Sunday, January 18, 2015 11:05:42 PM
Are there negative consequences to filing a Form 12-25?
As noted, if the conditions of the Rule are met, the issuer is deemed to have made a timely filing even though the report was not filed by the prescribed deadline. However, issuers and their management should never rely lightly on the Rule and should always make every effort to submit filings on time. The biggest practical consequence of filing a Form 12b-25 may be that it signals to the marketplace that the issuer’s financial house may not be in order. Companies that provide vague statements or reasons that illustrate more than a temporary, isolated problem with its financial reporting, and companies that rely on Rule 12b-25 more than occasionally, are at particular risk. Investor confidence is a precious commodity and, once shaken, is extremely difficult to regain.
Another concern is that, during the period between the prescribed filing date and the date the report is actually filed, an issuer will not be eligible to use any registration statement under the Securities Act of 1933 the use of which is predicated on timely filed reports. Stockholders whose shares are registered for resale on a Form S-3, for example, cannot sell shares under that registration statement until the report is actually filed. Issuers that fail to file a report on time, therefore, should consider notifying those stockholders that they are prohibited from selling shares during that period. If the issuer is in violation of a contractual obligation to keep the registration statement effective, it may have legal liability to stockholders who are damaged by their inability to sell shares.
Finally, issuers have the same duties to be truthful, to disclose all material facts and to avoid material omissions in their Form 12b-25 as they do in any other filings under the federal securities laws. Moreover the Form itself states that “Intentional misstatements or omissions of fact constitute Federal Criminal Violations. (See 18 U.S.C. 1001.)”
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