UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 10-K/A

(Amendment No. 1)

 

x                               ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the fiscal year ended January 28, 2006

 

OR

 

o                                  TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from               to                 

 

Commission File Number 1-32315

 

 

NEW YORK & COMPANY, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Securities registered pursuant to Section 12(b) of the Act:

 

 

 

Securities registered pursuant to Section 12(g) of the Act:  None.

 

(Title of Class)

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.  Yes o   No x

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act.  Yes o   No x

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act 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 x   No o

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x

 

Indicate by check mark if the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer” and “large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):

 

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes o   No x

 

The aggregate market value of common stock held by non-affiliates as of July 29, 2005 was approximately $344.7 million, using the closing price per share of $23.54, as reported on the New York Stock Exchange as of such date.

 

The number of shares of registrant’s common stock outstanding as of March 31, 2006 was 55,321,873.

 

DOCUMENTS INCORPORATED BY REFERENCE:

 

TABLE OF CONTENTS - 10-K/A

				Page
PART II.
Item 9A.		Controls and Procedures		3
PART IV.
Item 15.		Exhibits and Financial Statement Schedules		4

 

 

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Explanatory Note

This Amendment No. 1 on Form 10-K/A amends certain portions of the Annual Report on Form 10-K of New York & Company, Inc. (the “Company”) for the fiscal year ended January 28, 2006 as filed with the Securities and Exchange Commission on April 7, 2006. In response to a comment letter from the Securities and Exchange Commission’s Division of Corporation Finance, the Company has made the following amendments to its disclosure:

1) Amend Item 9A. “Controls and Procedures” to clarify the Company’s response to the requirements of Item 307 of Regulation S-K regarding the effectiveness of the Company’s disclosure controls and procedures (as defined by Exchange Act Rules 13a-15(e) or 15d-15(e)) and to clarify the Company’s response to the requirements of Item 308(c) of Regulation S-K in connection with the evaluation required by paragraph (d) of Exchange Act Rules 13a-15 or 15d-15.

2) Amend the certifications filed as Exhibits 31.1 and 31.2 to delete the titles of the certifying individuals at the beginning of the certifications and conform the language as set forth in Item 601(b)(31) of Regulation S-K.

No other amendments have been made, and this Form 10-K/A does not reflect events occurring after the filing of the original Annual Report on Form 10-K or modify or update those disclosures affected by subsequent events.

PART II

Item 9A.                 Controls and Procedures

(a)                                  Evaluation of disclosure controls and procedures

The Company carried out an evaluation, as of January 28, 2006, under the supervision and with the participation of the Company’s management, including the Company’s Principal Executive Officer and Principal Financial Officer, of the effectiveness of the design and operation of the Company’s disclosure controls and procedures pursuant to Rule 13a-15(e) and 15d-15(e) of the Securities Exchange Act of 1934, as amended. Based upon that evaluation, the Principal Executive Officer and Principal Financial Officer concluded that the Company’s disclosure controls and procedures are effective in ensuring that all information required to be filed in this Annual Report on Form 10-K was (i) recorded, processed, summarized and reported within the time period specified in the Securities and Exchange Commission’s rules and forms (ii) and that the disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that the Company files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its Principal Executive and Principal Financial Officers, as appropriate to allow timely decisions regarding required disclosure.

(b)                                 Report of management on internal control over financial reporting

The Company’s management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a—15(f) and 15d—15(f) under the Securities Exchange Act of 1934. The Company’s internal control over financial reporting is a process designed to provide reasonable assurance to the Company’s management and Board of Directors regarding the reliability of financial reporting and the preparation and fair presentation of published financial statements in accordance with accounting principles generally accepted in the United States.

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. Also, projections of any evaluation of the effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

Management assessed the effectiveness of the Company’s internal control over financial reporting as of January 28, 2006. In making this assessment, management used the criteria established in the Internal Control—

 

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Integrated Framework report issued by the Committee of Sponsoring Organizations of the Treadway Commission (the “COSO criteria”).

Based upon management’s assessment and the COSO criteria, management believes that the Company maintained effective internal control over financial reporting as of January 28, 2006.

Management has excluded JasmineSola from its assessment of internal control over financial reporting as of January 28, 2006, because JasmineSola was acquired through a purchase business combination during fiscal year 2005. As disclosed in footnote 4 of the notes to consolidated financial statements included in this Annual Report on Form 10-K, JasmineSola is a wholly-owned subsidiary and is included in the Company’s consolidated financial statements as of January 28, 2006 and for the period from July 19, 2005 to January 28, 2006.

The Company’s independent auditors, Ernst & Young LLP, a registered public accounting firm, have audited and reported on the consolidated financial statements of the Company, management’s assessment of the effectiveness of the Company’s internal control over financial reporting and the effectiveness of the Company’s internal control over financial reporting. The reports of the independent auditors appear on page 43 herein and expressed unqualified opinions on the consolidated financial statements, management’s assessment of the effectiveness of the Company’s internal control over financial reporting and the effectiveness of the Company’s internal control over financial reporting.

(c)                                  Changes in internal control over financial reporting

There has been no change in the Company’s internal control over financial reporting identified in connection with the evaluation required by paragraph (d) of Exchange Act Rule 13a-15 or 15d-15 that occurred during the Company’s last fiscal quarter (the Company’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

PART IV

Item 15.   Exhibits and Financial Statement Schedules

(3)                                  Exhibits filed with this report on Form 10-K/A.

Exhibit No.		Description
31.1		Certification by the Chairman, President and Chief Executive Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, dated March 6, 2007.
31.2		Certification by the Chief Operating Officer and Chief Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, dated March 6, 2007.

 

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on March 6, 2007.

		New York & Company, Inc.
		(Registrant)
		/s/ Ronald W. Ristau
		Ronald W. Ristau
		Chief Operating Officer and
		Chief Financial Officer
		(Principal financial officer)

 

 

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EXHIBIT INDEX

Exhibit No.		Description
31.1		Certification by the Chairman, President and Chief Executive Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, dated March 6, 2007.
31.2		Certification by the Chief Operating Officer and Chief Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, dated March 6, 2007.