As discussed in our recent Viewpoints advisory, on March 4, 2020, the Securities and Exchange Commission (the “SEC”) issued an order granting conditional relief to certain issuers that provides an additional 45 days to file certain disclosure reports as a result of the coronavirus (“COVID-19”) pandemic. On March 25, 2020, the SEC issued a new order that supersedes and extends the initial March 4, 2020 order to extend the end of the conditional relief period from April 30, 2020 to July 1, 2020.
Under the new March 25, 2020 order, an issuer and any person required to make any filings with respect to such an issuer is exempt from any requirement to file or furnish certain materials and amendments thereto with the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including, but not limited to, Form 10-K, Form 10-Q, Form 8-K, Form 20-F, and Schedule 13G (but not Schedule 13D or filings under Section 16 of the Exchange Act), between March 1, 2020 and July 1, 2020, subject, in each case, to the following conditions:
- the issuer or any person required to make any filings with respect to such an issuer is unable to meet a filing deadline due to circumstances related to COVID-19;
- any issuer relying on the order furnishes to the SEC a Form 8-K or, if eligible, a Form 6-K, by the later of March 16, 2020 or the original filing deadline of the report stating:
- that it is relying on the order;
- a brief description of the reasons why it could not file such report, schedule, or form on a timely basis;
- the estimated date by which the report, schedule, or form is expected to be filed;
- a company-specific risk factor or factors explaining the impact, if material, of COVID-19 on its business; and
- if the reason the subject report cannot be filed timely relates to the inability of any person, other than the issuer, to furnish any required opinion, report, or certification, the Form 8-K or Form 6-K shall have attached as an exhibit a statement signed by such person stating the specific reasons why such person is unable to furnish the required opinion, report, or certification on or before the date such report must be filed;
- the issuer or any person required to make any filings with respect to such an issuer files with the SEC any report, schedule, or form required to be filed no later than 45 days after the original due date; and
- in any report, schedule, or form filed by the applicable deadline pursuant to item (c) above, the issuer or any person required to make any filings with respect to such an issuer must disclose that it is relying on the order and state the reasons why it could not file such report, schedule, or form on a timely basis.
The new March 25, 2020 order also continues, until ordered otherwise, the previous exemption with respect to certain delivery requirements so that an issuer or any other person is exempt from the requirements of the Exchange Act and the rules thereunder to furnish proxy statements, annual reports, and other soliciting materials, as applicable (the “Soliciting Materials”), and the requirements of the Exchange Act and the rules thereunder to furnish information statements and annual reports, as applicable (the “Information Materials”), where the following conditions are satisfied:
- the issuer’s security holder has a mailing address located in an area where, as a result of COVID-19, the common carrier has suspended delivery service of the type or class customarily used by the issuer or other person making the solicitation; and
- the issuer or other person making a solicitation has made a good faith effort to furnish the Soliciting Materials to the security holder, as required by the rules applicable to the particular method of delivering Soliciting Materials to the security holder, or, in the case of Information Materials, the issuer has made a good faith effort to furnish the Information Materials to the security holder in accordance with the rules applicable to Information Materials.
The SEC also stated that it will continue to address other issuer-related COVID-19 issues on a case-by-case basis in light of their fact-specific nature.
On March 25, 2020, the SEC’s Division of Corporation Finance also issued Disclosure Guidance
1 The order specifically applies to any requirement to file or furnish materials with the SEC under Sections 13(a), 13(f), 13(g), 14(a), 14(c), 14(f), and 15(d) of the Exchange Act, Regulations 13A, 13D-G (except for those provisions mandating the filing of Schedule 13D or amendments to Schedule 13D), 14A, 14C and 15D, and Rules 13f-1 and 14f-1 under the Exchange Act, as applicable.