On March 4, 2020, the U.S. Securities and Exchange Commission issued an order (the “Order”) that, subject to certain conditions, provides companies impacted by Coronavirus Disease 2019 (COVID-19) with an additional 45 days to file certain disclosure reports and schedules that would otherwise have been due between March 1 and April 30, 2020. Among other conditions, companies must file a Form 8-K or Form 6-K summarizing why the relief is needed in their particular circumstances.
Highlights of COVID-19 Exemptions
The Order provides that a registrant or other person that is subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, is exempt from the requirement to file or furnish certain materials with the SEC that are otherwise due between March 1 and April 30, 2020 as long as certain conditions are satisfied and the filing is made no later than 45 days after the original due date.
Exchange Act reports covered by the Order that may become due during the period include annual and quarterly reports, definitive proxy statements and current reports. The Order also applies to any Schedule 13G (or amendment) due during the period, but excludes any Schedule 13D (or amendment) and does not apply to beneficial ownership reports required under Section 16 of the Exchange Act.
Additionally, the Order provides relief from furnishing proxy and information statements under Exchange Act Sections 14(a) and (c) and Regulations 14A and 14C to a security holder where the security holder has a mailing address located in an area where the common carrier has suspended the delivery service customarily used, as a result of COVID-19, and the registrant or other person has made a good faith effort to furnish the soliciting materials to the security holder as otherwise required by the applicable rules.
Conditions to Exemptions
In order to utilize the exemption the registrant or person required to make the filing must:
- Be unable to meet a filing deadline due to circumstances related to COVID-19;
- File a Form 8-K or, if eligible, Form 6-K by the later of March 16 or original filling deadline stating:
- that it is relying on the Order;
- a brief description of the reasons why it could not file such 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; and
- if the reason the applicable 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 attach 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.
- File the applicable report, schedule or form no later than 45 days after the original due date; and
- Disclose in the applicable report, schedule or form that it is relying on the Order and state the reasons why it could not file such report, schedule or form on a timely basis.
In the SEC's press release announcing the Order, SEC Chairman Jay Clayton reminded companies to "provide investors with insight regarding their assessment of, and plans for addressing, material risks to their business and operations resulting from the coronavirus to the fullest extent practicable to keep investors and markets informed of material developments." In addition, the SEC encouraged affected companies or persons that require additional or different assistance in their securities laws compliance efforts to contact the SEC staff to address any issues on a case-by-case basis.
The SEC and other self-regulatory agencies, such as the Nasdaq Stock Market and New York Stock Exchange will continue to closely track developments and consider additional regulatory relief.
ABOUT BAKER BOTTS L.L.P.
Baker Botts is an international law firm of approximately 725 lawyers practicing throughout a network of 13 offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy and technology sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit bakerbotts.com.