In a past installment, we addressed what Alice Wonderland, the General Counsel of our good public company client, March Hare, Inc., should be aware of in connection with a late SEC filing. This time, Alice called us after March Hare missed the filing deadline for a Form 8-K…..silly rabbit! Alice wants to know whether this affects March Hare’s ability to do a take-down from its currently effective shelf registration statement.

Has March Hare headed down a rabbit hole this time?

No, March Hare will be able to continue to do takedowns off of its existing Form S-3 until it files the next Form 10-K. See C&DI 198.03. A company tests Form S-3 eligibility at the time it files its Form 10-K, since the 10-K acts as a post-effective update under Securities Act Section 10(a)(3). See C&DI 114.04 and C&DI 144.01. It also needs to test eligibility at the time of any post-effective amendment to the Form S-3 (for example, for purposes of adding new shares in the case of a non-automatic shelf).

March Hare’s 10-K is looming. Is its shelf in danger of fading away like the Cheshire Cat?

First, it depends what kind of 8-K was late for this very important date. Only 8-K’s that are filed count – those that are furnished don’t. Form 8-Ks under Items 2.02 (earnings releases) and 7.01 (Regulation FD disclosure) are considered furnished and not filed, see General Instruction B.2 to Form 8-K and C&DI 115.07.

Second, Form S-3 is more forgiving about some filed 8-Ks than others. General Instruction I.A.3(b) of Form S-3 lets you off the hook for late filings of Form 8-K’s solely under Items:

  • § 1.01 and 1.02 (material definitive agreements)
  • § 1.04 (mine safety) § 2.03 and 2.04 (off-balance sheet arrangements)
  • § 2.05 (exits or disposals) § 2.06 (impairments)
  • § 4.02(a) (non-reliance on previously issued financial statements)
  • § 5.02(e) (compensatory plans with certain executives)

Third, even if March Hare failed to file one of the Form 8-Ks that matter, you may be able to pull a rabbit out of the hat if you can convince the SEC Staff to give you a waiver. Keep in mind that the SEC Staff typically won’t entertain a waiver request more than 30 days before a company is due to file its Form 10-K.

March Hare has fallen down the rabbit hole. When will it be able to climb back out and what does it have to do while it is down there?

If March Hare loses shelf eligibility, it will have to file a post-effective amendment at the time of the Form 10-K on whatever form would be available to it – typically, Form S-1. See C&DI 144.01. Note that March Hare will have to wait for the SEC Staff to declare the new post-effective amendment effective before it could do a shelf take-down, and that that using Form S-1 for a shelf offering is more complicated than using Form S-3. See C&DI 113.02 for an explanation of how to add information in subsequent Exchange Act reports to an S-1 shelf.

Once twelve months and any portion of a month immediately before the filing have gone by, March Hare will once again be able to file a registration statement on Form S-3 assuming it meets the other requirements of the form. See C&DI 115.03. So, if March Hare’s Form 8-K was originally due on February 20, 2012, and the company was thereafter timely in its reporting, it would first be eligible to use Form S-3 on March 1, 2013.