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Australia : Practice Note Not-So-Current Reports: What Form S-3 Companies Need to Know About Late Form 8-K Filings.

Companies subject to the reporting requirements of the Securities Exchange Act of 1934 (Exchange Act) are required to file current reports on Form 8-K with the Securities and Exchange Commission (SEC) generally within four business days of specified material events. Some triggering events are easy to spot, such as the appointment of a new CEO or the release of quarterly earnings. Others are easier to miss. Failure to timely file a Form 8-K can impact a companys eligibility to use Form S-3 to access the capital markets. This Sidley Practice Note addresses the requirements of Form 8-K, the related requirements of Form S-3 and the consequences of a Form S-3 issuers failure to make timely Form 8-K filings.

Current reports on Form 8-K are required to be filed by U.S. public companies with the SEC upon the occurrence of specified material events, including the entry into or termination of a material definitive agreement, the completion of an acquisition or disposition of assets, the creation of a direct financial obligation or an obligation under an off-balance sheet arrangement, the taking of actions resulting in costs associated with exit or disposal activities, departures and elections of directors, and departures and appointments of certain officers, among other items.

The purpose of Form 8-K is to provide investors with real time disclosure of important corporate events. Generally, a Form 8-K must be filed with the SEC within four business days of the event that triggers disclosure. The principal exceptions are for a Form 8-K furnished under Item 7.01 to provide Regulation FD disclosure and a Form 8-K filed under Item 8.01 to provide disclosure of other events.

Form S-3 under the Securities Act of 1933 (Securities Act) facilitates access to the public capital markets by providing the conveniences of shelf registration, which include delayed primary offerings, incorporation by reference of historical and future Exchange Act filings to satisfy most disclosure requirements, and, for a well-known seasoned issuer (WKSI), automatic effectiveness on filing and a pay-as-you-go registration fee system.

To use Form S-3, a company must, among other things, have been subject to Exchange Act reporting for at least twelve full calendar months preceding the filing of the Form S-3 and have filed all required reports during that period.1 In the twelve full calendar months and any portion of a month preceding the Form S-3 filing, such reports must have been timely filed, with a number of exceptions.2 Because current reports on Form 8-K are required to be filed upon the occurrence of specified material events, and because, unlike Forms 10-K and 10-Q,3 no extension of time is available in the event the company is unable to meet or has not met the filing deadline, failure to comply with the filing requirements of Form 8-K is the most likely cause of Form S-3 eligibility problems.

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Publication:Mena Report
Date:Aug 26, 2016
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