Release No. 33-6203

Release No. 34-16718

April 2, 1980

TIMELY REPORTING-FINAL AMENDMENT OF RULE AND FORM

ACTION: Final rules.

SUMMARY: The Commission announces the adoption of amendments to Rule 12b-25 and related Form 12b-25 which will eliminate the present extension application procedure and, in lieu thereof, institute a system requiring notification of a registrants inability to file timely all or any portion of an annual report on Form 10-K, 20-F or 11-K or a quarterly report on Form 10-Q. In addition, the amended rule provides a procedure whereby a late annual report or portion thereof filed on or before the fifteenth day after the prescribed due date or a late quarterly report or portion thereof filed on or before the fifth day after the prescribed due date will be deemed to have been filed timely. The rule will provide disclosure with respect to non-timely filing and will alleviate the burdens attendant to the application procedure while, at the same time, allowing for appropriate relief.

EFFECTIVE DATE: 30 days after publication in the Federal Register.

FOR FURTHER INFORMATION: Prior to the effective date of the amendments contact Bruce S. Mendelsohn at (202) 272-2589, thereafter contact Stephen W. Hamilton at (202) 272-2573.

SUPPLEMENTARY INFORMATION: The Securities and Exchange Commission today adopted amendments to Rule 12b-25 (17 CFR 240.12b-25) under the Securities Exchange Act of 1934 (the "Exchange Act") 15 U.S.C. 78a et seq. (1976 and Supp. 1 1977) which will eliminate the extension of time to file procedure and, in lieu thereof, will require notification on revised Form 12b-25 (17 CFR 249.322) when an issuer is unable to file on a timely basis all or any required portion of an annual report on Form 10-K (17 CFR 249.310), 11-K (17 CFR 249.311) or 20-F (17 CFR 249.220f) or a quarterly report on Form 10-Q (17 CFR 249.308a) required by Section 13 or 15(d) of the Exchange Act and rules thereunder. In addition, the Commission is adopting a procedure that will provide relief with respect to reports that are not timely filed because of unreasonable effort or expense. Under this provision a report will be deemed to have been filed timely if: (1) the required notification on Form 12b-25 (a) discloses that the reasons causing the inability to file timely could not be eliminated without unreasonable effort or expense, and (b) undertakes that either the subject annual report or portion thereof will be filed no later than the fifteenth calendar day following the prescribed due date or the subject quarterly report or portion thereof will be filed no later than the fifth calendar day following the prescribed due date; (2) the exhibit (statement from expert) required by Rule 12b-25(c) is attached when applicable; and (3), in fact, the report is filed within the represented time period. Concurrently, the Commission is adopting a revision to Form 8-K which will retain a procedure for extensions of time to file audited financial statements required for certain acquired businesses.

BACKGROUND

On September 6, 1979, the Commission published for comment proposed amendments to Rule 12b-25 and its related form, proposed Rule 12b-26 and a proposed revision to Form 8-K. ¹ The proposal would have eliminated the present extension procedure under Rule 12b-25 and substituted a new procedure which would have required notification when an issuer or reporting person was unable to file on a timely basis any report or portion thereof required by Section 13 or 15(d) of the Exchange Act. Proposed Rule 12b-26 would have required prominent disclosure on the cover page of a periodic report if a required portion of such report was omitted. ²

Amendment of Rule 12b-25

All of the eight public comment letters received recommended that the Commission retain some provision for extensions of time because there are cases when a report cannot be timely filed without unreasonable effort or expense. With regard to the Commissions specific inquiry concerning automatic extensions of time, three of the commentators suggested that if amended Rule 12b-25 were adopted provisions for an automatic extension should be incorporated therein. The commentators generally believed that the proposed notification system should not be implemented without a corresponding automatic extension of time procedure.

