Securities Law Blog

As year-end comes into sight, we thought it would be a good idea to provide our readers with the 2017 SEC filing deadlines for December 31 fiscal year-end public companies that will soon be filing their Form 10-K for the year ending December 31, 2016 or are in the process of registering their securities.

 2016 Annual Reports 

• The 2016 Form 10-K filing deadline for Non-Accelerated Filers and Smaller Reporting Companies is Friday, March 31, 2017, 90 days after fiscal year end. 
• The 2016 Form 10-K filing deadline for Accelerated Filers is Thursday, March 16, 2017, 75 days after fiscal year end. 
• The 2016 Form 10-K filing deadline for Large Accelerated Filers is Wednesday, March 1, 2017, 60 days after fiscal year end. 
• The filing deadline of a definitive proxy statement (or information statement) if Part III of the 2016 Form 10-K incorporates information from the proxy statement by reference is Monday, May 1, 2017, 120 days after fiscal year end. 
• The filing deadline of a Form 20-F for the year ending December 31, 2016 for foreign private issuers is Monday, May 1, 2017, four months after fiscal year end.

Note that when the filing date falls on a weekend or federal holiday, the deadline is extended to the next business day (see Securities Exchange Act Rule 0-3(a)). This is the case with the two prior filings mentioned which are due on Mondays.

Companies that cannot meet the filing deadline for their Form 10-K may submit a Form 12b-25 via the SEC’s EDGAR electronic filing system. By filing this form, a filer gains up to 15 additional calendar days to make a “timely” filing.  Companies have up to 24 hours after the prescribed filing deadline (as extended, if applicable) to file the Form 12b-25. Note, however, that filers must provide a narrative explanation for the failure to file timely.

It is extremely important to remember that EDGAR filings submitted to the SEC after 5:30 p.m. receive the next business day’s filing date (except Section 16 filings and Rule 462(b) registration statements, which receive the actual filing date). EDGAR filings may be made between 6:00 a.m. and 10:00 p.m., Eastern time, on weekdays (excluding holidays). The SEC’s calendar of holidays is posted on its website.

Other SEC Filings Keyed off Calendar or Fiscal Year Ends

• A Form 5 is due Tuesday, February 14, 2017, 45 days after fiscal year end.
• An annual amendment to Schedule 13G filed by institutional or passive investors is due Tuesday, February 14, 2017, 45 days after calendar year end.
• A Form 13F for qualifying institutional investors is due Tuesday, February 14, 2017, 45 days after calendar year end, as well as after each of the first three quarter ends.
• An annual filing on Form 13H for Large Traders is due Tuesday, February 14, 2017, 45 days after calendar year end.
• A Form 11-K is due Friday, March 31, 2017, 90 days after the plan’s fiscal year end, provided that plans subject to ERISA may file the plan statements within 180 calendar days after the plan’s fiscal year end.

Financial Statement Staleness Dates (see Reg. S-X Rule 3-12)

For September 30, 2016 unaudited financials

• The last day September 30, 2016 financial statements may be used for initial public offerings or by Delinquent Filers or Loss Corporations is Tuesday, February 14, 2017, 45 days after year end.
• The last day September 30, 2016 financial statements may be used by Large Accelerated Filers (which are not Delinquent Filers or Loss Corporations) is Wednesday, March 1, 2017, 60 days after year end.
• The last day September 30, 2016 financial statements may be used by Accelerated Filers (which are not Delinquent Filers or Loss Corporations) is Thursday, March 16, 2017, 75 days after year end.
• The last day September 30, 2016 financial statements may be used by all other filers is Friday, March 31, 2017, 90 days after year end.

For December 31, 2016 audited financials

• The last day December 31, 2016 financial statements may be used by Large Accelerated Filers and Accelerated Filers is Tuesday, May 9, 2017, 129 days after year end.
• The last day December 31, 2016 financial statements may be used by all other filers is Monday, May 15, 2017 (as extended from weekend deadline pursuant to Securities Act Rule 417), 134 days after year end.

Definitions

A “Delinquent Filer” means a registrant that files annual, quarterly and other reports pursuant to Section 13 or 15(d) of the Securities Exchange Act, but all reports due have not been filed. 

A “Loss Corporation” does not expect to report positive income after taxes but before extraordinary items and the cumulative effect of a change in accounting principle for the most recently ended fiscal year and did not do so for at least one of the two prior fiscal years. 

Generally, a “Large Accelerated Filer” is an issuer (a) with an aggregate worldwide market value of voting and non-voting equity held by non-affiliates of $700 million or more (as of the last business day of the issuer’s most recently completed second fiscal quarter); (b) has been subject to the requirements of Securities Exchange Act Section 13(a) or 15(d) for at least 12 calendar months; and (c) has filed at least one annual report pursuant to Securities Exchange Act Section 13(a) or 15(d). 

Generally, an “Accelerated Filer” is an issuer that meets the requirements above, except the market value criterion is $75 million or more, but less than $700 million.  If an issuer no longer qualifies for its particular status (less than $500 million and more than $50 million for Large Accelerated Filers and less than $50 million for Accelerated Filers, calculated as of the last business day of the issuer’s most recently completed second fiscal quarter), it will nevertheless remain in its existing status until the end of that fiscal year.  See Securities Exchange Act Rule 12b-2.