SEC Provides Guidance on COVID-19 Reporting Relief

May 11, 2020

Last week, the Securities and Exchange Commission (SEC) published guidance to the COVID-19 Order (Order) it issued in March in which it granted relief to certain filing deadlines for companies that were affected by COVID-19 (link to the Order here) and as a result were unable to make timely filings of their periodic reports, schedules or forms. The new guidance also addresses the effects on extended filing deadlines on the use of Form S-3 for the offer and sale of securities.

In order to use the extended filing requirements under the Order, a company must state and disclose on Form 8-K (or Form 6-K if applicable):

• that it is relying on the Order;

• a brief description of the reasons for being unable to file the report on a timely basis;

• the estimated date by which the company estimates that it will be able to file the report; and

• a “company-specific risk factor” or factors explaining the impact, if material, of COVID-19 on the registrant’s business.

If the reason that the report, schedule or form cannot be filed timely relates to the inability of any person, other than the registrant, to furnish any required opinion, report or certification, the registrant must also attach, as an exhibit to the Form 8-K or 6-K, a statement signed by such person stating the specific reasons why such person is unable to furnish the required opinion, report or schedule on or before the original due date of the report that is not being timely filed.

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