In adopting these amendments to Rule 12b-25, the Commission affirms its position that required reports should be filed when due. The purposes of the Exchange Act "to insure the maintenance of fair and honest markets in securities transactions..." ³ may be better served without an extension application procedure. Presently, Form 12b-25 is a voluntary filing and, therefore, disclosure with regard to the timeliness of the filing of required information to which the marketplace is entitled is not always available. Because the limited benefits of the present system in terms of extension procedures are outweighed by the detriment to informed markets resulting from the lack of disclosure regarding the timeliness of the filings and by the burden imposed on the staff, the Commission believes that the system should be revised. Accordingly, the Commission is adopting the amendments essentially in the form of the proposal. However, in response to the public comment and the Commissions experience, certain revisions have been made, i.e., notifications are required only for specified forms and a relief procedure has been provided in rule 12b-25(b) (see detailed discussion infra).

As with the proposal, under amended Rule 12b-25, with one exception, ⁴ there will no longer be applications for extensions of time that necessitate action by the Commission or its staff. By eliminating the review requirement for extension of time requests, the Commission will be able to redeploy some resources toward the review of Exchange Act filings. As a result, this action should serve to implement one of the recommendations of the Advisory Committee on Corporate Disclosure, which noted that a substantive review of periodic reports consistent with the quality of information sought in registration statements is essential to the end product of a high quality disclosure document. ⁵ Finally, the amended rule will have limited consequences to registrants and will facilitate the system of continuous disclosure to investors envisioned by the Exchange Act.

Notification Requirement

Concurrent with the elimination of the extension application procedure, the Commission has adopted a new notification procedure under the rule which, unlike the proposal, relates only to annual reports on Forms 10-K, 20-F and 11-K and quarterly reports on Form 10-Q. The new procedure requires that, no later than one business day after the end of the specified period when the subject report is due, the registrant file with the Commission a notification on revised Form 12b-25 which identifies the report or portion thereof in question and gives reasons why the filing cannot be made on time. Since Form 12b-25 is intended to serve as a disclosure mechanism, it will be placed in the public files. In this manner, disclosure will be available to the public with regard to the reasons that a report or portion thereof cannot be filed within the prescribed time period.

Rule 12b-25(b)

Although an automatic extension procedure has not been incorporated into the amendment, the revision is meant to be responsive to the concerns of the commentators. The Commission believes that the rule will provide relief in those areas where it is necessary. In this regard, Rule 12b-25(b) provides that with respect to an annual or quarterly report or portion thereof which is not timely filed because the registrant is unable to do so without unreasonable effort or expense, such report shall be deemed to be filed on the prescribed due date for such report if: (1) the required notification on Form 12b-25 (a) discloses that the reasons causing the inability to file timely could not be eliminated without unreasonable effort or expense, and (b) undertakes that either the subject annual report or portion thereof will be filed no later than the fifteenth calendar day following the prescribed due date or the subject quarterly report or portion thereof will be filed no later than the fifth calendar day following the prescribed due date; (2) the registrant attaches as an exhibit to the Form 12b-25 a statement from any person, other than the registrant (such as the independent auditors), whose inability to furnish any required opinion, report or certification was the reason the report could not be timely filed without unreasonable effort or expense; and (3), the report is filed within the represented time period.

The Commission believes that this procedure will afford appropriate relief in case of unexpected circumstances that may prevent the timely filing of annual and quarterly reports. In addition, this procedure will require no responsive or affirmative action by the Commission or its staff.

It should be noted that registrants utilizing the Rule 12b-25(b) relief will not be eligible to use any registration statement form under the Securities Act of 1933 (the "Securities Act") the use of which is predicted on timely filed reports until the subject report is actually filed. Therefore, if a registrant uses Rule 12b-25(b) and complies with all of its terms, including the actual filing of the report within the represented time frame, Form S-7 and its counterpart registration statement forms may be available.

Timely Reporting

It should be emphasized that the new notification and relief procedures should not be taken as an excuse for non-timely reporting. Failure by public companies to observe the periodic reporting requirements presents an obstacle to the maintenance of fair and informed trading markets in the securities of publicly-held companies. The pricing mechanism of the market is dependent on timely information and, thus, late reporting may adversely affect the quality of this process. In this regard, the Commission will, of course, continue to consider enforcement actions in connection with delinquent reporting. In addition, as stated in the proposing release, the applicability of various rules and availability of certain disclosure forms under the Securities Act of 1933 is predicated upon full compliance with the periodic reporting requirements. For example, the use of Form S-7 or S-16 for registration of certain public offerings of securities depends in part upon a company having filed timely reports pursuant to Section 13 or 15(d) of the Exchange Act for at least the twelve calendar months preceding the filing of the registration statement. Rule 15c2-11 under the Exchange Act requires a dealer to have certain information concerning an issuer before its securities may be quoted by that dealer. Rule 144 under the Securities Act requires the filing of all Exchange Act reports required to be filed for the 12 months immediately preceding a sale.

