U.S. Securities laws require U.S. publicly traded companies, including all companies listed on the Nasdaq Stock Market and the New York Stock Exchange, to file various reports with the U.S. Securities and Exchange Commission (the “SEC”). The SEC has recognized that the outbreak of Coronavirus Disease 2019 (COVID-19) has complicated the preparation and filing of these reports. In response, the SEC issued an order (the “Order”)1
on March 4, 2020 providing conditional regulatory relief for certain publicly traded companies with respect to their obligations to file these reports. This memorandum discusses the Order and additional information released by the SEC.
I. Relief Provided by the Order
Pursuant to the Order, publicly traded companies may have an additional 45 days to file certain disclosure reports that would otherwise have been due between March 1 and April 30, 2020 (which time period the SEC may extend at its discretion). For example, a domestic filer with a December 31 fiscal year end could seek to extend its filing date for its annual report on Form 10-K to May 15, 2020 (as opposed to the un-extended filing deadline of March 31, 2020). Similarly, a foreign private issuer with a December 31 fiscal year end could seek to extend its filing date for its annual report on Form 20-F to June 14, 2020 (as opposed to the un-extended filing deadline of April 30, 2020).
Conditions to the Grant of Relief
The SEC will grant the 45-day extension if the conditions below are satisfied:
- (a) The company is unable to meet a filing deadline due to circumstances related to COVID-19;
- (b) Any company relying on the Order furnishes a short report to the SEC (on Form 8-K or Form 6-K),
by the later of March 16 or the original filing deadline of the report stating:
任何依赖本救济指令的公司在3 月16 日或原提交截止日期之间较晚一日之前向SEC 提交
一份8-K 或6-K 表格，说明:
- (1) that it is relying on the Order;
- (2) a brief description of the reasons that it could not file such report on a timely basis;
- (3) the estimated date by which the report is expected to be filed;
- (4) a risk factor explaining the impact of COVID-19 on its business; and
- (5) if the reason the subject report cannot be filed timely relates to the inability of any person, other than the company, to furnish any required opinion, report or certification, the Form 8-K or Form 6-K contains 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.
- (c) The delayed report is filed no later than 45 days after the original due date (unless otherwise extended
as discussed herein); and
延期的报告必须在原到期日后的45 天之内向SEC 提交(除非有格外的延期时间);以及
- (d) In the delayed report, the company discloses that relied on the extension granted by the Order and
states the reasons why it could not file such report on a timely basis.
Furnishing of Proxy and Information Statements
A company or any other person is temporarily exempt from the requirements of the Exchange Act of 1934, as amended (the “Exchange Act”), and the rules thereunder to furnish proxy statements, including any annual reports and other soliciting materials (the “Soliciting Materials”), and the requirements of the Exchange Act and the rules thereunder to furnish information statements, including any annual reports (the “Information Materials”), where the conditions below are satisfied.
公司或其他任何人在以下条件下可暂时免除《1934 证券交易法》规定的股东投票代理委托书、年 度报告和其他投票材料（如适用）（“投票材料”）以及《交易法》规定的信息告知和年度报告（“信息材料”）的提交要求。
- (a) The company’s security holder has a mailing address located in an area where, as a result of COVID-19, the common carrier has suspended delivery service of the type or class customarily used by the company or other person making the solicitation; and
- (b) The company or other person making a solicitation has made a good faith effort to furnish the Soliciting Materials to the security holder, as required by the rules applicable to the particular method of delivering Soliciting Materials to the security holder, or, in the case of Information Materials, the company has made a good faith effort to furnish the Information Materials to the security holder in accordance with the rules applicable to Information Materials.
II. Additional Information
SEC will take the following positions with respect to certain obligations under the Securities Act and the Exchange Act:
- Eligibility to use Form S-3 and Form F-3: To be eligible to use Form S-3 or Form F-3, a company must betimely in its reporting obligations. Any report that is filed on a delayed basis in compliance with the Order, will be considered timely filed for purposes of Form S-3 and Form F-3.
使用S-3 和F-3 表格的资格：如果公司已经按时提交了合规报告，则可以使用表格S-3 和表 格F-3。所有按照救济指令提交的报告会被视为满足表格S-3 和表格F-3 对按时合规申报的 要求。
- Form S-8 eligibility requirements and current public information eligibility requirements of Rule 144(c): To be eligible to use Form S-8 or to rely on Rule 144, a company must be timely in its reporting obligations. Any report that is filed on a delayed basis in compliance with the Order, will be considered timely filed for purposes of Form S-8 and Rule 144.
使用表格S-8 的资格和144 （c）规则中对当前公共信息的要求:如果公司已经按时提交了 合规报告，则可以使用表格S-8 和144（c）规则。所有按照救济指令提交的报告会被视为 满足表格S-8 和144（c）规则对按时合规申报的要求。
- Form 10-K, Form 20-F and 10-Q: Companies that file annual reports or quarterly reports pursuant to the Order will be considered to have a due date 45 days after the filing deadline for the report. As such, those companies will be permitted to rely on the additional extension provided by Rule 12b-25 if they are unable to file the required reports on or before the due date as extended by the Order.
年报10-K和季报10-Q：需要提交年报和季报的公司，截止日期在原本的到期日的基础上延 长45 天。如果这些公司无法在延长后的到期日或之前提交报告，可适用12b-25 延期。
The SEC understands that some companies may require additional or different assistance in their efforts to comply with the requirements of the U.S. federal securities laws. The SEC will address these and any issues on a case-by-case basis in light of their fact-specific nature. Any such request of additional relief from the SEC
should be done hand-in-hand with the company’s U.S. securities counsel.
SEC 理解一些公司为遵守美国联邦证券法的要求可能需要其他或不同的协助。 SEC 将根据其特定 事实的性质，逐案解决这些问题。公司如需寻求SEC 的救济指令，应与公司的美国证券律师携手 处理。
III. Authors’ Final Thought
Through the Order, the SEC attempts to provide relief for certain filing obligations under U.S. federal securities laws to companies located in areas affected by COVID-19 or companies with operations in those areas. Companies are reminded that they shall keep investors informed of insight regarding their assessment, plans and material risks to their business and operations resulting from the COVID-19. As this memorandum is a summary of the Order issued on March 4, 2020 and the SEC’s interpretation of it is still evolving, you are encouraged seek further guidance with your legal advisor before relying upon the Order.
通过本救济指令，SEC 力图给一些受到新冠病毒影响的上市公司提供美国联邦证券法备案义务的 延期救济。公司应及时通知投资人关于新冠病毒对公司的业务和运营的影响的估计、计划和重大 风险。由于该备忘录是SEC 在2020 年3 月4 日发布的救济指令的摘要，而SEC 对它的解释仍在不 断变化，因此在依赖于该救济指令之前，我们鼓励您与法律顾问寻求进一步的指导。
© Ortoli Rosenstadt LLP 2020
1 Release No. 34-88318 (https://www.sec.gov/rules/other/2020/34-88318.pdf)