Private Business Counsel

On March 4, 2020, the Securities and Exchange Commission (SEC) issued an Order providing some regulatory relief to publicly traded companies with operations in areas affected by the Coronavirus Disease 2019 (COVID-19). To the extent such companies have certain disclosure filings due between March 1 and April 30, 2020, the SEC has granted a 45-calendar day extension.

Specifically, a registrant (as defined in Exchange Act Rule 12b-2) subject to the reporting requirements of Exchange Act Section 13(a) or 15(d), and any person required to make any filings with respect to such registrant, is exempt from requirements to file or furnish materials with the SEC under the following rules and regulations (as applicable, where the conditions listed later in this blog post are satisfied):

• Exchange Act Sections 13(a), 13(f), 13(g), 14(a), 14(c), 14(f), and 15(d);
• Regulations 13A, Regulation 13D-G (except those provisions mandating the filing of Schedule 13D or amendments to Schedule 13D), 14A, 14C, and 15D; and
• Exchange Act Rules 13f-1 and 14f-1

In order to rely on the extension, companies must file a current report, on Form 8-K or Form 6-K, as applicable, by the later of March 16, 2020 or the original filing deadline, stating:

1. that the registrant is relying on the Order;
2. a brief description of the reasons why it could not file on a timely basis;
3. the estimated date of the filing;
4. if appropriate, a risk factor explaining the material impacts of COVID-19 on its business; and
5. if the reason the filing cannot be made timely is the result of the acts or failure to act of any person other than the registrant (such as the inability to furnish any required opinion, report, or certification), the Form 8-K or Form 6-K, as applicable, must include as an exhibit a signed statement by such person stating the reasons why it is unable to timely furnish its opinion, certification, or report.

Notably, the SEC has not provided guidance as to the threshold at which it will consider a registrant to have been “unable” to meet a deadline due to circumstances related to COVID-19. Accordingly, those relying on the Order should be prepared to provide compelling evidence that it could not meet its deadline in a timely manner, as opposed to merely relying upon the circumstances caused generally by COVID-19 simply making it more difficult for the registrant to meet its deadline.

In addition to the foregoing, the Order also exempts registrants from the requirements of the Exchange Act and the rules thereunder to furnish investors with information statements, proxy statements, annual reports, and other soliciting materials, as applicable, where (i) the registrant’s security holder has a mailing address located in an area where the common carrier has suspended delivery service of the type or class customarily used by the registrant or other person making the solicitation, as a result of COVID-19 and (ii) the company has made a good faith effort to furnish the information materials or soliciting materials to the security holder in accordance with applicable rules.

Finally, the Order states that the “Commission intends to monitor the current situation and may, if necessary, extend the time period during which this relief applies, with any additional conditions the Commission deems appropriate and/or issue other relief.”