Many issuers filed Form 12b-25 to extend filing deadline

• Issues over backdated options
• Issues over internal controls
• Other compliance issues
• Heightened post-SOX Act concerns with accuracy

Must file a Form 12b-25

• If an Exchange Act periodic report is late
• Per Rule 12b-25(a)
• Must file by the next business day after the due date
• See General Instructions to Form 12b-25
  for filing requirements
• Must be signed by an executive officer
  or other duly authorized representative

Must disclose reasons why

• In reasonable detail
• See Part III of Form 12b-25

Must address expected operating results

• See Part IV(3) of Form 12b-25
• Disclose anticipated changes from prior periods
• Must answer "yes" or "no"
  i.e. make an affirmative statement and/or provide explanation
• May require MD&A-like discussion

If filing an incomplete Exchange Act report

• see Rule 12b-25(e)

Can still maintain status as a timely filer

• By complying with Rule 12b-25(b)
• For annual reports, extension is for fifteen calendar days
• For quarterly reports, five calendar days
• See Part II of Form 12b-25
• S-3 eligibility is suspended in interim - Rule 12b-25(d)
• Must regain "timely filer" status for continued S-3 eligibility

Deemed filed by original due date, if

• Form 12b-25 is filed by next business day
• Specified representations are made
• Including that delay couldn't have been avoided
  without unreasonable effort or expense
• Completed report is filed within extension period

Opinion, report or certification due from others

• If delay is related to to any person, other than the registrant, must include statement from such person as an exhibit
• See Rule 12b-25(c)
• Covers required auditor reports and attestations

Issues not covered by Rule 12b-25

Problems with electronic filings

• Issues should be addressed per Regulation S-T
• See Rule 12b-25(g)
• See Instruction 5 to Form 12b-25

Subsequent filing of financial statements

• Per Form 10-K Instruction A, or S-X Rule 3-09
• See Rule 12b-25(f)

SEC Telephone Manual 1997

SEC Telephone Manual (1^st Supp - 1999)

Final release 33-6203 1980

Other releases

2006

Dell

Cognos

Bally Total Fitness

Nortel Networks

2005

H&R Block

SEC_CODE_REF_0090001192884

American International Group - AIG

Wendy's International

BearingPoint

Fannie Mae

Biogen IDEC

HealthSouth

Interpublic Group

Eastman Kodak

Sirva Inc

Lakeland Bancorp (NJ)

Pulitzer

NYSE 2004-49

• Proposed rule amendment to address late annual reports
• Initial rule filing

Navigant International - Nasdaq 2005

The Cheesecake Factory - Nasdaq   2005

Key Energy Services - NYSE   2005

Red Robin Gourmet Burgers - Nasdaq 2005

Liability issues

• Form 12b-25 is not simply a "notice" filing
• Requires specified disclosures
• Intentional misstatements are subject to criminal penalty
  (18 USC § 1001)
• Also see Rule 12b-20

Spiegel  2006

• Company delayed filing 2001 10-K and 2002 1Q 10-Q

• To avoid disclosing auditor going concern qualification
• Settled charges against eight former officers and directors

• SEC press release 11.02.06
• Litigation release
• C&D order
• Complaints: 

FFP Marketing  2005

• SEC C&D order 2.14.05
• Company made two false Form 12b-25 filings
• "Boilerplate" failed to disclose details that would lead to later financial restatements

Periodic Reports