The Corp Fin staff has issued two new CDIs regarding Rule 12b-25 in the context of the SEC’s conditional relief order. That order extends for 45 days the filing periods for specified SEC filings due between March 1 and July 1, 2020. (See this PubCo post.) Both of the CDIs reaffirm that companies must comply with the conditions of the order, particularly the Form 8-K/6-K requirement, to take advantage of the relief. Companies that are unable to comply “are encouraged to contact the staff to discuss collateral consequences of late filings.”
Question 135.12: A company that is unable to timely file a report due to COVID-19 without unreasonable effort or expense and is uncertain if it will be able to file the required report within the applicable Rule 12b-25(b)(2)(ii) period should instead furnish a report on Form 8-K or 6-K, as applicable, including the specified statements required under the order, by the later of March 16, 2020 or the original due date of the required report. If the company files only a Form 12b-25 by the original due date of the required report, it will have not met the condition of the order to provide the required statements by the original filing deadline on a furnished Form 8-K or Form 6-K. Unless this condition is met, the 45-day relief provided in the order will not be available.
Question 135.13: A Form 12b-25 filing does not extend the original due date of a report. A company cannot file a Form 12b-25 and then subsequently attempt to rely on the order to extend the filing deadline of the subject report by later furnishing a Form 8-K or Form 6-K unless the company also furnished a Form 8-K or Form 6-K by March 16, 2020 or the original due date of the report. On the other hand, if the company relies on the order for a report, the due date of the report will be extended for 45 days after the original filing deadline and the company would be able to subsequently rely on Rule 12b-25 if it is unable to file the report on or before the extended due date.
For guidance on other legal, regulatory and commercial implications of the COVID-19 pandemic, see our Cooley coronavirus resource hub.
