Introduction

The Securities and Exchange Commission announced on March 4, 2020 that it is providing conditional regulatory relief for certain publicly traded company filing obligations under the federal securities laws in light of the effects of the Coronavirus, also known as COVID-19. The Commission issued an order that, subject to specified conditions, provides publicly traded companies with an additional 45 days to file disclosure reports that are otherwise due between March 1, 2020 and April 30, 2020. Among other conditions, companies or individuals utilizing the extension must convey through a current report (Form 8-K for domestic issuers and Form 6-K for foreign private issuers) a summary of why the relief is needed in their particular circumstances. A copy of the Commission’s Coronavirus Order is available here and the press release announcing the issuance of the Coronavirus Order is available here.

Relief and Conditions of the Order

I. Exchange Act Filing Relief

Deadlines for most filings applicable to public companies and persons required to make filings with respect to public companies may be extended if the conditions below are met. The provisions mandating the filing of Schedule 13D or amendments to 13D and ownership reports required to be filed under Section 16 of the Exchange Act are not affected by the relief given in the Coronavirus Order.

II. Exchange Act Filing Relief Conditions

The SEC’s Coronavirus Order contains four conditions that registrants or persons required to make filings on behalf of registrants must meet in order to qualify for the relief:

Condition 1 - COVID-19 - The registrant or any person required to make any filings with respect to such a registrant is unable to meet a filing deadline due to circumstances related to COVID-19;

Condition 2 - Notice Requirement - Any registrant that is relying on the Coronavirus Order furnishes to the Commission a Form 8-K or, if eligible, a Form 6-K by the later of March 16 or the original filing deadline of the report stating:

1. that it is relying on the Coronavirus Order;
2. a brief description of the reasons why it could not file such report, schedule or form on a timely basis;
3. the estimated date by which the report, schedule, or form is expected to be filed;
4. if appropriate, a risk factor explaining, if material, the impact of COVID-19 on its business; and
5. if the reason the subject report cannot be filed timely relates to the inability of any person, other than the registrant, 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.

Condition 3 - New Filing Deadline - The registrant or any person required to make any filings with respect to such a registrant files with the Commission any report, schedule, or form required to be filed no later than 45 days after the original due date; and 

Condition 4 - Disclosure - In any report, schedule or form filed by the applicable deadline pursuant to Condition (3), the registrant or any person required to make any filings with respect to such a registrant must disclose that it is relying on the Coronavirus Order and state the reasons why it could not file such report, schedule or form on a timely basis. 

III. Related Relief for Filings under the Securities Act of 1933, as amended

The Commission has indicated that it will take the following positions with respect to Exchange Act filings related to certain Securities Act filings:

(1) Current Status - For purposes of eligibility to use Form S-3 (and for well-known seasoned issuer status, which is based in part on Form S-3 eligibility), a registrant relying on the Coronavirus Order will be considered current and timely in its Exchange Act filing requirements if it was current and timely as of the first day of the relief period and it files any report due during the relief period within 45 days of the filing deadline for the report.

(2) Form S-8 - For purposes of the Form S-8 eligibility requirements and the current public information eligibility requirements of Rule 144(c), a registrant relying on the Coronavirus Order will be considered current in its Exchange Act filing requirements if it was current as of the first day of the relief period and it files any report due during the relief period within 45 days of the filing deadline for the report.

(3) Extended Due Date - Registrants that receive an extension on filing Exchange Act annual reports or quarterly reports pursuant to the Coronavirus Order will be considered to have a due date 45 days after the filing deadline for the report.  As such, those registrants will be permitted to rely on Rule 12b-25 if they are unable to file the required reports on or before the extended due date.

IV. Proxy and Information Statement Relief

The Commission also provided relief from certain mailing and delivery requirements in circumstances where mail delivery and other means of delivering proxy materials might be suspended.

V. In-Person Voting Relief from the Division of Investment Management

In addition, the SEC’s Division of Investment Management separately issued a statement on March 4, 2020, extending relief where fund boards do not adhere to select in-person voting requirements in the event of unforeseen or emergency circumstances affecting some or all of the directors between the dates of March 4, 2020 and June 15, 2020. The statement by the Division of Investment Management relating to the Coronavirus’ impact on in-person voting requirements for investment advisers and funds is available here.

Concluding Thoughts

In its press release announcing the Coronavirus Order, the Commission emphasized its prior guidance on the importance of thoughtful disclosure concerning risks posed to an registrant by the Coronavirus. SEC Chairman Jay Clayton noted that all companies should provide investors with insight regarding their own assessment of, and plans for addressing, material risks to their business and operations resulting from the Coronavirus to the fullest extent practicable. The Commission noted that when a registrant is aware of a risk related to the Coronavirus that would be material to its investors, it should refrain from engaging in securities transactions with the public until investors have been appropriately informed about the risk, and take steps to prevent directors, officers and other insiders from initiating such transactions. As the Commission also observed, since the manner in which registrants plan and respond to Coronavirus-related events can be material to an investment decision, registrants should ensure that their financial reporting, auditing and review processes are as robust as practicable in light of the circumstances.

The Commission also noted that it is monitoring the Coronavirus situation and may extend the duration of the relief period, modify the conditions required for such relief or change the nature of the relief, as the Commission deems appropriate.