In response to the global pandemic caused by COVID-19, the Securities and Exchange Commission (SEC) announced that it is again extending the filing period for certain public company reports under the Securities and Exchange Act of 1934 (i.e., Form 10-K, Form 10-Q) for companies impacted by COVID-19.
The SEC issued an order on March 4, 2020, which granted filing relief providing public registrants with a 45-day extension for certain reports due between March 1 and April 1, 2020. On March 25, 2020, the SEC issued an order extending the 45-day filing relief for certain reports due between March 1 and July 1, 2020.
A registrant relying on the relief granted by the SEC must file a Form 8-K (or 6-K if a foreign public issuer) by the original report deadline stating (1) it is relying on the order; (2) a brief description of the reasons why the report cannot be filed on a timely basis; (3) the estimated filing date the report is to be filed; and (4) the risk factors explaining the impact, if material, of COVID-19 on their business.
Additionally, if the report cannot be filed in a timely manner due to the inability of any person, other than the registrant, to furnish any required opinion, report or certification, the Form 8-K or 6-K must include a statement signed by that person stating the specific reasons why the individual is unable to furnish the report. When the public registrant files its report, the registrant must disclose that it is relying on the order and the reasons the filing was not timely filed.
Public registrants relying on the order that file the report within the 45-day extension period would not need to file Form 12b-25. If a registrant is unable to file the report within the extended due date, it is permitted to file a Form 12b-25 for an additional grace period.
Public registrants will remain eligible to use Form S-3 or Form F-3 (and for well-known seasoned issuer status, which is based in part on Form S-3 or Form F-3 eligibility) if it files its reports within the extended due dates granted by this order. Also, a public registrant will be considered current under this order to remain eligible to use Form S-8 and meet the current public information eligibility requirements of Rule 144(c).
This period of unprecedented turmoil has created unforeseen issues for many companies, including lack of access to financial records. The SEC’s order provides filing relief much like that granted under Form 12b-25 and registrants should consider utilizing the grace period when circumstances warrant it. Generally, there have not been negative consequences for registrants utilizing the grace period provided by Form 12b-25.
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