On March 25, the Securities and Exchange Commission issued an order extending conditional relief (the Modified Order) for reporting and proxy delivery requirements for public company registrants and other filers in the wake of the coronavirus disease 2019 (COVID-19). The Modified Order provides filers with an additional 45 days to make filings pursuant to Sections 13(a), 13(f), 13(g), 14(a), 14(c), 14(f), 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), 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 Exchange Act Rules 13f-1, and 14f-1, that would have been due during the period of March 1-July 1, 2020 (the Relief Period), subject to the conditions discussed below. This relief covers, among others, reports on Form 10-K, 20-F, 10-Q, 8-K and 6-K, as well as Schedules 13G and 13F but, as noted, expressly excludes Schedule 13D filings and also is not available for filings under Section 16 of the Exchange Act (i.e., Forms 3, 4 and 5).
The Modified Order supersedes the SEC’s March 4 order (the Original Order), which was discussed in Katten’s March 17 Securities Advisory, by extending the end of the Relief Period from April 1 to July 1. Consistent with the Original Order, it is a condition to a filer availing itself of the relief under the Modified Order that the filer 1) is unable to meet a filing deadline due to circumstances related to COVID-19; and 2) if the filer is a reporting company, issues a current report on Form 8-K or Form 6-K, as applicable, with (A) a statement that the filer is relying on the Modified Order; (B) a summary of why the relief is necessary in the particular circumstances; (C) the estimated date by which the company expects to make the filing; (D) one or more company-specific risk factors explaining the impact, if material, of COVID-19 on its business; and (E) if the reason the filing cannot be timely made relates to the inability of any person, other than the registrant, to furnish a required opinion, report or certification, the Form 8-K or Form 6-K, as applicable, shall include 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 deadline for such report to be filed.
Consistent with the Original Order, the Modified Order also conditionally exempts companies preparing for their upcoming annual meetings from the requirement to furnish proxy statements and other soliciting materials to securityholders where, as a result of COVID-19, common carrier services have been suspended in the area where the securityholder resides and the company has made a good faith effort to furnish the proxy materials to the securityholder.
In a press release announcing the Modified Order, SEC Chairman Jay Clayton said, “Health and safety continues to be our first priority,” and the Modified Order provides temporary, targeted relief to issuers affected by COVID-19 while still encouraging public companies to “provide current and forward-looking information to their investors.” The SEC also reiterated in the press release, as previously clarified in connection with the Original Order, that:
- For purposes of 1) eligibility to use Form S-3 or Form F-3, as applicable, including as it relates to well-known seasoned issuer status; 2) eligibility to use Form S-8; and 3) the current public information eligibility requirements of Rule 144(c) under the Securities Act of 1933, as amended, a company that relies upon the Modified Order will be considered current and, with respect to eligibility to use Form S-3 or F-3, timely in its filing requirements under the Exchange Act, if the company (A) was current and, as applicable, timely in its Exchange Act filing requirements as of the first day of the Relief Period; and (B) files any report due during the Relief Period within 45 days of the original filing deadline for such report.
- A company that receives an extension on filing an annual or a quarterly report pursuant to the Modified Order will be deemed to have a due date 45 days after the original filing deadline for the report, and, if it is unable to file the report on or before the extended due date, the company will be permitted to rely on Rule 12b-25.
Consistent with the SEC’s statements in connection with the Original Order, the press release reminds issuers to contact the SEC’s Division of Corporation Finance directly if they are in need of additional assistance relating to administrative difficulties or other challenges in their efforts to comply with the requirements under the federal securities laws.