SEC Division of Corporation Finance Issues C&DI about Conditional Relief Order and Incorporation by Reference Into Form 10-K
On April 6, the Securities and Exchange Commission’s (SEC) Division of Corporation Finance issued a new Compliance and Disclosure Interpretation (C&DI) concerning the application of the SEC’s conditional relief order (the Order) that was issued in the wake of the Coronavirus Disease 2019 (COVID-19) for companies filing their annual reports on Form 10-K. As detailed in the March 27, 2020 edition of Corporate & Financial Weekly Digest, the Order gives publicly traded companies an additional 45 days to file certain reports, including most periodic or current reports, that would have been due during the period of March 1-July 1, if the company is unable to meet a filing deadline due to circumstances related to COVID-19. In order to take advantage of the relief, an issuer must, among other things, issue a current report on Form 8-K or Form 6-K, as applicable, with a summary of why the relief is necessary in the particular circumstances.
General Instruction G(3) to Form 10-K (the Instruction) allows information required by Part III of Form 10-K (including information about the company’s directors and executive officers, executive compensation, beneficial ownership information and related party transactions) to be incorporated by reference from a registrant’s definitive proxy statement or information statement, provided that the proxy or information statement is filed with the SEC no later than 120 days after the end of the company’s fiscal year (the 120-day deadline). C&DI 104.18 clarifies that a registrant that intends to rely upon the Instruction, but is unable to file the Part III information by the 120-day deadline, may avail itself of the Order, if the 120-day deadline falls within the Order’s relief period, in the following ways:
A registrant that timely filed its annual report on Form 10-K without relying on the Order should furnish a Form 8-K that includes the required disclosures under the Order no later than the 120-day deadline, in which case the required Part III information would need to be provided, either in an amendment to its Form 10-K (i.e., a Form 10-K/A) or in its definitive proxy statement or information statement, within 45 days of the 120-day deadline.
A registrant that intends to rely upon the Order with respect to both the filing of the Form 10-K and the Part III information can do so by furnishing, no later than the original deadline for the Form 10-K a single Form 8-K that (1) includes the required disclosures under the Order, (2) discloses that the registrant will incorporate the Part III information by reference or by an amendment to the Form 10-K and (3) indicates the estimated date by which such information will be filed. The Part III information would then need to be filed no later than 45 days following the 120-day deadline.
If a registrant properly relied upon the Order with respect to its Form 10-K, but did not include in the related Form 8-K required by the Order disclosure concerning its ability to timely file the Part III information, the registrant may either (1) include the Part III information in its Form 10-K that must be filed within 45 days of the original deadline for the Form 10-K, or (2) furnish another Form 8-K by no later than the 120-day deadline with the required disclosures under the Order and then file the Part III information by no later than 45 days following the 120-day deadline.
The full text of this C&DI is available here.