Does a companys failure to furnish to the Commission the Form 8-K required by Item 12 in a timely manner affect the companys eligibility to use Form S-3?
Answer 26: No. Form S-3 requires the company to have filed in “a timely manner all reports required to be filed in twelve calendar months and any portion of a month immediately preceding the filing of the registration statement . . .” Because an Item 12 Form 8-K is furnished to the Commission, rather than filed with the Commission, failure to furnish such a Form 8-K in a timely manner would not affect a company’s eligibility to use Form S-3. While not affecting a company’s Form S-3 eligibility, failure to comply with Item 12 of Form 8-K would, of course, be a violation of Section 13(a) of the Exchange Act and the rules thereunder. Question 27: Company ABC issued a press release on April 3, 2003 that contained previously non-public material information. Specifically, Company ABC announced that it would not meet its previous earnings estimates for the fiscal period ended March 31, 2003. The press release also stated that it expected its adjusted earnings (a non-GAAP financial measure) fo
