SEC Guidance on Delayed Filing of Form 10-K Part III Information

April 10, 2020

The SEC has issued C&DI Question 104.18 specifying how the 45-day extension period provided by its COVID-19 exemptive order, which was extended through July 1, 2020, by an additional exemptive order, applies to delays in filing Form 10-K Part III information. Part III information includes executive compensation and corporate governance information that can be omitted from Form 10-K annual reports and incorporated by reference to the proxy statement so long as the proxy statement is filed within 120 days of fiscal year end.

The new C&DI indicates that the 45-day extension applies to Part III information, provided that certain formalities are met:

  • A registrant that has filed its Form 10-K without Part III information by the original deadline can rely on the 45-day extension to file its proxy statement (or Form 10-K/A) by meeting the requirements of the exemptive order (including furnishing a Form 8-K by the 120-day deadline) with respect to the Part III information.
  • A registrant that has not filed a Form 10-K can use a single Form 8-K to extend the filing deadline for both the Form 10-K and the proxy statement by providing specified information regarding the Part III filing in the Form 8-K.
  • A registrant that properly invoked a 45-day extension for its Form 10-K but did not specifically identify its inability to timely file Part III information may either include Part III information in its Form 10-K filed by the extended deadline or furnish an additional Form 8-K by the 120-day deadline and filing Part III information within 45 days of such deadline.

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