Certain Findings

As required by Section 23(a)(2) of the Exchange Act, the Commission has specifically considered the impact which the amendments adopted herein would have on competition and has concluded that they impose no significant burden on competition. In any event, the Commission has determined that any possible burden will be outweighed by, and is necessary and appropriate to achieve, the benefits of these amendments to investors and registrants.

Text of Amended Rule and Forms

Chapter II of Title 17 of the Code of Federal Regulations is amended as follows:

PART 239-FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933

1. By revising General Instruction A(b)(2) of §239.26 to read as follows:

§239.26 Form S-7, for registration under the Securities Act of 1933 of securities of certain issuers.

GENERAL INSTRUCTIONS

A. Rule as to Use of Form S-7

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(b) * * *

(2) has filed in a timely manner all reports required to be filed during the twelve calendar months preceding the filing of the registration statement and if the registrant has utilized Rule 12b-25(b) of the Securities Exchange Act of 1934 with respect to a report, that report has actually been filed within the time period prescribed by that rule.

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PART 240-GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 1934

2. By revising §240.12b-25 to read as follows:

§240.12b-25 Notification of inability to timely file all or any required portion of a Form 10-K, 20-F, 11-K or 10-Q.

(a) If all or any required portion of an annual report on Form 10-K, 20-F or 11-K or a quarterly report on Form 10-Q required to be filed pursuant to sections 13 or 15(d) of the Act and rules thereunder is not filed within the time period prescribed for such report, the registrant, no later than one business day after the due date for such report, shall file a Form 12b-25 (17 CFR 249.322) with the Commission which shall contain disclosure of the inability to file the report timely and the reasons therefor in reasonable detail.

(b) With respect to any report or portion of any report described in paragraph (a) of this section which is not timely filed because the registrant is unable to do so without unreasonable effort or expense, such report shall be deemed to be filed on the prescribed due date for such report if:

(1) The registrant files the Form 12b-25 in compliance with paragraph (a) of this section and, when applicable, furnishes the exhibit required by paragraph (c) of this section;

(2) The registrant represents in the Form 12b-25 that:

(i) The reason(s) causing the inability to file timely could not be eliminated by the registrant without unreasonable effort or expense; and

(ii) Either the subject annual report/portion thereof will be filed no later than the fifteenth calendar day following the prescribed due date or the subject quarterly report/portion thereof will be filed no later than the fifth calendar day following the prescribed due date; and

(3) The report/portion thereof is actually filed within the period specified by paragraph (b)(2)(ii) of this section.

(c) If paragraph (b) of this section is applicable and the reason the subject report/portion thereof cannot be filed timely without unreasonable effort or expense relates to the inability of any person, other than the registrant, to furnish any required opinion, report or certificate, the Form 12b-25 shall have attached as an exhibit a statement signed by such person stating the specific reasons why such person is unable to furnish the required opinion, report or certification on or before the date such report must be filed.

(d) Notwithstanding paragraph (b) of this section, a registrant will not be eligible to use any registration statement form under the Securities Act of 1933 the use of which is predicated on timely filed reports until the subject report is actually filed pursuant to paragraph (b)(3) of this section.

