On March 4th, 2020, the SEC announced conditional regulatory relief and assistance for public companies affected by the Coronavirus Disease 2019 (COVID-19). What does conditional relief mean and how do public companies seek needed relief from filing obligations?
Toppan Merrill created the following Q&A to assist public company filers understand the steps that must be taken to request conditional regulatory relief.
Why has the SEC announced conditional regulatory relief for Coronavirus Disease 2019 (COVID-19)?
The coronavirus disease 2019 (COVID-19) may present challenges to meet certain timely obligations, particularly current and annual reports, under the federal securities law. The SEC has issued the order to assist affected filers with meeting their filing obligations for ‘34 Act reports.
When is conditional regulatory relief for Coronavirus Disease 2019 (COVID-19) effective?
- March 1, 2020 to April 30, 2020
- Note - The SEC intends to monitor the current situation and may, if necessary, extend the time period during which this relief applies, with any additional conditions the SEC deems appropriate and/or issue other relief.
Who is eligible for the relief?
Filers eligible for relief include all US and FPI companies with significant operations where COVID-19 has affected the area, as well as companies located in those regions:
- A registrant (as defined in Exchange Act Rule 12b-2) subject to the reporting requirements of Exchange Act Section 13(a) or 15(d), and
- any person required to make any filings with respect to such a registrant.
Who is not eligible for the relief?
Form types NOT eligible for relief, include, but are not limited to:
- Schedules 13D/G,
- Tender offers, and
- Section 16 (Forms 3, 4 and 5)
What are the conditions that must be met to qualify for relief by the SEC?
- The registrant or any person required to make any filings with respect to such a registrant is unable to meet a filing deadline due to circumstances related to COVID-19;
- Any registrant relying on this Order furnishes to the Commission a Form 8-K or, if eligible, a Form 6-K by the later of March 16 or original filing deadline of the report1 stating:
- that it is relying on this 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 subject 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 shall have attached 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.
- The registrant or any person required to make any filings with respect to such a registrant files with the Commission any report, schedule, or form required to be filed no later than 45 days after the original due date; and
- In any report, schedule or form filed by the applicable deadline pursuant to paragraph (c) above, the registrant or any person required to make any filings with respect to such a registrant must disclose that it is relying on this Order and state the reasons why it could not file such report, schedule or form on a timely basis.
Will the SEC provide any relief for Proxy and Information Statements?
Additional relief is provided, when mail delivery is not possible, as a result of COVID-19, to furnish materials to security holders (Section 14(a) and (c) requirements).
See the Order for Conditions and additional details.
Who should companies contact for additional assistance?
The SEC recommends that any registrant, or other person, in need of additional assistance related to deadlines, delivery obligations or their public filings, should contact the
- Division of Corporation Finance at (202) 551-3500 or at https://sec.gov/cgi-bin/corp_fin_interpretive;
- Investment Management at (202) 551-6825 or email at firstname.lastname@example.org
Additional Information and Resources
- The Division of Investment Management has issued a staff statement regarding certain in-person board voting requirements under the Investment Company Act of 1940, available here.
- For more information on S-3 and S-8 eligibility see the SEC’s press release.
- Disclosure Considerations – The SEC discusses how companies should be aware of risks related to Coronavirus that would be material to its investors. See the SEC’s press release for more information.
*This information is intended as a service to our clients and is not intended to provide legal guidance. The content is based on the SEC order and verbal guidance from the Division of Corporate Finance. Companies should check with their legal counsel to determine their reporting obligations.
 Any registrant relying on this Order would not need file a Form 12b-25 so long as the report, schedule, or form is filed within the time period prescribed by this Order.
 The Commission believes such statements, as furnished, to the extent they contain “forward-looking statements,” would be subject to the safe harbor under Exchange Act, Section 21E. See the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 77z-1 (1998).