On September 28, the Securities and Exchange Commission (SEC) announced its issuance of an order and its adoption of interim final temporary rules to provide regulatory relief to companies, including publicly traded companies, investment companies, accountants and transfer agents, affected by Hurricanes Harvey, Irma and Maria. The order and interim rules conditionally exempt affected persons from certain requirements of the federal securities laws for specified periods, and extend filing deadlines for specified reports and forms for issuers subject to reporting obligations under Regulation Crowdfunding and Regulation A.
With respect to registrants subject to the reporting requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (Exchange Act), and persons required to make filings with respect to such registrants, the SEC order provides an extension to such registrants and persons for filing deadlines of Exchange Act reports, schedules and forms (including periodic and current reports, proxy statements, Schedules 13D and 13G and Section 16 filings) when each of the following conditions is satisfied:
- The registrant or other person is not able to meet a filing deadline due to Hurricane Harvey, Hurricane Irma or Hurricane Maria and their respective aftermaths;
- The registrant or other person files any report, schedule or form required to be filed with the SEC during the applicable period of relief on or before the applicable deadline (set forth below); and
- In any such report, schedule or form filed pursuant to the order, the registrant or other person discloses that the registrant or person is relying on the SEC’s order and states the reasons why, in good faith, the registrant or person could not file on a timely basis.
When such conditions are met, affected registrants or other persons will be entitled to extended filing deadlines for reports, schedules or forms required to be filed within specified time periods as follows:
- Harvey: reports, schedules or forms due from and including August 25 to October 6 must be filed by October 10.
- Irma: reports, schedules or forms due from and including September 6 to October 18 must be filed by October 19.
- Maria: reports, schedules or forms due from and including September 20 to November 1 must be filed by November 2.
The order also provides an exemption from the requirements to furnish proxy and information statements, annual reports and other soliciting materials to security holders with mailing addresses in affected areas where the registrant’s common carrier has suspended delivery service of the type or class customarily used by the registrant, and subject to meeting other conditions.
The temporary rules provide similar (but even further extended) relief for issuers subject to reporting obligations pursuant to Regulation Crowdfunding and Regulation A.
The SEC’s press release provides additional guidance that clarifies the application of the regulatory relief provided by the order and the temporary rules. For example, a company relying on the order will be considered current and timely in its Exchange Act filings for purposes of Form S-3 eligibility, or current in its Exchange Act filings for purposes of Form S-8 eligibility and current public information eligibility requirements of Rule 144(c), during the applicable relief period, if the registrant was current (and timely, in the case of Form S-3 eligibility) in its Exchange Act filings as of the first day of the applicable relief period; and the registrant would continue to be considered current (and timely, in the case of Form S-3 eligibility) following the applicable relief period if it files any required Exchange Act report on or before October 10 (for those relying on the order due to Hurricane Harvey), October 19 (for those relying on the order due to Hurricane Irma), or November 2 (for those relying on the order due to Hurricane Maria), as applicable.