The SEC has now provided relief for companies and persons directly or indirectly affected by Hurricane Florence and its aftermath.  Here is the Order and the related press release (as well as interim final temporary rules related to Reg Crowdfunding and Reg A).

Under the Order, among other things, the SEC provides relief with regard to the filing deadlines for periodic reports and specified other Exchange Act filings due for the period from and including September 14, 2018 to October 26, 2018 (provided the filings are made by October 29, disclose reliance on the relief and explain why, in good faith, they could not be filed on a timely basis); furnishing of proxy statements, annual reports and other solicitation materials to shareholders with addresses in zip codes where mail delivery has been interrupted; and certain transfer agent obligations.  Relief is also provided from the auditor independence requirements where auditor assistance is necessary to help audit clients reconstruct lost or destroyed accounting records. With regard to relief from Exchange Act filing obligations, which the SEC believes to be appropriate, the Order reminds public companies and others “to continue to evaluate their obligations to make materially accurate and complete disclosures in accordance with the anti-fraud provisions of the federal securities laws.”

In addition, the press release indicates that, in connection with the Order, for those affected, the staff will take no-action positions with respect to, among other things, S-3 and S-8 eligibility (the current and timely filing requirements), the Form 144(c) current information requirement and permitted use of Rule 12b-25 by companies unable to file required reports on or before the extended filing due date of October 29. Companies or persons requiring additional relief are encouraged to contact the staff.  (Of course, that would all be just staff guidance, which, as the Chair has recently reminded us, is nonbinding and not enforceable. See this PubCo post.)

Posted by Cydney Posner