On March 31 and April 6, the U.S. Securities and Exchange Commission (SEC) issued Compliance and Disclosure Interpretations (C&DIs) to provide additional clarity regarding the SEC’s COVID-19 Order issued on March 4 and extended on March 25 (the Order). The C&DIs discuss the use of the standard Form 12b-25 notice for late filings (e.g., extensions of five calendar days for Form 10-Q or 15 calendar days for Form 10-K) in connection with relief from filing deadlines under the Order and the mechanics of relief under the Order for filing Form 10-K Part III information.

The Order granted conditional relief to companies affected by the novel coronavirus 2019 (COVID-19), including a 45-day extension of the filing dates for periodic reports through July 1, 2020. Registrants that are unable to meet filing deadlines due to COVID-19 will have an additional 45 days to file disclosure reports that would have been due between March 1, 2020 and July 1, 2020. To request relief under the Order, a registrant must furnish a Form 8-K or 6-K by the original due date of the report in question, specifying why or how the COVID-19 pandemic caused a delay in meeting the original deadline for each periodic report that is delayed.

C&DI questions 135.12 and 135.13 clarify that a public company wishing to rely on the Order cannot do so by merely filing a Form 12b-25. Unless a registrant has filed a Form 8-K or 6-K complying with the Order’s requirements, it will not be able to rely on the 45-day extension of the filing date permitted under the Order. The SEC specifically stated in the first C&DI (135.12) that a registrant that has filed a Form 12b-25, but fails to file a Form 8-K or 6-K by the Order’s deadline, will not be able to rely on the Order for the related report. However, the second C&DI (135.13) provides that, if a registrant has properly relied on the Order, it will be considered to have a due date 45 days after the original filing deadline for that report, and it would be subsequently permitted to rely on Form 12b-25 to further extend the filing deadline of a report if it is unable to file by the extended due date.

In addition, C&DI question 104.18 clarifies that registrants unable to incorporate Form 10-K Part III information by reference within the allotted 120-day window following the end of the filer’s fiscal year may use the 45-day relief granted by the Order provided that the 120-day deadline falls within the relief period specified in the Order (i.e., no later than July 1, 2020) and the registrant meets the conditions of the Order. The SEC provided that registrants may take advantage of this relief in one of the following ways:

• If the registrant timely filed its annual report on Form 10-K without relying on the Order’s relief:

  • The registrant must furnish a Form 8-K with the disclosures required by the Order by the 120-day deadline.

  • The registrant must provide the Part III information within 45 days of the 120-day deadline by including it in a Form 10-K/A or definitive proxy or information statement.

• If the registrant has yet to file its Form 10-K, it may invoke such relief with respect to both the Form 10-K and the Part III information:

  • The registrant may furnish a single Form 8-K by the original deadline for the Form 10-K that provides the disclosure required by the Order and indicates that the registrant will incorporate the Part III information by reference and provides an estimated date by which the Part III information will be filed.

  • The Part III information must be filed no later than 45 days following the 120-day deadline.

• If a registrant has already properly invoked the Order with respect to its Form 10-K by furnishing a Form 8-K but was silent on its ability to timely file Part III information:

  • The registrant may include the Part III information in its Form 10-K filed within 45 days of the original Form 10-K deadline.

  • Alternatively, the registrant may furnish a second Form 8-K with the disclosure required under the Order by the original 120-day deadline and then file the Part III information no later than 45 days following the 120-day deadline by including it in a Form 10-K/A or definitive proxy or information statement.

What This Means for Registrants

• Registrants that are unable to comply with their original filing deadlines for periodic reports due to the COVID-19 pandemic should first rely on the Order’s 45-day extension period to file the report rather than the extension period provided for under the Form 12b-25 late filing notice in order to preserve the registrant’s Form 12b-25 late filing notice extension period if needed.

• Registrants that are still unable to file the report within the 45-day extension period of the Order may further rely on the Form 12b-25 late filing notice to receive an additional extension to file the report.

• Registrants unable to file the Form 10-K Part III information by reference within the 120-day window following the end of the registrant’s fiscal year should furnish a Form 8-K, as noted above, with the disclosure required under the Order to receive a 45-day extension to the original 120-day deadline to include the information in a Form 10-K/A or definitive proxy or information statement.