(e) If a Form 12b-25 filed pursuant to paragraph (a) of this section relates only to a portion of a subject report, the registrant shall:

(1) File the balance of such report and indicate on the cover page thereof which disclosure items are omitted; and

(2) Include, on the upper right corner of the amendment to the report (required to be filed on Form 8) which includes the previously omitted information, the following statement:

The following items were the subject of a Form 12b-25 and are included herein: (List Item Numbers)

(f) The provisions of this section shall not apply to:

(1) Financial statements to be filed by amendment in accordance with Instruction 3(b) of Instructions as to Financial Statements of Form 10-K or schedules to be filed by amendment in accordance with General Instruction A to Form 10-K; or

(2) Reports required to be filed by an investment company registered under the Investment Company Act of 1940 15 U.S.C. 80a et seq. pursuant to the provisions of that Act or the rules provided thereunder, notwithstanding the fact that such reports are also required to be filed by the Securities Exchange Act of 1934 or the rules adopted thereunder.

PART 249-FORMS, SECURITIES EXCHANGE ACT OF 1934

3. By revising Instruction 4 to Item 7(a) of Form 8-K to read as follows:

§249.308 Form 8-K, for current reports.

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Item 7. Financial Statements and Exhibits.

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(a) Financial statements of business acquired

Instructions

Instructions 1 through 3 remain unchanged.

4. Filing of Other Financial Information in Certain Cases.

The Commission may, upon the written request of the registrant and where consistent with the protection of investors, extend the time for filing the financial statements herein required or permit the omission of one or more of such financial statements or the filing in substitution therefor of appropriate statements of comparable character, if the required audited financial statements are not reasonably available to the registrant, because the obtaining thereof would involve unreasonable effort, expense or practical difficulties. A written request for such relief should be submitted separately from the subject report or the cover letter to the report. The request other than a request for an extension of time to file (except where necessary for a determination of the request) shall set forth the following information:

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4. By revising §249.322 to read as follows:

§249.322 Form 12b-25 Notification of late filing.

This form shall be filed pursuant to §240.12b-25 of this chapter by issuers who are unable to timely file all or any required portion of an annual report on Form 10-K, 20-F or 11-K or a quarterly report on Form 10-Q required by sections 13 or 15(d) of the Act. The filing shall consist of a signed original and three conformed copies, and shall be filed with the Commission at Washington, D.C. 20549, no later than one business day after the due date for the periodic report in question. Copies of this form may be obtained from "Publications," Securities and Exchange Commission, 500 North Capitol Street, Washington, D.C. 20549, 202-272-2960.

Secs. 6, 7, 10, 19(a), 48 Stat. 78, 81, 85; secs. 205, 209, 48 Stat. 906, 908; sec. 8, 68 Stat. 658; sec. 1, 79 Stat. 1051. Secs. 13, 15(d), 23(a), 48 Stat. 894, 895, 901; sec. 203(a), 49 Stat. 704; secs. 3, 8, 49 Stat. 1377, 1379; secs. 4, 6, 78 Stat. 469, 570-574; sec. 2, 82 Stat. 454; secs. 1, 2, 84 Stat. 1497; secs. 10, 18, 89 Stat. 119, 155; sec. 308(b), 90 Stat. 57; secs. 202, 203, 204, 91 Stat. 1494, 1498, 1499, 1500. 15 U.S.C. 77f, 77g, 77j, 77s(a), 78m, 78o(d), 78w(a)

The Commission is adopting these amendments pursuant to the Securities Act of 1933, particularly sections 6, 7, 10 and 19(a) thereof, and the Securities Exchange Act of 1934, particularly sections 13, 15(d) and 23(a).

The Commission finds that any changes in the amended rule and forms adopted from those published in Securities Exchange Act Release No. 16162 have already been generally subject to comment so that further notice and rulemaking procedures pursuant to the Administrative Procedure Act (5 U.S.C. 553) are not necessary.

By the Commission.

George A. Fitzsimmons

Secretary

Form 12b-25 has been filed in the Office of Federal Register as part of the original document. Copies may be obtained from "Publications," Securities and Exchange Commission, 500 North Capitol Street, Washington, D.C. 20549, 202-272-2960.

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FORM 12b-25

U.S. SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

NOTIFICATION OF LATE FILING

(Check One):

Form 10-K Form 11-K Form 20-F Form 10-Q

For Period Ended: ____________________________________________________

SEC FILE NUMBER

CUSIP NUMBER

Read Attached Instruction Sheet Before Preparing Form. Please Print or Type.

