Consider Form S-3 Eligibility as the COVID-19 Relief Deadline Approaches

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General Instruction I.A.3 of Form S-3 requires an issuer to have timely filed all periodic reports (Section 13(a) or 15(d) reports and Section 14(a) and 14(c) materials) during the preceding 12 calendar months in order to be eligible to use a Form S-3 registration statement. For purposes of these eligibility requirements, a calendar month begins on the first day of the month and ends on the last day of that month. The first quarter Form 10-Q filing deadline for large accelerated and accelerated filers was May 11, 2020 (for non-accelerated filers the deadline was May 15, 2020). However, in March 2020, the Securities and Exchange Commission (“SEC”) issued an order providing issuers impacted by the COVID-19 pandemic an additional 45 days to file the first quarter Form 10-Q if certain conditions were met. An issuer relying on this relief was required to file with the SEC a Form 8-K no later than the original filing deadline stating that its intention to rely on the SEC order. The order extended the first quarter Form 10-Q filing deadline for electing large accelerated and accelerated filers to June 25, 2020. An issuer relying on the order will be considered current and timely in its filing requirements and maintain eligibility to use Form S-3 (assuming all other eligibility criteria are met) if it files its first quarter Form 10-Q by this extended deadline. If the issuer is unable to file the report on or before this extended due date, the issuer will be permitted to subsequently rely on Rule 12b-25. A Form 12b-25 filing provides the issuer with five additional calendar days in which to file a late Form 10-Q (until June 30, 2020). Importantly, if the late report is filed within this five-day extension period, the report is deemed to have been timely filed and the issuer will remain eligible to use Form S-3. However, the issuer would not be eligible to file a new registration statement on Form S-3 until the Form 10-Q is filed within the Rule 12b-25 extension period.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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