SEC Form 12b-25: The Notification of Late Filing

SEC Form 12b-25, the “Notification of Late Filing,” is a document public companies submit to the U.S. Securities and Exchange Commission (SEC) when a required periodic report, such as a Form 10-K or 10-Q, will not be filed by its deadline. Filing this form allows a company to request a brief, automatic extension without immediately incurring penalties for a late submission. The form serves as a communication tool, informing both the SEC and the investing public about the delay and the reasons behind it.

Common Reasons for Filing

A company may face challenges that prevent the timely submission of its financial reports, and these reasons must be disclosed on the form. Common reasons stem from significant events, such as a recent merger or acquisition that creates accounting complexities. The discovery of a material error in a previous financial report may also necessitate a delay for proper correction and restatement.

Delays can also originate from external dependencies. A company might be waiting for information from a third party, such as a valuation report for a significant asset, or data from a major subsidiary. Issues with the company’s independent auditor, such as disagreements over accounting treatments or unexpected delays in the audit process, are another common justification for an extension.

The SEC expects a clear, narrative explanation for the delay, as general statements are insufficient. The company must provide specific details about the circumstances causing the late filing. These justifications are intended to demonstrate that the delay is due to factors that could not be overcome without “unreasonable effort or expense,” a standard in the governing regulations.

Information Required for Form 12b-25

Part I of the form requires basic registrant information, including the company’s full legal name, address, Central Index Key (CIK), and Commission File Number.

In Part II, the company specifies the report that will be late and its original due date. The filer must check a box for the delayed report, such as Form 10-K or 10-Q. This section also requires the company to affirm whether it has filed all other required reports over the preceding 12 months, as this can impact eligibility for certain securities offerings.

Part III is the narrative section where the company must provide a detailed explanation of the specific reasons for its inability to file on time. This explanation should address the root cause, such as a corporate transaction or a delay caused by a third party. If the delay is due to an external party, like an auditor, a separate statement from that person explaining the reasons must be attached as an exhibit.

Part IV asks the filer to disclose whether it anticipates any significant change in its results of operations from the corresponding period of the last fiscal year. The company must provide a narrative explanation if a significant change is expected, offering investors a preliminary look at potential shifts in financial performance.

The Filing Process and Post-Filing Status

Form 12b-25 must be submitted electronically to the SEC through its EDGAR system. The deadline is strict: it must be filed no later than one business day after the original due date of the late report. Failure to meet this one-day deadline negates any potential for an extension.

A timely filing of Form 12b-25 grants an automatic extension for the late report. The length of this extension is 15 calendar days for an annual report on Form 10-K or Form 20-F. For a quarterly report on Form 10-Q or a distribution report on Form 10-D, the extension is 5 calendar days.

This extension provides a “safe harbor” for the company. If the company files its delayed report within the granted extension period, the SEC will consider it filed on its original due date. This is important for maintaining compliance and eligibility for using certain registration forms, like Form S-3. If the company fails to file by the end of the extension period, the safe harbor is lost, and the report is considered delinquent.