On March 25, 2020, the SEC issued an order (superseding its earlier order from March 4, 2020) providing companies with additional time to make regulatory filings otherwise due between March 1 and July 1, 2020, (an extension from the April 30, 2020, deadline initially set forth in the March 4, 2020, order). This extension is subject to certain conditions, including filing a current report on Form 8-K (or Form 6-K for foreign private issuers (FPIs)) by the report's original filing deadline with a statement as to why the delayed report could not be timely filed, an estimated filing date and any company specific risk factors explaining the impact, if material, of COVID-19 on the company's business. A separate Form 8-K (or Form 6-K) must be furnished for each delayed filing. This is an evolving process, and the SEC has indicated that further extensions may be necessary.
However, the SEC confirmed that relief under the order will not apply to filing of a Schedule 13D or related amendments. The SEC also confirmed that companies relying on well-known seasoned issuer (WKSI) status exemptions will remain eligible and preserve their WKSI status if timely filings have been made as of the first day of the relief period and the subsequent report due is filed within 45 days of the filing deadline.
The SEC's order further exempts, as did its earlier order, companies from requirements under the U.S. Securities Exchange Act of 1934, as amended (Exchange Act), to furnish proxy materials, annual reports and other soliciting materials by mail where delivery is not possible as a result of COVID-19. Specifically, a company is exempt from the requirements with respect to a shareholder that has a mailing address in an area where, as a result of COVID-19, a common carrier has suspended delivery service of the type or class that the company customarily uses to make the solicitation and the company has made a good faith effort to furnish the soliciting materials to the shareholder as required by the rules.
If you wish you receive further information on the SEC's order of March 25, 2020, you may wish to refer to our prior publication on the subject, available here.
On March 31, 2020, and April 6, 2020, the SEC released guidance clarifying certain logistical aspects following from the above order, particularly with respect to how the order interfaces with the standard Form 12b-25 notice for late filings and the provision of Part III information. If you have questions on timing applicable to your specific reporting obligations in light of the foregoing or otherwise, your contacts at Shearman or the Shearman COVID-19 task force are happy to assist.
Originally published 13 May, 2020
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