Alice Wonderland, General Counsel of March Hare, Inc., calls you to let you know that the company won’t file its 10-K on time.

Is March Hare headed down the rabbit hole? What can be done?

If an SEC registrant cannot file a periodic report (such as a Form 10-K, a Form 10-Q or Form 20-F) on time it must file a Form 12b-25 “Notification of Late Filing” (designated as an NT 10-K or NT 10-Q on EDGAR) pursuant to Rule 12b-25 to disclose the inability to file on time and the reason for the delay. Note that Form 12b-25 is not available for current reports on Form 8-K. We cover Form 8-Ks and shelf registrations here.

Under Rule 12b-25, the company’s periodic report will be deemed to be filed on its due date if:

• the Form 12b-25 is filed timely;
• the Form 12b-25 discloses the reasons for the late periodic report;
• the company indicates in the Form 12b-25 that the reasons could not be eliminated without unreasonable effort or expense;
• the company represents in the Form 12b-25 that the periodic report will be filed no later than the fifth calendar day following the due date (for a Form 10-Q) or the 15th calendar day following the due date (for a Form 10-K or 20-F); and
• the periodic report is actually filed within that time period.

Let’s take these requirements in turn. As you will see, Rule 12b-25 has some aspects that may test Alice’s ability to believe six impossible things before breakfast.
When does the Form 12b-25 need to be filed and when does the five or 15-calendar-day period start to run?

The Form 12b-25 must be filed no later than one business day after the due date of the late periodic report. See Rule 12b-25(a). The five or 15-calendar-day period begins following the original due date of the periodic report, meaning that day one of the five or 15-day period is the day after the due date of the original filing, not the day following the due date of the Form 12b-25. Bear in mind that the standard provisions regarding Saturdays, Sundays and holidays under Rule 0-3 apply to determine the original due date of the filing.

Just as an example, let’s say that the actual due date of a Form 10-K fell on Sunday, September 13. The Form 10-K will be considered timely if the company files it by Monday, September 14. If the company will not be able to timely file the Form 10-K, then the Form 12b-25 must be filed by Tuesday, September 15 and the company will need to file the Form 10-K no later than fifteen calendar days after September 14, i.e., September 29.
What sort of disclosure is required? Can I get away with Jabberwocky or do I need to have something more persuasive?

The disclosure regarding the reason for the late filing is important. Don’t let the title lead you astray – Form 12b-25 is a disclosure document, so keep the liability issues firmly in mind as you explain why the toves are slithy and “twas brillig.What about the representation that the filing will be made within the deadline? Alice tells you that March Hare is not likely to file its 10-K within 15 calendar days. Should it still file a Form 12b-25?

Yes – a company should file a Form 12b-25 regardless of whether it expects to file the report within the extension period. See C&DI 107.01. In this case, the company would not check the boxes in Part II of Form 12b-25, which contains a representation that the report will be filed on or before the fifth or 15th calendar day following the due date. These can be tricky situations to sort out in real time (for example, different people involved may have different views as to whether the filing really can be made on time). If you happen to face these issues, let’s talk.
Does the late filing cut off the company’s ability to use its currently effective Form S-3 or Form F-3 during the extension period?

It depends. Remember that Forms S-3 and F-3 require the company to have made timely SEC filings during the prior 12 months. The SEC Staff guidance on the point would allow an issuer to continue to use an existing Form S-3 or Form F-3 if the issuer does not have disclosure concerns and can satisfy itself that the prospectus meets the requirements of Section 10(a)(3) of the Securities Act – i.e., that the information in the prospectus is not more than 16 months old. Bottom line: it’s technically possible under appropriate circumstances, but you have to get comfortable on the disclosure. See C&DI 135.06.
How about using the Form S-3 or Form F-3 after the extension period?

Until the issuer actually files its 10-K or 20-F, the answer is once again “it depends.” The SEC Staff guidance is the same as in the extension period – the company needs to worry about the disclosure issues and meet the requirements of Section 10(a)(3). Once the company files its 10-K or 20-F, it cannot use its existing Form S-3 or Form F-3. See C&DI 135.07.

How about filing a new registration statement on Form S-3 or F-3?

A company could file a new Form S-3 or Form F-3 after filing a Form 12b-25, but only if it actually makes the delinquent filing within the 15‑ or five-calendar-day deadline and satisfies the other conditions of Rule 12b-25. Recall that Rule 12b-25 deems the late periodic report to have been timely filed if the company meets the conditions of Rule 12b-25. If the company blows that deadline, the Form 10-K, Form 10-Q or Form 20-F will be considered late and the company will not be eligible to file a new registration statement on Form S-3 or Form F-3 until its filings with the SEC have once again been made on a timely basis for twelve months.
What else should Alice be aware of in connection with the late filing?

There are several other topics that a company should keep in mind in connection with a late filing. These include:

• the effect on sales of securities under Rule 144 and Form S-8;
• reporting covenants in its credit agreements or bond indentures (see our Client Alert “Indenture Reporting Covenants and Section 314(a) of the Trust Indenture Act“ for a discussion of the intersection of late periodic filings, reporting covenants and the Trust Indenture Act); and
• if the company is listed, NYSE or Nasdaq Rules about late filings and the potential for delisting (see NYSE Rule 802.01E, Nasdaq Rule 5250(c)).