SEC Issues More Compliance & Disclosure Interpretations on COVID-19 Filing Relief
On April 6, 2020, the SEC issued Compliance and Disclosure Interpretation (C&DI) 104.18 to clarify that registrants may take advantage of the COVID-19 filing relief (or order) for the filing of Part III information of Form 10-K. Form 10-K permits the Part III information to be incorporated by reference from a registrant’s definitive proxy or information statement or provided in an amendment to Form 10-K, no later than 120 days after the end of the registrant’s fiscal year end.
The C&DI specifies that registrants may take advantage of the COVID-19 filing relief as long as the they meet the conditions specified in the order and the 120-day deadline falls within the relief period (i.e., is due between March 1 and July 1, 2020). For example:
- A registrant that timely filed its annual report on Form 10-K, but is unable to file the Part III information within 120 days of its fiscal year end should furnish Form 8-K with the specified disclosures by the 120-day deadline (and will then have another 45 days to file the Part III information within the definitive proxy or amended Form 10-K).
- A registrant that is unable to timely file its annual report on Form 10-K or the Part III information may furnish a single Form 8-K with the specified disclosures indicating that the Part III information will be incorporated by reference and the estimated date by which it will be filed (Part III information may be filed no later than 45 days following the 120-day deadline).
- A registrant that furnished Form 8-K with the specified disclosures for its annual report on Form 10-K, but was silent to its ability to timely file the Part III information, may:
- Include the Part III information in its Form 10-K within 45 days after the original Form 10-K due date, or
- Furnish another Form 8-K with the specified disclosures by the original 120-day deadline and then file the Part III information no later than 45 days following the 120-day deadline.
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