Attached to this Client Alert is a sample list of questions that underwriters can use as a starting point to tailor due diligence questions for a particular issuer’s management. These questions should be narrowed or supplemented as appropriate to address the circumstances unique to the issuer and the industry in which the issuer operates.

These sample questions are derived in part from guidance issued by the SEC’s Division of Corporation Finance on March 25, 2020, which includes a non-exhaustive list of illustrative questions that an issuer should consider when preparing disclosure related to COVID-19 and its impact on the issuer’s business, financial condition and results of operations. In that guidance, the SEC states, “Assessing the evolving effects of COVID-19 and related risks will be a facts and circumstances analysis. Disclosure about these risks and effects, including how the company and management are responding to them, should be specific to a company’s situation.” In particular, the guidance encourages disclosure “that is tailored and provides material information about the impact of COVID-19 to investors and market participants” and for companies to provide disclosures that “allow investors to evaluate the current and expected impact of COVID-19 through the eyes of management.”

The disclosure obligations faced by issuers are described in more detail in our March 24, 2020 Client Alert, “COVID-19: Q&A for Public Companies.”