that changes in the market value of the hedging transactions would correlate with fluctuations in the value of the forecasted transaction to which they relate. The Company believed that the derivatives it was using would qualify for the “short-cut” method whereby regular assessments of correlation would not be required. However, it ultimately concluded that, while the terms of the derivatives were essentially the same as the forecasted transaction, they were not identical and, therefore, the Company should have done certain mathematical computations to prove the ongoing correlation of changes in value of the hedgereporting and the forecasted transaction.
Management has concluded that, had the Company completed its documentation in strict compliance with SFAS No. 133, the derivative transactions would have qualified for “hedge” (e.g. deferral) treatment. The rules provide that, once de-designation has occurred, the Company can modify its documentation and re-designate the derivative transactions as “hedges” and, if appropriately documented, re-qualify the transactions for prospectively deferring changes in market fluctuations after such corrections are made.
The Company is working to modify its documentation and to re-qualify open and post 2005 derivative transactions for treatment as hedges beginning in the second quarterpreparation of 2006. Specifically, the Company will, as a part of the re-designation process, modify the documentation in respect of all its derivative transactions to require the “long form” method of testing and supporting correlation. The Company also intends to have outside experts
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review its revised documentation once completed and to use such experts to perform reviews of documentation in respect of any new forms of documentation on future transactions and to do periodic reviews to help reduce the risk that other instances of non-compliance with SFAS No. 133 will occur. However, as SFAS No. 133 is a highly complex document and different interpretations are possible, absolute assurances cannot be provided that such improved controls will prevent any/all instances of non-compliance.
As a result of the material weakness, we have restated our financial statements for external purposes in accordance with accounting principles generally accepted in the quarters ended March 31, 2005, June 30, 2005United States and September 30, 2005. In lightinclude those policies and procedures that:
(1) Pertain to the maintenance of these restatements,records that in reasonable detail accurately and fairly reflect our transactions and the dispositions of our assets;
(2) Provide reasonable assurance that our transactions are recorded as necessary to permit preparation of financial statements in accordance with accounting principles generally accepted in the United States, and that our receipts and expenditures are being made only in accordance with authorizations of our management and Board of Directors; and
(3) Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on our financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation.
Under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, has determinedwe assessed the effectiveness of our internal control over financial reporting as of December 31, 2011, using the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control - Integrated Framework. Based on that this deficiency constitutedevaluation, our principal executive officer and principal financial officer concluded that our internal control over financial reporting were not effective as of December 31, 2011 because of the identification of a
material weakness relating to our review of the completeness and accuracy of the information used to value the postretirement benefit obligations of the Union VEBA.
As discussed in this Report, although (1) our only financial obligation to the Union VEBA is to pay to the Union VEBA an annual variable contribution that does not depend on the funding status of the Union VEBA and to pay to the Union VEBA 50% of its administrative expenses, up to $250,000 per year, (2) the Union VEBA assets and liabilities have no impact on our liquidity or cash flow and (3) we have no control over the plan assets or the benefits provided by the Union VEBA, we are required to account for the Union VEBA's net periodic postretirement benefit costs and record any difference between the Union VEBA assets and the Union VEBA's accumulated postretirement benefit obligation in our financial statements. To determine the value and develop appropriate assumptions for the valuation of the Union VEBA assets and obligations required for this treatment, we must obtain from the Union VEBA administrators, on an annual basis, information regarding the Union VEBA assets, Union VEBA benefit structures, Union VEBA plan participants and Union VEBA participant coverage elections. We have identified that, in certain circumstances, the information and assumptions we used for the valuation of the Union VEBA's postretirement benefit obligations did not accurately reflect the Union VEBA benefit structure, plan participants or participant coverage election.
Deloitte & Touche LLP, the independent registered public accounting firm that audited our consolidated financial statements for the year ended December 31, 2011 included in Item 8. “Financial Statements and Supplementary Data” of this Report, has issued an audit report on the effectiveness of our internal control over financial reporting.
Changes in Internal Controls Over Financial Reporting. We had no changes in our internal control over financial reporting.
Changes in Internal Controls Over Financial Reporting. The Company did not have any change in its internal controls over financial reporting during the lastour most recently completed fiscal quarter of 2005 that hashave materially affected, or isare reasonably likely to materially affect, itsour internal controlscontrol over financial reporting. However, as more fully described below, the Company does not believe its internal control environment is as strong as it has been in the past.
The Company relocated its corporate headquarters from Houston, Texas to Foothill Ranch, California, where the Fabricated Products business unit, the Company’s core business, is headquartered. Staff transition occurred starting in late 2004 and was ongoing primarily during the first half of 2005. A small core group of Houston corporate personnel were retained throughout 2005 to supplement the Foothill Ranch staff and handle certain of the remainingChapter 11-related matters. During the second half of 2005, the monthly and quarterly accounting, financial reporting and consolidation processes were thought at that time to have functioned adequately.INDEX OF EXHIBITS
As previously announced, in January 2006, the Company’s Vice President (“VP”) and Chief Financial Officer (“CFO”) resigned. His decision to resign was based on a personal relationship with another employee, which the Company determined to be inappropriate. The resignation was in no way related to the Company’s internal controls, financial statements, financial performance or financial condition. The Company formed the “Office of the CFO” and split the CFO’s duties between the Company’s Chief Executive Officer and two long tenured financial officers, the VP-Treasurer and VP-Controller. In February 2006, a person with a significant corporate accounting role resigned. This person’s duties were split between the VP-Controller and other key managers in the corporate accounting group. The Company also used certain former personnel to augment the corporate accounting team and is working on more permanent arrangements. |
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Exhibit Number | | Description |
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| *31.1 | | Certification of Jack A. Hockema pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
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| *31.2 | | Certification of Daniel J. Rinkenberger pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
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| *32.1 | | Certification of Jack A. Hockema pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
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| *32.2 | | Certification of Daniel J. Rinkenberger pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
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The relocation and changes in personnel described above have made the yearend accounting and reporting process more difficult due to the combined loss of the two individuals and reduced amounts of institutional knowledge in the new corporate accounting group. The Company believes that it has addressed all material matters necessary for this report, but notes that the level of assurance it has over internal accounting and financial accounting control is not as strong as desired or as in past periods.
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SIGNATURES
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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| KAISER ALUMINUM CORPORATION /s/ Jack A. Hockema
Jack A. HockemaPresident and Chief Executive Officer
(Principal Executive Officer)
/s/ Daniel D. Maddox
Daniel D. MaddoxVice President and Controller
(Principal Financial Officer)
Date: April 18, 2006
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INDEX TO EXHIBITS
| | | | | Exhibit
| | | Number
| | Description
| | | *31 | .1 | | Certification of Jack A. Hockema pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | | | | | | | | | | | | | *31 | .2 | | Certification of Daniel D. Maddox pursuant to Section 302 of the Sarbanes-Oxley Act of 2002./s/ Jack A. Hockema | | | | | | | | | | | | | *32 | .1 | | Confirmation of Jack A. Hockema pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | | | | | | | | | | | | | *32 | .2 | | Confirmation of Daniel D. Maddox pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.President and Chief Executive Officer |
Date: February 20, 2013
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