Most securities lawyers have experienced, at least a few times, the sinking feeling of realizing that a filing deadline may have been missed. The panic results not just from our inherent rule-following tendencies, but also because the error might cost the company its ability to use Form S-3, which (when available) affords a variety of useful accommodations that make it easier to access public capital in a rapidly shifting market.

Through the years, we’ve fielded desperate posts on our Q&A Forum about waiver requests and nightmare scenarios of missing filings by one minute for technical reasons. Now, a welcome solution may be in the works! Among the other proposed amendments that I highlighted earlier this week, the SEC’s proposal on registered offering reform includes this nugget on page 49:

Consistent with the Commission staff’s current practice of not objecting to use of Form S-3 when an untimely filing has been made under certain limited circumstances, we also propose to amend the form’s instructions to provide that an issuer would remain Form S-3 eligible notwithstanding an untimely filing having been made during the relevant lookback period so long as: (a) the filing was made within seven calendar days of the original due date (where 17 CFR 240.12b-25 (“Rule 12b-25”) applies, the seven calendar days would be calculated from the filing’s original due date and not from the end of the time period prescribed under Rule 12b-25) and (b) the issuer made only one untimely filing during the relevant lookback period. We want to encourage issuers to make their Exchange Act filings on a timely basis. At the same time, however, we believe loss of Form S-3 eligibility can be a disproportionately harsh consequence for a single untimely filing during a 12-month period. Accordingly, we propose to permit issuers to remain Form S-3 eligible when the conditions described herein are satisfied. We believe a seven-day period provides a reasonable amount of time to file the missed report or other material while helping ensure investors receive necessary information within a reasonable timeframe.

The footnotes to this excerpt explain that:

– If an issuer attempts to rely on Rule 12b-25 but is unable to comply with the requirements of that rule, the seven calendar days would be calculated from the filing’s original due date and not from the end of the period prescribed under Rule 12b-25. If, on the other hand, an issuer complies with Rule 12b-25 with respect to a report, such report is deemed to be filed on the prescribed due date and, therefore, the issuer would not need to rely on the seven-calendar-day grace period described in this section.

– If the seventh calendar day falls on a Saturday, Sunday, or holiday, the report or other material would need to have been filed no later than the first business day immediately following the Saturday, Sunday, or holiday. Under General Instruction G.(3) of Form 10-K, a reporting issuer subject to the proxy rules may omit Part III information from the Form 10-K if that information is included in the issuer’s proxy statement filed with the Commission within 120 calendar days after the fiscal year end. This instruction treats the omitted Part III information as timely filed on the Form 10-K due date. If the issuer fails to file this information with its proxy statement or fails to amend its Form 10-K within 120 calendar days, the Form 10-K is considered untimely. The proposed seven-day period would apply only to the original Form 10-K due date and not to the additional 120- day period provided by General Instruction G.(3).

Thanks to John and Weil’s Howard Dicker for flagging this Easter Egg!

– Liz Dunshee