On March 25, 2020, the U.S. Securities and Exchange Commission (the SEC or Commission) issued an order that updated its March 4 order to extend the conditional exemptions from reporting and proxy delivery requirements for public companies, funds and investment advisers affected by COVID-19. Subject to the conditions outlined below, public companies are provided with a 45-day extension beyond the original due date to file certain disclosure reports that would otherwise have been due between March 1 and July 1, 2020. The new order extended the applicable filing window beyond April 30, included amendment filings, clarified that disclosures regarding use of the exemption apply to each late filing and made the disclosure regarding COVID-19 risks mandatory.
The relief is available to registrants subject to the reporting requirements of Exchange Act Section 13(a) or 15(d), and to any person required to make any filings with respect to such a registrant, and applies to the requirement to file or furnish materials and any amendment thereto with the Commission 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. For most filers, this would include Form 10-K, Form 10-Q, Form 8-K and proxy filings.
The extended deadline is available if the filer is unable to meet a filing deadline due to circumstances related to COVID-19 and furnishes to the Commission by the later of March 16 or the original filing deadline of the report a Form 8-K or, if applicable, a Form 6-K that includes:
- A statement that it is relying on the order.
- A brief description of the reasons why it could not file a report, schedule or form in a timely manner.
- The estimated date by which the report, schedule or form is expected to be filed.
- Company-specific risk factor(s) explaining the impact, if material, of COVID-19 on its business.
If the reason the report cannot be timely filed due to the inability of any person, other than the registrant, to provide any required opinion, report or certification, the Form 8-K or Form 6-K must have attached an exhibit containing a statement signed by such person stating the reasons why such person is unable to provide the required opinion, report or certification before it is due for filing.
In addition, the order exempts registrants from the requirements to furnish proxy statements, annual reports and other soliciting materials, as applicable (the Soliciting Materials) as well as the requirements to furnish information statements and annual reports, as applicable (the Information Materials), when the following conditions are met:
- The security holder has a mailing address located in an area where, as a result of COVID-19, the common carrier has suspended delivery service.
- The registrant made a good faith effort to furnish the Soliciting Materials or Information Materials to the security holder in accordance with the applicable rules for each.
The SEC will continue to monitor the situation and extend relief as necessary.