On March 4, 2020, the Securities and Exchange Commission (SEC) announced that the deadlines for filing certain Exchange Act reports with the SEC, including annual reports on Form 10-K and quarterly reports on Form 10-Q, have been extended by 45 days for publicly traded companies that have been particularly impacted by the novel coronavirus (COVID-19) (link) and have filing deadlines between March 1 and April 30, 2020. This relief is subject to certain conditions, including that a registrant seeking to extend their deadline must file a Form 8-K or Form 6-K (for foreign private issuers) by the later of March 16, 2020, or the original filing deadline of the report, that contains a summary stating it is relying on the SEC Order, describing the reasons for why the filing cannot be made on timely basis and when the filing is expected to be made, and, if applicable, including, a risk factor noting the impact of COVID-19 on its business and an exhibit containing a signed third-party statement if the filing delay is due to any person, other than the registrant (link). Earlier this year, the SEC notified the public that it was closely monitoring the impact of COVID-19 on investors and capital markets and encouraged issuers to contact SEC staff with questions and concerns (link). In this most recent guidance, it notes that the SEC staff will address COVID-19 filing issues on a case-by-case basis in light of their fact-specific nature.
The SEC's announcement also addressed conditions for continued Form S-3 and Form S-8 eligibility for registrants qualifying for the extended deadline.
On March 6, 2020, Nasdaq provided guidance in Issuer Alert 2020-1 (link) and addressed the impact of the SEC's order on compliance with Nasdaq Rule 5250(c) and Nasdaq Rule 5250(d)(1). Nasdaq also encourages impacted companies to contact their listing analyst or the Nasdaq listing qualification department.
The following table summarizes the potential extended Form 10-K filing deadlines for companies whose fiscal years end on December 31, which would apply if relief under the aforementioned SEC Order due to the impact of COVID-19 is warranted:
Category of Filer
Original Form 10-K Deadline
Form 10-K Deadline with Regulatory Relief 1
|Large Accelerated Filer||March 2, 2020||April 16, 2020|
|Accelerated Filer||March 16, 2020||April 30, 2020|
|Non-Accelerated Filer||March 30, 2020||May 14, 2020|
|Smaller Reporting Company 2||March 30, 2020||May 14, 2020|
|Emerging Growth Company 2||March 30, 2020||May 14, 2020|
Companies, their audit committees and boards should consider the necessity for reflecting disclosures regarding COVID-19 in their periodic reports, including within their business descriptions, risk factors and management discussion and analysis (MD&A). Additionally, companies should consider updates to forward-looking statements language, earnings guidance and other company press releases to maintain compliance with Regulation FD and stock exchange regulations. For further information on this topic, please see 2020 Filing Season Survey: Coronavirus (COVID-19) Disclosures So Far.
1 Companies that receive an extension on filing Exchange Act annual reports or quarterly reports pursuant to the SEC order will be considered to have a due date 45 days after the filing deadline for the report. As such, those companies will be permitted to rely on Rule 12b-25 if they are unable to file the required reports on or before the extended due date.
2 Assumes non-accelerated filer status
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