SEC Extends Filing Relief for Companies Affected by COVID-19

The Securities and Exchange Commission (SEC) has extended the filing relief period for issuers affected by COVID-19.

Under the SEC’s initial March 4 order, companies that were required to file reports with the SEC under the Securities Exchange Act of 1934 (Exchange Act) between March 1 to April 30, 2020 (Covered Filing Period) that were unable to meet the filing deadline due to circumstances related to COVID-19, were provided an extra 45 days from the original filing date to make the filing if they satisfy certain conditions. Our analysis of the relief provided by the SEC’s initial order and its requirements are here.

Under the SEC’s new order issued March 25, 2020, the Covered Filing Period now extends from March 1 to July 1, 2020. As a result, if a company is unable to meet a filing deadline during the new extended period from March 1 to July 1, 2020 due to circumstances related to COVID-19, the company will have an extra 45 days from its original filing deadline if it satisfies the following conditions:

• It is unable to meet a filing deadline due to circumstances related to COVID-19.
• It furnishes a Form 8-K (or a Form 6-K, if eligible) to the SEC by the later of (a) March 16, 2020 or (b) the original filing deadline of the applicable report stating:
  • That the registrant is relying on the order.
  • The reasons why the registrant could not make the filing on a timely basis.
  • The estimated date by which the filing is expected to be made.
  • A risk factor explaining the impact of COVID-19 on the registrant’s business (if the impact is material).
  • If the reason the filing cannot be timely made is because of the inability of any person to furnish a required opinion, report, or certification, the Form 8-K or Form 6-K must attach as an exhibit a statement signed by such person stating the specific reasons why such person is unable to furnish the required information on or before the original due date.
• It files the applicable filing with the SEC required to be filed no later than forty-five (45) days after the original due date and discloses in said filing that it is relying on the SEC order and the reasons why it could not file it by the original due date.

A company meeting these conditions will not need to file a Form 12b-25. If a company meeting all of the other conditions is unable make the filing within the extended 45 day period, it will be able to rely on Rule 12b-25.

A person required to make a filing under the Exchange Act with respect to a registrant during the period from March 1 through July 1, 2020 affected by COVID-19 may also get a 45 day extension to make a filing (other than a Schedule 13D or an amendment to Schedule 13D), if it satisfies the following conditions:

• It is unable to meet a filing deadline due to circumstances related to COVID-19.
• It files the required filing no later than 45 days after the original due date and discloses in said filing that it is relying on the SEC order and the reasons why it could not file it by the original due date.

The SEC’s order also provided limited relief from the obligation to furnish proxy statements, annual reports and other soliciting materials to a security holder under Exchange Act Sections 14(a) and (c) and Regulations 14A and 14C and Exchange Act Rule 14-f-1 if the conditions below are satisfied:

• The security holder has a mailing address in an area where, as a result of COVID-19, the common carrier has suspended delivery services of the type or class customarily used by the registrant or other person making solicitation.
• The registrant makes a good faith effort to furnish the soliciting materials and/or the information materials to the security holder, as required by the rules.