SEC Order Extends Reporting and Delivery Exemptions for Certain Public Companies

COVID-19 Update

Date: March 26, 2020

Key Notes:

  • The SEC extended the deadline by 45 days for certain Exchange Act filings due through July 1, 2020, subject to certain conditions.
  • It also exempted registrants and certain persons from furnishing proxy statements, information statements, annual reports and other soliciting materials when mail delivery is not possible.

On March 25, 2020, the Securities and Exchange Commission (SEC) issued an order (Order) extending the filing periods for certain public reporting companies affected by COVID-19 and exempting certain registrants and persons from furnishing proxy statements, information statements, annual reports and other soliciting materials. The Order supersedes the SEC’s March 4, 2020 order that provided conditional reporting relief.

Extended Filing Deadlines

The Order provides registrants and related filers with a 45-day extension to make certain Exchange Act of 1934 (Exchange Act) filings,[1] such as quarterly and annual reports, beneficial ownership reports, proxy solicitations and information statements, that would otherwise have been due between March 1, 2020 and July 1, 2020, subject to the satisfaction of certain conditions.

A registrant, or the person required to make filings with respect to the registrant, who is relying on the Order must satisfy the following conditions:

  • Circumstances related to COVID-19 must be the reason the filer is unable to meet the filing deadline.
  • For each filing being delayed pursuant to the Order, the registrant must file a current report on Form 8-K, or 6-K if applicable, on or before the date the filing is due, providing the details more fully set forth below.
  • Following a delay in reliance on the Order, the filer must file the required form, report or schedule within 45 days of the date it was originally due and include in the filing a statement that it relied on the Order when filing late and the reasons it could not make the filing on time.
Current Report Requirements

For each current report filed pursuant to the second condition above, a registrant must include a brief description of the reasons it cannot make the filing on time and an estimate of when the filing will be made, along with a statement that it is filing the current report in reliance on the Order. The current report must also include one or more risk factors specifying COVID-19’s impact, if material, on the registrant’s business. If the filing delay is due to the inability of someone other than the registrant to provide a required opinion, report or certification, the current report must include a signed statement by that person explaining the basis of their delay.

If a registrant meets the foregoing conditions and has filed the current report, it does not need to file a Notification of Late Filing on Form 12b-25.

Proxy and Information Materials Exemptions

The Order exempts registrants and other persons from Exchange Act requirements to furnish proxy statements, information statements, annual reports and other soliciting materials (Proxy and Information Materials) when mail delivery is not possible. However, the exemption only applies if the registrant or person soliciting has made a good faith effort to furnish the Proxy and Information Materials to the security holder in accordance with the applicable rules and regulations and the common carrier customarily used by the registrant has suspended service to the security holder’s mailing address due to COVID-19.

FOR MORE INFORMATION

For more information, please contact:

Owen J. Pinkerton
202.263.4144
Owen.Pinkerton@Thompsonine.com

Rob D. Powell
614.469.3274
Rob.Powell@ThompsonHine.com

Additional Resources

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our COVID-19 Task Force page for additional information and resources.

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[1] Specifically, the Order provides that any “registrant … subject to Exchange Act Section 13(a) or 15(d), and any person required to file with respect to such registrant, is exempt from any requirement to file or furnish materials and any amendment thereto with the Commission under Exchange Sections 13(a), 13(f), 13(g), 14(a), 14(c), 14(f), 15(d) and 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.”