COVID-19 RELIEF FOR PUBLIC COMPANIES: Filing Deadline Extensions And Virtual Shareholder Meetings

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Public companies are navigating choppy waters as a result of COVID-19. In addition to dealing with market volatility, public companies are facing critical business decisions and being asked to manage risks and the interests of their various stakeholders, including shareholders and employees. Providing meaningful disclosure to shareholders in this landscape can be challenging and companies will need time necessary to process the implications that COVID-19 will have on their businesses. In an effort to support public companies during these challenging times while balancing the requirements for meaningful disclosure, securities regulators in Canada and the United States have provided extensions for various filing deadlines and are trying to support social distancing through virtual shareholder meetings. The filing deadline relief from the Canadian Securities Administrators (CSA) applies to financial statements, management discussion and analysis, annual information forms, technical reports and other filings. The following is a summary of the relief and guidance provided by the CSA, the Securities and Exchange Commission (SEC) and OTC Markets (OTC) regarding filing deadline extensions and relief:

Regulator Original Filing Deadline Extended Deadline Procedure
CSA On or before June 1, 2020 45-Days from original filing deadline No application needed to get relief.
No Management Cease Trade Order.
OTC Between March 1, 2020 and April 30, 2020 Later of 45-Days from original filing deadline and the extended deadline permitted by the company’s foreign primary regulator Submit a Notification of Late Filing through OTCIQ.com, including a summary of why the relief is needed.
Companies that meet the conditions for filing relief will not be downgraded or identified as delinquent in filings during the relief period
SEC Between March 1, 2020 and April 30, 2020 45-Days from original filing deadline File an 8-K or 6-K by the date the filing was originally due providing the following information:

  1. that it is relying on this Order;
  2. the reasons why it could not file the report on a timely basis;
  3. the estimated date by which the report is expected to be filed;
  4. if appropriate, a risk factor explaining, if material, the impact of COVID-19 on its business; and
  5. if the reason the report cannot be filed on time 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.

In addition to providing relief for filing deadlines, regulators have generally been supportive of companies choosing to hold virtual shareholder meetings instead of physical meetings in an effort to maintain social distancing and curb the spread of COVID-19. The CSA has said that it will issue formal guidance on virtual shareholder meetings as soon as possible, but that in the meantime issuers wishing to hold a virtual shareholder meeting should contact their principal regulator. In some instances, issuers may need to obtain court approval to hold a virtual shareholder meeting, including where their articles and by-laws don’t provide for meetings to be held by teleconference or other electronic means. Precedent from the courts is now available, as the British Columbia Supreme Court granted Telus Corporation an order on March 11, 2020 allowing them to hold their annual shareholders meeting virtually. The SEC has also provided a limited exemption from the requirement to furnish shareholders with proxy statements, annual reports and proxy solicitation material if certain conditions set out in the SEC press release linked below are followed.

To discuss the impact of COVID-19 on your public company, please contact any member of our Corporate Finance and Securities Group. For additional information regarding relief for filing deadlines and alternatives for shareholder meetings see the CSA’s press release dated March 18, 2020, the SEC’s press release dated March 4, 2020, and the OTC’s press release dated March 10, 2020.