Nothing in this Form Shall be construed to imply that the Commission has verified any information contained herein.

If the notification relates to a portion of the filing checked above, identify the Item(s) to which the notification relates: __________________________________________________________

Part I - Registrant Information

Full Name of Registrant

Former Name if Applicable

Address of Principal Executive Office (Street and Number)

City, State and Zip Code

Part II - Rules 12b-25 (b) and (c)

If the subject report could not be filed without unreasonable effort or expense and the registrant seeks relief pursuant to Rule 12b-25(b), the following should be completed. (Check box if appropriate)

(a) The reasons described in reasonable detail in Part III of this form could not be eliminated without unreasonable effort or expense;

(b) The subject annual report/portion thereof will be filed on or before the fifteenth calendar day following the prescribed due date; or the subject quarterly report/portion thereof will be filed on or before the fifth calendar day following the prescribed due date; and

(c) The accountants statement or other exhibit required by Rule 12b-25(c) has been attached if applicable.

Part III - Narrative

State below in reasonable detail the reasons why the Form 10-K, 11-K, 20-F or 10-Q, or portion thereof, could not be filed within the prescribed time period.

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Part IV - Other Information

(1) Name and telephone number of person to contact in regard to this notification

____________________________________________________________

(NAME)

____________________________________________________________________________________________________________________________________

(2) Have all other periodic reports required (under Section 13 or 15(d) of the Securities Exchange Act of 1934) during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) been filed? If answer is no, identify report(s)

YES NO

____________________________________________________________________________________________________________________________________

(3) Is it anticipated that any significant change in results of operations from the corresponding period for the last fiscal year will be reflected by the earnings statements to be included in the subject report or portion thereof?

If so, attach an explanation of the anticipated change, both narratively and quantitatively, and, if appropriate, state the reasons why a reasonable estimate of the results can not be made.

____________________________________________________________________________________________________________________________________

____________________________________________________________________________________________________________________________________

(NAME OF REGISTRANT AS SPECIFIED IN CHARTER)

has caused this notification to be signed on its behalf by the undersigned thereunto duly authorized.

DATE ______________________________________________________

INSTRUCTION: The form may be signed by an executive officer of the registrant or by any other duly authorized representative. The name and title of the person signing the form shall be typed or printed beneath the signature. If the statement is signed on behalf of the registrant by an authorized representative (other than an executive officer), evidence of the representatives authority to sign on behalf of the registrant shall be filed with the form.

ATTENTION

Intentional misstatements or omissions of fact constitute Federal Criminal Violations (See 18 U.S.C. 1001).

GENERAL INSTRUCTIONS

1. This Form is required by Rule 12b-25 (17 CFR 240, 12b-25) of the General Rules and Regulations under the Securities Exchange Act of 1934.

2. One signed original and four conformed copies of this Form and amendments thereto must be completed and filed with the Securities and Exchange Commission, Washington, D.C. 20549, in accordance with Rule 0-3 of the General Rules and Regulations under the Act. The information contained in or filed with the Form will be made a matter of the public record in the Commission files.

3. A manual signed copy of the form and amendments thereto shall be filed with each national securities exchange on which any class of securities of the registrant is registered.

4. Amendments to the notifications must also be filed on Form 12b-25 but need not restate information that has been correctly furnished. The Form shall be clearly identified as an amended notification.

5. These general instructions are not to be filed with the notification. Please detach before mailing the Form.

¹ Release No. 34-16162 (September 6, 1979) 44 FR 53430.

² While not adopting proposed Rule 12b-26 as a separate rule, the substance thereof has been adopted in Rule 12b-25(e). Therefore, proposed Rule 12b-26, to the extent it is not adopted in Rule 12b-25, is withdrawn.

³ Section 2 of the Securities Exchange Act of 1934, 15 U.S.C. 78b.

⁴ The Commission has retained an extension of time to file procedure for audited financial statements required by Items 2 and 7 of Form 8-K for certain acquired businesses. See revised Instruction 4 to Item 7(a) of Form 8-K, infra.

⁵ Report of the Advisory Committee on Corporate Disclosure, Chapter XIV, Page 427 (1977).