The U.S. Securities and Exchange Commission (SEC) initially announced on March 4 that it is providing conditional regulatory and time-limited relief from certain filing and periodic reporting obligations under the Securities Exchange Act of 1934, as amended (Exchange Act), to companies affected by the coronavirus disease 2019 (COVID-19). The conditional relief was announced in SEC Release No. 34-88318. On March 25, the SEC extended the relief to apply to all SEC filings due on or before July 1, 2020.
The filings and periodic reporting obligations for which relief is available include Forms 10-Q and 10-K. It is important to note that the relief is only available to a company that cannot timely meet a filing obligation because of circumstances related to COVID-19. Examples of potential qualifying circumstances may include the inability of issuer staff or outside auditors to function normally because of illness or quarantines. The available relief is a 45-day extension of the due date of the filing, with a longer extension possibly available upon application to the SEC. As updated, the relief is available for filings due on or before July 1, 2020, although the SEC noted it may extend the duration of this filing relief as deemed appropriate.
The SEC issued a press release on March 4 and another on March 25 in conjunction with the updated order. In the press releases, the SEC indicated that all companies should consider their disclosure obligations with respect to COVID-19. Quoting from the SEC’s latest press release:
Disclosure Considerations for All Companies
The Commission encourages all companies and other related persons to consider their activities in light of their disclosure obligations under the federal securities laws. For example, where a company has become 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 and discourage directors and officers (and other corporate insiders who are aware of these matters) from initiating such transactions until investors have been appropriately informed about the risk. To the extent the registrant or insiders are engaged in transactions, or circumstances otherwise warrant it, the registrant should consider what disclosures are required in order to inform the public of its financial condition.
When companies do disclose material information related to the impacts of the coronavirus, they are reminded to take the necessary steps to avoid selective disclosures and to disseminate such information broadly. Depending on a company’s particular circumstances, it should consider whether it may need to revisit, refresh, or update previous disclosure to the extent that the information becomes materially inaccurate.
Companies providing forward-looking information in an effort to keep investors informed about material developments, including known trends or uncertainties regarding the coronavirus, can take steps to avail themselves of the safe harbor in Section 21E of the Exchange Act for this information.
All companies subject to Exchange Act filing requirements should consider whether they should be making COVID-19 specific disclosures. As a general practice, we believe that specific disclosure is most helpful when addressing potential material developments, as opposed to generic risk statements, such as “our business and operations may be adversely affected by COVID-19.” As noted by the SEC, properly drafted disclosure should be within the safe harbor for forward-looking information.
In the March 4 press release, SEC Chairman Jay Clayton said, “I urge companies to work with their audit committees and auditors to ensure that their financial reporting, auditing and review processes are as robust as practicable in light of the circumstances in meeting the applicable requirements.” We believe that the relief provided in the order may be of particular importance with respect to the preparation of financial statements to be included in Exchange Act filings.
As updated, the order1 provides two types of relief, as summarized below: (1) for periodic reporting and (2) for delivery of soliciting materials to security holders.
1. 45-day extension for periodic reporting when relief is required.
The order’s relief applies to a registrant’s periodic reporting requirements (including Forms 10-Q and 10-K) under Exchange Act Sections 13(a), 13(f), 13(g), 14(a), 14(c), 14(f) and 15(d); 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, as applicable.2
Disruptions to transportation and limited access to facilities, support staff and professional advisers could make it more difficult for companies to timely meet filing obligations, particularly U.S. companies with significant operations in areas affected by the disease or companies located in those regions. A company unable to make timely filing due to circumstances related to COVID-19 may seek relief by furnishing to the SEC a Form 8-K (or Form 6-K, as applicable) by the later of March 16 or the original filing deadline of the report, stating:
- that the company is relying on the order
- a brief description of the reasons why it could not file the report, schedule or form on a timely basis
- the estimated date by which the report, schedule or form is expected to be filed
- if appropriate, a risk factor explaining, if material, the impact of COVID-19 on its business
- 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.
After submitting the initial Form 8-K discussed above, the registrant must complete the filing no later than 45 days after the original due date.3 The filing must disclose the reliance on the order and state why the registrant could not timely file the report by the original due date. This 45-day extended deadline may assuage concerns regarding disruptions to audit timelines.4
A company that received a 45-day extension under the order for an annual report on Form 10-K or quarterly report on Form 10-Q will be permitted to rely on Rule 12b-25 if it is unable to file the required reports on or before the extended due date.
A company relying on the order will retain eligibility to use Form S-3 (including well-known seasoned issuer status) and Form S-8 under the Securities Act of 1933, as amended, if it was current and timely as of March 1, 2020 and it files any report due during the relief period within 45 days of the filing deadline for the report.5
2. Requirement for good faith effort to furnish soliciting materials.
The order also grants limited relief to the proxy delivery requirements of Exchange Act Sections 14(a) and (c), Regulations 14A and 14C, and Exchange Act Rule 14f-1 thereunder. An issuer may not be able to furnish proxy statements, annual reports and other soliciting materials, as applicable, to security holders due to disruptions in mail delivery caused by COVID-19, even though it has made good faith efforts to deliver the materials. The order does not grant relief from filing proxy materials as a condition to soliciting proxies or from attempting to deliver proxy materials; it provides relief from the inability to deliver them to the intended recipient.
Endnotes
1 The March 25, 2020 order supersedes the March 4, 2020 order. As a result, references to the order mean the March 25 order, which encompasses and extends the relief granted by the March 4 order.
2 Section 16 reporting is not covered by the relief, and directors, officers and 10 percent or more beneficial owners must timely file Forms 3s, 4s and 5s, as applicable.
3 Many companies take advantage of the existing ability to incorporate into Part III of their annual report on Form 10-K (executive compensation, management ownership, related party transactions and certain other matters, which we refer to as "Part III Information") through the later filing of their proxy statements, up to 120 days after the end of their fiscal year. We have received advice from SEC Staff that, for Part III Information, the 45-day extension granted by the orders is also available with respect to this 120-day period. Accordingly, by filing a Form 8‑K as provided in the orders, calendar-year companies that timely file their Form 10-K will be permitted to incorporate by reference Part III Information into their Form 10-K from a proxy statement filed as late as June 13, 2020.
4 Amanda Iacone, Auditors Prepare for Virus Travel, Reporting Disruptions, Bloomberg Law (Mar. 4, 2020).
5 While not stated in the order, we assume that an issuer will also get the benefit of any additional extension permitted by Rule 12b-25.
